Smith Transit, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1074 (N.L.R.B. 1969)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith Transit , Inc., Ray Smith Transport Company,
Chemical Express, Inc., Cement Transports, Inc.,
and Cement Express , Inc. and Southern
Conference of Teamsters, a/w International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , Petitioner
Chemical Express , Inc. and Teamsters , Chauffeurs,
Warehousemen , Helpers & Food Processors Local
Union 657. Cases 23-RC-3230 (formerly
16-RC-4990) and 23-CA-3151
June 25, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On March 20, 1969, Trial Examiner William F.
Scharnikow issued his Decision 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 Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. In addition, the Trial Examiner found
that the Respondent's unlawful conduct had
interfered with the Board election held on
September 23, 1968. Thereafter, the Respondent and
the Charging Parties filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed limited exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Chemical Express, Inc., Dallas, Texas,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified.
Delete from paragraph 2(d) "its terminal in San
Antonio, Texas" and replace with "all of its
terminals in the State of Texas".
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v. Wyman-Gordon Company,
394 U.S. 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresse- of all the eligible voters, must be
filed by the Employer with the Regior Director for Region 23 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
It parties to the election No extension of time to file this list shall be
.anted by the Regional Dir' tor except in extraordinary circumstances
Failure to comply with this iirement shall be grounds for setting aside
the election whenever proper objections are filed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: Pursuant to
a Stipulation for Certification Upon a Consent Election in
Case 23-RC-3230 (formerly Case 16-RC-4990), the
Regional Director for the Sixteenth Region conducted an
election by secret ballot on September 24, 1968, among
the truckdrivers employed by the Employers named in the
above caption at 11 terminals in Texas, including the
truckdrivers of Chemical Express, Inc. at its San Antonio
terminal , to determine whether they desired to be
represented by Southern Conference of Teamsters,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein referred to as the Teamsters or the Petitioner). A
tally of ballots showed that of 446 ballots cast, 178 were
cast for and 248 were cast against the Petitioner. On
October 3, 1968 the Petitioner filed timely "Objections to
Conduct Affecting Election,"alleging preelection conduct
on the part of the Employers calculated to create an
atmosphere in which a free election could not be held,
including the promise and grant of benefits to employees,
discrimination against known Teamster supporters
(including discharges ), surveillance of Teamster meetings'
and activities, interrogation, and misrepresentations of
material facts.
On October 3, 1968, Teamsters, Chauffeurs,
Warehousemen, Helpers & Food Processors Local Union
657 (a member of the Teamsters and herein called Local
657) filed an unfair labor practice charge in Case
23-CA-3151, against Chemical Express, Inc. (one of the
related Employers in the representation case and herein
also referred to as the Respondent). On December 6,
1968, the Regional Director for the Twenty-third Region,
acting for the General Counsel and upon the aforesaid
unfair labor practice charge as amended by Local 657 on
October 16, 1968, issued a complaint against the
Respondent alleging that the Respondent had committed
unfair labor practices affecting commerce within the
meaning of Section 8(a)(l) and (3) and Section 2(6) and
(7) of the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq. (herein called the Act), by
discharging employees Edward H. Black and Lawrence E.
McHenry on September 21, 1968, Weldon G. Talley on
176 NLRB No. 141
SMITH TRANSIT , INC. 1075
October 3 , 1968, and Bennie R. Wallace on September 30,
1968. The original charge was served on the Respondent
on October 3, 1968 and the amended charge on November
26, 1968 . The complaint was served on the Respondent on
December 6, 1968.
On December 12, 1968 , the Respondent, Chemical
Express, Inc., filed its answer to the complaint , denying
commission of the unfair labor practices alleged and
further stating that employee Weldon G . Talley had quit
his employment on October 4, 1968 and had not been
discharged.
On December 6, 1968 , the Regional Director for
Region 23 issued and served an order upon all parties (1)
that a hearing be held upon the Petitioner ' s objections in
Case 23-RC-3230; (2) that Cases 23-RC-3230 and
23-CA- 3151 be consolidated for the . purpose of hearing,
ruling , and decision by a Trial Examiner to be designated
by the Chief Trial Examiner ; and (3 ) that thereafter Case
23-RC-3230 be transferred to and continued before the
Board.
Pursuant to notice , a hearing upon the consolidated
cases was held at San Antonio , Texas , on January 6, 7
and 8, 1969, before me, the Trial Examiner duly
designated by the Chief Trial Examiner . The General
Counsel and the Respondent appeared by counsel. The
Teamsters and Local 657 (who are herein referred to
collectively as the Unions ) were represented by the same
counsel . All counsel were afforded full opportunity to be
heard , to examine and cross -examine witnesses, and to
introduce evidence upon the issues in the cases . Since the
hearing , briefs have been received from the General
Counsel , counsel for the Respondent , and counsel for the
Unions , and have been duly considered.
Upon the entire record in the cases and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE EMPLOYERS INCLUDING THE
RESPONDENT
The Employers named in the caption for Case
23-RC-3230, including Chemical Express, Inc., the
Respondent in Case 23 -CA-3151 , are Texas corporations
with their principal common office in Dallas, Texas and
operate out of various terminals in Texas under authority
granted both by the State of Texas and the Interstate
Commerce Commission . They constitute a single
employer within the meaning of the Act and are engaged
in the transportation of bulk and sack commodities in
both intrastate and interstate commerce . During the 12
months preceding the issuance of the complaint , each of
them purchased goods of a value in excess of $50,000 and
received revenue in excess of $50,000 for transporting
goods directly in interstate commerce.
I find that the Employers , including the Respondent,
are a single employer engaged in commerce within the
meaning of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Southern Conference of Teamsters , affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen , and Helpers of America (the Petitioner in
Case 23-RC -3230) and Teamsters, Chauffeurs,
Warehousemen , Helpers & Food Processors Local Union
657 (the Charging Party in Case 23-CA- 3151) are labor
organizations within the meaning of the Act. Because of
their common affiliation and the identity of their interest
in the present cases, they are herein both referred to as
the Unions, as well as the Teamsters and Local 657,
respectively.
III. THE EMPLOYERS PREELECTION CONDUCT IN
GENERAL OPPOSITION TO THE UNIONS
The Employers including the Respondent clearly
expressed to their employees their strong opposition to the
Unions in letters and pamphlets which they mailed or
otherwise distributed to the employees before the
representation election which the Regional Director
conducted on September 24, 1968. The General Counsel
relies upon this demonstration as a background tending to
show that the Respondent's discharges of four of its San
Antonio truckdrivers on and after September 21 were
motivated by antiunion considerations and therefore were
violative of Sections 8(a)(3) and (1) of the Act. The
Unions also rely upon the same evidence, as well as upon
the asserted discriminatory discharges and evidence of an
alleged incident of surveillance of a Union meeting by a
terminal manager on September 22, as supporting their
objections to the election in which, as has been noted, the
Unions failed to receive a majority of the votes cast.
The evidence concerning the alleged incident of
surveillance requires only brief attention. The Union
meeting in question was held , on previously mailed notice
to the employees, in a meeting room at the Holiday Inn, a
public restaurant and meeting place in Irving , Texas at
about 1 p.m. on Sunday, September 22. David Cox, an
organizer for the Teamsters , testified that on arriving at
the Holiday Inn at about 1 p.m., he saw Sid Williams,
manager of the Irving Terminal, in the lobby next to the
meeting room ; that later, one of the drivers attending the
meeting told him that Williams had parked in the parking
lot and had two ladies and several children in the car with
him; that still later, a driver told Cox that Williams was
in the cafeteria; that Cox himself saw Williams first with
a lady at a table in the dining area and then, on Cox's
leaving at 1:20 p.m., also with a lady in the lobby.
Manager Williams testified that he knew nothing about
the Union meeting; that he had driven to the Holiday Inn
that Sunday with his wife, her sister and her husband, and
their children, intending to have lunch there as he did
several times a month since the restaurant opened in 1961
or 1962; that he backed his car into a parking space but
that his wife then decided that they should eat at another
restaurant at McKinney, 30 miles away, and visit her
mother who lived nearby; that he accordingly drove out of
the parking lot within 5 minutes and without ever leaving
his car or entering the Holiday Inn; and that the only
employee he saw there was a driver who came into the
parking lot as Williams was driving out.
The evidence thus presents a conflict as to whether
Manager Williams actually entered the Holiday Inn on
this occasion. But this conflict need not be resolved. For,
even accepting Union Organizer Cox's testimony, it would
not be sufficient to establish actual surveillance or the
basis of a reasonable impression of surveillance on the
part of the employees. The Holiday Inn is a public eating
place; Williams had eaten there repeatedly; his presence
there with his wife, both in the lobby and the cafeteria,
without making any apparent attempt to learn or see what
was happening in the adjoining meeting room where the
meeting was taking place , should not have reasonably
excited the suspicions of the employees. I conclude that
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the incident neither contributes to the other evidence of
the Employers ' general attitude of opposition to the
Unions, nor supports the Unions ' objection to the election
based upon alleged surveillance.
There were, however, two letters, a 22-page booklet,
and a folded -over , 4-page pamphlet , which were
distributed before the election and which clearly expressed
the Employers ', including the Respondent ' s, opposition to
the Unions . One of the letters, dated August 29 , 1968 and
signed by Curtis Mewbourne , chairman of the Employers'
Board of Directors, stated that "the Company strongly
opposes the union ," that a majority of the employees "are
against the union" and "want no part of the union
organizers"; that "the union had no part in building this
Company . . . can contribute nothing in the future . .
[but] can only cause disruptions and loss of pay"; and
asked the employees ' "support in defeating this union."
(Union Exh. 3.) The other letter, dated September 17,
1968 and signed by another official of the Employers,
asked the employee to vote "No" in the election , assuring
him his vote would be secret , and stated that the
employee ' s "wage increases are already set" and that the
employee should not "risk strikes and high dues for
something you can get without a union" whose prime
purpose would be "to collect more money for the union."
(Union Exh. 4.)
The 22-page booklet distributed by the Employers
among their truckdrivers was entitled, "Fact and Fiction.
