Hill & Hill Truck Line, Inc.

HILL & HILL TRUCK LINE, INC. 101 Hill & Hill Truck Line , Inc. and General Drivers, Warehouse- men & Helpers Local Union No. 968 .1 Case No. 39-CA-572. March 18, 1958 DECISION AND ORDER On May 15, 1957, Trial Examiner James A. Shaw issued his Inter- mediate Report in this proceeding, 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 Intermediate Report attached hereto. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recom- mended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Bean]. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner, with the following modifications and additions. 1. We find, like the Trial Examiner, that the Respondent violated Section 8 (a) (1) of the Act by its president's statements to Knipe and Dennard announcing an unlawful no-solicitation rule and threat- ening reprisals for union activity. We do not, however, agree with the Trial Examiner's finding of unlawful interrogation in this interview, as the record does not support such a finding. 2. We find, in agreement with the Trial Examiner, that the interro- gation of the grease and tire rack department employees by Foreman Hendrix regarding their union sympathies violated Section 8 (a) (1) of the Act. The Respondent contends that there is no evidence to warrant a finding that Hendrix is a supervisor. We do not agree. The record shows that Hendrix is in sole charge of the grease and tire rack department. He directs five employees in the performance of their duties and has authority to grant time off. We find on these facts that Hendrix responsibly directs the employees under him, using 1 The Board having been notified by the AFL-CIO that it deems the Teamsters ' certifi- cate of affiliation revoked by convention action, the identification of this union is hereby amended. 2 The Intermediate Report incorrectly cites an earlier representation case involving the Respondent as Case No 39-CA-1040. The proper citation is 39-RC-1040. 120 NLRB No. 21. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD independent judgment, and that he is, therefore, a supervisor within the meaning of Section 2 (11) of the Act. 3. The Trial Examiner found that by interrogating grease and tire rack employees concerning Knipe's alleged attempts to coerce them into joining the union by threats of economic reprisals, the Respondent violated Section 8 (a) (1) of the Act. Respondent excepts to this finding. As we are adopting other findings of unlawful interrogation by Respondent, we do not deem it necessary to pass upon this finding. 4. The Trial Examiner found that Respondent violated Section 8 (a) (3) of the Act by discharging R. C. Knipe because of his alleged threats to other employees that they would lose their jobs if they did not join the union. In so doing, he rejected Respondent' s contention that it honestly believed-on the basis of affidavits obtained prior-to the discharge-that Knipe had made the alleged threats. He found further that the alleged threats had not been made. We agree with the Trial Examiner that the discharge of R. C. Knipe violated Section 8 (a) (3) of the Act but rely solely on the following considerations : We assume, without deciding, that the foregoing threats, if made, would have justified the discharge of Knipe, and that the Respondent honestly believed that Knipe had made the threats. Even so, as we find, upon the entire record, that the threats actually were not made, it is immaterial that the Respondent acted on a good-faith belief that they were made.' Accordingly, we find that the Respondent dis- charged Knipe for engaging in protected concerted activities, namely, soliciting employees to join the Union, and thereby violated Section 8 (a) (3) of the Act. 5. Relying on the record evidence, we find, in agreement with the Trial Examiner, that the Respondent violated Section 8 ( a) (3) and (1) of the Act by laying off the pipeyard employees on May 4, 1956. 6. The Trial Examiner found that the Respondent violated Section 8 (a) (3) and (1) of the Act by discharging Wade because of its belief, albeit mistaken, that he was an adherent of the Union. We do not agree. The Respondent discharged Wade a few days after he had been fined for violating a State law limiting truck loads, and the Respond- ent contends that this was the sole reason for the discharge. Assum- ing, as the Trial Examiner found, that similar violations by Wade and others had been condoned in the past by Respondent, the Act does not forbid an employer to discriminate among his employees in taking 8 Salt River Valley Water 77se, s Association , 99 NLRB 849 , enfd. 206 F 2d 325 (C A 9) American Shuffleboard Co, 92 NLRB 1272 , 1274-1275 , enfd 190 F 2d 898 ( C A. 3) See also Ratbsn Bros Footwear, Inc., 99 NLRB 610, enforcement denied 203 F 2d 486 (C. A 5). With due respect for the Court of Appeals for the Fifth Circuit , we nevertheless adhere to our opinion in that case until such time as the Supreme Court may determine the issue HILL & HILL TRUCK LINE, INC. 103 disciplinary action, so long as such discrimination is not for anti- union reasons. In finding that Wade's discharge was for antiunion reasons, the Trial Examiner relied solely on the "Vernor" incident. The only testimony with regard to this incident was that of Ormston, Respond- ent's president. He testified that shortly before and soon after the "Vernor" incident he had conversations with Wade, in which Wade indicated his opposition to unions. This testimony is uncontradicted. As for the "Vernor" incident, itself, it consisted in a report to Ormston, about 2 months before Wade's discharge, that he had been involved in an altercation with another employee in a tavern. Ormston iden- tified the other employee at one point as Vernor and at another point as Harvey, and stated at one point that the dispute was reportedly about the Union and at another point that Wade told him it was over a lady. While Ormston's testimony is susceptible of the construction that the report he received of the incident from Vernor or Harvey indi- cated that Wade took a prounion position, Ormston unequivocally denied that he credited this report, stating that he gave credence rather to Wade's denial that the altercation was about union matters, or that he was prounion. Apart from the Vernor incident there is no evi- dence in the record that Wade was in fact a union adherent, and the Trial Examiner found that he was not. In view of these circumstances, and in view of the fact that the Respondent had a valid reason for discharging Wade-his violation of a State law-and as the General Counsel significantly failed to examine Wade about the "Vernor" incident, we do not believe that the evidence preponderates in favor of a finding that Wade's discharge was for antiunion reasons. Accordingly, we will dismiss the allega- tions of the complaint relating to Wade. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Hill & Hill Truck Line, Inc., its officers, agents, successors and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in General Drivers, Warehouse- men & Helpers Local Union No. 968, or in any other labor organiza- tion of its employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) In any manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the aforesaid or any other labor organization, to bargain collectively through representatives of their own choosing, and to 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition 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 J. D. Singleton, Joe Teel, Clauzell Culpepper, Gorree Kizzee, J. C. Newman, and R. C. Knipe immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in section V of the Intermediate Report. (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due under the terms of this Order. (c) Post at its plants in Houston and Green's Bayou, Texas, copies of the notice attached hereto marked "Appendix." 4 Copies of such notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices will not be altered, defaced, or covered by any other material. (d) 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. IT IS FURTHER ORDERED that the allegations of the complaint, insofar as they allege that the Respondent violated the Act otherwise than as found above be, and they hereby are, dismissed. 4In the event that this Order is enforced by a decree of a United States Court of Ap- peals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX 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, we hereby notify our employees that : WE WILL NOT discourage membership in General Drivers, Ware- housemen & Helpers Local Union No. 968, or any other labor HILL & HILL TRUCK LINE, INC. 105 organization , by discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form labor organizations, to join the aforesaid or any other labor organization, to bargain collectively through repre- sentatives 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 and all such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE-WILL offer J. D. Singleton, Joe Teel, Clauzell Culpepper, Gorree Kizzee, J. C. Newman, and R. C. Knipe immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become, remain , or refrain from be- coming or remaining members of any labor organization , except as that right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to the hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any labor organization. HILL & HILL TRUCK LINE, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE On September 7, 1956, upon charges filed by General Drivers, Warehousemen & Helpers Local Union No. 968, AFL-CIO , herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director of the Sixteenth Region (Fort Worth, Texas ), herein referred to as the General Counsel and the Board respectively , issued a notice of hearing and complaint against Hill & Hill Truck Line, Inc., Houston, Texas, herein called the Respondent , alleging that it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (3) and ( 1) and Section 2 (6) and (7) of the National -Labor Relations Act, as amended, 61 Stat. 136, herein referred to as the Act. With respect to the unfair labor practices the complaint as originally issued and as amended at the hearing herein alleges in substance that : Respondent did, on or 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the respective dates listed after their respective names, discharge the following named employees: - D. A. Willtrout, May 3, 1956. Ezra Champion, July 19, 1956. R. C. Knipe, May 8, 1956. V. L. Wade, July 24, 1956. Dock Knipe, May 15, 1956. On or about May 4, 1956, Respondent'did lay off the following named employees: J. D. Singleton J. C. Newman Joe Teel L. D. McCullough Clauzell Culpepper Cornelius Perry Gorree Kizzee Fred Sampson Eddie Watson Respondent has, since the date of discharge and layoff of the employees named above, failed to, refused to and continues to refuse to, reinstate said employees to their former or substantially equivalent positions or employment, except Eddie Watson, L. D. McCullough, Cornelius Perry, and Fred Sampson have now been reemployed; that Respondent did discharge and refuse to reinstate the employees named above for the reason that they joined or assisted the Union or for the purpose of discouraging membership in the Union; that the Respondent, through its officers, agents, and employees, from on or about May 3, 1956, to date has interrogated its employees concerning their union affiliations ; has threatened and warned its employees to refrain from assisting, becoming members of or remaining members of, the Union; and particularly the Respondent has done the following: (a) on May 3, 1956, Mr. Ormston, generally told the employees substantially as follows: I hear and I have no reason to question you about it, you two boys have been organizing my employees to become union members. I don't see your point in doing it. . But as we are now in this situation we will carry the work on as usual. . . . The pay will be the same rate, but we will tighten up and enforce the company rules more so than we have in the past. We won't overlook small things. Neither will anyone be allowed to draw money in advance on the book to make a trip or borrow money from me. In the future if you get off up the country and get in trouble of any kind, it will not do any good to call me, because I won't put forth any effort to get you out. You will have to get yourself out of trouble. . . One of the company rules-you will not go into the shop where the mechanics are. You will not carry on any union business or activity on the company premises. You will not talk to another employee about union business on the company premises. You will not .get anything signed concerning the union on the company premises. . A driver will not be allowed to talk to his swamper while running down the road about union affairs. (b) on May 4, 1956, Mr. Purvis Box, foreman of the pipe yard crew, interrogated members of his crew about their activities in and feelings about the Union; (c) on May 4, 1956, Mr. Ormston, the Respondent's president and general manager, called in his office employees from the Company's grease and tire rack and interrogated them about their union activities and affiliation; (d) on or about May 5 and 6, the Company in violation of its no-solicitation rule, which prohibited union solicitation on company property, permitted the circulation of an antiunion petition on company time and property; (e) on May 3, 1956, Foreman Hendrix of the grease and tire rack department interrogated employees under his supervision about their union activities; (f) that by the conduct set forth above the Respondent did discriminate, and is discriminating in regard to the hire and tenure or terms or conditions of employment of the employees named above, and did thereby engage in and is engaging in an unfair labor practice within the meaning of Section 8 (a) subsection (3) of the Act; (g) and that by the acts likewise described above and by each of said acts Respondent did interfere with, restrain, and coerce and is interfering with, restraining, and'coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and did thereby engage in and is thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. On or about September 17, 1956, the Respondent filed its answer in which it admitted certain jurisdictional facts, but denied commission of any of the above alleged unfair labor practices. It admitted, however, that it discharged the employees named in the complaint, and that it had laid off certain of its pipe-yard employees. Pursuant to notice a hearing was held in Houston, Texas, on October 23, 24, 25, 26, 29, and 30, 1956, before the duly designated Trial Examiner. The General HILL & HILL TRUCK LINE, INC. 107 Counsel and the Respondent were represented by counsel, and the Charging Union by a lay representative. All parties were afforded full opportunity to be heard, to .examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the hearing the General Counsel moved to conform the pleadings to the proof regarding minor matters, such as names, dates, and the like. The motion was granted by the Trial Examiner. During the course of the hearing numerous stipulations were offered by the parties and accepted by the Trial Examiner. At the close of the General Counsel's case-in-chief, the Respondent moved to dismiss the complaint. The Trial Examiner denied the motion without prejudice to renewing it at the close of the hearing. Consequently, counsel for the Respondent renewed his motion at that time. Ruling thereon was reserved by the Trial Examiner. It is hereby denied in part and granted in part as will be shown in detail hereinafter. At the close of the hearing all parties were advised of their rights to file briefs with the Trial Examiner in support of their respective positions. Thereafter, on or about December 10, 1956, the Trial Examiner received briefs from the General Counsel and the Respondent which have been carefully considered. Upon the entire record in the case, and from the Trial Examiner's observation of the witnesses, he makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At the onset of the hearing the parties stipulated regarding the Respondent's business operations: It is agreed and stipulated by and between the parties that the Respondent is a Texas corporation engaged principally in the hauling, intra and interstate, of oil field materials and supplies. The principal office of the Respondent is 13026 Sarah Lane, in Houston, Texas. It has branch offices or terminals located in Williston, North Dakota, Green's Bayou, Texas, Dallas, Texas, Casper, Wyoming, and Sweet Grass, Montana. During a representative year, and being during the calendar year of 1955, Respondent received for the interstate shipment of merchandise a gross revenue in excess of $200,000. The company concedes it is engaged in commerce within the meaning of the National Labor Relations Act. The Board has previously assumed jurisdiction over the Respondent in Case No. 39-RC-1040. Its Decision and Direction of the Election in the matter was issued on July 12, 1956. Upon all of the foregoing the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED At the hearing herein the parties also stipulated that the Charging Union, General Drivers, Warehousemen & Helpers Local Union No. 968, AFL-CIO, is a labor organization within the meaning of the Act, and the Trial Examiner so finds. III. THE ALLEGED UNFAIR LABOR PRACTICES Foreword The Trial Examiner is convinced that it would be helpful to all concerned to set forth in this section of the report a picture of the Respondent's operations at times material herein. At the time the Union started its organizational efforts among the Respondent's employees, the main offices and terminal of the Respondent were located 4400 Cochran Street in Houston, some 20-odd miles away it operated its pipe yard at Green's Bayou. The record shows that overall supervision of the Respondent's operations was vested in its president, Harold F. Ormston. Under his supervision were the following supervisors, Superintendent Bob Grady, in charge of the various departments, which, from what the Trial Examiner gleans from the record, consisted of all the departments at the terminal and the pipe yard. The fol- lowing supervisors were in charge of the following departments, W. K. Thompson, dock foreman, Ed Richardson, in charge of the oilfield and pipe-yard operations, J. D. Hendrix, foreman of the grease and tire shop, Purvis Frank Box, foreman in charge of the pipe yard at Green Bayou, and R. M. Kimes, office manager. