Trans-Oil, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1949

86 N.L.R.B. 136 (N.L.R.B. 1949)

In the Matter of E. BROOKE MATLACK, INC., TRADING AS TRANS-OIL,.
INC., and TRUCK DRIVERS LOCAL 355 , INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS OF
AMERICA, AFL
Case No. 5-CA-86.Decided September 28,19419
DECISION
AND
ORDER
On May 16 , 1949, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding , finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint , and recommending that the complaint be dismissed
in its entirety , as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three -member panel [Members Houston, Rey-
nolds, and Murdock].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner to the extent that they are consistent with this
Decision and Order.
1. We do not agree with the finding of the Trial Examiner that
Respondent has not violated Section 8 (a) (1) of the Act. The ques-
tioning and censuring of Sentman by Rusk, terminal manager of
Respondent, is not, we believe, the only activity violative of the Act
engaged in by Respondent, and cannot be dismissed as an isolated inci-
dent insufficient to justify a cease and desist order.
The Sentman incident occured shortly after a meeting in January,.
1948, called by Rusk and attended by most of the drivers. The Trial
86 N. L . R. B., No. 29.
136
TRANS-OIL, INC. 137
Examiner, crediting the testimony of Rust and Sentman, found that
at this meeting Rusk merely expressed his concern over the inter-
union friction among the drivers and impartially appealed to both
Teamster and TOE groups for "mutual tolerance and understanding,"
and that in the context, Rusk's request for comment from three known
Teamster members was not violative of the Act. We disagree. Credit-
ing, as the Trial Examiner did, Rusk's own version of his remarks at
this meeting , we think that it is apparent that he was appealing to
all the drivers to support, or at least not oppose, the TOE. The speech
consisted of an account of the TOE 's past difficulties and the injuries
it had received from the Teamsters. In its entirety, it clearly showed
Rusk's sympathy for the position of the independent union and, by
inference, placed the responsibility for future good behavior on the
Teamsters. Rusk was privileged to appeal to the drivers for support
of the union he preferred , but not to require three individuals , adher-
ents of the Teamsters , to "comment" in the face of that appeal. In
the context , this request for "comment" called for a statement of
position and intentions on the part of three known adherents of the
Teamsters, blamed inferentially in the speech for the friction among
the parties , concerning the manner and extent to which they might
choose to be active on behalf of their union . This conduct, which
was tantamount to interrogation concerning employees' union affilia-
tion and activity is proscribed by the Act for it is both coercive in
tendency and a form of interference with employees' freedom to engage
in self-organization?
Accordingly, we find that Respondent interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
2. We agree with the Trial Examiner that the discharges of Lee,
Bramble, Farrish, Meeks, and Myers were not shown to be motivated
by an intent to discourage membership in the Teamsters within the
meaning of Section 8 (a) (3) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, E. Brooke Mat-
lack, Inc., trading as Trans-Oil , Inc., Baltimore , Maryland , and its
officers, agents , successors , and assigns, shall :
I See Matter of Standard - Coosa-Thatcher Company, 85 N. L . R. B. 1358.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Interrogation of its employees concerning their membership
in and activities on behalf of Truck Drivers Local 355, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, AFL, or in any other labor organization of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Truck Drivers Local 355, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, AFL, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all
of such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act as guaranteed by Section 7 thereof.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Post at its terminal in Baltimore, Maryland, copies of the notice
attached hereto, marked "Appendix A." 2 Copies of said notice to
be furnished by the Regional Director for the Fifth Region, shall, after
being signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced or covered by other material;
(b) Notify the Regional Director for the Fifth Region in writing,
within ten (10) days from the date of receipt of this Order what steps
the Respondent has taken to comply therewith.
AND IT Is FURTHER ORDERED that the complaint, insofar as it alleges
that the Respondent discriminated with regard to the hire and tenure
of employment of Francis D. Farrish, Charles W. Meeks, Richard H.
Bramble, Allen E. Myers, and Norris B. Lee, be and it hereby is,
dismissed.
MEMBER MURDOCK, dissenting :
Under all the circumstances, I agree with the Trial Examiner's
dismissal of the entire complaint and therefore dissent from my col-
2 In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER ," the words, "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
TRANS-OIL, INC. 139,
leagues' action in finding a violation of Section 8 (1) and issuing a.
cease and desist order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations,
Board, and in order to effectuate the policies of the National Labor-
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union
affiliations, activities, or sympathies, or in any other manner in-
terfere with, restrain, or coerce our employees in the exercise of-
their right to self-organization, to form labor organizations, to
join or assist TRUCK DRIVERS LOCAL 355, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS Or,
AMERICA, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any-
or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor-
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the National Labor Relations Act.
All our employees are free to become or remain members of any
labor organization. We will not discriminate in regard to hire or-
tenure of employment or any term or condition of employment against
any employee because he has engaged in concerted activities for the.
purpose of collective bargaining or other mutual aid or protection.
E. BROOKE MATLACK , INC., T/A TRANS-OIL, INC.,
Employer.
By ---------------------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,.
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Charles B. Slaughter , for the General Counsel.
Souser and Schumacker, by Mr. Robert H. Kleeb, of Philadelphia , Pa., for the-
Respondent.
Mr. Jacob J. Edelman and Mr. Jerome Wohlmvuth, of Baltimore, Md., for
Local 355.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a charge filed on April 29, 1948, by Truck Drivers Local 355, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
A. F. L.,1 the General Counsel of the National Labor Relations Board,` by the
Regional Director for the Fifth Region (Baltimore, Maryland), issued a com-
plaint dated December 21, 1948, against E. Brooke Matlack, Inc ., trading as
Trans-Oil, Inc., herein called the Respondent , alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) of the
Labor Management Relations Act of 1947 ,3 herein called the Act. A copy of
the charge was duly served upon the Respondent on. May 8, 1948. Copies of the
complaint, the charge, a notice of hearing, and notices of postponement of hear-
ing were also duly served on the Respondent and Local 355.
With respect to the unfair labor practices, the complaint as amended at the
hearing, alleges in substance : (1) that, on and since approximately January
1, 1948, the Respondent, in violation of Section 8 (a) (1) of the Act, has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, by (a) urging, persuading, and warning its
employees by threats of reprisal or force or promise of benefit, to refrain from
assisting, becoming or remaining members of Local 355 or engaging or continu-
ing to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection; (b) questioning its employees concerning
their membership in, and activities on behalf of, Local 355; (c) threatening its
employees with loss of employment should they renounce Trans-Oil Local Union
No. 1, a labor organization known as Trans-Oil Employees' Association, herein
called the TOE, and join or otherwise assist Local 355 in its efforts to organize
the Respondent's employees; (d) keeping under surveillance the organizational
activities of its employees and of Local 355; and (e) attempting to blacklist its
former employees because of their membership in and activities on behalf of
Local 355; and (2) that, in violation of Section 8 (a) (1) and (3) of the Act,
the Respondent discharged employees Francis D. Farrish, Charles W. Meeks,
Richard Henry Bramble, Allen E. Myers, and Norris B. Lee on or about April
28, 1948, and has since failed or refused to reinstate these employees to their
former or substantially equivalent positions because they joined or assisted
Local 355 or engaged in concerted activities with other employees of the Re-
spondent for the purposes of collective bargaining or other mutual aid or
protection and because they refused to join, assist or remain members of
the TOE.
