Red Ball Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1963

143 N.L.R.B. 125 (N.L.R.B. 1963)

RED BALL MOTOR FREIGHT, INC. 125
collective bargaining or mutual aid or protection , or to refrain from any and
all such activities.
SCHOENFELD CORDAGE CO., INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees if presently serving
in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, 77002, Telephone No.
Capitol 8-0611, Extension 271, if they have any question concerning this notice or
compliance with its provisions.
Red Ball Motor Freight , Inc. and General Drivers , Warehouse-
men and Helpers Local Union No. 968 ; Dallas General Drivers,
Warehousemen and Helpers , Local Union No. 745; Truck
Drivers and Helpers Local Union No. 568 , all affiliated with
the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case No. 23-CA-
14435. June 26, 1963
DECISION AND ORDER
On March 5, 1963, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Intermedi-
ate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
niember panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
143 NLRB No. 32.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an original charge filed on May 26, 1962, and upon amended charges filed
on June 18 and July 5, 1962, by General Drivers, Warehousemen and Helpers Local
Union No. 968; Dallas General Drivers, Warehousemen and Helpers, Local Union
No. 745; Truck Drivers and Helpers Local Union No. 568, all affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein collectively called the Union or the Teamsters, the Regional
Director for the Twenty-third Region of the National Labor Relations Board, herein
called the Board, on July 6, 1962, issued his complaint against Red Ball Motor
Freight, Inc., herein called Respondent, alleging in substance that (1) Respondent
has threatened certain of its employees with discharge and physical violence, and (2)
on various dates discharged or laid off seven employees and refused to reinstate them,
because of their activity on behalf of the Union, in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151,
and following), herein called the Act.
On July 13, 1962, Respondent filed its answer in which is denied the commisison
of any unfair labor practices.
Pursuant to notice, Trial Examiner Horace A. Ruckel conducted a hearing at
Houston and Dallas, Texas, on September 10, 12, 13, and 14 and November 13,
14, 15, and 16, 1962, at which the parties were represented by counsel. All parties
subsequently filed briefs.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation having its principal office and place of
business at Dallas, Texas, and operating terminals at Houston, Texas; Shreveport,
Louisiana; El Dorado, Arkansas; Denver, Colorado; and other locations in various
States of the United States where it is engaged in the business of transporting goods
and commodities by motortruck under license by the Interstate Commerce Com-
mission.
During the 12 months prior to the issuance of the complaint, Respondent, in the
course and conduct of its business, received in excess of $1,000,000 for the interstate
transportation of goods and commodities.
II. THE LABOR ORGANIZATIONS INVOLVED
General Drivers, Warehousemen and Helpers Local Union No. 968; Dallas Gen-
eral Drivers, Warehousemen and Helpers, Local Union No. 745; Truck Drivers and
Helpers, Local Union No. 568, all affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates as a common carrier of freight in various States of the
United States. Its general office and main terminal are at Dallas, Texas. Altogether
it operates 79 terminals in the South and Southwest . This proceeding is limited
to events occurring at the Dallas, Shreveport, and Houston locations.
The Union has for some years been attempting to organize Respondent 's drivers
in the unit of employees presently represented by Union of Transportation Employees,
herein called UTE, which has a collective -bargaining agreement with Respondent.
In 1948 the Board found ,' as a result of charges filed by the Teamsters Union,
IN L.R B. v. Red Arrow Freight Lines, Inc., et at, 77 NLRB 859, enfd 180 F. 2d 585
(C.A. 5), cert. denied 340 U.S. 823.
RED BALL MOTOR FREIGHT, INC. 127
that several motor carriers, of which Respondent was one, had unlawfully con-
trolled the National Association of Motorized Common Carrier Truck Line Em-
ployees, purporting to represent the truckers' employees, and ordered its disestablish-
ment. The Board found that one R. S. Craig was a management representative
of Respondent and that Respondent had expressly authorized Craig to form the
Association. Sometime following the Board Order disestablishing the Association,
UTE was formed, with Craig as its president.
Efforts of the Union to organize Respondent's employees and to displace UTE as
their bargaining representative were revived during the latter part of 1960 and the
early part of 1961. In July 1961, an election was conducted in UTE in which
James Hester ran for the presidency of UTE against Craig. Teamster adherents
were active in support of Hester. Hester lost, and on July 26, 1961, was discharged
for speeding. It is not alleged in the complaint that this was a discriminatory dis-
charge. Neither is it alleged that Respondent has formed and dominated UTE
as it did the previous Association, or that Craig was and is Respondent's instrument
for this purpose. It is a reasonable conclusion, however, which I draw in view of
the close relationship between the Association, UTE, Craig, and Respondent, that
Respondent, who admittedly knew that the employees named in the complaint were
active in the Teamsters, also were aware that they were leaders of a dissentient
group in UTE and supported Hester as against Craig, an activity which in view of
the latter's previous services to Respondent, it could not have viewed with favor.
On November 30 and December 1, 1961, on the petition of the Union,2 the Board
conducted an election among Respondent's employees. The Union lost the election.
Respondent participated actively in the preelection campaign and directed a series
of letters to its employees and their families over the signature of Henry English,
chairman of its board of directors, and O. B. English, criticizing the Union and con-
trasting it unfavorably with UTE. In addition, a number of Respondent's highest
officials convened meetings of employees and addressed them in the same vein. The
letters and the speeches were in the familiar American Tube Bending 3 pattern, and
it is not contended that their utterance was in violation of the Act. The speech
was sometimes lurid but at all times free. These activities do show, however, that
Respondent is hostile to the Union.
In the preelection campaign all seven of the employees named in the com-
plaint either acted as observers for the Union at the election, or else were designated
to do so, and their activity was well known to Respondent. They were terminated
during the period from March 27 to May 8. They were: Horace Limbaugh, H. W.
Lewis, Elton Cathey, William Clem, Joe Shamblin, Gordon Hodgkins, and W. T.
Willingham .4 This was almost, but not quite, all the union observers at the elec-
tion. One, M. A. Butler, is still employed and his name does not appear in the
complaint. Another, C. C. Fox, who was designated as an observer but did not
serve, is still employed. One UTE observer, Robert Shanklin, was discharged in
March 1962.
Respondent asserts that these seven employees were legitimately terminated for
various categories of offenses, or else voluntarily quit, or were laid off for economic
reasons.
B. The discharges
1. Discharges for speeding
a. The safety program
In April 1961, Respondent employed John Barr as safety director for the purpose,
among others, of tightening up its safety program to reduce the number of accidents.
All line (over-the-road) drivers come under his personal supervision for this pur-
pose. City drivers remain under the supervision of the terminal managers. In
May, Barr began addressing employees at a series of safety meetings. His credited
testimony is that he told the employees that Respondent was tightening up its safety
program and warned them against driving within a town or city in excess of the
posted speed limit. The Texas speed limit for trucks on the open road, however,
is 45 miles per hour, and Barr testified that Respondent has always tolerated a
speed up to 50 miles. The employees were never officially informed of this because,
according to Barr, if they were told that they were given an inch they might take
2 Case No. 16-RC-3016.
2 Americana Tube Bending Co., Inc., 44 NLRB 121.
4 Another, Hall Nichols, is alleged to have been discriminated against by being singled
out for warnings and constantly checked upon.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a mile, or in this case five .5 It is not disputed that the employees knew of this
tolerance and drove accordingly.