Certified True Answers to Your Questions About Unions
and What they Can and Cannot Do." The booklet
contained a number of cartoons and questions and
answers and was presented to the employees with a
"Certification" bearing the facsimile signature of the
Employer 's president on the second page . The cartoons
depicted union representatives as apparently callous
individuals , actually unconcerned with the interests of
employees. They also pictured employees and their wives
as helpless individuals , eventually saddened and
disillusioned by their experience with unions . The central
themes of the cartoons were the unions ' collection of
"employee dues"; their division of "employee deductions"
between "extra assessments ," Locals , Internationals, and
"strike funds" at other companies ; the employees ' loss of
jobs and their inability to pay their bills as the result of
strikes; and the emptiness and inefficacy of union
promises . The same themes were developed verbally in the
questions and answers, although in the answers, the
booklet was careful to point out that loss of jobs occurred
when a strike was an "economic strike " and the striker
had actually been replaced in his job.
On the next-to-last page of the booklet, the Employers
summed up their position in the following language:
THE COMPANY OPPOSES UNIONS
Q: Why does the company oppose these unions?
A: The company does not think you need unions to
get good pay, benefits and other advantages . All of the
things you have with the company now were gotten
without unions . There has always been steady
employment and regular paychecks at your Company.
All of us know about the many lay-offs that happen at
some union plants , such as General Motors in
Arlington and the nation -wide airlines strike, which
caused many non-striking workers to be laid off
without pay. As has been done in the past, this
Company will continue its many benefits without the
union . We don ' t need unions to tell us what you want.
Tell us yourselves and save the dues money.
Q: What are your benefits as a Ray Smith
Associated Companies Employee?
A: Group hospital and life insurance, one half of
which is paid by the company with no limit to the
number of dependents ; company paid monthly and
annual bonuses for safe driving ; guaranteed monthly
salaries for drivers ; profit sharing and retirement plan;
scholarship plan for employees' dependents; company
paid vacations; jury duty pay paid by the company;
company awards , watches , service pins , and suggestion
cash awards ; and interest free cash loans to employees.
WHAT'S IN IT FOR RAY SMITH
ASSOCIATED COMPANIES PEOPLE?
Q: What's in it for Ray Smith Associated
Companies if the union should win?
A: One thing certain is that, if you join, you would
have to pay dues, fines and assessments . You would no
longer be able to settle many of your own problems.
Your job, promotions, transfers, etc. would be set out
in a contract. Once signed, such a contract would be
strictly enforced.
Q: But, wouldn't the contract give higher pay and
benefits?
A: There is certainly no guarantee that a contract
would provide higher pay and benefits. The contract
would provide only what the company agreed to give.
Finally, the folded-over, 4-page pamphlet distributed by
the Employers to the truckdrivers just before the election,
began with the statement that "During the past weeks we
have given you the true facts. The purpose of this was so
you could consider the facts before you vote. We have
made no attempt to interfere with, restrain or coerce you.
The decision is yours to make and it will be made in
secret ." It then urged the employees to make their own
decision by voting in the election which would determine
whether "you need someone to come between you and
management ." It again pointed out that the employee's
vote would be secret and stressed the fact that he could
vote as he wished regardless of whether he had previously
signed a union card. At the end of the pamphlet, it
produced a blank, unmarked facsimile of election ballot
and below this reproduction, it reminded the employee
that an "X" in the "No" box "will mean you do not want
this union." (Union Exh. 2.)
The contents of the two letters, the booklet, and the
pamphlet certainly show not only the Employer's
(including the Respondent ' s) strong opposition to the
Union, but the aggressive campaign they waged to defeat
the Union. Although not pleaded in the complaint, as an
unfair labor practice, it presents a material background
which must be considered in assessing the evidence
concerning the four discharges which the complaint alleges
were discriminatory and violative of Sections 8(a) (1) and
(3) of the Act.' In addition, the Unions contend that the
letters, the booklet and the pamphlet, in overstressing the
frequency, likelihood, and consequences of strikes
(although not pleaded as unfair labor practices), were
calculated to create , and did create , an atmosphere
making a fair election impossible, and therefore support
their objections to the conduct of the election on
September 24, 1968.
' See Hendrix Mfg Co. v N.L R B.. 321 F.2d 100, 103-4 (C.A. 5).
SMITH TRANSIT, INC. 1077
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent 's San Antonio Truekdrivers,
Operations , and Equipment
The Respondent, Chemical Express , Inc., operates
tractor-drawn flat bed trailers and tank trailers as a
contract carrier principally of sack and bulk cement for
various cement companies located in the San Antonio
area . It owns all the trailers and most of the tractors
which are driven for it by so-called "company drivers." In
addition , it also leases and uses other tractors whose
owners , having independently financed their purchases,
regularly drive their tractors exclusively for the
Respondent as "lease drivers ." All the tractors are
equipped with compressors and connections capable of
operating a blower system on the Respondent's tank
trailers for unloading bulk cement.
The Respondent employs approximately 100 drivers at
its San Antonio terminal , some of them company drivers
and the rest of them lease drivers. Each of them is
assigned a tractor and a trailer and ordinarily he is the
only one who drives that particular combination of
equipment on deliveries . In addition to the drivers, the
terminal employs a number of "loaders ." Although when
necessary the drivers may load their own trailers at the
premises of the cement shippers , the loaders, using either
the regular drivers ' tractors or extra tractors which are
used only locally or in the terminal , ordinarily pull trailers
to the shippers' places of business , load them , and then
bring them back to the terminal where the drivers
themselves take over for the delivery trips assigned to
them by the Respondent ' s terminal dispatcher.. The
loaders are sometimes referred to as "driver - trainees,"
and are occasionally used to fill in for absent drivers on
deliveries.
The company drivers are paid in accordance with a
fixed schedule of trip rates, based upon mileage and an
estimate of a reasonable time for the trip , including stops
for meals and unloading time . In addition , the drivers are
paid for any waiting time at the points of delivery in
excess of l hour. From the testimony of driver Edward
Black and of Vice President Francis Lyons of the
Respondent , it appears that the Respondent actually and
reasonably expects its drivers to average about 40 miles an
hour under normal conditions .' Operating, as it does, in
Texas and under State as well as Interstate Commerce
Commission permits, the Respondent is subject to the
Texas Motor Carrier Law which limits its drivers to 10
consecutive hours of driving or operating a truck and
provides for at least 8 consecutive hours off duty after any
aggregate of 10 hours driving or operating duty in any
24-hour period.3
'Lyons testified that the estimate was 2 1 /2 hours for each 100 miles.
Black testified that when he was hired by the Respondent in May 1965, the
dispatcher told him he was expected to make 100 miles in 3 hours. But
then he testified that he had in fact averaged 40 miles per hour and that
recently , after the Respondent ' s speed limit had been increased from 55
miles per hour to the legal speed limit of 60 miles per hour, he had driven
at the legal limit and increased his average to somewhat more than 40
miles per hour.
'Sec. 6-cc. No motor carrier operating in whole or in part in this State
under a certificate or permit issued by the Railroad Commission of
Texas, or any officer or agent of such motor carrier , shall require or
knowingly permit any truck driver or his helper to drive or operate a
truck for a period longer than ten (10 ) consecutive hours ; and whenever
such driver or helper shall have been continuously on such duty for ten
(10) hours , he shall he relieved and shall not be required or knowingly
The Respondent ' s drivers are required to unload the
trailers at their destinations . In the cases of deliveries of
bulk cement by tank -trailer , the cement is blown from the
tanks by compressors operating in the tractors and
controlled by the driver. Generally, these deliveries involve
merely a deposit of the cement within a narrow area
designated by the consignee and require no movement of
the tractor-trailer nor assistance for the driver while
unloading . But in a so-called "spreader job," the
Respondent's driver must move the trailer so that as he
operates the compressor-blower the powdery cement is
spread along the ground through a traveling hopper
attached either to the Respondent 's tractor-trailer or to a
caterpillar tractor moving on a course parallel to the
Respondent ' s tractor-trailer . On such a spreader job, the
Respondent's driver must move its tractor-trailer and at
the same time operate the compressor-blower, while
another man (sometimes another driver of the Respondent
making a delivery at the same site ) walks alongside and
controls the valves on the side of the trailer. As will
appear , on September 20, 21, and 22, 1968, the
Respondent had a series of deliveries on a spreader job in
Livingston , Texas, where a dam was under construction
and where , according to the uncontradicted , credible
testimony of driver Edward Black , the site was uneven
and muddy and difficult to reach , and the powdery cement
was blown about in the air around the equipment.
There are a number of limitations to the assignment of
spreader jobs . Only tank-trailers can be used and therefore
such assignments are not made to flat bed trailers nor
their regular drivers . Because of the possibility of damage
to the tractors at the construction site, lease drivers and
their tractors are also not given spreader assignments. Nor
are "local drivers." In short , the spreader assignments are
given only to over-the -road company drivers of company
owned tractors and tank trailers.
The Respondent ' s deliveries are made , so far as
possible , at times requested by the consignees. A
dispatcher for the Respondent (one of whom is on duty at
all times in the San Antonio terminal ) schedules the trips
and assigns available drivers of the required types of
equipment , making an effort to spread assignments among
the men and thus to equalize their earnings. From the
testimony of Dispatcher Vance Andersen and Vice
President Francis Lyons it appears, and I find that,
although neither of them was familiar with the exact
continuous duty limitations imposed by the Texas Motor
Carriers Act, the Respondent did give some consideration
in making an assignment to how long and recently a man
had been on the road . But, still according to their
testimony and evidence of assignments generally, the
drivers were obviously expected by the Respondent to
accept lengthy driving and delivery assignments with only
short intervening periods available for rest , unless they
expressly told the dispatcher that they were too tired to
drive safely on a proferred assignment . If a man actually
made such a plea (as drivers Black and McHenry had in
several instances preceding the incidents involved in the
present case ), the Respondent and its dispatcher accepted
permitted to again go on duty until he has had at least eight (8)
consecutive hours off duty; and no such driver or helper who has been
on such duty ten (10) hours in the aggregate in any twenty-four hour
period , shall be required or knowingly permitted to continue or again go
on duty without having had at least eight (8) consecutive hours off duty;
. . provided that in cases of emergency caused by the Act of God, or
any other emergency over which the operator has no control, the
foregoing restrictions as to hours shall not apply (Art 91 1 (b) sec 6cc,
Revised Civil Statutes of Texas.)
