Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1964

149 N.L.R.B. 1368 (N.L.R.B. 1964)

1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thurston Motor Lines , Inc. and Wesley Little. Case No. 26-CA-
1761. December 7, 196.
DECISION AND ORDER
On August 4, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. He also found that
Respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended dismissal of those allegations.
Thereafter, the Respondent and the General Counsel filed exceptions
to the Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with additions and modifica-
tions in the Order, as noted below.
We are unable to accept our colleague's conclusion that the Trial
Examiner's recommended dismissal of certain allegations of the
complaint should be reversed. Thus we see no warrant for reversing
the Trial Examiner's conclusion that Freeland should be credited over
Little in the matter of the withdrawal of Little's card, as the Trial
Examiner relied on other inconsistencies in addition to that which
our colleague attacks. Nor can we agree that the matters on which
our colleague relies are sufficient to warrant reversing the Trial
Examiner's conclusion that the layoff of and failure to recall Little
were not discriminatory. As the Trial Examiner states, there may be
suspicious circumstances surrounding Little's case. Suspicion, how-
ever, is not enough. Nor is it permissible that we substitute our
judgment for the Respondent's business judgment as to the relative
desirability of retaining one employee in preference to another. It
must be established, rather, that the Respondent's judgment was influ-
enced by protected activities. On this record we find, as did the
Trial Examiner, that the General Counsel has not established his case
in this regard by a preponderance of the evidence.
149 NLRB No. 126.
THURSTON MOTOR LINES, INC.
ORDER
1369
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Thurston Motor
Lines, Inc., Humboldt, Tennessee, its officers, agents, successors, and
assigns, take the action set forth in the Trial Examiner's Recom-
mended Order with the following additions and modifications :
1. Amend paragraph 1(a) to read as follows:
"(a) Threatening its employees with reprisals in connection with
their union activities or sympathies."
2. Add the following as a new paragraph 1(b) :
"(b) Instructing or requesting employees to report on the union
affiliations or activities of other employees."
3. Add the following as a new paragraph 1(c) :
"(c) Interrogating employees concerning their union activities and
the union activities of other employees in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8(a) (1) of the
Act."
4. Add the following as a new paragraph 1(d) :
"(d) In any like or related manner interfering with, restraining,
or coercing any of its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed by Section 7
of the Act, or to refrain from any or all such activities."
5. Add the following to the Appendix to the Trial Examiner's
Decision as its second paragraph :
WE WILL NOT interrogate our employees concerning their union
activities and the union activities of other employees in a manner
constituting interference, restraint, or coercion in violation of
Section 8(a) (1) of the Act.
MEMBER BROWN, dissenting in part: I concur in that part of the
majority decision which affirms the Trial Examiner's finding of Sec-
tion 8 (a) (1) violations. However, I would find, contrary to my
colleagues, that Wesley Little was discriminatorily laid off in viola-
tion of Section 8(a) (3) of the Act and that the Respondent violated
Section 8(a) (1) of the Act by soliciting Little to withdraw his union
authorization card.
In my opinion, Little, who was employed as a casual dockworker,
was selected for discharge because he alone among the dockworkers
was an outspoken supporter of the Union. There is no question that
Respondent's Humboldt terminal manager, Freeland, who discharged
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Little, was fully aware of Little's strong union sentiments-and of his
constant efforts to "talk up" the Union among the employees. In
fact, as indicated hereinafter, Little's card signing became the subject
of a discussion between Little and, Freeland as a result of which Free-
land asked Little to withdraw his card. Nor is there any question
that the Respondent was strongly opposed to the presence of a union
at its Humboldt terminal, and did not hesitate to make its feelings
known to the employees.. Thus, as the Trial Examiner found, shortly
after authorization cards had been distributed by employee Priestly
in mid-October, Freeland spoke to•Priestly and said he understood
that the employees were ".trying to get the Union in at Humboldt"
and asked Priestly' "to hold off until he investigated it." About 3
weeks later Freeland again spoke to Priestly and,infornied him that
"he had talked to Mr. Thurston about the Union and he wasn't aiming
to let the Union into the Humboldt terminal before it got strong
enough." Freeland admitted .that he knew employees had already
signed , and added that "before they would let the Union come in ...
