Thomas Cartage, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1970

186 N.L.R.B. 157 (N.L.R.B. 1970)

THOMAS CARTAGE, INC.
Thomas Cartage, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local 577. Cases 16-CA-3828 and
16-RC-5328
October 28, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On June 25, 1970, Trial Examiner Ramey Donovan
issued his Decision in the above-entitled proceedings,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also recommended that other allega-
tions of the complaint be dismissed. The Trial
Examiner also found no merit in certain objections,
filed by the Employer, to the rerun election conducted
on February 19, 1970, and recommended that the
objections be overruled. With respect to the 9
challenged ballots, the Trial Examiner recommended
that 7 of the challenges be overruled and 2 sustained,
and that the former be opened and counted. Thereaf -
ter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel did not file exceptions or a 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 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 and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.
Case 16-RC-5328
While we concur in the Trial Examiner's recommen-
dation that the Employer's Objection 2 be overruled,
we do so on the ground that the evidence adduced by
the Employer failed to show conversations between
union officials and employees after the opening of the
polls or conduct which otherwise constituted interfer-
ence with the election.
The Employer's motion to reopen the hearing to
adduce newly discovered evidence is denied. Howev-
er, in light of the Employer's contention that discrimi-
natee Charlie Miller had secured permanent employ-
ment prior to the rerun election, we shall direct the
Regional Director to open and count only the ballots
157
of Crandall, Slater, Stephens, Crawford, Bradley, and
Moss, and issue a revised tally of the ballots and
appropriate certification. However, if Miller's ballot is
determinative, the Regional Director shall conduct an
investigation or hearing to ascertain the facts and
issue a report thereon.
Case 16-CA-3828
As the parties stipulated that Miller was offered
reinstatement at the same time as the other discrimi-
natees, we shall modify the Trial Examiner's Remedy,
Recommended Order, and Notice accordingly. We
shall leave the extent of Miller's entitlement to
backpay to the compliance stage of the proceedings.
We shall also modify the Trial Examiner's Remedy
by limiting the computation of interest on the
backpay ordered therein to the customary 6 percent.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, as modified below,
and hereby orders that the Respondent, Thomas
Cartage, Inc., Amarillo, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified.
1. Delete the second sentence from paragraph 2(a)
of the Recommended Order and substitute the
following:
"Pay to Charlie A. Miller the wages he lost by
reason of his discharge on December 11, 1969, until
the date of the offer of reinstatement as more fully
described in this Decision under `IThe Remedy,' as
modified."
2. Delete the last substantive paragraph from the
Appendix to the Trial Examiner's Decision and
substitute the following:
"WE WILL pay Charlie A. Miller the wages he
lost from the date of his discharge in December 11,
1969, to the date of our offer of reinstatement in
March 1970."
It is also ordered that the complaint be dismissed
insofar as it alleges violations of the Act not
specifically found herein.
It is further ordered that Case 16-RC-5328 be, and
it hereby is, remanded to the Regional Director for
Region 16 to open and count the ballots of James A.
Crandall, Milton E. Slater, Bobby Glenn Stephens,
Lloyd N. Crawford, Ralph Bradley, and William W.
Moss, and to issue a revised tally of ballots and an
appropriate certification. In the event the ballot of
Charlie A. Miller becomes determinative of the
election, the Regional Director shall conduct an
investigation or hearing to determine his employment
status at the time of the rerun election.
186 NLRB No. 30
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: Upon a charge and
amended charge filed by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 577, herein the Union, on December 11,
and 19, 1969, and January 22, 1970, respectively, the
General Counsel issued a complaint (Case 16-CA-3828) on
January 30, 1969, against Thomas Cartage, Inc., herein the
Company or Respondent. The complaint alleged violations
of Section 8(a)(1) and (3) of the Act. Respondent's answer
denied the commission of the alleged unfair labor practices.
In Case 16-RC-5328, involving the Company and its
employees and the Union, an election had been held on
February 19, 1970.1 Thereafter, the Company, on February
25, 1970, had filed timely objections to the conduct of the
election. On March 20, 1970, the Regional Director for
Region 16, issued a Report on Objections and Challenged
Ballots, order consolidating cases, and notice of hearing.
The instant hearing, held in Amarillo, Texas, on March 25,
1970, therefore, encompassed both the complaint allega-
tions and the objections and challenges in the election.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Texas corporation with its principal
office in Amarillo, Texas. At all times material, Respondent
has been engaged in Oklahoma and in Texas in the business
of an interstate common carrier, maintaining truck
terminals in Dumas and Amarillo, Texas.
In a representative 12 month period, Respondent, in the
course of its trucking operations, derived gross income in
excess of $50,000 for services performed outside the State of
Texas. During the same period, Respondent derived
income in excess of $50,000 from transporting and
delivering, to enterprises within Texas, freight and cargo
which had been purchased and shipped from States of the
United States other than Texas.
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. The Union is a labor
organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In the fall of 1969, the Union was engaged in an
organizational campaign among Respondent's employees;
meetings were held and employees signed union authoriza-
tion cards. The Union filed a petition for certification on
October 23, 1969 and, pursuant to a stipulation for a
consent election, an election was held on November 21,
1969. Respondent filed objections to the election and the
parties thereafter entered into a stipulation providing that
the election be set aside and that a second election be
conducted. This stipulation was executed by the Union on
December 4, 1969 and by Respondent on December 9,
1969. The Regional Director of the Board approved the
stipulation in December 9, 1969. Thereafter, the Board
I An election on November 21, 1969 had been set aside and the second
election was held on February 19, 1970.
2 Prior to becoming dock foreman, Webb, a full-time driver, received
$3.35 per hour. Slater, one of the firemen, estimated that he had averaged
issued a Direction of Second Election.
B. Events During the'. Organizational and Election
Period
Crandall, Crawford, Slater, and Stephens are regular
employees of the Amarillo Fire Department. Their work
schedule as firemen is 24 hours on duty, then 48 hours off
duty, then 24 hours on, and so forth, in a continuous cycle.
Since 1968 they have also worked as regular part-time
employees for Respondent. They worked in pairs which
meant that when two of them were on their fire department
jobs the other two were working for Respondent, and the
latter two, upon returning to fire department duty, would
be replaced by the former two. For Respondent, these men
loaded and unloaded trucks at the company terminal and
they also drove trucks on Respondent's routes. Their pay is
$3 per hour which is less than that received by full-time
drivers.2 They do not receive any fringe benefits such as
paid hospitalization, life insurance, paid vacations, profit
sharing, and six or more paid holidays, which are provided
for full-time employees.
In the latter part of October 1969, Webb, Respondent's
dock foreman, asked Crandall, who impressed us as a
credible witness, while the latter was unloading a box car, if
he had heard anything concerning "this business about the
Union." 3 Crandall replied that he had heard about it but
that he and the other part-time employees considered
themselves not to be involved because they believed that
they were not eligible to vote on the matter. Webb then said
that Thomas, Sr., the president and general manager of
Respondent, had informed him that the part- time men
would "very definitely" be eligible voters since they were
regular part-time employees. Not long after this conversa-
tion, Crandall signed a union authorization card.
Around the first week in November 1969, Thomas, Sr.,
came on the terminal dock and asked Crandall if he had
heard "anything about the union drive that was going on
and the possibility of an election being held." Crandall said
that he had heard about it. During the conversation or
toward the end of it, Thomas said that ". . . I heard that
you fellows went down and signed up in the union last
night...." Crandall replied that it was not true because
two of the part-time men were on duty at the fire
department and there was no way the four part-time men
could have gone down to sign union cards. Thomas had
also said, "I'd like to have you boys vote for the company
" in the election, and he confirmed that the part-time
men would be eligible to vote. Thomas said that the cost of
health and welfare benefits under a union contract would
be "prohibitive" and "that he just couldn't afford it and
that this was something that he just couldn't live with at
all." He went on to tell Crandall that if the Company signed
a union contract, the Union would force it to lay off the
part-time employees. Crandall replied that he was aware of
the possibility and observed that it would be foolish to vote
for anything that "would take away my job." Thomas asked
how the other part-time "felt about it". Crandall said that
he was not sure but he would find out and would let
Thomas know.
about 30 hours per week for Respondent before he was terminated. With
some variations , this is probably representative for the others.
3 Respondent denies that Webb is a supervisor . We will discuss this
aspect at a later point.
THOMAS CARTAGE, INC. 159
After lunch on the same day, Crandall reported to
Thomas, Sr., that he had talked to the other part-time
employees and they felt the same as Crandall, "that it
would be foolish to vote for something that would cost us
our fobs." 4
On the basis of the foregoing conversation with Crandall,
it is a fair inference that Thomas, Sr., had reason to believe,
and did believe, that the part-time employees would vote
against the Union in the coming election on November 21,
1969. Confirmation of the validity of such an inference is
found in the fact that on the day of the election, just prior to
the voting period, Thomas, Sr. approached Crandall on the
terminal dock and said, "Are you boys still with me on
this?" Crandall said "We still felt the same way ... as we
did when he had first spoken to me about it, that it would
be foolish to vote for anything that would cost us our jobs."
