Thurston Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1970

180 N.L.R.B. 944 (N.L.R.B. 1970)

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thurston Motor Lines, Inc. and Highway and Local
Motor Freight Employees , Local Union No. 667,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and William M . Griffin, and
Grady C. Camp, Jr. Cases 26-CA-3307,
26-CA-3370, 26-CA-3339, 26-CA-3363
January 23, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as modified below.
1. Delete paragraph 1(c) of the Trial Examiner's
Recommended Order and renumber the remaining
paragraphs accordingly.
2. Delete from the notice to employees (marked
Appendix) the fifth full paragraph referring to the
withholding of wage increases.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On October 14, 1969, Trial Examiner Jerry B.
Stone issued his Decision in the above-entitled
proceeding, 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 found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended that such allegations be
dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief as well as a brief in reply to the
Respondent's exceptions.
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 these cases 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 briefs, and
the entire record in these cases, and hereby adopts
the findings,' conclusions , and recommendations of
the Trial Examiner, except as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Thurston Motor
Lines, Inc., Memphis, Tennessee , its officers, agents,
'Contrary to the Trial Examiner and in agreement with Respondent's
exceptions, in the absence of any evidence of established custom or practice
with respect to the granting of periodic wage increases , we do not find
Respondent's reluctance to consider granting same pending the outcome of
the election proceedings currently before the Board was violative of Section
8(a)(l) of the Act. In adopting Section D(9) of the Trial Examiner's
Decision , we do not adopt his inadvertent comment in footnote 12
respecting the test of intimidation.
JERRY B. STONE , Trial Examiner: This proceeding,
under Section 10(b) of the National Labor Relations Act,
as amended, was tried pursuant to due notice on June 24,
25, and 26, 1969, at Memphis, Tennessee.
The respective charges in the case were filed as follows:
Case 26-CA-3307 on March 11, 1969, Case 26-CA-3339
on April ll, 1969, Case 26-CA-3363 on May 15, 1969,
Case 26-CA-3370 on May 23, 1969. The first amended
charge in Case 26-CA-3307 was filed on May 23, 1969.
The second amended complaint was issued on June 11,
1969 * I
The essential issues in this case are whether Respondent
engaged in acts of interrogation as to economic activity,
threats concerning union activity, and whether the
Respondent discriminated in the tenure of employment of
several employees because of union and protected
concerted activities and because of the filing of a charge.
In sum the case involves the question of conduct violative
of Section 8(a)(1), (3), and (4) of the Act.
All parties were afforded full opportunity to participate
in the proceeding. The General Counsel filed a brief and it
has been considered.
Upon the entire record in the case and from my
observation of witnesses I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER'
Thurston Motor Lines , Inc., the Respondent , is now,
and has been at all times material herein , a corporation
with a place of business located at Memphis , Tennessee,
where it is engaged in the motor transportation of freight.
During the past 12 months , Respondent, in the course
and conduct of its business operations , received gross
revenues exceeding $ 1,000,000 of which in excess of
$50,000 was received for the transportation across State
lines of goods and property which were destined for
delivery in a State other than the State of their origin.
As conceded by the Respondent and based upon the
foregoing , it is concluded and found that the Respondent
is now , and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED'
Highway and Local Motor Freight Employees, Local
Union No. 667, affiliated with International Brotherhood
All references to General Counsel's complaint are to this second
amended complaint.
'Based upon the pleadings and admissions therein.
'rhe facts are based upon the pleadings.
180 NLRB No. 140
THURSTON MOTOR LINES, INC. 945
of Teamsters, Chauffeurs, Warehousemen and Helpers of and such cases have been considered in connection with
America, the Union ,' is now and has been at all times the issues in this case.
material herein , a labor organization within the meaning TEA Union Activity
of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues Supervisory Status'
At all times material herein, the following-named
persons have occupied the positions set opposite their
names, and have been, and are now, agents of the
Respondent at its Memphis, Tennessee, location, acting
on its behalf, and are supervisors within the meaning of
Section 2(1 1) of the Act:
John Banks Terminal Manager
Bobby Goza Operations Manager
Luther Coley Dock Foreman
Leonard Majors Dock Foreman
Norman Hasting Dock Foreman
John Pruitt Dock Foreman
Jack Braizel Dock Foreman
Bobby Swanton Office Manager
John LoVorn Shop Foreman
B. Setting'
Thurston Motor Lines, Inc., has operated an interstate
transport system within and between North Carolina,
South Carolina, Virginia, and Tennessee for a number of
years. In its operations it maintains a number of
terminals, one of which is located at Memphis, Tennessee.
Around August 1956, Thurston Motor Lines, Inc.
purchased the B & S Motor Lines and at that time
commenced operating the Memphis terminal. At the time
of Thurston's acquisition of the B & S Motor Lines and
its terminals , Transportation Employees Association, Ind.,
or its predecessor, represented the employees at several of
the former B & S Motor Lines terminals, including the
Memphis terminal. Since August 1956, Thurston Motor
Lines, Inc., and Transportation Employees Association,
Ind., hereinafter sometimes called TEA, have had a
collective-bargaining relationship at the Memphis
terminal . The last collective -bargaining agreement between
TEA and Thurston Motor Lines was executed on May 18,
1967, effective as of May 21, 1967, and until May 21,
1969.
C. Background Animus
The General Counsel requested that official notice be
taken of Thurston Motor Lines, Inc., 149 NLRB 1368, of
Thurston Motor Lines, 159 NLRB 1265, and of Thurston
Motor Lines, Inc., 166 NLRB No. 101, relating to NLRB
decisions of Respondent's unfair labor practices
committed at other terminals , and revealing animus
regarding employee union activities, propensity for
discriminatory discharges in violation of Section 8(a)(3) of
the Act, preference for the TEA over the Teamsters, and
the propensity to engage in the type of conduct alleged in
this proceeding. The request was granted at the hearing
'Herein sometimes called Teamsters or Teamsters Union.
'The facts are based upon the pleadings as clarified at the hearing.
'The facts are based upon a composite of the credited testimony of
Thurston and Banks , the exhibits in the record , and official notice of
National Labor Relations Board decisions captioned Thurston Motor
Lines, Inc. reported at 149 NLRB 1368, 159 NLRB 1265, and 166 NLRB
No 101
The General Counsel's theory of "company knowledge"
of the alleged discriminatees' Teamsters Union activity
and interests involves a contention of "reprisal" because
of a TEA disclaimer filed on or around March 4, 1969, in
regard to the Teamsters petition for representation rights
concerning Respondent's employees at the Memphis
terminal, in Case 26-RC-3412
The Thurston-TEA contract covering the employees
involved, and in existence until May 21, 1969, contained a
"dues deduction" clause. The evidence reveals that the
Respondent made dues deductions for the TEA for
employees who had so authorized The evidence as to
employees who had authorized such dues deductions and
for whom dues were deducted by the Respondent for
TEA, however, is limited to Henderson and Grisham.
It appears that TEA may have had elections for, or
appointments of, new officers in September 1968. Whether
this occurred before or after some of the employees signed
Teamsters Union cards in September 1968 is not revealed.
It appears that during the period of time commencing in
September 1968 and continuing until the employees'
termination on May 21, 1969, Henderson was TEA
secretary and treasurer until March 10, 1969, Grisham
was TEA job steward until March 10, 1969, and Dyer was
TEA executive vice president until May 21, 1969. It also
appears that Slankard was appointed TEA assistant job
steward on March 3, 1969. The facts do not reveal who
held official positions with the TEA prior to September
1968 and do not reveal what company knowledge thereto
was.
After the Teamsters filed the representation petition in
Case 26-RC-3412, Dyer, on or around March 4, 1969,
filed a disclaimer of interest for the TEA in such
proceeding. Dyer, around the same time, informed
Terminal Manager Banks of the aforesaid disclaimer.
The facts reveal that as of March 10, 1969, Terminal
Manager Banks knew that Henderson held a position with
the TEA, that as of March 10, 1969, Banks knew that
Grisham was a TEA steward, that as of March 4, 1969,
Banks knew that Dyer held a position with the TEA, and
that as of mid-April 1969 Banks believed Griffin to be a
TEA office holder.
Teamsters Union Activity
On September 22, 1968, employees Dyer, Henderson,
Grisham, Griffin, and Camp signed Teamsters Union
cards. It appears that on September 22, 1968, and on one
later occasion, the Teamsters Union had meetings for
organizing Respondent's employees. The testimony did
not reveal when the later meeting took place. The total
testimony, including Spears', indicates that the second
meeting must have occurred sometime between September
22, 1968, and February 1969. Thus Spears, who was
interested in the Union, was not solicited to sign a
Teamsters card after his employment in February 1969'
and did not hear of any Teamsters Union meetings during
such time.
Slankard signed a Teamsters Union card on January
21, 1969.'
'On direct examination by the General Counsel, by leading questions,
the above was solicited . On cross-examination , Slankard admitted that in
his affidavit he had set forth that he had signed a Teamsters card in the
first week of September 1968 Cross -examination of Slankard revealed a
demonstrated propensity to exaggerate and build his case, to be at great
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henderson, Grisham, and Slankard testified
individually to the effect that they spoke to others about
the Teamsters Union and "got others" to sign cards. The
testimony of the witnesses was not specific as to
individuals involved or as to the approximate timing of
events. Thus it is not clear whether the "others" referred
to are the same card signers identified in the record
herein.
The testimony of all witnesses except Spears was to the
effect that their Teamsters Union activity was not
knowingly observed by company supervisors. Considering
the total aspects of the witnesses' testimony relating to
Teamsters Union activity, the period of time involved in
which only two union meetings were held, the fact that
Spears was not approached about signing a union card in
February, or later in 1969, the apparent hidden nature of
the activity, and fact that some of the Teamsters card
signers occupied official positions in the TEA during the
"organizing period," I am convinced that the Teamsters
Union activity between September 1968 and the time of
the election, April 25, 1969, was of a minimal nature and
was carried on in a secretive manner.
Miscellaneous
The General Counsel contends further that certain
conduct of the Respondent of a background nature has a
bearing upon an understanding of the issues involved.
Such alleged conduct is as follows:
1. Slankard testified to the effect that he was hired in
July 1968 and that shortly thereafter he had a
conversation with Terminal Manager Banks in Banks'
private office. Slankard testified to the effect that, in the
conversation Banks asked him if he knew anything about
an upcoming election, that Slankard told him that he did
not know about an upcoming election, that Banks stated
that some of the people thought they might try to get the
Teamsters Union in and asked Slankard what he thought
about it.
Banks testified in effect in denial of the foregoing
testimony and testified that at the time the TEA was the
accepted union and that there was no upcoming election.
The facts do not reveal that at the time of the
conversation there was any Teamsters activity or talk
going on at the terminal. The facts further reveal that the
Respondent's contract with TEA as collective-bargaining
representative had about a year to go and that there was
no basis for believing that a representation election was
upcoming.