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his judgment, his refusal to take a load was excused, and
he was not "written up" by the dispatcher, nor was he
discharged or otherwise disciplined. But, as Vice President
Lyons testified, a refusal to take a load (absent an express
plea of fatigue, illness, or other emergency) has been
grounds for discharge.
During the material events in the present case,
Terminal Manager Archie Davidson was in general charge
of the San Antonio terminal although in his absence one
of the dispatchers was in charge. And, as Davidson's
immediate superior, Francis Lyons was the vice president
in charge of the operations at all the Employers'
terminals, including the Respondent's San Antonio
terminal.
B. The Discharges of Black and McHenry on
September 21, 1968
Edward H. Black and Lawrence Earl McHenry were
company drivers employed by the Respondent at the San
Antonio terminal until they were discharged on September
21, 1968. Black had been hired by the Respondent on
May 31, 1965, and McHenry on June 21, 1966. Both men
were seasoned drivers with years of previous truckdriving
experience. Both of them signed union cards in the
summer of 1968 and Black served as a leader in the
Union's organizational campaign by soliciting Union card
signatures from almost all the drivers at the San Antonio
terminal as well as from Respondent's drivers at other
terminals , by signing up 18 of the San Antonio drivers,
and by turning into the Union about 68 percent of the
cards which other assisting drivers had procured at San
Antonio. On August 4, 1968, the Union informed
Terminal Manager Davidson by telegram that Black and
driver Weldon G. Talley were union members . Finally, at
the preelection conference with a Board agent on
September -15, 1968, which was attended by a
representative of the Respondent as well as a Union
representative, the Union designated Black as the Union's
observer at the San Antonio terminal polls and Talley as
his alternate. It is undisputed that the Respondent, Lyons
(its vice president), Davidson (its San Antonio terminal
manager ), and Vance Andersen (one of its San Antonio
dispatchers) knew by September 20 that Black was a
union member and leader.
Both Black and McHenry were discharged by Terminal
Manager Davidson on Vice President Lyons' instructions,
on the morning of Saturday, September 21 after each of
them, having just returned to San Antonio between 8 and
9 p.m. the preceding night from a 264-mile trip on a
spreader job at a dam site in Livingston, refused to obey
Dispatcher Vance Andersen's orders that they return to
Livingston later that night on another spreader
assignment . Both men had had assignments which
permitted them little time for rest during the preceding 2
or 3 days. In the preceding 36 hours, McHenry had
worked more than 24 hours and had had only about 11
1/2 hours off, having driven to Kingsbury on a 3-hour
morning assignment on Thursday September 19 and then
on a 22-hour round trip on the Livingston spreader
assignment on which he had left on Thursday, September
19 at 11 p.m. and returned to the San Antonio terminal at
about 8:30 p.m. on Friday, September 20. Black's
assignments (consisting of a 7-hour assignment to
Brenham on Wednesday, September 18, a 16-hour
assignment to McAllen later on Wednesday and most of
Thursday, and finally the 22-hour, 264-mile Livingston
assignment beginning at I1 p.m. on Thursday) had left
him even less time for rest. Thus, in the approximately
66-hour period immediately preceding his refusal of the
second Livingston spreader job on the night of Friday,
September 20, Black had worked more than 45 hours
leaving him a total of 21 1/2 hours for rest, with only 8
hours of rest immediately preceding the 22 hours required
for his completion of the Livingston assignment which
began about 11 p.m. on Thursday, September 19 and
ended with his return about 9 p.m. on Friday, September
20.
On their last trip to Livingston, Black and McHenry
left the San Antonio terminal at about the same time on
Thursday night, September 19, as did six or seven of the
other drivers who were also making spreader deliveries at
Livingston. After driving for about 25 minutes, they
stopped for about 45 minutes for coffee with several of the
other drivers at a truck stop. Then, proceeding more or
less as a "convoy" as was their custom when a number of
them had the same destination, they stopped again for
breakfast. At 6 a.m., according to Black's uncontradicted
testimony, they arrived at the Livingston site, having
travelled the 264 miles (even with the stops enumerated) in
about 7 hours, only slightly less than the average 40 mile
per hour speed which the Respondent regarded as
reasonable . At the site, the trucks had to wait for
unloading , with the drivers (including Black) waiting for
their turns to unload and then assisting each other in the
spreading operation which has already been described. (On
his return, Black aimed 3 1/2 hours loading pay for his
time in unloading his own truck and assisting drivers
McHenry, Copeland, and Tuttle, a claim that the
Respondent apparently does not dispute.) At about 12:30
or 1 p.m., Black, McHenry and Copeland began their
return trips together, and completed the 264-mile route to
the terminal in about 7 1/2 hours. On this return trip,
Black stopped and without prearrangement, met and had
lunch with one of the Union's representatives. After
spending less than an hour at lunch, Black had to stop
several times to tie up a loosened blower connection on
his tractor's compressor. Both he and McHenry also
stopped several times because driver Copeland ran out of
fuel. On the first occasion, Black and McHenry siphoned
fuel from their tanks for Copeland, but on the second,
they hitched Copeland's rig to Black's trailer, and from
that point, Black towed Copeland to the terminal. Upon
the evidence to this effect, it appears to me that the time
taken by Black and McHenry to complete their round-trip
on the Livingston assignment was reasonable even
according to the Respondent's standards. I therefore reject
what I regard to be the unreasonable opinion expressed by
Vice President Lyons in partial justification of his
discharge of the two men, that Black and McHenry
should have returned to the San Antonio terminal earlier
than they did on the night of September 20 and therefore
that they should have had more time to rest before going
out on the second Livingston assignment which they
refused that night.
The Livingston spreader deliveries from which Black,
McHenry, and Copeland returned on Friday night,
September 20, were only the beginning of a series of
deliveries which were ordered for that weekend so that the
construction company building the Livingston dam would
be able to "stablilize the base" within a 3-day period. The
Respondent had received orders for 14 more deliveries on
Saturday, September 21, and for 8 deliveries on Sunday
as well. It is clear that these orders created a problem for
the Respondent's dispatcher on Friday night in making his
assignments of men and equipment for the 14 Saturday
SMITH TRANSIT, INC. 1079
deliveries, at least some of which had to get away from
San Antonio on Friday night. For, as has been found,
spreader assignments were made only to available
over-the-road company drivers of company owned tractors
of tank-trailers.
On that particular Friday night, September 20,
Terminal Manager Davidson was not at the San Antonio
terminal and Vance Andersen, a trainee-dispatcher was
there alone to make the assignments . Using all the
over-the-road San Antonio company drivers of
tank-trailers available up to the time Black, McHenry,
and Copeland returned from Livingston between 8 and 9
o'clock on Friday, Andersen had been able to fill only 12
of the 14 Livingston assignments for Saturday, including a
reassignment of Tuttle, one of the drivers who had already
returned from a Friday Livingston delivery. In accordance
with practice, Andersen had made these 12 assignments
after understandably eliminating from consideration the
drivers of flat bed trailers, local or short haul drivers 4
three tank-trailer drivers who were on vacation' other
tank-trailer drivers who were out of town,' including
several who were still in Livingston and were not expected
back that night,' several tank-trailer drivers who were
already loaded for other Saturday deliveries,' and another
tank-trailer driver whom Andersen could not reach.' By 9
p.m., on Friday, therefore, Andersen was depending upon
the late evening return to San Antonio of other company
drivers with tank-trailers to enable him to make the
remaining two Livingston spreader deliveries at 10 and l l
o'clock the following morning. As noted, Black,
McHenry, and Copeland had just returned from their
Friday Livingston deliveries. Shortly thereafter - at
about 10 p.m. on Friday - company driver Kermit Klein
also brought his tank-trailer back to the San Antonio
terminal, having returned from a day's trip to Lufkin,
Irving, Athens, and Waco.
On the return of these four men at about or shortly
after 9 p.m. on Friday, Anderson immediately assigned
Copeland for a return to Livingston on a 10 o'clock
delivery the next morning, and Copeland accepted the
assignment. Andersen then told first Black and then
McHenry that each of them was to be dispatched on a
return to Livingston for the remaining Saturday delivery
at 11 a.m . But in separate conversations with Andersen,
which took place partly in the drivers' room and partly
through a window connecting the dispatcher's room with
the drivers' room, both Black and McHenry refused the
assignment, and Andersen thereupon made the assignment
to Klein. Andersen told Black to report at the terminal
the next morning at 7 o'clock, but gave no instructions to
McHenry as to when he should report.
There is a critical dispute in the testimony as to the
reasons given by Black and McHenry to Andersen for
their refusing to take the Saturday Livingston assignment.
According to both Black and McHenry they told
Andersen they were too tired to drive. Black testified that
he told Andersen not only that his truck was in the shop
but that, "Man, I have been up so long my eyes hurt .
[If] I get out on the road I am liable to fall asleep and
run over somebody"; that Andersen said , "I will give you
another truck"; but that Black replied, "As far as I am
concerned you can take that trip and stick it up your ass
because I am not going to go . Everybody in the
company ought to pull one of them loads before I have to
go back." As to his conversation with Andersen,
McHenry testified that, "... Vance Andersen come out in
the drivers' room and told me I had another load to go
back to Livingston, and I told him I couldn't take it, I
was too tired and needed the rest. And he told me I was
going to have to take it . . . he kept trying to get me to
take it, and I told him I couldn't. So I finished filling out
my tickets and turned them in. Then I went back in the
office and talked to him again about it. Tried to get him
to get somebody else to take it. He said no, he didn't have
anybody else to take it. And I had to go ... I got up and
left after I seen I couldn't talk him out of it."