Further indication that Thomas, Sr. was confident that the
part-time men would vote against the Union and that the
Union would not win the election is found in Dock
Foreman Webb's testimony. Webb asked Thomas about
Webb's being eligible to vote in the election. Thomas said,
"Well, I've got this election won. I didn't even want to
mention it . I don't want to get involved in trying to get you
classified as a voter." Webb acquiesced, saying, "Well, if
that is the way you feel about it, well, that's the way it is." 5
On November 20, 1969, Thomas, Sr., read a speech to the
employees. The gist of the speech was to convince the
employees not to vote for the Union. The advantageous
fringe benefits provided by the Company were pointed out
and other reasons for not having a union were set forth.
Although, as we shall see , the Company's business had
fallen off, beginning in November, Thomas, on November
20, stated to the employees:
I have received a rumor that if the Union wins the
election , the part-time employees will no longer work
here. I want to state here and now that although the
unions try to eliminate part-time jobs, I can assure the
4 When Crandall said to Thomas that Crandall was aware of the
possibility that the Union , if it won the election , might require the
Company to layoff part-time men, Crandall explained his awareness by
saying that he knew that some Teamster contracts had a clause that would
make it prohibitive for the employer to employ part-time people since the
clause would require the employer to pay time and a half to any employee
who had worked more than 40 hours in the week Crandall testified that
between the time that Webb had spoken to him about the Union and the
time of his conversation with Thomas , he had spoken to the union attorney
about the status of part-time employees. The Union attorney said that in
Texas , a right to work state , it was not necessary for a man to belong to a
union in order to work for an employer with whom the Union had a
contract, he also said that regular part-time employees were different from
casual employees and that the only thing pertinent to the part-time
employees, if the Union came in , was the matter of their seniority, and
that, "if there were to be a reduction in force due to slow work," the part-
time employees would be the first to go; the attorney told Crandall that the
Union would not undertake to negotiate with Thomas a contract provision
requiring payment of time and a half to the part-time firemen for hours
over 40 a week
5 Another aspect of this conversation has some bearing on Webb's
status Although the election was a consent election in which parties agree
on the voting unit , the date of election, and the eligibility of voters,
Respondent apparently made no claim that Webb was an eligible voter and
Webb made no attempt to vote even a challenged ballot The voting unit
included all Respondent 's drivers but excluded supervisors , guards,
professionals , and office clericals Ordinarily , a rank and file employee
does not abstain from voting , unless he is in an excluded category or is
identified with management, simply because his employer tells him, in
effect , that he does not want the employee to vote But this is what
part-time employees their jobs will not be eliminated
because I will not agree to such a condition.
Aside from the fact that the employees were assured that
the Company would not agree with the Union to eliminate
part-time jobs, the overall inipression conveyed was that
part-time jobs were in the Company to stay and that such
jobs would not be eliminated.
During the election on November 21 and before the
ballots were counted, Webb testified that employee Jessup
told him what the final count would be and the names of
the employees who had voted for the Company (against the
Union). About 15 minutes later, Webb went to Thomas, Sr.
and gave him the foregoing information. At that point
Thomas had received or was aware of the official result of
the balloting and when Webb came in with his unofficial
intelligence , Thomas told Webb that the employee or
Jessup had "sure hit it right on the head" and that the
official tally was 14 to 5 for the Union, as predicted by
Jessup. Thomas, Sr. testified to the same effect and he
testified that none of the five alleged discriminatees were
named among the five employees who had voted for the
Company. All those named as voting for the Company were
regular full-time employees.
There had been 19 eligible voters in the election. The
Union received 14 votes and 5 votes were cast against the
Union. Respondent thereafter filed objections to the
conduct of the election. The Regional Director of the Board
investigated the objections and the evidence submitted by
the parties. As a result of the investigation, the parties
entered into a written stipulation providing that the
November 21 election be set aside and that the Regional
Director conduct a new election. The Union executed the
stipulation on December 4, 1969, and the Company signed
on December 9, 1969. The Regional Director's approval of
the stipulation was appended on December 9.6
On December 8, 1969, the Company issued a typewritten
happened in Webb 's case and Webb said , in substance , that Thomas' word
as to Webb's voting was controlling insofar as Webb was concerned
Further, an employer , however confident of how an election may turn out,
does not ordinarily tell an eligible employee not to vote, unless he believes
that the individual is, or most likely is, an ineligible voter Even a voter
whose eligibility might be debatable is ordinarily encouraged to vote at
least a challenged ballot Since Webb was clearly not a guard, professional,
or office clerical, his eligibility , foreclosed by Thomas himself, was
evidently premised on his supervisory status, at least at the time of the
November 21 election; and Webb's ready acquiescence apparently
stemmed from the same relationship Although not determinative, this
vignette of Webb's status with the Company is not to be ignored
6 Although there is no direct evidence on some details of the matter and
although a definitive finding thereon is not essential, we would assume that
upon receipt of Respondent 's objections to the election , the Regional
Director investigated the objections and in the course of the investigation
was in contact with the attorneys for the Union and the Company and
received their evidence and contentions Since it was the responsibility of
the Director to issue a Report on the Objections and recommend
disposition of the objections to the Board , we assume that as a result of his
investigation , he initiated the stipulation whereby the election would be set
aside and a new election held It is doubtful that the Union initiated the
stipulation since the Union had won the election and the stipulation, in
effect, vindicated the Company's objections, and provided that the election
be set aside The possibility exists that Company counsel proposed the
stipulation but we deem it more likely from the posture of the situation,
i e, the filing of objections and the Regional Director 's responsibility to
conduct an investigation, that it was the latter and not the Company that
initiated the proposed stipulation A stipulation , being of its nature
voluntary and consensual, would indicate preliminary contact by the
(Continued)
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bulletin, with the names of Crandall, Crawford, Stephens,
and Slater, stating:
At the end of this pay period, which is December 11,
1969, the above will be layed off permanently.
(Thomas, president)
Crandall was working on the dock unloading freight on
Tuesday, December 9, when Webb approached him. Webb
mentioned something about trucking service to the helium
plant that was being discontinued on Friday.? Crandall
replied that he had heard something about it and said, "I
guess you also know that the firemen won't be working
anymore for Thomas as of Thursday." Webb replied,
"Well, I expected that." Crandall asked him what he meant
by that remark. Webb said, "Well you shouldn't have lied
to Spud8 about how you was going to vote in the last
election ." Crandall said that he did not understand how
anyone knew how he voted and said, "You weren't
standing behind me in the ballot box watching me mark my
ballot, were you?" Webb replied, "Well, I happen to know
how everybody voted." Crandall again challenged this
statement, saying that it was a secret ballot election and no
one "knows for sure" how a person votes. During the
foregoing conversation, another employee, Slater, was
nearby, according to Crandall.9 Slater, in his testimony,
describes the conversation between Webb and Crandall
that he overheard, in substantial corroboration of Crandall.
Webb denies having made the statements attributed to him.
He states that he told the employees that were laid off that
"business was bad, that we were terminating part of our
helium activity, and that we wouldn't need them anymore."
Based upon observation and in all the circumstances, the
Examiner credits Crandall and Slater.10
The part-time employees were terminated as of Decem-
Director or his agent with counsel for the Union and the Company to
ascertain their disposition toward a stipulation as a means of disposing of
the objections. With affirmative or at least no negative response from
counsel , the stipulation would then be sent to the attorneys for execution.
The Union and the union attorney were located in Amarillo. The offices of
the Board and of the Company attorney were in Fort Worth, over 300
miles from Amarillo. The union attorney signed the stipulation on
December 4. Since the stipulation had not yet been signed by the
Company, it is probable that the Union, before unilaterally agreeing that
the election, which it had won, be set aside, had been advised by the
Regional Director that both the Company and the Director would join in
the stipulation as the method of disposing of the objections. Presumably
the agent of the Director had been in contact with the Company's attorney
as well as the Union's attorney.
7 The monthly peak of the Respondent's work for the helium plant had
entailed 2 men about 4 days a month.
8 The employees referred to Thomas, Sr. as "Spud".
9 Slater, Crawford, Stephens, and Crandall, the firemen who were
regular part-time employees of Respondent, had all signed union cards
during the organizing period prior to the November 21 election.
10 An aspect of Webb's testimony that we note is that while Respondent
denies that Webb is a supervisor , the man himself has claimed that he
undertook to tell employees why they were laid off and that "We [the
management or the Company] wouldn't need them anymore." It is
extremely doubtful that any rank-and-file employee would have claimed
and purported to speak in such a manner for the Company.
11 The Union 's initial charge regarding the terminations was filed
December 11, 1969.
12 When the notice of termination was issued on December 8, 1969, it
was foreseeable that such employees would not be eligible voters in the
next election, whether the latter was regarded as impending or only as a
possibility. After approval of the stipulation on December 9, the next step
ber 11, 1969, the end of the weekly payroll period.
According to the December 8 termination notice, aforedes-
cribed, they were "layed off permanently". Meanwhile,
Respondent's objections to the November 21 election
having borne fruit, the Union on December 4 had signed a
stipulation that the election be set aside and that another
election be conducted. Then came the terminations
abovementioned.11 At this second election which was held
on February 19, 1970, the eligible voters were those in the
unit "employed during the payroll period ending immedi-
ately preceding January 28, 1970." The four "permanently"
terminated employees were, predictably, not on the election
eligibility list, and their votes were accordingly
challenged.12 However, a few weeks after the election, four
of the permanently laid off employees, the firemen, were
rehired in about the first week in March 1970, and were so
employed at the time of hearing.13
The fifth employee whom the General Counsel alleges
was discriminatorily terminated is Miller. Miller com-
menced work for Respondent in October 1969, and he
worked on the terminal dock and drove an in-town truck.