In his brief the General Counsel concedes that there is
no indication that the Teamsters was engaged in an
organizing campaign or that there was any talk about an
election in July 1968. The General Counsel, however,
observes that Respondent's witness Coley testified that he
had heard talk of union activity for 4 years. Coley's
testimony was in response to a generalized question as to
union activity. In answer to other questions the General
Counsel was unable to obtain testimony from Coley which
would indicate that there were discussions as to
"Teamsters Union" activity. The facts clearly reveal that
TEA, a union, had had a collective-bargaining relationship
with the Respondent for a number of years. Coley's
testimony, under such circumstances, merely constitutes
variance as for timing of events, and that he was generally an unreliable
witness. Considering all of this, I do not find his testimony credible to
establish that he signed a Teamsters Union card in the first week of
September 1968
evidence of talk of TEA activity.
All of the objective facts weigh against the probability
that Banks made the statements alluded to by Slankard.
Most persuasive however is the fact that from my
observation of Slankard and Banks as witnesses to the
alleged incident , I believe Banks to be the more forthright,
truthful , and reliable witness. I credit Banks' denial of the
effect of Slankard 's testimony to this incident.
2. Allen testified to the effect that he was hired around
the first of September 1968, that Terminal Manager
Banks stated that he did not usually hire anyone from a
union line, and that Banks stated that Thurston would
close down before he would go Teamsters Banks testified
to the effect that he had not discussed with any employees
what Thurston would do if the Teamsters came in.
The object ive facts do not support Allen's testimony to
this incident As witnesses , Banks' and Allen's demeanor
appeared equally impressive . Considering the objective
facts, ' I find that the General Counsel has not established
that Banks, around the first of September 1968, told Allen
in effect that Thurston would close down before he went
Teamsters . Furthermore , the alleged statements made with
respect to not hiring men from union lines when
considered with Allen 's testimony to the effect that Banks
would know he (Allen) was from a union line , and the fact
that Allen was hired negate a finding that Respondent was
thus discriminating , as according to the alleged statement,
in its hiring.
D. Interference, Restraint, and Coercion
1. The General Counsel's complaint (paragraph 7(a))
alleges in effect that in November 1968 the Respondent,
by Supervisor Banks, threatened an employee with loss of
work if he voted for or supported the Union.
The evidence to this issue may be summarized as
follows. The General Counsel adduced testimony from
witness Grisham as to an event occurring after Banks
became terminal manager on July 1, 1968. After a 10(b)
issue had been raised by Respondent's counsel, the
General Counsel elicited from Grisham's testimony that
the event occurred at least 3 or 4 months after Banks had
taken over (as terminal manager ).' The General Counsel
stated at the hearing, when asked, that the testimony
related to the events alleged as having occurred in
November 1968.
Grisham testified in effect that 3 or 4 months after July
1, 1968, Banks had a "get acquainted" conversation with
him, that Banks asked him how he felt about the
Teamsters and told him that if he wanted to have a job,
he had better not vote for the Teamsters because Mr.
Thurston would close down the terminal and the
employees would not have a job. Banks testified in denial
of having told employees what Thurston would do if the
Union came in.
Grisham's testimony otherwise revealed that he was a
TEA member and had authorized dues to be deducted
from his pay, that he became a TEA steward in
September 1968 and functioned as such until March 10,
1969, and that in one or more of four affidavits submitted
to the NLRB after his discharge and prior to the hearing
herein , he had set forth that Banks, on the occasion in
question , had asked him if he were a member of TEA.
'Substantially the same objective facts as related with respect to I,
above
'If the event occurred before September 11, 1968, a finding of violative
conduct is barred by Section 10(b).
THURSTON MOTOR LINES, INC.
Of the two witnesses to the points involved, I found
Banks to be more impressive as a truthful and objective
witness than Grisham. The objective facts also strongly
indicate the lack of probability of the events being as
testified to by Grisham. Thus it is clear that Banks and
the Respondent reasonably knew that Grisham was a
TEA member. Teamsters Union activity, as revealed by
the evidence, was not of significant degree , and the
evidence, unless Grisham is credited, does not reveal
company knowledge of the Teamsters Union activity at
this time." There was no pending Teamsters petition for
an election and there was a collective- bargaining
agreement between the Respondent and TEA that was to
be in effect until May 21, 1969. Accordingly, I credit
Banks' testimony and discredit Grisham's testimony to
this event, and recommend dismissal of complaint
paragraph 7(a).
Furthermore, in view of General Counsel's burden to
establish the event as having occurred during the relevant
10(b) period (on or after September II, 1968) and
reasonably close to the time alleged in his complaint
(November 1968), 1 would also dismiss the allegation
(complaint paragraph 7(a)) on the basis that General
Counsel has not met such burden.
2. The General Counsel's complaint (paragraph 11(a))
alleges that the Respondent, by Supervisor Goza,
threatened an employee on or about October 9, 1968, with
closure of its Memphis terminal if its employees selected
the Union as their collective-bargaining representative.
The evidence on this issue may be summarized as
follows: Henderson testified to the effect that in October
1968 Supervisor Goza spoke to him in Goza's office, and
that Goza asked him about the "talk that was going
around" and told him that if the employees voted the
Union in, the terminal would be shut down. Goza testified
in denial of this event.
I found Goza to appear to be a more truthful appearing
witness than Henderson as to this event. Furthermore, the
objective facts with respect to the pendency of any
election, the status of TEA as bargaining agent at the
time , the minimal nature of the union activity at the time,
and the absence of evidence of company knowledge of
Teamsters Union activity all point to the lack of
probability of Henderson's testimony. I credit Goza's
testimony and discredit Henderson's testimony upon this
point. Accordingly, I recommend that complaint
paragraph l I(a) be dismissed.
3. With respect to certain testimony of Henderson, it is
noted that the General Counsel's complaint only alleges
illegal interrogation by Supervisor Banks on or about
March 12, 1969, and does not allege illegal interrogation
by Supervisor Banks during the preceding months. It is
further noted that the General Counsel does not contend
in his brief, factually or in argument , that the Respondent,
by Banks, engaged in acts of illegal interrogation as to
employees' union or protected activities "before Christmas
1968."
Henderson testified to a conversation between Banks
and Henderson before Christmas 1968 with respect to
what Henderson thought of the TEA. It is noted that such
evidence was admissible and relevant in connection with
the 8(a)(3) allegations . Considering the pleadings and the
"The General Counsel has attempted in the rebuttal stage of the case to
prove company knowledge of Teamsters Union activity as of September
23, 1968. Even assuming such evidence as he has attempted to prove, the
evidence would not reveal company knowledge of union activity by
Grisham at this time.
947
brief, however, it cannot be said that such matter has been
properly pled or litigated to warrant a finding of conduct
violative of Section 8(a)(1) of the Act.
4. The General Counsel's complaint (paragraphs 7(b)
and 7(c)) alleges that the Respondent by Supervisor
Banks, in December 1968 and in February or March
1969, threatened its employees with closure of its
Memphis terminal if the employees selected the Union as
their collective-bargaining representative.
The evidence to this issue may be summarized as
follows. As indicated previously, Slankard testified to the
effect that right after he started to work in July 1968 he
had a conversation with Banks in which Banks spoke of
an upcoming election and the Teamsters. As indicated, I
discredit Slankard's testimony to the incident.
Slankard also testified to the effect that he had two
other conversations with Banks about the Teamsters
Union. One of these conversations was supposed to have
occurred right before Christmas. Luther Coley was
supposed to have been present for most if not all of the
conversation. The other conversation with Banks was
supposed to have taken place in February 1969, and Sam
Collier and Jimmy James were suppose to have been
present. As to the before Christmas 1968 and February
1969 conversations, Slankard testified in effect that Banks
spoke of the Teamsters and that the terminal would be
closed if the Union (Teamsters) were voted in by the
employees.
Cross-examination of Slankard with respect to his three
affidavits given to the NLRB investigative staff revealed a
person of not great preciseness. Thus, although Slankard
was initially employed in July 1968, his sworn affidavit
adverted to initial employment on January 25, 1968.
Furthermore, his statement in his affidavit, relating to an
event in January 1969, apparently of the same subject
matter testified to by him as being the February 1969
conversation with Banks, revealed that the Teamsters was
not mentioned. On cross-examination, Slankard testified
to the effect that "Teamsters" was not mentioned in such
conversation. Slankard further appeared to be an
unreliable witness with respect to the items of
"merchandise" he had improperly taken from company
premises for his own use. Slankard's demeanor as a
witness was not that of a frank, forthright, and truthful
witness, and the total examination of him as a witness
corroborates this indication. In sum, of the two witnesses
to these events, I found Banks to appear to be the more
honest, frank, forthright, and truthful, and I credit his
denial that he told employees what Thurston would do if
the Union were selected. I discredit Slankard's testimony
relating to threats that Thurston would close the terminal
if the Union were selected, voted for, or chosen by
employees.
Harold Horner testified to the effect that he had two
conversations with Supervisor Banks about the Union,
that one occurred around the first or the middle of
February 1969 and that the other conversation occurred
about 2 weeks later. According to Horner, Banks spoke to
him around the first or middle of February 1969 and told
him in effect that "Mr. Thurston" had asked Banks
whether Horner could be counted on in the oncoming
election. About 2 weeks later, according to Horner,
Horner went to Banks' office to ask about getting more
hours of work. Horner testified to the effect that after the
question of hours was straightened out, Banks stated, "I
guess you know that Mr. Thurston will lock the doors up
before he signs a Teamsters contract." Horner's testimony
to the events appeared somewhat limited and he stated
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that it was all that he remembered as being said. Banks
testified in denial of telling any employee what Thurston
would do with regards to the Teamsters Union. From
their demeanor there did not appear to be much difference
between Banks and Horner as to their forthrightness and
truthfulness Banks was questioned by counsel with respect
to many details. In my opinion such questioning tested
him well, and he gave the appearance of a truthful and
forthright witness. Considering the totality of events, the
demeanor of the witnesses, and the entire questioning of
both witnesses, I am convinced that the preponderance of
the evidence tilts in persuasiveness to a crediting of Banks'
denial that he told any employee of what Thurston would
do about the Teamsters. Accordingly, I credit Banks'
testimony and discredit Horner's testimony to the events
in question.
Considering all of the foregoing, I conclude and find
that the facts do not establish that the Respondent, by
Banks, in December 1968 and in February or March
1969, threatened its employees with closure of the
Memphis terminal if the employees selected the Union as
their collective-bargaining representative. Accordingly, it
is recommended that complaint paragraphs 7(b) and 7(c)
be dismissed.
5. The General Counsel alleged in his complaint
paragraphs 8(a) and 8(b) that the Respondent by
Supervisor Luther Coley, (1) in November 1968, created
the impression of surveillance of its employees' union
activities by telling an employee that Respondent knew
that its employees had signed union cards, and (2) in
February 1969, or March 1969, threatened an employee
with closure of Respondent's Memphis terminal if its
employees selected the Union as their
collective-bargaining representative.
The General Counsel's witness with respect to these
allegations was Slankard. Slankard testified to the effect
that the events were really one event and that although in
his affidavit he had set the time as having been in
November 1968, that the events occurred after the first of
the year.
Slankard testified to the effect that after the first of the
year Coley spoke at a meeting relating to instructions of
how to load trailers, that Coley made the comment that
he knew "that we had all signed membership cards for the
union , because at one time he was a driver, and he had
done the same thing himself." After a leading question,
Slankard further testified to the effect that Coley "said
that some years back that he had met Mr. Thurston
himself and that he really believed his ownself that Mr.
