Turner Transportation Co., Inc.

In the Matter of TURNER TRANSPORTATION COMPANY, INC. AND MART I. TURNER, DOING BUSINESS AS SHAWNEE CITY LINES and BROTHER- HOOD OF RAILROAD TRAINMEN Case No. 16-C-1167.-Decided January 15, 1946 DECISION AND ORDER On June 7, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents 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 supporting briefs. No request for oral argu- ment before the Board at Washington, D. C., was made by any of the parties, and none was held, The Board has reviewed the Trial Exam- iner's rulings made ,it the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs of the respondents, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions hereinafter set forth. In its brief, the Transportation Company contends that Stubble- field's discharge was not violative of Section 8 (3) of the Act because there is no evidence that the discrimination in regard to Stubblefield's hire and tenure of employment had the effect of discouraging member- ship in the Union. We find no merit in this contention. Discrimina- tion against an employee because of his membership in, or activities in behalf of, a union necessarily discourages membership in the union both on the part of the discharged employee and of others who may learn of his discharge.' We find, as did the Trial Examiner, that Stub- IN L. R B. v J. G Boswell Co , 136 F ( 2d) 585 (C. C A. 9) • N L. R. B v Brenner Tanning Co , 141 F. ( 2d) 62 (C C. A 1) ; N. L R B. v Walt Disney Productions, 146 F. (2d) 44 (C. C A 9 ) ; Stonewall Cotton Mills, Inc v N. L. R B., 129 F. ( 2d) 629 (C. C. A 5), cited by the Transportation Company, was modified upon rehearing. See 129 F. (2d) 633 And N L. R B v Air Associates, Inc,121 F. (2d) 586 (C C. A. 2), also cited by the Transportation Company, was explained and confined to its peculiar facts in N L R B. v. Cities Service Co, 129 F. (2d) 933 (C. C. A. 2). 65 N. L. R. B.. No. 81. 472 TURNER TRANSPORTATION COMPANY, INC. 473 blefield was discharged on December 16, 1944, because of his activities on behalf of the Union, and that the Transportation Company, by thus discharging Stubblefield discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We have found that the Xespondent^, by various acts and statements, have violated Section 8 (1) of the Act, and that the respondent Trans- portation Company, by its discharge of Stubblefield, has violated See- tion 8 (1) and (3) of the Act. For reasons stated in previous deci- sions 2 we shall order the respondents to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act.' As recommended in the Intermediate Report, we shall also order tla respondents to take certain affirmative action designed to effectuate the policies of the Act. 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 ; 1. The respondent, Turner Transportation Company, Inc., Shawnee, Oklahoma, and its officers, agents, successors, and assigns, shall: (a) Cease and desist from : (1) Discouraging membership in Brotherhood of Railroad Train- men, or in any other labor organization of its employees, by discharg- ing or refusing to reinstate any of its 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; (2) 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 Brotherhood of Railroad Train- men, 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. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Offer to Darrell H. Stubblefield immediate and full reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; 2E g, Matter of Washington National Insurance Co, 64 N L R. B. 929; Matter of C. D. Beck tt Company, 63 N. L. R B. 1426; Matter of Caroline Mills, Inc., 64 N. L. R. B 200. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) Make whole Darrell H. Stubblefield for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period; (3) Post at its garage at Shawnee, Oklahoma, copies of the notice attached to the Intermediate Report, marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Six- teenth Region, shall, after being duly signed by the respondent's rep- resentative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (4) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. 2. The respondent, Mary I. Turner, doing business as Shawnee City Lines, Shawnee, Oklahoma, and her officers, agents, successors, and assigns, shall: (a) Cease and desist from in any manner interfering with, restrain- ing, or coercing her employees in the exercise of the right to self-organ- ization, to form labor organizations, to join or assist Brotherhood of Railroad Trainmen, 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 bargain- ing or other mutual aid or protection, as guaranteed in Section 7 of the Act. (b) Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (1) Post at her garage at Shawnee, Oklahoma, copies of the notice attached to the Intermediate Report, marked "Appendix B." 4 Copies of said notice, to be furnished by the Regional Director for the Six- teenth Region, shall, after being duly signed by the respondent's repre- sentative, be posted by the respondent immediately upon receipt thereof, and maintained by her 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 3 Said notice, however, shall be, and it hereby is , amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner" and substituting in hen thereof the words "A Decision and Order" 4 Said notice, however, shall be , and it hereby is, amended in the manner set forth in footnote 3, supra TURNER TRANSPORTATION COMPANY, INC. 475 