In its answer as amended at the hearing, the Respondent admitted certain
allegations of the complaint but denied the commission of any unfair labor
practices. The Respondent in its answer as amended furthermore admitted
that it discharged the employees named in the complaint on April 28, 1948,
but asserted that each of these employees was discharged for cause.
Pursuant to notice, a hearing was held in Baltimore, Maryland, from January
25 to February 4, 1949, inclusive, before the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. The General Counsel, the Respondent,
1 Truck Drivers Local 355 is hereinafter called Local 355 and the International Brother-
hood, with which it is affiliated , is called the Teamsters.
3 The General Counsel and his representative at the hearing are herein referred to as the
General Counsel , and the National Labor Relations Board, as the Board.
161 Stat. 136.
TRANS-OIL, INC. 141
and Local 355, participated in the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. At the beginning of the hearing, the undersigned
granted unopposed motions to amend the complaint and the answer. At the
conclusion of the General Counsel's case-in-chief, the Respondent moved to
dismiss each and every allegation of the complaint concerning unfair labor
practices on the ground that there was no evidence to support these allegations..
The undersigned thereupon granted the motion to strike the allegations of the.
complaint to the effect that the Respondent had kept under surveillance the
organizational activities of its employees and of Local 355, but denied the motion
to strike the other allegations of the complaint concerning the unfair labor
practices. At the conclusion of the hearing, the Respondent renewed its mo-
tions to strike these remaining allegations of the complaint: The undersigned,.
however, reserved decision upon the motion, which is now disposed of in
accordance with the considerations, findings, and conclusions hereinafter set
forth. Before the hearing concluded, the General Counsel, and counsel for the
Respondent submitted oral argument to the undersigned.' Although advised
of the right to file briefs, none of the parties has done so.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, E. Brooke Matlack, Inc., trading as Trans-Oil, Inc., is
Pennsylvania corporation engaged in the transportation of petroleum and chem-
ical products. For the purpose of its operations, which are subject to regulation
by the Interstate Commerce Commission, the Respondent has truck and trailer
terminals in Baltimore, Maryhmd ; Ithan, Pennsylvania ; Wood Ridge, New
Jersey ; Coraopolis, Pennsylvania ; and Richmond, Virginia. During the 6 months.
preceding the hearing, the Respondent, in the conduct of its business at the
Baltimore Terminal, has operated approximately 41 tank trailers, 20 tractors, 14
leased tractors, and 2 leased complete units over 200,000 miles in the States of
Pennsylvania, New Jersey, Delaware, Maryland, and the District of Columbia.
During the same period, from its Baltimore Terminal, it transported petroleum,
and chemical products amounting to approximately eight million gallons per'
month.
The complaint alleges, the answer admits and the undersigned finds, that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Truck Drivers Local 355, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, A. F. L., and also trans-Oil Local Union.
No. 1, sometimes known as Trans-Oil Employees Association, are labor organiza-
tions within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary general statement of fact and issues
The Respondent's Baltimore drivers have been represented by TOE under
two successive, annual contracts with the Respondent, the first being executed
'Counsel for Local 355 was not present at the conclusion of the hearing, having
previously excused himself with the request that the hearing proceedi n his absence.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-on May 21, 1946, and the second in September 1947, after 4 months of bargaining.
During the period covered by these contracts, Local 355 of the Teamsters made
-two attempts to organize these drivers.
In the first attempt, made in the latter part of 1946, Local 355 urged the TOE
to affiliate with the Teamsters, but TOE refused. At about the same time,
members of the Teamsters employed by the American Oil Company, one of the
Respondent's customers, refused to load the Respondent's trucks, and the Re-
spondent was informed by the Oil Company that the Teamsters, then negotiating
a new contract with the Oil Company, were boycotting the Respondent because of
its contract with TOE. Shortly thereafter, the president of TOE complained
to C. M. Rusk, the manager of the Respondent's Baltimore Terminal, that pleasure
cars were following the Respondent's trucks and shining lights into the rear-view
mirrors of the trucks to make them crack up, and that the Respondent's drivers
thought that these "chasers" were members of Local 355.
The second attempt of Local 355 to organize the Respondent's Baltimore drivers,
which will later be discussed in detail, began at the request of a number of the
Respondent's drivers in February 1948 and resulted in the filing of a petition
-for certification with the Board on April 20, 1948. The petition was withdrawn
by Local 355, however, on April 26, 1948.
Although the Respondent has continued to recognize TOE as the bargaining
representative of its drivers, it has at the same time hired a number of drivers
who were members of the Teamsters-a fact which was evident to the Respondent
from the listing of job-applicants on their applications of previous employment
by motor carriers which were known by the Respondent to have closed-shop
contracts with the Teamsters. As a result, in January 1948, President Furrow
of TOE complained to Manager Rusk about the hiring of members of the Team-
sters during the winter season. Furrow also told Rusk that the older drivers
were complaining about drinking and speeding on the part of the new men, and
that there were rumors that the older employees were trying to dislodge the new
-drivers.
TOE had earlier become concerned, too, about the number of drivers who
-were being discharged by the Respondent, and succeeded in securing a clause
in its September 1947 contract with the Respondent to the effect that no driver
who was a member of TOE should be discharged except upon hearing by the
-Respondent and the officers of TOE who constituted its Council6 According
-to the credible testimony of William McKinney, the Respondent 's general man-
ager, excessive drinking , accidents , absences , and lateness among the drivers
had been affecting the Respondent's business when Rusk was made manager of
the Respondent's Baltimore Terminal on August 5, 1946. Between August
1946 and September 1947, Rusk discharged 16 drivers : 6 6 for accidents ; ' 5 for
missing loads; 3 as "undependable"; 1 for carrying a rider; and 1 in the course
,of a reduction in staff. Between the execution of the Respondent's second con-
tract with TOE in September 1947 and April 28, 1948, Rusk discharged 7 more
drivers after granting a hearing to those of them who were members of TOE :
1 for an accident resulting from drinking; 1 for drinking on the highway; 1 for
"There is no allegation in the complaint that, by thus limiting the right of hearing to
members of TOE, the Respondent improperly favored, and thus encouraged membership
in TOE.
6 Included in this number were three drivers of trucks hired by the Respondent. Such
-drivers known as leased operator drivers, although employed by the owners of the trucks,
were subject to the control of the Respondent and were covered by the Respondent's con-
tracts with TOE.