Thurston would shut down the terminal doors in Memphis
if the Teamsters were voted in."
Coley denied the conversation about the membership
cards and about the "Teamsters."
First, it is noted that even assuming the truth of
Slankard's testimony about the membership cards, such
facts fail to establish that the Respondent thereby created
the impression of surveillance of its employees' union
activities. Coley's alleged statement of the basis of his
belief completely negates the creation of an impression of
illegal surveillance.
Furthermore, as previously indicated, Slankard did not
present the appearance of a credible witness on the major
points of his testimony. Even assuming his testimony to be
uncontradicted, I do not find him to be a witness of
sufficient credibility to establish the facts contended. I find
it clear that Coley as a witness, compared to Slankard,
merits crediting. I credit Coley's denial of these facts in
issue and discredit Slankard's version of such facts.
Accordingly, I recommend the dismissal of complaint
paragraphs 8(a) and 8(b) relating to the factual issues
herein involved.
6. The General Counsel's complaint (paragraph 7(d))
alleges that Supervisor Banks, on or about March 12,
1969, interrogated employees, created the impression of
surveillance by telling one employee that Respondent had
been furnished the names of its employees who supported
the Union and by telling another employee that he
(Banks) knew the employee had attended a union meeting.
The General Counsel's principal witness in support of
the complaint allegation was Allen. Allen testified in
effect that on March 12, 1969, he had a conversation with
Banks in which he gave notice of leaving, that Banks
asked what was wrong with Thurston, that he replied in
effect that what was wrong was that Thurston had fired
three men because of Teamsters activity, that Banks
replied that he did not know this but was glad to know it,
that Banks asked him if he could help out by giving the
names of other Teamsters leaders, that Banks told him
that Dyer was squealing to them about the union leaders
and that the men should know this, that Banks asked if
there was any trouble with the Union, that Banks asked in
effect about what "Dale and Tommy," two older men,
would do, and that Banks threatened that Thurston had
men who would run over picket lines, and talked about
having lawyers and about a past incident. Banks did not
deny that he engaged in the interrogation described.
Banks, however, denied that Allen accused him of firing
the three men because of union activity and testified in
effect that the word used about Dyer was not "squealing"
and was about the theft problem.
Considering the demeanor of the two witnesses, I found
that Banks appeared to be a more frank, forthright, and
truthful witness than Allen. The logical consistency of the
evidence also militates to a crediting of Banks over Allen.
I am also convinced, as an example, that Banks would not
have proceeded to ask for help, to discuss the Dyer
episode as described, and to make threats as described, if,
as Allen testified, Allen had accused the Respondent of
having fired three union men. I credit Allen to the effect
that Banks did engage in interrogation as to employee
sympathies and did request the names of leaders. I
discredit Allen's testimony otherwise in conflict with
Banks.
Accordingly, I conclude and find that the evidence
establishes that the Respondent, by Terminal Manager
Banks, engaged in interrogation as to employees' union
activities or beliefs in a manner constituting interference,
restraint, and coercion within the meaning of Section
8(a)(1) of the Act. Such conduct is violative of Section
8(a)(1) of the Act. I so conclude and find. Except as so
found herein, it is recommended that complaint paragraph
7(d) be dismissed.
7. The General Counsel's complaint (paragraph 9)
alleges in effect that Supervisor Majors, on or about
March 21, 1969, interrogated an employee concerning his
activities on behalf of the Union.
The only witness to the events concerning this
allegation was Dyer. The evidence is clear that on
November 18, 1968, Dyer filed an unfair labor practice
charge with the NLRB in which he alleged that the
Respondent had discriminatorily laid him off on
November 15, 1968, because of his membership or
activities in behalf of the Union. The General Counsel did
not allege violative conduct with respect to the allegations
in said charge Under the circumstances there is no basis
to warrant a conclusion that the charge was other than
THURSTON MOTOR LINES, INC.
one without merit.
As indicated, on February 26, 1969, the Union filed a
petition for representation rights for Respondent's
employees in Case 26-RC-3412. On March 18, 1969, a
representation hearing in said case was held. Dyer
attended the representation hearing at which the
Teamsters was represented by a Mr. James Hall, a Negro.
On, Friday morning ,1 March 121, 1969, Dyer did not
receive his paycheck at the regular time that he was
normally paid. Thereafter he went on the dock and told
Dock Foreman Majors about the failure to get his check.
Majors asked Dyer in effect if he had called his "nigger
buddy" yet.
Dyer later asked Terminal Manager Banks about his
check and Banks told Dyer that he would check into it.
Banks later told Dyer that his check was there and gave it
to Dyer.
Considering all of the foregoing, I conclude and find
that Majors' remarks did not constitute conduct that
interfered, restrained, or coerced Dyer in his union or
protected activities. I shall recommend that complaint
paragraph 9, the allegation to illegal conduct in such
regard, be dismissed.
8. The General Counsel's complaint (paragraph 7(f))
alleges that Supervisor Banks , on or about April 18, 1969,
interrogated an employee concerning his employee's union
membership, activities and desires, told the employee he
could not be given a wage increase because of the Union,
and withheld such wage increase from the employee.
Camp and Banks were the witnesses to the foregoing
issues. It is noted that the events involved occurred during
the time of a union's efforts to obtain representation
rights for Respondent's employees and when an NLRB
representation election was scheduled for April 26, 1969.
Banks credibly testified to the effect that prior to the
events involved he had been advised that the granting or
withholding of wage increases during a union organizing
campaign resulted on occasion in a company being found
guilty of violation of the National Labor Relations Act.
The composite effect of Camp's and Banks ' credited
testimony was to the effect that around the first of April
1969 Camp approached Banks about a raise, that there
was no set policy as to raises , and that Banks told Camp
in effect that he had not checked the records but, if he
were due a raise, he would see that he got it, however,
salaries were frozen because of the union activities and
that no raises had been given and an exception could not
be made for him.
Camp further credibly testified, and Banks did not
deny, the following as is revealed by excerpts from
Camp's testimony:
A. He just asked me what I thought about the
situation, asked me if I thought the men would give
him any trouble. I told him that I didn't know whether
they would or not, that they come and went so fast that
I didn't know but just a very few of them.
Q. The situation. Did he mention the situation at all,
or did he elaborate on that at all, what he was talking
about?
A. Well, we was talking about my raise and the
union and that was the conversation.
Banks was questioned as to the reasons for Camp's not
receiving a raise in March or April 1968. Such testimony
is revealed by the following excerpts from his credited
testimony:
Q. (By Mr. Bensley ) Was there any reason besides
the petition and the election coming up that he didn't
get a raise?
949
A. I haven't evaluated his work, and I never give a
man a raise without discussing it with his supervisor,
and evaluating it to see if he has merited a raise.
Q. (By Mr Bensley) I will just ask the question
while it is fresh on your mind, Mr. Banks. Did the
union activitiy have something to do with him not
getting a raise at that time?
A. Yes.
It is also clear from Camp's credited testimony that the
Respondent had no set policy for wage increases, that
Banks had told him in 1968 of a desire to give periodic
wage increases, and that Camp's last wage increase was in
November 1968.
Camp credibly testified to the effect that he had a later
conversation with Banks around April 15, 1969, as is
revealed by the following excerpts from his testimony."
Q. All right. Tell us what was said at that time and
who said it, as best you recall?
A. He told me he was sorry that he had overlooked
the fact that I was due a raise the first - I was due a
raise. That as soon as this situation with the union and
the raises were lifted, he would right his wrong.
Considering the foregoing in total context, I conclude
and find that the interrogation involved herein at most
suggests general inquiry of opinion as to the possible
outcome of an oncoming election. As such I conclude and
find that the General Counsel has not established that
Banks interrogated employee Camp about union activities
or desires, or protected activity in a manner constituting
interference, restraint, and coercion within the meaning of
Section 8(a)(1) of the Act
Considering the foregoing, I find it clear and conclude
and find that Banks, in April 1969, told Camp in effect
that wage increases were being withheld because of the
pendency of union activities (and the election). The Board
has ruled on similar situations and similar contentions
against the Respondent's position. Thus, persuasive as
Respondent's arguments or reasons may be, the issue is
one as a matter of law previously decided by the Board.
Accordingly, in accordance with Board law, it is
concluded and found that the Respondent, by such
conduct, engaged in conduct violative of Section 8(a)(1) of
the Act.
Considering all of the foregoing, I conclude and find
that the General Counsel has failed to establish that the
Respondent actually withheld a wage increase from Camp
on April 18, 1969. Thus I note that the General Counsel's
complaint allegation made it clear that the complaints of
interrogation, threat, and withholding of wage increase
occurred on the same date, April 18, 1969. The facts as to
the interrogation and threat were placed by Camp as
being the first of April. The same facts reveal that at that
time Banks referred to the fact that he had not checked
the records. Thus it would appear that the question as to
whether a wage increase was due was speculative.
The General Counsel would argue that Banks, in the
second conversation, in effect admitted that a wage
increase was due as of the time of the first conversation.
General Counsel's questions and Camp's answers as to the
events raise a question as to the timing of events. Thus, if
as alleged in the complaint, the initial conversation had
"Banks does not appear to have been questioned about this incident To
the extent that his testimony , with respect to what he told Camp during the
first conversation, might be deemed a denial hereof it is discredited for
such purpose
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred around April 18, 1969, the second conversation
would have occurred around the first of May, and
reference to a wage increase being due as of the 1st would
refer to the 1st of May 1969. The General Counsel's
follow-up question as to the time of the second event and
the answer thereto results in confusion between allegation
and proof.
The General Counsel would further argue that Banks'
answer, to the effect that union activity had something to
do with Camp's not getting a raise, constitutes an
admission that a wage increase was withheld for improper
reason.
I have considered all of the foregoing. I am convinced
that Banks was a truthful witness to these events and
attempted to honestly relate the answers to the questions
propounded. Thus I am convinced that Banks' answer of
"yes" to General Counsel's question as to whether union
activity had something to do with Camp's not getting a
raise was truthful, and that it in effect related only to the
fact that during the period of time involved he was not
considering any employee for raises. I am also convinced
that Banks' testimony to the effect that Camp did not get
a raise because he had not evaluated his work reveals that
the Respondent in fact did not determine whether or not
Camp was due a raise.
In sum, I conclude and find that the General Counsel
(1) has not sustained his burden of proof on the allegation
that wage increases were actually withheld from Camp on
April 18, 1969, and (2) has not established interrogation
as to union activity in violation of Section 8(a)(l) of the
Act. Accordingly, it will be recommended that complaint
paragraph 7(b) in such regard be dismissed. As indicated,
the facts establish that the Respondent, as alleged,
violated Section 8(a)(l) of the Act by its statement of
withholding wage increases because of union activity.
9. The General Counsel's complaint (paragraph 10)
alleges that the Respondent , by Supervisors Hastings and
Pruitt, on or about April 26, 1969, told its employees that
the 13 employees who had voted for the Union would be
fired.