by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (2) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. ' AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the respondents have kept under surveillance the meeting-places, meetings, and activities of the Union. INTERMEDIATE REPORT Mr. Glenn L. Moller, for the Board. i Mr. John L. Goode, of Shawnee, Okla., for the respondents. Mr. Austin I. Robinson, of Wichita, Pans, and MI Harlan Bell, of Oklahoma City, Okla., for the Union STATEMFNT OF THE CASE Upon an amended charge duly filed on February 21, 1945,' by Brotherhood of Railroad Trainmen, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint, dated March 7, 1945, against Turner Trans- portation Company, herein called the Transportation Company, and Mary I. Turner, doing business as Shawnee City Lines, herein called the City Lines, both collectively referred to as the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within, the meaning of Section S (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, accompanied by notice of hearing thereon, were duly served upon the respondents and the Union. With respect to the unfair labor practices, the complaint alleged in substance that: (1) the respondents, from on or about September 23, 1944, to the date of the complaint, vilified, disparaged, and expressed disapproval of the Union; interro- gated their employees concerning their union affiliations; urged, persuaded, threat- ened, and warned their employees to refrain from assisting, becoming members of, or remaining members of, the Union ; and kept under surveillance the meeting places, meetings and activities of the Union or the concerted activities of their, employees ; (2) the respondents, or one of them, on December 16, 1944, discharged, D. H Stubblefield because of his union and conceited activities; and (3) by these acts, the respondents inteifered with, restrained, and coerced their employees In the exercise of the rights guaranteed in Section 7 of the Act On March 15, 1945, the Transportation Company filed its answer admitting the allegations of the complaint with respect to the nature and interstate char- acter of its business, but denying the allegations of unlair labor practices On the same date, the City Lines filed its answer in which it denied: (1) that it was engaged in commerce , within the meaning of the Act, and that it was sub- ject to the jurisdiction of the Board, and (2) that it had engaged in the unfair' labor practices alleged in the complaint. Pursuant to notice, a hearing was held on March 20 and 21, 1945, at Shawnee„ Oklahoma, before the under Signed Trial Examiner, duly designated by the ' The original charge was filed on December 26,1944. 1 1 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chief Trial Examiner. The Board and the respondents were represented by counsel,2 and the Union by lay representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, and again at the close of the Board's case, counsel for the respondents moved for the dis- missal of the complaint as to the City Lines, on the ground that it was not engaged in commerce, within the meaning of the Act, and was not subject to the jurisdiction of the Board. At the close of the Board's case, counsel for the respondents also moved to dismiss the complaint as to each of the respondents on the ground of failure of proof. The undersigned reserved his rulings on these motions. The motions are hereby denied Over the objection of counsel for the respondents, a motion of counsel for the Board to conform the pleadings to the proof as to dates and similar matters was granted. At the conclusion of the hearing, all parties waived their right to participate in oral argument before the undersigned. Although the parties were advised that they might file briefs for the consideration of the undersigned, no briefs have been received Upon the entire record iii the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS, Turner Transportation Company, an Oklahoma corporation with its principal office and place of business at Shawnee, Oklahoma, is engaged in the business of carrying passengers for hire between Shawnee and Ponca City, Seminole and Drmnright, Shawnee and Oklahoma City Air Service Command, and Shawnee and the Douglas Aircraft Company's plant at Oklahoma City. The foregoing terminals are all located within the State of Oklahoma. In connection with its activities, the Transportation Company operates approximately 14 busses. About 7 busses are operated in connection with the Shawnee-Ponca City and Seminole- Drumright routes, for which the Transportation Company has been licensed by the Interstate Commerce Commission. These busses carry passengers to and from interstate carriers' Approximately 7 busses are used in the operation of the Shawnee-Douglas Aircraft Company route and the Shawnee-Oklahoma City Air Service Command route. These busses carry war workers During the first 6 months of 1944, the Transportation Company's volume of business amounted to approximately $90,000, of which 50 percent was derived from the Shawnee-Douglas Aircraft Company and the Shawnee-Oklahoma City Air Serv- ice Command Depot routes, and 50 percent from the Shawnee-Ponca City and Seminole-Druniright routes. The Transportation Company admits, and the undersigned finds, that it is engaged in commerce, within the meaning of the Act. Mary I. Turner, doing business as Shawnee City Lines, operates a bus trans- portation service between points in and about the city of Shawnee, Oklahoma, and a bus service from Shawnee to the United States Naval Air Base located at the western