Superior Trucking Co.

National Labor Relations Board - Board Decisions

Mar 22, 1965

151 N.L.R.B. 937 (N.L.R.B. 1965)

SUPERIOR TRUCKING COMPANY, ETC. 937
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act
(a) Offer to Floyd Franklin , Jr., immediate and full reinstatement to his former
or substantially equivalent position, and offer immediate employment to Billy Joe
Willie in his former or substantially equivalent position held by him on June 9, 1964,
without prejudice to their seniority or other rights and privileges , and make each of
them whole for any loss of earnings he may have suffered by reason of the discrimi-
nation against him , in the manner set forth in the section of this Trial Examiner's
Decision entitled "The Remedy." The seniority and backpay due Billy Joe Willie
shall run from June 9, 1964.
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary or appropriate
to analyze the amount of backpay due Floyd Franklin , Jr., and Billy Joe Willie.
(c) Post at its plant in Dallas , Texas, and at such offices as the Respondent may
maintain , copies of the attached notice marked "Appendix ." [Board's Appendix
substituted for Trial Examiner 's Appendix .] 11 Copies of said notice , to be furnished'
by the Regional Director for Region 16, shall , after being duly signed by the Respond-
ent's authorized representative , be posted by the Respondent immediately upon
receipt thereof , and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the Respondent to ensure that
said notices are not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in writing , within 10 days from
the date of this Trial Examiner 's Decision , what steps Respondent has taken to com-
ply herewith.12
It is further recommended that, unless Respondent shall within the prescribed
period notify the said Regional Director that it will comply with the foregoing
recommendations , the National Labor Relations Board issue its Order requiring the
Respondent to take the aforesaid action.
"If 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 . If the Board ' s Order is enforced by a decree of a United States Court of
Appeals , the notice will be further amended by the substitution of the words " a Decree
of the United States Court of Appeals , Enforcing an Order" for the words "a Decision
and Order "
12 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 16 , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
Superior Trucking Company and G. E. Gray (Joint Employers)
and Odes Glassco
Superior Trucking Company and G. E. Gray ( Joint Employers)
and C. W. Neal. Cases Nos. 10-CA-5613-1 and 10-CA-5613-2.
March 22, 1965
DECISION AND ORDER
On September 3, 1964, Trial Examiner Lloyd Buchanan issued
his Decision in the above-entitled proceeding, finding that Respond-
ents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached
Decision. The Trial Examiner also found that Respondents had
151 NLRB No. 104.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not engaged in certain other unfair labor practiices alleged in the
complaint and recommended dismissal of those allegations. There-
after, Respondents filed exceptions to the Decision and supporting
briefs.
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 [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case, and finds merit in Respondents' exceptions.
Accordingly, the Board hereby adopts only those findings, con-
clusions, and recommendations of the Trial Examiner which are
consistent with the following.
Respondent Gray leased trucks and equipment to Respondent
Superior, a common carrier. Gray also supplied and paid the
drivers for the trucks. Pursuant to this arrangement, Gray assigned
Charging Parties Odes Glassco and C. W. Neal to drive two of its
trucks for Superior. Glassco began driving for Superior in Decem-
ber 1963 and Neal in October 1963. On February 6, 1964, Holly-
field, Superior's dispatcher at its Gadsden, Alabama, terminal,
assigned Glassco to pick up a load of steel. When Glassco objected
that the assignment was an overload and thus a violation of law,
Hollyfield changed the bill of lading so as to reduce the weight to
be carried. When Glassco still refused to drive, Hollyfield sus-
pended him for 7 days. The General Counsel does not contend
that this suspension was unlawful.
On the same day, February 6, Neal's truck, which was at the
top of Superior's dispatch list, at the Gadsden terminal, needed to
be repaired. At Neal's request, Gray asked Hollyfield to keep Neal
with a replacement truck at the top of the dispatch list. Holly-
field refused on the ground that he dispatched trucks and not drivers,
and that the truck offered to Neal as a replacement was at the
bottom of the dispatch list. As a result, Neal did not report to work
at Superior during the following week. Again there is no conten-
tion that Hollyfield was motivated by other than legitimate reasons
in refusing Gray's request.