In our opinion Miller was basically a truthful witness and
we credit his testimony. During the union organizational
campaign, while at work, Webb brought up the union
subject with Miller. Miller told Webb that he did not know
what to do because his father-in-law disliked the Teamsters
Union and Miller's wife "had expressed her father's dislike
for the Teamster's Union." But Miller's own father was in
favor of the Union. Miller said, however, that nobody
would know how he voted. Eventually, Miller apparently
reached a decision on the union matter and he attended
union meetings and signed a union card. On one occasion,
evidently in November 1969, Webb walked into the truck
that Miller was loading and asked him if he had been to the
union meeting. Miller said yes. Webb then asked if the
was for the Regional Director to prepare and issue a Report on Objections.
This was done, with the Report describing the objections and the
stipulation and recommending that a second election be directed pursuant
to the stipulation . The Report was dated December 18 and was sent to the
Board in Washington, D.C., as required under the terms and rules
applicable to the election procedure. Again, predictably , it would take
some period of time for the Board to act thereon . The Board issued its
Direction of Second Election on January 7, 1970 and, again predictably, as
was customary, those declared eligible to vote were the unit employees
"employed during the payroll period immediately preceeding the date of
issuance of the Notice of Second Election by the Regional Director +,,."
The matter then returned to the Regional Director for the issuance of
Notice of Second Election. The notice issued on January 28, 1970.
13 Less than a week after the February 19 election, Respondent wrote to
the four terminated part-time employees , on February 25, stating that "Our
business has now increased to the extent that we have need once again for
a part-time employee. In the event you desire re-employment on a part-
time basis , please contact me before March 5, 1970..,.', (signed, Thomas,
president).
On January 17, 1970, Respondent hired a new employee , Bradley, and
on January 16, 1970, another new employee, Moss, was hired . Bradley and
Moss started work on January 26. These were full time employees. Bradley
works out of the Amarillo terminal and Moss works out of Dumas.
Thomas, Sr . testified that Bradley was hired because business had begun to
pick up and he needed someone (additional ) who would be there "everyday
on the job." Also, apparently by way of explanation, Thomas stated that
employee Watley had quit on November 20 or 21, 1969. As to Moss, at
Dumas, the net explanation came down to the fact that with reassignment
of a larger tractor it was economically advantageous and there was enough
work to merit hiring an additional employee. The ballots of both Bradley
and Moss were challenged by the Union in the second election.
THOMAS CARTAGE, INC.
"red-headed lawyer" was there. Miller replied that he had
not seen such a person.
Shortly after the November 21, 1969 election, Miller was
working in the forepart of a truck. Webb and another
employee, Gatlin, were farther back in the same truck. In
an audible voice, heard by Miller, Webb said to Gatlin,
"Charlie Miller voted for the Union because he can always
get a job at a filling station for a dollar an hour." At this
point Webb addressed himself directly to Miller, saying
that he knew Miller had voted for the Union "because the
vote was 14 to 5" and Webb said he knew "the five that
voted for the Company." 14
Later, Miller had learned that the four firemen had been
terminated. Since the notice of termination was dated
December 8, it was evidently between December 8 and 11
that Miller became aware of what had occurred. That
evening, as Miller was working, Webb said to Miller that he
would have to go down to the office and tell Thomas, Sr.
that Miller did not have enough seniority to work there and
"for him to get rid of [Miller]." Miller received a notice of
termination on or shortly before December 11, 1969 which
stated , "Charles Miller-At the end of this pay period,
which is 12/11/69, the above will be layed off permanent-
ly", Thomas, Jr., operations manager.15 Apparently
Thomas, Jr. had orally informed Miller that his "services
would no longer be needed." The written notice was in
response to Miller's request for something in writing.
Webb testified that on one occasion Miller had told him
that he did not know how to vote because his step-father or
father-in-law or father was a good friend of Mr. Thomas.
Webb states that he advised Miller to ask the Union and the
union lawyer. Respondent's counsel called Webb' s atten-
tion to testimony by Miller that Webb had told Gatlin that
Webb "knew that Miller had voted for the Union and that
apparently he [Miller] didn't care about his job because he
could get a job working at a filling station ... '; and
counsel then asked Webb, "... did you ever make a
statement such as that?" Webb never answered the question
directly and did not controvert Miller's testimony regarding
the incident. In fact, Webb's testimony tends to confirm
Miller. The extent of Webb's answer was that it was a "kind
of running joke down there, that service station deal" and
Miller, in the past, had said, "I can always go to work at a
service station for a dollar an hour."
According to Webb, he first learned that Miller was to be
terminated on the "evening that all five of them was laid off
[the four firemen and Miller]" when Miller stated "that he
had been laid off too." Webb states that it had been his
"impression that he [Miller] was going to be retained
because he was there everyday", working.16 After his
termination , Miller was not recalled.
CONCLUSIONS
a. The status of Webb
The General Counsel contends that Webb is a supervisor
14 This is consistent with Webb's and Thomas' testimony, earlier
described, that they knew the names of the five who had voted for the
Company against the union and these five did not include any of the five
alleged discrimmatees
15 Thomas, Jr was the son of the president
161
of the Respondent. Respondent denies that Webb is a
supervisor. In our opinion Webb was a supervisor, albeit a
minor supervisor; further, in all the circumstances, we
believe that Webb in his employment was identified with
management factually and in the eyes of other employees.
At the hearing, when asked "what is your job at Thomas
Cartage?", Webb replied, "dock foreman." Additionally,
the various employee witnesses testified that Webb was the
dock foreman or their dock foreman. Thomas Jr.,
operations manager and dispatcher of Respondent, testified
that Webb was called the dock foreman and "he works out
there on the dock." Although there is no physical
description of the premises in the record, we believe that the
reference to Webb's working "out there" on the dock
indicates a physically distinct area from the office where
Thomas Senior and Junior and office people have their
offices. This is confirmed by various other testimony such
as Webb's statement to Miller on the dock that Webb was
going "down to the office" to tell Thomas to get rid of
Miller; Crandall's testimony that from time to time Webb
leaves the dock and goes "to the lower office ... the
general office," and that many times, when Crandall
reported for work, Thomas Jr. would tell him "to go up on
the dock and help Junior" 17; and when the employee
reported to Webb the latter would assign work to him on
the dock.
The title "dock foreman" and the fact that the dock area
was physically separate and not on the same level as the
general office where the two Thomases, the only two
admitted supervisors of Respondent, held forth, are not in
themselves deternunative factors. However, we are of the
opinion that Respondent did not contemplate that the
dock, with its tasks of loading and unloading trucks in
proper order, the question of priorities in the trucks, proper
methods of stacking cargo, and the matter of which
employee should do what and who should assist whom,
should operate without proximate supervision and be left to
the inclinations of employees with their varying degrees of
experience and capability. Rather, we believe that Webb
was designated dock foreman to supervise the daily
operation of the dock and the employees working thereon.
Other evidence confirms that such was the fact.
Webb had been dock foreman since September 1, 1969.
Prior to that he had been a driver for Respondent and
before that he had been dock foreman. The vice president
of the Company also manages the Company's Dumas
terminal . He is the brother of Thomas Sr., president of the
Company, and is married to Webb's sister. As a driver,
Webb had received $3.35 per hour, with no guarantee as to
the number of hours. As dock foreman he is paid $4 per
hour and is guaranteed 50 hours per week.
Although there is some testimony that, as dock foreman,
Webb occasionally will help out by driving a truck, he
spends practically all his time on the dock.18 Thomas Sr.
testified that Webb "stays on the dock." According to
Thomas, there is a different loading pattern for the trucks
every day and Thomas Jr., at the beginning of the day,
16 Although a part-time employee, Miller apparently worked every day
11 Everyone addressed Webb as "Junior" and Thomas Sr as "Spud"
and Thomas, Jr as "Tommie "
11 Webb may drive if someone is ill or if there is an emergency
situation
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepares a schedule and furnishes a copy to Webb. The
schedule designates particular trailers , what freight is to be
loaded on them, and the drivers. Webb sees to it that the
trailers are loaded properly and that the employees "are
informed as to what trailers are loading for what
destinations ," and that the proper freight goes on the
proper trailers. In addition to seeing to it that the other
employees load and unload their trailers properly, Webb
assists manually in loading and unloading.
