Bowman Transportation, Inc.

BOWMAN TRANSPORTATION, INC. 387 herein, the Employer sent each of the strikers a letter informing him that because of the lack of business his services were no longer re- quired. The Intervenor filed a charge alleging this to be a discrimi- natory discharge, but shortly thereafter withdrew it on advice of the Regional Director. At the hearing, asked by the hearing officer if its position was that the letters were "tantamount to a permanent discharge," the Employer replied that it was. However, while the Employer's business was in fact severely affected by the strike, there is no evidence in the record to indicate that the volume of business will not return to the prestrike level when the strike ends. We cannot, therefore, on the record before us, determine whether the strikers have been permanently discharged or whether they have a reasonable expectancy of reemployment when the Employer's operations return to normal. We shall therefore permit all persons hired since the date of the strike and all strikers to vote subject to challenge.) The challenged ballots shall not be counted unless they affect the results of the election, in which case the question as to which of these ballots shall be opened and counted shall await further investigation concerning the employment status of the affected individuals. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above Decision and Direction of Election. 1 Nothing in this direction should be construed as indicating that the Board has pre- judged in any respect any of the questions which may be drawn in issue by a challenge to the eligibility of any voter Bowman Transportation, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL, Local No. 612. Cases Nos. 10-CA-1950 and 10-CA-1985. April 22,1955 DECISION AND ORDER On November 26, 1954, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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- 112 NLRB No. 55. 360028-56-vol 112 26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, the exceptions and brief of the Respondent, and the entire record in these cases and hereby adopts the findings,' conclu- sions, and recommendations of the Trial Examiner, with the follow- ing additions and modifications. 1. The Trial Examiner found that employee Welch Gross did not disqualify himself for reinstatement by his conduct while picketing the Respondent's terminal in Gadsden, Alabama. The Respondent urges that the Board's decision in B. V. D. Company, Inc.,' is deter- minative of its contention that Gross should be denied reinstatement because of his picket line activity. On the state of the record before us, we are not convinced that sufficient evidence exists regarding any alleged acts of misconduct by Gross which would warrant denial of reinstatement to him, nor are we persuaded that the facts established herein are comparable to those appearing in the B. V. D. case. Accord- ingly, we adopt the Trial Examiner's recommendation that the Re- spondent offer to Gross, upon his application, reinstatement to his former or substantially equivalent position. 2. We concur in the Trial Examiner's finding that the Respondent rendered illegal support and assistance to District 50, United Mine Workers of America, and thereby violated Section 8 (a) (2) and (1) of the Act, and we adopt his recommendations based thereon. How- ever, we do not adopt that portion of the Trial Examiner's recom- mended order which directs the Respondent to reimburse its employees for the amount of fees and dues which the Respondent checked off their wages and paid over to District 50. There is no evidence in the record that the Respondent enforced an involuntary checkoff or otherwise coerced its employees into paying these dues and fees. We therefore shall not order reimbursement to the employees of the dues and fees thus checked off.' ORDER Upon the basis of the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bowman Transportation, Inc., Gadsden, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, 1 The Trial Examiner found, and we agree, that the Respondent's interrogation of Jordan and Blackburn as to the union meeting, and its surveillance of this meeting, constituted independent violations of Section 8 (a) (1) of the Act. However, the Trial Examiner failed to effectuate these findings by appropriate remedial recommendations . Accordingly, in fashioning a remedy in these proceedings , we shall order that the Respondent cease and desist from interrogating its employees concerning union activities or from engaging in surveillance of such union activities. 2 110 NLRB 1412. Members Murdock and Peterson dissented in this case 3 See Peerless Quarries, Inc, 92 NLRB 1194 BOWMAN TRANSPORTATION, INC. 389 Local No. 612, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by dis- criminating in any other manner in regard to their hire or tenure of employment, or any term or condition of their employment. (b) Assisting in the administration of District 50, United Mine Workers of America, or contributing support to it, or to any other labor organization. (c) Giving effect to the collective -bargaining agreement, dated May 22, 1954, between the Respondent and District 50, United Mine Workers of America, or to any extension , renewal, or modification thereof, or any other contract agreement between the Respondent and the said labor organization which may now be in force. (d) Recognizing District 50, United Mine Workers of America, as the representative of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes , wages, rates of pay, hours of employment, or other conditions of employment, un- less and until the said labor organization shall have been certified as such representative by the Board. (e) Interrogating its employees concerning their activities on be- half of International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, AFL , Local No. 612 , or any other labor organization , in a manner constituting interference , restraint, or coercion in violation of Section 8 (a) (1), and from engaging in the surveillance of its employees at such meetings. (f) 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 the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Local No. 612, or any other labor organization , to bargain col- lectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Welch Gross, upon his application, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Offer assignments to Joe Lackey, upon his reemployment, with- out discrimination because of that employee's union or concerted activ- ities. (c) Withdraw and withhold all recognition from District 50, United Mine Workers of America, as representative of its employees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the said labor organization shall have been certified as such representative by the Board. (d) Post at all its terminals copies of the notice attached hereto and marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director, in writing, within ten (10) clays from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN FARMER and MEMBER LEEDOM took no part in the con- sideration of the above Decision and Order. 