he was going to clean house." In a third conversation with Priestly
some 2 weeks later, Freeland told Priestly that he knew Priestly and
Brevard belonged to the Union, but that "I don't aim for any of the
other employees at Thurston Motor Lines at Humboldt to belong to
it, that he would fire everyone of them on the dock before he would
let them join before he would let the Union come in." Similar state-
ments were made by Freeland to Brevard. Furthermore, as the Trial
Examiner found, when Freeland thereafter hired O. D. Hammett as
a dockworker, Freeland talked with Hammett about the Union, told
him not to sign a union card, and that if anyone asked him to join
the Union "to tell him [Freeland] who-it was."
Little and employee Marshall Scarbough, a part-time dockworker
who apparently had a regular job with another employer, were ter-
minated on December 6 after the Respondent had notified its terminal
managers to reduce costs for the next 5 or 6 weeks and advised them
that it would be an opportune time, in an effort to economize, to let
poor performers go. At that time, of. the three or four dockworkers
who were more or less employed on a regular full-time basis only,
Little was the outspoken supporter of the Union and the only one
who had signed a union card. It was the Respondent's contention
that Little, who was then almost 60 years of age, was let go because
"he wasn't capable of doing the physical work" and "was not able to
drive." But these asserted reasons were obviously untrue for the
record establishes that Little had performed satisfactorily during his
4-month period of employment and had received a 10-cent-an-hour
1 Priestly and Brevard were members of the 'Union at other terminals of the Respond-
ent and at their request had been transferred to the Humboldt terminal.
THURSTON MOTOR LINES, INC. 1371
increase along with the other employees. Indeed, as the Trial Exam-
iner found, Little had been singled out and complimented by one of
the Respondent's vice presidents for the excellence of his work.
Furthermore, Freeland knew that Little was a licensed chauffeur,
that Little had requested an opportunity to drive a truck, and that
Little backed trucks to the dock at night, pulled them out, and
dropped trailers off in the yard. Whatever testimony there was as to
Little's shortcomings, such testimony was, as the Trial Examiner
observed, not particularly convincing. Neither Hammett nor Clyce,
who had less seniority than Little and who were retained, had signed
a union card. The contention that these employees were retained
because Hammett was 54 years of age and stronger (but who was
subsequently discharged when he burned out a clutch) and because
Clyce was 33 and had a year of college (but who had no chauffeur's
license and no experience in driving trucks) is particularly uncon-
vincing when one considers that nothing more than casual dockwork
was involved.
Finally, there is the circumstance of Freeland advising Little
through Priestly that Freeland would recall Little when business
improved. However, Freeland did not recall Little, and the record
establishes that he never intended doing so, for Freeland remarked to
Priestly at the time that as long as Freeland was terminal manager
he would "never work [Little] another day."
Upon the foregoing and the entire record in the case, I therefore
find-indeed, I consider the inference inescapable-that Respondent
terminated Little in reprisal for Little's union sympathies and organ-
izing activities at the Humboldt terminal. I would accordingly order
Little's reinstatement with backpay.
I would also find that Freeland requested Little to withdraw his
authorization card from the Union. The Trial Examiner was not
favorably impressed by Freeland as a witness and he generally dis-
credited Freeland in cases of testimonial conflicts. In this instance,
however, he credited Freeland against Little's testimony that Free-
land was the one who suggested Little withdraw his card. The Trial
Examiner resolved this credibility issue on the basis of a supposed
inconsistency between Little's testimony and an affidavit which Little
gave to a Board agent. Specifically, the Trial Examiner found that
Little had stated in his affidavit to the Board that "the only time
Randy [Freeland] ever mentioned anything about the Union was
about a week after [I] got laid off . . ." whereas on cross-examination
Little testified that Freeland had called him into his office and asked
him if he had signed a union card. How the Trial Examiner could
have interpreted the quoted passage as meaning that there had been
no conversation about the Union between Little and Freeland until
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Little's discharge is difficult to understand: For the same affi-
davit later recites that after signing the card Little was called into
Freeland's office and told by Freeland that "I [Freeland] understand
that you signed' a card with the T.E.A. Union." Freeland, as the
Trial Examiner found, did not deny this conversation concerning
Little's card, and the entire incident involving the withdrawal of the
card could only have occurred before Little's discharge. Moreover,
the portion of the affidavit quoted by the Trial Examiner did not use
the word "Union"-that was an interpolation by the Trial Examiner.