Respondent has three methods of checking speed: (1) by a tachograph attached
to every truck which records, along with the speed, the date, how many hours it
is driven each trip, and where it stops. The driver drives a different truck every
night; (2) by transport safety reports which are recordings made by insurance
company patrolmen who make on-the-spot checks; and (3) personal following of
trucks by Barr or some other safety employee, and use of radar.6
The tachograph charts and transport safety reports are used as tools to indicate
whether drivers are violating driving regulations. If they indicate drivers, in gen-
eral, are going too fast, Barr may then decide to follow a truck personally.
Tachograph charts accumulate to the number of 7,000 or 8,000 a month from all
over the system. They do not cross Barr's desk. They are kept for a month in
the Dallas shop under the number of the vehicle, and not under the name of the
driver.? Barr occasionally spot checks them by taking "a fistful-at random, just
starting through them and looking for violations." As to the transport safety re-
ports, when Barr received one which indicated a violation of some sort he would
"at [his] earliest convenience get out there and personally check."
Barr's further testimony on direct is:
I will never discharge a man on the strength of the transport reports or
tachograph charts alone. I won't discharge a man if I go out there and
check him and catch him the first time in person. If that is his first offense,
if I get out there and check him personally, visually, myself, and that is the
first violation, I will not discharge him. I will give him a warning letter.
On cross-examination Barr amended his testimony:
Q. I think you said before that you will not discharge a man on the basis
of a visual infraction on just the first time. Is that right?
A. If he has never been warned before.
As I understand Barr's testimony it is that he never discharges for speeding
except when there has been a previous reported violation pursuant to which a
warning has been given. But this previous reported violation need not have been
witnessed by him personally. It may have been a violation appearing on a
tachograph chart or a transport report. Given such a report, a subsequent person-
ally observed violation may result in discharge.
As to whether a warning is always given when a violation is reported, Barr testi-
fied that he has never overlooked a violation or neglected to issue a warning letter
when he "thought one was due." When he did not think one was due, he did
not issue it. It was not automatic
Although Barr's testimony is that Respondent never discharges drivers for speed-
ing on the basis of a tachograph report or a transport safety report, alone, but only
on the basis of his personal observation, after a prior warning, he did not testify
that these drivers whom he personally caught speeding after a warning were in-
variably, or even customarily, discharged. They might be or they might not. He
testified that there was "no fixed practice." Each case is "based on its own merits."
He thus exercised his discretion as he testified he did in issuing warning notices,
when he "thought one was due," and as he further did with respect to discharge
because of chargeable accidents .8 Discharge for this reason, he stated, followed no
fixed rule.
Since a driver is discharged only after Barr has personally observed him speed-
ing after a prior warning, it becomes important to know what it is which determines
him to make a personal observation of the trucks. Again, there is nothing systematic
about this. It is manifestly impossible for him to follow every driver whose tacho-
graph reports show he may have been speeding, nor did he have a consistent practice
of following drivers who had been given prior warnings.9 Here again, he followed
it is also probable that Respondent did not care to sanction in words a violation of
State law.
9 Also, each truckdriver maintains a log which records among other things the number
of hours on and off duty and where he stops.
7 The driver of a particular truck, however, can be ascertained by inquiring of the dis-
patcher or checking the truck number against the sign-in-and-out register.
8 A chargeable accident is one which, on its face, is the fault of the driver.
9 He testified that some drivers had four or five warnings for speeding but were not dis-
charged because they had not been caught.
RED BALL MOTOR FREIGHT, INC. 129
no fixed rule, and was unable to say even approximately how often he followed trucks
.or how many he followed. It was done on a random basis:
Q. Now when you check up on city pickup and delivery drivers-
A. Yes, sir, sure do.
Q. How often do you do that?
A. Well, I don't have any set pattern. Just whenever the time or the oppor-
tunity affords itself-
Q. In March 1962, how many observations did you make of city pickup
and delivery drivers?
A. I don't know, sir.
Q. How about April, in 1962-
A. I can't recall.
* * * * * * *
Q. How about May 1962. How many spot checks of city pickup and
delivery drivers did you make in that month?
A. I made several in Houston that I recall.10
Q. Did you make any in any other city in the month of May9
A. No, sir.
Q. How about June 1962. Did you make spot checks of city pickup and
delivery drivers in any of the cities of the Red Ball system?
A. In June 1962, I was pretty busy trying to reorientate our people in the
Southeast division-
Q. In other words, your answer is no?
A. No. That is correct.
Barr's continued testimony is that he made no checks in July and August 1962.
He further testified:
Q. How would you determine how you were going to make your check?
A. There was no determination.
Q. I mean what caused you to check the drivers that you did check?
A. Nothing-
Q. Did you do it on a random basis?
A. Yes, sir, it was done on a random basis.
* * * * * * *
Q. Did you just cruise around?
A. I just cruised around.
* * * * * * *
Q. Did you ever say, sit in a place waiting for them to come by?
A. Yes, sir.
Q. When was that?
A. At the City Dock 18.11
Although Barr here is testifying as to how he checked city pickup drivers, it is
clear from his testimony as a whole that over-the-road drivers were checked on
the same hit-or-miss basis.
b. Gordon Hodgkins
Hodgkins started working for Respondent in May 1956 as a line driver based on
Dallas. He continued in its employ to May 4, 1962, when he was discharged. Prior
to July 17, 1961, he was never warned, reprimanded, or disciplined for speeding
or for any log violation.
In March 1960, Hodgkins became a line committeeman for the UTE and sup-
ported Hester for the presidency of UTE as against Craig. On July 17, 4 days
after the election, which Hester lost, Hodgkins was called to Barr's office where Barr
told him that he had been checking Hodgkins' tachograph charts and ICC logs for
the period of June 16 through 30 and that Hodgkins had made some improper log
entries. Barr proceeded to type a letter stating that any future errors would result
in his discharge, and required him to sign it. He also produced a tachograph chart
which Barr said showed he had driven up to 55 miles per hour over a stretch in
Arkansas. Hodgkins told Barr that the speed limit in Arkansas was 60 miles per
hour which Barr, after checking, admitted was correct. Barr thereupon produced
10 This is the month in which Willingham, a Houston pickup and delivery driver whose
discharge is hereinafter discussed , was terminated (May 9)
n As will be seen later, on this occasion Barr waited for Willingham at dock 18 for an
hour and a half while he was unloading, and then followed him
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another chart which, Barr said, showed sustained speeds of 50 miles per hour on
a Texas stretch, with short bursts of speed in excess of 50, and typed up another
letter, which Hodgkins signed , stating he had been speeding.
Barr testified that he could not recall how many tachograph charts he checked
in July 1961, but that there were "several." He could not recall any except those
pertaining to Hodgkins, Hester, Elton Cathey (named in the complaint), and an-
other employee, Mayberry, and I find that this was all. These charts he testified he
selected on a spot-check basis; he walked down to where the charts were kept and
"picked up a handful." He issued warning letters to Hester and Cathey as well as
Hodgkins, but not to Mayberry, as to whose chart or log he said he was mistaken
in believing it in error.
On July 26 , 1961 , 9 days later , Respondent discharged Hester for speeding. The
discharge of Cathey is hereinafter discussed.
In the fall of 1961, the dissident group in the UTE who had supported Hester
became active in the Teamsters ' organizing campaign . Hodgkins , along with the six
others named in the complaint as dischargees , was an observer in the Board election
on November 30 and December 1.