'In the event that this Order is enforced by dcciee of a United States Court of Appeals, there shall be substituted for the voids "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Corn t of Appeals, Enforcing an Order" APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 612, AFL, or in any other labor organization of our employees, by discharging or refusing to reinstate any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. WE WILL offer to Welch Gross, upon his application, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights and BOWMAN TRANSPORTATION, INC. 391 privileges previously enjoyed, and make him whole for any loss of pay suffered as result of the discrimination against him. WE WILL offer assignments to Joe Lackey, upon his reemploy- ment, without discriminating against him because of his union or concerted activities. WE, WILL NOT interrogate our employees concerning their activ- ities on behalf of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ainerica, AFL, Local No. 612, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act, and we will not engage in the surveillance of our em- ployees at such meetings. WE WILL NOT interfere with the formation or administration of any labor organization or contribute financial or other support to it. AVE WILL NOT give effect to the agreement dated May 22, 1954, with District 50, United Mine Workers of America, or to any con- tract or agreement with that organization which may now be in force. WE WILL withhold all recognition from District 50, United Mine Workers of America, as representative of any of our employees for the purposes of collective bargaining unless and until said or- ganization shall have been certified as such representative by the National Labor Relations Board. All our employees are free to become, remain, or refrain from becoming members of any labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8 (a) (3) of the National Labor Relations Act, as amended October 22, 1951. BOWMAN TRANSPORTATION, INC., 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136 (herein called the Act), was heard in Gadsden, Ala- bama, from August 3 to 5 , 1954, inclusive, pursuant to an order of consolidation and due notice to all parties.' The complaint in Case No. 10-CA-1950, based on charges 1 The General Counsel and the staff attorney appearing for him at the hearing are re- ferred to herein as the General Counsel and the National Labor Relations Board as the Board The above-named Company is referred to as the Respondent , and the Charging Party, likewise named above , as the Union or Teamsters 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duly filed and served, alleged that the Respondent had engaged in unfair labor prac- tices within the meaning of Section 8(a) (1) and (3) of the Act by discriminatorily discharging one employee on November 22, 1953, threatening another with reprisals, and engaging in surveillance. In Case No. 10-CA-1985, the complaint alleged that in May 1954, the Respondent, in violation of Section 8 (a) (1) and (2) of the Act, bargained and agreed upon the terms of a contract with District 50, United Mine Workers of America, herein called District 50, at a time when it did not represent a majority of the Respondent's employees and by various other acts and conduct as- sisted and supported that Union. In its answers, the Respondent conceded certain facts with respect to its business operations but denied the commission of any unfair labor practices. The General Counsel, the Respondent, and the Teamsters were represented at the hearing by their attorneys. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce all evidence pertinent to the issues was afforded all parties. The parties waived oral argument. Subsequent to the hearing a brief was received from the General Counsel Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Alabama corporation, is a common carrier engaged in the trans- portation of freight by motor vehicles. In the conduct of its business the Respond- ent operates throughout the southeastern States and maintains terminals at Gadsden, Anniston, and Birmingham, Alabama; Memphis and Chattanooga, Tennessee; At- lanta, Georgia; and Richmond, Virginia. During all times material herein, the dollar volume of the Respondent's annual business exceeded $2,500,000, 98 percent of which was derived from the interstate transportation of freight. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Teamsters and District 50 are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events The Teamsters began an organizational campaign among the Respondent's em- ployees in November 1953. On November 22, the Respondent discharged Welch Gross, an issue herein. On November 23, the Union placed a picket line outside the entrance to the Company's Gadsden terminal. A considerable number of the em- ployees then left their jobs and joined in the picketing which continued until De- cember 28, when the Circuit Court of Etowah County, Alabama, issued a temporary restraining order. The court's decree and various amendments thereto enjoined all picketing until May 17, 1954, when the court removed its ban on peaceful picketing but made permanent that portion of its decree which forbade violence and mis- conduct on the picket line. Subsequent to that date the Union resumed its picketing of the Respondent's premises. At the time of the hearing this picketing was still in progress. On May 22, after some of the employees had told Ralph M. Bowman, president of the Respondent, that they wanted a contract, and after several meetings with organizers for District 50, Bowman called all his drivers in for a special meeting After a poll of those present in which a majority signified that they wanted District 50 to represent them, Bowman withdrew from the meeting. Later in the day he met with representatives of District 50 and signed a contract which, along with various other provisions, provided for union security and a checkoff of the employees' union dues. B. Case No. 10-CA-1950, the allegations, the evidence, and conclusions with respect thereto The General Counsel alleged that the Respondent engaged in surveillance of a Teamsters' meeting, discriminatorily took Joe Lackey, one of its drivers, off his regular run, and discriminatorily dismissed Welch Gross, another driver. These allegations were denied by the Respondent in their entirety. BOWMAN TRANSPORTATION, INC. 393 Organizational activities among the Respondent's employees began early in No- vember and about November 14, Carl Renfroe, assistant business agent for the Teamsters, met with several of the drivers. On November 21, a second meeting was held, at which about 20 employees were present. Among those in attendance were Joe Lackey and Welch Gross. About 30 minutes after the conclusion of the meet- ing, and while some 8 to 10 employees were still gathered at the site, both Ralph M. Bowman and Donald B. Lockridge, president and vice president, respectively, of the Respondent, appeared, greeted those present in a casual manner, and then departed. The following morning, while some 15 to 20 drivers were gathered at the