Georgia Highway Express, Inc.

GEORGIA HIGHWAY EXPRESS, INC. 705 processes." In all cases, under these circumstances, any action taken by the Board on behalf of a union during its 90-day grace period will be immediately withdrawn or revoked. Turning to the instant case, Board records show that the Petitioner's fiscal year ended on September 30, 1955. The Regional Office, on Au- gust 29, 1955, notified the Petitioner by letter that its compliance with Section 9 (g) would expire on September 30, 1955. On September 1, 1955, the Petitioner filed a certificate of intent with the Regional Office and was granted a 90-day extension beyond the end of its fiscal year, specifically, to December 29, 1955, within which to comply with Sec- tion 9 (g) of the Act. At the end of this 90-day period, however, the Petitioner had not filed with the Board proof of its distribution of its financial statement to its membership. The Petitioner advised the Regional Director that the delay in publishing its financial statement resulted from the fact that its bylaws require that such publicizing take place at a regular union meeting, and the Petitioner's next regu- lar union meeting was not scheduled until approximately 3 weeks after the expiration of its grace period. Unfortunate though the situ- ation may be, the responsibility for this delay-and the responsibility for not having released this information at a prior union meeting- rests entirely upon the Petitioner, and constitutes insufficient basis for the Board to waive its administrative requirements. Experience has proven that the 90-day grace period allowed a union to renew its compliance normally affords adequate time for the preparation and auditing of the required data, for filing it with the Department of Labor, and for distribution of financial statements to all members of the union. In conformance with the policy enunciated above, we shall dismiss the instant petition. [The Board dismissed the petition.] 11 This policy does not apply to unions before the Board in decertification proceedings. The Board will continue Its past practice of placing noncomplying unions on the ballot in decei"/feaaloii cases , as to do otherwisis .would , in effect , immunize a noncomplying union against decertification. Georgia Highway Express, Inc. and Olice L. Rutledge. Case No.. 10-CA-2333. March 7,1956 DECISION AND ORDER On September 21, 1955, Trial Examiner Louis Plost issued his Intermediate Report in the above entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged 115 NLR73 No. 106. 3a0609-56-vol. 115--46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report, accompanied by a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner contained in the Intermediate Report with the following additions and modifications : We ' find, as'did' the Trial Examiner, that the discharge of Olice L. Rutledge by the Respondent on May 28, 1955, was for cause, and not, as alleged by the General Counsel, because Rutledge was a member of a baseball team sponsored by Local No. 728, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, hereinafter called the Union. The Trial Examiner credited the testimony of Respondent's wit- nesses that Rutledge was discharged for unsafe driving. It is undis- puted that Rutledge, although only 1 of 55 drivers, was responsible, in a period of less than 2 months, for nearly 20 percent of Respondent's total liability for property damages caused by all its drivers during the preceding year. The last accident in which Rutledge was involved occurred on May 12, 1955, approximately 2 weeks before his dis- charge.' While there are some apparent discrepancies in the testimony of Respondent's witnesses, the fact remains that Respondent had good reason to discharge Rutledge, and the only explanation for the dis- charge offered by the General Counsel-Rutledge's playing on the "Union's baseball team-seems inherently implausible, particularly as there is no evidence of any efforts by the Union or any other labor organization to organize the Respondent's employees, or of any other unfair labor practices by the Respondent.' Accordingly, we find insufficient basis in the record for reversing the Trial Examiner's action in (1) crediting Respondent's witnesses and (2) refusing to credit 'The Trial , Examiner inadvertently found that Bunn did not return , from his vacation on May 28, ,1955, as planned - This date is corrected to read May 27,.:1955 This Terror doesenot affect•,the validity 'of - -the Trial !Exaduner's conclusions , however , nor oiir' Coii- currence therein. 9 The General Counsel contends that, if Respondent had in fact deemed Rutledge 's acci- (lent record cause for discharge , it would not have waited more than 2 weeks to effect his discharge . However , by the same token , if, as the Geneial Counsel contends , Rutledge was discharged for playing on the Union 's baseball team , it is not clear why Respondent did not discharge him until several weeks after Rutledge fist disclosed this activity to Gilbert, an official of Respondent As found 'by the Trial Examiner , such disclosure was made in the ear ly pai t of May. R Respondent's employees have never been represented by any labor organization, and Rutledge was not a member of any union at the time of his discharge GEORGIA HIGHWAY EXPRESS, INC. 707 Rutledge's testimony that Respondent advised him that he was being discharged because of his connection with the Union's baseball team.4 We find, therefore, that the Respondent did not violate the Act, and we shall dismiss the complaint in this case. [The Board dismissed the complaint.] MEMBER MURDOCK took no part in the consideration of the above Decision and Order. 