Both Glassco and Neal reported to Hollyfield for assignment on
the morning of February 12. Glassco saw that he was No. 11 on
the dispatch list and told Hollyfield that he was going home. Neal's
truck had not yet been repaired. He met Glassco and told him
that he was going to Birmingham; Glassco decided to accompany
SUPERIOR TRUCKING COMPANY, ETC. 939
Neal. Neither man told Hollyfield of his intention. The two men
did not return to the terminal until about 2 o'clock in the afternoon.
Meanwhile, Hollyfield unsuccessfully tried several times to reach
both men for dispatch. He complained to Edna Gray, Respondent
Gray's wife, who answered the telephone at Gray's office, that the
two men were not dependable. When informed of Hollyfield's
complaint, Gray said that if the men were not dependable to let
them go. Thereupon Hollyfield terminated them.
The complaint alleged that Respondents Gray and Superior had
violated Section 8(a) (3) and (1) by discharging Glassco and
Neal on February 12, 1964, because of their membership in, and
activities on behalf of the Union, and because they had engaged
in concerted activities for the purpose of collective bargaining
and other mutual aid or protection. However, at the outset of the
hearing the General Counsel stated that he would attempt to
prove that the two men were discharged "because of their union
activities, and this was done in an effort to discourage unionization
of the Gadsden Terminal operated by Superior." He said nothing
about a discharge for concerted activities apart from efforts at
unionization. He examination of the Charging Parties was also
limited to the issue of unionization.
On this issue, there was evidence that Glassco and Neal had
solicited union membership away from the terminal and during their
layoff period. However, the Trial Examiner found that Respondents
were not aware of these activities. Accordingly, he recommended
-dismissing the 8(a) (3) allegation of the complaint. The General
Counsel has not filed exceptions to this recommendation. More-
over, there is other testimony, not referred to by the Trial Examiner,
which indicates no antiunion hostility by either Respondent. Thus,
both Glassco and Neal testified that in applying for jobs to Respond-
ents, they stated in their application forms that they were then on
strike at another trucking company. All parties stipulated that
Respondents also knew at the time of application that both men
lead been jailed in connection with this strike. Finally, Neal
admitted that, in hiring him, Respondent Superior's official told
him in essence : "I don't care whether you are a member of Local
,612 [Teamsters] or not. As long as you do the job."
Although, as noted, the Trial Examiner recommended dismissing
the 8(a) (3) allegation of the complaint, he recommended finding
that Respondents had violated 8(a) (3) by discharging Glassco
and Neal for having engaged in concerted activities apart from
union activities. There is absolutely no evidence of any such
activity by either of these individuals. The Trial Examiner's
finding appears to be based entirely on testimony of Hollyfield
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under cross-examination by the General Counsel. The latter asked
Hollyfield if he "had heard" that Neal was "stirring up trouble"
with other drivers. Hollyfield replied that he "had heard" that
"at one time he [Neal] tried to put up a picket line, and that is
all." He further testified that he "had heard" that Glassco and
Neal were hanging around and agitating Gray's other drivers
to get Gray to pay Glassco for the time he was off.' But Holly-
field denied that what he "had heard" had contributed to his decision
to ask for the discharge of Glassco and Neal. We find nothing
in the probabilities of the testimony itself, in Hollyfield's general
credibility, or in the circumstances of the case to discredit this
denial by Hollyfield. In other respects, the Trial Examiner
credited Hollyfield as a witness. Further, Hollyfield was an em-
ployee of Superior and not of Gray. He "had heard" that Glassco
and Neal were stirring up Gray's other drivers in order to secure
additional pay for Glassco from Gray. But he had no motive to
discharge them on this account. Superior would not have been
affected by the proposed action against Gray. It was not obligated
under its lease arrangement to reimburse Gray for payments to
drivers. Gray, of course, could have been affected but, as the
Trial Examiner found, Gray was not a moving force in the dis-
charge of Glassco and Neal. Gray merely acquiesced in Superior's
decision to terminate them. Accordingly, we credit Hollyfield's
testimony.
We find, contrary to the Trial Examiner, that the General Counsel
has not established by a preponderance of the evidence that Re-
spondents or either of them discharged Glassco and Neal for having
engaged in concerted activities. We shall therefore dismiss the
complaint .2
[The Board dismissed the complaint.]
'The General Counsel appears to have asked his questions about what Hollyfield "had
heard" for the purpose of showing knowledge of union activities , rather than to show
knowledge of other concerted activities His last question on what Hollyfield "had
heard" was : "You know that a picket line usually has some Union sponsorship, don't
you 9" Hollyfield answered - "Ordinarily, yes, sir"
2In view of our finding that no violation of the Act has been established , we find it
unnecessary to consider ( 1) Respondent Superior' s contention that the Trial Examiner
exceeded his authority in finding an 8(a) (1) violation and (2 ) the Trial Examiner's
finding as to the employment relationship between Respondents and the Charging Parties.