terminal, Mr. Bowman spoke to several of the men. According to Lackey, the company presi- dent said to him "Joe, you are the biggest liar of all. You promised me before when we had this labor trouble here that you'd never be mixed up in this Union no more." Lackey further testified that Bowman then told him that his vacation was over and from that point forward he would have to take runs as the other drivers did.2 Bow- man then asked if Lackey would refuse another trip and the latter told him he would accept anything offered. Bowman thereupon spoke to Welch Gross and told him he was being discharged for "tearing up my trailer." After making this statement the company president turned to William Moon, another driver, and declared, "You, of all guys, I can't see why that you would do me this way after what I've done for you " 3 To J. P. Jordan, another driver in the group, he stated, "Take Brother Jordan, he is trying to play both ends and the middle . . . he's told around over here that he has . a friend in the office . . . as of now he doesn't have any." 4 The following day, M. R. Sherman, business agent for the Teamsters, endeavored to meet with Bowman. After making several attempts to reach him by telephone, Sherman went to the terminal. There, Bowman's secretary told him that the com- pany president was too busy to see him. Late that afternoon the Teamsters established a picket line before the Respondent's Gadsden headquarters. 1. Surveillance The General Counsel's allegation that the Respondent's officials engaged in sur- veillance of the union meeting on November 21 was denied by the Respondent. The latter conceded, however, that Bowman and Lockridge had visited the site of the meeting. Both of these officials testified that they had done so merely out of curiosity, that they had no knowledge either before or after their visit that a union meeting was in progress or had been held at the scene, and that the only employee who spoke to them while there told them that the men were "shooting craps." The union gathering assembled at Burns Park, a site within the city limits of Gadsden but in a somewhat isolated area, three-quarters of a mile off a main highway and at the dead end of an unpaved road. Apart from a water tower, near which the meeting was held, there are no buildings or structures of any kind in the immediate vicinity. It is 11/z miles from the Respondent's place of business. The explanation offered by Bowman and Lockridge for their presence at this out-of-the-way location coincidentally with the Teamsters' meeting might be accept- able were it not for other testimony in the transcript. Thus, Jordan testified that early on the afternoon of November 21, Lockridge, whom he had known for 30 years, drove up to his home, initiated a conversation about the Union, and questioned him as to where the meeting was to be held that afternoon. When Jordan declined to discuss the matter, Lockridge departed.5 The following morning, when Jordan 3 Lackey's testimony in this connection was corroborated by J. P Jordan and Herschel White Bowman denied having mentioned the Union on this occasion but he conceded that he called Lackey a liar In view of the extensive corroboration in the record for Lackey's version of this conversation, I credit his testimony in this regard rather than that of the company president. 3 Bowman had paid for an extended hospitalization that Moon experienced sometime before. At the hearing he testified that he understood the men at the Burns Park site were gambling when he had seen them and that his concern for Moon had arisen from the fact that he felt that it was ill-advised for anyone in Moon's straits to be gambling. Bowman testified that he told Jordan he understood Jordan had a friend in the office. The foregoing findings are based on the testimony of Jordan. Lockridge denied this account in its entirety and testified that he had never visited Jordan at his home. The latter, however, was corroborated by two neighbors, Cecil Horsley and Jake Parker, who credibly testified that they recalled having seen Lockridge drive up to Jordan's house on the day in question The testimony of these last named was most persuasive and withstood a searching cross-examination. Lockridge's denial, on the other hand, was unconvincing Accordingly, I credit the testimony of Jordan 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arrived at the terminal, Lockridge called him into his office and stated that he wanted to know about the Union that had been stirred up. When the employee denied any knowledge of the matter, Lockridge told him that he already knew who the ringleaders were and then cautioned Jordan not to lie about his answers or he would be in trouble.6 That same morning in the presence of Lockridge, Bowman told Jesse Blackburn, one of the drivers who had been at Burns Park the day before, that he wanted to know what had transpired at the meeting behind the water tank. When Blackburn suggested that it was improper for a company official to have been there, Bowman told him he was "just looking around." 7 In view of Lockridge's attempt on November 21 to learn the location of the union meeting and the subsequent interrogation of two of the drivers by both Lockridge and Bowman, on the subject matter of that meeting and the extent of employee organization, the presence of these officials at the isolated site where the union gather- ing was held can not be dismissed as a mere coincidence. It is my conclusion and, I find, that, at the time, they were engaged in unlawful surveillance of the employees' union activities and that by reason of such conduct the Respondent violated Section 8 (a) (1) of the Act. 2. The alleged discrimination as to Lackey Lackey was among the first to become active in the Teamsters' campaign and attended both of the organizational meetings. On November 21, he was among the group of drivers to whom Bowman spoke when visiting Burns Park that day. The following morning the company president, as found above, chided Lackey for having anything to do with the Union, announced that henceforward he would have to take any assignment available, and then offered him a run to Warner Robbins Air Force Base in Georgia. Lackey accepted this assignment, but had no others subse- quent to that time for, upon completing this trip, he joined in the picketing which the Teamsters initiated at the Respondent's premises on November 23. The General Counsel contends that for a lengthy period prior to November 22, the Respondent frequently assigned Lackey to its Gadsden-Decatur run in order that Lackey, whose wife was suffering from a prolonged illness, would not be com- pelled to remain away from home overnight and that on November 22, when Bowman announced that he was rescinding this practice, it was because of Lackey's union activities, and, therefore, discriminatory. The employee testified that about 2 years prior to November 22 he had told Bowman that because of his wife's illness he would prefer not to drive any runs which would keep him away from home overnight. According to Lackey, thereafter he sometimes made trips to other points besides Decatur, but