4 Three of these men had accidents involving fast driving.
TRANS-OIL, INC. 143
being drunk and using obscene language on the premises of the Respondent; 2
for racing; 1 for drinking, undependability, and causing friction among the
drivers ; and 1 for accidents and missing work. In addition to the drivers whom
Rusk discharged between August 1946 and April 28, 1948, there were cases of
other men whose absenteeism or other irregular conduct, led merely to suspen-
sions, warnings, or the consideration of discipline.
On April 28, 1948, Manager Rusk discharged five more drivers : Francis D. Far-
rish, Charles W. Meeks, Richard Henry Bramble, Allen E. Myers, and Norris B.
Lee. The reasons given by Rusk to these men for their discharges consisted,
in each case, of one or more of the following: (1) drunkenness on the Respond-
ent's premises; (2) assaults upon the Respondent's dispatcher and manager; (3)
the use of obscene language in the Respondent's office; (4) accidents; (5) fail-
ures to report for work; (6) continued lateness; and (7) an unreported "spill"
of kerosene by Parrish on a customer's concrete runway 8
Of the five men thus discharged on April 28, 1948, Rusk had hired Myers
and Lee in August 1946, and the other three drivers between the end of November
1947, and the beginning of January 1948. At the times of their hire, all five
were members of various locals of the Teamsters. During their employment by
-the Respondent, however, all of them except Meeks joined TOE. Myers, in fact,
served as the secretary-treasurer of TOE for the last 6 months of 1947 and
Lee, as its shop steward and then as its assistant shop steward until April,
20, 1948, when he was ousted.
The General Counsel contends, and the Respondent denies, that the dis-
charges of the five drivers on April 28, 1948, were motivated by their participa-
tion in the Teamsters' 1948 organizational campaign, and that the Respondent
by other conduct hereinafter discussed, further interfered with, restrained,
and coerced its Baltimore drivers in their efforts to substitute Local 355 for the
TOE as their collective bargaining representative.
B. Alleged interference before the Teamsters' 1948 campaign
1. On the hire of drivers
Driver Norris Lee testified that when he was hired on August 27, 1946, Man-
ager Rusk asked him whether he belonged to the Teamsters and, upon Lee's
affirmative answer, told him to "get a withdrawal card." Drivers Farrish and
Ollie Sentman testified that, upon their hire by Rusk on January 2 and January
15, 1948, respectively, Rusk informed each of them that he was required to join
the TOE within 30 days. Rusk, in his testimony, denied having made any of
these remarks upon the hiring of these men or of any other men. The under-
s! ued credits the denials of Rusk.
2. The drivers' meeting in January 1948
At a meeting of the drivers called by Rusk in the middle of January 1948,
Rusk spoke to them about the strained relations between the older drivers and
the newer drivers who were members of the Teamsters. Driver Sentman testi-
fied that Rusk stated that the purpose of the meeting was to better relations
between the old and the new men ; that members of TOE were worried about
the hire of "so many" members of the Teamsters ; that he had gotten rid of a
bad bunch of employees and had a good bunch which he wanted to keep; and
8 Such spills cause the concrete to .crack.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then that he asked drivers Ryan, Parrish, and himself for their views. Accord-
ing to Sentman, neither Ryan nor Parrish said much but Sentman said that he-
needed a job when he came, that he had no intention of creating any trouble
between the men and the management, and that he would join TOE if he did
not have to give up his Teamster membership.
If the testimony of four other drivers concerning this meeting should be ac-
cepted, Rusk in substance also asked the drivers, who were members of the
Teamsters not to "disrupt" the TOE nor to organize for the Teamsters. Thus,
driver Parrish testified that Rusk, after referring to the American Oil Com-
pany boycott of the preceding year, said that he had had trouble with the Team-
sters before and would not permit it to disrupt "the organization he had built
up." Driver Meeks, too, testified that Rusk said there was a slight misunder-
standing and that the older employees wanted to know whether the new men
wanted to break up TOE. Finally, drivers Lee and Richard Bramble testified
that Rusk asked the new men whether it was their intention to work with the
other men or to organize.
However, Rusk's complete version of the meeting, which is consistent with
Sentman's testimony, would indicate that the testimony of drivers Parrish,
Meeks, Lee, and Bramble is founded upon an unreasonable misinterpretation of
Rusk's remarks at the meeting. Rusk testified that he explained to the men
that he had been receiving complaints from the TOE group because of the Re-
spondent's hiring Teamster members during the winter season ; that there were
rumors of bad conduct, drinking, and high speed on the part of the new men ; that
"the older men were `raising the roof' trying to dislodge the new men who, accord-
ing to their stories, were not abiding by the company rules and regulations" ;
that Rusk "felt it was not so much that the [new] men were not abiding by the
rules and regulations of the company on the whole, as it was frictional feelings
between the TOE Union and the A. F. of L."; that TOE was only slightly more
than a year old; that the Respondent had weeded out about half of them for
disregard of company regulations; that there had been a troublesome boycott
at the American Oil Company which the drivers had thought was caused by the
Teamsters; that the older drivers believed that the Teamsters was also respon-
sible for "chasing," about which complaints had been made to the police; that
membership in the TOE was not compulsory; and that, "We want no friction and
we want cooperation and want to work together. Do what you want on the
outside. What you do on the outside matters not to us, but we are concerned
with the safe operation and cooperation among you men to accomplish this."
According to Rusk, he then asked Sentman, Farrish, and perhaps Ryan (whom
he knew from their previous employment to be members of the Teamsters) to
comment on the situation and that they said in substance that they came to work
for the Respondent not to cause friction but to work and earn their wages. Fur-
thermore, according to Rusk, several of the drivers said that they wanted to
keep their Teamster memberships so that they might use them in the event of
a summer lay-off, whereupon Rusk said he understood that that was agreeable,
and Furrow confirmed his statement.
The undersigned credits the testimony of Rusk concerning this meeting. In
addressing the men, Rusk quite properly expressed his concern about the effect
which the apparent bad feelings between the old men and the newly hired mem-
bers of the Teamsters was having upon the Respondent's business operations.
He made it clear that lie had no intention of interfering with the drivers' mem-
berships in either of the two labor organizations nor with their activities "on
TRANS-OIL, INC. 145
the outside ," where it would not affect the "safe operation and cooperation" to
which the Respondent was entitled. He assured the drivers who were Teamster
members that membership in TOE was not compulsory, that he did not take
.seriously , and therefore would take no action upon, the complaints of miscon-
duct which were being made against them by the TOE group, since he attributed
these complaints to "the frictional feelings" of the TOE members towards the
`Teamster members. Then, Rusk softened his rebuff of the TOE members' appar-
^ent efforts to oust the Teamsters from their jobs with the Respondent by refer-
ring to the bases of the TOE members' uneasiness , including the substantial
number of discharges they had suffered in their ranks, and the Teamsters' boy-
cott and "chasing." Thus, the whole tone and content of Rusk's speech was
reassuring to the drivers who were members of the Teamsters and, at the same
time, constituted a plea both to them and to the members of the TOE group for
mutual tolerance and understanding, so that in spite of their differences, they
might work together on their jobs without friction, as the Respondent as their
-employer had a right to expect. In this posture, Rusk's request for comments
by the'Teamster members was certainly not a request, as the General Counsel
contends, that they should abandon the Teamsters and join the TOE, much less
a threat of reprisal if they should not do so.