Andersen, however, denied that either Black or
McHenry told him he was too tired to take the second
Livingston run, or that Black had made any remark about
what Andersen could do with the Livingston trip."
According to Andersen, Black said merely that his tractor
was "red tagged" (i.e., required the repair of the defective
compressor connection) but that, when Andersen told him
he could use another tractor, Black said he would not take
another Livingston spreader run until every driver had had
one. In the case of McHenry, Andersen testified that
McHenry at first made no objection to taking the
Saturday Livingston run, but then, after Andersen had
given instructions that his trailer be loaded for him,
McHenry came back and said he could not take the run
because his wife was working and his mother-in-law was
unable to take care of his children that night as she
usually did.
After speaking with Black and McHenry, and before
his shift ended at midnight, Andersen filled out two slips
reporting the two men's refusal of the Livingston loads
and left them on Terminal Manager Archie Davidson's
desk. One of them - with respect to Black - is in
evidence. On this slip, Andersen reported: "Run Missed:
Livingston 8 at 11:00 A.M. Reason: Said truck was red
tagged and everyone in the company should have to pull
one of these spreader jobs. Remarks: I offered him
another truck and he said he would not pull it again. Gave
him a 7 o'clock show up & he said he would be here."
After leaving these slips on the Terminal Manager's
desk, Andersen received a telephone call from Francis
Lyons, the Respondent's vice president in charge of
operations . Lyons told Andersen that he was driving back
with other company officials from a safety awards
meeting in Corpus Christi and would stop at the San
Antonio terminal where another safety awards meeting
was to be held the following night, Saturday September
21. As Andersen was leaving the San Antonio terminal at
midnight, Lyons arrived with Curtis Mewbourne
(chairman of the Respondent's Board) and Safety Director
Chapman. Andersen, who had worked in the Respondent's
Dallas office and knew Lyons, stopped to talk with the
men. Lyons asked how things were going and Andersen
'Including with the local drivers, an older over -the-road driver named
Moehrig who because of age and physical condition was being assigned
only the shorter hauls.
'McKnight , Peterson , and Teaff.
'Bailey, Fritz , Hall, Shirley , Williams, and Whitehead.
'Dicke , Touchstone , and Tucker.
'Green , Jarrisch , and Waldschmidt.
'Payne
"To support Andersen 's version of a simple blunt refusal by Black to
take the Livingston load, the Respondent introduced the testimony of
driver Max Reinhard who was in the drivers ' room at the time. But from
his testimony, it appears to me that Reinhard may not have overheard, or
may not have paid attention to, the full conversation Accordingly, I
evaluate the conflict in the testimony of the dispatcher and Black , as well
as McHenry , upon my appraisal of the testimony of the participants in the
conversations in the light of the general context provided by the record.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that for the first time in his experience two of the
drivers had refused to take out a load . He told Lyons his
reports were on the terminal manager ' s desk , and Lyons,
after reading them , decided to investigate the matter.
Lyons accordingly came to the San Antonio terminal at
6:30 or 7 a.m. on Saturday, September 21, and, to quote
his testimony , "was in the dispatch office looking at some
of the records, getting some more material together
concerning what Mr. Black hadn ' t done ." While he was so
engaged , he looked through the dispatch window into the
drivers' room where he saw and heard Black "telling some
people that he said they could take the job and cram it.
Nobody was going to give him a job to run to get him out
of the city that day."
After Lyons had heard Black make these remarks, he
continued to check Black 's and McHenry 's record sheets
for the preceding week. According to his testimony,
without speaking to either Black or McHenry, he decided
that the two men should be discharged for refusing to take
the Livingston load the preceding night . In the case of
Black , who he knew had been working for the Union, he
further testified that an additional reason for deciding that
Black should be fired was "his popping off out in the
drivers' room that no one was going to give him a load to
get him out of town."
Having made the discharge decision , Lyons left it to
Terminal Manager Davidson to tell Black and McHenry
that they were fired. According to Lyons' testimony, he
told Davidson upon the latter 's arrival at the terminal that
morning, that "we could not have anybody in our
organization to refuse to take a run when we offered it to
them, and to fire Mr. Black , or anyone else [including
McHenry] who refused to run ." In the course of giving
these instructions to Davidson , Lyons testified that, "I
told [Davidson ] after checking the records , the run Mr.
Black had been on - I am familiar with his operation, I
have seen him run a whole lot more , and that if he had
gotten back in the time he should have or even the time
he got back and the time the run that was offered to him
was due up there, he had plenty of time to make this run.
Pursuant to Lyons' instructions , Terminal Manager
Davidson called Black into his office from the drivers'
room and also telephoned McHenry to come in that
morning . Davidson did not testify and therefore there is
no dispute that in each of the separate conversations he
had with the two men , he told them they were being
discharged for refusing a load , and they protested because,
as they explained to him , they had refused the Livingston
assignment because they were too tired to drive. They
were nevertheless discharged by Davidson and their
personnel records were marked to indicate that they
should not be rehired.
As Black left Davidson's office, he met Safety Director
Chapman to whom he made "a little snide remark" about
his discharge and asked whether he had a safety award
coming to him at the meeting that night . Chapman said,
yes, his name was on the list.
But on arriving home, Black received a telephone call
from Terminal Manager Davidson . Davidson told Black
that "there had been a little bit of mixup" and that Black
was not due to get a safety award and "wasn ' t supposed
to go to the safety meeting to get it." Davidson also told
Black , "I don't see why you feel the way you do," that he
liked Black, and that "You know it's not me who had had
to fire you but it was my job to tell you you were fired."
McHenry did in fact receive a safety award when he
came to the terminal to get his pay on Monday, 2 days
later . At that time , he spoke with Davidson who told him
that Lyons had just called and said that McHenry and
Black were to leave the terminal.
Conclusions
The foregoing summary presents the evidence with
respect to Black ' s and McHenry ' s discharges . It shows
that both men were worn out by their lengthy driving and
delivery assignments and their consequent lack of
adequate rest during the preceding few days , and I credit
their testimony rather than Dispatcher Andersen ' s denial
that, in refusing the second Livingston assignment on
September 20, they told the dispatcher they were too tired
to drive back to Livingston . As the dispatcher and Vice
President Lyons testified , this would ordinarily have been
accepted as an excuse and neither of the men would have
been reported by the dispatcher , nor discharged by the
terminal manager or by Vice President Lyons.
Nevertheless, Andersen filed written reports omitting
mention of their pleas of fatigue and Vice President
Lyons, ostensibly relying upon these reports and his check
of the records of their assignments for the week (but
without first speaking to either of the men or consulting
Terminal Manager Davidson , their immediate superior)
ordered Davidson to discharge them.
It thus appears that the discharge of the two men were
the consequence of Dispatcher Andersen ' s incomplete
written reports to his superiors of the men ' s refusal of a
Livingston assignment on September 20, followed by Vice
President Lyons' decision to discharge them the next
morning . It is undisputed that Lyons was a top level
management representative and supervisor for whose acts
and motives the Respondent was responsible . Contrary to
the Respondent 's contention, I find that on the night of
September 20, Dispatcher Andersen was also acting as a
supervisor of the Respondent within the meaning of
Section 2(11) of the Act, and that the Respondent was
therefore also responsible for his acts and their
motivation , since it appears from the evidence that on that
night, in the absence of the terminal manager, Andersen
was the Respondent's sole and fully empowered agent in
deciding upon and in making driver assignments, and in
reporting any drivers who might without apparent
justification refuse to accept assignments . Furthermore,
Andersen ' s conduct was significant since his omission
from his written reports of the reason actually given him
by Black and McHenry for their refusal to accept the
second Livingston assignment clearly set up their
discharges and, at the same time, is apparently urged by
the Respondent as a reason for insulating Lyons in his
discharge decision from responsibility for the accuracy of
Andersen ' s reports . That Andersen had no authority
himself to fire the men nor perhaps even to recommend
their discharge, is immaterial , for he did have the
authority, and was charged with the duty , of reporting any
driver's unexplained refusal of an assignment and he must
have known that the likely consequence of his reports was
that they would be discharged.
In determining whether , in this general setting , the two
men were discharged because of their refusals to take a
second Livingston assignment on September 20 or because
of either or both men ' s Union activities , Andersen's and
Lyons' actions must be viewed in the light of (1)
Andersen 's failure to include in his written reports the
normally satisfactory excuse actually given to him by the
SMITH TRANSIT, INC. 1081
men for their refusals of the second Livingston
assignment ; (2) a critical examination of Lyons' testimony
explaining the manner and the basis upon which he
decided to discharge the two men; and (3) the
unquestionable fact that both Andersen and Lyons knew
that Black was a union leader (as both admitted) and that
the Respondent , as shown by its preelection campaign in
its letters to employees, its booklet, and its pamphlet, was
openly and strongly opposed to the Union and the
possibility that it might win the Board representation
election the following week.
With respect to Andersen's role, my appraisal of the
relative credibility of the witnesses, based upon my
observation of them as they testified and upon
consideration of the substance of their testimony in the
context of the rest of the evidence, has convinced me that,
contrary to Andersen' s denial , Black and McHenry
actually told Andersen they were too tired to drive back
to Livingston on the night of September 20 and therefore
that their refusals of the Livingston assignment would
ordinarily not have been reported by the dispatcher to the
Respondent. My further consideration of the evidence
impels the conclusion that Anderson nevertheless filed his
written reports omitting the normally acceptable excuse
actually given by the two men because , annoyed by
Black ' s blunt language and knowing that Black was a
leader in the Union ' s organizational campaign to which
the Respondent ' s officials were openly and strongly
opposed, he believed that his incomplete reports would
provide an agreeable , plausible, and apparently innocent
foundation for the Respondent's discharge of Black. Since
Andersen was acting as the Respondent ' s agent and
supervisor both in making the assignments on September
20 and in reporting Black and McHenry, I further find
that the Respondent was responsible for his motive in thus
filing his damaging and incomplete written reports about
Black and McHenry, and that, in at least ostensibly
relying upon these written reports of its supervisor as the
basis for discharging the two men , the Respondent must
be held to have discriminated against them because of
Black 's Union activities and to have committed an unfair
labor practice within the meaning of Sections 8(a) (3) and
(1) of the Act."