TRIAL EXAMINER'S DECISION
The complaint herein ( issued April 1, 1964; charges filed February 18, 1964)
alleges that the Respondents have violated Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended , 73 Stat. 519, by discharging Glassco and Neal on
or about February 12, 1964, and thereafter refusing to reinstate them, because of
their union membership and concerted activities . The answers deny the allegations
that the Respondents are joint employers of Glassco and Neal and that Gray is a
supervisor and agent of Superior , and further deny the allegations of violation.
SUPERIOR TRUCKING COMPANY, ETC . 941
A hearing was held before Trial Examiner Lloyd Buchanan at Gadsen , Alabama,
on May 12 and 13, 1964. Pursuant to leave given to all parties , briefs have since
been filed by each of the Respondents.
Upon the entire record in the case , and from my observation of the parties, I make
the following:
FINDINGS OF FACT (WITH REASONS THEREOF)
1. THE RESPONDENTS ' BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that Superior, a corporation maintaining a terminal at
Gadsden, Alabama, is engaged as a common carrier by motor vehicle in the inter-
state transportation of freight; that during the year immediately preceding issuance of
the complaint it received more than $50,000 from the interstate transportation of
freight; and that it is engaged in commerce within the meaning of the Act.
It was stipulated and I find that Gray during the 12 months immediately preceding
the hearing received revenue from the interstate transportation of freight valued at
more than $ 50,000, that with respect to equipment leased to Superior , he received
from Superior for the first several months of such leasing approximately $3,000 to
$4,000 per month from the interstate transportation of freight; and that the remainder
of Gray's revenue aforementioned has come from the leasing of equipment to other
carriers . I find that Gray is engaged in commerce within the meaning of the Act,
and that in any event the Board has jurisdiction over its operations herein.
It was admitted and stipulated and I find that Local Union No. 612, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
In finding the facts I credit certain assertions or testimony and discredit others.
I deem it unnecessary in this case to mention many of the latter since their clearly
contradictory and unreliable aspects are readily identifiable. The material facts will
appear during the course of the analysis although many supporting facts need like-
wise not be set forth.
A. The relationship among the Respondents and the drivers
In this Cock Robin situation, with each Respondent denying that it has discharged
Glassco and Neal, one thing stands clear and uncontradicted: these men were
discharged fully, completely, and definitely. Whatever the rights of the Respondents
between themselves including "costs accruing by virtue of ultimate decision" herein,
our present concern is with the respective obligations under the Act.
The evidence indicates that Gray is the employer of Glassco and Neal to the
extent that he pays them 25 percent of his gross receipts from the contractor, which
pays him for the use and services of his equipment and driver; and also to the extent
that he continues to make the equipment available to them and in the first place
approves their use of such equipment , making it and them available for employment
by the contractor, in this case Superior. The relationship is further outlined by the
testimony that Neal, having heard that Superior needed equipment and drivers, spoke
to Gray about it and then himself made the initial contact with Superior; and that
thereafter Neal was tested and approved by Superior and then the equipment contract
entered into between the latter and Gray. Thus the employment by Gray depended
on Superior 's lease of the equipment as initiated by the driver. (Similarly when
repairs were being made, infra, Neal's later employment on other equipment
depended on it being "permissible" with Superior.)
The evidence further indicates that, whether as an agent of Gray or directly by its
control over the activity, procedure, and continued employment of the drivers,
Superior is also their employer within the meaning of the Act. Superior's control of
the drivers is clear and is directly maintained through Hollyfield, its dispatcher and
assistant to Flemming, its Gadsden agent. We need not detail Superior's rules and
regulations for the drivers and the threat of "immediate dismissal" as further evidence
of the employer-employee relationship. This finding of Superior's status as employer
is further supported by Hollyfield's testimony that he called Flemming immediately
before he discharged Glassco, and reported that he was unable to find him; and
while I do not rely on Hollyfield's transparent statement to Flemming that Mrs. Gray
had said that if the boys were not dependable he should let them go, quite significant
for its indication where the decision was made is Flemming 's reply, "Jerry , if that
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is your decision, you use it." To the extent that testimony was received, particularly
from Hollyfield elsewhere, in the attempt to show that Superior did not control
employment and the drivers' activities, I discredit it.