The undersigned accordingly finds, that by Rusk's remarks to the drivers at
the meeting in January 1943, the Respondent did not interfere with, restrain or
-coerce its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
3. Incidents involving driver Sentman
Driver Ollie Sentman testified that, in a meeting of the TOE on Sunday,
January 30, 1943, he said that the TOE "stunk" and that he would not become a
member nor "put anything in it"; and that on the following day, Manager Rusk
asked him, "What's the idea of creating a disturbance at a union meeting?"
Sentman further testified that on the next day lie was told by Dispatcher Scott
not to work until he had seen Rusk but that, although he waited around the
terminal until 6: 30 p. in., Rusk did not appear. Sentman thereupon quit his job
without thereafter speaking to Rusk.
Rusk testified that President Furrow of the TOE complained to him that Sent-
man was drunk at the meeting and had upset the men by saying that the TOE, the
Company, and their contract were no good. According to Rusk, he therefore
sent for Sentman, and "chided" him for his actions, which he told Sentman did
not fit in with his statement in the January drivers' meeting, whereupon, Sent-
man admitted that he had been drinking and said he "was sorry it happened."
Rusk further testified that he asked Scott to have Sentman see him the next
morning because Sentman had asked Scott whether he might work part time
for another carrier while continuing to work for the Respondent-an arrange-
ment which Rusk considered impracticable in view of the Interstate Commerce
Commission's regulations and the complications it would cause in the drivers'
logs required by the Commission. According to Rusk, Furrow later told him that
Sentman could not see him that afternoon and Rusk therefore did not come
back to the office from a business trip to Washington, to keep his appointment.
Crediting the testimony of Rusk, the undersigned is satisfied with his ex-
planation of his making, and then not keeping, this appointment. However, in
admittedly "chiding" Sentman on the preceding day for his derogatory state-
ments at the TOE meeting about the Respondent as well as the TOE, Rusk acted
improperly in thus inquiring about, and censuring, his employee's conduct in
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union meeting.' But, as will be seen, this was the only instance in which:
the undersigned can find upon the evidence that the Respondent in any way-
interfered with any of its employees in their concerted activities. The under-
signed does not regard this isolated incident, in and by itself, as being of sufficient.
importance and effect to justify a cease and desist order against the Respondent,
and therefore does not recommend a finding of unfair labor practice based on
it.10
C. The discharges
1. The Teamsters' 1948 organizational campaign
In February 1948, a number of the Respondent's Baltimore drivers telephoned
requests to Edwin Mosmiller, business agent of Local 355 of the Teamsters, to.
organize the drivers because they were dissatisfied with TOE and wanted to af-
filiate with Local 355. According to Mosmiller's testimony, however, it was
not until April 11, 1948, that he held a meeting with drivers Allen Myers, Richard
Bramble, Charles Meeks, and Norris Lee at a restaurant called the White Coffee
Pot.
Mosmiller first testified that, as a result of this meeting, a petition setting
forth the drivers' dissatisfaction with TOE and their desire to be represented
by the Teamsters, was drawn up the following day and that, on or about April
14, 1948, it was turned over to the drivers with whom Mosmiller had met on
April 11, so that they could secure the signatures of their fellow drivers. Driver
Lee, however, testified that he had received two identical forms of such petition
from Mosmiller : the first after a meeting with Mosmiller and the other three
drivers at the White Coffee Pot in February and- the second on or about April 14.
According to Lee, he secured only a few signatures on the first petition which
he then tore up and threw away without again showing it to Mosmiller, but
he secured 13 or 14 signatures on the second petition at an organizational meet-
ing held on Sunday, April 18. Mosmiller, upon then being recalled to the wit-
ness stand, stated that he remembered having given the first of these petitions
to Lee in February, but that Lee had returned it to him and that he had lost it.
Testifying still later during the hearing, Richard Bramble said that he signed 2
of these petitions and that, along with Myers, Lee and "all of us," he had be-
come interested in the Teamsters in the middle of March. In attempting to fix
the time when he signed the first of these petitions, he testified first that it was
the beginning of March, and then that it was "the last of February or the be-
ginning of March."
According to his testimony, Lee secured all 17 signatures which were sub-
scribed to what he says was the second petition. Lee further testified that the
first 10 of these signatures were affixed at the first organizational meeting held
by Local 355 on Sunday, April 18, and that the remaining signatures were se-
cured within the next few days. Lee also testified that beginning in February,
he also secured a number of applications for membership in Local 355 from his
fellow drivers, but he was not specific as to who they were, nor were his appli-
cations produced at the hearing.
The testimony of Myers, Meeks, Bramble, and Lee furnish even less reliable an
indication as to when the group actually began soliciting memberships for the
Teamsters. Although Myers testified that he solicited memberships both before
and after the organizational meeting of April 18, he further stated in his testi-
0 See Matter of Atlantic Towing Company, 75 N. L. R. B. 1169.
10 See Matter of Sunray Oil Corporation , 82 N. L . R. B. 942.
TRANS-OIL, INC. 147
mony that "we started approaching different. drivers" after 10 or 11 men signed
the petition, which, according to Lee's testimony, occurred at the meeting on
April 18. Furthermore, the only 2 men who Myers testified were "signed up" by
him, were men who, according to Lee's testimony, signed the petition after April
18. Meeks testified that "the only one I ever asked" to "sign up," was Night
Dispatcher Heaton as "more or less a joking matter," on April. 16. Richard
Bramble's testimony that he "talked to a bunch of drivers" concerning their
joining the Teamsters "in about the middle of March" seems questionable at least
as to the time element, in view of his vagueness as to when he signed the first
petition. And finally Parrish, although he first testified that he spoke to a num-
ber of drivers "to get the campaign under way" in February, later testified that
he spoke to the same men he had previously named, on April 15 or 16, and before
he signed his own application.
Upon consideration of this confusing testimony, the undersigned credits the
initial testimony of Mosmiller,.and finds that there was only one petition circu-
lated for signature among the Respondent's drivers, that it was not prepared
and furnished to the drivers until on or about April 14, and that the evidence
justifies at most a conclusion that there was open solicitation of memberships
for the Teamsters, and signatures to the petition, on and after Sunday, April 18,
1948.
On the following day, Monday, April 19, 1948, the Teamsters mailed to the
Respondent a letter requesting recognition as the bargaining representative of
he Respondent's drivers and also filed a petition for certification with the
Board's Regional Director in Baltimore.