But there is also a broader basis provided by Vice
President Lyons' testimony for holding that the discharges
of the two men on his orders were discriminatory. Not
only is it likely that Andersen orally informed Vice
President Lyons that the men had claimed they were too
tired to take the second Livingston run (as his obligation
to the Respondent required) but Lyons' testimony shows
that he had in fact considered that possibility as an
obstacle to his discharging the men when he examined the
"In view of the Respondent ' s apparent general practice of dispatching its
drivers on lengthy driving and delivery assignments with only short
intervening periods available for rest unless the drivers expressly told the
dispatcher they were too tired to drive safely , I make no finding that Black
or McHenry was singled out for discriminatory treatment in the wearing
assignments they had been given during the few days up to and including
their first Livingston assignment on September 19 and 20 . Nor do I find it
necessary , as the General Counsel and counsel for the Union urge , to reach
any conclusion as to whether , in making these driving and delivery
assignments and following them with the second Livingston assignment on
the night of September 20, the Respondent violated the Texas Motor
Carrier Act's prohibitions against requiring a truckdriver "to drive or
operate a truck for a period longer than ten ( 10) consecutive hours," or
requiring him , after such a continuous period of driving or operation or
after any aggregate of 10 hours of operation or driving in a 24-hour
period , "to again go on duty until he has had at least eight (8) consecutive
hours off duty ." (See fn. 3 and text , supra )
men's records for the preceding week , and that although
the records must have indicated to Lyons that the men
may well have been very tired, Lyons shrugged this off
since he was apparently intent, as he put it, on "getting
some more material together concerning what Mr. Black
hadn ' t done ." Thus it appears from Lyons ' own testimony
that, before ordering the discharges , he knew that Black
and McHenry had been on duty for 22 hours on their first
Livingston run, that Black had worked 45 hours out of the
preceding 66 hours and McHenry more than 24 hours out
of 36 hours . Yet, Lyons would have the Board believe
from his testimony that he reached what I have already
found to have been the clearly unreasonable conclusion
(even according to the Respondent ' s standards) that the
two men had taken too much time on the first Livingston
run and should have returned to the San Antonio terminal
much earlier than they did so that they would have had
adequate time to rest before going out again on a return
run. Furthermore, Black ' s remark to other drivers that
"they could take the job and cram it. Nobody was going
to give him a job to run to get him out of the city that
day" (which Lyons overheard without Black 's realizing it),
was consistent with the possibility (obviously suspected by
Lyons) that Black had in fact been too tired to take the
Livingston run out on Friday or Saturday . But Lyons,
despite this and his knowledge from the Respondent's
records of Black ' s and McHenry ' s lack of adequate rest
during the preceding few days , avoided giving either Black
or McHenry an opportunity to explain why they had
refused the second Livingston run and why they should
therefore not be discharged, by summarily ordering
Terminal Manager Davidson to discharge them.
Consequently , Davidson , whom the Respondent did not
produce as a witness , had no alternative but to follow
Lyons' orders and with apparent embarrassment, to
discharge the men despite their protest to him that they
had told Dispatcher Andersen they were too tired to go
out on the second Livingston run.
In view of the persuasive indications in Lyons'
testimony exactly to the opposite effect, I cannot accept
his explanation that he ordered the discharges because he
believed from Dispatcher Andersen ' s written reports and
his own "investigation " that the men had refused the
second Livingston assignment on Friday night, September
20, without justification or a claim of justification.
Moreover , the general substance and tenor of Lyons'
testimony show that he was determined to use the
Livingston assignment incident as a pretext for
discharging Black who he knew was a union leader. For
not only did Lyons testify that in investigating the
Livingston incident he was looking "for some more
material" in the Respondent's records to justify Black's
discharge , but in this and in other answers to questions as
to his reasons for discharging both men, he referred
continually to Black alone and extended his testimony to
McHenry (whose union membership was apparently not
known to Lyons) only upon being repeatedly reminded by
counsel's prompting questions that he was being asked to
explain McHenry ' s discharge as well.
It is thus apparent that Black was Lyons ' target for
discharge because of his known leadership in the Unions'
organizational activities. But to make Black ' s asserted
discharge for cause credible, it was obviously necessary for
Lyons to discharge McHenry as well, since McHenry, had
also refused the second Livingston load on the same night.
Accordingly, I find and conclude that Lyons discharged
both Black and McHenry because of Black's union
leadership and that not only the discharge of Black but
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also the discharge of McHenry - motivated as it was by
the Respondent ' s "desire to be consistent in [its] pretext
for dismissing" Black" - were discriminatory discharges
which violated Sections 8(aX3) and (1) of the Act.
In sum, I find upon my foregoing consideration of the
evidence that employees Edward H. Black and Lawrence
E. McHenry were reported by Dispatcher Andersen on
September 20, 1968, and discharged by the Respondent
pursuant to Vice President Lyons' orders on September
21, 1968, because of Black's known leadership in the
Unions' organizational activities, and not, as Andersen
and Lyons testified and the Respondent contends, because
they refused without apparent justification to accept a
driving assignment on September 20, 1968 . 1 conclude
that by thus discharging Black and McHenry, the
Respondent discriminated in regard to their hire and
tenure of employment in order to discourage membership
in, and support of, the Unions and thereby committed
unfair labor practices within the meaning of Sections
8(a)(3) and (1) of the Act.
C. The Discharge of Bennie Wallace on September
30, 1968
Bennie Wallace was one of the Respondent's San
Antonio lease drivers whose "lease agreement" was
subject to cancellation on 30 days' notice. He signed a
union card in the middle of August 1968, and secured
signed Union cards from 12 of his fellow drivers. On
August 14, 1968, the Union informed the Respondent by
telegram that Wallace was "leading our organizational
efforts" at the San Antonio terminal. (G.C. Exh. 3). On
September 30, 1968, Terminal Manager Archie Davidson
mailed a letter to Wallace notifying him of the
cancellation of his lease agreement in 30 days and his
immediate discharge "as an employee." The letter further
stated:
. if you will contact me, we will work out
something by having someone drive your truck until
October 30.
The reason for the cancellation of your lease
agreement and the termination of you as an employee,
is your refusal to unload a load of cement delivered to
Dallas on or about September 23, 1968.
The September 23 incident referred to in the letter,
occurred in connection with Wallace's transport of a load
of bulk cement a distance of about 200 miles from the
Respondent's San Antonio terminal to the premises of the
consignee, the Trinity Concrete Products Company at
Dallas, which, for convenience, will be referred to as the
Concrete Company. Dispatches of Respondent's San
Antonio drivers to the Concrete Company were
"infrequent," there having been for example, only 2 such
dispatches out of an approximate 2,000 from the San
Antonio terminal during the month of September 1968.
Driving assignments were made according to the
availability of the drivers and Wallace had made only one
previous delivery to the Concrete Company. In no sense
could he have been regarded as the Respondent's driver
regularly serving the Concrete Company.
The Concrete Company and the Trinity Portland
Cement Company (which will be referred to as the
Cement Company) operated separate adjoining plants but,
although separate legal entities, were concededly a single
employer within the meaning of the Act. The two plants
were set back some distance from the public highway, and
were served by a common private roadway leading to a
common security guard shack about 100 feet from the
highway.
The Gypsum Workers Union" has represented the
employees of the Concrete Company and the Cement
Company in separate bargaining units. Since July 20,
1968, after the expiration of a contract with the Concrete
Company, the Gypsum Workers Union has conducted a
strike against the Concrete Company and has picketed the
Concrete Company along the highway. The Respondent
concedes that it believed the picketing was primary
picketing and that, so far as it knows and the record now
shows, no Section 8(b)(7) nor 8(b)(3) charges were ever
filed against the Gypsum Workers, challenging either its
strike against, or its picketing of, the Concrete Company.
There was no strike against the Cement Company and its
employees had been crossing the Gypsum Workers' picket
line.
Starting out with his load for the Concrete Company
from the San Antonio terminal early in the morning of-
September 23, Wallace asked directions to the plant from
a policeman in the Dallas area. The policeman gave him
directions and said that there was a strike at the Concrete
Company, that there was a picket line there, and that
"they have had lots of hell, over there." As Wallace
proceeded and approached the entrance, he saw the
pickets and stopped on the highway at "some sort of a
drive-in" so that he could call the Respondent's Irving
terminal, but he found no telephone there. A man drove
up in a car and asked him where he was going. Wallace
explained he was going to call his office to ask about the
strike at the Concrete Company and that he did not
intend "to go through a picket." The man said he was an
employee of the striking union and, taking Wallace to a
strikers' shack across from the entrance to the plant, put a
telephone call through to the Gypsum Workers' president
to whom Wallace explained his unwillingness to cross the
picket line. The Gypsum Workers, president said that he
appreciated Wallace's attitude, and that he "would open
the picket" and give Wallace permission to park off the
street "in order to be out of danger of the morning
traffic."
With the picket line thus opened for this purpose,
Wallace drove into the roadway up to the security shack.
It was between 5 and 6 a.m. and the security guard said
the Concrete Company "wasn't ready for the load" and
that he would be told when "they got ready." The guard
also told Wallace some men had been injured, showed
Wallace a damaged truck, and asked Wallace to park
along the curb of the private roadway to "get [his tractor
and trailer ] out of the traffic flow, employees or
management that was coming back and forth through the
picket."
Wallace complied with the guard's request and then,
with the guard's permission, telephoned from the guard
shack first to the Respondent's Irving terminal and then
to the home of San Antonio Terminal Manager Davidson.
He told Davidson that there was a strike and picketing at
the Concrete Company, that he "didn't intend to go in,
but ... had delivered the load to their gate, ... and felt it
was the responsibility of management to take charge of
it." Davidson said he would have to call the Respondent's
office in Dallas for instructions and would call Wallace
"N L R.B. v. Dorn 's Transportation Co, 405 F.2d 706 (C.A 2);
Wonder State Mfg Co., v. N.L R 8, 331 F.2d 737, 738 (C A 6),
N.L.R.B v. Superex Drugs, Inc., 341 F 2d 747 (C A 6).