While it is true that the agreements between Superior and Gray recite that the
drivers are employees of the latter, such agreements also recite that neither contracting
party is the agent of the other. Superior nevertheless, as we shall see, undertook to
act on Gray's behalf when it discharged Neal and Glassco. To the extent of our
concern with these agreements, and specifically without passing on their validity and
effect in other respects, I find that they are an attempt to mask the actual relationship
between Superior, Gray, and the drivers.
The relationship among the parties will be further indicated infra in connection
with the analysis of the discharges and the responsibility therefor. I overrule the
apparent contentions of the Respondents that they are not Glassco's and Neal's
employers. That either employer may terminate the employment of drivers does not
alter the fact that such authority rests with the other also. As Superior has pointed
out, after it discharged these drivers Gray could employ them elsewhere; hence the
former terminated their employment with itself only, not with or on behalf of Gray.
As for the latter, we shall see that he acquiesced in the discharges and had previously
agreed to such action; after the discharges, he did not until the hearing offer these
men any employment. With the finding that each is the employer of the two drivers,
it is unnecessary to pass on the General Counsel's contention that they are joint
employers.
B. The alleged violation of Section 8(a)(3)
Without full reliance on Glassco's and Neal's testimony as they attempted to over-
state their case, the facts concerning company knowledge of their concerted activities
can be gleaned particularly from Hollyfield's testimony and belated admissions.
Similarly, with respect to the discharges and the motivation therefor, Gray's testimony
casts light on the situation as first testified to by Neal and Glassco.
Neal's tractor, No. 448, being in need of repair, Gray told him on February 5,
1964, that No. 449, at that time in Birmingham, also had Superior's signs and with
Superior's permission could be used as a replacement until repairs were completed on
448. That night Neal picked up 449 in Birmingham and early the next morning
appeared with it at Superior's terminal in Gadsden. With 448 he was at the head of
the list for dispatch that morning.
Claiming that equipment "counts," not the driver, Hollyfield now told Neal that
he would have to go to the bottom of the book or list. Neal asked whether that
was normal procedure and maintained that it had never been done before; he was
admittedly "unhappy."
Hollyfield thereupon offered the first load to Glassco, who was next in the book.
When the latter pointed to the marked overload called for on the slip (a violation
of law) and remarked that the assignment should be Neal's, Hollyfield struck out
the notation which called for 50,000 pounds and wrote in 32,000 pounds. Whether
the load which would thereafter be given the driver by the shipper would be limited
to 32,000 pounds was not clearly settled at the hearing, nor is it necessary now to
settle that question, although it is clear from Hollyfield's testimony and the bill of
lading received in evidence that the load which Neal would have carried had he
stayed exceeded 50,000 pounds. Glassco refused to accept the load, and Hollyfield
thereupon told him that, if he refused to pull it, he would be given a 7-day layoff.
Glassco "accepted" the layoff, effective that morning, February 6.
Neal and Glassco went to Anniston the same day and told Gray what had
occurred. The latter told Neal that he would put another driver, Beazley, on 449
(for Superior, Hollyfield approved this replacement) while Neal could stay in
Anniston and help repair 448; he advised Glassco to accept the 7-day layoff as
Glassco evidently had.
On the morning of February 12, although the disciplinary layoff had not yet
expired, Glassco signed the book (he was now in the No. 11 position) and told
Hollyfield that he was going home. Neal also went to the Superior terminal (448
had not yet been repaired), met Glassco, and told him that he was going to Birming-
ham; and Glassco decided to accompany him. They returned to the terminal about
1.30 or 1:45 that afternoon. In the meantime, Hollyfield had made several calls
in an attempt to reach Glassco. It is clear that up to that time neither of the drivers
had been discharged.
When they went into the terminal, Hollyfield handed each a sealed envelope.
Neither opened his envelope inside the terminal, and apparently no conversation was
exchanged at the time. I credit the denial, supported by the circumstances themselves,
SUPERIOR TRUCKING COMPANY, ETC . 943
that Glassco said that he had quit a week before. Each envelope enclosed a letter
on Superior 's stationery , signed by Hollyfield, and indicating that a copy was being
sent to Flemming and Gray. (Alleged prior shortcomings are not in issue.)
