Ford Brothers

In the Matter of WILBUR FORD, CHESTER FORD, AND JOHN FORD, CO- PARTNERS , D/B/A FORD BROTHERS and INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN R HELPERS OF AMER- ICA, A. F. L., LOCAL 143 Case No. 9-C-2167.-Decided March 31,1947 Messrs. Martin Sacks and Louis S. Penfield, for the Board. Mr. Arthur W. Wiles, of Columbus, Ohio, for the respondents. Mr. Orville Artis, of Portsmouth, Ohio, for the Union. Mr. William C. Baisinger, Jr., of counsel to the Board. DECISION AND ORDER On September 4, 1946, Trial Examiner Charles E. Persons issued his Intermediate Report in the above-entitled proceeding, finding that the respondents, Wilbur Ford, Chester Ford, and John Ford, co- partners, d/b,/a Ford Brothers, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action , as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and a supporting brief. On February 18, 1947, the Board heard oral argu- ment at Washington, D. C. The respondents and the Union appeared and participated in the argument. 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 respondents ' exceptions and brief, the arguments advanced at oral argument, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recom- mendations , with the additions noted below : The Trial Examiner found, and we agree, that Edward Pancake was discharged because of his union activity , in violation of Section 8 (3) of the Act. In excepting to this finding , the respondents argue that Pancake's testimony at the hearing and his statements to other employees prior thereto, that he was discharged because he took sev- eral gallons of gasoline from one of the respondents ' transport trucks, conclusively establish that he was discharged for that reason, as the 73 N. L. R. B., No. 10. 49 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondents contend, and not for his union activity. We do not agree with the respondents. In our opinion, Pancake was not expressing in those statements his view as to the real reason for his discharge but was merely repeating the ostensible reason given him by the respond- ents at the time of his discharge. This conclusion is indicated by, among other things, Pancake's further testimony that the adherents of the Union anticipated that "The first time one of our foots slipped, there would be somebody fired. . . . I was the first one that walked into the trap, see," and that, in his opinion, only members of the Union would have been discharged for draining gasoline from re- turned transports. In any event, as we indicated in Matter of Jor- danoff Aviation Corporation,' a discharged employee's state of mind as to the reason for his discharge is not controlling under circum- stances which otherwise reasonably lead to a contrary conclusion. Upon the entire record in the case-including the fact (1) that Pancake's work performance had been reasonably satisfactory throughout his approximately 8 years' tenure with the respondents; (2) that the respondents failed to give due publicity to any rule pro- hibiting their employees from appropriating small quantities of gaso- line which remained in the returned transports after completion of delivery to consignees; (3) that the draining of gasoline from returned transports by employees of the respondents was a common practice of long standing, knowingly permitted by the respondents; (4) that, so far as appears, no driver other than Pancake had been discharged or otherwise disciplined for engaging in this practice; (5) that Pan- cake was discharged during the Union's organizational campaign; (6) that the respondents, as fully set forth in the Intermediate Report, had openly demonstrated their antipathy toward the Union and the organizational efforts of their employees; 2 and (7) that the respond- ents knew of Pancake's union membership and activities, had threat- ened to take discriminatory action against union members, and had 1 69N L R.13 1189, 1199. 2 we find no merit in the respondents ' contention that the statements found by the Trial Examiner to constitute violations of Section 8 (1) of the Act fall within the permissible area of free speech guaranteed by the Constitution . Certainly , Chester Ford 's suggestion to employee Virgil Criss that " * * * when this Union deal is to come up, if we'd have a beer and sandwiches now I think we could overcome a lot of this Union deal" ; the respondents' offers of individual wage increases to employees Criss and Hinson in an effort to seduce them from their union allegiance ; the questioning of employees Coyer and Ratliff as to their union membership by respondents W. H. Ford and John Ford , respec- tively , the threat of discrimination against union members expressed by Chester Ford to employee Shelton ; and Chester Ford 's threat to discharge the supposed leader of the Union expressed to employee Coyer , constituted acts of unlawful interference and coercion per se, rather than privileged free speech. Nor is there any merit to the respondents ' argument that the failure of any employee to testify that he was in fact intimidated or coerced by the anti-union statements and conduct of the respondents militates against the Trial Ex- aminer's finding that such activities amounted to interference, restraint , or coercion, within the meaning of Section 8 (1) of the Act. See Matter of Swift and Company, 30 N L. R B . 550, 565, enf'd 129 F. (2d) 222 ( C. C. A. 8). FORD BROTHERS 51 singled out Pancake as one of the leading protagonists of the Union,3 we are convinced and find, as did the Trial Examiner, that the alleged misconduct of Pancake in draining a small quantity of gasoline from a returned transport was merely a pretext for his discharge and that the real reason was a desire to discourage membership in the Union by eliminating one of its active members. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, Wilbur Ford, Chester Ford, and John Ford, co-partners, doing business as Ford Brothers, Coal Grove, Ohio, and their agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs; Warehousemen and Helpers of America, Lo- cal 143, affiliated with the American Federation of Labor, or in any other labor organization of their employees, by discharging or refus- ing to reinstate any of their employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 143, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representa- tives 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, which the Board finds will effectuate the policies of the Act : (a) Offer Edward Pancake immediate and full reinstatement to his former or a substantially equivalent position ,4 without prejudice to his seniority or other rights or privileges; (b) Make whole Edward Pancake for any loss of pay he may have 8 Thus, "within a month or two" before Pancake's discharge, the respondent Chester lord, in a conversation with employee Criss, named Pancake as one of the "five or six men that's causing this, this union trouble " On another occasion, late in May 1945, the re- spondent Wilbur Ford singled out Pancake from a group of four employees for the purpose of discussing the Union. During the ensuing conversation, Pancake told Wilbur Ford, "* * * us fellows is talking something about we'd like to have a national organization in here to represent us * * * You know, if we have a national organization repre- senting us, we feel more secure in our jobs and we have more security." 4In accordance with our consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever pos- sible, but if such position is no longer in existence , then to a substantially equivalent position " See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch, 65 N. L. R. B. 827. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered by reason of the respondents' discrimination against him, by payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the period from the date of his discriminatory discharge to the date of the respondents' offer of reinstatement, less his net earnings during such period ; (c) Offer to those employees listed in Appendix A, attached to the Intermediate Report, who went on strike and who have applied for and have not been offered reinstatement, and also, upon application, to those who have not previously applied for reinstatement, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, in the manner set forth in Section V of the Intermediate Report, entitled "The Remedy," placing those employees for whom no employ- ment is presently available upon a preferential list and offering them employment as it becomes available, in the manner therein set forth; (d) Make whole the employees specified in paragraph 2 (c), above, for any loss of pay they have suffered or may suffer by reason of the respondents' refusal, if any, to reinstate them pursuant to paragraph 2 (c); above, by payment to each of them of a sum of money equal to the amount that he normally would have earned as wages during the period from five (5) days after the date on which he applied or shall have applied for reinstatement to the date of the respondents' offer of rein- statement; or placement of his name upon a preferential list, less his net earnings, if any, during said period ; (e) Post at their plant in Coal Grove, Ohio, copies of the notice attached to the Intermediate Report, marked "Appendix B." s Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the respondents or their representative, be posted by the respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (f) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of this Order, what steps they have taken to comply herewith. CIIA1R1rAN HERZOG took no part in the consideration of the above Decision and Order. Said notice, however, shall be, and it herchv is, amended by striking from the first para- graph thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Older " In the event