2. Incidents of April 15 and 16
Shortly before their discharges on April 28, drivers Meeks, Myers, and Lee met
after each of them had completed a full day's work, and spent the evening
together, eating and drinking beer. At approximately midnight, they drove to
the Respondent's terminal, from which each of them was to drive his truck on a
regularly scheduled trip at about 4 o'clock that morning. Leaving Lee in the
car, Meeks and Myers entered the garage. Myers asked Night Dispatcher Heaton,
who was secretary of TOE, to get someone else to take his trip that morning since
(as both he and Meeks testified) he had hurt his head that evening in a fall in a
restaurant when Meeks playfully pulled his chair from under him. Myers then
drove Lee home and neither of them worked that morning. Meeks, instead of
taking the long trolley ride necessary for him to reach his home, slept for a few
hours in the cab of his truck, after informing Heaton that he intended to do so,
and then drove his truck out on his scheduled trip without first telling Night
Dispatcher Heaton that he was leaving the terminal."
This much of what happened, is undisputed. However, the testimony of Meeks
and Myers is in conflict with that of Heaton and Rusk, as to important, additional
details' In the first place, Meeks and Myers testified that the incidents in ques-
tion occurred only 4 or 5 days before their discharge on April 28, and certainly
after Local 355 had held its organizational meeting on April 18. But the under-
signed credits the definite testimony of Heaton and Rusk, corroborated by the
11 It was the practice of the Respondent to rotate its regular drivers for monthly periods
as night dispatcher , and Heaton , a regular driver, was serving his tour as night dispatcher
at the time. Myers had served as night dispatcher during February.
12 Lee gave no testimony as to these events.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's records," that Meeks slept in his truck on the morning of April 16,
1948. The undersigned so finds.
Both Meeks and Myers further testified that they had drunk only a few beers on
the night in question ; that they were not intoxicated when they reported to Night
Dispatcher Heaton shortly after midnight ; and that they could easily have driven
their trucks. Meeks also testified that after he told Heaton he would sleep in his
truck, he told the same thing to Rusk whom he saw in the garage at the time ; that
he left the terminal with his truck at 4: 15 a. in. and thus within the 15-minute
leeway generally permitted the Respondent's drivers; that he had first punched
his time card; and that he (lid not notify Heaton because it was not customary.
Heaton, however, testified that when Meeks and Myers came into the garage
after midnight, they had apparently been drinking and were in no condition to
drive ; that they both admitted having been drinking and having had no sleep ; that
Myers reported that he would be unable to drive because of his head injury and
that Lee, too, was sick and would not report; but that, between 7 and 8 a. in.,
Lee telephoned that he would not take his scheduled trip because he was taking
his son to the hospital : that Meeks had said he was going out to sleep in his truck
since he had not slept all night ; that, between 5 and 7 a. in., Heaton saw Meeks
sleeping in his truck in the garage ; that at about 6 a. m. he made his regular, early
morning telephone call to Rusk at his home; that he told Rusk what had hap-
pened ; and that Rusk told him not to let Meeks take his truck out unless Meeks
was in condition to drive. In his testimony, Rusk corroborated Heaton's version
of their telephone conversation.
Finally, Meeks' time card and the disk from his truck's tachograph, which auto-
matically recorded the time, speed, and distance of the truck's movement and
which also bore notations in Meeks' handwriting, squarely contradict Meeks' testi-
mony that he left the garage that morning at 4: 15 a. m. after first punching his
time card and that he was in fit condition to drive. The time card was punched
at 6: 30 a. m. The tachograph shows, too, that the truck left the garage at 6: 30
a. m. and Meek's notation in explanation of a stop at about 8: 30 a. in. is to the
effect that he was "sick."
The undersigned accepts the information supplied by the records of the Re-
spondent, credits the testimony of Heaton and Rusk, and specifically finds that,
as a result of their drinking together and getting no sleep on the night of April 15,
Myers and Lee failed to work the following morning and Meeks, after sleeping a
few hours in his truck, left the terminal 2'/ hours late, without reporting to the
night dispatcher, and in unfit condition to drive ; and that, these facts coming
to the knowledge of Night Dispatcher Heaton, Heaton reported them to Rusk on
the morning of April 16, 1948.
3. The discharge decision
Rusk credibly testified that for some time preceding April 16, he and Dispatcher
Scott were concerned by reports that driver W. E. Brown was bickering with, and
annoying, his fellow drivers ; that driver Wallace had left whiskey-bottle labels in
his truck; and that, according to his truck's tachograph, Wallace was also
resuming his speeding which he had temporarily stopped after a previous warning.
Rusk further testified, although the Respondent's records do not substantiate
13 It is undisputed that Meeks, Myers, and Lee had worked in the afternoon before they
spent the evening together and that, of the three men, only .Meeks worked on the following
day. The Respondent's records show that this was true only on April 15 and 16, and on no
subsequent, consecutive working days.
TRANS-OIL, INC. 149
this testimony," that for 2 or 3 weeks preceding April 16, there had been a recur-
rence of tardiness and absences on the part of his drivers, similar to that which
had occurred in February.
According to Rusk, when he learned on April 16 of Meeks' sleeping in his truck
and then leaving the garage 21/2 hours late that morning he determined to "set an
example to other employees ," by discharging not only Meeks and with him
Myers and Lee whose drinking with Meeks was apparently responsible for their
not reporting that morning , but also any other drivers whose conduct was dis-
rupting the Respondent 's operations . Rusk further testified that he requested
Dispatcher Scott's recommendations as to which men should be discharged and
then limited his consideration to Meeks, Myers, and Lee and five other men named
by Scott, since he relied implicitly upon Scott as the direct supervisor of the driv-
ers. lie then discussed with Scott the reasons for Scott's recommendations in the
case of each man and, so far as absences were concerned , looked only at the
record of the particular man for the preceding 2 or 3 weeks , without attempting
any "statistical analysis " or comparison with the records of other drivers.
According to Rusk, in addition to Meeks, Myers, and Lee, Scott recommended
the discharge of Farrish, Richard Bramble, W. E. Brown, Wallace, and one other
man, whose name Rusk testified that he could not remember, although he
admitted that it might have been Vice-President Amberman of the TOE. Rusk
testified that, after discussing the records of these men with Scott, he decided
during the afternoon of April 16, to discharge not only Meeks, Myers, and Lee,
but also Richard Bramble, whose repeated absences were mentioned and pointed
out by Scott in the Respondent's daily work schedules, and Farrish, for reasons
which will later be discussed. Rusk decided, however, not to discharge Wallace,
Brown, or the unidentified driver. In the case of Wallace, according to Rusk,
he told Scott that he should first call upon Safety Inspector Bolger from the
Philadelphia office to make an actual road check to confirm or disprove the
charges of Wallace's speeding and that Brown should be given a chance to mend
his ways.