In the course of the working day, an employee may ask
Webb for time off or for permission to leave early. Webb
may refer the man to Thomas but, if the Thomases are not
present, Webb has given various employees the requested
time off. Stephens described an occasion when he brought
his truck back to the terminal. Thomas Jr. was standing at
the point where Stephens came in and he told Stephens "to
go help on the dock." As Stephens started to comply,
Webb, who was also standing there, told Stephens that he
could go home. Stephens then went and signed his timecard
and went home. Both Thomas Jr. and Webb testified that
the foregoing occurred and that each was aware of what the
other had said.19 Roberts, who has worked for Respondent
about 10 years, testified that in the morning he customarily
drives a pickup truck. He returns to the dock around 11:30
a.m. and then works on the dock until Webb decides at
what point Roberts should go and eat, so that the truck will
be loaded when Roberts returns and thus enable Roberts to
leave on his next run. Some of the men do not return from
their runs until 6:30 or 7 p.m. As far as appears, Webb is the
only person in authority still present at the terminal at such
time or after 5 p.m. Webb is customarily the last man to
leave the terminal.
Webb does not have authority to hire or to discharge
employees. It is our opinion, however, that it is a fair
inference that, if an employee consistently did not follow
Webb's assignments and directions in loading and
unloading trucks or demonstrated consistent palpable
incompetence in such tasks, Webb would probably report
the situation to his superiors and he would probably express
an opinion or recommendation regarding the employee to
his superiors. The latter, we would assume, would either act
on the basis of such a report and recommendation or
would, at least, investigate the matter.20
Apparently to demonstrate that a dock foreman did not
possess authority to make effective recommendations
regarding employees, Respondent elicited testimony from
Webb regarding an incident in which Sanders, the
predecessor dock foreman, was involved. According to
Webb, there was an employee who would not follow some
19 No explanation of this occurrence was offered and Thomas did not
criticize Webb for his action. It illustrates , we believe , that, while Thomas
had overall supervision and made basic assignments , Webb was closer to
the actual requirements of work on the dock and made determinations and
decisions within that periphery . Webb apparently knew on the particular
occasion described by Stephens that he did not need an added man on the
dock and he made the determination to allow Stephens to leave.
Presumably, if Webb had felt that Stephens was needed, he would have
made the determination as to which particular task on the dock he would
assign Stephens . It is not uncommon for Thomas to turn an employee over
to Webb by telling the employee to go up on the dock to help Webb. When
the employee arrives on the dock , Webb , in his discretion , assigns the
employee to this or that task in whatever order he, Webb, determines.
20 Webb testified that there was one man, unidentified , whom he did
not consider to be a good worker. Webb states that he told Thomas that
direction or rule of Sanders' one evening, "of an evening,"
as Webb phrased it. The employee, "He just wanted to park
his truck and go home, and they [Sanders and the
employee] got into a discussion over that.121 Sanders,
however, told Webb that he had recommended the
discharge of the man and Webb testified that the man was
not discharged but is still working for the Company.
Thomas, Sr. testified that Sanders had recommended
discharge of the employee. Thomas told Sanders that he
would investigate the matter and Thomas did so. As a result
of the investigation Thomas did not discharge the
employee. What the investigation revealed we do not know.
Perhaps Sanders' recommendation was clearly unjustified
and an exercise of personal pique. Perhaps it was not. After
investigation, Thomas did not agree to follow the
recommendation. Perhaps he would have done so on
slightly different facts or less extenuating circumstances.
The fact is that Thomas did investigate the matter. The
authority to recommend disciplinary action or even to
effectively recommend such action is not negated because,
on one occasion, the facts of which are obscure, the
president does not follow the recommendation of his dock
foreman. Thomas did investigate the matter because of
Sanders' recommendation. It is doubtful that a rank-and-
file employee would have undertaken to make such a
recommendation, that Thomas would have countenanced a
rank-and-file employee recommending discharge of anoth-
er employee because the latter refused to do what the
former had told him to do, or that Thomas would have
investigated the situation in such circumstances.
On all the evidence we affirm our previously stated
conclusion that Webb was a supervisor and identified with
management.
b. The discharges
It is Respondent's position that the five discharges on
December 11, 1969 were due to economic reasons, namely,
a substantial fall off in business in the last 2 months of 1969.
Thomas Sr. testified that there was "just a general decline in
the freight traffic." He stated that every year "October is
almost always a good month" but normally, each year,
business decreases in November "and then [decreases ] a
little more so in December." Roberts testified that in his 10
years with the Company there was a "slack period every
year," starting in November and continuing through the
first of the year. Respondent submitted financial data to
support its contention that the December 1969 terminations
were for business reasons. One exhibit shows monthly gross
the particular individual "wasn 't a freight man and never would be."
According to Webb, this man was later laid off. Respondent's counsel then
asked Webb, "Did the man continue to work after you told Mr. Thomas
that? A. Yes, sir." Apparently, therefore, nothing happened to the man
immediately . Perhaps Thomas had completely disregarded what Webb had
told him; perhaps he was not interested in the competency of employees;
or perhaps an opposite conclusion is warranted . The episode is
inconclusive.
21 What the circumstances were , why the man wanted to go home,
whether it was late at night or how long the man had been on the road, we
do not know . We do not know why or how important it was that the man
not go home. Nor do we know, actually, whether the employee did in fact
go home or whether he simply gave Sanders an argument ("they got into a
discussion over that").
THOMAS CARTAGE, INC.
revenue for each month in 1968 and 1969 and in January
and February 1970. Revenue in November 1969 was
$35,294, and it declined by about $2,000 to $33,258 in
December 1969, when the part-time employees were
terminated. The December 1969 revenue of $33,258 was
higher than the revenue in any month in 1968 and the
figures for November and December, 1968, when the part
time employees were not laid off, were $27,058 and $25,799,
respectively. The decrease in revenue from October 1968,
$30,926, to November 1968, $27,058, was about $3,800, and
December 1968, $25,799, was over $5,000 below October
1968. In 1968, November showed $27,058 which was lower
than the $35,294 in November 1969. In both years,
December was lower than November but revenue in
December 1969 was about $7,500 higher than December
1968. The upward turn in January after low Novembers
and Decembers was about the same. From December 1968
to January 1969, revenue increased about $3,000. From
December 1969 to January 1970, the increase was about
$3,200. October 1969 at $45,930 was the second highest
month of the year, being only about $800 less than the
highest month and the drop from October to November
was substantial. However, November 1969 was still higher
than any month in 1968 and higher than the first 3 months
of 1969. There were only 6 months in 1969 when revenue
was higher than in November 1969 (April and November
1969 were approximately the same). Revenue in February
and March 1969 had been $26,923 and $25,038, respective-
ly, as compared with $35,294 and $33,258 in November and
December 1969. Revenue for the entire first quarter of 1969
totaled $83,751 or an average of about $27,900 per month,
January through March. The last quarter of 1969 showed
total revenue of $114,482 or an average of about $38,000
per month, October through December.
We have been discussing Respondent's gross or total
revenue since that is what Thomas testified about in
explaining the Company's decline in business in November
and December 1969 as the reason for the December
terminations.22
Although Thomas did not discuss it in his testimony,
Respondent introduced into evidence the financial reports
that the Company filed with the Interstate Commerce
Commission for 1968 and 1969. These reports show
operating revenues, expenses, and net operating revenue.
Since Thomas testified that he had concluded in November
1969 that he should "reduce our expenses and our main
expense is payroll," we have examined the aforementioned
ICC reports. Under "Expenses", there are separate figures
for the following: Equipment Maintenance; Transporta-
tion; Terminal; Traffic; Insurance and safety; Administra-
tive and general. We are unable to determine under what
heading or headings the payroll of unit employees was
allocated. It was probably under several headings in various
proportions, but we are unable to assess whether it was, or
had become, disproportionate or otherwise. We do know
that all expenses except "Traffic" had increased substan-
tially when compared with the corresponding quarter in
1968. Total revenues for the last quarter in 1969 and 1968
22 Respondent's Exhibit 2 consists entirely of total gross revenue per
month in 1968, 1969, and January and February 1970
23 Miller, the other part time employee, was paid $2 per hour
163
were, respectively, $116,296 and $84,118; total expenses
were $104,524 and $72,193; net operating revenue was $39
and $2,932. But in terms of net operating revenue, the first
quarter of 1969 was far worse. The Company's net
operating revenue was $6,840 in the red in the first quarter
1969 as compared to $2,319 in the black in 1968. The
problem in the first quarter was again, apparently,
expenses. First quarter revenue in 1969 was $84,235 and for
1968 it was $83,013; but expenses were $91,075 and
$80,694, respectively.
We are not persuaded on the evidence presented, and in
view of the fact that in prior years and in other periods
when gross business or net income was low and had
decreased and was substantially worse than in November
and December 1969, that Respondent, for the first time,
was compelled by logic and economics to terminate part-
time employees in December 1969, when in prior periods it
had simply reduced working hours among its employees to
balance a business decline. We do not believe that the
evidence shows the November-December 1969 business
situation to have been unique in Respondent's operations.
In eliminating the part time employees as a cost cutting
measure, Respondent was eliminating the least expensive
part of his payroll. Respondent had presumably hired the
firemen and Miller originally because it was a sound
business move. As city firemen, the men, who were also
young, were in good physical condition; their educational
background and intelligence quotient was probably as good
as or better than that of other actual or potential
employees; they performed dock work and driving as did
the other employees; they were reliable and had roots in the
community; and they worked for $3 per hour which was
less than, for instance, the $3.35 per hour received by the
one witness who testified as to what he received as a full-
time employee.23 Further, the Respondent did not provide
paid hospitalization, insurance, vacation, paid holidays,
and profit sharing to the part-time employees but did
provide these benefits for its full-time employees.