this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted , before the words "A Decision and Order," the words , "A Decree of The United States Circuit Court of Appeals En- forcing." FORD BROTHERS INTERMEDIATE REPORT Martin Sacks, Esq., and Louis S. Penfield, Esq., for the Board. Arthur W. Wiles, Esq, of Columbus, Ohio, for the Respondents. Orville Artis, Business Representative, of Portsmouth, Ohio, for the Union. STATEMENT OF THE CASE 53 Upon a first amended charge duly filed on May 13, 1946, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L, Local 143, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Ninth Region (Cincin- nati, Ohio), issued its complaint dated June 25, 1946, against Wilbur Ford, Chester Ford, and John Ford, co-partners, doing business as Ford Brothers, herein called the Respondents, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the Respondents and the Union. With respect to the unfair labor practices the complaint, as amended at the hearing, alleges in substance: (1) that the Respondents discharged Edward Pancake on June 4, 1945, and thereafter failed and refused to reinstate him because of his membership in and activities on behalf of the Union and because the Respondents wished to discourage membership in the Union, and (2) that the Respondents from on or about March 1, 1945, to date have urged, persuaded and warned their employees to refrain from assisting, becoming members of, or remaining members of the Union ; have threatened their employees with loss of employment and loss of various privileges if the Union became their bargaining representative ; have offered financial inducements to their employees condi- tioned upon their withdrawal from the Union ; have threatened to close their business if the Union became the bargaining representative ; have questioned their employees concerning their union activities, union membership and the leader- ship in the Union's organizational campaign, thereby interfering with, restrain- ing, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act and engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. Further, the complaint alleges that 15 named employees 1 on June 4, 1945, ceased work concertedly and went on strike because of these unfair labor practices of the Respondents. At the opening of the hearing the Respondents filed their answer in which they admit the facts alleged in the complaint as to their co-partnership organization and the nature and extent of their business, and that Pancake was discharged on June 4, 1945, and thereafter refused employment However, the Respondents deny the commission of any unfair labor practices and aver that Pancake was discharged for justifiable, lawful and reasonable causes. Further, the answer denies that there was a strike or any other dispute whatsoever in the plant and avers that nothing which there occurred was caused by any unfair labor practices. Pursuant to notice a hearing was held at Ironton, Ohio, on July 22 through July 26, 1946, before the undersigned, Charles E. Persons, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondents were These employees were. Cecil Cheek John A. Dheel Carl Nance O R Colley John Friend Dorsey W. Pelphrey H B Cook Kenneth G. Hinson William Ratliff Raymond Coyer Edward Hughes John F. Richardson Virgil F. Criss Homer Mayse John C. Shelton 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by counsel and the Union by one of its officials. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. Prior to the opening of the hearing the Respondents submitted motions to the Regional Director, requesting a copy of the report made in this proceeding by the Board's Field Examiner ; for a complete bill of particulars; to strike certain parts of the complaint; and to make the complaint more definite and certain. These motions were referred to the under- signed for disposition. At the opening of the hearing the Respondents' counsel renewed these motions and supported them with brief argument. The motions were denied. It was provided however, with reference to Respondents' motion for a bill of particulars, that in case they found it desirable to ask for a recess at the close of the Board's presentation they would be granted a reasonable time to prepare their defense, and further that the Board would be required to recall any of its witnesses whom the Respondents desired to subject to further cross- examination. Such a request was not presented. Respondents further moved that the rule be applied requiring that witnesses be excluded from the hearing room until called to testify. This motion was granted. At the close of the Board's presentation Respondents moved to strike the allegations of the complaint in their entirety and as to each separate clause, alleging failure of proof. These motions were denied. The motions were renewed by the Respondents at the close of the hearing. They were then taken under advisement by the under- signed and are now disposed of by the findings, conclusions and recommendations in this Intermediate Report. During the hearing the Board moved to strike such part of the complaint as alleged that five employees who had engaged in the strike had been refused reinstatement upon their unconditional application. This motion was granted without objection. The Board further moved at this time to amend paragraph 6 of the complaint and specify 15 employees who ceased work concertedly and went on a strike, allegedly caused by the unfair labor practices of the Respondents This motion was granted. At the close of the hearing the Board moved to conform the pleadingg to the proof adduced as to such non-essential matters as names, spellings and places. This motion was granted without objection. At the conclusion of the presentation of testimony the Board and the Respondents argued orally before the undersigned. The parties were advised that they had the privilege of presenting briefs for the consideration of the Trial Examiner The Respondents have duly submitted such a brief. On the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS 2 The Respondents, Wilbur Ford, Chester Ford and John Ford, co-partners, doing business as Ford Brothers' are engaged in contract hauling of gasoline and other petroleum products in Ohio, West Virginia and Kentucky. They maintain their office and principal place of business at Coal Grove, Ohio. During the calendar year 1945 the Respondents transported and delivered gasoline and other petroleum products having a value in excess of $50,000, of which approximately 25 percent was transported between various points in Kentucky, West Virginia and Ohio. The value of their purchases in the same period was in excess of $5,000, of which more than 25 percent in value came from points outside the State of Ohio. 2 These findings are based on allegations in the complaint admitted by the Respondents In their answer, on a stipulation between the parties introduced into the record, and on testimony which is uncontroverted. FORD BROTHERS 55 The Respondents concede, and the undersigned finds, that they are engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L., Local 143, is a labor organization which admits to its membership employees of the Respondents. III. THE UNFAIR LABOR PRACTICES A. Background The Respondents began operations on August 15 1932, with a single transport for the handling of petroleum products which they serviced and operated them- selves. Their operations expanded gradually until the outbreak of war and the resultant scarcity of railroad tank cars threw additional burdens on truck trans- portation. By June 1945 they were operating 13 tractors and 17 trailer tanks and employing 23 full-time drivers and a staff of mechanics. In the develop- ment of their business there was a division of functions among the brothers. John became the dispatcher, receiving the orders and assigning the trucks and drivers to execute them ; Chester was maintenance supervisor, buying and receiving parts, tires and equipment; while Wilbur was contact man with the shippers, investigating complaints and assuring the proper performance of contracts The Respondents, during the period material here, operated on a 24-hour a day and 7-day a week basis. Drivers were assigned several trips which they executed continuously a On completing their assignment they were expected to service their tractor and call their "buddy" who took over the transport. After 12 to 14 hours' rest incoming drivers took on a new assignment. While their basic week was 40 hours, they customarily made considerable overtime each week. The gasoline, or other product, is loaded at the refinery or bulk station under the supervision of the man in charge. The tiailers are rated as to their liquid measure capacity in gallons After each compartment is filled to an established marker it is sealed. Before the load is turned over to the driver's custody all other outlets are sealed. On arrival at the destination the seals are normally broken by the consignee, the gasoline pumped off by him and the compartments inspected to insure full delivery. Under 24 hours' operation, about half the de- liveries were made at night. In the war years the points of delivery were often unattended during night hours. It then became the responsibility of the drivers to break the seals and make deliveries. Under gasoline rationing and scarcity such unwatched delivery involved an obvious "moral hazard." This hazard was increased since the Respondents' plant was also normally unattended after 6 p. in. Drivers at night were then almost entirely unsupervised. The record makes clear that complete drainage of the trailers was a matter of some difficulty. The bottoms of the compartments were uneven and contained small pockets. -Unloading platforms frequently were not perfectly level. Cow- plete drainage might involve driving the transport to a level site and completing the drainage by hand. Extreme pains in securing a full delivery were evidenced s Testimony by W. H. Ford suggests that the normal assignment was three trips. It reads, In other words, to explain that it little more fully, one driver might haul three loads of material out of, say, the Ironton terminal of the Texas Company to Sciotoville in his normal day's work ; or he might pull three from the refinery into the bulk plant or another bulk plant in the Portsmouth area ; or he might pull three loads from Ashland to Gallipolis in his normal shift of work. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the testimony of J D Duval, a consignee for the Texas Company with 10 years' experience. He was called as a witness for the Respondents. Excerpfs from his testimony read, On some of these transports, you had to either jack up the front end, build it up, or drain it out in a bucket. * * * I always looked at the transport after they had been unloaded to see that all of the gas was taken out of them, because in most transports they won't drain exactly. Some times we have to take pieces of timber, six or eight inches, and lift the hind end of the tractor, to raise up the tank and let it run back so it will come out, you see ; and after we get through all of that you drive up on a little raise, we look at it to see if it's all out of the transport That Duval was unusually careful in his methods of operation was indicated by his testimony that every delivery to his station was received by him or his agent. Even though all reasonable efforts are made to insure complete delivery, the transports on return to the Respondents' lot will contain some gasoline.' This results from the shaking down of gasoline which adheres to the transports' walls, from the condensation of gasoline vapors in the compartments and, in some cases, from residues left because the unloading was done on unlevel sur- faces. It is evident from the record made that the drivers had full knowledge of the idiosyncrasies of the transports entrusted to their care;" educated eyes as to the characteristics of unloading platforms, and experienced judgment as to the probable drainage in the trailers on their return to the home lot. As ap- pears below they were accustomed to regard such drainage as a perquisite of their jobs. Their estimate of a reasonable amount was 3 or 4 gallons from a transport rated at liquid measure near 8,000 gallons in capacity. It is agreed that under hasty, careless, or calculated handling the amount might be much in- creased. It is in evidence that, when transports were changed over from gaso- line or naphtha to kerosene hauling and must be cleansed of their highly in- flammable products, any drainage found in the tractors was frequently thrown on the ground and wasted. The first contact made by the Union with the Respondents, so far as the record reflects, occurred in the winter of 1942. Unassailed and credited testimony by Orville Aitis, business representative for the Union, relative to the incident, reads, I asked them [the Respondents] how they felt about an organization, and * * * John Ford says, "We get along just as well without the Union. We have no need for an organization here. The men is all satisfied." Thereafter, organizational efforts were dropped until March of 1944. After securing several applications, Artis had a talk with the Respondents in that month. It was arranged that the drivers would be called in to allow opportunity for the Union to hold a meeting after which a vote would be taken to determine how many drivers wanted a uion. This meeting was held at a hotel in Ironton on March 22, 1944, and was addressed by Artis and Dale Mann, an official of Local 413 of the Union. None of the Respondents were present, but another brother, Paul Ford, who at the time was employed as a driver, attended the 4 Driver Emil Hartwig, as Respondents' witness, testified that if the unloading place was level the gasoline "would all dram out with the exception of three gallons." 'Thus Pancake testified, well, it would just depend on some of the manifolds in the trucks, dropping down on one side In fact, the trailer that I drove did. If it is unloaded from the right side there was some three or four gallons left in the side. FORD BROTHERS 57 meeting as a. qualified voter. The vote taken on the question of union affilia- tion resulted in 10 affirmative and 11 negative votes e In late March 1945 Artis again solicited the membership of Respondents' em- ployees. His efforts continued until early May. Signed application cards were produced at the hearing and submitted to the examination of the parties. They show that 4 drivers signed on May 15, 1945; 10, including Pancake, on May 23 ; and 1 on May 20.' In addition, Driver Cecil Cheek, whose card was not avail- able, was a paid up member of the Union. On May 28, 1945, Artis wrote to the Respondents claiming majority representation and asking for a conference for the purpose of negotiating a contract. Efforts to arrange a meeting were dis- rupted by the discharge of Pancake on June 4, 1945, and a subsequent work stoppage participated in by the 15 other employees who had signed union authori- zations. B. The disci innvnatory discharge Edward Pancake was first hired by the Respondents in February 1937 as a driver at an initial wage of $15 per week. He had had prior experience as a truck driver extending to 1924 In October 1938 he was arrested on complaint of an inspector for the Public Utilities Commission for carrying unauthorized persons on his truck. On October 27, 1938, he was convicted in a Justice of the Peace Court and fined $25 and costs, amounting in all to $44.10, which he paid On the following day he was again charged with failure to prepare proper trip sheets. The disposition of this charge does not appear in the record. Testi- mony is conflicting as to whether Pancake was discharged by the Respondents for this offense. Pancake testified positively that his employment continued without break; John Ford that he was discharged and "was off a short time." Ford further testified that Pancake was put back to work on his promise that he would do better in the future .7 In 1940 Pancake took part in concerted activities of the drivers calculated to secure an advance in wages s At this time W. H Ford called Pancake aside and asked him the cause for unrest among the drivers. Pancake ascribed it to the fact that they were "not getting enough money." After discussion Ford said, "well, Ed, what you do, you see the boys and get everything all the way you want it and come in and maybe we can iron out something." Later Ford called Pancake and two other drivers in for further discussion but nothing was done. About the same time Pancake, and other employees, employed a lawyer to draw up a petition requesting an increase in wages which was signed and placed in the office. Later W. H Ford, with the petition in hand, met Pancake and another driver and assured them, "Boys, you don't need no con- tracts like this or no signed papers." They had some further explanatory dis- cussion but the desired raise in wages did not result. By successive raises of $2 50 and $3 per week, Pancake's initial salary in- creased to $30 weekly by the middle of 1942. In July of that year, Pancake, with three other drivers of the Respondents, had made application for jobs with a refining company. What thereafter happened is recorded in Pancake's testimony as follows: This account is drawn from the testimony of Artis, W. H. Ford and Employee Marvin Dodd Their statements aie in substantial agieement. 7 The undersigned does not find it necessary to resolve this conflict of testimony since it is clear that the matter was settled and has no significance in later events 8 This account rests on uncontroveited and credited testimony by Pancake No fault is here ascribed to the Respondents , or any of them The significance of the incident lies in the indication that the Respondents regarded Pancake as a leader among the drivers. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Well, it was no secret, so I came in one day and John asked me didn't I have an application in over at Ashland Oil and Refining Company, and I said "Yes," and he said, "Why didn't you tell me," and I said, "I didn't think I had to tell you. * * * I didn't have any contract signed with you fellows to work for you fellows from now on and I thought I was free to get a job when I wanted to. * * * If you fellows don't like it or are through with me, why, give me my money, or I'll go ahead and work until I get my job," and Chet says to John, "we just as well pay him," so they paid me off. John Ford's testimony was that Pancake announced one evening that he was "quitting the first of the month" whereupon he [John Ford] retorted, "You're not quitting the first of the month ; you're quitting right now." Al- though Ford testified that Pancake was let go "because he was continually causing us trouble," he gave no evidence to support this general complaint. Further, he stated, "I did it because I found out that he was going to quit the first of the month, and I told him that he could go right then." After con- sideration of the record and the demeanor of these witnesses the undersigned concludes and finds that Pancake's account of the incident is substantially correct. It is further found that no fault can be ascribed to Pancake in this occurrence. After some 9 months in other employment Pancake applied for work with the Respondents On the initiative of W. H. Ford, after consultation with his brother Chester, Pancake was rehired. He was, however, treated as a new employee rather than as a reinstated driver. After working some weeks, as his unassailed and credited testimony states and the undersigned finds, Pancake discovered that the other experienced drivers