In April 1962, Hodgkins was assigned a regular run from Houston to Dallas,
generally carrying LTL freight.12 His usual time of departure was between 9 p.m.
and midnight. As a rule Mabra, another driver on the run, left between 7 and
9 p.m. On May 3, about 6:45 p.m., when Hodgkins arrived at the office of the
dispatcher, Samons, he heard Samons who was talking on the telephone say, "But
Mabra is due out first," and then, "Well, I will get them both out by 8 o'clock
some way." Samons did not testify. Barr testified that he did not check the
schedules for drivers leaving that night with Samons, and that he did not talk to
Samons on the telephone. Both Mabra and Hodgkins were dispatched at 8 p.m.,
although Hodgkins had never before left before 9 p.m.
Shortly after midnight when Hodgkins was 500 to 600 yards inside the city
limits of Corsicana, Texas, Hodgkins observed a parked car driven by Barr, which
started after his truck. Shortly thereafter Hodgkins pulled over to check his tires
and Barr, with whom was Lane, Dallas terminal manager, pulled alongside. Barr
testified that Lane had never previously accompanied him when checking on drivers.
Barr asked Hodgkins if he was familiar with Respondent's rule requiring a driver
to bump his tires every 50 to 75 miles and said he would see Hodgkins when he
got back to Dallas. Nothing was said about speeding or being checked by radar.
Barr and Lane returned to Dallas to await Hodgkins' arrival without waiting to
check any more trucks, although Barr testified that he knew other drivers were due
to go through. He did, however, check two trucks which passed before Hodgkins
did, and found no speed violation.
Barr, according to his testimony, on his way back to Dallas decided to discharge
Hodgkins. He admitted that he did not check his personnel file, which was at
the office, before making the decision. If he had done so he would have found
that Hodgkins during his 6 years with Respondent received a safety award in every
year, and had received only one warning for violating company regulations-that
issued the previous July under the circumstances previously described.
When Hodgkins got back to Dallas, Barr discharged him for traveling at 35
miles per hour, or 5 miles per hour, as shown by radar, in excess of the posted
limit of 30 miles. Hodgkins conceded that he might have been going at this rate
when he passed Barr but not afterward, giving as an explanation while testifying
that at that point there is a downgrade and he intended to let the truck fall back
to 30 miles per hour on the upgrade.
c. W. T. Willingham
Willingham came to work for Respondent in 1954 as a city pickup and delivery
driver in Houston. In September 1961 he was transferred to the job of gasman
whose duties were to gas up trailers and back them around the yard up to the load-
ing docks. Around the middle of November 1961 he was changed to a city pickup
driver.
In the summer of 1961 Willingham became active in signing up members in the
Union and later served at the Board election as observer for the Union at the
Houston terminal, along with Hall Nichols. It is not disputed that a week or 10
days prior to the election, he had a conversation with Alvie Simpson, Houston
assistant terminal manager, in which Simpson expressed himself as opposed to the
Union. Willingham's interest in it was well known to Respondent.
12 Less than truckload.
RED BALL MOTOR FREIGHT, INC. 131
In March 1962 Willingham, along with two others, was given a written warning.
for exceeding 10 miles per hour in Respondent's yard, in violation of a company
rule.
On May 9 Barr, according to his testimony, decided to check some of Respond-
ent's drivers of six-wheel equipment as to their driving habits, and ascertained from
Foster, Houston terminal manager, in what part of town these trucks might be
found, but without obtaining any knowledge as to who the drivers were. Ac-
cordingly, he drove to city dock number 18 at the waterfront. This was the only
time between March and August 1962, when, so far as he could remember, he
checked on city pickup and delivery drivers. Between May 7 and 10 he checked
on seven or eight.
At dock number 18, where he arrived about 1:30 p.m., Barr found Willingham's
truck being loaded. He remained there for about 11/2 hours waiting for it to pull
away. When Willingham pulled away Barr followed his truck down McCarthy
drive, a four lane street, where he saw Willingham at one point going 45 miles per
hour in a 40-mile zone, and then go through a stop light. When Willingham made
another stop to load, Barr again waited for him until he had loaded and at 4:23
p.m. followed him back to the terminal. Altogether Barr spent approximately 31/2
hours following Willingham. As a result, he testified, he did not check on any
other equipment and left Houston that evening.
At the terminal, Barr, according to his testimony, asked Foster to find out who
was driving the truck and Foster called Willingham to the office where Barr played
back to him a tape recording which Barr had made while following him. Foster
then discharged Willingham.
Conclusions
Respondent urges as to the discharges of Hodgkins and Willingham for speeding.
that there was no disparate treatment of them. Hodgkins admittedly drove for about
a third of a mile within the city limits of Corsicana at 5 miles in excess of the posted
speed limit, in violation of Respondent's announced policy. Willingham did the same
thing within the city limits of Houston, and in addition ran a red light. Both had been
previously warned, Hodgkins once, 10 months previously, and Willingham once, on
March 28, 1962. Respondent cites the instances of two other employees (Samons
and Houston) who speeded on other occasions and who were warned, but not dis-
charged because Barr had not caught them personally. Where, Respondent asks, is
there a showing of disparate treatment?
I am not impressed with this argument. All it shows is that since Hodgkins and
Willingham were personally observed to be speeding by Barr, and Samons and
Houston were not , their discharge was not inconsistent with Respondent 's stated
policy. It is clear from Barr 's testimony that both warnings and discharges depended
upon all the facts and circumstances , and were not automatic . He used his own
judgment . It has also been found that he used his own judgment as to what drivers
he should follow.
Hodgkins each year of his employment had received a safety award . He had had
but one warning . On the occasion of this warning, which took place during the
election in UTE when Hester, with Teamster support, was running against Craig,
Barr reached into a reservoir of tachograph discs and reports from seven to eight
thousand in number and drew out "several," which I have found were four.13
These four were reports on Hester, Hodgkins, Cathey, and Mayberry. This, accord-
ing to Barr, was entirely accidental. Hester, Hodgkins, and Cathey were given
warnings. Mayberry, whose union affiliation is not revealed by the record, was not.
Hester, Hodgkins, and Cathey were subsequently discharged-the first two assertedly
for speeding, and Cathey because of an accident.
On May 3, 1962, Hodgkins was dispatched on his run to Houston from Dallas
an hour earlier than he had ever previously been dispatched. Barr lay in wait at Cor-
sicana, radar established, along with Lane, terminal manager, who Barr testified had
never previously accompanied him on such an expedition . Barr observed one or two
of Respondent 's trucks pass by proceeding , according to Barr, within the speed limit.
Hodgkins, shortly after midnight, they observed traveling at 5 miles an hour in excess
of the speed limit, from the city limits to a point one-third of a mile within the city
limits. Although they talked with Hodgkins, they said nothing about speeding,
which would seem the natural thing to do since he still had some distance to con-
i3 While Barr drew out only four on the occasion, he testified as to his general practice
that "whenever I get ready to make a spot check, I will just go down and grab a fistful]
of charts "
717-672-64-vol. 143-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinue in Corsicana and Barr assertedly was paying particular attention to speeding
within the limits of a city.
Having found Hodgkins speeding , Barr and Lane made no further check on other
drivers. On the way back to Houston, Barr admittedly decided to discharge Hodg-
kins without referring to his personnel file. This would have shown him with only
one previous warning, and that 10 months previously, and with a safety award
every year of his employment. In the absence of the file and of any testimony by
Barr that he personally recalled giving Hodgkins a warning the previous July, I can-
not understand how he could have been sure that Hodgkins had received a previous
warning, a precondition for discharge. I am unable to believe that the circumstances
attending Hodgkins' discharge were purely coincidental.