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Trial Examiner interprets the record the Respondent had at times material, herein approximately 150 employees in all departments.' The record shows that on April 28, 1956, two of the Respondent's truckdriyers went to the Union's offices and made inquiry as regards organizing the employees. They were R. C. Knipe and Marvin Dennard . The result of this visit was that:each was given two application-for-membership books to use in their organizational efforts. It must be borne in mind that April 28, 1956, was Saturday. From what the Trial Examiner gleans from the record Knipe and Dennard started their campaign to sign up the employees for the Union at once. They each made a determined effort along this line. This is evidenced by the testimony in the record and in the disposition of the Board in Case No. 39-CA-1040, which the Trial Examiner takes judicial notice of. According to the record in the latter case the Union , in accordance with the provisions of Section 9 of the Act, filed a petition with the Regional Offices of the Sixteenth- Region on or about May 2, 1956, in which it stated that it represented a substantial number of the employees in a unit which it claimed was appropriate. The Respondent was duly served with notice of the Union 's action in this regard. From what the Trial Examiner gleans from the record the Respondent received a copy of the petition for certification of representatives on or about May 3, 1956 . The record clearly shows that it was from this date on that the Respondent engaged in the unfair labor practices alleged in the complaint. At the onset of the hearing President Ormston was called as an adverse witness as if on cross-examination as provided for in Section 43 (b) of the Federal Rules of Procedure . Ormston was questioned about an antiunion petition that was circulated by the Respondent on or about May 5 , 1956, of which more anon. In substance his testimony in this regard was that he knew of the petitions and that it was circu- lated among the employees with his knowledge , but later withdrawn from circulation after he had consulted his lawyer . Throughout his testimony he referred to a "peti- tion" circulated by the Union . He testified that an unknown employee came to him and asked if he had given permission to the Union to circulate a petition for an election. He informed the employee that he had not done so. Upon the entire record the Trial Examiner finds that the circulation of the antiunion petition was in retaliation or answer to the Union 's filing a petition for certification of representa- tives as provided for in Section 9 of the Act-that is-the language of the antiunion petition of which more anon, so indicates to the Trial Examiner. Between the filing of the petition for an election by the Union, which the Trial Examiner finds was received by the Respondent on or about May 3 and 5 , 1956, the circulation of the antiunion petition the Respondent, by President Ormston, and other members of its supervisory staff allegedly engaged in the conduct set forth in the complaint, all of which will be disposed of below. A. The alleged violations of Section 8 (a) (1) of the Act 1. The incident in President Ormston 's-office, May 3, 1956 According to the credited testimony of R. C . Knipe, one of the Respondent's truckdrivers, he, accompanied by Marvin Dennard, also a truckdriver , had a talk with President Ormston on the morning of May 3 , 1956, under the following circumstances. According to Knipe at about 7 a. m. on the morning of May 3 , 1956, he was driving his wife to work and had stopped at a traffic light at North Main and Enid Streets. While so occupied President Ormston came by and pulled in front of his car, and said to him , "I want to see you and Dennard in my office in a little while." Knipe continued on and took his wife to work . He then went to the union hall and saw Business Agent Moreau and informed him of his conversation with Ormston. He also called Dennard and informed him of the above incident. Shortly thereafter he, Dennard, and Moreau drove out to the Respondent's offices. Upon arrival they found the gates to the premises locked. He and Dennard were required to sign in at the gate, a procedure neither of them had been required to do at any time over the years that they had been employed by the Respondent. After entering the premises they proceeded to the dispatcher's office and asked to see Ormston. They were informed he was "up town." After waiting around a short time they returned to the union hall. Around 5 p. in. they returned to the terminal , signed in at the gate, and met Ormston in the yard , who instructed them to go into his office which they did. Shortly thereafter, Ormston arrived. There are several versions of what transpired thereafter, that of Ormston, both on his cross-examination under Rule 43 (b) of the Federal Rules of Procedure, and his testimony both on direct and i See the official transcript of the record, Case No. 39-CA-1040 HILL & HILL TRUCK LINE, INC. 109 cross-examination in the Respondent's case-in-chief, and+that of Knipe , and Dennard in the General Counsel's case-in-chief. After long and careful consideration, the Trial Examiner is convinced that Dennard's version is the most accurate and com- plete. For this reason an excerpt from his testimony is set forth below. In passing, the Trial Examiner desires to point out that in the main there is little difference in the testimony of the three witnesses insofar as material and pertinent matters drawn by the pleadings are concerned . Now to Dennard's version on direct examination: Q. Now, what was the conversation? A. He talked to us about the fact that we were trying to organize his employees to go union . He told us that the business would be carried on as usual and that personally he didn't have any hard feelings toward us, but that in the event that we made any violation of any company rule that he had, that it would be his job to dismiss us from the company, and that we wouldn't receive any recommendation from the company in the event that we were dismissed under those circumstances. He told us that we would be required to obey all the company rules, whether they had been strictly enforced prior to that time or not. He told us that we wouldn't be allowed to draw any money off the books, that that would be stopped. He told me in particular that, I wasn't to go in -the shop, that it was a com- pany rule that the truckdriver was not to go in the shop unless we were seeing the shop foreman about their truck. He told us that we would have to watch the way we made our logs out, abide by the rules and regulations of the Interstate Commerce Commission, abide by the speed laws of the States we traveled in. He told us that we wouldn't carry on any union activities on the company premises or while we were on the payroll of the company. That a driver nor a swamper would be allowed to talk to one another while running down the road on a truck, about union activities. TRIAL EXAMINER: By "swamper" you mean a helper? The WITNESS. Assistant driver, second man. A. (Continuing.) I believe that is about all that he talked to us about at that time. Q. (By Mr. Webster.) Did he publish any rules and regulations with ref- erence to the drivers or, other employees?-A. You mean prior to that time or afterwards? - Q. Well, prior to or after that time was there any list of rules published or put on the bulletin board?-A. At various times there had been letters posted on the bulletin board and attached to our checks. Q. After this time or at the same time that he talked to you was there any publication made of those rules?-A. No, sir, I don't believe there was. I didn't see it if there was. Q. Did he say what would happen to you if you violated any of the rules?-A. He said that we would be dismissed. TRIAL EXAMINER: That is in your conversation that you have testified about. The WITNESS: Yes, sir. At the conclusion of their conference with Ormston, Knipe, and Dennard left the office. As they were leaving the building, they- ran into D. A. Willtrout, a truck- driver, who stopped Dennard-and requested that he accompany him into Ormston's office pursuant to a request from Ormstori that he meet him there. Dennard com- plied with Willtrout's request and accompanied him into Ormston's office. What transpired at the time will be discussed hereinafter for reasons which will be set forth in that section of this Report dealing with Willtrout's alleged discharge by the Respondent in violation of Section 8 (a) (3) and (1) of the Act. Concluding Findings Regarding the Above Incident As indicated above the Trial Examiner credits Dennard's testimony of the above incident and finds that his version of what transpired at the time was a true account thereof. The Trial Examiner also is convinced and finds that Ormston's conduct was violative of Section 8 (a) (1) of the Act for the reasons set forth below. As indicated above the foregoing incidents are alleged in General Counsel's com- plaint, paragraph 9, subsection A, as violative of Section 8 (a) (1) of the Act, and the Trial Examiner has so found. The reasons for his finding in this regard are so obvious that little comment or the citation of numerous Board Decisions and Orders, decisions by the courts of appeals , and the Supreme Court are either necesr sary or desirable. Suffice it to say that both the Board and the courts in numerous 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decisions have so held. Their reasoning in this regard will be briefly discussed below. To begin with let us look again at what transpired in Ormston's office. At the onset of the meeting he accused them in substance of engaging in union activity on the Company's premises, interrogated them regarding their membership in the Union. informed them of the strict enforcement of latent or nonexistent rules and regulations, threatened them and their fellow workers with reprisals if they con- tinued or were successful in their efforts to form or join a labor organization of their own choosing by withholding or abolishing long-time company policies re- garding advancement of moneys either at home or when in transit in the course of their employment. In the considered opinion of the Trial Examiner the fore- going summation of the evidence compels the inferences drawn above that Ormston's conduct was violative of Section 8 (a) (1) of the Act. Let us look at some of the cases in point. Let us first consider the no-solicitation rule on the Company's premises. In the considered opinion of the Trial Examiner Ormston's statement to Knipe and Dennard that they were not to carry on any union business on company premises was for the sole purpose of stopping their organizational efforts in "its tracks," so to speak. The law is well settled that in striking a proper balance between the employees' right to organize and the employer's right to maintain discipline and efficiency in his plant may have a valid plant rule prohibiting solicitation during working hours 2 The law is equally well settled, however, that an otherwise valid no-solicitation rule if initiated and/or promulgated or used for a discriminatory antiunion purpose rather than for legitimate business reasons is an unlawful infringement on employee rights 3 Such is the situation here. Now as to the threat to withdrawal of_ benefits enjoyed by the employees prior to the Union's organizational efforts. Here again the law is well settled that such conduct is in effect a threat of reprisal and hence violative of Section 8 (a) (1) of the Act. Such as for example the Trial Examiner's finding above that President Ormstor_ told Knipe and Dennard in substance that the granting of loans by the Company at home and advancement of funds while in transit on trips for the Respondent, to its employees would be stopped as a result of the Union's organi- zational efforts. Such statements are so clearly violative of the Act that the Trial Examiner here likewise sees no necessity of citing numerous Board and court decisions in support of his finding in this regard.4 The interrogation of Knipe and Dennard regarding their union activities (par- ticularly in the setting thereof in Ormston's private office) is likewise such an overt act of interference with, and restraint and coercion of, the rights guaranteed employees in Section 8 (a) (1) of the Act that here again the undersigned sees no necessity for citing numerous Board and court cases in support of his above finding.5 2. The pipe-yard incident on May 4, 1956 In his complaint the General Counsel alleges that, on May 4, 1956, Purvis Box, foreman of the pipe-yard crew, interrogated members of his crew about their activities in and feelings about the Union. In support of his allegation he offered the testimony of several witnesses. Their testimony will be disposed of below. J. L. Teel, an employee in the pipe yard testified in substance as follows: On May 4, 1956. Foreman Box came to him around noon, and asked him to drive down with him to a little pond near the bayou to check up on a trotline the employees had set out to catch some fish. On the way down to the pond Box asked him if he had heard about the Union. Teel told him he had not. He then asked him what "did I think about the union." Teel replied that he ". . . thought it was nice." Box also asked him if he had ever belonged to a union, and Teel replied that he had not, but had once worked under union conditions on the waterfront. After checking 2In the considered opinion of the Trial Examiner the Respondent's reliance on a no- solicitation rule "goes out the window," so to speak, by its open circulation of an anti- union petition on May 5, 1956 3 See Peyton Parking Co., 49 NLRB 828, 142 F 2d 1009 (C. A. 5) ; N. L R. B. ♦. William Davies Co, 135 F 2d 179, 181 (C. A. 7) cert. denied, 320 U. S. 770 Carter Carburetor Corporation v. N L R. B., 140 F 2d 714, 716, 717 (C. A 8); T>iq Denver Tent & Awning Co., 138 F. 2d 410 (C. A. 10) ; N. L, R. B. v. Essex Wire Corpo= ration, 113 NLRB 344, 245 F. 2d 589 (C A. 9). See for example Brown Truck & Trailer Mtg. Co, Inc., 106 NLRB 999 For a case involving a somewhat similar situation see The Dixie Terminal Company, 102 NLRB 1452, enfd. 210 F. 2d 538 (C. A. 6). HILL & HILL TRUCK LINE, INC. 111 up on the trotline and finding no fish, Teel and Box returned to the pipe yard. That evening around 6 p. m. Box called all of the pipe-yard employees together and told them that they were to be laid off. An excerpt from Teel's testimony follows below: Q. Now, who notified you of a lay-off on that day?-A. Mr. Box. Q. What time was that?-A. Approximately 6:00 o'clock. Q. And tell what occurred at that time.-A. Well, we all was winding up that evening, some ahead of the others, and he told us not to, in winding up, not to leave the little house where we change clothes, that he had something to say to us all. After we gathered down there, he asked we turn in the equipment, hatchets, tape, and so forth we work with. And after that, he told us there was going to be a temporary lay-off; he was going to have to lay us all off temporarily until they get that mess straightened out. And he says he hated it as bad as we did, but the old man signs his check too. Q. Who was he talking to?-A. He was talking to all the hands that worked under him. You want the names possibly? Q. Well, were there, do you know whether any of the hands that worked under him were not laid off?-A. No, sir. All the labor was laid off. Q. How about Mr. Kearney, the checker?-A. He wasn't laid off, but we didn't consider him as a hand, as a laborer. He was a monthly man. Q. Everybody except Box and Kearney then was laid off?-A. Yes, sir. TRIAL EXAMINER: What particular department? Mr. WEBSTER: Pipe yard. For reasons which will be apparent below the Trial Examiner will not discuss or dispose of the layoff in this section of the Report. Teel in his testimony gave a good description of the operations in the pipe yard. For this reason the Trial Examiner feels that another excerpt from his testimony in this particular should be likewise inserted in this report for the benefit of all concerned. Q. (By Mr. Webster.) Now, will you explain to us a little bit how the pipe yard crew or crews operated?