"United Cement , Lune and Gypsum Workers International Union,
AFL-CIO, and its Local 463
SMITH TRANSIT, INC.
after that.
At about 9 o'clock, Davidson did call Wallace and said
that his instructions from Dallas were that Wallace had to
unload the trailer. -Wallace said in substance that he could
unload right where he was. Davidson said, "Bennie, you
have got to take that load in there. You are already past
the picket line." Wallace replied, "Mr. Davidson, that is a
matter of opinion. I don't have to take this load in there."
He explained to Davidson that the guard had told him
men had been injured and a truck damaged at the picket
line, that he had not wanted to get involved in the "feud"
between the strikers and the Concrete Company, and that
he had not crossed the picket line but had parked his
tractor and trailer on the private roadway for "safety."
But Davidson said, "I was informed if you don't take that
load in and get it unloaded that you will be replaced."
Wallace then ended the conversation by saying "Well, you
are wasting your time. You are wasting my time. The
replacement should already have been here."
In about an hour, the Respondent's Irving terminal
manager and shop foreman brought another tractor,
unhitched Wallace's tractor from the trailer, substituted
the other tractor, and pulling the trailer up to the
Concrete Company's plant, unloaded it. They told
Wallace he was to "bob tail" to the Irving terminal where
his spare tire which was still on the trailer, would be
transferred to his tractor. Wallace followed these
instructions and received his spare tire and his "delivery
slip" in the Irving terminal where he was permitted to fuel
up. He was told to return to the San Antonio terminal
without his trailer. He did so at the San Antonio terminal,
finished filling his ticket out and, after "waiting around
awhile- as the drivers usually did on returning to the
terminal, went home.
Terminal Manager Davidson did not testify and the
foregoing account, based upon Wallace's testimony alone,
is not in dispute. Vice President Lyons testified that a
report had been made to him of what had happened; that
he asked his people "to hold off doing anything until after
I could complete an investigation of my own" and that in
the meantime he gave instructions that Wallace was not to
bring his trailer back to San Antonio nor to receive any
further assignments; that, because he traveled quite a bit,
it took him about a week to complete his investigation;
that he did not talk with Wallace and that his
investigation consisted solely of securing and considering
factual reports from the Respondent's Irving and San
Antonio terminal managers; that this investigation
revealed that Wallace "had already crossed [the picket
line] and then refused to ... unload his truck there"; that
he was "not made aware" that Wallace did not want to
unload the truck because of the presence of the picket
line; and that Lyons' eventual decision to discharge
Wallace was not because he had honored the picket line
but because of his "refusing to unload his truck" after "he
had already crossed the picket line ...."
Having thus made the decision to discharge Wallace,
Lyons (as in the cases of Black and McHenry) left it to
Terminal Manager Davidson to inform Wallace of the
cancellation of his lease agreement and his discharge, as
Davidson did in his letter of September 30 which has
already been quoted. According to the record, the
Respondent hired no new truckdrivers at the San Antonio
terminal in the months of August, September and October
1968, and therefore no driver who could possibly be
regarded as a replacement for Wallace.
Conclusions
1083
The General Counsel and the Union contend that the
Respondent discharged Wallace because he was a leader
in the Unions' organizational activities and also because
he exercised a protected right under Section 7 of the Act
by respecting the picket line and refusing to make a
delivery at the struck business premises of the Concrete
Company. The Respondent asserts that it discharged
Wallace because he refused to unload his trailer and make
a delivery after he had crossed the picket line, and denies
that it discharged Wallace either because of his Union
activities among the Respondent 's employees or because
of his exercise of any protected right under Section 7. It
argues that Wallace' s refusal to unload his trailer after
having passed the picket line was not protected by the Act
and that it discharged him solely in the interest of
operating its business efficiently. Upon the facts found
and under the Board 's decisions , I conclude that Wallace's
refusal to unload his trailer was protected under the Act,
that the Respondent discharged him both because he had
exercised his protected statutory right and because he was
a leader in the Unions ' organizational activities , and that
its discharge of Wallace therefore constituted an unfair
labor practice within the meaning of Sections 8 (a)(3) and
(1) of the Act.
In the Redwing Carriers case," and in subsequent cases
in which truckdrivers or other employees have refused to
cross a picket line at another employer 's premises," the
Board has repeatedly held that "employees engage in
protected concerted activity when they respect a picket
line established by other employees. Such activity is
literally for `mutual aid or protection,' as well as to assist
a labor organization , within the meaning of Section 7.`1
But the Board has also uniformly held in Redwing and in
its subsequent decisions that:
Although the Act accordingly prohibits any reprisal
against [employees ] for engaging in the protected
activity of not crossing the . . . picket line [at another
employer' s premises], we also recognize that [the
employer has] a corresponding right which must be
balanced against the rights of [his] employees . That is,
[the employer has] a right to attempt to run [his]
business despite the sympathetic activities [of his
employees]. In this context , the Board has in the past
drawn a distinction between replacement and discharge
of such employees whose sympathies prevent them from
performing assigned work tasks.
In considering the continued validity of the
discharge -replacement distinction in this situation, we
are convinced that the substance, rather than form,
should be controlling. That is, where it is clear from the
record that the employer acted only to preserve efficient
operation of his business , and terminated the services of
the employees only so it could immediately or within a
short period thereafter replace them with others willing
to perform the scheduled work , we can see no reason
for reaching different results solely on the basis of the
precise words , i.e., replacement or discharge used by
"Redwing Carriers , Inc., 137 NLRB 1545, modifying 130 NLRB 1208,
affd . 325 F.2d 1011 (C.A.D.C).
"Overnite Transportation Co. 154 NLRB 1271, 1274, enfd . 364 F 2d
682 (C A D.C); Overnite Transportation Co, 164 NLRB No. 13; Thurston
Motor Lines, Inc, 166 NLRB No. 101; Swain and Morris Construction
Co, 168 NLRB No. 147; G d H. Towing Co, 168 NLRB No 82; A B.
C. Outdoor Advertising. Inc, 169 NLRB No. 24; Alamo Express, Inc,
170 NLRB No. 26, Lipsey, Inc., 172 NLRB No. 171.
"Redwing Carriers , Inc., supra , 137 NLRB at 1546-1547
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employer , or the chronological order in which the
employer terminated and replaced the employees in
question."
Addressing itself again to this balancing of employees'
and employer ' s rights, the Board held in the Overnite
Transportation case ( 154 NLRB 1271, 1274) that:
[I] t is the Board 's view that if the protected right
of employees is to have any meaning at all, then the
employer who would justify a discharge on the basis of
an overriding employer interest must present more than
a mere showing that someone else may have to do the
work . The fact is inherent in every situation where
employees fail to perform a portion of their assigned
tasks by respecting a picket line . . . . Clearly , what is
required is the balancing of two opposing rights, and it
is only when the employer ' s business need to replace the
employees is such as clearly to outweigh the employees'
right to engage in protected activity that an invasion of
the statutory right is justified.
In Redwing and the other cases which have come to the
Board thus far, employees have refused to cross a picket
line. But, as appears from the above quotation from its
Redwing decision , the Board has referred to the
employees ' right to engage in sympathetic activity under
Section 7 of the Act not merely as the right to refuse to
cross a picket line but as the broader right "to respect a
picket line established by other employees ." Thus, in
setting forth the general operative principle basic to the
employees ' right , the Board has indicated that the
protected right is not limited. to a refusal physically to
cross a picket line, but embraces also a right to "respect"
the appeal of pickets not to enter the premises of the
struck employer and that it would therefore protect a
visiting employee who , like Wallace in the present case,
refuses to make a delivery beyond the struck employer's
gate after the pickets , out of consideration for his feelings
and for the safety of his employer ' s equipment, have
either opened their line or acquiesced to his passing
through the line to a safe place at the struck employer's
gate , on his statement to them that he was unwilling to
make , and would not make , a delivery on the struck
employer ' s premises and intended so to inform his own
employer . Moreover , although the Board 's decisions have
thus far dealt only with picket line situations, the Board's
reasoning in these cases and the provisions of the Act
show that the protected right of an employee to refuse to
make a delivery or perform other services on the lawfully
struck premises of another employer, is the broad right of
an individual employee to act in sympathy with the
strikers and is not dependent upon the appeal of an
existing picket line . Although this appears clear from the
language of Section 7 of the Act and a logical application
of the reasoning and the Board ' s language in its Redwing
and more recent decisions , additional statutory recognition
of the breadth of this employee right, independent of the
existence of a picket line, is set forth in the proviso to
Section 8(b) (4) of the Act "that nothing contained in this
subsection (b) shall be construed to make unlawful a
refusal by any person to enter upon the premises of any
"Redwing , supra at 1547. In footnotes which have been omitted from
the above quotation, the Board cited N.L R B v. Mackay Radio A
Telegraph Co., 304 U.S. 333, 345 and Auto Parts Co, 107 NLRB 242, in
its recognition of the employer 's competing right to continue its business.
In recognizing the necessity for balancing the competing rights of
employees and employer , the Board obviously complied with the principle
laid down by the Supreme Court in Republic Aviation Corp v. N L R B.,
324 U.S. 793.
employer (other than his own employer), if the employees
of such employer are engaged in a strike ratified or
approved by a representative of such employees whom
such employer is required to recognize under this Act."
In the present case, Wallace told Terminal Manager
Davidson in their telephone conversations, that he "had
delivered [his] load to the [Concrete Company's] gate"
but "didn't intend to go in" and unload because there was
a strike and picketing at the plant. When Davidson told
him he had to go in because "you are already past the
picket line," Wallace replied, "that is a matter of
opinion" and persisted in his refusal to make the delivery.