Respondent endeavored to elicit testimony that the full-
time employees resented and complained about the part-
time employees. Thus, employee Roberts, a full-time
employee, was asked:
Q. Mr. Roberts, isn't it true that prior to the Union
activity the full-time employees used to complain to Mr.
Thomas about part-time employees working because it
cut down on their time, particularly during the slack
season? 24
Roberts said that he was unaware of such complaints. He
said, in fact, "It meant more benefits to us to have the part-
time help there." The reason for this point of view,
according to Roberts, was that the part-time men, while
they generated profits for the Company, from which the
Company paid fringe benefits such as profit sharing and
other items to the full-time employees, did not share in such
fringe benefits themselves. In short, the part timers' work
increased the kitty and the full-time employees drew
24 There is no testimony by Thomas that he had received such
complaints
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remuneration from work that someone else had
performed.25
We now return to the December 1969 terminations. We
have examined Respondent's business picture and we will
consider some further testimony offered by Respondent.
Thomas testified that about the middle of November, 1969,
he first detected that his business in November and
December "was going to be drastically reduced as
compared to last year." He then contacted attorney Parker
and told him that he needed to reduce expenses and that
payroll was the main expense. Thomas had in mind and he
told Parker that he contemplated dealing with the
aforementioned matter, reducing payroll expenses, by
reducing the working hours of all employees, full-time and
part-time , as he had "done in previous years" during slack
periods. Thomas states that Parker then suggested that all
the part-time employees be laid off instead of reducing the
hours of all employees. Parker assertedly gave as a reason
for the foregoing the fact all the part-time employees except
Miller, who was in college, had other full time jobs and
could support their families, whereas the full-time employ-
ees, if their hours were reduced, might find the situation to
be "quite a hardship." Thomas testified that Parker further
advised Thomas "not to do anything" until after the
November 21 election. Thomas states that since the
Company was already losing money, he decided to "do it
for another week [continue to lose money for another
week ]" because another week "wouldn't amount to much"
The election was then held on November 21, with 14 votes
cast for the Union and 5 against. Respondent filed
objections to the election on November 28, 1969. The
Union, on December 4, 1969, signed a stipulation providing
that the election be set aside and a new election held.
Thomas testified that after his conversation with Parker
on November 15, 1969, about the need to reduce expenses,
described above, the next time the two men discussed the
matter was "along the first part of December." Attorney
Parker then asked, "Does December the 4th ring a bell?"
and Thomas said "yes" that was the date of the
conversation. At that time, Thomas states, "we decided to
lay off all of the part time employees." Thomas testified
that he told Parker that the freight business was down and
that he could not foresee any upturn that would require any
later rehiring. A notice of permanent layoff of the part-time
employees issued on December 8, to be effective as of the
end of the payroll of December 11.
As we consider the foregoing testimony of Thomas, we
view it in the following light. Company business had
declined from October to November 1969. A decline at
such a period was customary and had taken place in the
preceding years since the last 2 months of the year were the
traditional slack period. In 1969, October gross business
had been very high, $45,930, as compared to.$30,926 in
October 1968. The decline from October to November 1969
was substantial, but the reduced business in November
1969, of $35,294, was still considerably higher than the
November 1968 figure of $27,058 and higher than several
other months in 1969. In both 1968 and 1969, December
was a poorer month than November and the upturn from
December 1969 to January 1970 of about $3,200 was about
the same as the approximately $3,000 upturn from
December 1968 to January 1969. Thomas, therefore, in
November 1969, did not have an unprecedented type of
business situation on hand. As in other years when faced
with the slack period, Thomas turned his mind to reducing
payroll expense. And the way he had successfully reduced
payroll expense in prior years during such periods was to
reduce the hours of all employees, both the full-time and
part-time men. This method not only was a proved means
of meeting the Company's need to reduce expenses, but it
had not given rise to protest or resentment among the
employees.
It was not surprising therefore that Thomas, on
November 15, contemplated reducing the hours of all its
employees and did not contemplate making any layoffs.
Further, we have seen that Thomas was concerned about
the impending election . About November 5 he had spoken
to Crandall about the Union and had indicated that if the
Union won the election it would compel the Company to
lay off the part-time employees. The implication was clear
that if the Union was not successful, the part-time men
would not be laid off. Crandall assured Thomas that he and
the other part-time men felt that it would be foolish to vote
for anything that would take away their jobs. We believe
that from about the time of the foregoing and until
November 21, Thomas confidently believed that the part-
time firemen would vote against the Union. He was
confident of the outcome of the election and told Webb, his
dock foreman, not to bother to vote because "I've [I,
Thomas ] got this election won." On the day of the election,
prior to the voting, Thomas checked with Crandall and
said, "Are you boys still with me on this?" Crandall
answered affirmatively.
It is our opinion that on November 15 and through
November 21, Thomas had not contemplated and had
made no decision to permanently lay off the part-time
employees. There were several reasons why this was so. The
part-time employees had never been laid off before during
the annual slack period and neither in the past nor in 1969
was it necessary to lay off part-time employees in order to
reduce payroll. Payroll expense had been, and could be,
reduced as effectively by decreasing all working hours as by
layoffs. Secondly, in our opinion, the evidence is clear that
Thomas did not want the Union to win the election; and it
is equally clear that before the election Thomas endeavored
to win and thought he had won the votes of the part-time
firemen against the Union; he, therefore, was not going to
make the firemen ineligible to vote by laying them off
permanently, i.e. terminating them before the election.
Thirdly, in a written speech addressed to all employees on
November 20, 1969, Thomas put himself on record as
follows:
I have received a rumor that if the union wins the
election, the part time employees will no longer work
here. I want to state here and now that although the
unions try to eliminate part time jobs, I can assure the
25 Respondent asked dock foreman Webb substantially the same time men after they were rehired in March 1970 . They were working less
question as had been put to Roberts about complaints concerning the part - hours than before their terminations and Webb states "they don't like it."
time employees . The only complaint Webb had heard was from the part-
THOMAS CARTAGE, INC. 165
part time employees their jobs will not be eliminated
because I will not agree to such condition.26
Fourthly, Thomas testified that when, on November 15,
Parker allegedly suggested that the part-time employees be
laid off "after the election," he Thomas, said that although
he was "already losing money," he would, in effect, keep
the part-timers "for another week" (November 15 to
November 21), until after the election as Parker suggested.
Despite the purported critical situation and the implication
that even retaining the part-timers until November 21 was
an effort, the notice of termination did not issue until
December 8 and the terminations were on December 11,
almost 4 weeks after the alleged termination advice by
Parker on November 15. Fifthly, on November 15, when
Parker allegedly suggested terminations instead of a
reduction in hours, the implication of Thomas' testimony is
that the reason given by Parker why there should be
terminations instead of a reduction in hours was novel and
impressive to Thomas. The reason advanced by Parker was
that the part-time firemen had other jobs and therefore
their terminations would not affect them very much,
whereas if Thomas simply reduced the hours of its part-
time and full-time employees, the latter would be affected.
In our opinion, it is clear that at the time he hired the
firemen, Thomas knew that they had full-time jobs and that
the hours they worked for him were hours that would
otherwise have gone to the full-time employees or even to
additional full-time employees who needed a job. Thomas
hired the part time firemen because it was good business.
As we have shown, they worked for $3 an hour and entailed
no expense to Thomas for fringe benefits such as
hospitalization, profit sharing, paid vacations, paid holi-
days, and insurance. And in prior years, when business was
down, although Thomas knew that the part-time men had
other jobs, he reduced the hours of all employees although
he also knew that his full-time employees did not have other
jobs. He therefore, admittedly, contemplated taking the
same action when he spoke to Parker on November 15. In
our opinion, Thomas, who owned and headed his company,
probably knew more about how to reduce payroll expenses
and deal with a business slack than anyone else. We believe
that he consulted Parker, a prominent labor law attorney,
on November 15, primarily because there was an impend-
ing Board election and Thomas prudently believed that any
management move affecting employees before an election
should not be taken without expert legal counsel. As in the
past, Thomas contemplated making a reduction in the
hours of all employees to reduce payroll expense and he
was consulting Parker regarding the legal aspects of such a
move at that time. From the business standpoint, in which
Thomas was preeminently qualified in his own business, he
had contemplated the reduction in hours as the best
method for reducing payroll. We believe that Parker, in
substance, advised that no step affecting employees' pay or
26 Our appraisal of Thomas as a witness was that he was not such a
person, who, on November 20, made this statement although he already
had decided that he was going to permanently terminate all part-time
employees as soon as the election was over regardless of the outcome. We
believe that Thomas did not contemplate a layoff or termination when he
made the speech.
21 We have set forth additional reasons for this conclusion at an earlier
point.
status be taken until after the election . If Parker also made
a suggestion that an alternative to hours reduction was a
layoff, he was not telling Thomas anything Thomas did not
know. The method of reducing business costs before an
election by reducing hours entailed no particular labor law
aspect at that juncture. The important labor law aspect was
to take no action affecting the employees just before the
election. We believe that Parker advised Thomas along
such lines. It is our opinion that Thomas did not make a
decision on November 15 to terminate the part-time
employees 27 but that the gist of Parker's advice was to
make no move regarding employees in reducing payroll
costs before the election.