-A. Well, the crew consisted of a gin truck operator, and you had two sit-down men for unloading pipe on a rack; you had a rack man and a hooker. The trucks would come in with the pipe from the barge to go on the rack, and the man on the back and the truckdriver would hook the pipe, and you had a man on each end of the rack to sit it down, to guide it, to sit it straight and try to keep it as near in line as he possibly could, and let it roll back on the rack. And the racker would chop the pipe off, and then strip it off with some two-by-four stripping, and that would be all there was in unloading pipe, practically. But loading, we would get two men with a hook and the operator and the rest of the men would kick it up and keep it up from the front of the rack so we could get close to it to load it. Q. How many gin pole truck operators did he have at that time?-A. He had two gin pole operators that was on gin pole operator salaries. He had some men that would operate but they wasn't getting operator's salary. Q. How many gin pole trucks or machines did he have?-A. He had three. Q. Now, besides yourself, who else was a gin pole truck-is it a truck or machine?-A. Well, a truck. Q. Who else besides yourself was an operator?-A. There was Newman. Q. J. C. Newman?-A. J. C. Newman, I believe was his name. Other pertinent testimony of Teel will as indicated above, be disposed of in that section of this Report dealing with the alleged violations of Sections 8 (a) (3) and (1) of the Act. In further support of his position regarding this section of the Report the General Counsel called one J. D. Singleton, an employee in the Respondent 's pipe yard. Singleton testified in substance that sometime on May 4, 1956 , Foreman Box drove up in his car to his working place and asked him to get into his car , which he did. Box then asked him if he had heard about the Union, to which he replied ". . . what union?" Box then asked him what he thought about the Union and he answered that he thought "... it's all right." Singleton's further testimony concerns matters which the Trial Examiner will not discuss at this time except to the extent that he corroborated Teel's testimony as. regards Box's remarks as regards the layoff. The next witness called by the General Counsel in support of this phase of his: case was, Gorree Kizzee, likewise an employee in the Respondent's pipe yard at times material herein. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kizzee testified in substance as regards this particular issue that on the morning ,of May`4, '1956, -Foreman •Box cane to him while he was "gassing up a- truck"'and called him aside and engaged him in conversation about the Union. His testimony was as follows: Q. Now what was said?-A. He asked me what about the union, what did I think about it, and had I worked on a union job . I told him unions was all right if they was run right, and I showed him I had a card with the Longshoreman's union. He didn't say no more. He went on off. Kizzee, as did Singleton , corroborated Teel's testimony regarding Box's remarks at the time of the layoff about 6 p. m. on May 4, 1956. For the same reasons as set forth above the Trial Examiner will refrain from discussing this phase of the case in this section of the Report. The Respondent in its case-in-chief called Foreman Purvis Box as a witness who testified in support of its case-in-chief. Box specifically denied that he had interrogated either Teel, Singleton, or Kizzee about their union activities . In addition he testified that Ormston told h:m on May 4, 1956, to lay off the pipe-yard employees. He further testified in the course of theirr conversation that Ormston never mentioned the Union. He further testified on direct examination that at the time of the layoff on May 4, 1956, of the pipe-yard employees , ". . . I didn't know they was trying to organize a union ." Later on in his testimony he testified in substance that he knew nothing about the Union's organizational efforts until around May 11, 1956, when he was so informed by President Ormston at the time Ormston asked him if any of the boys had signed up for the Union, and stated that if they had there might be a little trouble later on. The Trial Examiner discredits Box's testimony and credits the testimony of Teel, Singleton, and Kizzee that he interrogated them in the mode and manner described above on May 4, 1956. The Trial Examiner saw these witnesses and heard their testimony. Box by his denials that he knew nothing about the Union's organizational efforts is simply incredible in the light of the events that have been descibed above and which will be discussed and appraised again below. Conceding that his official working place was 20-odd miles from the Respondent's offices, it is incredible that he was not in contact from day to day with other of the Respon- dent's staff. Too many admitted things happened on May 3 and 4, 1956, to lend credibility to his testimony For example, witnesses in this proceeding testified without contradiction that Foreman Hendrix, of the grease and tire department, called them from the pipe yard and questioned them about the Union. More- over, Box's version of what was said and done on the evening of May 4, 1956, when the pipe-yard employees were laid off is almost verbatim with that of Teel, except as regards Teel's testimony that the layoff was temporary "until this mess" is cleaned up. The foregoing elements have been major factors in resolving the credibility of the witnesses, Teel, Singleton, Kizzee, and Box. The Trial Examiner is not unmindful of the testimony of L. D. McCullough, one of the alleged 8 (a) (3)'s who was called as a witness for, and on behalf of, the Respondent in its case-in-chief. In his considered opinion his testimony should and will be disposed of below in that section of this Report dealing with the alleged violations of Section 8 (a) (3) and (1) of the Act. Having 'found as above, the Trial Examiner concludes and finds that Box's interrogation of the employees, Teel, Singleton, and Kizzee regarding their union activities and attitudes toward the Union were likewise violative of the Act, in that they interfered with, restrained, and coerced them in their exercise of the rights guaranteed them by Section 7 and hence violative of Section 8 (a) (1) of the Act .6 Here, as above in other sections of this Report, the Trial Examiner sees no necessity of the citation and insertion of numerous and voluminous excerpts from countless pertinent decisions of the Board and the courts in support of his position in this regard. 3. The interrogation of the grease and tire rack employees In the Trial Examiner's considered opinion we now come to the crucial phase of this entire proceeding because it deals with the credibility of the witnesses called by the parties to testify in behalf of their respective positions. Here we deal with many facets of the issues drawn by the pleadings, not only as -regards this sec- 6 See footnote 5, supra HILL & HILL TRUCK LINE, INC. 113 tion of the Report, but what happened thereafter in the alleged violations of Sec- tion 8 (a) (3) and (1) of the Act. This troublesome issue has been before the Trial Examiner before. He ap- proaches the problem in the spirit that should be expected from any trier of the facts. The determination of the credibility of witnesses is always a troublesome and thankless task. But the question must be resolved, and it shall be herein. Let us now turn to the testimony offered by the General Counsel in support of this phase of his case. To begin with all of the witnesses called to testify in this regard were employed by the Respondent in its grease and tire shop. Their fore- man, 'at' times material herein, was J. G. Hendrix. As indicated and found above Hendrix called certain of the employees in his department from the pipe-yard offices of the Respondent on May 3, 1956, and queried them about their knowledge of, and activities on behalf of, the Union. All of which will be discussed and dis- posed of below. Even so, the Trial Examiner feels that the testimony of the General Counsel's witness, Warren Brown, in this regard should be set forth be- low at this time: Q. And after you had signed up, did you tell Mr. Joe Hendrix of Hill & Hill Truck Line, about signing up with the union?-A. Well, I was working. Mr. Joe was in Green's Bayou; he called me over the telephone and he asked me, said, "Brown, if I ask you something would you tell me the truth?" I said, "Sure, if I know it." He said, "Did you boys sign up9" I said, "I did." Q. Now, didn't he in fact ask you something to the effect that he had heard that this union was going around and didn't you know something about ito- A. Yes, he did. Q. That is what he said to you, wasn't it?-A. That's right, over the tele- phone. Q. After he said that, you said yes, sir, you knew something about it, that you had signed up; isn't that correct?-A. That's correct. According to the credible testimony of Harold Richardson, an employee in, the same department, Foreman Hendrix queried the employees about their union activi- ties in the shop. As indicated above the above incidents occurred on May 3, 1956. According to the credible testimony of Brown and Richardson on May 4, 1956, President Ormston came over to the shop and requested that the following employees come over to his office- Harold Richardson, Wilton Richardson, Green Fountain, and Warren Brown. Upon arrival Ormston queried them about their union activities and sympathies. According to Brown, Ormston already knew that R C. Knipe and Marvin Dennard had solicited their membership in the Union. Ormston then asked them to make a statement about their conversations with Knipe and Dennard. All agreed to do so. Even though the affidavit is quite lengthy the Trial Ex- aminer feels that it should be inserted herein for reasons which will be obvious hereinafter. It follows below: STATEMENT Our names are Warren Brown, Harold Richardson, Green Fountain and Wilton Richardson. We have been employed by the Hill & Hill Truck Line, Inc. for quite some time. We are engaged in the grease and tire shop. We are not dissatisfied with our jobs or wages and are perfectly happy and content with our working conditions. During our employment with this firm, we have never been abused. We are perfectly relaxed at all times, and have no fear of being placed in an embarrassing position by any employee or member of the Supervisory Staff while so employed. We are not now, and never have been a member of a Labor Union and it is not our desire to join a Labor Union at this time or any time in the future. We wish to make the following statement which is made upon our free will, and accord and we do so voluntarily: "As well as we can remember, on Tuesday, May 1, 1956, Mr. R. C. Knipe who is employed by the same company we are, as a driver came over to our shop and stated to us, without any solicitation on our part that he wanted us to sign up for the Union. He had in his hand, a petition which he said had 483142--59-vol. 120-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been signed by all of the employees of the Hill & Hill Truck Line, Inc. and he stated that the petition was one to make Hill & Hill Truck Line, Inc. join a Union." We asked Mr. Knipe what the petition was for again, and he stated that the petition was to give us a better job and more money, he further stated that the management did not care if we signed it. "We told him that we did not want to sign the petition, we were satisfied with what our jobs are now." Mr. Knipe informed us that Hill & Hill Truck Line, Inc. would be taken over by the Union in two or three weeks, and he threatened us with this statement: If you do not sign this petition, you will be fired after the Union takes over. After hearing this threat, we thought this matter over and we figured that if not signing the petition would cost us our jobs, we would sign and keep our jobs. We have families to support and we have to work for a living and we feel that since we are Free American Citizens, we are guaranteed the right to work where ever we please and do not think it right for any employee to force us by threats to join a Union against our free will. We did not sign the petition at that time, but later, that same day, a Mr. Dennard, also a driver for the Hill & Hill Truck Line, Inc., approached us with the same petition. He asked for our signatures, we asked Mr. Dennard to let us read the petition before signing it. HE TOLD US THAT HE DID NOT HAVE TIME TO LET US READ IT, THAT HE WAS IN A HURRY. We have read the above statement and it is true to the best of our knowledge and belief and has been made of our own free will and accord and we were all present at the time of the foregoing conversation. (Signed) ------------------------ (Signed) ------------------------ (Harold Richardson ) (Green Fountain ) (Signed) ------------------------ (Signed) ------------------------ (Wilton Richardson ) (Warren Brown.) Before me, the undersigned, a Notary Public in and for the said county and State on this day personally appeared: Harold Richardson, Green Fountain, Wilton Richardson, and Warren Brown. Known to me to be the persons whose names are prescribed to the foregoing instrument and acknowledged to me that they execute the same for the purposes and consideration therein expressed. Subscribed and sworn to me this 4th day of May, 1956. (Signed) [Name is a "scrawl" and not legible], -------------------------------------------------- Notary Public in/for the County of Harris, Houston, Texas. President Ormston admitted that he called the above employees to his office on May 4, 1956. He further testified that in addition to the named employees that the following employees were also present, R. M. Kimes, office manager, and Grady, the general superintendent. Ormston's testimony regarding the mechanics of draft- ing of the statement is most interesting. He testified that in addition to the four colored boys who worked in the grease and tire shop and himself that Mrs. Joan Ray, the stenographer, R. M. Kimes, office manager, and Grady, general superintendent, were also present. As the Trial Examiner understands the record, Ormston led the discussion and completely dominated the conference. He would ask the boys questions and the stenographer would write down what they said in longhand. From time to time corrections were made. At long last the statement was completed. After it was typed up each signed it in the presence of a notary public. An examination of the affidavit shows in the quoted portions thereof that R. C. Knipe came to the tire shop and talked to all four of the affiants about the Union and threatened them with the loss of their jobs unless they signed authorization cards. Yet, the witness, Harold Richardson, testified that he was not present when Knipe talked to Fountain and the other employees, but that he learned of the incident from Warren Brown. Hence, in the considered opinion of the Trial Ex- aminer the affidavit does not set forth the true facts. True, the Trial Examiner admitted it in evidence, but that is not to say that he is required to accept its contents as controlling. It is well settled that admissibility of evidence, either oral or documentary, is one thing, its probative value is another. Consequently the Trial Examiner considers its contents in the light of the record considered as a whole. HILL & HILL TRUCK LINE, INC. 115 Conclusion The Trial Examiner has found above that the employees in the grease and tire rack department were queried on at least two occasions, on or about May 3, 1956, by their foreman, J. G. Hendrix, about their union sympathies and activities. Follow- ing on the heels of his interrogation, so to speak, President Ormston called four of the employees into his office for further interrogation, and took from them the affidavit or statement set forth above. Upon the entire record in the case the Trial Examiner is convinced and finds that the language used in the affidavit was not that of the affiants, but that of Ormston. Many factors have entered into his finding in this regard. In the first place, he observed the witnesses, Brown and Richardson, and heard their testimony. In his considered opinion these employees Were incapable of using the language embodied in the affidavit. In other words, the entire document is not only self-serving, but intimidating on its face. In the considered opinion of the Trial Examiner the testimony of the witness, Harold Rich- ardson, that he was not present when Knipe visited the tire shop, but had received his information secondhand from Brown, compels the above inference as to Ormston's role in the drafting of the affidavit in question. Let us now look at the setting of the meeting in Ormston's office. This is impor- tant. Here we find four colored boys in the office of the president of the Respondent, and Grady, the overall superintendent of the Respondent's operations. The record clearly shows that Ormston dominated the meeting. In such circumstances, the Trial Examiner infers and finds that the employees present gave the answers which the Respondent desired. In view of the foregoing, the Trial Examiner concludes and finds that- the conduct of Foreman J. G. Hendrix and President Ormston was an unlawful interference with the rights of its employees as guaranteed them under Section 7 of the Act, and hence constituted interference with, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. It is so found. The incident was such a glaring violation of the Act that the Trial Examiner sees no necessity for the citation of numerous cases of either the Board or the courts in order to substantiate his finding. 