It is thus clear that he informed Davidson that whether or
not he might be regarded as having "passed" the picket
line, he was still refusing to enter the Concrete Company's
premises and unload because of the picket line and the
strike. In doing so, Wallace was exercising an
employee-right under Section 7 and the only question
remaining is whether it appears from the evidence that the
Respondent was nevertheless justified in discharging him,
as an exercise of such an "overriding employer interest"
and corresponding right "to preserve efficient operation of
[its] business," as the Board has recognized in its
Redwing, Overnite Transportation, and more recent
decisions . But, as the Board held in Overnite
Transportation, "To justify such a discharge, the employer
must present more than a mere showing that someone else
must have to do the work . [I]t is only when the
employer's business need to replace the employees is such
as clearly to outweigh the employees' right to engage in
protected activity that an invasion of the statutory right is
justified ." (154 NLRB at 1274.)
In Wallace's case, the evidence shows that there was no
such "business need" to replace him as would outweigh
Wallace's right to refuse to make the delivery at the strike
bound Concrete Company's plant. The Respondent did
not have any continuing regular business with the
Concrete Company which might have been interrupted
with any serious possible consequences to the
Respondent's business by Wallace's refusal to unload his
trailer on September 23, 1968. Wallace was not regularly
assigned even to such infrequent deliveries as were made
to the Concrete Company, and the Respondent was
therefore not faced with the prospect that Wallace's
continuing services to the Respondent as a truckdriver
would be limited in any way. Wallace's trailer was in fact
unloaded by Respondent's Irving supervisors and the
Respondent was not dependent in this instance upon
replacing him with other rank-and-file truckdrivers who
might be as unwilling to unload his trailer as Wallace was.
Nor did the fact that Wallace had actually transported his
heavy load almost 200 miles and then refused to deposit
it, have the serious effect upon the Respondent's business
routine at a distant point from his home terminal as
Respondent's counsel argues in its brief. For the
Respondent's Irving terminal which provided the
supervisors who unloaded Wallace's truck and to which
Wallace made his first call, was within 10 or 15 miles of
the Concrete Company's plant. Finally, as I have found,
Wallace, although discharged ostensibly for his refusal to
unload his trailer at the Concrete Company's plant, was
not thereafter replaced in his job.
Upon these facts and upon an application of the legal
principles which have been discussed, I conclude that, by
notifying Wallace of his discharge for a "refusal to unload
a load of cement" at the Concrete Company's plant on
September 23 although he had informed Terminal
Manager Davidson at the time that the plant was on
SMITH TRANSIT, INC.
strike and being picketed and although there was actually
no "business need " to discharge or replace him in his job
and in fact he was not replaced , the Respondent
discharged Wallace for exercising his Section 7 right not
to make a delivery at a struck plant of another employer,
and thereby committed an unfair labor practice within the
meaning of Section 8(aX3) and ( 1) of the Act.
But the evidence goes even further than this in requiring
the conclusion that Wallace was discharged in violation of
the Act. For it shows that Wallace's refusal to "unload"
was used as a pretext for discharging him and that the
actual reasons for the discharge were both his exercise of
his Section 7 right at the Concrete Company's premises
and his known leadership in the Unions ' organizational
activities . Indeed , there is a significant , and not merely a
superficial, parallel between Vice President Lyons'
treatment of Wallace and his treatment of Black who I
have already found had been discharged on Lyons'
investigation and orders only a few days earlier.
As in Black ' s case , Lyons conducted an "investigation"
of Wallace and , although he knew generally of the strike
and picketing situation at the Concrete Company ' s plant,
he never spoke to Wallace about the exact circumstances
and Wallace ' s reasons for not making the delivery.
Instead , relying entirely upon either or both Terminal
Manager Davidson ' s and the Irving terminal manager's
reports, he says in his testimony that , as in Black ' s case,
he ordered Davidson to discharge Wallace because he
(Lyons) had decided that Wallace , having already crossed
the picket line, should be discharged for refusing "to
unload ." Again, as in Black ' s case, we have not been
given the benefit of any testimony from Davidson who
acted as Lyons' ministerial agent in the discharges. But
here the omission of Davidson 's testimony is even more
significant than in Black ' s case . For, in Wallace' s case,
Davidson had actually talked with Wallace about'
Wallace ' s reasons for not making the delivery, and
according to Wallace ' s uncontradicted testimony which I
have credited, Wallace had told Davidson that he was
refusing to make the delivery because of the picketing and
the strike. Yet, in his testimony, Lyons says that in his
investigation of the matter through Davidson and the
Irving terminal manager , he was "not made aware" of
Wallace ' s unwillingness to unload his truck because of the
presence of the picket line and that he therefore decided
that Wallace might properly be discharged, and should be
discharged , merely for refusing to unload . On this point
particularly , I regard Lyons' testimony as being incredible
in view of his accompanying testimony that in deciding to
discharge Wallace , he had learned of, and considered as
controlling, the fact that Wallace had been actually "past
the picket line." Accordingly, I find, upon Wallace's
testimony of his conversations with Davidson and in the
absence of any contradiction or explanation from
Davidson , that Wallace not only reported through
Davidson as his superior that he would not make the
delivery because of the presence of the picket line and the
strike , but also that Davidson must have relayed this
report to Lyons.
In short, upon my critical examination of Lyons'
testimony in the context of the rest of the evidence, I am
convinced and find that even from his limited investigation
without even talking with Wallace himself, Lyons knew
that Wallace had refused to make the delivery because of
the strike and the presence of the picket line , and that he
seized upon what may have appeared to have been
Wallace ' s being already "past the picket line" before
refusing to unload his truck , as a justification for his
1085
disregarding the obvious connection between the strike
and Wallace's refusal to unload. Finally, Lyons' careful
avoidance of recognition of this obvious connection, his
avoidance of any inquiry of Wallace which might have
forced him openly to consider this connection, the
Respondent's failure to put Terminal Manager Davidson
on the witness stand , the fact that Lyons knew that
Wallace was a Union leader as he had known Black was,
and my findings upon the evidence that Lyons had only a
few days earlier similarly ordered Black's discharge by
Terminal Manager Davidson upon a pretext but actually
because of Black's Union leadership, all show, and I
therefore conclude, that, using the Concrete Company
incident on September 23, 1968, as a pretext, the
Respondent discharged Wallace on September 30, 1968,
both because he was a known leader in the Unions'
organizational activities and because he exercised a
protected right under Section 7 of the Act by respecting
the appeal of a picket line and refusing to make a delivery
at the struck business premises of the Concrete Company,
and that, in discharging Wallace for these reasons, the
Respondent committed an unfair labor practice within the
meaning of Sections 8(a)(3) and (1) of the Act.
D. The Termination of Weldon G. Talley on or about
October 4, 1968
The remaining instance of discriminatory discharge
alleged in the complaint involved lease driver Weldon
Talley. It will be recalled that the Union advised the
Respondent in its telegram of August 4 that Talley, as
well as Black, had joined the Union and that at the
September 15 preelection 'conference it designated Talley
to be Black's alternate as its San Antonio election
observer. In fact, Talley got 12 or 15 drivers to sign
Union authorization cards during the organizational
campaign and, after Black's discharge , served as the
Union's election observer on September 23.
Although originally a company driver for a number of
years following his hire on March 9, 1959, Talley had
worked most recently as a lease driver from late 1966
until late 1967 at Houston (where he first bought a tractor
and leased it to the Respondent) and then from that time
until October 4, 1968, at San Antonio where he had asked
to be transferred because the Houston hauls were shorter
and not as well paying as were the San Antonio hauls.
But before this, and for most of the time following his
original hire in 1959, he had been a company driver out of
the Respondent's Fort Worth, Houston, and Amarillo
terminals in that order. He had quit his company driver's
job at Houston on October 13, 1961 and, after being
rehired and working there again for about a year and a
half from May 5, 1962 until November 23, 1963, had
requested and had been given a transfer to Amarillo where
he worked for about 3 years before purchasing his tractor
and becoming a lease driver at Houston and finally at San
Antonio. When he was transferred to San Antonio at his
request in late 1967 , he expressed his dissatisfaction with
Houston , by telling all who would listen to him in the
drivers' room that he would not under any circumstances
return to Houston for the Respondent.
On September 10, 1968, Talley's tractor broke down
and the repair estimate of from $300 to $400 was more
than Talley could afford to pay. According to Talley, he
made no effort to have the tractor repaired because of the
cost, although he did ask the finance company (apparently
without success) to advance the cost of changing the
tractor from gas to diesel power. As a result of the layup
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the tractor, it was of course not available for use by the
Respondent after September 10 as required by the lease
agreement.
On September 12 Talley asked San Antonio Terminal
Manager Davidson for a company tractor while his own
tractor was down. Davidson said he would have to call the
Respondent's office in Dallas . Talley repeated his request
2 or 3 days later and Davidson told him the Respondent
had no tractor available. Instead, Davidson consented to
an arrangement under which Talley drove the truck of
another lease driver, Richardson, on alternate days, and
also made one trip with the tractor of still another lease
driver, Furr, who was sick. In all, Talley made three trips
with the other lease drivers' trucks, the last of which was
on Saturday, September 21, and then discontinued
because he was able to make only $60 or $70 a week.
On October 4, 1968, Talley received the following letter
from San Antonio Terminal Manager Davidson:
Our records indicate that your truck has not worked
since September 10, 1968, therefore, according to
Paragraph IV of your lease agreement dated the 7th of
June, 1968, we are canceling this lease agreement.
However, we are short of drivers at our Houston
Terminal and if you would like to transfer to Houston
and drive a company truck, you may do so. (G.C. Exh.
5.)
On October 4, the day he received this letter, Talley
went to the San Antonio terminal and spoke with
Davidson. He told Davidson he had received the letter and
that it meant he was fired because he was not going to
Houston.
It is undisputed that the Respondent permitted its lease
drivers to go back to driving its tractors as company
drivers if tractors were available. In his testimony, Talley
referred to specific instances in which he knew that this
had occurred earlier in 1968, including an instance in
which lease driver Schlueter, the Respondent's election
observer, actually began driving a company truck in the
week of the election. But, as Talley admitted, Schlueter
had asked Davidson for a company truck before Talley
had asked for one. The issue, therefore is whether the
Respondent actually had another tractor available for
Talley at San Antonio after he had requested one.