edge of the City Of the three regular routes in the city of Shawnee, one connects with the interstate bus terminal located in that city. In is operations, the City Lines uses four regular and two extra busses. During the first 6 months of 1944, the City Lines' volume of business amounted to ap- proximately $45,000. "Counsel for the respondents entered a special appearance for the City Lines On these routes the Transportation Company makes connections -with the Santa Fe Trailways and Southwestern Greyhound Lines. TURNER TRANSPORTATION COMPANY, INC. 477 The Transportation Company owned and operated the City Lines from Novem- ber 1, 1939, until April 1943. Sometime during April 1943, the Transportation Company sold the City Lines to Fred O. Turner, who was then, and is now, the president of the Transportation Company. Shortly thereafter, Turner sold the City Lines to Mary I. Turner, his wife. Although the Transportation Company and the City Lines maintain separate legal and accounting identities, they are operated with common managerial control.' Upon the above-stated facts the undersigned finds that the City Lines is engaged in commerce within the meaning of the Act.5 THE ORGANIZATION INVOLVED Brotherhood of Railroad Trainmen is an unaffiliated labor organization, admit- ting to membership employees of the respondents. III. THE UNFAIR LABOR PRACTICES A Intet fen ence, i estvaint, and coei cion There is no evidence in the record of any anion activity among the respond- ents' employees prior to September 8, 1944 Shortly before that date, however, 2 or 3 drivers approached Fred 0 Turner, president of the Transportation Com- pany and manager of the City Lines, regarding a wage increase Apparently Turner gave no consideration to their request. Feeling that further attempts at individual bargaining were hopeless, these drivers decided to enlist the aid of the respondents' other drivers. With this end in view, a meeting was held on or about September 8, 1944, which was attended by most of the drivers. At the meeting, the'drivers decided to have a labor organization act in their behalf, and the Union was tentatively chosen by vote as their representative. Darrell H. Stubblefield, a driver for the Transportation Company, was commissioned to get in touch with the Union and have its organizers meet with the drivers. On September 14, in response to Stubblelield's invitation, 2 organizers of the Union went to Stubblefield's home, where a meeting was held, attended by the majority of the drivers Dining the meeting, approximately 1S of the respond- ents' 23 drivers signed union membership cards After the meeting adjourned the union organizers called on Turner' About 1 week later, the drivers held another meeting at the respondents' garage Turner, who happened to be at the garage while the drivers were assembling, noticed the unusual number of drivers present, and asked the reason for the 4 The respondents contend that Mrs. Turner has owned and operated the City Lines independently of the Transportation Company since April 1943 The record shows, how- ever, that Fred O. Turner , manages and supervises the City Lines ' operations , for which he is not financially ,compensated by Mrs Turner The record also discloses the following facts : the Transportation Company and the City Lines have a common office and address , they have the same clerical employees, although such employees are carried on the Trans- portation Company's pay roll and the City Lines is charged by the Transportation Com- pany for their proportionate service ; their busses are housed in the same garage , which is owned by Turner personally, and are serviced by the same crew of mechanics, although the mechanics are actually employees of the Transportation Company and the City Lines is billed for their services , fares collected by the City Lines drivers and the Transportation Company drivers are deposited in the same vault but not co-mingled ; and there is some interchange of bus drivers between the City Lines and the Transportation Company. 6 Upon similar jurisdictional facts, the Board has previously found that the City Lines is engaged in commerce, within the meaning of the Act See Matter of Turner Transporta- tion Company & Shawnee City Lines, 60 N. L. R B. 87. The record is silent as to what took place at the meeting between Turner and the organizers. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gathering . Paul Dennison, City Lines driver, replied that the drivers were there for the purpose of holding a meeting Turner, thereupon accused the drivers of holding meetings without his knowledge, and told them that if they had gone to him, he would voluntarily have given them a 10-percent raise.' During Turner's remarks, Stubblefield entered the garage. As he did so, according to his testimony, he saw Turner walking back and forth lecturing to the drivers, and noticed that most of Turner's remarks were directed to the younger drivers. He further testified as follows: Q You said he was walking up and down Now, go ahead from there? Ask Well, he was lecturing to these younger bus drivers He told, them they were a bunch of stickers, that all the older drivers was trying to do there was to get them to get a contract signed and support theta through this time and that they'd be the first ones to get laid off and we'd still be there and hold our jobs. Q Who do you mean by "we"9 A. The older employees and he told them, he said, 'I in just trying to tell you what a bunch of God damned stickers you are' And then he said 'I don't give