4. The circulation of the antiunion petition The complaint alleges in substance that the Respondent in violation of its own no-solicitation rule permitted the circulation of an antiunion petition on company time and property, on or about May 5 or 6, 1956. The record clearly shows that such a petition was circulated on May 5, 1956. According to President Ormston, the petition was drawn up in his office after a request had been made to him by certain employees for permission to do so. His testimony in this regard is most interesting and in the considered opinion of the Trial Examiner is best told in his own language. An excerpt therefrom follows below: Q. (By Mr. Webster.) Turning to General Counsel's Exhibit 4, the Peti- tion or "Partition" that was circulated around, did Ed Crenshaw or Mr. Kimes or anyone else ask you if it would be permissible for them to do that prior to them circulating this petition?-A. Yes, they did. Q. And which one did or if both of them, so indicate, or if someone else, so indicate. TRIAL EXAMINER: What do you mean by "Partition?" The WITNESS: It's misspelled here. Mr. WEBSTER: It's a petition, but they used the word "partition" in the document, a typographical error, I suppose. A. Mr. Webster, I don't remember which of these men got my permission, but I will say this, they had my permission. I think it was Mr. Crenshaw, but I am not sure. There was a group of four or five, and they were all talking at once, everybody was mad. Q. (By Mr. Webster.) Do you remember who was in the group?-A. I definitely remember Mr. Crenshaw was there, and I think Mr. Pat Johnson was there; I believe this boy Wilson was there. We called him "Catfish" and I am not sure, but I believe Mr. Thompson, the present dock foreman, was there. Q. That is Bill Thompson, or-A. W. K., but it is Bill Thompson. I think there were three or four there at the time. The petition itself is of the utmost importance not only because of its support of the General Counsel's case in this regard, but also because it presents a picture 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Respondent's animus towards the concerted activities of its employees. For this reason the Trial Examiner feels that it likewise should be inserted in this Report. It follows below: Hill & Hill Truck Line, Inc. Oil Field Transportation P. O. Box 2565 Houston 1, Texas May 5, 1956 Memorandum: We, the undersigned, who are employees of the Hill & Hill Truck Line, Inc., Houston, Texas have been contacted by agents of the Teamsters Union to sign a partition to join this said Union . We hereby state that we are satisfied with the working conditions at the Hill & Hill Truck Line , Inc. at the present time and under the present conditions. We further state that we are very definitely opposed to this Union movement as we do not feel that this firm is practical for a Union set up and we feel that all employees in general would suffer. The purpose of this partition is to solicit the wholehearted assistance of the management of this firm in doing everything within their power to oppose this Union movement. We further state that we hereby offer our one-hundred percent cooperation to the management in opposing the Unionism of this firm by the Teamsters Union. [Then follows the names of several employees.] Ormston further testified he ordered the circulation of the petition stopped after he had discussed the matter with his lawyer. An examination of the petition shows that among those signing it were the following supervisory employees : R. M. Kimes, office manager, W. K. Thompson, dock foreman , Bob Grady, general superintendent, and Ed Richardson, foreman. The record shows that though the Respondent had a no-solicitation rule for several years, it had not been strictly enforced until the Union started its organiza- tional drive amongst its employees . Yet in the face of its own rule in this regard, it not only permitted the circulation of the antiunion petition , but sponsored it, and had it typed on its stationery. Conclusion In view of the foregoing, the Trial Examiner is convinced and finds that the Respondent's open circulation of its own sponsored and drafted antiunion petition in the face of its no-solicitation rule, was such an obvious violation of Section 8 (a) (1) of the Act that little if any comment is either necessary or desirable. Suffice it to say that by such conduct it interfered with, restrained and coerced its employees in their exercise of the rights guaranteed them in Section 7 of the Act, and hence violative of Section 8 (a) (1) of the Act. Here again the Trial Examiner sees no necessity to cite numerous Board and court decisions in support of his findings.? It was in the light of the foregoing that the events which we now dispose of below occurred. 5. The alleged violations of Section 8 (a) (3) of the Act (a) The layoff of the pipe-yard employees This section of the Report deals with the allegation in the complaint that on or about May 4, 1956, the Respondent discriminatorily laid off the following employees in the pipe -yard department: J. D. Singleton J. C. Newman Joe Teel L. D. McCullough Clauzell Culpepper Cornelius Perry Gorree Kizzee Fred Sampson Eddie Watson Much of the pertinent testimony pertaining to this section of the Report has been discussed and disposed of above, particularly the interrogation of the witnesses, Teel, Singleton, and Kizzee by Foreman Box on the morning of May 4 , 1956.8 In See supra, subsection ( a) of this section of the Report. s See section 1 (b), supra. HILL & HILL TRUCK LINE, INC. 117 order to avoid repetition the Trial Examiner will not reiterate it herein , except where he deems it necessary to clarify evidence introduced by the parties in support of their respective positions pertinent to the issues raised in this particular section of the Report. According to the credible testimony of the witnesses, Teel, Singleton, Kizzee, and Clauzell Culpepper, Foreman Box called all of the pipe-yard employees together at quitting time, 6:30 p. m., on the evening of May 4, 1956, and told them that they were to be temporarily laid off "-until this mess" is cleared up. Box denied their testimony in this regard . He further testified in substance that as of May 4, 1956, he knew nothing whatever of any -union activity or organizational efforts on behalf of the Union amongst the Respondent 's employees and that it did not come to his knowledge until May 11, 1956, when he was so informed by President Ormston. According to Box in the conversation of May 11, 1956, Ormston asked him if there was any union talk amongst the pipe-yard employees, and went on to say in substance that if there was, there might be trouble later on. The Trial Examiner has found above that Box made the statement regarding the reason for the layoff and has discredited his denial thereof. Moreover, he has given his reasons for discrediting his testimony . Nevertheless, there remains a further factor that has persuaded the Trial Examiner that Box was not a reliable witness. The Trial Examiner has reference to his testimony that he knew nothing whatsoever about certain of the pipe-yard employees having worked from 1 a. m. to 5 a. m. on the morning of May 4, 1956. Yet the record clearly shows that such was the case and the parties so stipulated at the hearing herein as to certain of the employees herein who were so engaged. The record clearly shows that the following employees worked from 1 a. m. to 5 a. m. on the morning of May 4, 1956, and reported back to the yard at 8 a. m., and worked until 6:30 p. m. the same day, Clauzell Culpepper, Dan McCullough, Gorree Kizzee, Joe Teel and the dispatcher, Gene Derryberry. With the exception of Derryberry, all of these employees were under Box's super- vision. While it is true that Box did not report to work until 8 a. m. May 4, 1956, nevertheless, the Trial Examiner is convinced that Box deliberately falsified his testimony in this regard before the Trial Examiner at the hearing herein. In the first place it is not only incredible but unbelievable that a foreman in charge of one of the most important shifts in the Respondent 's pipe-yard operations would be unaware of the facts set forth above. Moreover, he worked with Derryberry through the Respondent's offices in the pipe yard. Yet to testify almost 6 months ,later that he was ignorant of the entire incident is simply unbelievable. Conse- quently, the Trial Examiner again finds that Box was an unreliable witness and credits the testimony of the witnesses Teel, Singleton, Kizzee and Culpepper, and finds that Box made the remarks attributed to him by them that the layoff was temporary "until this mess" is cleaned up. The Trial Examiner further finds that the only reasonable inference that could possibly be drawn from Box's remarks is that the layoff was because his interrogation on that very morning of May 4, 1956, of the witnesses, Singleton, Teel, and Kizzee, indicated to the Respondent that there was union sympathy amongst the pipe-yard employees. In other words the Trial Examiner finds that Box's statement was to the effect that the employees were tem- porarily laid off until this union "mess was cleaned up." Again the remarks must be considered in the light of the fact that Ormston himself had discussed the "layoff" with him sometime during working hours on May 4, 1956. Furthermore, the Trial Examiner discredits Box's testimony that Ormston did not mention the Union during their conversation on May 4, 1956, for the same reasons he has discredited his testi- mony set forth above. , Ormston readily admitted to many incidents violative of the Act that occurred on May 4, 1956, and prior thereto to lend any credence whatsoever to Box's testimony. The Trial Examiner is not unmindful of the testimony of the witnesses, McCul- lough and Perry, who were called by and testified on behalf of the Respondent at the hearing herein . Their testimony in this regard will be discussed and disposed of below. As indicated above, L. D. McCullough is named above in the "Statement of the Case" as one of those discriminatorily laid off from his job in the pipe yard by the Respondent on May 4, 1956. McCullough testified on behalf of the Respondent, at the hearing herein. His testimony in the main concerned the remarks made by Box at the time he laid off the pipe-yard employees. According to McCullough , Box did not say to the employees that the layoff was temporary until "this mess is cleaned up," thereby refuting the testimony of the General Counsel 's witnesses, Teel, Single- ton, Kizzee, and Culpepper. McCullough further testified that on May 4, 1956, he worked his usual hours from 8 a. m. to 4:30 p . m., and emphatically denied that he 1 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had worked from 1 a. in. to 5 a. in. on the morning of May 4, 1956. Regardless of his denial in this regard, the Respondent's records show that he did work along with the others named above from 1 a. in. to 5 a. in. on the morning of May 4, 1956, and the parties so stipulated at the hearing herein. The Trial Examiner observed McCullough while he testified and while he impressed him as a fundamentally honest witness, nevertheless, the Trial Examiner cannot and does not credit his testimony regarding what Foreman Box said at the time of the layoff on May 4, 1956. He was a bit too emphatic and anticipatory in his testimony. In other words, his testi- mony was somewhat similar to his testimony about the hours he worked on May 4, 1956, which has been discussed above. There is nothing unusual in a trier of the facts crediting a portion of a witness' testimony and discrediting other portions there. All triers of fact are faced with this problem on occasion. Juries particularly are faced with it from day to day across the land. The same is true as to the Board and other administrative agencies. In Bruns Coal Co. Inc., the Board said when faced with a similar situation: 9 ... Nevertheless, it does not follow that simply because one does not believe a particular thing to which a witness testified that everything he says must then be rejected. Judge Learned Hand states the rule thus: it It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all. N. L R. B v. Universal Camera Corporation, 179 F. 2d 749, 754 (C. A 2). After due consideration the Trial Examiner is convinced and finds that McCullough 'did not give an accurate account of what transpired at the time of the layoff on the 'evening of May 4, 1956. Consequently, he rejects his testimony and accepts the testimony of Teel, Singleton, Kizzee, and Culpepper as to the remarks Foreman Box made to the pipe-yard employees at the time of the layoff on the evening of May 4, 1956. Now as to the witness, Cornelius Perry. The record shows that he was employed by the Respondent on May 1, 1956, and laid off along with the other pipe-yard employees on May 4, 1956. The Trial Examiner has given careful consideration to his testimony especially as regards the statements of Foreman Box to the employees at the time of the layoff. His testimony was that he could not recall Box making the remarks attributed to him by the witnesses Teel, Singleton, Kizzee, and Culpepper regarding the layoff. In the circumstances and in the light of the record considered as a whole, the Trial Examiner, as in the case of McCullough, accepts the testimony of Teel, Singleton, Kizzee, and Culpepper regarding what transpired at the time of the layoff of the pipe-yard employees on the evening of May 4, 1956. Concluding Findings To say that the solution of this and other issues herein have caused the Trial Examiner no end of concern would be putting it mildly. At first blush, one might be tempted to arrive at the conclusion that the issue in this particular phase of the case is a simple one. The entertainment of such an idea would be a classic example of wishful thinking. On Sunday, May 6, 1956, an emergency arose in the pipe yard and Foreman Box instructed Kearney, a monthly employee, to get hold of the boys who were laid off on Friday night, May 4, 1956, and have them report to work on Monday morning, May 7, 1956. Kearney attempted to do so but could only locate three of the employees, L. D. McCullough, Fred Sampson, and Eddie Watson. The Trial Exam- iner is convinced that an honest effort was made to locate all of the laid-off employees. The record shows that several of the laid-off employees found work elsewhere immediately after the layoff, particularly Teel, Singleton, and Culpepper. Some 2 weeks after the layoff Cornelius Perry was rehired. Gorree Kizzee made at least two attempts to get his job back but was unsuccessful. He was informed by both Kearney and Box at the time he applied for reinstatement that work was still slow, and no men were needed at the time. Documentary evidence introduced at the hearing herein shows that there had been a decline in the Respondent's gross receipts from its pipe-yard operations for several months prior to the layoff on May 4, 1956. The records referred to also show that there had also been a slight decline in the number of barges received and in the number of trucks loaded out. But the same records also show that from the time 9 106 NLRB 590, 600. HILL & HILL TRUCK LINE, INC . - 1 119 of the layoff on May 4, 1956, the complement of employees remained practically static, as shown below: 1956 Minimum Maxi niim May------------------------------------------------------ 13 19 June------ ------------------------------------------------ 9 16 July------------------------------------------------------ 10 12 August---------------------------------------------------- 10 13 September------------------------------------------------- 10 16 As the Trial Examiner interprets the record manufacturers of pipe and other oil- field equipment, such as drill pipe , stocked their products in the Respondent's pipe yard on Green's Bayou, at times material herein . As the Trial Examiner sees it, the solution of the issue herein lies not only in the events that occurred at the pipe yard on May 4, 1956, but likewise in the light of the events that occurred throughout the Union's organizational efforts from Saturday, April 28, 1956, to Friday, May 4, 1956. Let us look at the record and see what occurred during this period. On May 2, 1956, the Union filed a petition pursuant to Section 9 (a) and (C) of the Act with the Board's Subregional Offices in Houston, Texas 10 The Re- spondent received a copy of said petition on or about May 3, 1956. On May 3, 1956, President Ormston called R. C. Knipe and Marvin Dennard to his office and queried them about their union activities, all of which has been described and discussed above. Thereafter followed interrogation of employees by other members of the Respondent's supervisory staff, which likewise has been discussed above. On May 4, 1956, President Ormston called four of the employees in the grease and tire rack department to his office and queried them at some length about their union activities, sympathies, and particularly their contacts with R. C. Knipe and Dennard. At the same time he took the "Statement" referred to above from them. On May 5, 1956, and thereafter the Respondent sponsored, drafted, and circulated the antiunion petition referred to above. In addition, the Trial Examiner has found above that Foreman Box queried certain of the pipe-yard employees regarding their union activities acid sympathies on the morning of May 4, 1956. Again on the morning of May 4, 1956, President Ormston met with Fore- man Box at the pipe yard and arranged for the layoff of all employees in the department at the close of business that day. It was in the light of all of the foregoing that the issue with which we are concerned herein arose. After long and careful consideration and upon the entire record in the case the Trial Examiner is convinced and finds that the pipe-yard employees named above and in the complaint were in fact "temporarily" laid off on May 4, 1956, for the purpose of intimidating and coercing them to abandon the Union, and to re- frain from exercising the rights guaranteed them in Section 7 of the Act. The Trial Examiner is convinced that the layoff was part of a plan to bring home to the employees involved that their jobs were expendable and subject to the whims and caprices of the Respondent. Persuasive to the Trial Examiner in his reasoning is the fact that though the jobs were what is sometimes called "common labor" nevertheless a certain amount of "know-how," so to speak, is required to load and unload various sizes of pipe or oil well casing, and can only be acquired through experience. To be sure the record is silent, but nevertheless it is well settled that a trier of facts cannot ignore what he knows to be a fact. In other words triers of facts are not expected to ignore what they know as men." In reaching the above conclusions the Trial Examiner is convinced that he is not resorting to speculation for the simple reason that the record is rampant with uncontradicted and undenied testimony that clearly shows the respondent 's animus towards the unionization of its employees. Moreover an election amongst the Respondent's employees was in the offing to determine their wishes as to whether they would accept or reject the Union as their bargaining representative. The record clearly shows that this was of grave concern to the Respondent. The Trial Examiner is convinced that the layoff of the pipe-yard employees was to bring "them to heel" so to speak, and to "rid" themselves of any illusions they might have about the Union. The Trial Examiner is further convinced that the layoff was intended to be temporary to bring about the foregoing for reasons stated above. This is evidenced by the fact that the Respondent did in fact make an effort to recall the laid-off employees on May 6, 1956. Regardless of this action however the Respondent to all intents and purposes had violated Section 8 (a) (1) "Case No 39-RC-1040. "The Trial Examiner spent 10 years of his life in the oilfield supply business and is thoroughly familiar with the problem involved herein. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (3) of the Act in the first instance when it laid off the employees on the eve- ning of May 4, 1956, and the Trial Examiner so finds. Having found as above the Trial Examiner will recommend that the employees named in the complaint be ordered restored to their former or substantially equiv- alent jobs in the Respondent's pipe yard, except as to those employees who are named in the complaint as having been already restored to their former jobs. (b) The alleged discriminatory discharge of R. C. Knipe The case as to Knipe presents an anomaly in that the Respondent relies to a great extent on the testimony of two of the General Counsel's winesses, Warren Brown and Harold Richardson, to support it as to its reasons for discharging him. At the onset of the disposition of this issue, the Trial Examiner desires to point out that the most difficult question facing him is that of credibility. It will be obvious as the record unfolds that the testimony regarding Knipe and his activities, upon which the Respondent relies, is a maze of inconsistency and outright contra- diction of important incidents involving Knipe and his activities amongst the em- ployees in the grease and tire shop. As indicated above, the resolution of credibility is always a difficult and thankless task, but resolved such issues must be in the light of the record considered as a whole. Having once resolved the question, it is the duty of the Trial Examiner to make an honest finding and let the chips fall where they may. Such an approach has always been his policy in this regard. R. C. Knipe worked for the Respondent on three different occasions over a period of 8 years. His last employment was for a period of approximately 8 months prior to his discharge on May 8, 1956. That he was considered a good-wbrker is evidenced by Ormston's testimony of what transpired at the meeting in his office on May 3, 1956, with Knipe and Dennard. In the course of this testimony he testified, ". . . R. C. had been with me off and on for the past seven or eight years, not continuous employment, but I worked him off and on. And I liked the boy. He was a good worker. And I just didn't want to see him get in trouble." In passing the Trial Examiner cannot refrain from making the observation that as the record unfolds, it becomes obvious that "trouble" is exactly what Knipe encountered within the next few days. At the hearing herein considerable testimony was adduced by both the General Counsel and the Respondent regarding the meeting between Ormston, Knipe, and Dennard on May 3, 1956. The Trial Examiner has referred to this meeting above and sees no necessity of reiterating what transpired at the time in this section of the Report. Suffice it to say, that in his considered opinion the most important difference is that while Ormston denied at one point in his testimony that he made certain of the statements attributed to him by Knipe and Dennard in their testimony, which is set forth in the complaint, nevertheless, he did in substance admit that certain of the important testimony of Knipe and Dennard was true but explained it as follows- According to Ormston, the remarks about the withdrawal of certain privileges from the employees if the Union was successful in its campaign were based on his knowledge of union contracts which he maintained did not and would' not provide for the many benefits that the employees then enjoyed without a union contract, and that the remarks alleged in the complaint came about as a result of this discussion. At least, that is the interpretation that the Trial Examiner makes and gleans from his testimony. As the Trial Examiner sees it, the Respondent's position is that Knipe was dis- ,,charged because he threatened four employees in the grease and tire shop with the loss of their jobs if they did not sign up for the Union in the event that the Union was certified as the bargaining agent for the Respondent's employees. While it is true that considerable testimony was adduced at the hearing that another factor was involved, the falsification of his log on his last trip for the Respondent to Wichita Falls, Texas, nevertheless, the Respondent has apparently abandoned that defense since no mention is made of this alleged episode in its brief. There the Respondent relies on the alleged threats to the grease and tire rack employees on May 1, 1956. In support of its contention it relies on the decision in N. L. R. B. v. Tennessee Coach Company, 191 F. 2d 546 (C. A. 6). Further, regarding the log incident, the Trial Examiner interrogated counsel for the Respondent about its records concerning the alleged incident He was assured by counsel that the Respondent had such records but oddly enough, the Respondent did not choose to submit them for inspection in its case-in-chief. This was in the face of Knipe's testimony that he made the log out in accordance with the custom amongst the truckdrivers that had prevailed for years without any criticism from the Respondent. Hence as the Trial Examiner see it, the primary reason for the discharge of R. C. Knipe was because of his alleged threats to the four colored boys in the grease and tire rack department. In the circumstances HILL & HILL TRUCK LINE, INC. 121 the Trial Examiner is compelled to reiterate considerable of the testimony set forth above regarding the affidavit that was signed in Ormston's office on May 4, 1956, by the four boys in the grease and tire job, Harold Richardson, Green Fountain, Wilton Richardson, and Warren Brown. The necessity of such procedure will become apparent below. Suffice it to say that it goes to the heart of the issue of credibility of the witnesses who testified at the hearing herein in this regard. As indicated above, four witnesses testified regarding this incident at the hearing herein, Ormston, Brown, Harold Richardson, and R. C. Knipe. Let us now look at the record. The affidavit in question was executed in Ormston's office. Among those present at the time was Bob Grady, the Respondent's superintendent in charge of its overall operations. Let us now look at the affidavit at that portion of it that is in "quotes" which purports to be the statements of the affiants. To begin with, the quoted section states that Knipe had a "petition" in his hand. The record clearly shows that neither Knipe, Dennard, nor any other union adherent carried a petition around with them for the employees to sign. In other words, neither the Union nor any other person prepared such a document for the employees to sign. What Knipe and Dennard had with them was a small book containing application-for-member- ship cards. But on the occasion in question, the record shows, by the testimony of Brown and Knipe, that on May 1, 1956, when Knipe visited the grease and tire shop, he did not even have the cards with him. Moreover, Knipe testified that when he went to the grease and tire shop on the date in question, he saw and talked to Brown alone, and that no other employees were present. His testimony was cor- roborated by Harold Richardson who testified under oath before the Trial Examiner that he was not present at the time, and that all he knew about the incident was what Brown told him. He further testified that Knipe had talked to him before May 1, 1956, in a parking lot across the street from the Respondent's main place of business on Cochran Street. He likewise testified that Knipe said at the time that those employees who did not sign up for the Union might lose their jobs if the Union "got in." Regardless of his testimony of the May 1, 1956, incident, he nevertheless signed the affidavit in Ormston's office and swore under oath before a notary public that the statements contained therein were true. Knipe on the other hand testified that he never at any time threatened any employee when soliciting his membership in the Union. The Trial Examiner saw these witnesses when they testified and observed their demeanor while so engaged. Brown's inconsistent testimony, when viewed in the light of the entire record, is amazing. Before the Trial Examiner he reaffirmed the statement made in the affidavit, that the following were present with him when Knipe called at the grease and tire shop: Harold Richardson, Green Fountain, and Wilson Richardson. The Trial Examiner discredits his testimony in its entirety. While testifying he impressed the Trial Examiner as being afraid of something, whether or not it was an awareness of the falsity of the affidavit to which he swore under oath in Ormston's office, or fear of reprisal either for uttering a false statement or of reprisal from the Respondent, the Trial Examiner is not prepared to say. Otherwise he makes no further comment. Now as to Richardson. He impressed the Trial Examiner as being essentially honest. On the other hand, he, too, as well as Brown, impressed the Trial Examiner as being under a cloud of apprehension, since he, likewise, swore under oath that the contents of the affidavit were true, though knowing full well at the time that the contents thereof were false, for the simple reason he was not even present at the time the above incident occurred on May 1, 1956. He was a grown man and of average intelligence. Then why did he swear to, and sign, something he knew to be false at the time he did so? The answer lies either in his own conscience or for the same reason Brown did so, which the Trial Examiner has commented on above. For the same reasons the Trial Examiner reserves comment. Suffice it to say he discredits that portion of his testimony relating that Knipe threatened him with the loss of his job if he did not sign "up" for the Union. Knipe, on the other hand, testified, as indicated above, that he did not threaten either the employees in the tire shop or any other employee while soliciting their membership in the Union. Knipe impressed the Trial Examiner as an honest and forthright witness. He answered all questions posed him forthrightly in clear and convincing language as a perusal of the record herein will disclose. Knipe further testified that the only employees in the tire shop that he talked to about the Union were Brown and Harold Richardson. This indicates to the Trial Examiner that Green Fountain and Wilton Richardson likewise swore to a false statement at the time they, too, signed the affidavit in Ormston's office. In the circumstances described and discussed above, the Trial Examiner credits Knipe's testimony about making threats to the employees, Brown, Wilton Richardson, Green Fountain, and Harold Richardson, and discredits the testimony of Brown and Harold Richardson. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As indicated above, Knipe was dscharged by the Respondent on May 8, 1956. His testimony is interesting and fully credited by the Trial Examiner. TRIAL EXAMINER: Well, will you have the witness repeat what Mr. Ormston said to him in his office? Mr. WEBSTER: Me or- TRIAL EXAMINER: Ask him. Q. (By Mr. Webster.) At the time Mr. Ormston notified you of your discharge, tell us again just what the conversation was. A. That day, May 8, I come down to the yard to see if I had a trip out. I waited around some three hours, and Mr. Ormston came to the dispatch office and said, "I want to see you in my office." I went on in, and then he called Mr. Grady in. We got on the inside and he said, "Knipe, I can't use you any longer." He said, "I want you to turn in your courtesy cards." And I asked him the reason then. He said, "I understand you have been threatening my employees for not signing union cards; also you violated your last log which you made out." I told him that I hadn't threatened any man for not signing a union card, and about the logs, I didn't know what was wrong with them; I had made them out similar to the way that I had made them out for the last eight years I had been there, off and on. TRIAL EXAMINER: Eight years? The WITNESS: Yes, sir. TRIAL EXAMINER: Proceed. A. (Continuing.) And then I asked him to tell me the men that I had threatened. He said, "I don't know; I don't want to talk about it." So I asked him again what was the violation, what the violation was on the log. He said, "I don't know; besides, they are in the hands of the government. They are investigating them. I don't have them; and furthermore, I don't want to talk about it. Just hand in your courtesy cards." Concluded Findings Regarding the Discharge of R. C. Knipe Having found as above, the Trial Examiner is convinced and finds that R. C. Knipe was discharged by the Respondent on May 8, 1956, because of his activities on behalf of the Charging Union herein amongst the Respondent's employees; and that by so doing it interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act and hence violative of Section 8 (a) (1) and (3) of the Act. In its brief, the counsel for the Respondent points out in effect that if Ormston relied and acted upon the statement of Brown, Harold Richardson, Green Fountain, and Wilton Richardson, and honestly believed what they said about Knipe, then the truth or falsity of their statements is of no moment, and hence no finding of an unfair labor practice could be made against the Respondent for its discharge of Knipe. As the Trial Examiner sees it, the vices of the Respondent' s position are the circumstances under which the affidavit from the above employees was secured. In the first place the setting was in Ormston's office in the presence of the highest eschelon of the Respondent's managerial staff.12 Again, the Trial Examiner has found above that for the most part the affidavit was the voice of Ormston and not that of the affiants. Moreover, the setting was arranged and staged after Foreman Hendrix had interrogated the employees in the grease and tire shop about their union sympathies and activities. In the circumstances the legal proposition urged by counsel for the Respondent regarding the above incidents is in the considered opinion of the Trial Examiner not applicable to the facts found herein. The leading authority is the Ohio Associated Telephone Company case.13 The Trial Examiner heard that case and adopted the same reasoning as advanced by counsel for the Respondent, but under an entirely different factual situation as a perusal of the Board's Decision and Order, and in particular its reversal by the Sixth Circuit Court of Appeals, will reveal. Consequently the Trial Examiner rejects the Respondent's contention. 12 See Dixie Terminal Co v. N. L. R. B., 210 F. 2d 538 (C. A. 6) cert. denied U. S. 347, U. S. 1015. 18 Ohio Associated Telephone Company, 91 NLRB 932, 192 F. 2d 664 (C. A. 6). HILL & HILL TRUCK LINE, INC. 123 (c) The alleged discriminatory discharge of D. A. Willtrout The General Counsel's case as to Willtrout presents an enigma . The record con- tains little if any information about who he was or from whence he came. This is so because the General Counsel did not choose to call him as a witness in his case-in-chief. The Trial Examiner was somewhat perturbed by the state of the record as to Willtrout and queried the General Counsel at the hearing herein and was informed by him that he intended to rely upon the testimony of Marvin Dennard to establish his case as to Willtrout. He did, however, call Willtrout as a witness on rebuttal to testify regarding the incident in Ormston's office which the Trial Examiner finds below was the immediate cause for his discharge. As indicated above Ormston interviewed R. C. Knipe and Marvin Dennard in his office on the afternoon of May 3, 1956. As they were leaving Ormston's office they ran into Willtrout. He stopped Dennard and told 'him that Ormston wanted to see him and asked Dennard to accompany him to Ormston's office. Dennard did so. Dennard's testimony in this regard is clear and to the point. In the con- sidered opinion of the Trial Examiner it should be inserted herein. A pertinent excerpt therefrom follows below: Q. (By Mr. Webster.) Now, following your conversation with Mr. Ormston what occurred?