According to Rusk, he telephoned to General Manager McKinney on the night
of April 16, for approval of this action which was unusual in that he proposed
discharge of five men at one time. McKinney confirmed Rusk's testimony as to
this telephone call about the five discharges on April 16, and both men testified
that McKinney told Rusk to proceed with the discharges.
But Rusk did not discharge the five men until April 28, nor did he in the
meantime speak to any of them about the imminency of their discharges or the
grounds for them. As Rusk explained it, he did nothing on Saturday, April 17,
which was a workday, because he assumed that the dischargees were TOE
members entitled to a hearing, and it was not the custom to hold meetings with
the TOE on a Saturday. Then, on Monday morning, April 18, when Rusk
appeared at the terminal, he found that President Furrow, Amberman, Decker,
and Heaton who were members of the TOE's Council had not reported for work
that morning. Later in the clay, Furrow, telephoning from the office of TOE's
34 The Respondent ' s daily work schedules during the period January to March 1948,
inclusive , show that in January , there were 75 apparently unexcused absences, in
February 134; and in March 70. For January and March, therefore , the weekly average
was about 16 and for February 33. For the 3-week period March 26 to April 16, during
which Rusk testified there was a sharp increase approximating the February high, there
were only 28 apparently unexcused absences or about 9 per week and, therefore, con-
siderably less than not only the February average but also the January and March
averages.
867351-50-vol. 86-11
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney, told Rusk that he and the other officers on TOE's Council had not
reported for work because learning of Local 355's intention to file a petition for
certification with the ]Board they had made a trip to the Respondent's home
office in Philadelphia to find out whether the Respondent had made a "deal"
with Local 355.
On the following day, Tuesday, April 20, Rusk received the letter of Local 355
demanding recognition as the representative of the drivers, and also a letter from
a field examiner of the Board at Baltimore, notifying the Respondent of the
filing of the petition and requesting a conference with representatives of the
Respondent and Local 355 on Monday, April 26.
At McKinney's suggestion, Rusk accompanied McKinney in a visit to the
Respondent's attorneys in Baltimore. Upon the attorney's advice, they decided
to postpone action on the discharges until after the conference with the I'loard
field examiner and the representatives of Local 355 on April 26.
At the meeting on Monday, April 26, Local 355 withdrew its petition. Upon
the advice of the Respondent's attorneys, Rusk then decided to effect the dis-
charges on April 27, but, because of an accident which required his presence in
Bethesda on that day, Rusk finally instructed Dispatcher Scott to tell the five
dischargees and TOE's Council to meet with him on Wednesday, April 28, at
4p.m.
Accordingly, during the afternoon or evening of April 27, Scott made nota-
tions on the schedules of assignments for April 28, that instead of working,
Meeks, Myers, Lee, Farrish, and Richard Bramble were to report to Rusk's office
at 4 p. m. on April 28 for a "Company-Union hearing." At the same time, Rusk
informed the Philadelphia office of the full time worked by the five men who
were to be discharged so that, as a result, on the following morning he received
home-office pay checks for each of the men covering all his work up to that time.
Otherwise, the pay checks would normally have covered only their work through
the preceding Friday, April 23.
4. Dispatcher Scott's remarks to the drivers
Between April 16 and April 28, when the five men were actually discharged,
Dispatcher Scott, who himself held withdrawal card from the Teamsters but
was not a member of TOE, spoke on two occasions to the drivers about the
Teamsters.
According to the uncontradicted, credible testimony of Myers, Scott said to
him in these last 2 weeks "I hope you know what you are doing," and when
Myers asked whether he was referring to the "A. F. of L. business," Scott said,
"Yes, . . . to be truthful, I wouldn't mind seeing the A. F. of L. in here. My
work would be a damn sight easier. If a man didn't show up, I could call
the [Teamsters] Hall and get them to send me a driver, whereas if a man
doesn't show up [now] I am left without a driver nine times out of ten and the
loads are missed."
Meeks also testified without contradiction that, after the organizational meet-
ing of Local 355 on April 18, Scott overheard Meeks and. other drivers talking
about what the A. F. of L could do, and said to Meeks, "I think you boys
are making a hell of a mistake to bring the A. F. of L. into this barn."
5. The discharges
The meeting between Rusk and the five dischargees was held in Rusk's office
shortly after 4 p. in. on April 28. Dispatcher Scott and the TOE Council con-
TRANS-OIL, INC. 151
sisting of Furrow, Amberman, Heaton, and Charles Bramble's were also present,
although only Rusk and the dischargees testified in the present case.
Rusk testified that, at the beginning of the meeting, he read the following
prepared statement to the men : "The action that this company is about to take
will serve notice on each of you individually, on this Union (pointing to the TOE
group), on A. F. of L., CIO, or any other union with which we may in the future
do business, that this Company will not be threatened nor intimidated nor will
it stand idly by and allow its employees to be threatened or intimidated. or its
business ruined." According to the testimony of the dischargees, they had a
different impression of what Rusk said. Lee testified that Rusk said he did not
want any union to come in and try to organize while they had a contract with
TOE. Myers testified that Rusk said he was not going to have the A. F. of L.
or any other union coming in there and trying to break a union with which the
Company had signed a contract. Farrish testified that Rusk said he (lid not in-
tend to permit disruption from union activity as long as he had a contract with
TOE. Meeks testified that Rusk's statement was to the effect that he was not go-
ing to have any trouble with the A. F. of L. or the CIO or any labor organization
while lie was under contract with TOE. Bramble. on the other hand, at first
testified that Rusk asked Farrish whether the A. F. of L. was going "to get in
there," but later admitted, "I don't know what he [Rusk] said, to tell you the
truth." Finally, when counsel for the Respondent, in cross-examining Parrish
and Myers, suggested to them that the substance of Rusk's opening statement
was actually in accord with Rusk's testimony as above set forth, Farrish agreed
and Myers testified merely that he could not recall whether or nottbis was or was
not the substance of Rusk's statement. The undersigned credits Rusk's testimony
as to his opening statement to the men at the meeting on April 28.
After this opening statement, Rusk referred to his notes on their records
and told the five men that he intended to discharge them upon the following
grounds:
(1) Meeks-for drinking on company property, sleeping "the drunk off"
in his truck, and then leaving on his scheduled trip two and a half hours
late on April 16, as well as for an accident on February 5, 1948, and for
"dropping" loads on April 19 and 23, 1948;
(2) Myers-for continued tardiness; for 4 failures to work from April
9 to April 24, 1948, including his going home sick on April 16, after a
"drinking party"; and for a "poor accident record" which included 2 similar
accidents ;
(3) Lee-for twice threatening Manager Rusk; for assaulting Dispatcher
Scott; for drinking on company property ; for obscene language in office,
and for missing work on 4 different days beginning with April 16, 1948, when
he claimed to have taken his child to the hospital, "but was known to have
been drinking;",
(4) , Farrish-for failing to report a "spill" of kerosene on January 15,
1.948, and for failures to report for work on April 12. 15, and 22, 1948:
and
(5) Richard Bramble-for failure to report for work on April 17 and
26. 1948.