a damn if you all join the union Stubblefield also testified that just before the meeting was called to order. Turner criticized him severely for having called a meeting "under his [Turner's] own roof and unbeknownst to him," and that when Stubblefield suggested that the drivers could go elsewhere for the meeting, Turner said, "Just come on in and take the God damn place over . It looks like that's what you're trying to do anyhow" Following this conversation, Stubblefield invited Turner to attend the meeting, and Turner accepted the invitation At the opening of the meeting, Stubblefield was elected chairman and imme- diately thereafter took charge of the proceedings The evidence shows that the proceedings were interrupted on two or three occasions by disparaging statements made by Turner and aiiued particularly at Stubblefield. One of the statements which caused Stubblefield some concern was to the effect that since he was such a smart man, he should be running the company instead of a bus Stubblefield answered this remark with a short statement which silenced Turned for the rest of the meeting 8 Turner, in his testimony regarding the meeting, admitted that he inquired of the drivers the reason for the gathering, and that he told them that "Nobody said anything to me about it." He also admitted that he had a conversation with Stubblefield jnst before the meeting was called, that he accepted Stubblefield's invitation to attend the meeting and that he was unaware of the fact that he was attending a union meeting until sometime after the proceedings started. With respect to his subsequent remarks, he testified that following the election of Stubblefield to the chairmanship, "Well then, we had a little discussion, something about if I didn't know I was in a union meeting or something or other, ssas, I believe, and then I believe I got up out of my seat and Mr. Stubblefield told me to sit down, that I didn't have any damn business in there, so I sat down ' The above findings as to Turner 's remarks are based on the undenied testimony of driver Maxson Walker, which is credited by the undersigned 8 The statement was, in substance, that about 10 years before, at a time when the Trans- portation Company was struggling to exist, Stubblefield ieceived an offer of a better posi- tion from one of the Company's competitors and that Turrer, upon hearing of the offer, pleaded with Stubblefield to stay, and offered to reward hun in the future if he did so After relating these facts Stubblefield asked the drivers « hether they thought that Turner had given him any kind of a reward in return for his favor to Turner TURNER TRANSPORTATION COMPANY, INC. 479 and I don't think I got up any more and I found out then that I was probably in the wrong I didn't know any better than to be in there". Stubblefield's testimony regarding, Turner's remarks, as set forth above, is substantially supported by that of driver Maxson Walker, and is not directly contradicted by Turner's own testimony, except insofar as he denied knowing that lie was attending a union meeting On the entire record regarding the incidents before and during the meeting, the undersigned is convinced and finds that Turner knew the purpose for which the meeting was called and that ho made the remarks attributed to him by Stubblefield. Turner's hostile attitude toward the drivers' union activities, as demonstrated by his remarks and conduct on the occasion of the meeting in the garage, is further shown by the testimony of drivers Arthur Cook, Adelbert Hitt, Oscar Groves, and Maxson Walker, regarding subsequent incidents.' Thus Cook testified that on or about November 15, 1944, while in Turner's office, he was asked by Turner what he thought of the Union, and that he answered, in effect, that he thought it would work if given a chance. Turner then told him, in substance, that the men could have talked to him, that they did not need anyone to speak for them, and that the Union could not possibly function as their bargaining agent because the respond- ents were too small Hitt testified that on a night in December 1944, while he was in the office, Turner came in and slapped him on the back, saying, "Why don't you come over and see me, scents as if you're afraid of me here lately." When Hitt replied that he was not afraid of anyone, Turner said, "I like you, you've made me a good hand but I don't like the God damned union " Groves testified that he made application for employment with the respondents sometime in October 1944, and that during an interview with Turner, he was asked by him what he thought of the Union 10 Groves also testified that sometime in December, 1944, while he and 2 or 3 other drivers were in the office turning in their receipts, he witnessed a friendly scuffle between Turner and Adelbert Hitt, and that after the scuffle ended, Turner said to Hitt, "Delbert, you and Everett McMahon are two of the best drivers I have but Delbert joined the Union on me " It is Walker's testimony that on the day following Stubblefield's discharge, the details of which are hereinafter related, Turner told him that the] "was gonna be the next one that he was gonna fire if I he I didn't get straight,"" and that he also told him at the time that he was one of the best drivers lie had and he wanted to keep bun. Since it is obvious that Turner was completely satisfied with Walker's work, it seems clear that Turner must have referred to Walker's union activities when he made the statement about Walker "getting straight", and the undersigned so finds. The