-A. We thanked him and got up and went out of the office into the next room, and Mr. Willtrout came in, and he caught me by the arm as I met him and said, "I want you to go in here to see Mr. Ormston with me." Q. And did you do that?-A. Yes, sir, I went in there, I went in Mr. Ormston's office, stepped just inside the door of his office. Q. And what occurred in there?-A. He asked Mr. Ormston what he wanted to see him about. Mr. Ormston told him that what it was that he wanted to see him about didn't make any difference any more, or something similar to that. Q. Then what occurred?-A. Willtrout pulled a union book of application cards, blanks, out of his shirt or out of his pocket and asked Mr. Ormston would he sign one of those cards to go union with us. Q. What did Mr. Ormston say?-A. He stood up and told him that he would not, that he had stood up under about all he could stand up under that day, that Willtrout was in violation when he asked him to sign that card, and it was his duty to ask him to resign or drag up. Q. What do you mean by "drag up?"-A. That is a form of speaking to cover "quit." Q. Then what was said or done?-A. Willtrout said he didn't know he was in violation. Mr. Ormston told him that ignorance of the law was no excuse, that he might as well go on, that he was through. He turned around and asked me if he wasn't correct on that, and I told him that I didn't know, that I would check and see. And then, Willtrout and I left the office, Mr. Ormston's office. Ormston's testimony as regards the incident is similar to that of Dennard's, except as to what Willtrout did with the book containing the union application-for- membership cards. According to Ormston, Willtrout took the book of cards out of his pocket and shook them in his face and said in substance is this what you want to "see me about?" With this gesture plus the fact that Willtrout had been drinking before he went into his office was enough for Ormston and he fired him forthwith. Willtrout's version of the incident is similar to that of Dennard. For this reason the Trial Examiner sees no necessity of elaborating on his testimony of what trans- pired in Ormston's office, except to point out that he admitted that he had been drinking before he went into the office. The Trial Examiner is convinced that Dennard's testimony of what transpired in Ormston's office is the more likely when considered in the light of all the circum- stances. Consequently the Trial Examiner credits his version and rejects Ormston's testimony particularly that of the card "shaking" incident. Concluding Findings After careful consideration the Trial Examiner is convinced that the Respondent was justified in discharging Willtrout. It must be remembered that the record clearly shows that he had not engaged in any union activity prior to his discharge. Dennard testified that he gave him a book of applications -for-membership cards before he and R. C. Knipe met with Ormston on May 3, 1956. At the time Willtrout told 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dennard that he was going in and ask Ormston to sign a card. According to the record, Dennard did not reply to Willtrout's boast or threat whichever one cares to tcall it. The Trial Examiner finds that Willtrout's conduct was obnoxious to Ormston-not only what he said but also because he had been drinking before he went into his office. In the considered opinion of the Trial Examiner Willtrout's conduct was insulting to Ormston, who acted spontaneously and fired him forthwith, which many another employer would have done under like circumstances. In the circumstances the Trial Examiner is convinced and finds that the Respondent was justified in dis- charging Willtrout. In a recent case, N. L. R. B. v. Huber & Huber Motor Express, Inc.,14 the Fifth Circuit Court of Appeals speaking through Devane, district judge, had this to say: Where a legal ground for discharge existed-as it did in this case-and the employee was discharge on that ground alone, obnoxious conduct on his part, in an activity protected by Section 7 of the Act, will not insulate him from being discharged on such legal ground. [Emphasis supplied ] In view of all of the foregoing the Trial Examiner finds that Willtrout was dis- charged for cause and will recommend that the allegation in the complaint as to him be dismissed in its entirety. (d) The alleged discriminatory discharge of Ezra Champion Here again we run into another situation replete with conflicting testimony and a baffling factual situation which will become obvious below. Ezra Champion was hired by the Respondent on or about July 5, 1956, under the following circumstances: At the time he was hired he was employed by the Sheffield Steel Corporation, Houston, Texas, whose employees were then on strike. As the Trial Examiner sees it even though Champion was on strike at the time he went to the Respondent and asked for a job as a truckdriver, nevertheless he was at least technically still an employee of Sheffield Steel Company. He had worked for Shef- field for 13 years, and at the time of the strike was employed as an assistant heater. Though the record is a bit hazy as to when the strike at Sheffield began, the Trial Examiner is convinced that it started on or about June 30, 1956, and continued in effect until around August 15, 1956. The record shows that the United Steel Workers of America, CIO, was the bargaining representative for the employees at Sheffield. Champion was a member of this union at the time he was hired by the Respondent. Champion testified that the reason he went to Hill & Hill Truck Line, Inc., for a job was because a neighbor told him that they needed truckdrivers. As the Trial Examiner interprets the record Champion was hired by the Respondent under the following circumstances: He went over to the Respondent's office and sought out Bill Thompson the dock foreman, and asked him for a job. Thompson referred him to Ormston. According to Champion he then went over to Ormston's office. Ac- cording to Champion, Ormston asked him if he was a union truckdriver, and said to him in substance that he had had trouble with the Charging Union herein and that he did not want a union man on the job and would not hire a member of the Union. Champion assured him that he was not a member of the Charging Union and never had been. Ormston then sent him back to Thompson, who queried him about his conversation with Ormston, and hired him. Ormston then sent him down to a doctor for a physical examination. From what the Trial Examiner gleans from the record before he was actually hired or put on the Respondent's payroll Champion was interviewed by the Re- spondent's personnel clerk, Mrs. Lorraine Rasmussen. Her job was to interview prospective employees about their past employment and interrogate them about other pertinent matters, in the mode and manner customarily used by personnel people for countless employers across the land. The usual questions were asked Champion by Mrs. Rasmussen, and his response was noted by her on a personnel card.15 One of the questions concerned his .past employment record. The record shows that Champion was most evasive at the interview. He carefully avoided telling Mrs. Rasmussen that he had been employed by Sheffield Steel for the past 13 years, and was at the time of the interviews a striking employee of that company. He also failed to tell her that it had been more than a decade since he had been employed as a truckdriver. In answer to her questions as-to his past employment 14 223 F 2d 748 (C A. 5), setting aside 109 NLRB 295. 15 See Respondent's Exhibit No. 2. HILL & HILL TRUCK LINE, INC. 125 he gave her the name of the Red Arrow and Herrin Truck Lines, for whom he had worked many years before. The personnel card indicates that he failed to give her the dates of such employment. From the Trial Examiner's observation of Champion while he was testifying at the hearing herein such evasiveness was in keeping with his personality. He impressed the Trial Examiner as an evasive, garrulous, and argumentative witness, as a perusal of the record even by a layman will indicate. Champion testified in substance that the reason he did not give a true picture of his employment record was because he was not specifically asked if he had been an employee of Sheffield Steel. A shallow excuse indeed. Maida Belle Martin, employed as a timekeeper by the Respondent testified at the hearing herein that she knew Champion before he was employed by the Respondent, and in fact was a friend and neighbor of the family. She further testified that she saw him on the dock one day and spoke to him. Prior to their meeting, however, she had seen his name on the payroll, but she was not sure he was the man she knew. She and Champion exchanged pleasantries and in the course of their con- versation Champion said to her ". . . but don't mention I am on strike at Sheffield." She replied ". . . that is up to the management. I won't say anything." To which Champion replied, "I would like to stay here and drive a truck." In the considered opinion of the Trial Examiner Mrs. Martin's testimony is further proof that Cham- pion deliberately concealed from the Respondent his years of employment with Sheffield Steel Company. Mrs. Martin impressed the Trial Examiner as an honest and forthright witness. Consequently he credits her testimony regarding her con- versation with Champion in its entirety. Champion did not deny her testimony about the above conversation. His testimony will be set forth below in an appro- priate section of this Report. Champion made one trip for the Respondent as a "swamper" with truckdriver Sanford Bailey to Midland, Texas. Bailey testified at the hearing herein on behalf of the Respondent. According to Bailey he had been employed for a little over a year as a truckdriver for the Respondent. Prior thereto he had approximately 10 years' experience as such. He further testified on direct examination that he had signed an authorization on application-for-membership cards in the Union. His testimony deals primarily with his experience with, and observation of, Champion as his swamper on the trip to Midland, Texas, mentioned above. According to Bailey, Champion was not qualified to drive a truck. The reasons he gave for his opinion are as follows: (1) Champion was too short to even reach the clutch or accelerator on the truck, that is he was too "short legged a man to reach it"; (2) that Champion had not driven a truck for at least 15 years prior to the trip to Midland, Texas; and (3) he was scared to "ride behind him." Nevertheless he testified that regardless of Champion's shortcomings as a truckdriver he was willing to take another chance with him as a swamper, and "give him one more chance," and he so told Thompson, the dock foreman. He did in fact make an effort to get hold of Champion on his next assignment to a trip but was unable to locate him either by telephone or otherwise. Failing to locate Champion, Bailey was assigned another swamper to accompany him on the trip. The new swamper was most satisfactory to Bailey, and he made no further efforts to contact Champion to act as such. The truck that Bailey was in charge of on the trip to Midland, Texas, was diesel powered. Champion's account of the trip to Midland was for the most part phrased in self-praise and in particular a recital of his ability as an all round truckdriver. He did admit, however, that he had never before driven a diesel-powered truck and that it had been "more" than 10 years since he was regularly employed as a truck- driver. He further testified that he called the Respondent on several occasions before his discharge on July 19, 1956, about an assignment to another trip but was advised each time in substance that no work was available for him. On payday, which the Trial Examiner finds was July 19, 1956, he called Foreman Thompson on the telephone and asked him if there was a "little check" there for him. Thompson advised him that there was and suggested that he come by and pick it up. Champion did so. It was at this time that Thompson notified him that his services were no longer needed. His testimony on direct examination follows below. I went down to pick up my check and when I got down there he told me he had news for me, that he was-he asked me if I was a union man. I told him, "No, sir, Mr. Thompson," I said, "I am not a union man and never have been a union truckdriver." And he said, "Well, I have somebody in here that knows you that used to live down the street from you." It was Mrs. Martin, and she said you used to work for Sheffield Steel. I told him that was right, but I had never been a union truckdriver and had never lied to him, and could prove it. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Who was Mrs. Martin?-A. A lady friend of my wife's that lived four or five doors down from us. Q. Was she employed at Hill & Hill?-A. She was employed at Hill & Hill, at that time. Q. Go ahead . Was there any more in the conversation with Mr. Thomp- son?-A. I am going to have to think a minute. I believe Mr. Thompson called her out there and asked her if I was the man that she knew, and she said I was . And Mr. Thompson told me that was all for me, that I couldn't handle their heavy equipment, that I better find something else in my line. In the main the Respondent contends that Champion 's services were dispensed with for two reasons: ( 1) he concealed material facts regarding his past employment at the time he was hired; and (2 ) he was not qualified to handle its equipment. Its principal witness regarding his ability as a truckdriver was Bailey whose testimony has been briefly set forth above. Conclusion After carefully considering the entire record the Trial Examiner is convinced and finds that the Respondent was justified in dispensing with Champion's services. He has found above that Champion deliberately concealed material facts from the Respondent at the time he was hired . From Champion's own admission in his testimony before the Trial Examiner that he was a bit "rusty" insofar as handling the Respondent's equipment is concerned and his further admission that he had never handled diesel-powered equipment before he was hired by the Respondent, plus Bailey's credible testimony about his ability as a truckdriver the Trial Examiner is convinced and finds that the Respondent was completely justified in discharging him. It must be remembered that Champion was no "champion" for the Union. He was not a member thereof at the time he was employed by the Respondent and throughout his testimony, both on direct and cross-examination, he impressed the Trial Examiner as being openly opposed to the Charging Union.16 While the Trial Examiner is convinced that the Respondent may have independ- ently violated Section 8 (a) (1) by Ormston's interrogation of Champion about his union affiliations at the time he was hired, he deems it unnecessary to do so in view of the host of violations of Section 8 (a) (1) of the Act found above. In passing the Trial Examiner desires to point out that he is not unmindful of Ormston's testimony that he did not interview Champion at the time he was hired. The Trial Examiner is convinced that he did, for the simple reason that at the time Ormston's animus toward the Union and all its works was at its peak. In other words such a procedure was in keeping with the times and the many events that occurred between April 28, 1956, and the election that followed the Union's filing its petition for certification of representatives on May 2, 1956. Consequently he credits Champion's account of his interview with Ormston and rejects Ormston's denial thereof. In closing this phase of the case the Trial Examiner , in view of his pertinent findings above regarding Champion 's derelictions, adopts the test laid down in N. L R. B. v. Del E. Webb Construction Company, 196 F. 2d 702, 706 (C. A. 8), . . there can be no violation of this statute [8 (a) (3 )] unless the conduct complained of can have the proximate and predictable effect of encouraging or discharging membership in a labor organization ." So is it here, in view of Champion's disavowal of sympathy for the Charging Union and his inactivity on its behalf. In view of all of the foregoing the Trial Examiner will recommend that the allegation in the complaint as to Ezra Champion be dismissed in its entirety. (e) The alleged discriminatory discharge of Dock Knipe Dock Knipe worked for the Respondent as a truckdriver and swamper for about 4 months prior to his discharge on May 15, 1956. Prior to that tour of duty, he had worked for the Respondent for a few months back in 1947 or 1948. All in all, he had been a truckdriver and swamper for a period of approximately 20 years. Prior to his discharge , he had been a swamper for his nephew, R. C. Knipe, who has been mentioned frequently above. He testified at the hearing herein that on the last trip he made with R. C. Knipe in truck No. 163, the clutch on the truck was