Before discharging the men, however, Rust offered to accept their resignations
and to give them references instead of discharging them. He also reminded
them that, under the Respondent's contract with TOE, they were entitled to
11 Charles Bramble is not to be confused with Richard Bramble . one of the dischargees.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation by TOE's Council , the members of which were present for that
purpose . The men refused either to quit or to be represented by TOE, but insisted
upon being represented by Local 355. Rusk thereupon discharged the five men
and gave each his check for his complete wages.
6. The substance of the grounds given for the discharges
From the testimony of Rusk and the five discharged men, some of which has
already been discussed , it appears , and the undersigned finds, that the factual
bases for the discharges as stated by Rusk to the men on April 28, were true.
As the undersigned has already found, Meeks , Myers , and Lee had been drinking
and had no sleep on the night of April 15, as a result of which Myers and Lee
failed to work the next morning and Meeks left the garage 21/2 hours late and in
questionable condition for driving . Furthermore , Lee himself admitted in his
testimony the essential truth of Rusk 's testimony that Lee grabbed Rusk by
the coat in April or May 1947, while protesting Rusk 's giving an unsatisfactory
reference to Lee's brother,and that Lee also threatened to strike Dispatcher
Scott in January or February 1948 , and used obscene language in the office,
because Scott had called him a "fair weather driver ." Nor is there any dispute
in the testimony that each of the men failed to work or "dropped loads" on
the dates charged by Rusk, or that they had had the accidents referred to by
Rusk. Finally , the undersigned credits Rusk 's testimony that Farrish failed
to report , and then upon being asked by Rusk denied having had , a "spill" of
kerosene on a customer 's runway on January 15 , 1948, so that, as a result Rusk
for several months refused to honor the customer ' s claim for damages and the
Respondent lost his business shortly before Farrish 's discharge . In his testi-
mony , although he still denied having had a "spill" on the customer 's runway,
Farrish said lie spilled only a very small quantity of kerosene on the public
road adjacent to the customer 's runway but admitted that when he had been
questioned by Rusk at the time, he had simply denied having had a spill and
failed to give Rusk his explanation of what had happened.
It is to be noted that both in his statement to the men upon their discharges
and in his testimony to substantiate the grounds for the discharges , Rusk relied
upon absenteeism after April 16, the date upon which he testified he decided
to discharge the men, and also to some extent upon misconduct or accidents
which occurred 3 months or more before the discharges . Thus, it appears from
Rusk 's testimony that, at the time of the discharges , he charged Bramble and
Meeks only for absences after April 16, and Farrish for an absence on April 22
as well as for absences on April 12 and 15. And it also appears from Rusk's
testimony that Lee's last "assault" on Scott occurred in January or February
1948, and that Myers' and Meeks' last accidents occurred in June 1947 and
February 1948, respectively.
So far as the charges of excessive absenteeism against Farrish and Bramble
were concerned , Rusk explained in the case of Bramble that, on April 16, Scott
had pointed out to him on the work schedules for the past few weeks, the fact
that Bramble had been repeatedly absent, but that when Rusk discharged the
men on April 28, he referred them only to their most recent absences , some of
which had occurred after April 16. Summaries prepared from the Respondent's
daily work schedules, which were received in evidence , show that between April
1 and April 16, Farrish had five apparently unexcused absences , Bramble had
four, and, of nine other drivers called to the attention of the Trial Examiner
by the General Counsel for the purposes of comparison , three of them had two
such absences each, three had one each , and the remaining three had no such
TRANS-OIL, INC. 153
absences. Upon this state of the record, including the comparisons requested
by the General Counsel, the undersigned finds that Farrish and Bramble had
in fact been excessively absent in the few weeks prior to April 16.
In the case of Meeks, Rusk flatly testified that he discharged him for drunk-
enness on April 15 and 16. So far as Myers and Lee were concerned, Rusk's
testimony is clearly to the effect that their discharges were also based upon
their drinking and failure to get any sleep on the night of April 15, and their
resulting failure to work on the morning of April 16, and that, although their
earlier misconduct for which they were not disciplined at the time was an
additional and confirming factor, it was not decisive. Rusk and McKinney both
testified that Myers' tardiness had been a problem to the Respondent all during
his employment so that it became a joke among the drivers ; and that they
considered discharging Myers and Lee for absenteeism late in 1947, but Rusk
finally convinced McKinney that nothing should be done "during the busy winter
season." In the case of Lee, it appears from his testimony as well as from
that of Rusk, that Lee, had a weakness for liquor. According to Rusk, this
weakness permitted other drivers to get Lee into trouble, and Rusk, because
Lee was a satisfactory driver when not drinking and had a family including
a blind, sickly child, had been patient with Lee and unwilling to discharge him
even when Lee assaulted him and threatened Scott. Thus, according to Rusk,
in the cases of both Myers and Lee, as in the cases of some of the drivers whose
earlier discharges have been mentioned, a cumulatively bad record, although
not previously made the basis of any serious discipline, eventually confirmed his
decision to discharge them for the trouble they got themselves into on April 15
and 16.
7. Conclusions
Rusk testified, and the undersigned credits his testimony, that on April 16,
he knew nothing of the 1948 campaign of Local 355 to organize the Respondent's
drivers or the participation therein of the five men who were later discharged
on April 28. The undersigned, however, finds that on April 16, Rusk did know
that these five men were members of the Teamsters, since, as Rusk admitted,
this fact was apparent from their previous employment by carriers with closed-
shop contracts with the Teamsters. The undersigned also finds that, after April
19, (when he learned of Local 355's organizational meeting on the previous day),
Rusk learned what had then become common knowledge at the terminal, i. e.,
that the five men had been active in the organizational campaign.
There is some reason in the record for suspecting that Rusk's decision to dis-
charge the five men was reached, not on April 16, as he testified, but after Mon-
day, April 19, when, as has just been found, he knew not only of their Teamster
memberships, but also of their connection with the organizational campaign of
Local 355. For execution of a final decision to discharge employees is ordinarily
not postponed for 12 days. Then, too, Rusk's references to absences after April
16 when he discharged Farrish and Bramble on April 28, suggest on their face
that the decision to discharge these two men had not been made on April 16.