So far from suggesting any dissatisfaction with Neal in connection with the incident
of February 6 or any other matter, the letter to Neal declared that Gray wanted to
terminate Neal's duties with 448 and that Superior "usually accepts " the contractor's
decision whether a driver "is good driver material or not." In a transparent attempt
to justify Neal's discharge , Hollyfield testified that on February 12 he told Flemming
that Neal had walked off on February 6. Aside from the aspect of afterthought, the
element of pretext is emphasized by this indication that Hollyfield himself did not
think that the eeiher incident was important enough to be mentioned to Flemming
before although he speaks with him several times each day.
The letter to Glassco refers to the 7-day layoff and his getting back on the book
that day "at the end of [his] penalty." i After reciting that he had said that he was
"going home for a little while ," that he rose to fifth place on the book at 11 a.m., and
that attempts were made to reach him at home and at Gray's, the letter declares it to
be Gray's wish to terminate Glassco's duties with his unit, No . 446. The letter
closes ambiguously as follows: "Due to the above your duties with Superior Truck-
ing Co , Inc. have terminated this date."
Under the agreements between Superior and Gray, the drivers must be satisfactory
to Superior which, exercising the rights thus and by its own rules accorded it, termi-
nated their employment . Yet in an attempt to exonerate itself and avoid blame and
liability while dissembling the true relationship between them , Superior declared
that the decision was Gray's. As for Gray, his agreement to permit Superior to
make such determination , however discriminatory , does not absolve him from
liability; and he is responsible for his acquiescence in the action taken . If he is "a
victim of circumstances ," they were of his own creation.
Before finding the reason for the discharges , we must consider the issue of company
knowledge of union or other concerted activities . There is no direct evidence that
Superior knew that between February 1 and 11 Neal signed a union card , got three
or four other drivers to sign, and discussed "the question of Union ." These activities
appear to have been conducted largely outside the terminal and during the layoff
period, when neither Glassco nor Neal was working. Whether or not we impute to
Superior knowledge of concerted activities under the small plant rule ( Neal at the
bottom of the list on February 6 was No. 17, Glass on February 12, also at the
bottom, was No. 11 ), the evident absence of valid reason , considered infra, and the
pretext that Gray wanted these men discharged would clamor for the inference
that the discharges were effected because of protected concerted activities . We shall
see that the statements and defense that Gray discharged or compelled the discharge
of these two are false.
But as blood drawn out of the bloodless ( this refers to the delay and difficulty in
obtaining the facts , without personal aspersion ), significant testimony concerning
knowledge and other facts was finally drawn out of Hollyfield. Thus he had heard
that Neal was stirring up trouble with other drivers and that Neal had tried to put
up a picket line; that Neal and Glassco were "agitating" the other drivers to the end
that Glassco would be paid for his layoff period; and he testified that he did not
"completely ignore" such agitation in determination that the two should be discharged.
(At this point Hollyfield forgot the position which he took in the discharge letters
and which Superior has maintained , that the discharges were determined by Gray )
On the other hand, as distinguished from lawful and protected concerted activities
generally, the only reference to knowledge of union activities in this connection is
to be found in the General Counsel's question, "You know that a picket line usually
has some union sponsorship , don't you7" and Hollyfield 's reply, "Ordinarily, yes,
sir." This is scarely sufficient warrant for holding that any interference against
Glassco and Neal was based on discouragement of membership in a labor organiza-
tion . While the remedy is the same, this limitation applies to Gray also even if he
had some knowledge of actual union activity since, as found infra, his liability
descends from Superior 's and he did nothing beyond succumbing to Superior 's deci-
sion without thereafter undertaking remedial measures.
It is unnecessary to determine whether or not Gray later referred to the drivers'
union activities as the reason why Hollyfield had discharged the two. As for Neal's
testimony concerning what Gray told him, such statements may not be construed as
evidence of admissions by or on behalf of Superior (nor may testimony concerning
'If there is any consequence in the fact that the penalty period had not actually
expired , that has not been pointed out
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what was allegedly said by Mrs. Gray, who herself denied the hearsay remark
attributed to her); and Gray's own knowledge of union activities was not attributable
to Superior. Neither did Gray discharge the drivers for such activities, his offense
being that he accepted and went along with Superior's violation without protest and
without assuming the initiative of even attempting to put them to work elsewhere;
as he himself testified, he had no reason to discharge them other than Superior's
request. When he could have protested, he admittedly sent word that Hollyfield get
rid of them if they were not dependable even though they were as good as any
drivers he could have had and he thought that they got a "dirty deal."