slipping. R. C Knipe testified that the trip referred to by Dock Knipe in his testimony was to Wichita Falls, Texas , in truck No. 163. As indicated above, Dock Knipe was 18 At the hearing herein he testified that he had joined the Union about a month before, which the Trial Examiner understands to be a month before the hearing herein. HILL & HILL TRUCK LINE, INC. 127 R. C. Knipe's swamper on that trip. According to R. C. Knipe's credible testimony, -there were several things wrong with the truck when he returned to Houston. He made out a work order for the truck and turned it over to the garage foreman. On the worksheet he listed the following mechanical defects which needed repair: the clutch was slipping, the front end was bad, and the lights were not working properly. This was the last trip R. C. Knipe made for the Respondent before his discharge on May 8, 1956. Dock Knipe was R. C. Knipe's uncle. Dock Knipe testified that the last trip he made for the Respondent prior to his discharge on May 15, 1956, was with Samuel Roberts to Odessa, Texas. He acted as Roberts' swamper on the trip. From what the Trial Examiner gleans from the record, he and Roberts left Houston at around 7:30 or 8 p. in., on or about May 8 or 9, 1956. Before they left Houston, Knipe noticed that the clutch was still slipping. He got out of the cab and went over to the garage to inform the shop foreman that there was something wrong with the clutch. He could not find the foreman so he told one of the mechanics about the clutch. The mechanic told him that they had just adjusted the clutch a day or two before and that it was all right. Nevertheless, according to Knipe, the clutch was still slipping when they pulled out of Houston. He told Roberts about the clutch and that he did not think the ". . . clutch would make it." Roberts drove the truck to Llano, Texas. At this point Roberts crawled back into the sleeper and he (Knipe) took over the truck. He drove it for about 2 hours. When he got about 5 or 6 miles out of Mason, Texas, the clutch was slipping so bad that it would not pull the truck up a mountain. He was then forced to park it on the side of the road. This was at about 1 a. m. Roberts caught a ride into Mason, and he stayed with the truck until around 3 or 3:30 p. in., at which time a mechanic from the Respondent's garage in Houston arrived to fix the clutch. After it was repaired, he and Roberts went on to Odessa and delivered the materials they had on the truck. They got back to Houston sometime on Friday, May 11, 1956. After Knipe got back from Houston he called regularly at the dispatcher's office and inquired as to whether he was assigned to a trip. On Wednesday, May 15, 1956, he called at the dispatcher's office as usual and was advised by the dispatcher, J. B. Scott, that he was laid off. He asked Scott why he had been laid off. Scott told him that he did not know anything about it, except that there was a check in the drawer for him marked "Final." Knipe took the check and walked out of the office. What happened thereafter is amazing to say the least. Knipe left the Respondent's premises without inquiring of Ormston, Superintendent Grady, Fore- man Thompson, or any member of management as to why his services were termi- nated. A few days later, he met Samuel Roberts, who was in charge of truck No. 163, on Knipe's last trip to Odessa, and asked him if he knew why he was laid off. Roberts told him that ". . . all he knew was on account of that clutch." Knipe joined the Union on or about May 1, .1956. Thereafter, he wore a union button on his shirt every day either on or off the job. Other than that, the record is silent regarding any other activity by him on behalf of the Union. The foregoing constitutes the General Counsel's case as to Dock Knipe. The Respondent contends that Knipe.was discharged because he could not handle its heavy equipment satisfactorily. The specific instance that led up to his discharge was his mishandling of the clutch in truck No. 163, on a trip to Odessa, Texas, on or about May 9, 1956, with truckdriver, Samuel Roberts. In support of its con- tention as to Knipe, the Respondent offered the testimony of Ormston, Foreman Ed Richardson, and Samuel Roberts. In passing, the Trial Examiner again desires to point out that in resolving the issue as to Dock Knipe, he is again faced with a most difficult problem regarding the credibility of the witnesses who appeared before him and testified. Quite frankly, the testimony of one of the witnesses called by the Respondent, Ed Richardson, is most annoying to say the least as will be shown below. Let us first examine the testimony of Samuel Roberts who was Knipe's truck- driver on his last trip to Odessa, Texas. According to Roberts, R. C. Knipe told him b.,fore he started out for Odessa, Texas, that the clutch was slipping. Roberts then went to the garage foreman, Wylie Nichols, and discussed the clutch situation with him. Roberts' testimony on direct examination was as follows: A. And I taken the truck and went and loaded and came back, and the shop foreman out there, Wylie Nichols, taken the truck to the yard, and you could put it in gear and let out on the clutch and it would kill the engine. It would not slip if you let up on it and wouldn't ride it. Q. So someone checked the clutch? A. Yes, sir. The shop foreman, Wylie Nichols. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Roberts conferred with Nichols, he and Knipe left for Odessa, Texas. Roberts drove from Houston to Llano, Texas. When they got to Llano, Roberts woke Knipe up and turned the truck over to him. When Knipe took over the truck, Roberts observed that he was "riding" the clutch and that as a result, the truck would not take off. Roberts then told him that ".. . if he would keep his foot off there and not ride the clutch it wouldn't slip." Knipe drove for about 2 hours and when they got about 9 miles out of Brady, Texas, the clutch burned out. What happened thereafter on the trip has been set forth above in the resume of Knipe's testimony and will not be reiterated here. According to Roberts, he drove the truck for about 230 miles from Houston to Llano, Texas, and had no trouble with the clutch, and that Knipe drove it about 50 miles before the clutch burned out. Roberts further testified in substance that he kept his foot off the clutch while he was driving and that as a result, he had no trouble with the clutch, but that Knipe persisted in "riding" the clutch, that is, he kept his foot on it while driving which caused the clutch to slip and eventually to burn it out. When they finally got back to Houston, Roberts went to Foreman Richardson and told him what had happened on the trip to Odessa. In the course of their conversation, Roberts told Richardson that ". . being a driver over the truck, I didn't feel I needed him for a swamper," and that ". . . in my opinion he could not drive a truck." Richardson told him that he would see what "we" could do about it. Richardson's testimony as indicated above is most baffling He testified that he was working for the Respondent at times material and had been since 1947. However, at the time of the hearing, he had left the Respondent and was then working for another company. According to Richardson, he had received a complaint from W. H Bailey, one of the Respondent's truckdrivers, about Knipe. Bailey had Knipe as a swamper on a trip and told him upon his return that he would "refuse" to use him as a swamper because ". . he wasn't safe to drive with." He further testified that Bailey had Dock Knipe as a swamper on one trip which was after R C. Knipe was discharged. Since R. C. Knipe was discharged on May 8, 1956, and Roberts and Knipe left for Odessa, Texas, on either May 8 or 9, 1956, and returned to Houston, Texas, on Friday, May 11, 1956, it would have been impossible for him to have made the trip with Bailey that Richardson referred to in his testi- mony. Moreover, Dock Knipe testified that he never made a trip with W. H. Bailey while he was employed by the Respondent Moreover, the Respondent did not choose to call W. H Bailey as a witness to substantiate Richardson's testimony. Nor was there any showing by the Respondent that he was unavailable as such. For reasons which will be obvious below, the Trial Examiner credits Knipe's testi- mony of the Bailey incident and discredits that of Richardson. Again, Richardson in the course of his testimony said that he had discussed Dock Knipe's discharge with Ormston before he terminated his employment with the Respondent on May 15, 1956. Let us take a look at Ormston's testimony: Q. Now, did you know that Dock Knipe was going to be terminated?- A. No, sir. Q. Before he was terminated?-A. No, sir. Q Did you confer with Mr Richardson prior to the time Mr. Richardson terminated him9-A. I don't believe I did. Q. You don't recall.-A. I don't recall. Those things don't come to my attention every time. In such a state of the record, the Trial Examiner credits Dock Knipe's testimony of the circumstances surrounding his discharge and discredits that of Richardson in its entirety, except to the extent that he was responsible for Knipe's discharge. Conclusion As indicated above, the disposition of the General Counsel's case as to Dock Knipe is a difficult one, particularly in view of the testimony of Roberts, who impressed the Trial Examiner as an honest witness. It is beside the point to infer that since Dock Knipe was R. C. Knipe's uncle, and then infer from that fact, that since R. C. Knipe was discriminatorily discharged it therefore follows that the wrath of the Respondent descended likewise upon Dqck Knipe and hence he, too, was discriminatorily discharged for his activities on behalf of the Union. Such reasoning amounts to no more than mere speculation, which no trier of the fact should resort to. It must be remembered that under the Act the General Counsel must prove his case by a preponderance of the reliable and probative evidence con- sidered in the light of the whole record. This is the problem that now faces the Trial Examiner for disposition. HILL & HILL TRUCK LINE, INC. 129 To be sure, Knipe wore a union button and was a member of the Union, but the record fails to disclose that he engaged in any other union activity . Moreover, other employees wore union buttons, Dennard for example, who was as active on behalf of the Union as R. C. Knipe, and was not discharged for either wearing a union button or his union activities . The Trial Examiner is well aware of the fallacy of such reasoning and the position of the Board and the courts , and he does not make this observation as a predicate for a finding of fact as to Knipe. He merely mentions it to emphasize the difficulty he has had in disposing of this issue. The Trial Examiner has found , above, that Roberts was a credible witness, and has accepted his account of what transpired on the trip to Odessa , Texas. The Trial Examiner is convinced and finds from Roberts' testimony and upon the record as a whole, particularly regarding Knipe's failure to make inquiry as to why he was laid off, that he mishandled the clutch on the trip in question by "riding" it, despite the instructions to the contrary given him by Roberts. Since Roberts was in charge of, and responsible for, the truck, and Knipe was well aware of the Respondent's practice in this regard , it was his duty to heed Roberts' instructions and not "ride" the clutch which the record clearly shows was the cause of the trouble on the trip in question. From all of the foregoing, it is obvious that a serious question of doubt exists as to whether or not Dock Knipe was discharged because of his relationship to R. C. Knipe and his obscure union activities , or because he burned out a clutch on the trip to Odessa with Samuel Roberts. Since the General Counsel must prove his case by a preponderance of the evidence in the light of the whole record, such doubt negates that essential requirement. In such a state of the record , the Trial Examiner is convinced that he has no alternative but to recommend the dismissal of the complaint as to Dock Knipe on the grounds that the General Counsel has failed to show by a preponderance of the evidence in the light of the record considered as a whole that he was discharged because of his union activities . To be sure there is suspicion,, and a host of it, that Dock Knipe was discharged because of his membership in the Union . But suspicion is not evidence and cannot and should not be a predicate for a finding of fact. What the Trial Examiner personally thinks, regarding the case as to Knipe, is of no importance since it is the record as a whole that he must base his findings upon. That alone is, and should be, his only criterion in disposing of the issue herein as to Dock Knipe. In view of all of the foregoing , the Trial Examiner will recommend that the complaint as to Dock Knipe be dismissed in its entirety. (f) The alleged discriminatory discharge of Verdis L. Wade We now come to the last , but by no means the least difficult , issue as regards the alleged discrimmatees-the case of Verdis L. Wade. At the time he was discharged by the Respondent on July 24, 1956 , he had worked for the Respondent for 4 years and 2 months as a truckdriver. At the time he was discharged, he was informed by both Foreman Bill Thompson and President Ormston that he was being discharged because he overloaded his truck . He first talked to Foreman Bill Thompson on the afternoon of July 24, 1956 . Thompson told him in substance that he had been ordered by Ormston to discharge him because he had violated the Company's rules and regulations by not weighing his truck after it was loaded in Houston and Dallas, Texas, on a trip to North Dakota and Montana. Thompson suggested that he see Ormston , which he did . His testimony is important and for this reason, the Trial Examiner is convinced that the following excerpt should be inserted: Q. What was your conversation with Mr. Ormston9-A. Well, I started through the hall to his office there, and he was standing in the hall; and I asked him could I see him a minute . And he said yes. Before we got to his office, he asked me had I voted yet, and I told him not yet. We go in, and I asked him what the trouble was that he was letting me go. He said well, I knew the rules and regulations about the weight; I was supposed to weigh my truck out as I left out. I told him I knew I was overloaded when I left Dallas and they did too. I wouldn't have been, I don't think, if they had taken all the freight off of me they were supposed to take off. I told him about the truck going ahead of me grossing 52,000. Q. What truck was that?-A . Crane. Q. What company?-A. Hill & Hill. 483142-59-vol. 120-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And-A. And I had approximately 2,500 pounds of his freight on me at that time. He was going to North Dakota and I was going to Sweetgrass, Montana. So, he said, well I knew the rules and regulations, said there wasn't a thing he could do about it, it looked like there was somebody else trying to run his business. I told him I had always tried to run it the best I could since I had been there. He said, well, he was sorry. He told me that-I told him I hated to be discharged for something that they had been getting all along and were still getting them. He said well, he was tied up on these rules. I told him I didn't blame him for that. And he told me that because he was laying me off it wasn't no sign I couldn't go back to work there. So, that just about ended our conversation. Wade's testimony on direct examination about the incident referred to above was in substance as follows: On the day he left Houston on the trip, he was first sent over to the Cameron Iron Works to pick up approximately 20,000 pounds of freight. When he got back to the dock, Thompson asked him if he could carry 32,000 pounds more. He said he could. Thompson then proceeded to load approximately 32,000 pounds more on the truck, which now made a total load of 52,000 pounds. Thompson then told him that he was to go by the Respondent's Dallas terminal and pick up another load to be delivered to the Respondent's ter- minal in Casper, Wyoming. Wade then pulled out of Houston at around midnight, July 17, 1956, for Dallas. Before he got to Dallas he knew that he had too much of a load on his truck because it "pulled" heavier than usual. He arrived in Dallas around 9 a. in. When he got to the terminal he saw Berry who at the time was in charge of the Respondent's operations there. Berry asked him how much of a load he had and he told him he had too much. Berry then informed him that he had just talked to Foreman Thompson in Houston who told him to load all freight then at the Dallas terminal consigned to northern Wyoming and Montana, on Wade's truck. Berry also informed Wade that the freight then at the Dallas terminal that was to be put on his truck weighed around 8,000 pounds. Wade told Berry that the additional freight would overload him. Nevertheless, regardless of Wade's warn- ing that the additional 8,000 pounds would overload his truck Berry loaded it on the truck. An excerpt from Wade's testimony follows: So he went ahead and put it on there. I told him it was going to overload me and he said well, he had order to put it on me. So it was put it on. That was about all I could do there. [Emphasis supplied.] Wade's testimony about the above incident stands uncontradicted and undenied in the record. For this and reasons which will be discussed below, it is fully credited by the Trial Examiner. Wade left Dallas at around noon on May 17, 