Camp, a witness for the General Counsel, credibly
testified to the effect that on April 26, 1969, he had a
conversation with Supervisor Hastings at a place away
from the terminal. What occurred is revealed by the
following credited excerpts from Camp's testimony.
A. I asked him how the election come out, because I
left before it was over, and he told me the vote was 43
to 13, and we went on talking about his dad and first
one thing and another and he told me later during the
conversation that those men would be fired, because
Mr. Thurston would find out some way or another how
who voted and they would be fired.
Q. Did he say anything that he based that statement
on at all?
A. He just said he knew.
Camp further credibly testified to the effect that he and
Hastings were very close friends and had been practically
raised together , and that the conversation was one
practically as brother to brother.
Spears, a witness for the General Counsel, testified to
the effect that on Saturday after the election, on April 25,
1969, Supervisor Pruitt said to him, "Well, everybody that
voted union is going to have to be finding them another
job, because they are not going to be working here too
very much longer ." On cross-examination , Spears
admitted giving the NLRB an affidavit on May 23, 1969,
relating to contention that he was discriminatorily
discharged, and in which he had set forth, "No supervisor
has ever asked me if I was for the Union or told me that
I would lose my job because of the union, or anything like
that."
Pruitt, a witness for the Respondent, testified in denial
that he had said in effect that the ones who had voted for
the Union may as well go and get another job because
they won't be working here. Pruitt testified to the effect
that he had said that there were 89 trucklines in Memphis,
that anyone who wanted to work for a union truckline
could do so by working for one of the 89 union trucklines,
that all they had to do was to go to work.
Considering the demeanor of witnesses Spears and
Pruitt, and Spears' prior statement in his affidavit, I find
Pruitt to be the more credible appearing witness and
credit his version of the facts and discredit Spears' version
of the facts.
Considering all of the foregoing, I conclude and find
that the evidence does not establish that the Respondent,
by Pruitt, made a violative threat as alleged.
Considering all of the foregoing, I conclude and find
that the evidence as to Hastings' statements to Camp on
April 26, 1969, establishes that the Respondent, by
Hastings , threatened that employees who voted for the
Union would be discharged. Such conduct is violative of
Section 8(a)(1) of the Act."
10. The General Counsel's complaint (paragraph 7(g))
alleges that Respondent, by Terminal Manager Banks
"On or about May 2, 1969, told two of its discharged
employees that they would be given good
recommendations for other employment if they dropped
their charges with the National Labor Relations Board,
but if they did not drop their charges, they would not be
given good recommendations."
Grisham and Henderson testified in effect to facts,
which if believed, support the above allegations. Banks
testified in effect to facts, which if believed, rebut such
allegation . It is sufficient to say that I am convinced from
the demeanor of the witnesses and the logical consistency
of the facts that Banks appeared to be the more truthful
witness to the events. In fact, the examination and
cross-examination of Henderson tend to corroborate the
probabilities of Banks' testimony. I credit Banks'
testimony to the events and discredit Grisham's and
Henderson 's testimony where inconsistent with that of
Banks.
It is undisputed that Banks had conversations with
Grisham and Henderson about 1 month after their
discharges. Henderson came by Banks ' office to talk with
Banks . Grisham later telephoned Banks. The
conversations involved inquiries by Grisham and
Henderson as to the securing of releases of credit checks
to a company for whom Grisham and Henderson were
then working. Grisham and Henderson needed such
releases in order to become regular workers at such
company.
Banks credibly testified to the effect that in his
discussion with Henderson he asked if he were there to set
him up, told Henderson that he was not telling anything
on any of the people who had charges," and said that he
"Respondent did not file a brief in this matter. Its questions to Camp
suggest a contention that the remarks by Hastings were not coercive
because Hastings and Camp were "like brothers " The test of intimidation
is not an objective one but a subjective one. See Vernon Livestock
Trucking Co., 172 NLRB No. 213; McKinnon Services, Inc, 174 NLRB
No. 169; and cases cited therein
"The record uses the word "cards." My recollection of Banks' testimony
and the logical consistency of events reveal that the word "charges" was
used.
THURSTON MOTOR LINES, INC.
wasn't saying anything good or bad about them. Banks
credibly testified that he similarly told Grisham that he
was not going to talk about the matter one way or the
other as long as a charge existed. Banks credibly testified
that he did not say or imply to either Henderson or
Grisham that if they dropped their charges that he would
give them a good recommendation. Banks further credibly
testified that when the retail credit people came around
that he told them that he was not at liberty to discuss the
matter, and that he did not.
Considering all of the foregoing, I conclude and find
that the General Counsel has not established, as alleged in
complaint paragraph 7(g) and conclusionary paragraphs
thereto, that the Respondent by the foregoing conduct has
violated Section 8(a)(l) and (4) of the Act.
11. The General Counsel alleges in his complaint
(paragraph l l(b)) that Supervisor Goza "on or about May
23, 1969, told an employee he would not receive his
vacation pay because he had filed charges with the
National Labor Relations Board."
The facts are clear that Grady C. Camp, Jr., was
discharged on May 14, 1969, and that at that time he was
entitled to vacation pay. The facts are clear that he
brought this matter to Terminal Manager Banks'
attention. On May 23, 1969, Camp went to the terminal
to pick up his final paycheck. Camp attempted to see
Terminal Manager Banks about his vacation pay which he
had not received. Camp was only able to speak to
Operations Manager Goza and to explain his mission.
Goza left for a short while and returned and told Camp
that Terminal Manager Banks was not going to file with
the Company for Camp's vacation pay because he had
filed an affidavit with the National Labor Relations
Board. As of the time of the hearing in this matter, Camp
had not received his vacation pay.
The Respondent's defense appears to be that Banks,
because of irritation at Camp about the termination
interview on May 14, 1969, decided not to file for
vacation pay but to let Camp do so.
To make a long story short, I found Camp a very
credible witness. Considering his demeanor and Banks'
and the logical consistency of the facts, I credit his version
of the facts relating hereto. Considering all of the facts
and the logical consistency thereof, I reject the
Respondent's apparent contentions in this regard.
Although the wording of the General Counsel's
complaint appears to be that normally used for 8(a)(l)
type allegations as to these events, the conclusionary
paragraphs allege both 8(a)(1) and (4) as to this incident. I
find the issue litigated as both a violation of Section
8(a)(1) and Section 8(a)(4). The parties did not argue the
question of employee status. Even though I find later in
this Decision that the evidence does not support a finding
of discriminatory discharge of Camp on May 14, 1969, I
am convinced that he was an employee, within the
meaning of the Act, at such time as his relationship with
the employer had not been completely concluded with
respect to his rights of pay for employment. Accordingly,
I conclude and find that the facts reveal that the
Respondent violated Section 8(a)(l) of the Act by Goza's
statement to Camp that Banks would not file for his
vacation pay because Camp had filed an affidavit with the
NLRB. I further find that the Respondent's failure to
process Camp's vacation pay was for the same reason,
and that Respondent thereby violated Section 8(a)(4) of
the Act.
E. The Discrimination Issues
Don R. Slankard
951
The General Counsel alleges that Don R. Slankard was
discriminatorily discharged on March 8, 1969, in violation
of Section 8(a)(1), (3), and (4) of the Act.
Don R. Slankard was hired as a warehouseman by the
Respondent in July 1968." Thereafter in January 1969 he
took, and failed, a driver's test, later passed a driver's
test, and in January 1969 became a city driver.
Slankard signed a Teamsters Union card on January
21, 1969. At some unknown time, off of plant premises,
Slankard got two other employees to sign Teamsters
Union cards. Slankard did not attend any union meetings.
Slankard, however, talked to some of the other employees
about the benefits of voting for the Teamsters. In regards
to the foregoing there is no direct evidence of company
knowledge of Teamsters activity on Slankard's part. On
March 3, 1969, Slankard became assistant job steward for
the TEA Union. However, he did not have a dues
deduction authorization submitted to the Company and
there is no evidence that the Company knew of Slankard's
activity for the TEA.
In 1968 while Slankard was working as a
warehouseman, Terminal Manager Banks complimented
his work. The evidence relating to Slankard's work as a
driver is not persuasive that anyone complimented his
work as a driver. Thus Slankard's testimony of receiving
compliments from Supervisor Coley is contradicted by
Slankard's prehearing affidavit and is discredited. It is
clear that in early February 1969 Operations Manager
Goza orally reprimanded Slankard for leaving the
terminal in a truck with a trailer door open and with
freight loaded on the tailgate. The record is clear that in
February 1969 Slankard engaged in a fight at work with a
fellow employee. The record also clearly reveals that
around this time the Company was faced with a theft and
shortage of merchandise problem, that an employee was
apprehended and fired for theft, and that other employees
including Slankard were warned about the problem and
solicited to return merchandise taken from the terminal.
Slankard returned a substantial quantity of merchandise
at such time. Also during this time Slankard and
Supervisor Coley became involved in a dispute over
whether Slankard would follow orders. This dispute
almost resulted in Slankard's getting fired by Coley.
On March 8, 1969, Slankard was told to hook up a
trailer to a tractor. Slankard discovered a problem with
the "dollies" and sought help from Shop Foreman
LoVorn. LoVorn locked the truck under the trailer and
then left. Slankard then proceeded to hook up the tractor
and trailer. When Slankard started to drive the trailer out
of the terminal, the trailer "dropped" from the tractor.
Slankard testified to the effect that LoVorn and he
both had checked to see whether the safety latch, with
respect to the tractor and trailer, was engaged and found
that it was. LoVorn testified to the effect that he did not
check the trailer for proper connection, that this was left
to Slankard to do as part of his duties. I found LoVorn to
appear to be a more credible appearing witness than
Slankard. Considering Slankard's demeanor, his direct
and cross-examination, and his prior statements, I am
convinced that he stretched the truth in his own favor. I
'The facts are based upon a composite of the credited testimony of
Slankard, Banks, Coley , LoVom, Barbee , Collier, and Majors , exhibits in
the record, and the logical consistency of the evidence
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credit LoVorn's testimony to the effect that he did not
check the proper connection of the trailer. I discredit
Slankard's testimony to the effect that he did so.
After the trailer had dropped from the tractor,
Slankard and others, and later LoVorn, inspected the
tractor and trailer Slankard credibly testified to the effect
that after the trailer dropped, the latch was still in a
locked position with the safety latch down, and that an
employee named Moore told LoVorn that a trailer had
been dropped by him with the same tractor a week before.
LoVorn credibly testified to the effect that in connecting
the trailer to the tractor that the driver has to have the
latch hooked up, the air hoses hooked up, the dollies
pulled up, and the fifth wheel checked. LoVorn credibly
testified to the effect that after the trailer had been
dropped, he checked the fifth wheel and the connecting
mechanism and found no mechanical flaws.
The matter of the trailer drop was reported to Majors
Thereafter for the rest of the day Slankard was assigned
nondriving duties. LoVorn had to hire a wrecker to have
the trailer picked up. LoVorn thereafter presented the bill
for the wrecker service to Terminal Manager Banks and
LoVorn told Banks of the trailer dropping incidents.
Banks then went to Supervisor Majors for a report on the
incident. Majors and Banks discussed this matter, the
incident of Slankard's fight with Butler, and other
incidents Terminal Manager Banks told Majors that
Slankard had to go. The matter was left to Majors to
handle.