So with Willingham. I cannot believe that Barr waited for an hour and a half
at the Houston dock until Willingham had loaded his truck and consumed another
2 hours following him throughout the streets of Houston, waiting until he made
another pickup, and following him back to the terminal, without knowing before
he set out, or discovering along the way, that the truck he was following was driven
by Willingham. As previously found, Barr could not remember any other instance
where he waited an hour and a half for a parked truck to load so that he could
follow it.
Here, as in the case of Hodgkins, Respondent's practice did not require that it dis-
charge Willingham who had had only one prior warning, and that for driving too
fast on Respondent's property,14 but only that all the circumstances be considered.
Both Hodgkins and Willingham, along with the employees whose termination is here-
inafter considered, had one factor in common. They were known to be active in
the interests of the Union, and had served (Hodgkins and Willingham, among oth-
ers) or been designated to serve as observers for the Union at the Board election.
Respondent's opposition to the Union and its support of the UTE was made un-
mistakably clear to the employees in speeches and letters.
Respondent's records show that from the beginning of 1962 to May 9, the date
of Willingham's discharge, Hodgkins and Willingham, both Teamster supporters
and election observers, were the only drivers in Respondent's entire system who
were discharged for traffic violations, in spite of the fact that there were more than
twice as many supporters of the UTE as there were supporters of the Teamsters.is
I conclude and find that Hodgkins and Willingham were not discharged because
of speeding violations, but because of their activities on behalf of the Union.
2. Discharges for accidents
a Horace Limbaugh
Limbaugh was employed in August 1957 on the Dallas dock. In 1958 he was
transferred to making pickup and delivery runs. In the latter part of 1961, after
the UTE election, he became active in the Union 's organizing campaign and signed
up more than 50 drivers. In October 1961 he was called to the office of Meeks,
then terminal manager, where Hitt, a foreman, was present, and Meeks asked
Limbaugh, according to the latter's credited testimony, if he was for the Teamsters,
stating, however, that he was already aware of it because he had seen men stand-
ing around his car at night signing up for the Union. Two days before the elec-
tion Meeks again asked Limbaugh if he was for the Union and Limbaugh said that he
was. Meeks was not called as a witness and Hitt did not testify on the point. As
has been stated, Limbaugh along with the others named in the complaint served
as an observer at the election. His activity in the Union was well known to
Respondent.
On Friday, March 23, 1962, Limbaugh while on a Dallas city run backed into
a boy on a bicycle when he was straightening out his truck preparatory to unload-
ing. The boy was not hurt but the front wheel was damaged and Respondent
subsequently paid $8.19 to have it repaired. Limbaugh's credited testimony is that
the bicycle came up under the rear of the truck so that it could not be seen through
the rear-view mirror. Limbaugh telephoned in a report to Haslet, the dispatcher,
who told him to finish his run. That evening Haslet told him to make out an
accident report on Monday. On Monday morning Limbaugh forgot to make out
his report before leaving on his run. When he got back that evening he found his
timecard pulled and when he asked Lane, terminal manager, about it, Lane told
Limbaugh to see him the next morning. On the following morning he did so.
"It is not contended that this was a violation of law, but of Respondent's own rule.
15 On the basis of the results of the Board election, where out of 627 ballots cast, 435
were cast for the UTE (69 percent ) and 192 for the Teamsters ( 31 percent).
RED BALL MOTOR FREIGHT, INC. 133
Lane called Limbaugh's attention to several backing accidents he had had in pre-
vious years, stated they were too many, and told Limbaugh that he was suspended
during investigation. 16
Limbaugh's testimony is that he then asked Lane how long he would be suspended
and Lane said that it was up to the general office Limbaugh said that Charles
Fisk, Respondent's vice president in charge of operations, was "after him" and that
he was being suspended because of his Teamster activity. Lane said he knew
nothing about this. Limbaugh then asked if he could work elsewhere during his
suspension because of his family and the family bills, and Lane told him it was
against company policy to work for another employer while working for Respond-
ent Limbaugh testified that Lane then suggested that he resign. Lane's testi-
mony is that this was the suggestion of Limbaugh who said, "I think I will just
resign." I accept Limbaugh's version as the true one. Lane proceeded to type
up a letter of resignation and Lane, according to Limbaugh, said, "Well, just go
ahead and sign this letter." According to Lane he asked Limbaugh if that is what
he wanted to do. Limbaugh signed, stating that he hated to lose all his seniority
at Red Ball.
Conclusions
Respondent contends that Limbaugh's termination was by way of resignation. The
General Counsel contends it was a constructive discharge. I agree. Lane's refusal to
give Limbaugh any idea of how long his suspension might be, when he knew that
it probably would take no more than 24 hours, coupled with his refusal to permit
him to work elsewhere while suspended and his failure to tell him that an employee
was paid during such a suspension, was designed in my opinion to force Limbaugh's
resignation. I find significant Lane's further testimony that he had decided not to
suspend Limbaugh at all, but to issue him a warning letter instead, but did not have a
chance to tell him so because Limbaugh "at that point" began to claim that the gen-
eral office was "out to get him." I see no reason why Lane could not have told Lim-
baugh at this point or some other. His failure to do so I find was occasioned by his
intention to force his quitting. Lane could not reasonably have believed that Lim-
baugh was voluntarily resigning, since Limbaugh was protesting that the general
office wanted to get rid of him, that he had family obligations, and that he hated to
lose the seniority gained in Respondent's employ. I find that Lane's entire course of
action was calculated to bring about Limbaugh's quitting, and that by so bringing it
about Respondent constructively discharged him. I find that the reason for the dis-
charge, or forced quitting, was Limbaugh's known activity on behalf of the Union to
which Respondent was openly opposed.
b. Elton Cathey
Cathey came to work in September 1959 as a line driver based on Dallas. In
1961 he became active in the Teamsters' organizing drive and procured about 75
Teamster cards. It has already been found that he served as an observer for the
Union at the Board election. It has also been found that at the time of the UTE
election one of Cathey's tachograph charts, along with charts pertaining to Hester,
Hodgkins, and Mayberry, was pulled "at random" from among seven to eight thou-
sand charts, and Hester, Hodgkins, and Cathey, but not Mayberry, were issued warn-
ings for speeding.
On April 1, 1962, Cathey left Dallas on a run to El Dorado, Arkansas, via Shreve-
port, Louisiana. Before leaving Dallas he checked the lights, tires, wheels, and fire
extinguisher, and checked his tires again at Wills Point and Longview, Texas. At
Shreveport he dropped his trailer and picked up another, and again checked his tires.
About 70 or 75 miles past Shreveport, the dual outer drive wheels on the right side
of the tractor suddenly came off, one of them rolling off the highway into a parked
car, damaging it to the amount of approximately $600. Cathey was able to hold
the tractor and trailer on the road and bring it to a stop. He called Nethercutt,
Shreveport terminal manager, who sent another tractor to haul the trailer to El
Dorado. On the following day he was dispatched on a regular run to Dallas where,
on April 5, Barr called him to his office.
Barr asked Cathey about the accident on April 1 and Cathey gave him an account
of it. Barr showed him a bulletin issued to drivers and said that it required drivers to
10 This is Respondent's usual procedure. Ordinarily an employee is paid during an in-
vestigatory suspension, which normally is completed within 24 hours. If he is suspended
after investigation, this is a disciplinary suspension and he is not paid while it is in effect.
-I find that Limbaugh had no knowledge of the exact procedure.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
check their wheels and lugs every 75 miles. Cathey denied that the bulletin said
anything about wheels or lugs, and the bulletin itself, in evidence, supports Cathey.