were receiving $33.50 weekly, while his own base pay was but $30. Pancake applied to Wilbur and Chester in turn for the higher wage, pointing out that, while newly rehired, he was a well experienced driver. After some weeks had elapsed this increase was granted. Pancake's base pay for a 40-hour week continued at $3350 until his discharge on June 4, 1945. Late in May 1945, Pancake participated in a conversation with Wilbur Ford which was witnessed by employees Emil Hartwig, O. R. Colley' and John Friend. Because of the significance of this incident in determining the under- lying reasons for Pancake's discharge, the testimony of W. H. Ford regarding the conversation is here quoted at length. Ford, as he stated, directed his remarks to Pancake, and, after using an expression which denoted that his curiosity was greatly aroused, continued, I heard some grumblings going on around there that I didn't understand what it was all about, if there was anything I could do or say or look into, I thought maybe I might be of some benefit to him or to the men; if there was something wrong that I might be able to correct, I would look into that. * * * * * * * I don't exactly recall the word-for-word conversation with Pancake. But it was on the general line that he said, " * * * us fellows is talking something about we'd like to have a national organization in here to repre- sent us." I said , "You're referring I presume to a Union " He said, "Yes." I said, "Well, Ed, that's all right * * ' I can't object to this and I don't object to it." I said, "I'll just inject this thought of my own that I always was under the impression here that if there was something wrong that you could come These names sometimes are reported erroneously as Earl Hardwicke and Caulley In the record. FORD BROTHERS 59 to me or to Chet or John ; if we couldn't correct it, we'd tell you why ; if it could be corrected, it would be done. That still goes, as of today, and sometime, probably anytime, in the future, as far as that goes." Pancake says to me, * * * "Well, if I want something or if something is wrong and I come to you or go in the office there, I'll probably be told where to go right quick " I said, "Well that probably would be true in some respects, but I would doubt that very seriously." Well, he said, "You know, if we have a national organization representing us, we feel more secure in our jobs and we have more security." I said "Well, Ed, that's possibly true. But * * * it won't make any difference to me if I knew and seen you or any one else doing something that was against any policy or rule of this company, you would be discharged as quickly in the Union as you could be out of the Union. I always felt it was my place to run this business and I was going to try to run it as long as I had my name on any papers that pertained to it. I have to look after it and I have to answer to the shippers for their complaints and I have to see that we have business and if we don't have .business, we have no need for you or anybody, that would be used in connection with operating our business." * * * * * * I said to Ed, "Now understand, Ed, you do as you please, or you men do as, you see fit." "But, it will probably happen this way You men organize, have your union Then, when it cones in here and the things don't go exactly the way you want it to go, a gang of you get out or discuss some- thing, I will assume if I see you that I am one of the S B's that run the business." Pancake's testimony as to this interview is in general agreement with that of W. H. Ford. Pancake stated that the underlying cause for the unrest among the drivers was a desire for more money. He quotes Ford as saying, "A union is all right but they never stop at one thing. If they get something, in a little while they want something else." Pancake's credited testimony about the close of the conversation reads as follows : [W. H. Ford] said, "Well, Ed, here's the way it is. If a Union comes in here, you couldn't come down here in the morning and speak to me and I couldn't speak to you. I'd be a son-of-a-bitch in the presence of you boys and you would be a son-of-a-bitch." And I said * * * "and you mean we couldn't go fishing or hunting like we used to?" * * * And he said, no, and I said, "Well, if I got to work here for nothing to get to fish and hunt with you, I would just as soon be a son-of-a-bitch." 11 10 Hartwig as a Respondents' witness gave testimony reading as follows : [W. H. Ford] said something about, "Well, if this goes Union and I catch three or four fellows out in a bunch talking, I guess I'll presume that I'm a son-of-a-bitch, that you're talking about me." Hartwig further testified that Ford said, if a Union's "what it takes to cure their troubles it's all right with him " After Hartwig's memory had been refreshed by reference to a statement given to a Board agent, he remembered that Ford had said 'there won't be no more parties or fishing trips." Colley gave testimony which corroborates the statements of Pancake. It reads as follows : Well, we talked about the Union, and W. H. Ford said, "Otherwise, if the Union comes in, why, * * * We'll be sons-of-bitches in your faces, and we'll be the same to you" ; and Pancake said, "You mean we can't go rabbit hunting or fishing to- gether like we have been?" and he said, "No, sir, our conversation and our hunting trips and stuff like that will be over." Friend did not testify. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With a single exception" no criticism was voiced at the hearing of Pancake's performance of his duties as a driver . No mention was made of his having been involved in serious mishaps or accidents during his 8 years' employment with the Respondents as a driver. Pancake testified without contradiction, and the undersigned finds, that he had never been reprimanded for his driving while employed by the Respondents. He gave further credited testimony that, as an older driver, he was assigned the mountain trips in winter time, which were the "tougher" runs. The incidents immediately preceding Pancake's discharge on June 4, 1945, are not in dispute. When he came in from his trip that morning W. H. Ford ob- served him drawing gasoline from his trailers and putting it in the tank of his automobile. Wilbur called his brother John to observe Pancake's actions He then summoned Pancake to the office. What then transpired was stated by Pancake as follows:, W. H. [Ford] came out and he said, "You put some gas in your car?" and I said, "Yes, sir," and he said, "Come on in the office," and I said, "All right." * * * and he said to me, "You know Ed, it's against the rule," and I said, "What rule?" and he said, "Well, you know its against the rule." I said, "Well, Huck, what rule are you talking about?" He said, "Anyway, it's against the rule." He never would say what rule or anything about it, and I figured right then what it was all about, and I said, "Well, if that the way you want to play, I can play too," and lie said, "No, you won't do no playing. You're dis- charged from this Company." W. H. Ford's account of the interchange between himself and Pancake, as recorded in his testimony, reads as follows : I said, "Ed, you know that's strictly against all of the rules and regulations of this organization." He said, "Huck, you're just mad." I said, "Well, I probably have a right to be mad." He said, "Anything you might do to me, I will repay you." I said, "Well, in that case, you're discharged, Ed, as of now," and that was the end of the conversation with him. It was Ford's further testimony that he had not definitely decided to discharge Pancake when he called him to the office. There is little of material significance to resolve in the divergencies of these accounts. The undersigned is impressed by the straight-forward, vividly expressed account of Pancake with reference to W. H. Ford's insistence on the rule. Ford's account supports this to the extent that he stated that he had opened the conversation with a reference to the rules. It is found that this part of the interview occurred substantially as stated by Pancake. 11 J D Duval , a consignee for the Texas Company testified that Pancake delivered gas to his station one night "sometime at the first part of 1945 " On checking the delivery Duval noticed considerable gasoline remaining in a front compartment after the pump had drawn out all possible gasoline . He directed Pancake to move the transport to level ground In attempting to draw the gasoline out in buckets he found that the valve on the front compartment had been closed Duval opened the valve and drew out, as he testi- fied, "25 or 35 gallons, something like that " Prior to the hearing Duval had had no direct contact with the Respondents He reported the incident "to the representative of the Texas Company " None of the Respondents , each of whom appeared as a witness and was examined at length , referred to this incident in his testimony . It is clear that the incident affected neither the discharge of Pancake nor the later refusal to rehire him. In this state of the record no significance is attached to the matter by the undersigned. FORD BROTHERS 61 W. H. Ford assumed full responsibility for the decision to discharge Pancake. When asked why he discharged Pancake, Ford replied, "For stealing gasoline or taking gasoline from our truck and converting it to his own use." He declared further, "That is solely the reason." It is clear from the record that the Re- spondents' refusal to rehire Pancake has the same motivation as their decision to discharge him Conclusions as to Pancake's discharge The Respondents aver that Pancake's discharge resulted from their investi- gation of persistent complaints by their customers of excessive shortages on deliveries in the period from January 1944 to the middle of 1945; that in the endeavor