At the end of the workday on March 8, Slankard
discovered that his timecard was missing. Slankard went
to Dock Foreman Munns and asked where his timecard
was. Munns replied that he did not know. Slankard asked
if he had been fired. Munns replied that Slankard had
been fired. Apparently a short time later Slankard spoke
to Munns in the office and Munns told Slankard that he
had been fired for dropping the trailer, that he and
Operations Manager Majors had talked the matter over,
that they had called Terminal Manager Banks and it had
been decided that it was best for the Company if Slankard
did not work there anymore.
Majors was away from the terminal for a few hours.
Slankard waited and saw Majors when he returned.
Majors in effect repeated what Munns had said and stated
that the wrecker had cost $20 Majors asked Slankard
when he had punched out Slankard said that he did not
have his timecard Majors replied that he did, pulled the
card, and wrote the time (for punching out) on the card.
Slankard, later that day, telephoned Banks and made
arrangements to see Banks on Monday, March 10, 1969.
On Monday, March 10, 1969, Slankard met with Banks
and Majors at the terminal office. Banks in effect told
Slankard that the trailer dropping was the straw that
broke the camel's back. Banks also discussed the question
of past insubordination, failure to perform duties
satisfactorily, failure to get along with others, and the
abusing of equipment Banks then in effect suggested that
Slankard should resign, and stated that in a similar
situation an employee had not resigned and had later
come back and related that he had not been able to get a
job. Banks asked Slankard what he wanted on his
termination slip. Slankard wanted to know what would be
on the slip. Banks indicated that he would put the "truth"
or that he had resigned Slankard agreed that he wanted
to voluntarily resign. Slankard's termination slip was
thereupon completed by office personnel in such fashion.
Analysis and Conclusions
The General Counsel, at the hearing and in his brief,
made many arguments and contentions to the effect that
the evidence adds to a finding that the Respondent
discriminatorily discharged Slankard on March 8, 1969, in
violation of Section 8(a)(1), (3), and (4) of the Act. I have
considered all of the General Counsel's arguments and the
evidence as a whole, and am convinced that the General
Counsel has not established by a preponderance of
evidence that the Respondent was discriminatorily
motivated in the discharge of Slankard on March 8, 1969.
It is Respondent's contention by its pleadings and
statements of counsel that Slankard was not fired on
March 8, 1969, for "dropping a trailer" but that Slankard
quit on March 10, 1969. In this regard, I find the facts to
clearly support General Counsel's contention that
Slankard was discharged on March 8, 1969, under
circumstances indicating that he was discharged for
"dropping a trailer" on March 8, 1969
The critical question is whether Slankard was
discharged on March 8, 1969, for discriminatory reasons
in violation of Section 8(a)(l), (3), and (4) of the Act.
The General Counsel contends that he has established a
basis for a finding that Respondent knew or believed that
Slankard was active on behalf of, or interested in, the
Teamsters at the time of the discharge on March 8, 1969.
It is clear that the record reveals no basis of direct
knowledge or belief by the Respondent with respect to
Slankard's involvement in the Teamsters Union. The
General Counsel contends that an inference should be
drawn on a "small plant" theory that Respondent had
such knowledge or belief of Slankard's union activity In
my opinion the evidence is of insufficient persuasive value
to warrant such an inference. Thus the evidence of overall
Teamsters Union activity is meager concerning the time
period involved, such activity as was carried on was not of
notorious and public fashion, the employees and
supervisors do not work on assembly line or in a manner
wherein such activity reasonably could be expected to be
observed, the reason and circumstances of Slankard's
discharge do not reveal a patent ulterior reason from
which an inference of discriminatory motivation should be
drawn I therefore do not find it proper to draw an
inference that the Respondent knew of Slankard's
activities on behalf of the Teamsters Union at the time of
his discharge on March 8, 1969.
The General Counsel's other theory of company
knowledge of Teamsters activity, based upon an
assumption by Respondent of Teamsters interest by
certain employees after the February 26, 1969, TEA
disclaimer of interest in Case 26-RC-3412, is not
supportable, especially in Slankard's case, since there is
no evidence of Respondent's knowledge of his TEA
interest or position holding at the outset."
With respect to the question of discriminatory
motivation regarding Slankard's discharge, the General
"The General Counsel contends proof of company knowledge reflected
in certain affidavits for which he failed to lay a foundation for affirmative
evidentiary use
THURSTON MOTOR LINES, INC
Counsel argues the `sham" defense, the failure of other
firings because of `theft," the failure of Respondent's
notation on Slankard's personnel records as alledgedly
required by Government rules about the "theft" question
the firing for 'dropping a trailer" when others had not
been fired for such cause, the number of discharges during
the Teamsters campaign as compared to all other
discharges throughout the period of time Terminal
Manager Banks was at the terminal, and the unerring
discharge of Teamsters adherents
Considering the evidence thereto and these contentions
in the light most favorable to the General Counsel, the
evidence of 8(a)(I) conduct found in this case, the
discharge of Grisham because of conduct involved in
pursuing a contractual grievance, and the Respondent s
demonstrated propensity for violating Section 8(a)(1) and
(3) of the Act in prior cases, I am of the opinion that the
evidence is insufficient to reveal that Slankard's discharge
was discriminatorily motivated in violation of Section
8(a)(I), (3), and (4) of the Act
Furthermore, the evidence with respect to the foregoing
contentions, in my opinion is not greatly persuasive as to
revealing the cause for discharge Thus, considering the
theft problem, the advice to Banks that if he discharged
employees for ' theft," it would be more difficult to get to
the bottom of the "theft ' problem, and the fact that
Slankard appeared to be a heavy transgressor concerning
the theft" problem, I find it understandable that there
were not other firings for "theft"" and that Respondent
would be motivated to fire Slankard at the slightest
incident, even one for which employees were not normally
fired Nor do I think it greatly significant that
Respondent did not note on Slankard's personnel records,
even if required by Government rules, the theft' incident
under such circumstances The rules referred to by the
General Counsel basically appear designed to protect the
public against conduct relating to driving Even under the
General Counsel's interpretation, I find the failure to note
the `theft" question not to be persuasive as to
discriminatory motive Further concerning the sham '
defense argument, that the Respondent contended that
Slankard quit" instead of having been fired I am
convinced under all the facts, that this does not supply
the necessary evidence of discriminatory motivation
Suffice it to say that the other contentions are not
persuasive when all of the facts are considered
Considering all of the foregoing and the entire record, I
conclude and find that the evidence does not preponderate
for a finding that the Respondent discharged Slankard on
March 8, 1969, for discriminatory reasons within the
meaning of Section 8(a)(1), (3), and (4) of the Act
Rather, I conclude and find that the Respondent was
motivated to get rid of Slankard at the first opportunity
after discovering his involvement in its theft problem, but
not on the purported grounds of theft
Arnold Grisham
The General Counsel alleges and contends that the
Respondent discriminatorily discharged Arnold Grisham
"Other than Cogburn who had initially been fired
"As indicated General Counsel s theory and arguments touch a total
and interrelated evaluation of all facts in the case Specific consideration of
the various items of argument has been generally set out at appropriate
places in discussion of various issues I find it unnecessary to repeat such
consideration with respect to effect on every other issue It is sufficient to
say that each issue in this case has been considered on the basis of the
total facts
953
on March 10, 1969, in violation of Section 8(a)(1), (3),
and (4) of the Act
The facts relating to the issues involved may be set
forth as follows '"
Arnold Grisham commenced work for the Respondent
around June 1967 as a warehouseman Later Grisham
received a promotion and became a driver It is not clear
when Grisham was promoted to driver but his testimony
about receiving a letter from the terminal manager
concerning his (Grisham) leaving a piece of freight at a
freight line suggests that the promotion occurred in 1967
In February 1969 Grisham was told by Terminal Manager
Banks that he had received word from Ford Motor
Company complimenting Grisham's loading of a trailer
Shortly thereafter, Banks received word from the
Nashville terminal to the effect that from Respondent's
view Grisham had not done a good job on the loading for
Ford Motor Company Banks did not inform Grisham of
the later criticism Also in February but later, Supervisor
Goza complimented Grisham on a job in switching
trailers
Grisham signed a Teamsters Union card on September
22, 1968 Either before or after this time but in September
1968, Grisham became a union steward for TEA
On March 7, 1969, Grisham reported to work around
8 30 a m Around 3 30 p m Grisham was assigned a job'
of delivering a full trailer to another freight line At the
time Grisham informed the dispatcher that he wanted to
get off early that day, that he would like to get off "on his
nine hours ' The dispatcher told Grisham in effect that
something would be worked out and to call in around 5
p m Grisham telephoned the dispatcher around 5 p m
and asked about relief and was told to call back at 5 30
p m At 5 30 p m Grisham called the dispatcher and
asked if he could have a relief man The dispatcher
referred Grisham to Supervisor Goza Goza told Grisham
that he did not have a relief man and that Grisham would
have to stay on the job Grisham stayed on the job and
completed the job around 7 p m
On Monday, March 10, 1969, Grisham went to see the
dispatcher and asked to see Terminal Manager Banks
The dispatcher went into Banks' office and returned with
Supervisor Goza Goza asked Grisham about his problem
and Grisham explained that his problem was about the
work problem on Friday Goza left Grisham and went
into Banks' office About 15 minutes later Goza returned
to where Grisham was and told Grisham to go in and see
Banks
Grisham went in to see Banks and started relating his
complaint about having to work over 9 hours on Friday
Grisham demanded in effect that Terminal Manager
Banks correct Operations Manager Goza for not letting
him off on Friday within his 9-hour period 19 Banks told
Grisham in effect that he could answer his question
without going into all the details, that his work was not
satisfactory, that he was insubordinate, that he had
reports from LoVorn (shop foreman) that Grisham had
been abusing equipment, that if he did not bring his work
up to standard right away and improve, he (Banks) was
going to fire him and that things were like that - cut
"The facts are not in great dispute and are based upon a composite
evaluation of the credited aspects of the testimony of Banks Grisham and
LoVorn exhibits in the record and a logical consistency of all of the facts
"In accordance with the terms of Respondents contract with the TEA
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and dried.
Grisham left Banks ' office and a short time later spoke
to Shop Foreman LoVorn. Grisham asked LoVorn if
LoVorn had told Banks that he (Grisham) was abusing
equipment. LoVorn indicated to Grisham that he had told
Banks that all of the drivers were abusing equipment.'°
Later during the morning , Grisham saw Goza in Banks'
car at the Consolidated Freightways Terminal."