more frequently he was assigned to the Gadsden-Decatur run which could be completed in a single day and thus enable him to be home at night. This testimony was corroborated by an exhibit received at the hearing which revealed that out of approximately 142 of his dispatches, 122 were to Decatur, Alabama. During the period covered by this exhibit Lackey completed all runs to Decatur in a single day and was away from Gadsden during his other trips on approximately five different nights. In support of its position that there was no discrimination or threat of discrimination in the case of this employee, the Respondent offered some testimony to the effect that as an irregular route carrier it had no set runs and that none of its drivers was assigned to any specific route. On the other hand, Fred Marler, the Respondent's dispatcher and its principal witness on this issue, conceded that for several months prior to November 22 he had made an effort to give Lackey the Decatur runs "because his wife was in ill health and he wanted to stay as close to home as possible to be with his wife." $ Even Bowman corroborated this testimony. Rather significantly, the Respondent offered no evidence that during the preceding 2 years any driver other than Lackey had been dispatched on a trip from Gadsden to Decatur. On the foregoing facts it is plain that for a considerable period prior to November 22 the Respondent endeavored to give Lackey a specific assignment that worked to his personal advantage. It is equally clear that when Bowman told him "your vacation is over" and that he would have to accept runs as did the other drivers, that this favorable arrangement was threatened, if not at an end. Since Bowman prefaced this announcement by describing Lackey as a "liar" and deriding him for 6 This was denied by Lockridge His denial in rnls connection, however, was no more convincing than his disavowal referred to in the preceding footnote. 7 The findings as to this incident are based on the credited testimony of Blackburn, which, in this regard, was undenied 8 The quotation is from âZarler's testimony. BOWMAN TRANSPORTATION, INC. 395 having gone back on a promise "never to be mixed up in this Union no more," it is my conclusion, and I find, that, in making his statement that the arrangement as to Lackey's assignments was being terminated, Bowman was motivated by his dis- covery on the preceding afternoon that this employee was actively supporting the Teamsters. In view of the fact that the threat to lose or the actual loss of such a preference as Lackey enjoyed at that particular time would seriously affect his working conditions, and the tenure of his employment, Bowman's announcement was coercive and a violation of Section 8 (a) (3) and (1). 3. Welch Gross At the time of his discharge, Gross had been an over-the-road driver for approxi- mately 11 months. He first attended a union meeting on November 21 and at that time signed a card authorizing the Teamsters to represent him. Gross was dismissed on November 22, as mentioned earlier, when President Bowman told him he was "fired for tearing up my trailer." In its answer, the Respondent offered two additional reasons for Gross' termination, viz, failure to file an accident report and falsification of his daily logs. At the hearing, Bowman testified that he dis- charged Gross for all three of these reasons. Gross had had an accident on about October 26 in which his trailer was dam- aged. On returning to the terminal he told Marler, the dispatcher, and Rufus Thacker, the dock foreman, about having had an accident and that he was willing to pay for the damage. The latter suggested that he see Bowman about the matter. This much of Gross' testimony was corroborated by Marler. The latter also testi- fied that he told Gross to make out an accident report and talk to Mr. Bowman about it. Gross credibly testified that no one ever asked him to prepare and file such a report. Pursuant to an order from his superiors, on about November 12, Gross pulled the trailer to a maintenance shop in Birmingham where it was repaired at a cost of approximately $280. It was undisputed that on the morning of November 21, Bowman held a meeting with the drivers at which he expressed concern at the number of recent accidents, and declared that apparently it would be necessary to make the drivers pay for their damages in order to cut the accident rate. After the meeting Gross followed Bowman into his office. According to the employee, at this time he told the company president that he would like to pay some more on the trailer because he did not feel that he had paid enough,9 that Bowman told him that this would be satisfactory and that Gross should make arrangements for doing so with Rufus Thacker, the dock foreman. Gross further testified that after leaving Bowman's office he reported this conversation to Thacker and discussed with him an arrange- ment whereby the Company would deduct a regular amount from each check until the repair bill was satisfied.io Bowman's version of this conversation was somewhat different. According to the latter, Gross followed him into his office, remarked, "I guess that meeting was held for my benefit," and stated that he wanted to pay for the damage to the trailer. Bowman testified that he told the employee the damage should have been paid for before then and that he concluded the meeting with the statement that he would look into the matter and inform Gross of his decision later." According to Bow- man, after Gross left his office, at about noon on November 21, he requested Frank Wofford, secretary-treasurer of the Company and the one in charge of the business records, to bring him Gross' file. Bowman testified that this was the first oppor- tunity he had had to examine Gross' record and that on doing so he discovered that the driver had never filed an insurance report on the accident to the trailer, and, further, that on comparing the insurance observation reports 12 in Gross' file with the logs which he had submitted on those dates it was immediately apparent 9 Gross testified that earlier a fellow employee reported a conversation between Marler and Bowman which led him to believe that his liability for the trailer damage would be satisfied by his not getting paid for the trip to Birmingham. Both Bowman and Marler denied that there was any basis for such an assumption On the other hand, Gross was not paid for his Birmingham run in the normal course of events Not until February 4, 1954, some 10 weeks after his discharge, did he receive a check for the mileage driven on this trip. The Respondent offers no explanation for this long delay. io The Respondent never called Thacker as a witness. 11 Gross testified that, insofar as he could recall, Bowman said nothing about withholding a decision on the matter until a later date. 22 These were submitted to the Company at frequent intervals by the patrols which its insurance carrier provided. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Gross had falsified certain of his logs. According to the company president, at that point he decided to fire the employee. Bowman's testimony about examining the company file on Gross was not contradicted and it was corroborated by Wofford. Plainly, the Company had a well-established rule that all accidents had to be reported to the company office. If the damage exceeded $100, a report had to be filed with the insurance carrier and with the Interstate Commerce Commission. From the record, however, it does not appear that the driver himself had to file any written memorandum to satisfy the reporting requirement. Bowman testi- fied that drivers have "to report [accidents] to the office as soon as they come in" and that if the damage exceeds $100 a report is filed with the Interstate Com- merce Commission. None of the Respondent's witnesses testified that the driver was required to file a written report of an accident in any specific manner and no forms for such reporting were offered in evidence. For this reason and from the testimony of Mr. Bowman it is my conclusion that the company rule as to accidents required no more than that the driver make an oral report to a responsible supervisor or official in time for the latter to notify the insurance company and to prepare the requisite memorandum for the Interstate Commerce Commission.13 On this basis Gross had satisfied the requirement, for his testimony about having reported orally to Marler on the accident was confirmed by the dispatcher while the latter was on the stand. There was much testimony as to the responsibility of the individual driver for keeping an accurate daily log. Several of the company witnesses testified that, in compliance with the regulations of the Interstate Commerce Commission,14 no employee was permitted to drive in excess of 10 hours per day or 60 hours per week, that each driver was required to keep an accurate daily log of the hours driven, and that the penalty for falsification of his log was discharge. On the other hand, Marler could recall no case other than Gross' in which this penalty had been imposed. Bowman testified that, in addition to Gross, one William Hyatt was discharged "partly" for falsifying his log.15 There was testimony from certain witnesses 16 produced by the General Counsel which would tend to prove that some of the drivers not infrequently exceeded the 10-hour limit without reprimand. How- ever, the record contains no convincing evidence that the company officials were either aware of those particular infractions of the 10-hour rule about which some of the witnesses at the hearing testified or that they tacitly condoned the practice. At the hearing the Respondent offered in evidence four driving reports made on Gross by the insurance carrier which indicated that the employee's daily logs sub- mitted on the 4 separate days covered by those reports were false. Gross admitted that the logs in question were inaccurate and that they did not reflect his actual driving time. He also conceded that no company official had instructed him to falsify his logs. According to Bowman he reached his decision to discharge Gross on November 21, without knowledge of any kind of the employee's union interests. He further testified that he had not seen Gross at Burns Park when he and Lockridge visited that point later in the day. This latter testimony, however, is quite implausible for at the time only 8 to 10 employees were in the area and Gross and Lackey were seated together in the same car. In view of Bowman's comments to Lackey the next day, related earlier herein, it is plain that he had noted the presence of that employee at the meeting site the preceding afternoon.17 Consequently, it seems reasonable to conclude, as I do, that on the same occasion Bowman also saw Gross. If Mr. Bowman's testimony is accepted, then it would appear that he arrived at his decision to fire Gross at about noon on November 21, when the Respondent 1S See also , ICC, Motor Carrier Safety Regulations (1952), pp 48-50, wherein the respon- sibility for filing such reports with the commission is placed on the motor carrier rather than the driver. 14lbid pp 50-56 15 Hyatt was called by the General Counsel in rebuttal and testified that he had never been told that log falsification had anything to do with his discharge. Bowman testified that at the time of the discharge lie told Hyatt that he was fired for going to sleep at the wheel and for "running over his hours " Nevertheless , only a short while thereafter Bow- man rehired Hyatt and kept hun as an employee despite two subsequent accidents in which Hyatt was involved . One of these occurred only a few months before Gross' dis- charge and was an accident of almost the same nature as Gross had had. Hyatt, however, was neither dismissed because of it nor did he have to pay for the damage incurred. 1e Blackburn and Jordan 17Lockridge testified that lie and Bowman "spoke to all of them [the employees] when we walked up there." BOWMAN TRANSPORTATION, INC. 397 could not have known about the latter's union activity, immediately upon discovering that the employee had inaccurate logs in his file and had never made out an accident report. For a number of reasons I am forced to the conclusion that Mr. Bowman's testimony cannot be credited 18 Foremost among these was a reaction gathered by the Trial Examiner from the demeanor and bearing of this witness. Then, too, there is the fact that, despite Bowman's statement that he decided upon Gross' dismissal because of his concern about the employee's misleading logs and the lack of an acci- dent report in the file, at the time when Gross was actually dismissed, Bowman never mentioned these alleged reasons. Instead, he declared only that the employee was being discharged because of the accident involving the trailer. Had Bowman de- cided upon this action as a disciplinary warning to the other drivers that accurate logs and accident reports were a necessity it seems strange indeed that the company president did not so state to the assembled employees on the morning of November 22. Instead he began his remarks by denouncing Lackey, Moon, and Jordan for their union activities and declaring that Lackey's domestic problems would no longer be considered in that employee's future assignments. Almost in the same breath he declared that Gross was fired for damaging his trailer. In addition to the foregoing evidence of Bowman's grave displeasure regarding the employees' interest in a union, as found earlier, at about the same time that Bowman was allegedly checking Gross' file, Lockridge, his vice president, was contacting Jordan to discover, if possible, where the union meeting was to be held. Later that day he and Bowman searched for, and found, the site of the organizational meeting where Lackey, Gross, and other em- ployees were observed Not until the Respondent filed its answer to the complaint in Case No. 10-CA-1950 did it allege that Gross was discharged for falsification of his logs and failure to report the accident. Despite Mr. Bowman's testimony at the hearing that these were among the reasons for Gross' dismissal, he did not testify that he had ever so informed the employee Nor did the Respondent offer any inde- pendent evidence that would tend to prove