4llowever, we do not adopt the fiist paragraph of the Trial Examiner's "Concluding Findings" insofar as it implies that it is inciedible , under all circumstances , that an em- ployeF would tell an employee that he was . being discharged because of. union activity. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by Olice L. Rutledge on June 13 , 1955, the General Counsel of the National Labor Relations Board, by the Regional Director for the Tenth Region (Atlanta, Georgia ), issued a complaint dated August 1, 1955, against Georgia Highway Express , Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Copies of the charge and the complaint together with notice of hearing were duly served upon the Respondent andtbe Charging Party. With respect to the unfair labor practices the complaint alleged: On or about May 28, 1955 , the Respondent discharged its employee , Olice L. Rutledge, at its Atlanta , Georgia, terminal because of his activities in behalf of the Union,' and at all times since said date has failed and refused to reinstate the said Rutledge. On August 8, 1955 , the Respondent duly filed an answer in which it averred that Rutledge was discharged for cause and not as the result of any unfair labor practice as alleged. Pursuant to notice a hearing was held before Louis Plost, the duly designated Trial Examiner, at Atlanta, Georgia, on August 25, 1955. The General Counsel and the Respondent were represented by counsel , herein referred to in the names of their ,principals. , The parties participated in the heating and were afforded full opportunity to be heard , to examine and cross-examine witnesses, to introduce evidence bearing upon the issues, to argue orally,, and to file briefs and/or proposed findings of fact and conclusions of law with the Trial Examiner. The Trial Examiner granted an unopposed motion by the Respondent to amend the answer, and reserved ruling on a motion to dismiss the complaint . The motion is disposed of by this report. At the close of the hearing the Trial Examiner granted an unopposed motion by the General Counsel to conform all the pleadings to the proof with respect to spellings, dates, and like variances not substantive. No oral argument was presented . A date was set for the filing of briefs and/or proposed findings and conclusions? A brief has - been received- from the': General Counsel 3 , Upon the entire record , and from his observation of the witnesses , the Trial Examiner makes the following: I The complaint named Local 728, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and ITelpei s of America, AFL, as the Union involved Y The date for filing briefs was extended to September 19 by the Acting Chief Trial Examiner on request of the General Counsel made after the close of the hearing. 9 Motion by the General Counsel to correct the official transcript is granted and the transcript is amended to correct an evident error by inserting the «ords "By Mr Wilson" in parentheses betoie the words ",lMi Bunn " at line 13 on page 74 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges and the answer admits that Georgia Highway Express, Inc., herein called the Respondent, is a Georgia corporation having its principal office and terminal at Atlanta, Georgia, and having terminals at Knoxville and Chattanooga, Tennessee, and Macon and Valdosta, Georgia, where it is engaged as an interstate common carrier of freight by motor vehicles under licenses issued by the Interstate Commerce Commission. During the past 12 months, which is a representative period, the Respondent had a gross revenue from its said business operations in the interstate transportation of freight of more than $1,000,000. 11.-THE ORGANIZATION INVOLVED Local 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, named in the complaint and herein called the Union, is a labor organization as defined in Section 2-(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Alleged Discriminatory Discharge of Olice L. Rutledge Olice L. Rutledge, the Charging Party, testified that he was first employed by the Respondent in October 1951 as a lift operator and continued in this job until Decem- ber 11, 1951, at which time he entered the U. S. Marine Corps. Rutledge returned to the Respondent's employ in January 1954 and again worked as a lift operator until May 1954 when he was transferred to a job as helper on a "city delivery" truck.4 Rutledge testified that his job as helper did not include truckdriving and further testified that in January 1955 he was transferred to driving a "city delivery" truck and continued in the job until his discharge, May 28, 1955. Rutledge further testified that during his entire employment with the Respondent he had not been a member of the Union (Local 728); had "never talked for the Union or any other Union" at the Respondent's plant; had never discussed the Union with any member of the Respondent's management; had never solicited any fellow em- ployee to join the Union, and further that no bargaining relationship existed between any union and the Respondent. J. J. Bunn, the Respondent's vice president, testified without contradiction that the Respondent was not under contract with the Union or any union and had never been involved in any Board proceeding or previous hearing except that more than 8 years before the instant proceeding. an election to determine a bargaining representative, was held among the Respondent's employees at Columbus, Georgia.5 Rutledge testified he joined the Union 1 week before the hearing (August 25, 1955). As found, he was discharged May 28. With respect to any concerted activity on his part in behalf of any union, Rutledge testified: Q. (By General Counsel.) Have you ever engaged in any activities for