Around noon, when Banks was returning to the
terminal from lunch, Banks saw Grisham coming around
the building in a tractor-trailer. Banks observed that
Grisham stopped accelerating the tractor and allowed the
unit to idle while moving around the building. Banks
observed that Grisham appeared to be looking at him with
a smirk on his face.22
Around 5 p.m. Grisham came to the terminal and was
given an assignment to put a seal on a trailer . At about
this time, Banks spoke to Grisham through the office
window and told him that he wished to see him before he
left, indicating that he had heard Banks . Some time later,
after Grisham had not been in to see Banks, Banks went
to look for Grisham and found him sitting in his car with
the motor running . Banks told Grisham that he had told
him to come in to see him, that this was it, that he could
not use him anymore. Grisham told Banks that he had not
heard him tell him to report back. Grisham told Banks
that he would like to talk to him about it. Banks told
Grisham that there was no need to talk about it, that this
was it, cut and dried, that he was fired.22
Analysis and Conclusions
The General Counsel contends that he has established
facts to reveal that the Respondent discriminatorily
discharged Grisham in violation of Section 8(a)(1), (3),
and (4) of the Act. The Respondent contends that it
discharged Grisham for cause.
The credited evidence reveals no direct knowledge or
belief of Grisham's activities in or on behalf of the
Teamsters Union."' For the same reasons as previously set
forth with respect to Slankard, I find no warrant to infer
company knowledge of Grisham's Teamsters Union
activity on the "small plant" theory. The General
Counsel, as indicated, argues a theory that the
Respondent in effect assumed that Grisham was a
Teamsters Union adherent by virtue of the TEA
disclaimer in interest in Case 26-RC-3412 on February 26,
1969. The General Counsel also argues that the
Respondent fired Grisham as retaliation against him
because the TEA filed the aforesaid disclaimer.
"I credit Grisham 's version of the conversation with LoVorn over
LoVorn' s. However I credit Banks' and LoVorn's testimony to the effect
that LoVorn had told Banks that Grisham had been abusing equipment
" Considering all of the facts, including Goza's checking of Henderson on
his route , I find no persuasive significance to this particular fact.
"The facts are not in great dispute . Grisham 's testimony was to the
effect that he was driving the way he should under the circumstances, and
was not "smirking " The issue is basically one of motivation on Banks'
part , and I am convinced that his observation and belief was as testified to
by him.
"The facts are based upon a composite of the credited aspects of both
Banks ' and Grisham 's testimony . As a whole Banks appeared to be the
more credible witness and where the testimony is in conflict , I credit Banks
over Grisham . Grisham appeared prone to exaggerate and to stretch the
truth . Grisham at first denied being in his car during the time but later
admitted being in his car. The issue is primarily related to motivation, and
it is clear that Banks had reason to believe that Grisham was resisting his
instructions at the time
The General Counsel argues in effect that the
Respondent had a "sweetheart" contract with the TEA,
that the Respondent preferred the TEA over the
Teamsters, and that therefore it retaliated against known
TEA officials when the TEA filed the March 4, 1969,
disclaimer in interest in Case 26-RC-3412, wherein the
Teamsters had petitioned for representative rights
concerning the employees involved herein.
The General Counsel contends that the prior Board
decisions reveal past conduct of animus against the
Teamsters, of preference for TEA over the Teamsters, and
of a propensity to engage in 8(a)(1) conduct and
discriminatory discharges to support its animus against
the Teamsters. The cases for which official notice was
taken and referred to previously support such contentions.
The evidence reveals that the Respondent and the TEA
at the Memphis terminal have had a collective-bargaining
relationship since 1956, and that there existed a current
collective-bargaining contract at the time of these events.
The past Board cases referred to by the General Counsel,
however, also reveal opposition at one of the terminals to
the TEA.
The General Counsel argues that the Respondent did
not abide by its contract with TEA and that this proves a
"sweetheart" relationship. The General Counsel argues in
effect that Respondent's 30-minute lunch period
disregarded the contract's provision, that Respondent's
requirement that Grisham work more than 9 hours in l
day disregarded the contract's provisions, and that
Respondent's failure to give the alleged discriminatees
warning letters disregarded the contract's provisions.
In my opinion the evidence, excepting for the failure to
give warning letters, does not support the General
Counsel's contentions . At the very least Respondent's
30-minute lunch period is arguably within its right to set a
lunch period between 30 minutes and 1 hour, and the not
over 9-hour requirement appears, from the contract as a
whole, to restrict the Respondent's working of an
employee over 9 hours in I day for the purpose of
guaranteeing him 40 hours of work. It arguably does not
restrict the use of the employee for over 9 hours in l day,
provided that the hours over 9 do not count toward the
guaranteed 40 hours per week.
With respect to the failure to give warning letters to the
employees discharged on March 8, 1969, and thereafter, I
note that these incidents occurred after the TEA filed its
disclaimer in interest in Case 26-RC-3412 involving the
same employees then represented by TEA. Although
perhaps a contract violation, under the circumstances, I
find this evidence of insufficient persuasive value to reveal
that the Respondent and the TEA had a "sweetheart"
relationship.
Perhaps it may be said that the General Counsel's
arguments do not reach the point of contending in effect
that the Respondent violated Section 8(a)(1) and (2) of the
Act by the contended "sweetheart" relationship. In any
event he did not allege such in his complaint and his proof
does not so establish.
The General Counsel's own evidence is to the effect
that Terminal Manager Banks approached employees with
a design to get them to let him handle their affairs and to
do without the TEA. This is hardly suggestive of a
"sweetheart" relationship.
In sum the General Counsel's theory of retaliation
against known TEA adherents because of the TEA'S
March 4, 1969, disclaimer in interest, and his theory of
'Grisham 's testimony to such an effect is discredited.
THURSTON MOTOR LINES, INC.
vicarious knowledge or belief of Teamsters activity by
Grisham and others, because of the aforesaid disclaimer,
relies basically upon the background evidence of TEA
preference over the Teamsters at another terminal. There
is no evidence of any statements by Respondent's officials
in the current events at the Memphis terminal which
reveal TEA preference over the Teamsters or animus
against TEA officials because of the disclaimer.
Banks' testimony and the evidence as a whole reveal
that Respondent's motivation for the discharge of
Grisham was engendered and mainly caused by Grisham's
speaking to Banks on the morning of March 10, 1969,
about Goza' s requiring him to work on March 7, 1969,
beyond the 9 hours and allegedly more than the
collective-bargaining agreement required. It is clear that
Banks knew that Grisham was a job steward for the TEA,
and that Banks knew that Grisham was arguing a
grievance pertaining to a collective-bargaining contract
right.
Considering all of the foregoing, and all of the facts in
this case, I conclude and find that the General Counsel
has failed to establish a basis for fact finding based upon
his theory of Respondent's vicarious knowledge of
Teamsters Union activity by TEA officers or adherents
because the TEA filed a disclaimer in interest in Case
26-RC-3412. For the same reasons I conclude and find
that the General Counsel has failed to establish a basis for
fact finding based upon his theory that Respondent was
motivated against TEA officers and adherents in reprisal
against them because the TEA had filed a disclaimer in
interest in Case 26-RC-3412.
Considering all of the facts, I conclude and find that
the evidence fails to establish that the Respondent was
discriminatorily motivated in its discharge of Grisham on
March 10, 1969, and thus fails to establish that the
Respondent, by the discharge of Grisham, violated Section
8(a)(3) and (4) of the Act. The facts, however, reveal that
the Respondent discharged Grisham because of his
exercising a protected concerted right in the processing of
a collective-bargaining contract grievance. Such conduct
constitutes conduct violative of Section 8(a)(l) of the Act.
I so conclude and find.
Roy R. Henderson
The General Counsel contends in effect that the
Respondent discriminatorily discharged Roy Henderson
on March 10, 1969, in violation of Section 8(a)(1), (3),
and (4 ) of the Act.
Henderson commenced his employment with the
Respondent in August 1964 as a dockworker." Around 1
1/2 years later Henderson was promoted to a driver
position and worked as a driver until the date of his
discharge on March 10, 1969.
In September 1968, the exact time is not revealed,
Henderson became secretary and treasurer of the TEA
Union and functioned as such until the time of his
discharge . At some point of time in his employment
Henderson apparently had become a member of the TEA
and apparently had given or signed written authorization
for his dues to be deducted by the Respondent for the
TEA Union. It appears clear that he was a TEA member
at least from a point of time in September 1968 until
March 10 , 1969, and that during such time that his dues
"The facts are based upon a composite of the credited aspects of Banks',
Henderson 's, and Goza 's testimony , the exhibits in the record, and the
logical consistency of the facts.
955
were being deducted by the Respondent for the TEA.
At some point of time after Henderson became
secretary and treasurer of the TEA Union in September
1968 and prior to December 25, 1968, Henderson, Dyer,
and Griffin attempted to discuss a grievance about the
discharge of an employee named Harry Taylor. Terminal
Manager Banks refused to discuss the discharge of Taylor
with the aforementioned three on the alleged ground that
he (Banks) had no notification of their status with TEA.
There was no evidence adduced to reveal that the
Respondent in fact had received such notification from the
TEA Union.
On September 22, 1968, Henderson signed a Teamsters
Union authorization card, thereafter talked to some of the
other employees about the Union and succeeded in getting
several other employees to sign Teamsters Union cards.
There is no evidence to reveal that the Respondent had
knowledge of any of Henderson's activities on behalf of or
interest in the Teamsters Union.
Henderson had a conversation with Terminal Manager
Banks at a point of time shortly before Christmas 1968
about the TEA Union. Banks asked Henderson what he
thought of the TEA. Henderson replied in effect that he
did not think the TEA was "doing the employees a
nickel's worth of good." Banks asked Henderson why he
was a member of TEA if he thought this. Henderson
replied in effect that the employees had to be a member of
something for representation. Banks told Henderson that
as long as he was around, the employees did not need a
union , that he would take care of them.
Around the first of the year (1969) Henderson was
driving a city run and was having difficulty in making all
of his deliveries, and in finishing his route on time. The
Respondent received complaints from customers about the
deliveries. Goza spoke to Henderson about the problem,
and checked Henderson's work and the route. Goza was
of the opinion that Henderson was spending too much
time on the route and was taking too many breaks. As
indicated, Goza spoke to Henderson and criticized his
work. Henderson offered various excuses. Thereafter Goza
rode the route with Henderson. On the occasion that Goza
rode the route with Henderson, Henderson finished his
route at 1 p.m. instead of 3 p.m. as he normally did.26
Goza told Henderson that if he did not improve that he
was going to put him on a trailer until he (Goza) felt he
could do better. Henderson's work performance did not
improve. Goza thereupon took Henderson off the route
and put him on a trailer job for about a week, around the
last of January or first of February 1969. After a week
Goza returned Henderson to his regular route. It was
Goza's opinion that Henderson's work performance did
not improve upon his return to his route.
Around a period of time between February 26, 1969,
and March 4, 1969, a letter addressed to the TEA or to
Henderson was sent by the NLRB Regional Office to
Respondent's office. This letter related to the filing of a
representation petition in Case 26-RC-3412 by the
Teamsters Union concerning the same employees
represented by TEA at Respondent's Memphis terminal.
Around this time a secretary in Respondent's office gave
said letter to Henderson and told him that it had been
"I credit Goza 's testimony to the effect that he did not tell Henderson
that he had a "hell of a route" over Henderson's testimony to such an
effect The logical consistency of the facts, the temporary removal of
Henderson from the route , and the fact that I found Goza to appear the
more frank , truthful , and forthright witness of the two, form the main
basis of such credibility resolution.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opened in error. Henderson gave the letter to Dyer who,
around March 4, 1969, filed a disclaimer of interest by the
TEA in such proceeding. Around March 4, 1969, Dyer
advised Terminal Manager Banks that he had filed such
disclaimer.