Talley testified that, although he saw new trucks at the
San Antonio terminal after he made his request for one,
Davidson told him that he needed them for "new drivers
coming in . . . and they didn't have one for me." Talley
further testified that the trucks were in fact assigned to
newly hired drivers, whom he saw at the terminal but
could not identify by name.
As already noted, Davidson did not testify. But from
the testimony of Vice President Lyons and a stipulation
reached by counsel, it would appear that Talley was
mistaken in this part of his testimony. From Lyons'
testimony, it appears that no new trucks had been received
by the Respondent in September 1968, and that it was
customary for the Respondent to order new trucks in the
fall of the year for delivery the following spring. And,
according to the stipulation, the Respondent in fact hired
only four loaders, but no drivers, in the months of August,
September and October 1968. Finally, according to Lyons'
undisputed testimony, loaders were only occasionally
dispatched as drivers when regular drivers were absent,
and were therefore not regularly assigned to equipment.
Contrary to Talley's testimony, therefore, I conclude that
the evidence does not show that after Talley asked for a
company truck and was refused, new tractors were
assigned to newly hired drivers at the San Antonio
terminal.
On this state of the record, there is no satisfactory basis
in the evidence for a finding that the Respondent, having
terminated Talley's lease agreement because of the
unavailability of his truck, refused to assign him to an
available tractor as a company driver at San Antonio,
nor, therefore, that the Respondent thereby discriminated
against him because of his known activity on behalf of the
Union. Accordingly, I shall recommend dismissal of the
allegation of the complaint that the Respondent
discriminated against Weldon G. Talley in violation of
Section 8(a)(3) of the Act.
V. CONCLUSIONS CONCERNING THE UNION S
OBJECTIONS IN CASE 23-RC-3230
As noted, the Unions' "Objections to Conduct
Affecting Election" in Case 23-RC-3230 allege preelection
conduct on the part of the Employers (including the
Respondent Chemical Express, Inc.), calculated to create
an atmosphere in which a free election could not be held,
including the promise and grant of benefits to employees,
discrimination against known Teamsters supporters
(including discharges), surveillance of Teamster meetings
and activities, interrogation, and misrepresentations of
material facts.
The "Objections" are broadly stated and in some
instances it has been difficult to assess their possible basis
in the light of the evidence produced in the present
hearing. However, there was no apparent support in the
evidence for the following generally stated "Objections,"
and I recommend their dismissal by the Board:
Objection I ("Threats to employees")
Objection II (Promises and grants of benefits)
Objection III (Reduction of benefits and imposition
of less favorable working conditions upon known
Teamster supporters)
Objection V (Interrogation)
Objection VIII (Misrepresentations of facts)
Objection IX (Delay of scheduled opening of
Houston polling place)
Apparently to support Objections X and XI (which
refer to "other acts and conduct" on the part of the
Employers without being specific as to their nature)
counsel for the Unions contended during the hearing that
the Employers' preelection letters, the booklet, and the
four-page pamphlet (which have been described in section
III of this Decision) overstressed the frequency, likelihood
and consegtiences of strikes as the result of union
representation and were therefore calculated to create and
did create, an atmosphere making a fair election
impossible. But upon consideration of the full substance of
the letters, the booklet, and the pamphlet, I have
concluded that although they demonstrated the
Employers' strong opposition to unionization and a
material background in the consideration of the
Respondent's unfair labor practices, they did not forecast
the inevitability of strikes nor the certainty of economic
loss to employees as the result of unionization and
accordingly, did not overstep the limitations of argument
permitted employers in preelection campaigns under the
Board's decisions." I therefore recommend dismissal of
Objections X and XI.
"Coors Porcelain Co, 151 NLRB 1108, Allied/Egry Business Systems
Inc, 169 NLRB No. 60, Howmet Corp, 171 NLRB No. 18. Compare
Pepperell Mfg Co. 159 NLRB 291
SMITH TRANSIT, INC. 1087
One of the remaining "Objections" (Objection IV)
alleges that the Employers engaged in preelection
surveillance of Union meetings and Union activities. The
only evidence to this effect related to the alleged
surveillance by Terminal Manager Williams of the Union
meeting on September 22 at the Holiday Inn in Irving. I
have already considered this evidence in section III of this
Decision and for the reasons there stated I have concluded
that it does not warrant a finding of surveillance. I
therefore recommend dismissal of Objection IV.
This brings us to the remaining two Objections
(Objections VI and VII) which set forth the Employers'
alleged discriminatory discharge of "certain employees"
and its "other acts of discrimination against employees
because of their membership in and activities on behalf of
the Petitioning Union and/or because of their engaging in
activities protected by the Act." In section IV of this
Decision, I have found upon the evidence that one of the
Employers (the Respondent, Chemical Express, Inc.) did
discriminatorily discharge employees Black and McHenry
in violation of Sections 8(a)(1) and (3) of the Act and that
the discharges were effected on September 21, 1968, 3
days before the Board representation election on
September 23, 1968. In accordance with these findings, I
conclude that Objections VI and VII to the conduct of the
election in Case 23-RC-3230 have been sustained.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, Chemical Express,
Inc., set forth in section IV above, occurring in connection
with the business operations of the Respondent as
described in section I, above , have a close, intimate, and
substantial relation to trade, traffic, and commerce upon
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
calendar quarter of the backpay period on the amount due
and owing for each quarterly period. Isis Plumbing &
Heating Co, 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs, Warehousemen, Helpers &
Food Processors Local Union 657 and Southern
Conference of Teamsters, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Unions) are labor
organizations within the meaning of the Act.
2. Respondent, Chemical Express, Inc., is an employer
engaged in commerce within the meaning of the Act.
3. By discharging employees Edward H. Black,
Lawrence E. McHenry, and Bennie R. Wallace, the
Respondent discriminated against them in regard to their
hire and tenure of employment, in order to discourage
membership in, and support of, the Unions, thereby
committing unfair labor practices within the meaning of
Sections 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The Respondent did not commit an unfair labor
practice by discharging employee Weldon G. Talley as
alleged in the complaint.
6. Objections VI and VII, as set forth in the Unions'
"Objections to the Conduct of Election" in Case
23-RC-3230, are supported by the evidence submitted at
the hearing and should be sustained.
7. Objections I, II, III , IV, V, VIII, IX, X, and XI as
set forth in the aforesaid "Objections to the Conduct of
Election" have not been supported by the evidence and
should be dismissed.
VII. THE REMEDY OF THE UNFAIR LABOR PRACTICES IN
CASE 23-CA-3151
Having found that the Respondent, Chemical Express,
Inc., has engaged in unfair labor practices within the
meaning of Sections 8(a)(1) and (3) of the Act, I will
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily
discharged employees Edward H. Black and Lawrence E.
McHenry on September 21, 1968, and employee Bennie
R. Wallace on September 30, 1968, I will recommend that
the Respondent offer each of them immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of
earnings suffered by reason of the discharge by payment
to each of them of a sum of money equal to that which he
normally would have earned from the aforesaid date of his
discharge to the date of the Respondent's offer of
reemployment , less his net earnings during said period.
The backpay shall be computed in accordance with the
formula stated in F. W. Woolworth Company, 90 NLRB
289. Furthermore, it will be recommended that the
Respondent pay interest on the backpay due to each of
these employees, such interest to be computed at the rate
of 6 percent per annum and, using the Woolworth
formula, to accrue commencing with the last day of each
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in Case
23-CA-3151, it is recommended that the Respondent,
Chemical Express, Inc., a Texas corporation, its agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters, Chauffeurs,
Warehousemen, Helpers & Food Processors Local Union
657, or in Southern Conference of Teamsters, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other
labor organization of its employees, by discriminatorily
discharging any of its employees, or by discriminating in
any other manner in regard to their hire and tenure of
employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to
self-organization, to form or join labor organizations, and
to engage in any other concerted activities for the purpose
of collective bargaining or other mutual aid and
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Edward H. Black, Lawrence E. McHenry,
and Bennie R. Wallace immediate and full reinstatement
to his former position, or to a substantially equivalent
position, without prejudice to his seniority or other rights
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and privileges , and make each of them whole for any loss
of earnings suffered as a result of his discharge, in the
manner set forth in the section entitled "The Remedy."
(b) Notify any of the persons entitled to reinstatement
under this Order if they are presently serving in the
Armed Forces of the United States of their right to full
resinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after their discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for
examination and copying, all records necessary for the
determination of the amount of backpay due under the
Order herein.
(d) Post at its terminal in San Antonio, Texas, copies
of the attached notice marked "Appendix."" Copies of
said notice , on forms provided by the Regional Director
for Region 23, shall , after being signed by a representative
of the Respondent , be posted by it immediately upon
receipt thereof and maintained for a period of 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 Region 23, in
writing , within 20 days from the receipt of this Decision
and Recommended Order, what steps the Respondent has
taken to comply herewith.''
IT IS FURTHER RECOMMENDED that the Board dismiss
the allegations of the complaint asserting that the
Respondent' s discharge of Weldon G. Talley constituted
an unfair. labor practice within the meaning of the Act.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is 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."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 23 , in writing , within 10 days from the date of this Order, what
steps Respondent his 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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in Teamsters,
Chauffeurs , Warehousemen , Helpers & Food
Processors Local Union 657, or Southern Conference of
Teamsters, a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America, or in any other labor organization, by
discriminatorily discharging and refusing to reinstate
any of our employees , or by discriminating in any other
manner in regard to their hire and tenure of
employment or any term or condition of employment.
WE WILL OFFER to Edward H. Black , Lawrence E.
McHenry, and Bennie R. Wallace , reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges , and we will make them whole for any loss of
earnings suffered as a result of their discharges.
WE WILL NOT in any manner interfere with, restrain,
or coerce any of our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist any of the aforementioned unions, or
any other labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in any other concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL notify the employees entitled to
reinstatement , 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.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of
Teamsters, Chauffeurs , Warehousemen , Helpers & Food
Processors Local Union 657, or Southern Conference of
Teamsters, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization.
CHEMICAL EXPRESS, INC.
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building , 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-226-4722.