to discover the cause of these excessive shortage claims and to hold the drivers to an exact standard of performance the rules against drawing gasoline from returned transports for personal use had been restated to the drivers ; and that when Pancake was discovered violating this rule it was regarded as full justification for his discharge. Each of the Respondents testified that claims for excessive shortages were chronic in the period stated. The only exact data presented in substantiation of the general statement pertained to 22 deliveries made to the Texas Company at various bulk plants in the period from January 6 to February 7, 1944. Seventeen of these loads were delivered at night and only five in daylight hours ; fifteen show shortages beyond the tolerance of 1/2 of 1 percent. However, these deliveries being made in winter months the temperature readings assume large impor- tance. Thus in a delivery of 6940 liquid gallons made January 28, 1944, the temperature fell between loading and delivery from 55 to 35 degrees. This 20 degree temperature change accounts for over 83 gallons of the 172 gallons ostensi- ble shortage.'z Temperatures were recorded for only 10 of the 22 deliveries13 In 12 cases no basis is furnished for computing proper corrections in the shortages reported on liquid measure delivered. Moreover, these loads frequently were delivered into partially filled tanks. Without exact data on the amount of gaso- line in the tanks and temperature readings allowing corrections in the gallonage contained before the load was delivered, no reliance can be placed on these alleged shortages. Ten different drivers are named as responsible for the 22 loads delivered. In two cases the driver's name is omitted. Pancake did not handle any of these loads. Driver Joe Criss delivered six loads, only one in day-time. On these loads, shortages are reported ranging from 9 to 155 gallons per load, a total of 405 gallons on 46,560 gallons by liquid measure On one load of 7760 liquid measure gallons, handled on January 6, 1944, a 10 degree fall in temperature should have given a correction from a claimed shortage of 73 gallons to 27 gallons or well within the tolerance of 1/_2 of 1 percent On the data presented, Driver Joe Criss had a shortage on the six loads approaching 1 percent. No suggestion was made that his performance merited criticism or reprimand. At the hearing the parties stipulated that: the exact causes for the shortages and the subsequent improvement have never been determined I * * shortages * S. * can be caused by errors and faulty meteiing at the refinery, spillage of gasoline en route from refinery to bulk plant, mistakes and careless handling on the part of bulk plant employees, which includes measuring of tanks and the handling of gasoline by the employees, carelessness and theft of truck drivers or bulk '3 The coefficient of expansion for gasoline is 0006 for each degree of temperature change. 13 In one additional case a single reading is recorded. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant employees, failure to completely drain the tanks by truck drivers or bulk plant employees, evaporation, inaccuracies or failure to take temperature changes. Under these circumstances the responsibility of Respondents' drivers for these alleged shortages must be held to be remote and uncertain. Pancake is not shown to have any direct connection therewith. It is admitted also that respon- sibility for the shortages claimed was never fixed on the Respondents and no financial obligation resulting was assumed by them. That the practice by employees of draining gasoline from the returned trans- ports and devoting it to personal use was a continuous and universal practice is a necessary conclusion after consideration of the record All employee witnesses heard, six called by the Board 14 and four called by the Respondents,' testified that they had personally done so. Most of them further stated that they had seen other employees do the same. In addition the parties stipulated that seven additional employees 16 if called as witnesses would give similar testimony. Moreover, the evidence requires the finding that each of the Respondents, despite their denials as witnesses, was apprised of the practice, had authorized it and repeatedly witnessed it. Pancake, Coyer and Nance testified that they had been told by the Respondents to be sure there were no strangers around when they drained gasoline. Coyer ascribed this statement definitely to W. H. Ford ; Nance to both W. H. and Chester Ford. None of these statements was specifically denied. The undersigned accepts them as true. Pancake gave detailed and uncontroverted testimony, credited by the undersigned, regarding preparations for a fishing expedition during which he drained gasoline from transports to fill his own car and the Respondents' Buick and pick up truck On another occasion he repaid 5 gallons of gasoline borrowed from the Respond- ents' service tank with gasoline drained from a trailer and reported that fact to W. H. Ford. Coyer gave similarly uncontroverted and credited testimony, that "sometime early in 1944" he had drained some gasoline out of a transport, while John [Ford] was standing right beside the trailer with me talking to me while I was draining the gasoline out. This gasoline was then poured into John Ford's car. Virgil Criss gave testimony that in the 2 years of his employ- ment from July 1943 to June 4, 1945, lie had been told by Chester Ford that he was at liberty to take gasoline from the trailers "if it was not over 5 gallons" in amount. Criss gave further testimony regarding an occasion when Driver Gray Williams drained a considerable quantity of gasoline from a trailer in the presence of Chester Ford, provoking the comment from Ford, as Criss testified, "That's entirely too much gasoline to bring back from a bulk plant * * * five gallons is a sufficient amount to be brought back from the bulk plant." Chester Ford made no reference to this incident in his testimony. Accordingly the statements of Criss are credited as true by the undersigned. Each of the three Respondents testified in general terms that lie had instructed the drivers in groups and individually that the trailers must be completely emptied at the bulk plants and that no gasoline continued therein might be taken for personal use by the drivers. When pressed for supporting detail however as to time, place and individuals told, the Respondents' testimony lacked in specificity. None of the named individual drivers told directly that the 140. R. Colley, Edward Pancake, Kenneth Hinson, Virgil Criss, Raymond Coyer and Carl Nance. 16 William Pauley, Emil Hartwig, Marvin Dodd and Tom Greenley. 16 Edward Hughes, John Dheel, Dorsey Pelphrey, William Ratliff, Homer Mayse, John Shelton, and John F. Richardson. This list omits Pauley who appeared as Respondents' witness. FORD BROTHERS 63 rules forbade taking gas from the trailers. John Ford testified that on one occasion, not dated, he warned Virgil Criss, Friend and Shelton "that they might be able to get by with taking gasoline out of the transport like that, but if I or any of the Ford Brothers ever caught them, they might as well come and ask for their checks because * * * that was grounds for discharge." Criss and Shelton of the three drivers named by John Ford appeared as wit- nesses. Shelton was not questioned about this matter. Criss testified positively that there was no rule against the practice of draining gasoline from trailers and, as quoted above, that Chester Ford had directly authorized him to drain gasoline. Employees Hinson, Hartwig and Nance also testified specifically that there was no rule forbidding the taking of gasoline remaining in the trailers. Excerpts from D'ance's testimony read : I have seen them [the drivers] drain them there all day long as they would come in. Ford brothers would be around the lot, in the garage working around the trucks at the time * * * [It was a] common occurrence, every day Hinson testified that he had "seen lots of drivers draining gasoline." Colley's testimony was of similar purport. He stated that when draining gas he paid no attention to the presence of the Respondents since, "It was just the practice." All six of the drivers who appeared as witnesses for the Board specifically denied that they had been told by any one of the Respondents that draining gas was forbidden Only one had heard of such a rule. Colley testified that approximately May 28 or 29, 1945, he had been told by Driver Gray Williams, his buddy, that "he had been informed some of the boys had been told not to take any more gas, and if he was me he wouldn't either." Mechanic William Pauley, a witness called by the Respondents, in his cross- examination confirmed a statement previously given by him to a Board agent which read, "I never heard the Fords tell me or anybody else not to take gaso- line." Employee Emil Hartwig, a Respondents' witness, testified that he together with Drivers Marvin Dodd and Dodge Irvin had been told by W. H. Ford "at least two months before Pancake was disharged," that this practice [draining gas] was to be discontinued but that he had known it was permissible until that time. It was Hartwig's testimony that he had never heard Wilbur give similar instruction to any other drivers than those named and that he had never heard either John or Chester Ford give such orders. Dodd testified that he was similarly instructed by W. H. Ford and that he was given this order "sometime, I think, in January of [19]45." He further testified that while different ones of the [employees were] there he "couldn't say just who." The testimony of the six Board's witnesses was straightforward, consistent and mutually corrobo- rative. It was largely supported by stipulations entered in the record and by testimony given