Finally, Rusk testified that his decision to discharge Farrish and Bramble on
April 16 as well as Meeks, Meyers, and Lee, was prompted in part by a general
record'of absences during the preceding 3 weeks which was threatening to reach
the February high. But the Respondent's records indicate that, although in-
dividually Farrish and Bramble had been excessively absent, absences on the
part of the staff as a whole were fewer than they were in the apparently normal
months of January and March.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, in the light of Rusk 's explanations and the evidence as a whole, these
critical observations give rise merely to doubts and to suspicions which are not
supported by the preponderance of the evidence. The undersigned accepts as
reasonable, Rusk's explanations that postponement of the discharges was due to
the pendency of Local 355's petition for certification, and that his decision
on April 16 to discharge Farrish and Bramble for excessive absences was based
upon repeated absences pointed out to him by Scott on the records, summaries
of which are in evidence, although he later referred the men merely to their most
recent absences. Similarly, while Rusk was mistaken in his testimony as to a
generally high record of absences immediately before April 16, he was correct
in his testimony that the individual absences of Farrish and Bramble for the same
period were excessive. Accordingly, although the matter is not free from doubt,
the undersigned credits Rusk's testimony, and finds, that the decision to discharge
the five men was reached on April 16.
Turning first to the specific cases of Meeks, Myers, and Lee, the undersigned
finds that they were discharged, not because of their Teamster membership and
activities, but because of their drinking and failure to get sleep on the night of
April 15, which resulted in Myers' and Lee's not working the next morning, and
in Meeks' leaving the terminal on his run 21/2 hours late and in questionable con-
dition for driving. Their offenses on this occasion were serious. In view of the
Respondent's trouble with its drivers about drinking and general unreliability
and the considerable number of previous discharges which were based upon these
grounds, it is incredible that these three men would not have been discharged had
they not been members of the Teamsters and active on its behalf. The under-
signed, therefore concludes that, in discharging Meeks, Myers, and Lee, the
Respondent did not discriminate against them in regard to their hire or tenure
of employment in order to discourage membership in the Teamsters or in Local
355, within the meaning of Section 8 (a) (3) of the Act.
The cases of Farrish and Bramble present somewhat greater difficulty. It
will be recalled that Rusk testified that Parrish and Bramble were two of the
eight men whom he considered for discharge on the recommendations of Dis-
patcher Scott. Seven of these men whom Scott thus selected were Teamster
members and, at first glance, there might appear to be ground for suspicion
that Scott, although himself a Teamster member and not a member of TOE,
recommended the seven because they were Teamster members, particularly
since Scott shortly thereafter expressed his doubt to Myers and Meeks as to
the wisdom of their support of the Teamsters. Furthermore, Scott was not
called as a witness to explain the basis of his selection of men for discharge.
Scott's remarks to Myers and :Meeks, however, did not in themselves indicate
any antagonism for the Teamsters on his part or on the part of the Respondent.
Indeed, in his statement to Myers, Scott said that he personally would like to
see the Teamsters come into the terminal. And, without more, an expression
by an employer of his opinion as to the wisdom of his employees' selection of
a bargaining agent is not an unfair labor practice. At best, such remarks are
equivocal and only in appropriate context attain a sinister meaning. Thus, in
the present case devoid as it otherwise is of express threats or interference,
restraint or coercion, any improper significance to Scott's remarks as a threat,
itself constituting interference or indicating a discriminatory motive for the
impending discharges, could be found only if the grounds asserted by the
Respondent for the discharges were unreasonable or untrue.
The undersigned has already found that Meeks, Myers, and Lee were dis-
charged for cause, and that, as charged by Rusk, Parrish and Bramble were
.TRANS-OIL , INC. 155
excessively absent and b'arrish had also failed to report a "spill," which had just
recently resulted in the loss of a customer. Upon the basis of the absences
alone, Farrish's and Bramble's discharges were apparently no different from
those of a considerable number of drivers who had been discharged for this
reason in the past. That Farrish and Bramble were among a group consisting
of seven Teamster members and one TOE member, whom Rusk recommended
for discharge, does not, in the present case, indicate an intent by Scott, and
therefore by the Respondent, to discriminate against Teamster members, since
the reasons for his recommendations in the case of each man were substantial
and true, without there being any proof in the record that drivers who were
not Teamster members had with impunity been given the same or similar reasons
for their discharges. Upon this state of the record, there seems to have been
nothing for Scott to have appeared to explain as a witness.
Upon the foregoing considerations the undersigned concludes that Scott's
remarks to the drivers concerning the Teamsters did not constitute interference
within the meaning of Section 8 (a) (1) of the Act, and that in discharging
Farrish and Bramble, the Respondent did not discriminate against them in
regard to their hire or tenure of employment in order to discourage membership
in the Teamsters or in Local 355 within the meaning of Section 8 (a) (3) of
the Act.
D. The alleged "blacklisting"
In May 1948, after being discharged by the Respondent, Meeks went to work
as a driver for the Quinn Freight Lines, of which Louis Sullivan is manager.
In about the first week of January 1949, Rusk telephoned Sullivan that he had
a report from one of his leased operator drivers that Meeks had threatened to
run the leased operator driver off the road and to wreck his truck, 1° and,
when Sullivan expressed doubt, saying that such a threat seemed childish,
Rusk explained that its possible basis lay in "the friction which had arised
last year between the union under contract with our Company and [Local] 355
in Baltimore, which at that time had been trying to swing an election in
the shop." "
In spite of Sullivan's denial, the undersigned credits Rusk's testimony that
he made it clear to Sullivan that he was reporting Meeks' alleged threat because
of concern about the safety of the operations of the two carriers. The under-
signed accordingly finds that Rusk did not attempt to "blacklist" Meeks because
of his Teamster membership and activities, as the General Counsel contends.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
2. Truck Drivers Local 355, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America, A. F. L., and also Trans-Oil Local
16 According to Sullivan, Rusk said he had a signed threat from Meeks. The under-
signed, however, credits Rusk's testimony that what he actually had and spoke to Sullivan
about, was an affidavit from his leased operator driver as to the threat. The affidavit was
produced and received in evidence.
11 It will be recalled that the leased operator drivers, though employed by the owners of
their trucks, were covered by the Respondent's contract with TOE.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union No. 1, sometimes known as Trans-Oil Employees Association, are labor
organizations within the meaning of Section 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the mean-
ing of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing finds of fact, conclusions of law, and the
entire record in the case, the undersigned hereby recommends that the com-
plaint herein be dismissed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party
may, within twenty (20) days from the date of service of the order transferring
the case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a
statement in writing setting forth such exceptions to the Intermediate Report
and Recommended Order or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report and Recommended Order. Immediately upon the filing
of such statement of exceptions and/or briefs, the party filing the same shall
serve a copy thereof upon each of the other parties. Statements of exceptions
and briefs shall designate by precise citation the portions of the record relied
upon and shall be legibly printed or mimeographed, and if mimeographed shall
be double spaced. Proof of service on the other parties of all papers filed with
the Board shall be promptly made as required by Section 203.85. As further
provided in said Section 203.46 should any party desire permission to argue
orally before the Board, request therefor must be made in writing to the Board
within ten (10) days from the date of service of the order transferring the case
to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for
all purposes.
Dated at Washington, D. C., this 16th day of May 1949.
WILLIAM F . SCHARNIKCW,
Trial Examiner.