It is abundantly clear that the discharge letters were pretextual as were the
attempts at the hearing to justify the discharges from Superior's own point of view
as distinguished from Gray's alleged wishes. Thus in the attempt to explain the
action against Neal on February 12, Hollyfield testified that shortly after Neal left on
February 6, Gray had called and told him that both Neal and Glassco were with him
in Anniston; Hollyfield agreed that Neal might work on the repairs to No. 448; while
he "possibly told" Gray that Neal had walked off, he did not during the intervening
week complain to Gray that Neal was not driving the other truck; and that he had no
reason to discharge Neal on the 12th other than that he had left on the 6th. Despite
all of this, Hollyfield could but claim that Neal was supposed to let him know where
he was going on the 6th and, noting that the first five men on the list must be at the
terminal or on call while all others may leave but must let him know where they are
(we recall that Gray called shortly thereafter, presumably when Neal arrived in
Anniston, and told him that Neal was there). Hollyfield admitted that Neal may
have been No. 17 when he left and that, although he is supposed to, the No. 17 man
does not always let Hollyfield know where he is; thus that this is not in fact a
requirement.
We need not determine whether Hollyfield's relegation of Neal to the bottom of
the list on February 6 was motivated by the latter's concerted activities. We are
concerned with the discharge of February 12. Neal's departure on the earlier date
under the circumstances caused Hollyfield no worry over an absent driver His
whereabouts were known to Hollyfield long before he would have been needed, and
his replacement, Beazley, was available before he was needed. However Hollyfield
attempted to picture the situation, it remains clear that Neal left long before the
truck available to him was dispatched, it being at the bottom of the list, and he was
not obliged to remain. Certainly he was not discharged on February 6; Hollyfield
did not complain to Gray about him; nor did the discharge letter, prepared on
February 12, cite the week-old incident. Of a piece with the patent unreliability of
the testimony that Gray, not Superior, effected these discharges, is the testimony con-
cerning the alleged seasons for the discharges.
Considering Glassco's discharge further, we recall that the discharge letter given
him was ambiguous in its reference to "the above." While Glassco testified that
there had been large variations from the load called for on the driver's slip to the
load actually given him by the shipper, and then that the load given was generally
within a few hundred pounds of that called for on the slip, he did not modify his
earlier statement that, if 50,000 is crossed off and 32,000 written in instead, the
shipper would place a 50,000-pound load on the truck. He did later say that he had
"never had that circumstance before." With the slip given him, he did not think
that he would be given 32,000 pounds. Questions put to him by counsel for Superior
suggest that he had previously, although not on the load immediately before this,
carried 50,000 pounds and been fined therefor.
The burden being on Superior to show violation of its rules, it is not at all clear
that Glassco violated rule 10(c) by refusing to accept a legal load rather than that
he rightfully refused an overload. But if this incident was included in the discharge
letter's reference to "the above," Glassco had already been suspended but not dis-
missed. There is no explanation for any unwillingness by Superior to accept the
earlier action against him and the fact that on February 6 he was neither discharged
nor threatened with further discipline. The penalty for his refusal (whether the
refusal or the penalty was warranted is not here in issue) had been the suspension
which he accepted. (Were it necessary to go further in this connection, it could be
noted that there is no evidence that Glassco would have stood adamant on February 6
in the fact of greater penalty or threat thereof. The penalty was agreed upon as
his acceptance of it suggests that he could still have taken his truck out before he
"accepted" the suspension.)
Continuing in the attempt to understand the discharge letter, it refers to Glassco's
unavailability or Superior's inability to locate him when he rose to fifth place on the
book on February 12. Yet nowhere is it claimed that he was unavailable to accept
SUPERIOR TRUCKING COMPANY, ETC. 945
actual assignment. Glassco testified without contradiction that at the time of the
discharge in the afternoon he was No. 4 on the dispatch book. In fact, Hollyfield
did not know when Glassco's equipment did go out or whether it was not until the
following day. According to Glassco, while the first five on the list are to be at the
terminal for assignment at 7 a.m., the others are obliged to report at 5 p.m. That
there was no problem in this connection may also be inferred from the fact that
Superior's dispatch book, which would show when the equpiment was dispatched,
was not produced.