As we have seen , Respondent, on the eve of the
November 21 election, had considerable confidence that
the outcome would be adverse to the Union. Included as a
source of such confidence was the not unreasonable belief
that the part-time firemen28 would vote against the Union
because they had indicated awareness of what Thomas had
told them, to wit, the Union would require the elimination
of part-time help, and the firemen had indicated that they
were not prepared to vote for something that would cost
them their jobs. However, the vote in the election was 14 for
the Union and 5 against.
We do not know if anyone knew who the five employees
were who voted against the Union or, "for the Company,"
as the "no" vote against the Union was colloquially
described. We are satisfied, however, that Dock Foreman
Webb believed that his informant, who had accurately
predicted the numerical count in the election before the
ballots were tallied, knew not only the number of men who
had voted against the Union but knew their identity, which
he revealed to Webb. The latter was so impressed by the
information that he had received that he promptly relayed
it to Thomas on November 21. Thomas was equally
impressed since the official tally did jibe with Webb's
pretally information. None of the five employees named to
Webb and Thomas as having voted for the Company and
against the Union included the names of the part-time
employees. It would therefore require little reflection to
conclude that the part-time employees and others had
voted for the Union.
Thereafter, Respondent filed objections to the election.
The purpose and the objective of election objections is to
have the election set aside and have a rerun election. The
objections achieved their objective or were well on their
way to fruition, when, on December 4, the Union signed a
stipulation agreeing that the election be set aside and a
rerun be held.29 There is no indication in the record that the
Union or the Company had any reason to believe that if
conditions remained the same and if a rerun election was
held among the same electorate as that of November 21, the
result of the second election would be different from that in
the first election. On December 8, however, the part-time
28 Full-time firemen who worked part time for Respondent.
29 Thomas testified that in "the first part of December" he conferred
with his attorney and they decided to lay off the part-time employees. His
attorney then asked, "Does December the 4th ring a bell?" Thomas said
yes, it was on December 4 that they made the decision . Exactly why
December 4 rang a bell the witness did not say. Respondent signed the
stipulation for a rerun election on December 9 and the Regional Director
approved the stipulation on that date.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees were notified of their "permanent" layoff,
effective December 11. This permanent layoff was, in
effect, a termination and as such would make the part-time
employees ineligible to vote in the rerun or a potential rerun
election.
Although Respondent, as in the past, could have reduced
its payroll costs as effectively by reducing all working hours
as by terminating part-time employees, it chose the latter
course in 1969 for the first time. Respondent could have
reduced the hours of all employees by the same percentage
or it could have made a proportionately heavier reduction
in the hours of part-time employees as compared to full-
time employees. If for some business reasons, not readily
apparent, Respondent was convinced that there had to be a
layoff of part-time employees and not a reduction of hours,
it could have laid off the part-timers with the rather normal
understanding that they would be recalled if, and when,
business picked up. Business slackened every year in
November and December and thereafter began to improve.
The year 1969 was no exception. From December 1968 to
January 1969, the improvement in business was about
$3,000; from December 1969 to January 1970, the
improvement was $3,200.30 However, if the part-time
employees were simply temporarily laid off as we have
described, they would have been eligible voters in the rerun
election. This possibility was eliminated, therefore, by
telling the part timers that they were "permanently layed
off" (sic).
Respondent, in its brief, states that by laying off the part-
time employees, the employer simply did what Crandall
had been told by the union attorney would happen under a
union contract. There was of course no union contract at
the time of the layoff. Also, Thomas had assured the
employees in a November 20 speech, in an appeal to reject
the Union, that "I can assure the part-time employees their
jobs will not be eliminated because I will not agree to such a
[union] condition." Moreover, the union attorney had told
Crandall that "if there were to be a reduction in force due to
slow work," the part-time employees would be laid off first
but would be recalled when work picked up. This would be
a temporary, not a permanent layoff. As we see it, Crandall
evidently believed and, correctly from past history, that
since Respondent had always reduced hours when work
was slow and had not had a reduction in force, the
condition for the layoff of part-timers would not exist. It
was only "if there were to be a reduction in force" that the
layoff would occur under the union. There was no
indication that if work was slow, the Union would require a
reduction in force rather than a reduction in hours. And as
we pointed out, Thomas said that there would be no layoff
of part-time help, regardless of rumors as to what the union
might demand.
Upon all the evidence, including Respondent's business
statistics and evidence of the circumstances preceding the
terminations, and the remarks of Webb to Crandall that
.. you shouldn't have lied to Spud [Thomas] about how
you was going to vote" and Webb's remark that "Charlie
Miller voted for the Union because he can always get a job
in a filling station for a dollar an hour ," the Examiner finds
that the five part-time employees were terminated on
December 11, 1969, because of their union or suspected
union activity. We believe that Respondent believed that
these employees had voted for the Union in the November
21 election and that it terminated them in order to eliminate
their prounion votes in the prospective rerun election.
Absent the union situation, we believe that the part-time
employees would not have been terminated but that
working hours would have been reduced, as in the past, in
order to deal with the business decline; or, if there was a
layoff, it would have been temporary in nature and not
"permanent." Accordingly, we find the permanent layoff or
terminations of Crandall, Crawford, Miller, Slater, and
Stephens on December 11, 1969 to have constituted
violations of Section 8(aX3) and (1) of the Act.
The Section 8(a)(1) Conduct
In our opinion, the conversation between Webb and
Miller around October 1969, in which the former asked if
Miller had "heard anything about this business about the
Union" and Miller said he had heard about it but that he
and other part-time employees considered themselves
ineligible to vote; and Webb assured him that as a regular
part-time employee he was eligible to vote, was not illegal
under Section 8(a)(1). The initial inquiry and what
followed, in our opinion, was of a very tenuous inquisitorial
nature and was not coercive overall.
The conversation between Thomas and Crandall on
November 5, 1969, described earlier in our decision, does,
in our opinion, contain some illegal aspects. Among such
aspects was the statement by Thomas that he had heard
that "You fellows went down and signed up in the union
last night." In context and in the circumstances this, in our
view, was, in effect, accusatory and an interrogation as to
whether Crandall and the other firemen had in fact signed
up in the Union. We are also of the opinion that Thomas'
question, after Crandall expressed his own views regarding
voting for or against the Union, as to "how some of the
other boys felt about it [the union]," constituted illegal
interrogation in violation of Section 8(a)(1) of the Act.
It is alleged that Thomas, on November 5, 1969,
threatened to discharge employees if a majority voted for
the Union. The evidence, described previously, is that
Thomas, in substance, told Crandall that if the Company
was obliged to sign a contract with the Union, the Union
would force the Company to terminate part-time employees
by reason of certain union contract provisions. Crandall
was aware of such provisions in union contracts and said
so. Later, in a speech to all employees, Thomas said the
Company would not agree to any union demand for the
termination of part-time employees. Overall, we do not
sustain the complaint allegation aforedescribed. Even
initially, Thomas did not state that the Company, as a
reprisal, would discharge part time employees if the Union
secured a contract. Any termination would be due to
30 About the middle of January 1960, Respondent hired two new working every day when they had been in Respondent 's employ, they
employees . This at least indicates that there was more work available in alternated in twos, so that at least two men were working substantially a
January. As to one of these men, Thomas testified that he wanted a full- full day every day.
time employee in Amarillo . Although the four firemen were not each
THOMAS CARTAGE, INC
purported union contract requirements regarding part-time
employees. Crandall, in effect, acknowledged awareness of
such union contract clauses. And, later, as we have seen, the
Company said it would not agree to such union demands.
We find that Webb, as more fully described previously,
gave an impression of surveillance to employees Crandall
and Miller when he told them that he knew how they had
voted in the election. We find that this constituted a
violation of Section 8(a)(1) of the Act.
Election Objections and Challenged Ballots
The second election was held on February 19, 1970.
Briefly summarized, there were six votes cast for the Union,
six votes against the Union, and nine challenged ballots.
Objection 1. Board Field Examiner Brown, who had
investigated the unfair labor practice charge against the
Employer and who took affidavits in the course of the
investigation, was also the Board agent who conducted the
election.31 Employer contends that since Brown got to
know supporters of the Union in the course of the
investigation, "it is impossible to convey to nonunion
supporters the fact that the Board Agent is an impartial
observer to assure a fair election" and that "the mere
presence of Board agent Brown at the polling place
destroyed the laboratory conditions and the high standards
the Board relies upon... .
Since both the Union and the Employer had official
observers present with Brown during the election and since
no improper conduct occurred, we are of the opinion that
the rationale or theory of the objection is not a convincing
reason for sustaining the objection and that Brown's prior
role, and the fact that he had met and knew some
employees, did not destroy the conditions for a fair
election.
The objection also states that the Employer will show that
Brown was greeted by the known union leader on the dock
immediately after the closing of the first voting period, in
view of other employees, and in such a manner, that it
would add to employee suspicion that Brown was not an
impartial observer at the poll but was there as a friend of
the Union. No evidence was introduced before the Trial
Examiner that there was any greeting by an unidentified or
other known union leader at any time. The only evidence
presented to us was that Brown left the polling area with the
union observer and the employer observer together.