undersigned finds that the respondents, by questioning employees concern- ing their union affiliation, by threatening to discharge employees for membership in ° The testimony of Cook, Hitt, Groves and Walker was denied only in general terms by Turner His denial is found in the following excerpts taken from his direct examination Q And have you ever resisted organization? A I have not a e s s * s a Q Have you ever told any of the employees of Turner Transportation Company not to belong to any union or that they had better not join? A I have not On the record as a whole, the undersigned credits the testimony of Cook, Hitt, Groves, and Walker °° In his testimony, Turner admitted that he questioned Groves regarding his attitude toward unions He also admitted that he interviews practically all applicants for employ- ment with both respondents, and that he interrogates City Lutes applicants for jobs re- garding their attitude tossard labor organizations it Aiaxson walker was elected vice chanman of the Union at the meeting held in the garage 679100-46-vol. 65-32 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, by questioning applicants for employment concerning their attitude toward labor organizations, by making statements disparaging and disapproving of the Union, by interrupting a meeting of the Union, by advising their employees that the Union was unable to function as their bargaining representative, and by the totality of such statements and conduct, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. B The discriminatory discharge of Darrell H Stubblefield Darrell H. Stubblefield was first employed by the Transportation Company in 1926 and worked until 1929, at which time he left its employ. He returned in 1932 and worked until December 16, 1944, when lie was discharged. In point of service he was the Transportation Company's second oldest employee. It is clear, from the facts hereinbefore related, and the undersigned finds that Stubblefield was the most active employee on behalf of the Union, and that Turner was fully cognizant of his union activities. Stubblefield's testimony regarding the events on the occasion of his discharge was as follows : In the late afternoon of December 16, 1944, Turner asked him into his office. As Stubblefield entered, Turner opened the conversation by say- ing, "Well, Stubb, you and I haven't been getting along very well lately." Stubblefield replied, "Well, I don't know; I thought I was doing all right; I haven't been called up on the carpet lately." Turner then said, "Well, I'm gonna ask you to quit," and upon Stubblefield's refusal to do so, added, "Well, if you -don't quit I'm gonna fire you." Thereafter, Turner told Stubblefield that he had had him checked time after time and that the checkers had told him that Stubblefield was the best of his drivers, but he also said that as long as Stubble- field remained with the Transportation Company he (Turner) would be unable to do anything with the other drivers He further stated that "if I can get rid of you I can get rid of the Union." Stubblefield expressed the opinion that get- ting rid of him would not, in itself, have the effect Turner desired, because the other drivers were as anxious as he was to have a collective bargaining con- tract. To this, Turner replied, "Well, . . . I think I can Of course I'll admit I may be sticking my neck out; I may have to bring you back, put you back to work and pay you for the time you're off, but . . . It'd be worth the money because the way it is you're driving me nuts around here now." 32 In closing the conversation, Turner asked Stubblefield to return the following Monday when his availability slip and a letter of recommendation would be ready for him. Turner testified, with respect to this conversation, that on December 16, 1944, he called Stubblefield into his office, and "told him I would like for him to hand in his resignation," and that lie believed he also "told him that I didn't think that due to the past experiences that he and I was going to get along very good and then I told him I thought it best that he resign." He also testified that "I asked him for his resignation and he said he wasn't gonna resign, and I said `Well, in a case like that I'll fire you,' and that's about the sum and substance of it." When asked whether he had said, "Stubb I cannot handle the men or drivers with you around?" Turner admitted "Well, I believe I did tell him it was either Stubblefield or me, that he had to leave or that I had to leave and 12 In support of Stubblefield's testimony, Maxson Walker testified , and his testimony is credited by the undersigned , that on the day following Stubblefield's discharge, Turner told him that if he had to put Stubblefield back to work "he would rather pay him a salary of a hundred and forty or fifty or two hundred dollars a month to keep him away from the garage, that he didn 't want him around the, garage , and he didn't want him around him " TURNER TRANSPORTATION COMPANY, INC. 481 that I was having a lot of trouble," but he denied having told Stubblefield "if I can get rid of you I can get rid of the Union.s13 On the evidence as a whole, the undersigned credits Stubblefield' s testimony as to his conversation with Turner at the time of his discharge. The Transportation Company contends that Stubblefield was discharged for three reasons . The firsts reason, according to Turner's testimony, was an in- cident that occurred in April 1943. During that month, the respondents had all their drivers checked. The report