Mr. Bowman's self-serving declaration as to the moment he decided to fire Gross. Plainly, Gross' failure to keep an accurate log might have been an adequate ground for his dismissal. Here, however, it is my conclusion, on the foregoing evidence, that the Respondent's purported concern about Gross' inaccurate logs arose subsequent to his discharge and not before. I am also convinced that there was little substance to Mr. Bowman's assertion that among the other reasons for the employee's dismissal was Gross' failure to report the accident and the damage done to the trailer. As found earlier herein, Gross, in fact, had promptly reported the accident to Marler and it was admitted that, at that time, he had offered to pay for the damage. In addition there was the testimony of Gross, which I now credit, that on November 21, Bowman stated that it would be satisfactory if Gross made arrangements with Thacker, the dock foreman, to pay for the repairs to the trailer. Such a statement would indicate that at that point, inso- far as Bowman was concerned, the incident was closed. Under these circumstances, and on the foregoing facts, it is my conclusion that the motivating cause for Gross' discharge on the morning of November 22 was the knowledge, acquired by the Re- spondent on the preceding afternoon, that Gross was interested in the Teamsters. Although Bowman may have had some cause for dissatisfaction with this employee's work prior to that time, as the Court of Appeals for the Third Circuit observed in a somewhat similar case, "it apparently became intolerable only after he had joined the Union." N. L. R B. v. Electric City Dyeing Co., 178 F 2d 980, 983 (C. A. 3). In view of these findings, it is my conclusion that the real cause for Gross' discharge was his interest in the Teamsters and not the reasons assigned by the Company. Accordingly, I find that by this action the Respondent violated Section 8 (a) (3) and (1) of the Act. There remains the question as to whether Gross disqualified himself for reinstate- ment either by the manner in which he kept his logs prior to his discharge or by any of his picket line activity in the period subsequent thereto. Respondent's officials testified that the penalty for keeping false or inaccurate logs had always been dis- charge. Mr. Bowman, who had been in the trucking business for many years, could testify to only one discharge prior to Gross', that of Hyatt, which he attributed, in part, to false logs. Since this employee was rehired shortly after his discharge, quite 18 Although Mr Bowman testified that he decided upon Gross' discharge at this time, there is no evidence that lie expressed this intention to anyone until the following morning when he notified Gross As an uncommunicated intention, therefore, his testimony as to the moment he arrived at this decision was hardly susceptible to cross-examination. Even if it be assumed that this testimony was not controverted by Bowman's subsequent conduct and that it was uncontradieted, that in itself does not compel its acceptance. N. L. R. B. Y. Howell Chevrolet Co., 204 F. 2d 79, 86 (C. A. 9), affd 346 U. S. 482 ; N. L. R. B. v. Dinion Coil, Inc, 210 F. 2d 484, 486-487 (C. A 2). 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obviously the Respondent itself did not consider the man unfit for further employ- ment because of his failure to keep accurate logs. Consequently, it would not appear that Gross should be denied reinstatement on this ground . At the hearing the Re- spondent endeavored to prove that Gross' picket line conduct was such as to place him beyond the pale of the Act. In this connection the Trial Examiner ruled that any evidence which would tend to prove that Gross was involved in any specific misconduct would be received . The Respondent offered the pleadings filed in the State injunctive proceeding as well as the opinion and the decree of the court which enjoined all picketing for a period of months. Apart from indicating that much violence and misconduct may have occurred during the long strike , neither these records nor the transcript in this case present any evidence that Gross himself participated in any unprotected concerted activity throughout this period. "Un- authorized acts of violence on the part of individual strikers are not chargeable to other Union members in the absence of proof that identifies them as participating in such violence." N. L. R. B. v. Deena Artware, Inc., 198 F. 2d 645, 652 (C. A. 6). In the light of the present record , therefore, it is my conclusion that Gross is qualified for reinstatement. 19 C. Case No. 10-CA-1985; the allegations, the evidence, and conclusions with respect thereto The General Counsel alleged that the Respondent illegally assisted District 50 in violation of Section 8 (a) (2) and (1) of the Act. According to the Company, it recognized District 50 only after a poll of its employees proved that that organiza- tion represented a majority. It denied all allegations of illegal assistance. In May 1954, as noted earlier, the State court injunction entered against the Teamsters was modified so as to permit peaceful picketing. That Union then reestablished its picket line in front of the Company's Gadsden terminal. About May 10, John Wilson 20 and two other drivers called on Bowman. According to Wilson, he told Bowman the employees would like to have a contract and that he had been in touch with an organizer for District 50. A few days later, Wilson and four other employees met with Bowman again. Wilson testified that at this meeting the pay scale which would be acceptable to the drivers was discussed, that the com- mittee urged Bowman to meet with District 50 officials in Birmingham to consider a contract, and that Bowman agreed to call his drivers together for a meeting in Gadsden where a poll could be taken on the question of whether the men cared to have District 50 represent them. About the middle of May, Edward Peyton, an organizer for District 50, met with Bowman, told the latter he represented a majority of the employees, and suggested that they meet in Birmingham the following week. Pursuant to this suggestion, on about May 20 and 21, Bowman and his attorney, Mr. Maurice F. Bishop, met with Peyton and E. E. Hollifield, the latter being Regional Director for District 50, and on 2 successive days discussed the terms of an agreement.21 According to Mr. Hollifield, the parties considered at length the draft of a proposed contract, among the provisions which received the greatest attention being those on wages, seniority, vacations, and grievances and arbitration. Bowman testified that at these meetings he did not ask the representatives of District 50 for any proof of their claim to majority representation but that he discussed a contract with them on the assump- tion that they were authorized to do so. Immediately after these conferences Bowman notified all pickup men, deliverymen, and drivers at his terminals in Gadsden, Chattanooga, Birmingham, Atlanta, and Memphis that they were to meet at the company headquarters in Gadsden on Saturday, May 22. About 75 employees arrived for this meeting.22 Included in the audience were Frank Wofford, secretary-treasurer of the Respondent, and Terminal Managers Ralph Cannon and James Armstrong. Bowman called the meeting to order and then asked that all those who wanted District 50 to represent 19I also find that, in the context of diseriminal on against Lackey and Gross, the inter. rogation of Jordan and Blackburn as to the union meeting by Lockridge and Bowman con- stituted independent violations of Section 8 (a) (1) of the Act. Sears Roebuck & Co., 109 NLRB 632, footnote 2, The Dalton Company, Inc., 109 NLRB 1228 20 Wilson enjoyed a somewhat different status from that of the other drivers. He was a brother-in-law of Bowman and owned two tractor-trailers, one of which he drove for the Company ; the second he leased to the Respondent. 