Objection 2.32 "The Employer objects to the conduct of
union attorney, Tom Upchurch, and Union Representative,
B. Cherryhomes, by campaigning with a group of
employees who were waiting outside of the polling place to
vote when the polls were open. Such action occurred in full
view of other employees who were working around the
warehouse. Star Expansion, 67 LRRM 1420; Mitchem, 67
LRRM 1395."
No evidence with respect to the foregoing objection was
introduced before the Trial Examiner.
Regarding objections 1 and 2, on the evidence presented
31 We are not setting forth the objections verbatim The objections are
to be found in GC Exhibit I(g)
32 Set forth verbatim
33 Factually, January 28, Wednesday, was the end of one of the
Employer's payroll periods The preceding payroll period ended January
167
to the Trial Examiner, the latter recommends that the
objections be overruled.
The challenged ballots
Employees Crandall, Slater, Stephens, Miller, and
Crawford were challenged as voters by the Board agent
since their names were not on the eligibility list for the
second election. These were the 5 employees discharged on
December 11, 1969. Since we have found that they were
illegally discharged, it is recommended that the challenges
be overruled and the ballots counted.
Webb was challenged as a voter by the Union observer
on the ground that Webb was a supervisor. Since we have
found that Webb was a supervisor, we recommend that the
challenge be sustained.
Bradley and Moss were challenged as voters by the
Union observer on the ground that they had been hired
after the cutoff date for eligible voters.
The Board in its Direction of Second Election ordered
that the eligible voters were "those in the unit who are
employed during the payroll period immediately preceding
the date of issuance of the Notice of Second Election by the
Regional Director." The Notice of Second Election was
issued by the Regional Director on January 28, 1970.33
Bradley was hired January 17, 1970, but since he had to
give notice to his employer, he did not commence work
until January 26. Moss was hired January 16 and
commenced work on January 26.
The Notice of Second Election was sent to the parties
with a letter from the Regional Director, dated January 28,
1970. The letter stated:
Attached is one copy of the notice of Second Election.
... According to Board policy in a rerun election, the
eligibility date is the payroll period immediately
proceeding the date of issuance of the Notice of
Election by the Regional Director. Therefore, since the
Notice of Election is issuing today, eligible to vote will
be those employees who were employed during the
payroll period immediately preceding January 28, 1970.
The Notice of Election (i.e. the Notice of Second
Election),34 which was sent to the parties on January 28 and
copies of which were eventually posted prior to the election,
stated, inter alia,
Those Eligible To Vote:
All drivers of the employer at its Amarillo and Dumas,
Texas, locations, who were employed during the payroll
period ending immediately preceeding January 28,
1970.
The wording used by the Board in its Order and
Direction of Second Election of January 7, 1970 in
declaring who was eligible to vote, and the wording used by
the Regional Director in his January 28, 1970, letter above,
in describing those eligible to vote, are substantially the
same, to wit, (in the Board's order), "those in the unit who
21 The payroll period following the period ending on January 28 would
end on February 4.
34 The actual notice was headed "Notice of Election" although it was
the notice of Second Election
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are employed during the payroll period immediately
preceeding the date of issuance of the Notice of Second
Election by the Regional Director"; and (in the Regional
Director's letter), "the eligibility date is the payroll period
immediately preceeding the date of issuance of the Notice
of Election by the Regional Director".
However, in the Notice of Election itself, there is a
difference in wording in the statement as to who is eligible
to vote, to wit, drivers "who were employed during the
payroll period ending immediately preceeding January 28,
1970 (underscoring ours)".
It is the Examiner's opinion that the Board's Order and
Direction of Second Election is the controlling determina-
tion of voter eligibility. The Regional Director is to issue
thereafter a Notice of Second Election.
In our opinion, in the instant case, the actual Notice of
Election issued by the Director on January 28 is not only
different in wording from the Board's description of eligible
voters but the difference in wording resulted in an eligibility
standard different from that set forth by the Board.
The Notice of Election by the insertion of the word
"ending" eliminates Bradley and Moss, employees on the
payroll and currently employed before January 28. They
were employed and working on January 26, but the payroll
period ended at the close of the day on January 28 and
therefore they were not employed during the payroll period
ending immediately preceding January 28, the latter being the
date of the issuance of the Notice of Election.35
The Board, of course, in establishing eligibility, could
have inserted the word "ending" in its description; or the
Board could have said that the eligibles are "those
employed in the payroll period immediately preceding the
payroll period in which the Notice of Second Election is
issued; or, those employed during the payroll period
completed immediately proceeding the date of issuance of
the Notice of Election. But the Board has not used any of
the foregoing language and, in our opinion, if the Board
intended to establish eligibility along the foregoing lines it
would have, and should have, used the appropriate
language.
It is our opinion that as an original proposition, which it
no longer is, it could be argued that in directing a rerun or
second election, the two most tenable dates for eligibility
would be either the eligibility date of the first election or the
current payroll, the latter embracing all those working
before the date of direction of the second election.
Eligibility determined as of any intermediate point or one
intermediate point rather than another has little or nothing
to commend it, in logic or otherwise. The Board, except
under possibly some highly unusual circumstances, has
long since decided not to use the original (or first election)
eligibility date. For many years now, the Board has used the
language used in the instant case in describing eligibility i.e.
those employed during the payroll period. immediately
preceding the date of issuance of the Notice of Second
35 Presumably, their ballots would not have been challenged if the
Notice of Election had issued on January 29 because then they would have
been employed during the payroll period "ending immediately preceding
January 29." Although we believe that the Notice of Election in the instant
case was issued in the ordinary course of business and was not influenced
by extraneous factors, the interpretation that eligibility as defined by the
Board means the payroll ending before the Notice of Election issues
Election by the Regional Director. The date of issuance of
the Notice of Second Election has, in our opinion, only one
function. It is a cutoff date to disqualify those hired and
employed on the payroll after the date of the notice, the
cutoff date. Such a cutoff date is necessary to prevent
padding and accretion to the payroll right up to the day of
polling, with evident problems of inadequate lists for
checking eligible voters, and problems whereby no
reasonable access to the voters would be possible during a
preelection period.
In our opinion, the cutoff date, the Notice of Second
Election, is not intended to, and does not, cut off employees
in the unit who are employed and on the payroll before the
cutoff date. What logic would there be to declare eligible
only those employed at least 2 or 3 weeks before the Notice
of Second Election; why not 4 or 5 weeks or 1 week; or, in
terms of payroll, why those on the payroll just before the
payroll in which the Notice of Second Election issues; or
those on the payroll ending before the date of issuance of
the notice; why not limit it to a payroll 3 or 4 weeks before
the Notice of Second Election or some other period.
On its face, in our opinion, the Board' s language , "those
... employed during the payroll period immediately
preceding the date of issuance of the Notice of Second
Election", means that anyone on the current payroll, who is
employed before the Notice issues, is eligible since he is
employed during the payroll period immediately preceding
the Notice. The language does not say the payroll period
immediately preceding the payroll period in which the
Notice issues; nor does it say those employed during the
completed payroll period immediately preceding the date
of the Notice and, as indicated above, we perceive no
reason why it should.
In addition to what we believe is the plain meaning of the
Board's language and the logic of the situation, the Board
has made it clear that its language, in describing eligibility
for a rerun election, refers to a current payroll. Thus, in
Socony-Vacuum Oil Company, Inc., 84 NLRB 969, the
Board in its Second Direction of Election declared those
eligible were employees "employed during the payroll
period immediately preceding the date of this Second
Direction of Election. ..." In its decision , the Board
stated: "In directing a new election after setting aside the
results of a previous election, it is the Board's practice to
specify a current payroll . . . to determine eligibility to
vote ...."36 We perceive nothing that can more aptly be
described as "a", or "the", current payroll, or as the payroll
during which employees "are employed during the payroll
period immediately preceding the date of the issuance of
the Notice of Second Election," than the existing and
current payroll on which employees are working and are
employed before the Notice issues . Accordingly, we
introduces an element of possible fine tuning into the situation . We believe
that the simpler and more accurate interpretation of the Board 's eligibility
definition is: those who are employed during the then current payroll at the
time the Notice of Election issues are eligible.
36 There was a second election in International Shoe Co., 87 NLRB 479,
and the Board commented that "... the selection of a current payroll was
consistent with Board practice and custom...."
THOMAS CARTAGE, INC. 169
recommend that the challenges to the ballots of Bradley
and Moss be overruled and the ballots be counted.37
In the consent agreement for the first election, it was
agreed that the election "will be a combination mail-
manual balloting election." The election embraced unit
employees at the Company's Amarillo and Dumas, Texas,
locations. The Notice of Election, inter alia, stated that it
was a mail-manual election and set forth the time and place
of election, the latter being the Company's office-ware-
house in Amarillo on November 21, at specified hours. It
was stated further, in the Notice, that employees at Dumas,
Texas, will receive ballots through the mail. Instructions
about marking and mailing the ballots in envelopes
provided, so the ballots would reach the Board office not
later than November 18, were set forth. Voters were advised
that "mail ballots will be mixed with the manual elections
ballots and counted on November 21 at the close of the
manual election in Amarillo, Texas." It was then stated that
"all other employees [except those at Dumas] will vote at
the time and place shown above [Amarillo, on November
21 ]. The Notice of the Second Election for February 19,
1970 was the same as the original notice except as to the
difference in dates, e.g. the date of election was February
19, and mail ballots were to be received in the Board office
in Fort Worth, Texas, not later than February 17.