Insofar as Glassco's discharge letter, like Neal's, appears to rely on Gray's alleged
dissatisfaction or desire to discharge Glassco, we need but consider what is noted
herein with respect to Neal. From the defense that Superior is not Glassco's employer
and the alleged reliance. on Gray's decision to discharge him, it would appear that
as in Neal's case, Superior was merely relying on that decision and "the above"
in Glassco's discharge letter referred to this.
If we accept the burden of interpreting that letter, none of the various possibilities
rings true Considering what occurred on February 6 and 12 and Gray's attitude
toward these drivers, the only new element was their concerted activities; and we
recall that Hollyfield had heard that Neal had attempted to put up a picket line and
that Glassco and Neal were agitating the other drivers, and that Hollyfield did not
"completely ignore" that agitation in determining on the discharges.
Nor should we overlook the fact that the defense offered by Superior and the
alleged reason for these discharges are specifically dependent on Gray's alleged
wishes; the decision is not even claimed to be Superior's. The defense collapses
with the absence of proof that Gray wanted and called for the discharges
The note injected in the discharge letters to the effect that the decision or wish
to discharge was Gray's is a false one. His testimony that he was compelled to let
these drivers go and his earlier statement that after Superior's final complaint he
"had no choice but to let [Glassco] go" supports the finding that Superior had
acted in the first instance. He correctly described the situation when he told his
drivers that, if they could not get along with Superior's dispatcher, neither they nor
he himself would have jobs (Hollyfield had told him that if he did not like Glassco's
layoff he could take his trucks off) and that, if they had any trouble, they should
call him and he would take it up with Superior. Visibly angered at the hearing,
Gray gave vent to an outburst which, whatever else may be said of it, was observably
sincere and truthful. Whether noble in a desire to declare the facts or meanly
irritated by the attempt made to show that he had initiated the discharges, Gray
was reliable in this account. It is clear from his testimony and from his continued
relations with them that he considered these to be competent employees and that
he had not sought their discharge. But he accepted Superior's pressure 2 and did
not continue their employment at Superior or elsewhere. While we recognize Gray's
situation and the handicap which he had assumed in agreeing that his drivers,
whom he could of course terminate, must be satisfactory to Superior, he could no
more exculpate himself by pointing to Superior's pressure on him than he could
were pressure applied by other employees because of concerted activities.
While Deacon Truck Lines, Inc.,3 cited by the General Counsel and noted by
both Respondents, may support the findings herein that Superior is an employer,
the nonowner drivers found to be employees of Deaton "alone" there occupied
a position which does not exist in the instant case. It was there found that, while
multiple owner-drivers could fire their drivers, the latter remained in Deaton's
pool and could be selected by other multiple owner-drivers. Contrariwise that
Gray could remove Glassco and Neal from Superior's employ by removing his
equipment appears not only from the history of the initial employment as described
in the instant case but also from the evidence with respect to his making other
equipment available to Neal and then to Beazley. Nowhere in the record is there
a suggestion that these drivers, employed to use Gray's equipment, could be used
to drive other owners' equipment without clearance by Superior.4 Thus these
drivers are subject to control by either Superior or Gray, or both. Nor, unlike
Deaton, is Gray himself an owner-driver for Superior and therefore in its employ;
so that, again unlike that case, he cannot be found to be a supervisor.
2T do not credit Hollyfield's weak denial that he had previously told Gray that the
latter could pull his truck out if he did not like Glassco's layoff.
3143 NLRB 1372.
4 The testimony here suggests the contrary: Neal had previously driven another owner's
truck for Superior but, as we have seen , was again tested and cleared by Superior before
he began his employment with Gray.
783-133-66-vol. 151-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact that these drivers were hired with knowledge that they were striking
another trucking company does not prove that they would not later be discharged
for concerted activities here. With the need for additional drivers, a refusal to hire
them in the first place would itself have been discriminatory and violative . Neither
need an employer assume that strikers at one place , now without employment, will
themselves engage in organizational activity in another . But in any event, while
considering the hiring after their applications were submitted to Superior with the
information concerning their employment and strike elsewhere , I am compelled
by the proof of discriminatory intent and the crude efforts to dissimulate by casting
the onus on Gray, to find that Glassco and Neal were discharged because of their
concerted activities . The control thus unlawfully exercised by Superior was not
required by Interstate Commerce Commission regulations , by Gray , or by other
nondiscriminatory considerations.
To summarize with respect to causation , neither driver was discharged for any
alleged offense on February 6. Glassco was given a 7-day suspension and was
now accepted and expected back one day before its expiration . In fact , the expecta-
tion became a welcome and then an insistence . As for Neal , there was neither
discharge nor complaint when Beazley was assigned to No. 449 and Hollyfield was
informed that Neal would help repair No. 448.