any union? A. I played baseball for Local 728, Teamsters Union. Q. When did you start playing baseball? A. About the first,of•May, 1955. Rutledge testified that a picture of himself wearing a baseball uniform having the name "Local 728" on the shirt appeared in the May 1955 issue of "Trux." "Trux" is a trade magazine published by the Georgia Motor Trucking Association. The May 1955 issue carries a 1-page article regarding a truckdrivers' ball team. Three-quarters of the page consists of six photographs of players. One of these, the smallest picture (11/4 inches by 1-3/4 inches) is of Rutledge, whose name is also men- tioned once in the accompanying text. Rutledge testified further without contradiction that also early in May 1955, dur- ing a conversation "about baseball" he told Ted Gilbert, the Respondent's secretary, that he was playing baseball on the Local 728 team. According to Rutledge, about 10:30 a. m. on May 28 he was called to the office of A. L. Britton, who is in charge of the Respondent's "pick up and delivery" depart- 4 The record establishes that the Respondent abolished the lift operator job and trans- ferred some of the litt operators to other work The record does not disclose the result of this election GEORGIA HIGHWAY EXPRESS, INC. -709 anent, and discharged. Britton told him that the discharge was being made because "we don't go along with union activity" and also saying he thought it best to dis- charge Rutledge before Mr. Spring, the owner of the Company, read the May issue of "Trux." Rutledge testified as follows: I closed the door and he [Britton] said, "Rutledge, as of now you and I dissolve partnership." I said, "What have I done now?" He said, "Nothing." And the Trux magazine was lying on his desk, pointing at the magazine, I asked, "Was this it?" He said, "Yes, that's it." He said, "You haven't done anything wrong. You do good work and there is nothing wrong with your work, but we don't go along with union activity." Q. Was anything else said? A. I then asked to keep my job and quit playing baseball and he said, "No, as of now you don't work with Georgia Highway Express any more because Mr. Spring," the owner of Georgia Highway, "is going to read the magazine and before he does it is best that I fire you." R. L. Britton, who is in charge of the Respondent's "pick up and delivery" de- partment, testified that Rutledge had been a good employee when working as a lift operator, had been a good helper, but was an "unsafe" driver. Britton testified that on March 25, 1955, Rutledge backed into a parked truck and on May 12, was involved in another accident in which "he ran into the back of a car stopped in the street." Britton testified that the damage claim for the first ac- ^cident had not yet been settled but was estimated by the Respondent's insurance company-to-amount to $100, and that the second accident was settled at a cost of $13.9148,toahe Respondent's insurer. , According to Britton, the Respondent's entire accident liabilities in Atlanta during the year amounted to $1,300; 55 drivers, were employed in Atlanta who drove be- tween 700,000 and 800,000 miles during the year. Britton further testified that sometime in April between the occurrence of the two accidents, he observed Rutledge speeding his car in the Respondent's yard. According to Britton, after Rutledge's first accident he told him "that we couldn't have too many chargeable accidents"; that when he saw Rutledge speeding his car in the yard "I told him we couldn't have that; not to do it any more," and after the second accident he told Rutledge "we couldn't have too many accidents." He ad- mitted Rutledge was not told that-his conduct made him liable for discharge. Rutledge admitted the accidents. He 'testified he was not cautioned after the first accident and that'after the second, Britton told him to rewrite his report remarking "after you make out a few reports you'll be more careful." Although he had testified he cautioned Rutledge after both accidents, on cross- examination Britton testified as follows: Q. (By Mr. Cohen.) In other words, you didn't seek Mr. Rutledge out on either occasion to discuss either accident with him, but you talked with him when he filled his accident report out? A. Well, that is normally the way I do it. Q. Is that how you did it then? A. Yes, sir. Rutledge admitted having been cautioned for speeding in the Respondent's yard but testified this occurred some 7 or 8 months before his discharge, while he was still a helper. He further testified that employee Billy Stubbs was also involved in the incident with him. Stubbs was not called as a witness. 'Britton accounted for the fact that although,the second accident in which Rutledge was involved occurred May 12 and_ the discharge took place May 28, by testimony, that the accident "hadn't been investigated" and further that on May 20, the day his" superior, Vice President J. J. Bunn, left on his vacation, he informed Britton that he (Bunn) had observed Rutledge speeding and told him "to investigate his record and see about' doing something about it." Britton testified further that he checked Rut- ledge's record and: . over the week-end I had mulled over it. To be honest with you, he is a good fellow and I didn't want to fire him. But I thought about it over the week- end and I decided I didn't have any alternative. Britton testified he first wished to talk to Spring or Bunn before making the discharge but Spring was sick and Bunn did not return•on Friday, May 28, as expected and that 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore he discharged Rutledge on Saturday, May 28, without clearing with his supervisors, because he (Britton) was also to leave on