21 Peyton attended only the first day of these negotiations. 92 The Company supplied gas for transportation of those from out-of-town terminals in the same manner that it bore its employees' travel expenses to a regular business meeting. BOWMAN TRANSPORTATION, INC. 399 them to signify by raising their hands. All present did so. He then asked for those opposed to that organization to signify their opposition in the same manner, but no one expressed any dissent. After he had polled the men a number of them ques- tioned him about the type of contract they could anticipate. At the same time authorization cards were distributed among the employees.23 In addition to author- izing District 50 to represent the signer, these cards also authorized a checkoff of union dues from the signatory's wages. According to Walter H. Howran, one of the drivers present, in response to a question from some of the men as to what they would have to do about paying their union dues, Bowman stated that "if they want to pay them today and have to pay them today-he would advance it to them from their next week's paycheck and give them the money." Shortly thereafter, Bowman withdrew from the meeting. Some 63 24 signed cards were then collected from those present. The employees then voted on a slate of officers for a local organiza- tion of District 50 and Wilson was elected president. During a recess in the meeting Wilson met with Peyton and Hollifield in down- town Gadsden where, at about 2:30 p. m., he turned over the signed cards to the latter, the first they had actually received 25 Hollifield then telephoned Bowman to tell him that he wanted to arrange a meeting with the latter's employees. Bow- man suggested that since District 50 represented 51 percent of his men the meeting could be held at the terminal that afternoon. Hollifield accepted and, with his associate Peyton, went out to the company property where he spent some time dis- cussing the objectives of his organization with the employees. Then the representa- tives of District 50 met with Bowman and after a meeting which lasted an hour or two executed a collective-bargaining agreement which, among other things, pro- vided for recognization of District 50 as exclusive bargaining agent of all drivers, pickup men, and deliverymen, contained a union-security clause which gave District 50 a checkoff of union dues, granted the employees slightly better vacation benefits than they had previously enjoyed, established a lower pay scale for the drivers than they were getting currently,26 and had a section on grievances and arbitration. Mr. Bowman testified that since May 22 the Company has been checking dues off the pay of all employees who signed cards and that, in addition, pursuant to an agreement with District 50, initiation fees amounting to $7.50 per member had been taken out of the employees' pay.27 At the hearing the Repondent seemingly endeavored to prove that the contract which emerged from the meeting on May 22 was the result of negotiations had on that day and that it differed materially from the draft which the parties had discussed in Birmingham earlier that week. This, however, did not accord with the testimony of the parties. Thus, Hollifield testified that on May 22, apart from the insertion of a new provision on grievances and arbitration, only two minor changes were made in the draft which had been negotiated in Birmingham. 28 Bowman's testimony was substantially to the same effect. From the record it appears that, aside from the parties, only Wilson had a copy of the draft contract before the meeting. He testified that he took it to the terminal on the morning of May 22 and made it avail- able to the drivers who were arriving for the meeting so that, according to Wilson, it was a subject of conversation among the men before Bowman opened the meeting and polled them on their preference. Concluding Findings In singular contrast with the Teamsters' inability to contact Bowman and present their claim to represent his employees, noted earlier in Case No. 10-CA-1950, very shortly after his brother-in-law, Wilson, indicated that District 50 had an interest ii At the hearing Bowman was asked whether District 50 cards were distributed imme- diately after the polling He answered : "There were some cards around there and employees were signing them." 21 Peyton testified he received this number that afternoon. 21 Wilson testified that prior to Bowman's poll of the employees on May 22, neither he (Wilson) nor anyone else had signed an authorization card. 20 The contract provided for pay at the rate of 6 cents a mile At the time and through- out the strike the Company had been paying 6% cents. Before the picketing began drivers received 534 cents per mile. a'+ He also testified that no money was transmitted to District 50 before it was checked off the employee's pay. 28 One of these changes related to the manner in which the Employer was to remit checked off dues ; the other merely involved the insertion of the word "Union" wherever the words "Local Union" appeared in the original draft. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in representing the drivers, and without any proof of its claim to a majority, the company president began conferring with officials of the latter Union. At this point not a single employee had actually signed a card in District 50, for it was not until after Bowman's poll that any of the drivers signed cards authorizing that Union to represent them. Nevertheless, despite the lack of any such authority, company and District 50 representatives conferred for 2 days in negotiating the details of a con- tract. Then a copy of their draft agreement was given to Wilson and on May 22 all employees at the different terminals were brought to Gadsden at company expense and in the same manner as if they were to attend a regular business meeting. Before Bowman called them to order, Wilson had had an opportunity to show the draft con- tract to the drivers present. With so many manifestations of the Company's pref- erence it was not surprising that, on the show of hands requested by Mr. Bowman, all present voted for District 50. Thereafter the company president answered queries about the terms of an agreement with District 50 and when a question was raised as to the employees' liability for dues in the new organization, Bowman assured his audience