During the period of time prior to March 10, 1969,
Henderson was returning to the terminal from his route
with much undelivered merchandise, and without having
picked up merchandise that he should have.27 This resulted
in late delivery of merchandise and in complaints from
customers. Banks believed that Henderson was goofing off
on his job and on March 10, 1969, instructed Operations
Manager Goza to follow Henderson on his route. Goza
did so and noted that Henderson took two long breaks,
approximately around 30 minutes each.
Drivers had been instructed to call in when leaving their
trucks. Goza checked with the dispatcher and ascertained
with respect to the first "break" that Henderson had not
checked in with the dispatcher. Goza also noted that
Henderson appeared to have taken a longer route between
certain deliveries than was called for under the
circumstances. Goza returned and discussed the matter
with Terminal Manager Banks. Goza and Banks were of
the opinion, because of the time involved in the breaks,
that Henderson had taken two lunch periods. Banks and
Goza decided in effect that they could not put up with
such conduct by Henderson and that he should be fired.
When Henderson returned to the terminal, Goza discussed
with Henderson what he had observed. They engaged in a
slight argument as to exactly what had happened.
Terminal Manager Banks came in and told Goza in effect
to make it "short and sweet." Henderson was discharged
and given a termination slip indicating the basis for
discharge as "Insubordination and failure to perform
duties satisfactory."
Analysis and Conclusions
The General Counsel contends that the totality of the
facts reveals that the Respondent discharged Henderson
on March 10, 1969, for discriminatory reasons within the
meaning of Section 8(a)(1), (3), and (4) of the Act. For
the same reasons relating to the question of company
knowledge of Teamsters Union activity on a "small
plant" theory, on a vicarious theory related to the TEA
disclaimer of March 4, 1969, and the "reprisal" theory
against TEA officers and adherents and set forth in the
discussion relating to the discharges of Slankard and
Grisham, I find the evidence insufficient to support such
theories in meaningful fashion.
The evidence relating to Henderson's conversation,
prior to Christmas 1968, about the TEA's not "doing the
employees a nickel's worth of good" and that he belonged
to the TEA because employees had to be a member of
something for representation, indicates a possible basis for
Respondent's belief that Henderson would support the
Teamsters under the circumstances herein.
The Respondent contends that Henderson was fired for
"goofing off" and wasting time 2'
"Among the many arguments by the General Counsel is one pertaining
to a question of Respondent 's records. Thus the General Counsel
subpenaed from the Respondent alleged records pertaining to driver's work
or production . Respondent 's statement in compliance was to the effect that
it kept no such records . The General Counsel by questions to Grisham
elicited testimony to the effect that certain records were turned in by the
driver This matter of records was not followed up to reveal whether such
records were kept temporarily or were kept on a permanent basis. Under
such circumstances the testimony on this point is of no value
Considering all of the facts relating to Company's
union animus , all of the facts in the case, and the facts
surrounding Henderson's discharge, I am convinced and
conclude and find that the evidence is insufficient to
establish that the Respondent discriminatorily discharged
Henderson on March 10, 1969, in violation of Section
8(a)(1), (3), and (4) of the Act.29
William M. Griffin
The General Counsel alleges and contends that the
Respondent laid off William M. Griffin, on or about
April 9, 1969, for a period of approximately 3 days, in
violation of Section 8(a)(l) and (3) of the Act.
The facts relating to this issue are based upon a
composite of the testimony of Griffin and Banks, and
stipulation of counsel. The General Counsel's witness
Griffin apparently did not live up to expectation, and the
General Counsel attempted to establish his proof by use of
Griffin's pretrial affidavit. However, he failed to establish
a proper foundation for use of the affidavit as affirmative
proof, and the affidavit was received only for the purpose
of impeachment of his own witness.
Griffin was initially employed by the Respondent in
1967 and was still employed as of the time of hearing in
this case. Griffin signed a Teamsters Union card on
September 22, 1968. There is no direct evidence of
company knowledge of his Teamsters Union activity and
for similar reasons, with respect to the discrimination
issues previously discussed, the evidence is insufficient to
establish company knowledge of his Teamsters Union
activities on the General Counsel's other theories, or to
establish the General Counsel's theory of "reprisal"
against TEA officeholders.
The General Counsel's questioning of Banks
established, in effect, that Banks believed that Griffin had
been a TEA officeholder. When Griffin was believed to
have been, or was, an officeholder in TEA was not
established.
The record establishes that Griffin did not work on the
days of April 5, 6, 7, 8, 9, 10, 11, and 12. The record does
not reveal Griffin's work record for the days preceding
April 5, 1969, or the circumstances surrounding the events
of such days
It is clear that Griffin reported to Goza that he needed
to be off on April 7 and 8 to be at home. It is clear that
Goza reported the same to Terminal Manager Banks. It is
also clear that Banks, as of April 9, 1969, knew that
Griffin's wife had been ill and in a hospital.
On April 9, 1969, Terminal Manager Banks spoke to
Griffin and told him in effect that he had been off too
much and that he was giving him a 3-day layoff because
he had failed to report to work, that he had unexcused
"Among the many arguments made by the General Counsel as to the
meaning of testimony is one that Banks' testimony as to coffeebreaks was
inconsistent and contradictory. This argument relies heavily upon a
fragmentation of Banks' testimony. Banks' testimony as a whole, with
reference to this question , reveals, in my opinion , the fact that "coffee
breaks" as such were not recognized as policy but were allowed under
proper circumstances.
"Although the General Counsel made many arguments relating to the
evidence and theories , I note that no contention was made with respect to
the use of the word " insubordination" on Henderson 's termination slip
This, however, it is noted , may be said to describe his failure to call in
when leaving his truck , and his failure to utilize the shortest route between
stops as directed to be done As indicated , the evidence reveals a basis for
Respondent's belief that Henderson would be for the Teamsters The
overall facts , however , are insufficient to reveal that this was the reason for
his discharge
THURSTON MOTOR LINES, INC.
absences,3° and that he should use the 3-day layoff to get
his house in order. During the conversation between
Banks and Griffin, Griffin had related that he had been
looking after his children, washing clothes, ironing clothes,
and other things. In the conversation, Griffin did not
relate specifics about his wife's condition
Banks credibly testified to the effect that he laid Griffin
off for the reasons as indicated in the excerpts from his
testimony.
A. Because he failed to report for work on Monday,
and on Tuesday of that week, and in my opinion it was
an unexcused absence, and we laid him off for those
three days to get his house in order so that there
wouldn't be a repetition of that.
Banks credibly testified that Griffin's reason to the
effect that he was needed at home was unsatisfactory, that
he (Banks) was needed at home but also was needed at
work.
As indicated, the facts are somewhat fragmentary.
Considering all of the facts and the foregoing, I conclude
and find that the General Counsel has not established that
the 3-day layoff of Griffin, around April 9, 1969, was for
discriminatory reasons within the meaning of Section
8(a)(I) and (3) of the Act.
John S. Stevens
Stevens was hired as a probationary employee on April
6, 1969 and worked until April 26, 1969, for the
Respondent. Stevens was a probationary employee and
did not work a full 40-hour week during the 3-week
period.
The NLRB election in Case 26-RC-3412, involving the
Teamsters, was held on April 25, 1969. The only evidence
of union activity on Stevens' part involved talking about
the Union to fellow employees. There is no evidence to
reveal that the Respondent had any knowledge of Stevens'
union interests or beliefs at the time of his discharge on
April 26, 1969.
On April 26, 1969, Dock Foreman Majors informed
Stevens that his status was that of a probationary
employee, that he was no longer needed, and that his
application was not accepted." Stevens pursued the
question with Terminal Manager Banks and received in
effect the same reasons for his termination.
Banks credibly testified to the effect that he made the
decision to discharge Stevens and based his decision to
discharge Stevens upon his own observation of Stevens'
work, that the observation revealed a failure of Stevens to
apply himself and be productive. Banks further credibly
testified that he had had some discussion with a foreman
about Stevens but did not remember who or the specifics.
Majors credibly testified that he told Stevens of his
termination upon instruction from Banks, that he had
discussed Stevens' work with Banks on April 26, 1969,
and that Banks had said that they could not use Stevens
anymore. Majors testified that he had reports from
foremen about Stevens' work, that Supervisor Munns had
reported that Stevens' work was unsatisfactory, and in
effect that he had observed Stevens' work to be
unsatisfactory.
"It appears Respondent 's contention is that Griffin merely reported what
he was going to do on April 7 and 8 to Goza, and that Respondent did not
consider that by such Griffin received authorization for an excused
absence . The totality of the evidence so reveals.
"Stevens testified confusedly about a question of "references" or
"application " being accepted . Considering the logical consistency of all of
the facts, I find the facts as set forth.
957
Considering all of the facts and the foregoing, and the
many contentions of the General Counsel as to this case
in whole, I conclude and find the evidence to be
insufficient to reveal that the Respondent discriminated in
violation of Section 8(a)(I), (3), and (4) of the Act in the
discharge of Stevens.
Donald E. Spears
Donald E Spears commenced working for the
Respondent as a dockworker in February 1968 and
worked thereafter until May 1, 1969, when he was fired.
Spears' work required that he check incoming freight
against invoices, note any shortages on said invoices and
sign said invoices, and write up such shortages on a
separate sheet. Prior to and during Spears' employment,
Respondent had encountered a theft and shortage
problem. In February, an employee named Cogburn had
been discharged in connection with the theft and shortage
problem. Spears had been told in effect by someone that
Cogburn had been signing for freight, taking it away, and
thus having the Respondent with missing freight.
At the commencement of Spears' employment he had
been advised of the necessity of accurately checking the
incoming freight. Around the time of Cogburn's discharge,
it appears that Swanton met with Spears and others and
discussed the necessity of accurately checking the
incoming freight.
Swanton credibly testified to the effect that he had
reported several incidents to Terminal Manager Banks
and Supervisor Munns of mischecking of freight by
Spears. Company invoices in-the record reveal a basis for
Swanton's determination of such mistakes as to freight
chucking on February 24 (one invoice) and April 23 (two
invoices). It would appear that knowledge of such
"mistakes" was obtained within a matter of hours or a
few days.
Swanton credibly testified to the effect that company
policy was to the effect that Supervisor Munns would
have discussed the mistakes with Spears. Swanton further
credibly testified to the effect that Munns had told him
later that he had talked to Spears. Spears testified in
denial that anyone had spoken to him specifically about
the mistakes referred to. Swanton, in his testimony,
indicated that the invoices concerning the mistakes had
not physically been given to Munns. Considering the fact
that the "mistakes" constituted a financial liability to the
Company, and the fact that Munns was not given the
invoices, I am convinced that Munns spoke to Spears in
general about the need for accuracy 32
Around May 1, 1969, Swanton discovered that Spears
had signed an invoice for the Jones Truck Line indicating
the receipt of two bundles of four boxes and one box
weighing 285 1/2 pounds all from Bear Brank Hosiery
Co. Swanton also discovered that there was no
Respondent record of the receipt of such freight. Swanton
reported this matter to Banks who instructed him to fire
Spears.