subsequently received from the checkers showed that Stubblefield had failed to account for several cash fares that he had collected. When Turner called Stubblefield into his office and confronted him with the report, Stubblefield admitted the shortage. At the time, accord- ing to Turner, Stubblefield promised that it would not occur again and on that basis lie was retained in the respondents' employ. On cross-examination, Turner was quite certain that the report showed that Stubblefield was short not less than five nor more than ten cash fares. However, he was unable to' recall any of the details contained in the report, nor was he able to produce the report, since, as lie stated, it had been destroyed because of its confidential nature sometime after his interview with Stubblefield. After Turner had testified regarding this incident, Stubblefield was recalled as a witness and was interrogated extensively regarding it. He admitted having been called into Turner's office and shown the unfavorable report of the checker, but stated that the report showed a shortage of only three cash fares He further testified that during his interview with Turner, he told Turner that the reason for the shortage of two of the fares was that he had carried an agent of a con- necting bus line to and from Ponca City, without demanding a fare on either occasion" With respect to the third fare mentioned in the report, he testified that he gave Turner the following explanation : On the same trip mentioned above, a passenger got on his bus at Shawnee, handed him a ticket, and rode with him to Ponca City. This individual again boarded his bus just before he left Ponca City for the return trip and on this occasion paid a cash fare. Surmising that the passenger was a checker employed by the respondents, Stubblefield, in the man's presence , put the fare into his own pocket without recording it. The sole motive for this action, according to Stubblefield, was to let the man know that he suspected the reason for his presence on the bus, as well as to show his scorn for him. When Stubblefield left Turner's office after making this explana- tion, he was under the impression that the matter was closed and he remained under that impression, since the incident was not mentioned again until the time of the hearing Turner denied, however, that any explanation for the shortage was offered by Stubblefield. The undersigned does not credit the denial of Turner, and finds that he was apprized of the reason for the shortage by Stubblefield. The second reason assigned by the Transportation Company for the discharge was that Stubblefield had failed to adhere to the alleged promise made by him to Turner following the April 1943 incident. With respect to this matter, Turner testified that early in November 1944, his attention was called to the fact that there was a substantial difference in the amount of cash fares turned in by Stubblefield and the amount turned in by other drivers who took over Stubble- SS Turner' s over-all testimony was vague and unconvincing , and did not possess that degree of candor which invites credence. On the other band , Stubblefield's testimony was straightforward, clear, and detailed . The entire testimony of Stubblefield is credited by the undersigned. 14 It was the practice of the respondents to issue free transportation in the form of passes to agents of connecting lines. According to Stubblefield, the agent in question had used passes on prior occasions , but on these occasions failed to present passes. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD field's route during his vacation and after his transfer to another route in early October 1944. Although, according to Turner's testimony, the figures submitted to him in early November did not coriAkiletely convince him that Stubblefield was tithholding cash fares, upon receiving the figures for the month of November, on or about December 10 or 12, he made up his mind to get rid of him. In support of Turner's testimony, the Transportation Company introduced in evidence a document showing the cash fares turned in by Stubblefield for the first 9 months of 1944, as well as those turned in by the drivers who took over Stubblefield's route during his vacation and after his transfer This document shows- that the amount of the cash fares turned in for the last 2 weeks in July, the period of Stubblefield's vacation, was approximately double the amount turned in by Stubblefield for the first 2 weeks of that month It further shows that the amount of the cash fares turned in for the months of October and November, 1944, by the driver who replaced Stubblefield, was somewhat greater than the mounts turned in monthly by Stubblefield, and that the amount turned in during the months of January and February, 1945, was also greater than the amount turned in by Stubblefield during the same months in 1944. Stubblefield testified that there were many reasons for cash fare receipts vary- ing from month to month He also stated that the principal reason for his cash fare receipts falling below those of other drivers was that it was his custom, whenever he picked up a passenger paying a cash fare, if that cash fare exceeded a certain amount, to sell only sufficient transportation to carry the passenger to the nearest ticket agent and have the agent sell the remaining portion of the transportation, and that he did this in order to enhance the earnings of certain ticket agents located along his route whose incomes from the Transportation Company were determined solely