that if necessary he would advance the money. Then in rapid succession and within less than 3 hours: (1) The employees signed cards authorizing District 50 to represent them and authorizing the Employer to deduct dues from their wages; (2) a local union was established and Wilson was designated as its president; (3) at Bowman's suggestion, representatives of District 50 held their first meeting with the employees at the company terminal, even though this required that they cross the Teamsters' picket line; and then (4) these same organizers met with Bowman to put the finishing touches on a contract, all the material provisions of which, except one,29 had been negotiated several days before. On these facts, it is my conclusion, and I find, that the Respondent rendered illegal support and assistance to District 50 and interfered with the free choice of employees to join or not join a labor organiza- tion within the meaning of Section 7 and Section 8 (a) (2) and (1) of the Act Knickerbocker Plastic Co., Inc., 96 NLRB 586, 587; Meyer J Welch, Inc, 91 NLRB 1102, 1112-1113; Sears Roebuck ct Company, 110 NLRB 226, Standard Transformer Company, 97 NLRB 669, 677-678, 680-681, enfd 202 F. 2d 846 (C A. 6). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations described in section 1, 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 As it has been found that the Respondent has engaged in and is engaging in un- fair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since I have found that the Respondent discriminated with respect to the hire and tenure of employment of Welch Gross, the customary recommendation would be that the Respondent offer him immediate and full reinstatement. The day after his discharge, however, Gross joined in the Teamsters' picketing of the Respondent's terminal which was still in progress at the time of the hearing. Under these circum- stances, I will recommend that the Respondent offer Gross, upon his application, re- instatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. I shall also recommend that the Re- spondent make him whole for any loss of pay he has suffered or may suffer by reason of the Respondent's refusal, if any, to reinstate him, by payment to him of a sum of money equal to that which he normally would have earned as wages (1) from the time of his discharge until he went on strike and (2) from the date of his applica- tion to return to work until the date of the Respondent's offer of reinstatement Knickerbocker Plastic Co., 104 NLRB 514, 539. The back pay provided for herein shall be computed on a quarterly basis in the manner established by the Board in F. W Woolworth Company, 90 NLRB 289; earnings in one particular quarter shall have no effect on the back-pay liability for any other period 30 ' That on grievances and arbitration 30 As stated above, I am convinced that the Respondent discriminated against Gross because of his participation in union activities and that only in the event it is ordered to take the steps outlined herein will its conduct be remedied. Although I have rejected, for the reasons already stated, the Respondent's contention that Gross was discharged for failure to keep accurate logs in performance of his duties as a driver and although I do BOWMAN TRANSPORTATION, INC. 401 Since I have found that on November 22, the Respondent discriminatorily changed its assignment practice with respect to Joe Lackey , I shall recommend that upon the latter's return to work,31 his future assignments be made on a nondiscriminatory basis and without penalty for his having engaged in concerted and union activities. Since 1 have found that the Respondent assisted and contributed financial and other support to District 50, the effects of this interference, as well as the Respond- ent's continued recognition of District 50 as the bargaining representative of its em- ployees, constitute a continuing obstacle to the free exercise by its employees of their rights to self-organization and to bargain collectively through representatives of their own choosing. I will therefore recommend that the Respondent withhold recognition of District 50 and refrain from dealing with it unless and until it shall have been certified by the Board as the collective -bargaining representative of the Respondent's employees . Having found that the agreement entered into between the Respondent and District 50 has been a means whereby the Respondent has utilized an employer- assisted labor organization to frustrate self-organization and defeat genuine col- lective bargaining by its employees , I will recommend that the Respondent cease giving effect to any agreement between it and District 50, or to any modification or extension thereof. Nothing in this recommendation should be taken , however, to require the Respondent to vary those wage, hour , and other substantive features of its relations with the employees themselves , if any, which the Respondent has estab- lished in performance of this agreement . Further, because of the circumstances in which the checkoff authorizations were secured , as set forth in the findings herein- above, and as a means of restoring the status quo, I shall recommend that the Re- spondent reimburse each employee for the amount of fees and dues which the Com- pany has checked off his wages and paid over to District 50. 1 will also recommend that the Respondent , upon reasonable request, make avail- able to the Board and its agents , all payroll and other records pertinent to an analysis of the amount due as back pay. Since I have found that Respondent, by various acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act and particularly because of the discriminatory discharge of Gross and the unlawful assistance to District 50, I am persuaded that the unfair labor practices committed are related to other unfair labor practices proscribed and that the danger of their commission in the future is to be anticipated from Respondent 's conduct in the past. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act , I will recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act. May Department Stores v. N. L. R. B., 326 U. S. 376, 386-392. CONCLUSIONS OF LAW 1. The Teamsters and District 50 are labor organizations within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of Welch Gross and Joe Lackey, thereby discouraging membership in the Teamsters , Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with the administration of District 50 and contributing support to it, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] not believe , on the basis of the Company 's action with respect to Hyatt, that Gross' failure in this regard renders him manifestly unfit for further employment by the Respondent, I wish to emphasize that in complying with these recommendations the Company is in no manner precluded from enforcing by discharge , or any other disciplinary action, all non- discriminatory rules that are designed to insure the strict adherence of its drivers to the regulations of the Interstate Commerce Commission. 31 At the time of the hearing, Lackey was among those still picketing the Respondent's terminal