by employees called by the Respondents. The testimony of the Respondents was often vague, lacking in specific detail and at times became contradictory and evasive. In this state of the record the undersigned accepts the testimony of the Board's witnesses and rejects such testimony by, and for, the Respondents as conflicts therewith. After consideration of the full record the undersigned concludes and finds that Pancake had been a satisfactory employee for over 8 years. He had had repeated increases in wages and at the time of his discharge was paid the high- est driver's rate. He was known by the Respondents to be an active union protagonist and a leader in concerted activities among the employees. The drain- ing of gasoline from the transports was a practice of long standing, well known to each of the Respondents and frequently expressly approved by them. The 739926-47-vol. 73-6 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge of Pancake for this alleged reason was palpably discriminatory. All the drivers admittedly engaged in the same practice. The Respondents had singled Pancake out and demanded that he defend the Union's position. As appears below they had openly expressed a determination to penalize union members and to find a pretext to discharge the employee, Virgil Criss, suspected of union leadership. The undersigned concludes and finds that the discharge of Edward Pancake on June 4, 1945, was disci iininatory, motivated by his union membership and activity and designed to discourage membership in the Union. By this act the Respondents have discriminated in regard to his hire and tenure of employment and the terms and conditions of his employment, have discouraged membership in a labor union and have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The si ike a and attempted settlement Pancake's testimony about events immediately following his discharge, reads as follows : I walked on over and Ed Hughes,18 my buddy I had called was leaving with the truck, and I stopped him and told him to take her back put her on the lot, and he said , "What's the matter?" and I said , "They discharged me for taking three gallons of gas" and he took the truck back and parked it and we got hold of Dutch [Virgil ] Criss and stopped at Slim Colley 's there at home. Hughes called Virgil Criss on the telephone and told him of Pancake's discharge and that he [ Hughes ] had parked his truck in the yard Hughes asked Criss' advice and was told as to the truck, "That's a good place to leave it," and further advised that all the drivers should "just leave [their trucks] set." Criss' rationalization was, "I don't see no just cause for firing anybody for tak- ing any gasoline out of the traileis." 1° Hughes accompanied Pancake to Driver 0 R Colley's house within " thirty minutes" after the discharge . Excerpts from Colley 's testimony read, He told me to get up, that the thing was 011,2' and I asked him what he meant and he said, "They fired me" and I said, "What for" and he said, "I took three gallons of gas out of the trailer." Colley and the union members , as they were informed of the discharge, con- gregated at a point "across the street from the entrance that leads over to the garage and the headquarters " From this vantage point they intercepted drivers bringing their trucks in and appealed to them to support the work stoppage. The group grew gradually until the 15 drivers who struck were assembled Criss described their attitude as follows : We had come to the conclusion that Ed Pancake was unjustly fired * * * and that we didn't see how the rest of us could work under those circum- 17 The account of the strike is drawn from the unassailed testimony of the witnesses indicated 15 Hughes appeared as a witness but was not questioned regarding this incident. 19 Quotations in this paragraph are from Criss' testimony. 20 Under cross-examination Collev explained, "Well, otherwise he meant that we were going to have a show down right then " Pancake's explanation was, "The first time that one of our foots slipped , there would be somebody fired. That ' s what I mean " And again, "Well, all that I meant by it, when they discharged mr, or nred me, the only way that I could figure that theie was one man out of the Union, that they figured that they could get rid of, and the rest of them might drop it and leave it go, see " FORD BROTHERS 65 stances We decided to just rest until we could get further instructions from our Union what to do. During the morning of June 4, Criss reached Artis in Columbus , Ohio, by telephone and said, as Artis testified, The boys are not working, they're out. They [ the Respondents] fired Ed Pancake this morning for taking gas and the boys refused to go to work for he was fired for an unjust cause. Criss asked for advice. Artis stated that he would confer with J. O. Ford, an attorney and counsel for his brothers , the Respondents, to whom Artis had been referred by them and would telephone Criss later Artis advised the drivers on Monday, June 4, and again on the following Wednesday not to take their trucks out. Although informal picketing continued for a week , no unto- ward incidents occurred . The character of the appeal made to non-union drivers is made clear by the testimony of Respondents ' witness, Marvin Dodd, reading as follows : Well, I came in and as I remember, sometime after midnight of Tuesday morning [June 5] and noticed the other trucks being in and paiked along the lot I got in my car and started home , and I think Carl Nance and Ed Hughes came over to the end of the lane and told me that they [Respondents], fired Ed IPancake ] and they weren 't rolling the trucks and asked me not to roll mine , and that was all they had to say to me, and I told them as things stood then I wouldn 't roll, and I went on home and went to bed and forgot about it. W H. Ford testified that the strike was entirely peaceful, that no picket line wis thrown up around the plant and that there was no "trouble or commotion or fuss whatever." The trucks remained idle on Monday and Tuesday 21 On Tuesday, June 5, about 3:30 p in, John Forn began contacting the drivers, except Pancake, in person and by telephone He told each employee that his truck was "ready to roll" and asked if the driver was ready to take it out. Fifteen drivers indicated that they would not report whereupon Ford told them, "Then we're presuming that you're quitting and your check and release will be ready for you " Seven drivers' gave affirmative answers to Ford's question These employees were promptly assigned to trips and continued in Respondents' employment. As noted above Artis had, on May 28, 1945, written to W H. Ford claiming to represent a majority of the men and asking that a conference be arranged for the purpose of negotiating a contract. Ford thereupon communicated with his brother, J O. Ford, an attorney who customarily represented the Respond- ents On June 1, Dale Mann, business representative of Local 413 of the Union, whom Artis had asked to interview J 0 Ford, asked Ford for an appoint- ment Mann and Ford were on friendly terms. They agreed that the Respond- ents would necessarily recognize the Union as the statutory representative of the employees if majority membership weie established J 0 Ford was, not authorized to make commitments for the Respondents. He and Mann arranged that the Respondents would meet Mann and Artis in J 0 Ford's office at 21 The findings in this paragraph are based on John Ford's unassailed testimony as cor- roborated by various witnesses, and on a detailed memorandum which he dictated at the time and which was entered in the iecoid 22 Tom Greenley, Dodge Ervin, Marvin Dodd, Gray Williams, Emil Hartwig, John Fink, and Burnell Smith 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbus, Ohio, on Tuesday, June 5, 1946. "with respect to the establishing of the proof" that the Union possessed a majority membership. On Monday; June 5, J 0 Ford was informed by telephone by both Mann and the Respondents of the discharge of Pancake and the strike. He then arranged a meeting for June 6 between the Respondents, represented by himself, W H. and Chester Ford, and the Union represented by Artis, Mann and Rudy Minkin, secretary and treasurer of Local 413 of the Union. The Union proposed that all the drivers, except Pancake, should be reinstated and that Pancake's case should be submitted to arbitration at a later date; The Respondents' position was that they would agree to rehire the 15 striking drivers z3 but "that Pancake was fired for stealing gasoline and he was going to stay fired." u The Union refused to settle on these terms. At the instance of J. O. Ford, the services of Commissioner Palmer of the United States Conciliation Service were secured. After interviewing the parties he arranged a conference on June 21, 1945, at a hotel in Ironton, Ohio. Ten of the striking drivers were present as well as Pancake, Artis and Minkin for the Union. Each of the Respondents and J. O. Ford attended. The drivers present all voted affirmatively on the Union's proposition that the drivers, except Pan- cake, be reinstated and his case be arbitrated. The Respondents maintained their original stand. Since both parties steadfastly maintained their positions nothing was accomplished?