Campbell was a unit employee in the Employer's Dumas,
Texas, office and, according to the Regional Director's
Report on Objections and Challenges, Campbell was one of
the employees who was sent a mail ballot from the Regional
Office on February 10, 1970, "but did not return the mail
ballot to the Regional Office, but instead appeared at the
physical polling place [in Amarillo] on the date of the
election and cast a challenged ballot at that time." There is
no evidence that Campbell had not received his mail ballot
and no evidence was introduced as to why he did not vote
by mail.38
In the Trial Examiner's opinion, it was the understanding
and contemplation of the parties, including the Employer,
the Union, and the Regional Director of the Board, that, as
provided in the original consent election and the Notice of
Election thereof and in the second election, and the Notice
thereof, the election was to be a combination mail-manual
election. The Dumas employees were to vote by mail and
such mail ballots were to be returned to and received by the
Board no later than a specified date, several days before the
date of the manual election. Other than the Dumas
employees, all other employees were to vote manually in
Amarillo.39 There was no provision to the effect that
Dumas voters had the option of voting by mail or by
appearing in person at Amarillo and voting manually. The
Examiner recommends that the challenge to Campbell's
ballot be sustained.
Although we believe that adherence to the terms and
conditions of the election is sufficient reason for sustaining
the challenge, we will consider the matter from a different
perspective. First of all, no reason has been advanced why
Campbell did not vote by mail, so the ingredients for an
approach along a situational ethics line are missing. If it be
said that there is no harm done if he votes manually and
that the casting of a vote is more important than any rules
or regulations, we will consider several factors.
We do not know the actual situation but, conceivably,
there could be 2 voters at Dumas. One mails his ballot to
the Board on February 15 or 16 so that it reaches the Board
on February 17, as required. The other, through indiffer-
ence or negligence, does not mail his ballot at any time. At
the end of the day on February 17, the Board and the
parties should reasonably be able to assume that one
Dumas voter has not voted. But, conceivably, one party or
friends of the non-voter, can, on February 17 and 18, be in
contact with the voter and urge him to vote a particular way
and advise him to come to Amarillo on February 19 and
vote manually. It is highly unlikely that both parties on
either side of the election issue would have campaigned to
this voter on February 17 and 18 on the theory that they all
allegedly knew that the Dumas voters had the option to
vote either by mail or manually. Perhaps, if there are two
eligible voters at Dumas and neither votes by mail because
of negligence or indifference, one thereafter votes manually
in Amarillo because he had transportation, whereas the
other voter lacks transportation, or has family obligations
that prevent him from going to Amarillo on February 19.
The foregoing situations as to campaigning and transporta-
tion would also be conceivable if there was only one eligible
voter at Dumas.
The Employer, in his brief, has submitted the following
regarding the Campbell ballot:
The only way the Company can have an effective
observer for a mail ballot election is to observe the date
stamp on the back of the mail ballot envelopes to assure
they were received in the Regional Office before the
deadline and to observe the opening of the envelopes.
In the instant matter, it would be impossible for the
employer to assure himself that Campbell did not send
in a mail ballot and later have someone from the
Regional Office to destroy the ballot. There is no
evidence that this happened nor is the employer
accusing anyone of the Regional Office of being in
collusion with the Union in this respect. The employer
does insist, however, that he has the right to be assured
that such a possibility could not occur and the sanctity
of the ballots and voting is upheld.
As stated, we recommend that the challenge to Campbell's
ballot be sustained.
37 In view of the position we have taken, we find it unnecessary to
resolve the disputed contention of the attorney for the Employer that he
had an understanding with the Board agent that employees employed at
the end of the January 28 payroll period would be eligible voters However,
since the Examiner realizes that the view he has expressed on the eligibility
matter, above, is not an infallible position and is subject to review, we will
state our position regarding the testimony of employer attorney Parker and
field examiner Marks Notwithstanding what we consider to be the good
faith of both individuals and Parker's belief that he did have an
understanding with Marks regarding the eligibility of two employees, we
are not persuaded that there was in fact a full meeting of the minds We
believe that there was an honest misunderstanding and that neither
individual was responsible for the misunderstanding or for the absence of a
full meeting of the minds
38 The Notices of Election, in addition to contents that we have
previously described, stated If you are employed at Dumas, Texas and
believe you are eligible to vote and do not receive a ballot in the mail by
4 45 p in February 12, 1970, please communicate by telephone collect with
[the NLRB, Fort Worth, code, and telephone number]
39 Dumas is about 48 miles from Amarillo In the first election there
were 19 eligible voters and 19 votes were cast As far as appears, the
Dumas voters cast their ballots by mail There were no challenged ballots
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
Respondent is an employer engaged in commerce within
the meaning of the Act.
By discriminatorily terminating employees Crandall,
Crawford, Miller, Slater, and Stephens on December 11,
1969, Respondent violated Section 8(a)(3) and ( 1) of the
Act.
By conveying to employees the impression that Respon-
dent was engaging in surveillance of their union activities
and by illegally interrogating employees regarding union
activities , Respondent violated Section 8(a)(1) of the Act.
THE REMEDY
It will be recommended that Respondent cease and desist
from engaging in the aforementioned illegal conduct. The
conventional remedy is also recommended with respect to
the four discriminatees who were terminated in December,
1969, and rehired in March 1970; namely, that Respondent
pay them the wages that they would have earned from the
date of their termination in December 1969, to the date of
their reinstatement in March 1970, with interest at the
prevailing rate in the area, and less intermediate earnings,
with computations on a quarterly basis. As to Miller, it is
recommended that he be offered reinstatement to his
former or a substantially equivalent job without prejudice
to his seniority and other rights and with back pay from the
date of his termination in December 1969 to the date of the
offer of reinstatement and with interest, and less intermedi-
ate earnings , with computations on a quarterly basis.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record, it is recommended
that Respondent and its officers, agents, successors, and
assigns shall:
1. Cease and desist from:
(a) Discouraging membership and activity in Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 577, or in any other labor
organization by discriminatorily discharging any of its
employees.
(b) Illegally interrogating its employees regarding union
sentiments or activities or giving the impression that it was
engaging in surveillance of employees' union sentiments or
activities.
2. Take the following affirmative action to effectuate
the policies of the Act.
(a) Pay James A. Crandall, Lloyd M. Crawford, Milton
E. Slater, and Bobby M. Stephens the wages they lost by
reason of their discharge on December 11, 1969, until the
date of their rehire in March 1970, in accordance with the
recommendation as set forth in this Decision under the
heading, "The Remedy." Offer Charlie A. Miller reinstate-
ment to his former or a substantially equivalent job, with all
his seniority and other rights and pay him the wages lost
from the date of his discharge in December 1969 to the date
of the offer of reinstatement as more fully described in this
Decision under "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(c) Post at its Amarillo, Texas, and other terminals, copies
of the attached notice marked "Appendix."40 Copies of
said notice, on forms provided by the Regional Director,
Region 16, after being signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days, 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 other material.
(d) Notify the aforesaid Regional Director, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.41
40 In the event no exceptions be filed as provided by Section 102.46 of
the Rules and Regulations of the Board, the findings , conclusions,
recommendations , and Recommended Order herein , shall, as provided in
Section 102 .48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and order, and all objections thereto shall
be deemed waived for all purposes. In the event that the Board 's Order be
enforced by a judgment of a United States Court of Appeals, the words in
the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR
RELATIONS BOARD" shall be changed to read "POSTED PURSUANT
TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-
TIONS BOARD."
41 In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the Company and the General
Counsel of the National Labor Relations Board participat-
ed through their attorneys and examined and cross-
examined witnesses and presented evidence, it has been
recommended by the Trial Examiner who heard the
evidence and the witnesses that we inform you that:
WE WILL not discourage membership and activity in
the Teamsters Union, Local 577, or in any other labor
organization by discriminatorily discharging or laying
off any of our employees.
WE WILL NOT illegally question our employees
regarding their or other employees' union sentiments or
activities, nor will we give the impression that we are
engaging in surveillance of our employees' union
sentiments or activities.
WE WILL pay James A. Crandall, Lloyd N. Crawford,
Milton E. Slater, and Bobby G. Stephens the wages they
lost by reason of their layoff and discharge on
December 11, 1969, until the date of their rehire in
March 1970.
,WE WILL offer Charlie A. Miller reinstatement to his
former or a substantially equivalent job, with all his
THOMAS CARTAGE , INC. 171
seniority, rights and privileges, and WE WILL pay him This is an official notice and must not be defaced by
the wages he lost from the date of his discharge in anyone.
December 1969, to the date of our offer of reinstate- This Notice must remain posted for 60 consecutive days
ment. from the date of posting and must not be altered, defaced,
THOMAS CARTAGE, INC. or covered by any other material.
(Employer) Any questions concerning this Notice or compliance with
its provisions, may be directed to the Board's Office, 8A24
Dated By Federal Office Building , 819 Taylor Street, Fort Worth,
(Representative) (Title)' Texas 76102, Telephone 817-334-2921.