It is entitled "Tire Fires" and deals solely with their prevention and with methods
of fighting them, principally by keeping them properly inflated, and asks for the
11 cooperation of all of our line drivers in checking their tires prior to departure and
every 50 to 75 miles en route between terminals."
After reading the bulletin to Cathey, Barr asked him how long he had driven the
trailer on his April 1 trip without checking it. Cathey's testimony is that he checked
his tires when he picked up the trailer at Shreveport, and so told Barr. Barr's testi-
mony is that he asked Cathey if he had checked his wheels and tires before leaving
Shreveport and that Cathey replied that he had not, stating, "I just guess I goofed."
Barr's further testimony is: "I told him I would have to think about it for a little
while. And I thought it over." But not for long, for then Barr asked Cathey to
resign and when he refused told him he was discharged. Barr's further testimony is
that he offered to call the UTE representative but Cathey said that would do him
no good, and left, and that he did not see Cathey again until the hearing. After
he had left, Barr says that he called House, UTE representative, and told him what
had occurred.
Cathey's testimony, however, is that after he left Barr's office he went to the dis-
patcher's office where he called House on the telephone and asked him to come
down. Then Barr passed the door to the dispatcher's office and summoned Cathey
over to the main office where he gave Cathey his final paycheck. About that time
House arrived. Cathey told him he was discharged and House suggested that they
go in to Barr and see if anything could be done. In Barr's office House asked Barr
to reconsider the discharge and Barr said, still according to Cathey's testimony,
"Well, he's done admitted it," and Cathey said, "Wait, I ain't admitted anything."
Cathey's testimony is that he then repeated his account of this accident to House and
Barr together and asked Barr why, if he was such a bad risk, he had been dispatched,
following the accident, on his trip to Dallas and that Barr replied that he was waiting
until he got to Dallas. Cathey then said, "In other words, you knew you were
going to fire me when you talked to those people," and, "if I hadn't gotten around to
Dallas I might have had another day or two's work," to which Barr said, "That is
right . . I was going to fire you when you got into Dallas whether it was Thursday
or Wednesday morning," and concluded, "This case is closed as far as I'm concerned."
House then left and Cathey went with him.
I have related this testimony, circumstantially given, at some length since Barr's
account is silent as to any conversation between himself, Cathey, and House, who was
not called as a witness. Barr's testimony, as I have found, is that after Cathey had
left his office when told he was discharged he did not see Cathey again until the
hearing. I credit Cathey's testimony as to the conversation between him, Barr, and
House, and I conclude that Barr's memory was faulty For this reason, among others,
I do not credit Barr's testimony that Cathey told him that he had not checked his
tires at Shreveport, and instead I credit Cathey's testimony that what he told Barr was
that he had not checked them after leaving Shreveport. I have accepted Cathey's,
testimony that he did check them at Shreveport.
Cathey's testimony as to what was said after House was called in is of further
importance in that Barr admitted to Cathey that he had decided to discharge him
before he had talked with him. Hence the discharge would not have been affected
by any statement by Cathey, even had it been made, that he had not checked his tires,
at Shreveport. Moreover, it contradicts Barr's statement on the stand that he decided
to discharge Cathey during his interview on April 5.
Barr may, however, have believed that Cathey had not inspected his tires be-
cause, had he done so, the accident would not have happened. Sanders, shop
foreman, testified that the holes in the wheels into which the studs fitted were
elongated to twice their normal size, which indicated to him that the wheels had
wobbled because the nuts were loose, permitting the wheels to have free movement
against the studs, and that one can see when the nuts are loose on the bolts by look,
ing at the wheels. Cathey's testimony was that the nuts in question cannot be
seen by looking at the outside of the outer wheels, but only when the outer wheels
are first removed.
Respondent insists that even if these nuts cannot be seen if they are loose the
wobbling of the wheels can be felt by an experienced driver, and contends that if
Cathey had checked his tires at Shreveport he would have seen that the nuts were
loose.
Conclusions
Cathey was not discharged by Respondent for having an accident but, accord-
ing to its brief, for the "sole and simple reason that he had neglected to check his
RED BALL MOTOR FREIGHT, INC. 135
equipment ." I have found that he did inspect his tires before leaving Dallas, twice
again before arriving at Shreveport, and again before leaving Shreveport. The
accident in question occurred less than 75 miles after leaving Shreveport, within
the distance allowed by the "Tire Fire" bulletin. The bulletin itself does not set
forth a company rule. It only "asks for the cooperation" of the drivers. It
pertains to tires only, which can be seen, and requires that they be properly inflated.
It has nothing to do with inspection of the wheels themselves to discover me-
chanical faults. This is the responsibility of the service department. Nor am I
convinced that loose nuts on the type of equipment in question can be seen when
the tires are looked at, or that vibration of the tractor is necessarily caused by
loose nuts or that it can be felt by the driver.
The record shows that Barr had determined to discharge Cathey before he talked
to him. In my opinion this decision was not based upon the accident on April 1,
but upon Cathey's extensive and well-known activity in behalf of the Union, and
I so find.
3. Terminations for other causes
a. Joe Shamblin
Shamblin started work in April 1957 as a pickup and delivery driver in Dallas.
He was a committeeman for the UTE in 1958 and a councilman in 1959. In 1960
he was appointed treasurer of UTE by Craig, and in 1961 he was elected to that
office. In October of that year he sent a letter to Craig, with a copy to Respondent,
protesting the way in which the UTE was being run. On October 15 he was ex-
pelled by the UTE. Thereafter he became active in the Union and was designated
union steward at the Dallas dock, and later an observer at the Board election. A
short while before the election Fisk, Respondent's vice president in charge of
operations, spoke to a meeting of employees at which he praised the UTE and
attacked the Teamsters. Shamblin's testimony, admitted by Fisk to be correct in
substance, is that he arose and took exceptions to certain of Fisk's sttaements. After
the meeting Fisk detained him and told him that he could not understand what
was wrong with him and Shamblin answered that his "problem" was with the UTE
and the working conditions. Fisk suggested that if Shamblin wanted the Teamsters
he would help him get transferred to the Denver division where Respondent had
a contract with that union. Shambhn declined the offer, stating that he would
stay in Dallas and work under a Teamster contract there.
On March 28, the day following Limbaugh's discharge, discussed above, Sham-
blm and several other employees were talking about the discharge in the yard when
Fisk and Lane approached and asked what was going on. When Shamblin said
they were talking about his pickup truck, Fisk admittedly said, "Don't kid me,
Joe. You're out here with that Teamster trouble-making business," and asked
Shamblm what was wrong. Shamblin replied that the drivers were dissatisfied
with the working conditions and did not like Limbaugh's being discharged. As
Fisk and Shamblin walked away Fisk again suggested that Shamblin quit, and
Shamblin again declined, adding that it was like a dictatorship at Red Ball and that
it should move to Cuba. On April 6, during a conversation in Lane's office, Lane
criticized Shamblin for making remarks about Henry English, Respondent's prin-
cipal owner, and told him he was causing trouble among the drivers and that the
UTE, not Shamblin, represented them. Shamblin accused English of being "part
of a fake union." Lane suggested that Shamblin quit, told him that there would
have to be a change in his attitude , and instructed him to leave the premises when
he got off work at the end of the day.