vacation on that day. He testified: . I called him in the office and let him go. I told him his services were un- satisfactory. He was an unsafe driver and we didn't need him. We couldn't use that kind of people. Britton denied saying to Rutledge, "we are going to dissolve partnerships" at the same time pointing to the "Trux" magazine on his deck; denied telling Rutledge in effect that the Respondent had nothing against him but was against unions; first testified that he could not recall if Rutledge mentioned the "Trux" magazine but later changed his testimony during his direct examination with respect to the magazine as follows: Q. What did he ask you, do you remember? A. He asked me if the magazine had anything to do with it, and of course I said no. Britton testified he had no knowledge that Rutledge played on the Union's baseball team or that his picture appeared in "Trux" until sometime after the discharge. J. J. Bunn, the Respondent's vice president in charge of operations, testified that "right after" Rutledge began driving a truck for the Respondent he observed him speeding his truck and admonished him the same day. Bunn testified: I told him he was speeding and not to let me catch him speeding because if he does it long enough something would happen. He further testified that on May 19 he again saw Rutledge speeding, that he did not speak to Rutledge but told Britton "I was scared of him, [Rutledge], I didn't trust his driving, pull his record and if it was as bad as I thought it was, do something by the time I get back." According to Bunn the Respondent strives: Not to have no accidents. Every time a boy has an accident I crawl on him [Britton] and he crawls on the boy. It is a pretty stiff rule around there about - accidents. Rutledge denied that Bunn had ever spoken to him regarding his speeding. Bunn testified he had no knowledge of Rutledge's playing baseball until after his discharge.6 Concluding Findings The Trial Examiner deems it incredible that a responsible company official, in, charge of employees, would, while discharging an employee, tell him in effect that, he was being discharged because of his activity on behalf of a union, this activity being evidenced by a picture of the employee in the uniform of a labor union's base- ball team as then appearing in a trade magazine. The Trial Examiner therefore does not credit Rutledge's version of the conversa- tion between Britton and himself at the time of the discharge and accepts Britton's version thereof as the more accurate. The Trial Examiner, being mindful that no unfair labor practice other than the discharge is alleged herein , no evidence or claim of any previous unfair labor prac- tices by the Respondent was offered, no union representation of the Respondent's em- ployees exists, and no effort at union organization of the Respondent 's employees is or was being made, cannot infer that the Respondent discharged an employee for con- certed activity with fellow employees on behalf of the Union or for the union ac- tivity of playing on the Union's baseball team, especially so as the employee was not at the time known to be, and in fact was not, a member of the Union and did not become a member until the week before the hearing, 3 months after his discharge, the discharge and the hearing both taking place during the baseball season. . Moreover the accidents given as th'e cause of Rutledge's -discharge did ,occur. Final Conclusions The Trial Examiner is convinced and finds on the entire record that the General Counsel has not sustained his burden of proof and will therefore recommend that the complaint be dismissed in its entirety. The-Respondent of course had constructive knowledge of Rutledge as it ballplayer from Secretary Gilbert's knowledge. INTERNATIONAL WOODWORKERS OF AMERICA 711 CONCLUSIONS OF LAW 1. The operations of the Respondent, Georgia Highway Express, Inc., occur in commerce, within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (1) and ( 3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] International Woodworkers of America , Local 7-140, and Its Agent, William Harris and Henry J. Firchau, Jr. Case No. 36-CC-38. March 7,1956 DECISION AND ORDER On June 24, 1955, Trial Examiner Howard Myers issued his, Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. ' The Board has considered the Inter- mediate Report, the exceptions and briefs,-and the entire record in, the case,' and hereby adopts the findings, conclusions, and recommen- dations contained in the Intermediate Report, with the following additions and modifications. The complaint alleges in substance that the Respondents, in viola- tion of Section 8 (b) (4) (A) of the Act, induced and encouraged the employees of The Long-Bell Lumber Co. to refuse in the course of their employment to handle Firchau's logs, with an object of forcing or requiring Long-Bell to cease doing business with Firchau. The Trial Examiner found that the credible evidence does not sustain these allegations. Although he did not separate the various essential ele- ments of the complaint, and did not make explicit separate findings as to the insufficiency of the evidence pertaining thereto, we agree with his ultimate conclusion that the General Counsel has failed to sustain the allegations of the complaint. One of the essential allegations of the complaint in this case, as in every other case involving an alleged violation of Section 8 (b) (4) (A) of the Act, is that the Respondent Union or its agents induced 1 The Charging Party's request for oral argument is hereby denied as the record and the exceptions and briefs, in our opinion , adequately present the issues and the positions of the parties. 115 NLRB No. 101.