by the number of tickets they sold.15 Except for this practice, according to Stubblefield, his cash fare receipts would hate been.flom twenty-five to forty dollars higher each month." The Transportation Company's final reason for discharging Stubblefield, and the only one given to Stubblefield at the time rof the discharge," was that Tuner and Stubblefield "had not been getting along very good " Originally Turner testified that he and Stubblefield "bad not gotten along" since the April 1043 incident, but he later changed this testimony by stating on account of "little squabbles" they had not been getting along for "two or three or four mouths" preceding the discharge Interpreting the meaning of "little squabbles," be stated that whenever Stubblefield came into the garage, he would be joined by two or three drivers and invariably an argument would take place. This practice, according to Turner, "kept the entire organization torn up all the time." The record conclus.vely shows that the first and second reasons advanced for the discharge, namely, the i,1pril 1943 incident and the alleged withholding of cash fares in 1044, were not the motivating factor in the respondent's action Indeed these reasons were advanced for the first time at the hearing. Further- more, any support that may have been expected from the statement reflecting the cash fare receipts was dissipated by the fact that Turner -told Stubblefield on the 15 According to the evidence , the repondents had no rule which prohibited this practice. "Turner was asked by counsel for the Board whether he knew the total number of passengers carried by Stubblefield and the other drivers during the period covered by the cash fare deport To this Turner responded that lie had no independent knowledge of such figures , but that he was certain that the respondents ' records would contain the information The respondents , however , failed to produce this information " Turner admitted that during his talk with Stubblefield , he did not mention the incident of April 1943 or the fact that he was convinced that Stubblefield had been withholding cash fares during the year 1944 , and that the reason these things were not mentioned was that he "didn't wish to have any further argument with Mr Stubblefield." TURNER TRANSPORTATION COMPANY, INC. 483 day of discharge that he had been checked time after time and the checkers invariably reported that he was the best driver in the respondent's employ The import of this i emark is given great weight since it was made approximately 4 days after Tuiner was supposed to have received the figures upon which he reached the conclusion that Stubblefield was withholding cash fares. On the ieeord as a whole, it is apparent that following the union meeting held in the respondents' garage, Turner's feeling for Stubblefield was one of bitterness He was cognizant oi: the fact that the success or failure of the Union was largely in the hands of Stubblefield, and believed that if he could get rid of Stubblefield, he could get rid of the Union Although he was also aware of the fact that if he discharged Stubblefield for that reason, Stubblefield might be reinstated later and awarded back pay as well, he, nevertheless, discharged him At the time the discharge was effected, Turner gave Stubblefield the excuse that they were not "getting along" At the hearing it became evident that they were not getting along because of Stubblefield's union activity. The period over which Turner felt that he and Stubblefield had not gotten along was "two or three or four months" immediately prior to the discharge This period covers the time of Stubblefield's organizational campaign. Turner objected to Stubblefield's con- duct during this period and stated his specific objection was that Stubblefield had "kept the entire organization torn up all the time." It is apparent that Turner's objection was to Stubblefield's activities on behalf of the Union. The undersigned is convinced and finds that Stubblefield was discharged on December 10. 1944. because of his activities on behalf of the Union, and that the Transportation Company, by thus discharging Stubblefield, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restiaining, and coeicing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleges that the respondents have kept under surveillance the meeting places, meetings, and activities of the Union The undersigned finds no substantial evidence in the record to support this allegation of the complaint, and will recommend that said allegation be dismissed. IV. THE EYFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents 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 commerce among the several States, 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 certain unfair labor prac- tices, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent Transportation Company discriminated in regard to the hire and tenure of employment of Darrell H. Stubblefield. It will, therefore, be recommended that the Transportation Company offer him immediate and full reinstatement to his former or a Substantially equivalent position, without prejudice to his former rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the Transportation Company's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages during the period 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the date of the discrimination to the date of the offer of reinstatement less his net earnings during said period.18 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. Brotherhood of Railroad Trainmen is a labor organization within the mean- ing of Section 2 (5) of the Act. 2 By discriminating in regard to the hire and tenure of employment of Darrell H. Stubblefield, thereby discouraging membership in the Union, the respondent Transportation Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfa-ir labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5 The respondents have not engaged in unfair labor practices within the meaning of Section 8 (1) of the Act by keeping under surveillance the meeting places, meetings, and activities of the Union. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that : 1 The respondent Turner Transportation Company, Inc., Shawnee, Oklahoma, and its officers, agents, successors, and assigns, shall cease and desist from: (a) Discouraging membership in Brotherhood of Railway Trainmen, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of employment or any term or condition of their employment ; (b) Interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Brotherhood of Railroad Trainmen 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. The respondei}t Mary I. Turner, doing business as Shawnee City Lines, Shawnee, Oklahoma, and her agents, successors, and assigns, shall cease and desist from interfering with, restraining, or coercing her employees in the ex- ercise of the right to self-organization, to form labor organizations, to join or assist Brotherhood of Railroad Trainmen 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 bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 11 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, 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 and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 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 IL S. 7. TURNER TRANSPORTATION COMPANY, INC. 485 3. The respondent Turner Transportation Company, Inc., and its officers, agents, successors, and assigns, shall take the following affirmative action which the undersigned finds will effectuate the policies of the Act: (a) Offer to Darrell H. Stubblefield immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges ; (b) Make whole Darrell H Stubblefield for any loss of pay he may have suf- fered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from December 16, 1944, the date of his discharge, to the date of the respondent's offer of reinstatement; (c) Post at its garage at Shawnee, Oklahoma, copies of the notice attached hereto, marked "Appendix A " Copies of said notice to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly 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, including-all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. 4. The respondent Mary I. Turner, doing business as Shawnee City Lines, and her agents, successors, and assigns, shall take the following affirmative action which the undersigned finds will effectuate the policies of the Act ; (a) Post at her garage at Shawnee, Oklahoma, copies of the notice attached hereto, marked "Appendix B " Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by her 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 respondent to insure that said notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondents, Turner Transporta- tion Company, Inc, and Mary I. Turner, doing business as Shawnee City Lines, 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. It is further recommended that the complaint be dismissed insofar as it alleges that the respondents engaged in surveillance of meeting places, meetings, and activities of the Union. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 3, as amended, effective July 12, 1944, 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, D. C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any part of the record or proceeding (including rulings upon all motions or objections) Of 0 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as lie relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement 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 per- mission 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. JOSEPH E. GURBINS, Trial Examiner. Dated June 7, 1945. "APPENDIX A" 0 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 employees in the exercise of their right to self-organization , to form labor organizations, to join or assist BROTHERHOOD OF RAILROAD TRAINMEN 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. We will offer to the employees named below • immediate and full rein- statement to their former or substantially equivalent positions without preju- dice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrim- ination. DARRELL H. STUBBLEFIELD 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 of 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. TURNER TRANSPORTATION COMPANY, INC., Employer. . Dated-----=---------------- By ------------------------------------ (Representative) (Title) 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. APPENDIX B" NOTICE TO ALL EMPLOYEES Pursuant to 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: TURNER TRANSPORTATION COMPANY, INC. 487 We will not in any manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist BROTHERHOOD OF RAILROAD TRAINMEN 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. All our employees are free to become or remain members of this union, or any other labor organization. MARY I. TURNER, DOING BUSINESS AS SHAWNEE CITY LINES; Employer. Dated----------- ---------- By--------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.