What Little actually said was "the only time Randy ever said any-
thing about this" [emphasis supplied], and it is clear from the con-
text in which the statement appears that by "this" Little was refer-
ring to his (Little's) frequent conversations with Priestly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136) herein called the Act, was heard before Trial Exam-
iner Eugene E. Dixon at Humboldt, Tennessee, on June 8, 1964, pursuant to due notice
with the parties being represented by counsel. The complaint, issued by a representa-
tive of the General Counsel for the National Labor Relations Board, herein called the
General Counsel and the Board, on April 10, 1964, and based upon charges filed
March 3, 1964, by Wesley Little, an individual, alleged that Respondent had engaged
in unfair labor practices in violation of Section 8 (a) (1) and (3) of the Act by various
acts of interference, restraint, and coercion regarding rights guaranteed its employees
under the Act and by discriminatorily laying off Wesley Little because he joined the
Union.
In its duly filed answer Respondent denied the commission of any unfair labor
practices.
Instead of closing the hearing at the end of the testimony I held it open to afford
an opportunity for the parties to put in by way of stipulation a letter (if found) of
instructions to Respondent's terminal managers and also certain data from the Com-
pany's payroll records. At that time, I indicated to the parties that if I did not hear
from them about the matter "within the reasonable period of time" I would issue an
order closing the hearing. Having had no communication on the matter I issued
such an order on July 16, 1964. Subsequently, the General Counsel moved to reopen
the record for the purpose of receiving as General Counsel's Exhibit No. 4 a stipula-
tion pertaining to the Company's payroll records. The motion is granted and the
exhibit is hereby received and made part of the record herein.
Upon the record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
At all times material herein Respondent has been a North Carolina corporation
having its principal office and place of business at Charlotte, North Carolina, and
terminals at Humboldt, Tennessee, and at various other locations in the States of
North Carolina, South Carolina, Virginia, and Tennessee, where it is engaged in the
business of interstate transportation of motor freight. During the 12 months preced-
ing the issuance of the complaint Respondent, in the course and conduct of its business
of the interstate transportation of motor freight, received gross revenues in excess of
$1,000,000 for the motor transportation of freight between the States of North Caro-
lina, South Carolina, Virginia, and Tennessee. At all times material herein, Respond-
ent has been an employer engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
THURSTON MOTOR LINES, INC. 1373
II. THE LABOR ORGANIZATION
The Transportation Employees Association (herein called the Union) at all times
material herein has been a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
Introduction
Respondent has 24 terminals of which 3 operate under union contracts. Two of
the latter apparently are at Nashville and Memphis. The leaders in the attempt to
organize the Humboldt terminal were two employees who had been transferred to
Humboldt from terminals with union contracts. James W. Priestly had joined the
Union at the Nashville terminal in 1959 and had taken an active part in it of which
the Company was aware. Being from western Tennessee, Priestly had asked for a
transfer to the Humboldt terminal which was granted. Kenneth A. Brevard was in
the Union at the Company's Memphis terminal which fact was known to the Com-
pany also. He, too, received a transfer to Humboldt at his request. It was these two
who had taken the initiative in the fall of 1963 to bring the Union into the Humboldt
terminal.
Priestly had asked Union President Davis (who was one of Respondent's over-
the-road drivers presumably out of Charlotte, North Carolina) for cards. Davis
delivered them one morning in mid-October and Priestly immediately handed them
out on the Humboldt dock. Seven out of eight employees signed the cards then and
there and returned them to Priestly.' Thereafter there was some talk among the
employees at the terminal about the Union but no meetings or any other organiza-
tional activities took place so far as the record reveals.