Later in April Shambhn was switched from his job, principally that of picking
up and delivering straight loads of freight, and made a "hot shot" driver handling
LTL shipments. This involved the handling of smaller and more varied consign-
ments. Shamblin had previously bid on this job and the transfer is not alleged
to have been discriminatory. On April 25 Shamblin made his last pickup of the
day at Western Electric Company warehouse, just before the closing hour of 4:30
p.m. This consisted of between 12 and 20 different shipments of 200 or more
cartons. When the shipments had been loaded Shamblin found that a shipment
to Port Arthur was missing . Shamblin was told that the warehouse was closing
and to take the load to Red Ball's dock and if it was found to be a shipment short
to pick it up on his run the next morning . The next morning the missing ship-
ment , comprising 15 cartons , was found placed to one side in the Western Elec-
tric warehouse. Shamblin called Hitt , Respondent 's breakout foreman , to see if
this shipment checked with the bill of lading and Hitt told him to bring it in, which
he did . Shamblin heard nothing more about this until his discharge on May 2.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 1 Shamblin had a pickup at White's Auto Store warehouse involving
8 to 15 separate shipments of 300 to 400 cartons. Although Shamblin receipted
for all the merchandise he did not receive six tires and a sign
The 15 carton Western Electric shipment of April 25 came to Lane's attention
through a spot check of OS & D 17 reports on May 1. Lane testified that this lapse
of time was due to the fact that there were 80 to 100 OS & D reports each day,
and that usually such reports came to his attention through tracing of a shipment
from the destination station after a failure by the consignee to receive it. Lane
called Shamblin and criticized him with respect to the shipment, and Shamblin
explained the circumstances. Lane said that Shamblin was "making trouble on
the dock" and again suggested that he resign. On the following day, May 2, Lane
prepared a letter to Shamblln reprimanding him on account of the Western Electric
shipment and his attitude toward Respondent, and warning him that if he did not
improve he would face discharge.
After its preparation, but before its delivery, the White Auto Supply incident came
to Lane's attention. Lane called Shamblin in, told him he had just found out about
the White matter, and discharged him. Simultaneously with telling Shamblin he
was discharged Lane handed him the warning letter which he had prepared. Lane
testified that during his 6 months at Dallas, Shamblin was the only driver whom he
discharged for failing to pick up or deliver merchandise. The record does not show
that any other driver was ever discharged for this reason.
Conclusions
In my opinion Respondent's complaint as to the 15 cartons at Western Electric
approaches the trivial. The absence of the cartons was discovered by Shamblin
himself, Respondent knew where they were, and no tracing was necessary though
Lane testified that usually such shortages were discovered only after a consignee's
failure to receive and subsequent tracing. The White incident is of little higher
stature. The absence of the six tires and sign was not discovered by Shamblin but by
a trace, and a special run was necessary to get the articles delivered the same day.
Shamblin, however, had been only a few days on this run and was unused to handling
large numbers of individual items in numerous shipments. Neither matter involved
any actual loss to Respondent. Shamblin testified credibly that he himself had on
at least six occasions picked up shipments overlooked by other drivers. Lane's own
testimony is that there are 80 to 100 OS & D reports each day at the Dallas terminal
alone, and that of these 40 to 50 are shortages, a number of them due to the failure
of drivers to pick up shipments.
Shamblin, as a councilman, committeeman, and treasurer of UTE, had been in
open opposition to Craig's administration of that organization , and Respondent
knew it. When the UTE expelled him he became active in the Teamsters organizing
drive, possibly its most active proponent. He repeatedly made clear to Respondent's
officials his dissatisfaction with working conditions at Red Ball and its relationship,
to the UTE, and they made equally clear to him their dissatisfaction with his
Teamster activities and their desire to be rid of him. First, Respondent attempted
to persuade him to transfer to Denver where he would be under a Teamster contract
and removed from the employees he was attempting to organize. This failing, they
urged him unsuccessfully and on repeated occasions to quit his employment. Finally
they discharged him. Respondent's eagerness to be rid of Shamblin is illustrated by
the fact that Lane did not wait for his warning letter to take effect, but discharged
him simultaneously with delivering it, on the pretext afforded by the White shipment.
He was the only pickup and delivery driver Lane discharged in the Dallas terminal
while he was terminal manager,18 and there is no evidence that anyone else in the
entire system was ever terminated for this reason. I find that Shamblin's discharge
was caused by Respondent's opposition to the Union and Shamblin's activities in
its behalf.
b. Henry Lewis
Lewis was employed in January 1957 and worked on the Dallas dock. In 1959
he was transferred to Shreveport, Louisiana, where he was an over-the-road driver.
He became active in the Teamsters in late 1960 and obtained signatures of drivers
to Teamster petitions. On May 2, 1961, he was called to the office of Scruggs, cen-
tral dispatcher, and in Barr's presence told about a trailer which he had dropped on
17 Over, short, or damaged
18 If Respondent had been genuinely concerned by Shamblin 's performance it could have-
transferred him back to his previous run.
RED BALL MOTOR FREIGHT, INC. 137
a gravel lot at Greenville, Texas, without putting a dollie under it to prevent its sink-
ing into the ground. It is not asserted that it did sink. Scruggs used the occasion
to say that Lewis had been seen causing trouble among the drivers and had been
telling them they had "run arounds" 19 coming to them. Scruggs testified that a
number of unjustified complaints had come to him of "run arounds" and he had
traced their source to Lewis. Scruggs then composed a letter to Lewis placing him
on probation for a year "to the extent that any further act of negligence or indica-
tion of poor judgment on your part will result in your immediate dismissal."
In January 1962, Lewis made a run from Shreveport to Sherman, Texas, via Paris.
While in Paris, Lewis saw a shipment of school supplies destined for Sherman which
he had not been instructed at Shreveport to pick up, and asked the dock foreman if
he should put the supplies in his trailer. The foreman told him not to do so, that
another driver had been dispatched to pick them up. When he got to Sherman,
Alred, Respondent's agent there, asked him if he had the supplies and Lewis told him
that he had been instructed by the dock foreman at Paris not to take them in his
trailer. Alred called Scruggs who told him to have Lewis either go back to Sherman
and pick up the shipment, without pay, or to catch the bus and go home. Lewis
made the trip to Paris and brought the supplies to Sherman. When he got back to
Shreveport, Lane told him that he was careless in not picking up the supplies at Paris,
and that he did not use his judgment, although it was as much the fault of the dock
foreman as it was his. Nevertheless, he prepared a statement which he said Lewis
did not have to sign "but if you don't sign this, this is it." Lewis signed. The state-
ment is as follows
My duties as a line driver-specifically my responsibility is moving freight
from local stops or warehouse on my specific run [illegible]. It was pointed out
that any future poor judgment in failing to move local freight or any poor
judgment reflecting negligence in performing my duties would be followed by
my immediate discharge from the service of the company. Specific references
is made to my trip of 1/11/62 through Paris, Texas, where I failed to use judg-
ment in moving freight from Paris to Sherman, Texas.
Lane did not testify as to this conversation with Lewis. I construe his statement
that if Lane did not sign the statement "this is it," to mean , as Lewis himself under-
stood it, that he would be discharged
On Sunday, March 11, 1962, Lewis was dispatched to pick up a load of rolls of
paper at Ludlow Plastics in Homer, Louisiana. The load consisted of 30 rolls
weighing 39,364 pounds. Lewis' uncontroverted testimony is that he and two em-
ployees of Ludlow rolled about 15 rolls on the trailer when it was found they would
not fit, so the rolls were rolled off and a forklift truck was used to set them up in the
trailer. Lewis helped roll the paper on and off the truck. Whether he helped with
the forklift truck is not clear. On his log Lewis showed the pickup of the 39,364
pounds, and a claim for tonnage pay at 21/4 cents per hour. Since no dock foreman
or dispatcher was present at Ludlow, he had his log initialed (H. B.) by another
driver. Several days after Lewis submitted his log for examination and payment, he
received a letter from Dale Scruggs, director of transportation, asking if he had actu-
ally helped load the paper, and who approved the tonnage figure, since he did not
know who H. B. was. Lewis replied on the face of the letter that he had in fact
helped load, and returned the letter to Prince, Shreveport dock foreman, who for-
warded it to Lane. Prince wrote on the bottom of the letter that he had approved
Lewis' claim on a tonnage basis. He based his approval on Lewis' statement that he
helped load.