` The 15 striking drivers were paid off on June 6, 1945, and given releases. Thereafter, new drivers were hired. In some four or five cases drivers returned from military service were reinstated. At the time of the hearing in the instant proceeding all vacancies had been filled. The testimony of striking drivers at the hearing indicates that, in effect, they were still on strike. Although some of them had written letters of application to the Respondents, their replies under questioning as witnesses, indicated clearly that their acceptance of reinstate- ment would be conditioned by the rehiring of Pancake and the establishing of the Union as the statutory representative of the employees. Thus, Nance wrote a letter, received by the Respondents on or about May 5, 1946, reading, "I would like at this time to return to work and be reinstated as a driver." An excerpt from Nance's testimony, however, reads, Q. If you were offered your job back at Fords now, Carl, would you go back? A. Not until Ed Pancake's case was settled because I figured he was fired for an unjust cause. Similarly, Colley testified that he wrote a letter to the Respondents May 18, 1946, saying substantially, that he was tired of his current job and was ready to go back to work if they had an opening. When asked at the hearing whether he would now go back to the Ford Brothers to work as a driver, Colley replied, 23 This account is drawn from the testimony of Artis and of the Respondents. 24 Excerpts from W. H. Ford's testimony read, Just briefly, they insisted that we discuss Pancake's case which I absolutely retused. I absolutely agreed to rehire the men if and when they applied for a job with the understanding that if we needed men. J. O. Ford testified that in the minds of the Respondents "rehired" as applied to the strik- ing drivers meant taken on as new employees, I. e., with loss of seniority. Respondents' answer also states that several days after June 5, 1946, offers "to rehire as new em- ployees" were made to all who had struck. 25 These findings are based on testimony by J. O. Ford and Artis. The latter made min- utes of the conference which were introduced into the record. None of these facts is in dispute. 24 The Respondents denied receiving this letter. FORD BROTHERS 67 "I'd have to consider." He explained under cross-examination that he would not go back if the Respondents' plant remained non-union .21 The undersigned concludes and finds that the strike beginning June 4, 1945, resulted directly from the discriminatory discharge of Pancake. Its continuation to the time of the hearing was also due to the Respondents' unfair labor practices in that they refused to rehire Pancake. D. Further interference, restraint, or coercion Because of the limitations as to dates stated in the complaint, no incidents occurring prior to March 1, 1945, are set forth in this section. As noted below most of the incidents discussed here were denied by the individual Respondents referred to. However the testimony of these Board witnesses was detailed, vividly stated and persuasive The witnesses were careful and straightforward. Their testi- mony was consistent and mutually corroborative. The Respondents, on the other hand, were sometimes evasive and frequently failed to give supporting detail to general statements. As noted above they are convicted by the record of inaccu- racy and lack of frankness in their testimony relating to the practice of draining gas from the tank transports. After considering the full record and the demeanor of the witnesses, the undersigned has accepted the testimony of Board witnesses set forth in this section as true and rejected such testimony of the Respondents as conflicts therewith. Driver Virgil Criss testified that "within a month or two" before Pancake was discharged Chester Ford came to him in front of the garage and said, I wonder if we can have a get-together to help the cause * * * Well, when this Union deal is to come up, if we'd have a beer and sandwiches now I think we could overcome a lot of this Union deal. Criss' further testimony is recorded as follows: I said, "Chester, its too late." He said, "Why, I think its five or six men that's causing this, this union trouble." * * * He named Ed Pancake, Carl Nance, John Friend, John Shelton, and that's all the names that I can recall * * * When he called those named to me, I said, "Chester, you are naming five men that's causing you this trouble. You're blaming five or six men, and you're not blaming enough. It's easier to call the man that isn't causing you Union trouble than it is to call the men that is causing you the Union trouble," and he says, "What do you mean?", and I said, "There's fifteen or sixteen men belonging to this." Criss also gave testimony relative to a conversation with W. H. and Chester Ford occurring in April 1945, "standing directly in front of the garage, leaning on the rear of my brother's automobile." It was Criss' testimony that Chester Ford asked him "how much money [he] would have to have to go on working and keep [his] mouth shut," in the event of a strike. When Criss made a non-committal reply W. H. Ford said, "How about 85 cents an hour?" At the time Criss was receiving 60 cents an hour for the first 50 hours weekly and 70 cents an hour for any additional time. When Criss declined to give a definite answer W. H. Ford cautioned him saying, "This is strictly confidential. This is to be told to nobody." W. II Ford testified that there "was some discussion of possibly an increase of wages or 85 cents back in that time." He denied telling Criss what was going to r, These replies and similar answers by Ratliff and Hinson caused the Board to withdraw its contention that these drivers and H. B Cook had been refused reinstatement by the Respondents after an unqualified request for reinstatement. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD happen in the event of a strike, stating that he had no reason at the time to suspect "any disgruntlement amongst the drivers." In this state of the recoi d the under- signed accepts Criss' account as substantially correct. Employee John C Shelton testified that on an occasion, dated by the Respond- ents as May 11, 1945, he rode back to Coal Grove from the scene of an accident with Chester and W. H. Ford. Chester then warned, as Shelton's testimony reads, That if we had of went in with the Union, they could have come up there and could have fired us for being in a wreck and if we had trouble in the road, they could keep us there as long as they pleased and not even send a man out to fix it * * * . He went ahead to say that if it did go Union, they could cut our time down until we wasn' t making as much as we was making now. That is the way the conversation went 28 It was the credited testimony of Driver Raymond Coyer that W. H Ford, about 3 weeks before Pancake's discharge, asked him to ride to Ashland. Ford asked Coyer if he had ever signed a union card. Coyer replied that he had and had paid his dues. Ford further asked who was the leader of the Union When Coyer replied that Ford knew as much about that as he did, Ford said, "he figured it was the Criss brothers." He further stated that he had heard that the Criss brothers were sent in there to organize them Driver Kenneth Hinson testified that about May 20, 1945, W. H Ford asked him "what would be a fair wage." Hinson's further testimony reads. I told him I didn't know what a fair increase would be, because I had already signed the Union card R * *. Why, * * * he asked me if I thought 85 cents an hour * '* * I was then getting 70 cents an hour * * * would be a fair wage. Hinson did not definitely answer this inquiry. Ford warned him, "not to say anything else to the rest of the drivers about him talking to me." This testi- mony by Hinson was not controverted and is accordingly credited by the under- signed. Testimony was presented by Employee William Ratliff concerning a conversa- tion in Respondents' office with John Ford, in the presence of Office Employee "Colonel" Lenhart in late May 1945 Ford asked Ratliff if he had a union card. Ratliff replied untruthfully, as he admitted, that he had never seen one Ford then advised him forcehilly, using a vulgar expression, to reject one if offered "because you don't have to belong to a Union to work here."" Coyer gave further testimony relative to a conversation on June 4, 1945 He had just come in after a 24 hour tour of duty and learned of Pancake's discharge. On entering the office he found all three Respondents there and also drivers Emil Hartwig and "Pop" Fink Chester Ford said, as Coyer's testimony reads, I am talking to you friend to friend now, and if it goes Union, I will still be your friend, and if it don't go Union I will still be your friend. * * * He said if it went Union he would follow Dutch [Virgil] Criss until he got a chance to fire him, and the Union wouldn't uphold him. None of the Respondents denied that this incident occurred as Coyer testified. Hartwig was not questioned about the matter and Fink was not called as ii witness. The undersigned, under these circumstances, credits Coyer's testimony. "Chester Foid denied that on this occasion he had discussed the Union with Shelton. He made no further specific denial His general denial is rejected by the undersigned. 29 While W. H Ford testified that he had never questioned any of the employees about union membership he did not specifically deny this detailed statement of Coyer. 