Interference, Restraint, and Coercion
James W. Priestly testified as follows:
One afternoon in mid-October (before the cards were signed) Randy Freeland, the
then teiminal manager, called Priestly to his car. Freeland said that he understood
that the employees were "trying to get the Union in at Humboldt," and asked Priestly
"to hold off until he investigated it." Priestly said, "Okay." About 3 weeks later
(after the cards had been signed), Priestly had another conversation with Freeland in
the latter's automobile. At that time Freeland said that "he had talked to Mr.
Thurston about the Union and said that he wasn't aiming to let it come into the
Humboldt terminal and before he would, he would close the terminal down before it
got strong enough." Priestly told Freeland that "they had already signed the cards."
Freeland said that he knew they had signed. Freeland also said "that before they
would let the Union come in ... he was going to clean house."
About 2 weeks later Priestly had a third conversation with Freeland one afternoon
at the terminal. Freeland said that he had received word from Charlotte that Priestly
and Kenneth Brevard were working "close to some road drivers, trying to get him
fired " Priestly professed not to know what Freeland was talking about.2 Freeland
also said that he did not care if Priestly and Brevard belonged to the Union but that
"he didn't aim for any of the other employees at Thurston Motor Lines at Humboldt
to belong to it that he would fire everyone of them on the dock before he would let
them join, before he would let it come in "
Kenneth Brevard testified that a couple of weeks after the cards had been signed
Freeland had accused him and Priestly of "working close to some road drivers trying
to get him fired." He also said that "he wasn't going to let the Union come into the
Humboldt terminal." He further said that he did not care if Brevard and Priestly
belonged to the Union but that he did not want the other employees on the dock to
join and "would let them go to keep the Union out...."
O. D. Hemmett testified that when he was hired by Freeland in November they
talked about the Union. He told Freeland that he would not vote for the Union.
Freeland told him not to sign a union card and also asked him if anyone asked him to
join the Union to "tell him who it was."
' The one of those present who did not sign was Marshall Scarbrough.
2 The evidence shows that both Priestly and Brevard did not get along with Freeland
and had complained to top management about him.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wesley Little (the alleged discriminatee herein) testified as follows:
About 2 or 3 weeks after the cards were signed, Freeland told him that he'd like to
talk to him before he left. In the office Freeland told him that in "regards to the card
you signed a few days ago for membership in the TEA Union, you can go ahead and
sign it or join it, but it won't benefit you and it won't be but one or two in this plant
that it will benefit." Freeland went on, "I want you to do me a favor. I want you to
write the president, Mr. J C. Davis, in Charlotte, North Carolina, and tell him that
you've had a change of mind or change of heart, that you are disinterested in it. When
you write this letter, I want a duplicate copy of it. If you will do that, it will all by
forgiven and forgotten."
Pursuant to this request Little wrote the letter and showed a copy to Freeland who
praised it warmly. Little said, "Now, I've got a duplicate copy of this letter in an
envelope out in the glove compartment, shall I go mail it this afternoon, or do you
want to mail it?" Freeland said, "You can go on and mail it." Little did so but
never received a reply to it.
On cross-examination it was brought out that in his affidavit to the Board about the
matter Little had said, "The only time Randy ever mentioned anything about the
Union . . . was about a week after [I] got laid off, and after Priestly had talked to
Randy about why he had laid [me] off." When he was asked if this was the truth,
when he signed the statement his answer was "the biggest part of it is now." He then
admitted that it was the truth and reiterated that affirmance. Nevertheless, later on in
cross-examination he further testified that Freeland had called him into the office and
asked him if he had signed a union card.
Freeland denied that he "ever threatened an employee with discharge or threatened
to close the terminal if the Union came in." He also denied asking Hammett not to
sign a union card or to inform him regarding any union activities of the employees.
He did admit, however, telling Hammett when he was hired that they had a union in
the picture. He further denied telling Priestly to hold off on the Union until he could
investigate but he did admit that the Union had "been mentioned" on occasion.
While there was no specific denial on Freeland's part of having asked Little if he
had signed a union card, Freeland did admit that, he had discussed the Union with
Little. In this connection he testified
He came to me, after the card signing, and said that he had made a mistake
and would like to set himself straight and he had wrote a letter to the president
of the Union, asking that his name be withdrawn. At this time, I told him it was
immaterial to me in any way, shape, form or fashion.