Lewis was never paid for helping load on either a tonnage or hourly basis. It is
agreed that payment on a tonnage basis would have been $1.88 more than on an
hourly basis.
On March 27 Scruggs called Lewis to Dallas at Lewis' own expense and on
March 28 talked with him. He accused Lewis of not having helped to load the trailer
and stated that he had a letter from Ludlow to that effect. He did not produce it. Nor
was it produced at the hearing. Alternately, Scruggs said that Lewis' claim should
have been on an hourly basis. Scruggs characterized the claim as dishonest, gave
Lewis a chance to resign, and when he refused to do so discharged him On the
following day Scruggs wrote Lewis stating he had been discharged because "sub-
sequent investigation" revealed he had not assisted in the loading, and because he had
been put on probation for a year on May 1, 1961, and warned in January 1962.
"A "run around" is dispatching a man out of order, instead of "first in, first out."
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
Respondent's whole course of conduct toward Lewis convinces me, and I find, that
it discharged him on May 28, 1962, because of his activity on behalf of the Teamsters
and not, as it claims, for legitimate business reasons. In pursuit of this aim and pur-
pose it first made the probationary conditions (any further act of negligence or indi-
-cation of poor judgment), such that no employee could reasonably be expected to
meet them since they were undefined, and in the background context included not
placing a dollie under a truck, and not talking to fellow drivers. The only other
instance of asserted negligence or poor judgment prior to the Ludlow plant loading
was his not taking the school supplies from Paris to Sherman. It is uncontroverted
that Lewis himself asked the dock foreman at Paris if he should do so, and was
instructed that he should not, and that another driver was scheduled to do so. I am
at a loss to understand how this can be said to constitute negligence or poor judg-
ment, or what Lewis could conceivably have done short of defying supervisory
authority and disrupting Respondent's transportation schedules. Since Lane did not
testify on the point I am without the benefit of his opinion. But he did admit to
Lewis, an admission which I regard as something of an understatement, that the dock
foreman was partly at fault. It does not appear, however, that the dock foreman was
in any way reprimanded. Instead, Lane caused Lewis to sign a self-incriminating
statement under what was in effect a threat of discharge in an endeavor, as I view it,
to prepare a case against him. He was made to confess, specifically, that he used
poor judgment at Paris, and to acknowledge that a similar lack of judgment in the
future would cause his discharge.
The future was not long coming. On March 28 Lewis reported that he had loaded
freight at the Ludlow dock and claimed pay on a tonnage rather than on an hourly
basis. The difference was $1.88 in his favor. This does not seem to have been the
complaint against him, however, but rather that he did not help in the loading. This
is the basis on which Lane put the matter in the discharge letter. Lewis testified that
he did help load, and there is no evidence to the contrary, though other witnesses were
available in the persons of Ludlow's dock employees. Lane asserted that he had a
letter to that effect, but did not offer to show it to Lewis. Nor did Respondent pro-
duce it at the hearing, or make any showing that it was not available.
I conclude and find that Respondent discharged Lewis not for legitimate business
reasons but because of his activity in behalf of the Teamsters.
c. William Clem
Clem started to work as a mechanic third class in the trailer shop under Harold
Odum, maintenance supervisor. In the fall of 1961 he became active in signing up
employees for the Teamsters. Together with Hodgkins and Shamblin he acted as a
union observer at the election. He testified that after the election he received less
overtime than formerly. I do not find this substantiated by the record.
Clem testified that the day following the election when he was sitting with Olswaski,
trailer shop foreman, and several other employees in the coffeeshop, Olswaski
addressed him as a "no-good-so-and-so-Teamster" and that the Teamsters "ought to
be whipped or shot," and said that the Company felt the same way about it and that
Odum and Fisk were going to get rid of Clem. Olswaski and others named by Clem
as present on this occasion testified that Olswaski said nothing at all to Clem about the
Teamsters. I credit their testimony. On December 5, Clem resigned his member-
ship in the UTE.
In January Clem was called to Odum's office and criticized for creating dissension
and spreading rumors to the effect that newly hired employees were being given
higher classifications than others already employed. Moudy, a driver who was con-
cerned about the rumors, was present.
Several weeks later, Clem testified, he was again called to the office where Odum,
in Moudy's presence, again accused Clem of stirring up trouble, and called someone
on the phone to whom he said, "Yes, sir," and "No, sir," and told this person that
he was discharging Clem. On turning from the telephone he told Clem that he was
giving him another chance. This conversation was denied by Odum Moudy testi-
fied that he had been present on only one occasion where Clem was present, that
previously related. I accept Odum's testimony and that of Moudy as in accord with
the facts.
On February 5, Odum offered Clem a job in Respondent's Denver terminal, but
he refused it.
In mid-April Respondent laid off six employees in the shop, including Clem. It
is not contended by the General Counsel that the decision to lay off was other than
-economically motivated. When Odum told the group of employees that they were
RED BALL MOTOR FREIGHT, INC. 139
being laid off Clem, according to his testimony, raised the question of bumping to
another job and said that he was going to bump, and Odum said he could not bump
because he was not a member of the UTE. The testimony of Odum and the others
present was that the question of bumping was raised by Moudy, or some other em-
ployee, but not by Clem, and that Odum said that anyone who had the right to bump
could do so. According to these witnesses it was Clem who announced that the
others had the right to bump, but that he did not because he was not a member of
UTE. I accept their account of the conversation as accurate, and find that Odum did
not say that Clem could not bump.
The fact is that the UTE contract gives the right to bump when seniority is
sufficient It is conceded that Clem was eligible to bump, along with one other
employee, if he had demanded it. The other eligible employee did not want to bump.
It is also clear that Odum knew of Clem's right, but that Clem did not. Odum's
testimony was as follows:
Q. Who brought up the subject of bumping'
A. Clem.
Q. What was Clem's statement9
A. He didn't have a bump coming because he did not belong to the U.T.E.
Q. Did you say anything when Mr. Clem made the statement?
A. No, sir.
Q. Was Mr. Clem's statement a true statement?
A No, sir
Conclusions
The question presented is whether Odum's admitted failure to tell Clem that he
could bump to another job when he knew that Clem was under the mistaken belief
that he could not, was motivated by Clem's known activity in behalf of the Teamster's
and Respondent's hostility to it. On a previous occasion Odum had tried to persuade
Clem to transfer to Denver, and he had refused His failure to bump had the same
result that a transfer to Denver would have had; it removed him from the union
activities in Respondent's Dallas shop. If Clem had not been an advocate of the
Teamsters, Respondent's antipathy to which is amply demonstrated, among other
things, by its termination of six other of its most active proponents, would Odum
have interposed to advise Clem of his right to bump when it was obvious that he
was ignorant of this right? The answer is not without difficulty, but I believe that it
must be in the affirmative Ordinary fair dealing between employer and employee
would have dictated it Here this fair dealing was withheld, in my opinion, because
of Clem's union activity, and I so find His termination constituted a constructive
discharge.