80 Jelin Ford's denial of this incident is rejected by the undersigned after consideration of the full record and of the demeanor of the witnesses. FORD BROTHERS 69 Employee Carl Nance had a conversation on the same day in the office where all three Respondents were present Nance came in just after noon and went into the office to turn in his bills of lading Nance had just been told of Pan- cake's discharge and had promised to uphold the union members ' plan to cease working Chester Ford asked Nance if lie would be ready to go back to work after 12 or 14 hours' rest Nance, as he testified, told him "No, not until everything was settled." Nance's further testimony reads, and he [Chester Ford] said, "Carl, do you know that there is no Union in the United States would uphold you in what you just said?" I said, "I don't know, Chet, but I hope to hell you know what you are talking about." None of the Respondents denied that they were present on this occasion as testified by Nance, nor that the conversation occurred The undersigned credits Nance's testimony. The Respondents by purposing "beer and sandwiches" as a deterrent to union activity, by offering individual increases in wages to Drivers Virgil Criss and Hinson in an effort to seduce them from their union allegiance; by their threats of discrimination against union members expressed to Employee Shelton ; by questioning employees about their union membership and about union leadership ; by threats to discharge the supposed leader of the Union and by the discharge and refusal to rehire of Edward Pancake have interfered with, restrained, and coerced their employees within the meaning of Section S (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents as set forth in Section III, above, occurring in connection with the operations of the Respondents described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action found necessary to effectuate the policies of the Act. It has been found that the Respondents discharged Edward Pancake on June 4, 1945, and thereafter refused to reinstate him, thus unlawfully discriminating in regard to his hire and tenure of employment and the terms and conditions of his employment. It will accordingly be recommended that the Respondents be ordered to offer Pancake immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges he may have. It will be further recommended that the Respondents make him whole for any loss of pay he may have suffered by reason of the Respondents' discrinnnatoi y action by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discriminatory discharge to the date of the Respondents' offer of reni- statement , less his net earnings 31 during said period. "By "net earnings" is meant earnings less expenses , such as for transportation, room, and boaid, incurred by an employee in connection with obtaining work and working else- where than for the Respondents, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N L. R . B 440 Monies received for work performed upon Federal, State, county , municipal , or other work -relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L R B . 311 U. S. 7. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned has found that 15 employees of the Respondents went on strike on June 4, 1945, and that this strike resulted directly from, and was pro- longed by, the unfair labor practices of the Respondents. It will therefore be recommended that the Board order the Respondents to offer the 15 employees named in Appendix A, upon their application, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges they may have, dismissing if necessary any employees hired since June 4, 1945, to fill the places which these striking employees previously had held. If after this is done it appears that, because of reduction in the volume of Respondents' business, or because of the rein- statement of employees returned from military service who may have rights of employment which superseded that of some of the striking employees, there is not sufficient employment immediately available to allow that all the others be offered immediate reinstatement, all available positions shall be distributed in accordance with Respondents' usual method as applied prior to June 4, 1945, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has been applied in the conduct of Respondents' business prior to June 4, 1945. Those employees remaining, if any, after such distribution for whom employment is not immedi- ately available, shall be placed upon a preferential list prepared in accordance with the principles set forth above and shall thereafter, be offered employment, in accordance with such list, in their former or equivalent positions as such employment becomes available and before other persons are hired for the work which they had formerly done. The undersigned will further recommend that the Respondents be ordered to make whole those employees who went on strike on June 4, 1945, for any loss of pay they may suffer by reason of the Respondents' refusal, if any, to reinstate them as provided above, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from five (5) days after the date on which he applied for reinstatement to the (late of the Respondents' offer of reinstatement, or placement on a preferential list, less his net earnings, if any, during said period. The pattern of conduct by Respondents set forth in this Intermediate Report and their obvious underlying purposes convinces the undersigned that the unfair labor practices found are potentially related to the other unfair labor practices prescribed by the Act and that danger of their commission in the future is to be anticipated from the Respondents' proven past conduct. In order therefore to make effective the interdependent guarantees of Section 7 of the Act, the under- signed will recommend that the Respondents be ordered to cease and desist from in any manner infringing on the rights of employees which are protected by the Act. 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 International Brotherhood of. Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 143, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2 By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Edward Pancake, thereby discouraging membership in a labor organization, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. FORD BROTHERS 71 3. By interfering with, restraining, and coercing their employees in the ex- ercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices, are unfair labor practices affecting ' commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondents, Wilbur Ford, Chester Ford, and John Ford, co-partners, doing business as Ford Brothers, and their agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 143, affiliated with the American Federation of Labor, or any other labor organization by discriminating in regard to the hire and tenure of employment or any terms or conditions of employment of their employees ; (b) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of the right to self-organization, to form, join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 143, affiliated with the American Federation of Labor, or any other labor organization, 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 which the undersigned finds will effectuate the policies of the Act : (a) Offer to Edward Pancake immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; (b) Make whole Edward Pancake for any loss of pay he may have suffered by reason of the Respondents' discriminatory action against him; (c) Upon their application, offer reinstatement to the employees who went on strike June 4, 1945, as listed in Appendix A, in their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges in the manner provided in the section of this Intermediate Report entitled "The remedy" ; (d) Make whole the employees listed in Appendix A for any loss of pay they may have suffered by reason of the Respondents' refusal, if any, to reinstate them pursuant to paragraph 2 (c), above, by payment to each of them of a sum of money equal to that which he normally would have earned as wages, during the period from five (5) days after the date on which he applied for reinstatement to the date of the Respondents' offer of reinstatement, or placement upon a preferential list, less his net earnings, if any, during said period ; (e) Post at their plant in Coal Grove, Ohio, copies of the notice attached hereto marked "Appendix B " Copies of said notice, to be furnished by the Regional Director for the Ninth Region, after being signed by the Respondents' representa- tive, shall be posted by the Respondents immediately upon the receipt thereof, and maintained by them for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced or covered by any other material ; 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for the Ninth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondents have taken to comply therewith It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondents notify said Regional Director in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, 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 the order transferring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regoinal Director. CHARLES E. PERSONS, Trial Examiner. Dated September 4, 1946. Cecil Cheek O R. Colley H. B. Cook Raymond Coyer Virgil F. Criss John A. Dheel John Friend Kenneth G Hinson APPENDIX A Edward Hughes Homer Mayse Carl Nance Dorsey W. Pelphrey William Ratliff John F. Richardson John C. Shelton APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America A. F. of L., Local 143, or any other labor organization, to bargain collectively through representa- FORD BROTHERS 73 tires of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. We will offer to the employee named below immediate and full reinstate- ment to his former or a substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. Kenneth G. Hinson We will offer to the employees named below upon their application imme- diate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges enjoyed. Cecil Cheek Edward Hughes 0. R. Colley Homer Mayse H. B. Cook Carl Nance Raymond Coyer Dorsey W. Pelphrey Virgil F. Criss William Ratliff John A. Dheel John F. Richardson John Friend John C. Shelton Kenneth G. Hinson All our employees are free to become or remain members of the above-named union or any other 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 of membership in or activity on behalf of any such labor organization. WILBUR FORD, CHESTER FORD, AND JOHN FORD, CO-PARTNERS, d/b/a FORD BROTHERS, Employer. By ------------------------------------- ------------ (Representative ) ( Title) Dated -------------------- NoTE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material.