8(a)(1) Conclusions
Freeland impressed me quite unfavorably as a witness . On the stand he was tense,
argumentative, and prone to be evasive. As a result, I credit all of the foregoing
mutually corroborated and relatively straightforward testimony of all of the General
Counsel 's witnesses except Little.3 In addition to the discrepancy in Little's affidavit
and his testimony as to when Freeland talked to him about the Union, there are con-
flicts in his testimony about other matters. For instance , he first testified that Freeland
referred in a positive manner to his having signed the union card and later testified
that Freeland asked him if he had signed. Considering that Little had told Cash (who
was "more or less" a supervisor of the dock ) in effect that he would join the Union
only if he "had to," I am inclined to believe that it was Little's idea to write to the
Union seeking the return of his card and that he volunteered this information to Free-
land to curry favor with him.
Discrimination
At the time of the hearing Wesley Little was just a few months short of being 60
years old. He wears glasses and is of small physical stature weighing no more, I
should judge, than 130 to 135 pounds. He worked as a truckdriver for Time Freight
Lines in Humboldt 4 for about 10 years but had not been driving for the 4 or 5 years
prior to being hired by Respondent on August 28, 1963. When he was with Time
3 The various threats of economic reprisals to prevent the Union from representing
the employees and the request to Hammett to report on the union activities of his fellow
employees as revealed by this evidence are actions which interfere with, restrain, and
coerce employees in the rights guaranteed them in the Act and are violations of Section
8(a) (1) of the Act
4 He explained that lie lost his job with Time along with about 58 others when Time
closed its terminal in Humboldt.
THURSTON MOTOR LINES, INC. 1375
the Teamsters ' Union represented the employees in collective bargaining and he was
very active in the Union-being its steward . He had also done some union organizing
in the 1940's. He was acquainted with Freeland during his employment by Time as
Freeland was then working for Time as a salesman.
The credited and uncontroverted evidence shows that Little had asked Freeland for
a job with Respondent on several occasions . One morning , needing help'Freeland put
him to work on a part-time "day-to-day basis." He was told he was being hired for
dock work only a and that the work would last only as long as the extra help was
needed. Thereafter, until he was laid off on December 6, Little apparently worked
quite steadily.
Little signed a union card on the dock in mid -October along with the others. Since
he was known to have been a former union man he had occasion to discuss the Union
with his fellow employees frequently . Thus, according to his testimony , he talked
about the Union with Priestly , Thomas Cash ( a driver and a "more or less" supervisor
of the dock), Ross, Brevard , "and anybody else [he] could get to listen." This took
place for the most part while they were all working.°
A few weeks before he was laid off Little had received a 10-cent increase along with
the rest of the employees . According to his further testimony he was complimented
one night by someone from the home office by the name of Warren or Walker 7 who
said "I've heard a lot of guys call freight , but you 've got the best, clearest voice that
I've heard in a long time, that this far up in the trailer , up in the front , the men out
in the middle of the dock can understand what you are saying with all this racket."
As to his layoff Little testified credibly as follows:
We were through with our work about 9 o'clock that night, Mr. Cash said to
me, "has Mr. Cody told you anything ... about working conditions or about
being laid off?" And I said , "No," and he said , "Well, it fell upon my shoulders,
then, to have to tell you, and I don't want to do it," but he said , "They are going
to have to lay you off ," and I said , "Well, if that 's the way it is, that 's the way
it is." I said, "Mr. Freeland is the boss."
The next morning when he went to get his pay he said to Freeland , "Well, what
time shall I come in, Sunday night or Monday morning?" Freeland replied, "Well, I
don't know, I haven 't got any report as to what time the road trucks will be in, you
can check the board in the morning or tomorrow afternoon and find out ." Freeland
never mentioned anything at this time about his being laid off. Sunday afternoon
Little went to the terminal to check the assignments and found that his name was not
on the board so he "knew it was final."
Priestly testified credibly and without contradiction that at Little 's instigation after
he was laid off, Priestly asked Freeland why Little was not working. Freeland told
him that "if that was all [ he] had to talk about . that he didn 't have anything to
say." Priestly asked him if he thought he was treating Little right . He pointed out
that there were two people kept who had been employed after Little and suggested
that the reason "Little wasn 't working was on account of him signing the union card."