Concluding Findings
I find that Gordon Hodgkins, W. T. Willingham, Horace Limbaugh, Elton Cathey,
Joe Shamblin, Henry Lewis, and William Clem were discharged by Respondent in
violation of Section 8(a) (3) and (1) of the Act.
C. Alleged harassing
The complaint alleges that Respondent discriminated against driver Hall Nichols in
violation of Section 8(a) (3) and (1) of the Act by, since December 2, 1961, singling
him out for special checks and issuing warning notices for alleged violation of rules.
Nichols has worked since 1956 as a line driver out of the Houston terminal. In
1960 he joined the Teamsters, became active in its affairs, and was an observer at
the Board election. This was known to Respondent
On a run between Houston and Paris, in March 1962, Barr followed his trailer
for about an hour and a half. Again on May 8, 1962, Barr followed Nichols while
he was driving between 40 and 50 miles per hour on a freeway within the city limits
of Dallas where the posted speed limit was 50 miles per hour. When Nichols got
back to the Houston terminal, Barr told Nichols that he would not tolerate speeding
in cities, and on the following day gave him two warning notices, one for failure to
follow instructions and the other for speeding. The first was based upon Barr's in-
junction at a safety meeting a day or so before, against exceeding the speed limit
within a city. Hence Barr considered this a flagrant violation, warranting two notices.
Respondent insists that the State speed limit for trucks is 45 miles per hour, and that
this also applies to trucks within a city, even when the posted speed limit is 50 and
says nothing about trucks. Barr testified elsewhere, however, that he had told drivers
to follow the posted speed limit in towns. There is no explanation for this
contradiction.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not find , however, that Respondent harrassed Nichols by following him twice
within a 3 -month period, and on one occasion giving him two notices instead of the
usual one. This allegation of the complaint is hereinafter dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in connec-
tion with the operations of the Respondent described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in the unfair labor practices set forth
above, I recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act . Respondent having dis-
charged Horace Limbaugh , Henry Lewis , Elton Cathey, William Clem , Joe Shamblin,
Gordon Hodgkins , and W . T. Willingham because of their membership in and support
of the Teamsters . I recommend that Respondent offer them immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges , and make them whole for any loss of
pay they may have suffered by reason of Respondent 's discrimination against them,
by payment of a sum of money equal to that which they normally would have earned
as wages from the date of their discharge to such date as Respondent shall offer them
reinstatement , less their net earnings during said period. Such backpay shall be com-
puted on a quarterly basis in the manner established by the Board in the F. W. Wool-
worth Company , 90 NLRB 289, 291-294 , and with interest thereon , at the rate of 6
percent per annum as prescribed by the Board in Isis Plumbing & Heating Co, 138
NLRB 716.
As the unfair labor practices committed by Respondent are of a type which strike
at the very roots of employee rights safeguarded by the Act , I shall recommend that
Respondent be ordered to cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. Red Ball Motor Freight , Inc., is engaged in commerce within the meaning of
the Act.
3. By discriminating with respect to the hire and tenure of employees , thereby dis-
couraging membership in the Union , Respondent has engaged in unfair labor practices
within the meaning of Section 8 ( a) (3) and ( 1) of the Act , thereby violating Section 7
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act
5. The Respondent has not violated Section 8 (a)(3) and ( 1) of the Act by dis-
criminating against Hall Nichols.
RECOMMENDED ORDER 20
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is recommended 21 that Respondent, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from
(a) Discouraging membership in and activities on behalf of the Union or any other
labor organization of its employees , by discharging any employee , or in any other
manner discriminating in regard to hire or tenure of employment , or any term or
condition of employment.
(b) In any other manner interfering with , restraining, or coercing its employees
in the exercise of their right to self -organization , to form , join, or assist labor organi-
zations, including the above -named labor organization , to bargain collectively through
representatives of their own choosing , or to engage in other concerted activities for
the purpose of collective bargaining or mutual aid or protection , or to refrain from
any or all such activities , except to the extent that such right may be affected by
20 In the event that this Recommended Order be adopted by the Board , the word "Order"
shall be deemed substituted for the words "Recommended Order "
21 In the event that this Recommended Order be adopted by the Board , the word
"ordered " shall be deemed substituted for the word " recommended "
RED BALL MOTOR FREIGHT, INC. 141
an agreement authorized by Section 8(a)((3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer to Horace Limbaugh, Henry Lewis, Elton Cathey, William Clem, Joe
Shamblin, Gordon Hodgkins, and W. T. Willingham immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority and other rights and privileges.
(b) Make whole Horace Limbaugh, Henry Lewis, Elton Cathey, William Clem,
Joe Shamblin, Gordon Hodgkins, and W. T. Willingham for any loss of pay they may
have suffered by reason of the discrimination against them, by payment to each of
them of a sum of money equal to the amount he normally would have earned as wages
from the date of his discharge to the date of Respondent 's offer of reinstatement in the
manner set forth in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents,
for examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records relevant or necessary
to the determination of backpay due and to the reinstatement and related rights pro-
vided under the terms of this Recommended Order.
(d) Post at all its terminals copies of the attached notice marked "Appendix." 22
Copies of said notice, to be furnished by the Regional Director for the Twenty-third
Region, shall, after being signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of this Recommended Order, what steps the Respondent has
taken to comply herewith 23
It is recommended that the complaint be dismissed insofar as it alleges discrimination
against Hall Nichols.
In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order "
=a In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL offer Horace Limbaugh, Henry Lewis, Elton Cathey, William Clem,
Joe Shamblin, Gordon Hodgkins, and W. T. Willingham immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice
to their seniority or other employment rights and privileges, and make them
whole for any loss of pay they may have suffered by reason of the discrimination
against them.
WE WILL make whole Horace Limbaugh, Henry Lewis, Elton Cathey, William
Clem, Joe Shamblin, Gordon Hodgkins, and W. T. Willingham by paying to each
a sum of money equal to each such employee's loss of pay suffered as a result
of the Respondent's discrimination against each employee.
WE WILL NOT discourage membership in or activities on behalf of General
Drivers, Warehousemen and Helpers Local Union No. 968; Dallas General
Drivers, Warehousemen and Helpers, Local Union No 745; Truck Drivers and
Helpers Local Union No. 568, all affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization of our employees, by discharging, or otherwise discriminating
in regard to the hire and tenure of any employee's employment or any term or
condition of employment.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain , or coerce
our employees in the exercise of their right to self -organization, to form labor
organizations , to join or assist the above -named labor organizations or any other
labor organization , to bargain collectively through representatives of their own
choosing, and engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any or all of
such activities.
All our employees are free to become and remain , or to refrain from becoming or
remaining , members of any labor organization, except to the extent that such right
may be affected by an agreement authorized by Section 8(a) (3) of the Act as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
RED BALL MOTOR FREIGHT, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act [ and the Universal Military Training
and Service Act of 1948 , as amended,] after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building , 515 Rusk Avenue , Houston , Texas, 77002 , Telephone No.
Capitol 8-0611 , Extension 296, if they have any question concerning this notice or
compliance with its provisions.
Carpenters Local #40, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and its Business Agent Robert
Stevenson [Stop & Shop , Inc.] and Chester Smith and George
D. Burnham . Case No. 1-CB-804(1-2). June 26, 1963
DECISION AND ORDER
On March 8, 1963, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. Thereafter, the Respondents filed ex-
ceptions to the Intermediate Report,and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the en-
tire record in this case, including the Intermediate Report, the ex-
ceptions, and the brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, to the extent consistent
herewith.
143 NLRB No. 25.