But for the concerted activities , of which Hollyfield had knowledge , no offense
was committed by these drivers between February 6 and 12, when the discharge
letters were prepared and issued . There is not even a claim that Neal now trans-
gressed. As for Glassco , it does not appear that he was reached on the list and, in
view of the quality of Hollyfield's testimony , one can wonder whether he was even
as high as No. 5 by 11 a .m. as claimed . The argument revolves around Glassco's
whereabouts and availability . Not only was he available , but it does not appear
that he departed from the accepted practice as he not only notified Hollyfield where
he was but actually appeared at the terminal in the early afternoon.
I would not presume to judge the adequacy of any reason which Superior might
have had for discharging these two . But I find that the reasons stated and the
defenses alleged were pretextual . Superior did not consider them poor drivers;
Glassco had not been guilty of any breach or failure to give adequate notice of
his whereabouts ; and Gray had not sought or even wanted their discharge. I find
that Superior was prompted by the knowledge of their concerted activities and
discharged Glassco and Neal in violation of the Act . The claims now made that
the discharges resulted from personal friction are belied by the discharge letters and
the fact that there was no friction at the time of the discharges.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section II, above, occurring in
connection with the operations described in section I, above, have a close, intimate,
and substantial relation to trade, commerce , and traffic among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
IV. THE REMEDY
Having found that the Respondents have engaged in and are engaging in certain
unfair labor practices affecting commerce , I shall recommend that they cease and
desist therefrom , and take certain affirmative action in order to effectuate the policies
of the Act.
It has been found that the discharges were prompted by protected concerted
activities not necessarily connected with membership in a labor organization; this
in violation of Section 8(a) (1) of the Act. I shall therefore , while recommend-
ing dismissal of the allegation of violation of Section 8(a)(3), recommend that the
Respondents cease and desist therefrom and from infringing in any other manner
upon the rights guaranteed in Section 7 of the Act . I shall further recommend
that the Respondents jointly and severally make Glassco and Neal whole for loss
of pay sustained by reason of the interference against them , with interest at 6
percent, computation to be made in the customary manner .5 Pursuant to offers
of reinstatement made at the hearing and the agreement at that time made, back-
pay is cut off as of May 12, 1964, and I shall not recommend reinstatement . I shall
6 The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v.
N L.R B., 311 U . S. 7, F. W Woolworth Company, 90 NLRB 289, 291-294; Isis Plumb-
ing & Heating Co., 138 NLRB 716.
TIMES-WORLD CORPORATION 947
further recommend that the Board order the Respondents to preserve and, upon
request, make available to the Board , payroll and other records to facilitate the
checking of the amount of backpay due.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By discharging Odes Glassco and C. W. Neal because of their protected
concerted activities , thereby interfering with , restraining, and coercing employees
in the rights guaranteed in Section 7 of the Act, the Respondents jointly and
severally have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
2. The aforesaid labor practices are unfair labor practices within the meaning of
Section 2(6) and (7) of the Act.
3. The Respondents have not engaged in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
[Recommended Order omitted from publication.]
Times-World Corporation and Chauffeurs, Teamsters & Helpers
Local Union No . 171, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Petitioner. Case No. 5-IBC-1599. March 22, 1965
DECISION AND ORDER CLARIFYING CERTIFICATION
Pursuant to a stipulation for certification upon consent election,
the Petitioner was certified on May 14, 1964, as the representative
of a unit of truckdrivers, helpers, mailroom employees, and garage
employees, excluding office clericals, guards, and supervisors as
defined in the National Labor Relations Act.
On July 13, 1964, the Petitioner filed a motion for clarification
of the certification, requesting the National Labor Relations Board
to declare that four named individuals classified as foremen or
assistant foremen of the mailroom are properly included in the
unit as nonsupervisory employees. The Employer filed a response
to the Petitioner's motion, contending that the four individuals
in question are supervisors who must be excluded from the bar-
gaining unit.
Upon considering the matter, the Board was of the opinion that
the issues raised by the parties could best be resolved after a
hearing, and it therefore referred the proceeding to the Regional
Director for Region 5 for such purpose. A hearing was there-
after held before Hearing Officer Maurice J. Nelligan. His rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. Following the hearing, the Employer submitted a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
151 NLRB No. 91.