Freeland "wanted to know what card." Then Freeland told Priestly "that so far as he
was concerned , he would never work him another day. But if Wesley asked ... to
tell him whenever freight picked up, he would call him back to work , but he ... said,
'I never intend to work him another day as long as I'm working down here as terminal
manager.' "
The evidence shows that on December 3 instructions went out from Respondent's
headquarters to all terminal managers to "do all possible to reduce costs for the next
five or six weeks." Among the suggestions that were made in this communication was
the following:
First among the many steps you must take now is to examine your man-hour
production record. If this is falling or is down , you must make corrective moves.
Now is the time to release poor performers , those who are apparently not suited
for this kind of work. Your holding them in the weak hope of improvement
5 Little had maintained his chauffeur ' s license and had asked Freeland sometime during
his employment with Respondent -to use , him as a driver.
6 He testified that Cash had told him "this thing may be in the Union one of these
days. Are you going to be with us or not?" He replied, "if everybody else is, I'll have
to." He also testified that Cash had asked him questions about unions a couple of times
and that he " tried to answer him."
s The record shows that there is with Respondent an R. C. Walker who is "Vice presi-
dent of Operations."
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hurts them as well as yourself and the rest of the employees . Explain that you
must improve the efficiency of your operation and recommend that they seek
other employment rather than plan on returning when business picks up.
One last suggestion. ' Don't succumb to the temptation to reduce your labor
costs by reducing hours all around. Sure , reduce everyone to 40 hours; but if
you still have excess manpower , it is time to move out "sorry workers ." 8 Keep
your good people happy and with you , and let 's'all get set for a banner year
in 1964!
- Pursuant to these instructions Terminal Manager Freeland laid off Little and
Marshall Scarborough . In so doing , Freeland kept two employees who had been hired
after Little, namely , O. D. Hammett and Robert L. Clyce. Hammett had been hired
in November and Clyce in October. Hammett was 54 years old (but a husky, healthy
210-pounder ) and was himself laid off on February 1. Clyce was a young man, 33
years old, with 1 year of college . Freeland testified that he hired Clyce with the idea
of making him a permanent employee.
In his testimony Freeland claimed that when he found it necessary to curtail his
crew he picked his best people to keep. In this connection he testified that Little
"wasn 't capable of doing the physical work" and that both he and Scarbrough (who
also wore glasses) had trouble seeing the addresses and names on shipments in the
trailers at night. He also testified that he did not lay them off but that he simply
stopped calling them for assignment . He further testified that this was 99 percent of
the reason for Little's layoff, the rest of the reason being that "he was not able to
drive " 9
In addition to Freeland 's testimony about the caliber of Little's work several of the
witnesses also testified about Little's work. Thus Brevard testified that there was some
heavy work on the dock and that from his experience the dock "is no place for an
older man to work " In his affidavit Brevard had conjectured that Hammett had been
let go because of his age.10 Clyce testified that Little "talked too much" and did not
mind his work. He also testified that Little was finally confined to unloading freight
where no routing was involved . Thomas J. Cash testified that Little talked too much
and as a result got freight in the wrong places on the dock. Jerry Thomas Abbott
testified that Little talked continuously , rolled cigarettes , and "spent entirely too much
time in the restroom."
8 (a) (3) Conclusions(
Notwithstanding that I have found that Freeland made threats to discharge the
dockworkers to prevent the Union from representing them , I am inclined to find that
the layoff and failure to recall Little was not discriminatory within the meaning of the
Act. The most that the General Counsel has succeeded in establishing here, I believe',
is a suspicion that Freeland was motivated in part by his determination to discourage
membership or support of the Union in his layoff of Little.
It is clear to me and I find that the reduction in force that involved Little was
economically justified and was imposed on Freeland by his superiors . While the
evidence concerning Little's shortcomings as an employee was not particularly con-
vincing, it nevertheless is my considered opinion that, comparing Little to those who
N Thomas J . Cash , a witness called by the General Counsel, testified about a letter he
had seen from Respondent 's home office to all terminal managers stating that , "Now is
the time to get rid of your agitators and troublemakers ." He was unable to say who
had written the letter and the quoted phrase was the only thing that -caught his eye or
that he had read in it Although he testified on direct examination that he saw it some-
time between October and November , on cross-examination he testified that he ' did not
know when he had seen it.