Swanton, apparently, a short time later spoke to Spears
on the dock. Swanton told Spears in effect that he was
going to have to let him go because he wasn't working
out, that he was making too many mistakes. Spears asked
Swanton to tell him what kind of mistakes. Swanton
pulled out a copy of the Jones Trucking Line invoice and
discussed the matter of the invoice with Spears."
"Under such circumstances I am convinced Spears has forgotten such
conversations and did not construe such as a correction
"The facts are based upon a composite of the credited aspects of the
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the time of Spears' employment there is no
evidence of any involvement by him with the TEA. The
evidence also reveals that he did not sign a Teamsters
Union card and that he did not attend any union
meetings . I credit his testimony to the effect, however,
that he revealed his interest in voting for the Teamsters
Union to company supervisors Braizel and Pruitt."
Conclusions
Considering all of the facts and the foregoing, I
conclude and find that the evidence preponderates for a
finding that Spears was discharged for cause on May 1,
1969, and not in violation of Section 8(a)(1), (3), and (4)
of the Act." I so conclude and find.
Grady C. Camp, Jr.
Camp commenced employment with the Respondent on
May 1, 1968. Initially he worked on the dock for about a
week, and thereafter until his discharge on May 14, 1969,
worked as a city driver.
Camp attended a Teamsters Union meeting on
September 22, 1968, and either at the meeting or
elsewhere on said date signed a Teamsters Union
application for membership card. Camp also, at an
unknown date, attended another Teamsters Union
meeting.
There is no evidence that Camp' s union activities or
beliefs were ever known to the Respondent at any time
prior to his discharge on May 14, 1969. As indicated
previously, Camp and Banks had several discussions in
April 1969 preceding the April 25, 1969, NLRB
representation election . As indicated previously, I found
that Respondent, by Banks, violated Section 8(a)(1) of the
Act by statements indicating that raises were not
forthcoming at the time because of the pendency of the
NLRB election. This however does not reveal knowledge
of Camp' s union activities or interest or of animus
directed specifically toward Camp because of such union
activities or interest
As previously indicated, the facts reveal that throughout
the period of time, at least from February 1969 onward,
the Respondent was concerned about a theft and shortage
problem.
As indicated previously, the facts reveal that the
Respondent, by Supervisor Hastings , violated Section
8(a)(1) of the Act by telling Camp in effect that the men
who had voted for the Union would be fired because Mr.
Thurston would find out some way or another how they
voted and they would be fired. The facts reveal that
testimony of Swanton and Spears and a fair inference therefrom Spears'
testimony on direct examination was to an extent to a different effect. On
cross-examination Spears' testimony , after being confronted with his
affidavit , changed and was consistent with Swanton 's. I discredit the
portions of Spears' testimony on direct examination inconsistent with the
facts found . Considering the total testimony of the two witnesses , Spears'
contradiction by his affidavit , and the more forthright demeanor of
Swanton , I credit Swanton ' s testimony over Spears ' where in conflict
"I discredit Pruitt's denial that he ever heard Spears so indicate The
circumstances of Pruitt 's remarks (on April 26 , 1969) to Spears are
indicative of knowledge. I found Stevens ' testimony to such an incident
very persuasive and believable.
"in doing so , I have considered all of the evidence indicating union
animus on the Respondent's part , as well as the fact that Respondent had
knowledge of Spears ' union interest . In my opinion the evidence
preponderates for a finding that Spears was discharged for cause in view of
Respondent 's problem relating to theft and shortages.
Supervisor Hastings and Camp were close friends, like
brothers. Although, as indicated, Hastings ' remarks
violated Section 8(a)(1) of the Act, the remarks do not
reveal knowledge of Camp' s union activities or beliefs or
animus specifically directed to Camp.
Around 6 p.m. on May 14, Operations Manager Goza
discharged Camp. Goza told Camp in effect that he had
not picked up freight in accordance with the freight bills.
Goza showed Camp some freight bills. Camp asked Goza
how he knew that one particular bill was short. Goza told
Camp that he hadn't checked it but was going by the fact
that an employee named Wilson had checked it.
Camp went to see Office Manager Swanton. Swanton
told Camp that he did not have anything to do with it, to
see Goza and Banks . Camp tried to see Banks and
ultimately saw Banks on May 15, 1969.
Camp asked Banks, in effect, about the reason for his
discharge. Banks told Camp about the history of theft at
the Company, the fact that Camp had been told of the
importance of signing for freight," that the Company had
to pay for the freight signed for and not received, and that
they could not use him anymore. Camp and Banks then
discussed the question of Camp's vacation pay, with
Banks ultimately indicating that he would try to get
Camp's vacation pay for him."
The facts reveal that Camp on several occasions had
signed for incoming freight in a different aiiount than
appeared received by company records and checking. The
facts also reveal that Camp had signed for "free astray"
freight without following company instructions as to the
handling of receipt of such merchandise. The facts also
reveal that Camp was involved in other mischecking and
mishandling of freight. It is also clear that the
Respondent, during this time, was concerned about a theft
and shortage problem.
Conclusions
Considering all of the foregoing and all of the facts and
arguments , I conclude and find that the facts preponderate
for a finding that the Respondent discharged Camp on
May 14, 1969, for cause . Accordingly, it will be
recommended that the allegations that Camp was
discriminatorily discharged on May 14, 1969, in violation
of Section 8(a)(1), (3), and (4) of the Act, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section 111,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
"It is clear that Camp had been told of the importance of accurately
signing for receipt of freight , and Goza had posted a notice in November
1968 to such an effect , and warning of reprimand and discipline.
"As indicated elsewhere I find that the Respondent , by Goza, on May
23, 1969 , violated Section 8(aXI) of the Act by telling Camp in effect that
he would not receive his vacation pay because he had filed charges Also,
since Respondent did not thereafter pay Camp his vacation pay which was
due, I found such conduct violative of Section 8(a)(4) of the Act Under
the circumstances I am convinced that the failure to pay Camp his
vacation pay was because he filed charges and not because of the reasons
connected with his discharge.
THURSTON MOTOR LINES, INC. 959
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, it is recommended that it cease and
desist therefrom and that it take certain affirmative action
of the type which is conventionally ordered in such cases,
as provided in the Recommended Order below, which is
found necessary to remedy and to remove the effects of
the unfair labor practices and to effectuate the policies of
the Act.
Having found that the Respondent discharged Grisham
on March 10, 1969, because of his protected concerted
activity in the processing of a grievance, it is
recommended that Respondent offer him full and
immediate reinstatement to his former or substantially
equivalent position without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings suffered by him because of the
discrimination, by payment to him of a sum of money
equal to the amount he would have earned from the date
of his discharge to the date of Respondent's offer of
reinstatement, less his net earnings during said period.
Backpay shall be computed on a quarterly basis in the
manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating
Co., 138 NLRB 716.
Having found that the Respondent has withheld
vacation pay, due Camp in connection with his
employment, because of Camp's participation in the
processing of NLRB charges, it will be recommended that
the Respondent make him whole by payment of such
vacation pay, with interest in accordance with the Isis case
aforesaid.
Because of the type of conduct involved herein,
including the discharge of Grisham, and in consideration
of Respondent's prior record as revealed by National
Labor Relations Board decisions, it is found that a broad
cease-and-desist order is necessary.
CONCLUSIONS OF LAW
1. Highway and Local Motor Freight Employees, Local
Union No. 667, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
2. Thurston Motor Lines, Inc., the Respondent, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. By withholding vacation pay from an employee due
such pay because the employee had utilized the NLRB
processes in protection of his rights , the Respondent
engaged in conduct violative of Section 8(a)(4) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
successors, and assigns, shall:
1. Cease and desist from:
(a) Withholding vacation pay from employees because
of their utilization of National Labor Relations Board
processes by filing unfair labor practice charges,
participation in processing such charges by giving
affidavits, or by other cooperation.
(b) Interfering with, restraining, and coercing employees
in the exercise of protected concerted activities by
discharging them.
(c) Threatening employees with the withholding of wage
increases because of employee engagement in union or
protected activities, or because of the pendency of
processing of National Labor Relations Board
proceedings.
(d) Threatening employees with discharge if they vote
for, or because they voted for, the Union in a National
Labor Relations Board representation election.
(e) Threatening employees with loss of vacation pay
benefits because of their utilization of National Labor
Relations Board processes.
(f) Interrogating its employees concerning their, or
other employees', union affiliation or activities in a
manner constituting interference, restraint, or coercion
within the meaning of Section 8(a)(1) of the Act.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Arnold M. Grisham, immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority and other rights
and privileges.
(b) Notify Arnold M. Grisham if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Make whole Arnold M. Grisham for any loss of pay
he may have suffered by reason of the discrimination
against him by payment to him of a sum of money equal
to his loss of earnings from the date of his discharge to
the date of Respondent's offer of reinstatement in the
manner set forth in the section of this Decision entitled
"The Remedy."
(d) Make whole Grady C. Camp, Jr., by payment to
him of his vacation pay (with interest) withheld because of
his activity in connection with the filing and processing of
National Labor Relations Board unfair labor practice
charges.
(e) 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.
(f) Post at its terminal in Memphis, Tennessee, copies
of the attached notice marked "Appendix."38 Copies of
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case,
it is recommended that Respondent, its officers, agents,
"In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(g) Notify the Regional Director for Region 26, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 39
IT IS FURTHER RECOMMENDED that, except for the
conduct specifically found to be violative of the Act
herein, such other allegations as to conduct violative of
the Act be dismissed
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 is 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 Relations Board "
"In the event that this Recommended Order is 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 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
WE WILL offer Arnold M. Grisham immediate and
full reinstatement to his former or substantially
equivalent position without prejudice to his seniority
and other rights and privileges, and WE WILL notify
Arnold M Grisham if presently serving in the Armed
Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
WE WILL make whole Arnold M. Grisham for any
loss of earnings he may have suffered by reason of the
discrimination against him, all in accord with and in
the manner set forth in the "Remedy" section of this
Decision WE WILL also make whole Grady C Camp,
Jr., for his vacation pay (with interest) withheld because
of his activity in connection with the filing and
processing of National Labor Relations Board unfair
labor practices
WE WILL NOT withhold vacation pay from employees
because of their utilization of National Labor Relations
Board processes by filing unfair labor practice charges,
participation in processing of such charges by giving
affidavits, or by other cooperation
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of protected concerted
activities by discharging them
WE WILL NOT threaten employees with the
withholding of wage increases because of employee
engagement in union or protected activities, or the
pendency of processing of National Labor Relations
Board proceedings.
WE WILL NOT threaten employees with discharge if
they vote for or because they voted for the Union in a
National Labor Relations Board representation
election
WE WILL NOT threaten employees with loss of
vacation pay benefits because of their utilization of
National Labor Relations Board processes
WE Wit L NOT interrogate our employees concerning
their or other employees' union affiliation or activities
in a manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of the
Act
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as
guaranteed by Section 7 of the Act
Dated By
THURSTON MOTOR LINES,
INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
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
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
746 Federal Office Building, 167 N Main Street,
Memphis, Tennessee 38103, Telephone 534-3161