91n this connection it appears from Little's otherwise undenied and credited testimony
that he backed trucks to the dock at night, pulled them out, and dropped trailers off in
the yard It also appears that Clyce was used as a driver on occasion at times when-he
did not have a proper license . He later got the necessary chauffeur ' s license after having
once failed the examination for it. At the time of the hearing Clyce was driving a truck as
part of his regular duties '
15 According to Hammett ' s'testimony he was let go because he burned out a clutch
"they said."
.
'
THURSTON MOTOR LINES, INC. 1377
were kept on, Freeland had indeed kept those he considered his better people.11 And
it can hardly be said that a consideration by Freeland in determining the relative
merits of the employees was their support of or opposition to the Union when the one
who was laid off with Little was the only one of the employees who had refused to
sign a union card when they were passed out on the dock by Priestly. Moreover,
whether Little's disavowal of the Union was at his own initiative or at the bidding of
Freeland it would seem that having taken the action he did and having indicated his
willingness to support the Company, as against the Union, Fieeland would have been
inclined to keep him rather than to eliminate him. As for the failure of Freeland to
recall Little it should be noted that Freeland hired no additional help during the
remainder of his term as terminal manager.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, have a close,
intimate, and substantial relation to trade. traffic, and commerce along the several
States, and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
It having been found that Respondent violated Section 8(a)(1) of the Act, it will be
recommended that Respondent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
In view of the foregoing findings of fact, and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. Transportation Employees Association is and at all times material herein has
been, a labor organization within the meaning of Section 2(5) of the Act.
2. Thurston Motor Lines, Inc., is engaged in and at all times material herein has
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent has not engaged in and is not engaging in unfair labor practices
proscribed by Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Thurston Motor Lines, Inc., its agents,
successors, and assigns, shall:
1. Cease and desist from threatening its employees with reprisals in connection with
their union activities or sympathies, or in any like or related manner interfering with,
restraining, or coercing its employees in the exercise of rights guaranteed them in
the Act
2 Take the following affirmative action which it is found will effectuate the policies
of the Act.
(a) Post at its terminal at Humboldt, Tennessee, copies of the attached notice
marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Direc-
n As sad as it may seem, it Is easy to see how an employer would keep a 33-year-old
man with a year of college over a man of 60 and presumably without any college train-
ing. And this would be true even if the intention was to make a truckdriver out of the
younger man although he may have lacked the necessary license at the time and although
the older man possessed such a license
'2 'In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event the Board's Order be enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
770-076-65-vol. 149-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor for Region 26, shall , after being duly signed by Respondent's authorized repre-
sentative , be posted by the Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted . Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(b) Notify said Regional Director in writing within 20 days from the date of the
receipt of this Decision what steps Respondent has taken to comply herewith.13
It is further recommended that unless within 20 days from the date of the receipt of
this Decision , the Respondent notifies said Regional Director , in writing , that it will
comply with the foregoing recommendations , the Board issue an Order requiring the
Respondent to take the aforesaid action.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with economic reprisals if they choose
Transportation Employees Association, or any other union, as their bargaining
representative.
WE WILL NOT instruct or request our employees to report on the union affilia-
tions or activities of other employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
any of our employees in the exercise of their right to self-organization , to form,
join, or assist labor organizations , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection as guaranteed by Sec-
tion 7 of the Act, or to refrain from any or all such activities.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of Transportation Employees Association, or any other labor
organization.
THURSTON MOTOR LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street , Memphis, Tennessee , Telephone No.
534-3161, if they have any questions concerning this notice or compliance with its
provisions.
"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."
Kolpin Bros. Co., Inc. and Textile Workers Union of America,
AFL-CIO. Case No. 30-CA-36 (formerly 18-CA-1779). Decem-
ber 7, 1964
DECISION AND ORDER
On June 15, 1964, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
149 NLRB No. 127.