1956. He did not weigh his truck there but proceeded on to Iowa Park, Texas, where he attempted to have it weighed on certified scales which were frequently used by the Respondent's truckdrivers on trips to the north, but he was unable to locate an attendant at the scale house. He then drove on to Vernon, Texas, where he had weighed his truck before at one of -the several certified scales at the grain elevators located there. Since it was late in the evening when he arrived in Vernon, he again was unable to locate any attendants at the elevators to weigh his truck. He then drove on to Amarillo, Texas, where he turned the truck over to Walters, his swamper, and crawled back in the sleeper and went to sleep. When he awoke the next morning in Lamar, Colorado, -he was informed by his swamper that the highway patrol had stopped the truck in Oklahoma and found that it was overloaded. According to Wade, they gave the swamper a ticket for overweight. The record shows that as a result of the above incident, the Respondent was required to pay a fine to the State of Oklahoma, and in addition, purchase an Oklahoma license for the truck. More anon below. As indicated above, Wade got back to Houston, Texas, on or about July 23, and was discharged on July 24, 1956. What transpired at the time of his discharge has been set forth above and will not be reiterated. Suffice it to say, that it is the contention of the Respondent that Wade was discharged because he was arrested and fined in Oklahoma for driving an overloaded truck over its highways. An examination of the record shows that the Respondent contends that the arrest was not for the over gross load, but because it was "over-axled," that is, too much weight on the axles of the truck. Its position in this regard will be discussed below. HILL & HILL TRUCK LINE, INC. 131 At the onset of the hearing herein, the General Counsel called as his first wit- ness, Harold Ormston, the Respondent's president and general manager, as an adverse witness on cross-examination under the provisions of Section 43 (b) of the Federal Rules of Procedure . In the considered opinion of the Trial Examiner, Ormston's testimony on this occasion provides an important link in the chain of circumstances that led up to Wade's discharge by the Respondent on July 24, 1956. In order to understand the Trial Examiner 's reasoning, we must go back to the events that transpired during the first week of May 1956 , and Ormston's reaction thereto. According to Ormston , he put a letter to the employees on the bulletin board shortly after he learned of the Union's attempt to organize his employees . His rea- son for putting the letter on the board is best told in his own language: I put up a letter on the bulletin board to the effect if any employee had any difficulty on or off the job as a result of this thing, if they cared to, they could bring it to my attention . [And in addition invited them to do so.] He explained that by use of the word "thing" he meant the Union 's organizational efforts, and had reference to any ". . . threats or disturbances on or off the job, and the boy brought it to my attention." By the word "boy" in the above excerpt from his testimony , he testified that he meant an employee by the name of Vernor. In passing, the Trial Examiner desires to point out at this time that the "Vernor" incident plays a major part in his ultimate disposition of the case as to Wade. According to Ormston, he had a conversation with Wade about the Union in which Wade denounced it and told him in substance that he was against the unioniza- tion of the Respondent's employees because he did not think that the Union would do the employees any good in view of the personnel setup of the Respondent 's opera- tions. In other words, that he was against the Union and wanted no part of it. Ormston further testified that the "Vernor" incident occurred about 2 weeks after he put the letter, mentioned above, on the bulletin board . The night the incident occurred, Vernor called him on the telephone and told him that he had some words with Wade over -the Union while he was in a "beer joint." The next day, he met with Vernor and took a statement from him about the "fuss" in the "beer joint." In the considered opinion of the Trial Examiner, an excerpt from Ormston's testi- mony should likewise be inserted herein , particularly because it goes to his final determination as to the credibility of Ormston as a witness . An excerpt therefrom follows: Q. (By Mr. Webster. ) Well, what, as best you can recall it, what statement did he make to you about their argument?-A. I believe Mr. Vernor told me that he went there to cash a paycheck and he had his wife with him- TRIAL EXAMINER: In where? The WITNESS: In some beer joint over on Fulton Street. TRIAL EXAMINER: You see, that isn't developed at all. Q. (By Mr. Webster.) Well, proceed.-A. I don't recall whether he-that statement there says he was invited over to the table. I don't believe-it seems to me like it was his wife that was invited over to the table. There was a lady involved in this thing, his wife. Mr. Vernor, I believe he told me Mr. Wade and some other fellow were sitting there drinking. I really don't know just what brought about the argument. I didn't pay too much attention -to it. When people are drinking, I don't take much interest in it. Q. You did take a statement from Mr. Vernor about the matter?-A. I put up a letter on the bulletin board to the effect if any employee had any difficulty on or off the job as a result of this thing, if they cared to, they could bring it to my attention. Q. About "this thing," you mean the union organization?-A. Yes, or threats or disturbances on or off the job, and that is the reason the boy brought it to my attention. I did take a statement. TRIAL EXAMINER: You are referring to Vernor? The WITNESS: I took a statement from Vernor, due to the fact his wife was there and people were drinking in this beer joint, I didn't attach too much importance to it because anything can be said or done. TRIAL EXAMINER: Well, they are licensed here in Houston? The WITNESS: Most of them. A. (Continuing.) So, I really didn't give it much thought. TRIAL EXAMINER: Go ahead. Q. (By Mr. Webster.) Wasn't it to the effect that Vernor was opposed to the union and Wade either struck him or argued with him about his posi- tion?-A. Vernor told me that Wade slapped him. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Because Vernor told him that he was a hundred per cent against the union or words to that effect?-A. I don't know. The reason I didn't pay too much attention to it was because Mr. Wade had previously told me he was strictly non-union and- Q. So when Vernor accused him of being union, you didn't pay too much attention to 0-A. No, sir. After all, Mr. Wade had been there a long time and Vernor hadn't, so I had to take a choice, and so I just believed Mr. Wade. Q. Vernor was pro-union or arguing for the union?-A. I don't know just where that union thing ties in there. You have it in there, but I-I believe that this other fellow invited Vernor over to the table but the other man's name never did come out and I didn't ask Mr. Wade. I think they asked Mrs. Wade-Vernor-over to the table, and that caused the racket. Later on in his testimony, Ormston reversed himself and testified it was not Vernor that called him after all but an employee named Harvey, and that it was Harvey who had the difficulty with Wade, not Vernor. Wade was not interrogated about the above incident either on direct or cross- examination. Consequently, we only have Ormston's account of the incident in the record. When Ormston testified under rule 43 (b) of the Federal Rules of Procedure, he stated in substance that he talked to Wade after the above incident occurred and that Wade told him that the "fight" was not over union matters but over a "lady." Shorly thereafter, Ormston testified that the "boy" who called him over the telephone about the incident in the "beer joint" told him that the fight started over a discussion about the Union. As indicated above, the Respondent contends that Wade was discharged because he violated the Company's rules and regulations regarding overloading his truck and his failure to have it weighed before he got into Oklahoma, which according to Ormston, was a "tough" State. Wade admitted that he did not weigh his truck after he put on the extra 8,000 pounds in Dallas, but that he did attempt to get it weighed in Iowa Park and Vernon, Texas, but was unable to locate anybody at either place to weigh it. For reasons which will be apparent below. Wade further testified that while he was aware of the Respondent' s rules and regu- lations about weighing trucks after they took on additional freight at points such as Dallas, nevertheless, it was a rule that never had been enforced. For example, he testified that on at least two occasions during his course of employment with the Respondent, he himself, had been arrested and fined twice for driving an overloaded truck, and that nothing whatever was said to him about it. He also cited other incidents where certain of the Respondent's truckdrivers were also fined for over- loading their trucks, and nothing was done about it. Moreover, Ormston, himself, testified that on many occasions the Respondent not only knowingly overloaded its trucks, but paid the fines of the drivers when they were caught and arrested for such conduct. Further evidence that the Respondent was not averse to winking its other eye, so to speak, when one of its truckdrivers got away with pulling an overloaded truck over the highways is found in the uncontradicted and undenied testimony of Marvin Dennard, which is fully credited by the Trial Examiner. Den- nard testified that on at least two occasions while he was employed by the Respondent, an extra $10 bill was slipped into his pay envelope as a reward for "getting away" with an overload. The Respondent makes much ado about its policy of strict enforcement of its rules and regulations regarding its requirement that the truckdrivers weigh their trucks before they left Texas for points outside the State. If one may paraphrase the Bard of Avon, the Trial Examiner feels that here the Respondent "doth protest too much, methinks," about its strict enforcement of the rule in question. As the Trial Examiner indicated, at the onset of this Intermediate Report, the ques`ion of credibility of the numerous witnesses that appeared before him and testified at the hearing herein was a most perplexing and troublesome problem. Examples thereof have been set forth above. He now is faced with the same prob- lem regarding the witness, Ormston. An example of his difficulty is found in Ormston's testimony of the circumstances under which he learned of Wade's arrest for driving an overloaded truck. On his examination as an adverse witness by the General Counsel at the hearing herein, he testified as follows: Q. Now, what foreman told you that he failed to weigh?-A. Mr. Thompson. TRIAL EXAMINER: You have his initials? Q. (By Mr. Webster ) Do you have his initials or his first name?-A. Bill, W. L., I believe it is, W. L. Thompson, Bill Thompson. Q. Now, how long had the truck been gone when Mr. Thompson told you this?-A. From Houston? I don't recall, but probably 24 or 30 hours, 24 HILL & HILL TRUCK LINE , INC. 133 hours probably or maybe less than that. The load originated at Dallas, not Houston, part of the load. Q. Yes. Well, where did the trip, where did Wade start driving the truck, in Dallas or Houston? A. In Houston. Q. Did, he pick up any merchandise here in Houston?-A. Yes. He had some in Houston, I believe. Q. Now,-where is W. L. Thompson employed?-A. At Hill & Hill Truck Line. Q. Here in Houston?-A. Yes. Q. Now, you say it was about 24 hours or less after Wade left Houston that Thompson told you this?-A. As near as I can recall. Q. Now, what was it that Thompson told you?-A. He said that Wade got an overweight ticket at Boise City, Oklahoma. Q. And then what did you say?-A. I said, "Well, we will wait until he gets back and we will find out why he got the ticket and see what happens." And we did that. On direct examination, 3 days later, he was queried by counsel for the Respondent on the same issue. An excerpt from his testimony follows: Q. All right, sir. Now, would you relate the circumstances as you were involved in them concerning the discharge of Mr. Wade? A. I don't recall the morning I went to work out there, exactly, where I got my information about Mr. Wade being fined in Boise City, possibly one of the dispatchers told me. TRIAL EXAMINER: That is in Oklahoma? The WITNESS: In Oklahoma, yes, sir. A. (Continuing.) And Mr. Thompson doesn't come to work early. He comes to work late. He works the late shift. I asked him if he had heard about it, but he said no, he hadn't heard about it but he would check up, and he did. I think Mr. Pat Johnson, the truckdriver, passed Mr. Wade going to Houston, Mr. Wade was going north and he, in some manner heard he had been fined. I don't know who told him, possibly the swamper or maybe Mr. Wade. TRIAL EXAMINER: Now, what you are doing here is relating a conversation with an employee named Johnson? The WITNESS: Yes, sir. I stated I think Mr. Pat Johnson is the man that told Mr. Thompson and also told the dispatcher, that told me. I didn't talk to Mr. Johnson. I talked to the dispatcher. From the foregoing, one can readily see the difficulty that has confronted the Trial Examiner in disposing of the numerous issues of the credibility of the witnesses that appeared and testified under oath before him at the hearing herein, both on behalf of the General Counsel and the Respondent. In the circumstances described above, the Trial Examiner credits Wade's testimony of the events that led up to his arrest at Boise City, Oklahoma, for driving an overloaded truck. He also finds that the rule was not only loosely enforced, but at times its violation openly encouraged by the Respondent itself. And that as a result of such laxity it became the custom for the truckdrivers to pull out with their loads when they were instructed to do so by their superiors in Houston, or by the Respondent's terminal manager in Dallas, regardless of the load, as was the case here. The Trial Examiner likewise credits Wade's testimony that he attempted to weigh his truck at Iowa Park and Vernon, Texas, on the trip involved herein. Conclusion Having found as above, the Trial Examiner is convinced that Wade was discharged by the Respondent not because he was arrested at Boise City, Oklahoma, for driving an overloaded truck, but because Ormston was convinced by the Vernor incident that Wade had changed his position regarding the Union, and was in reality at times material herein a supporter of the Union. There are many reasons for the Trial Examiner's conclusion, particularly (1) the testimony of the source of the Respondent's knowledge of Wade's arrest; (2) the host of conflicting testimony of the Respondent's enforcement of its rules and regulations relative to the responsibility of its truckdrivers to weigh their trucks; and (3) the conflicting testimony of the "Vernor" incident. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As indicated above, compelling factors to the Trial Examiner in reaching his conclusion were that Wade was discharged by Ormston because he was convinced that Wade was a union adherent, despite his previous statements to the contrary; as a result of the "Vernor" incident; and the inadequacy of its explanations of his violations of its rules and regulations governing the weighing of its trucks in transit out of Texas. Though the Trial Examiner is thoroughly convinced that Wade was not active on behalf of the Union, nevertheless, he is convinced that the Respondent's mistaken belief that he was, does not prevent a finding that such belief was the motivation for his discharge.17 In the light of the foregoing and upon the record considered as a whole, the Trial Examiner concludes and finds that Wade was discharged by the Respondent because of its mistaken belief that he was an adherent of the Union, and active on its behalf; and that by such conduct on its part it had the proximate and predictable effect of discouraging membership in the Union,18 particularly since it occurred on the date of the Board-ordered election for the determination of a bargaining repre- sentative, and while the employees were actually engaged in exercising their statutory rights. Accordingly, the Trial Examiner finds that the Respondent discriminately discharged Verdis L. Wade within the meaning of Section 8 (a) (3) of the Act, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that the Respondent discriminated in regard to the hire and tenure of employment of the following employees in the pipe-yard crew, on May 4, 1956, J. D. Singleton J. C. Newman Joe Teel L. D. McCullough Clauzell Culpepper Cornelius Perry Eddie Watson Fred Sampson Gorree Kizzee it will be recommended that the Respondent offer them immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them, by payment to each of them of a sum of money equal to that which he would have earned from the date of the discrimination to the date of the offer of reinstatement, less net earnings, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Earnings in any one particular quarter shall have no effect upon the back pay liability for any other such period. It will also be recommended that the Respondent preserve and make available to the Board upon request, payroll and other records to facilitate the checking of back pay due. The foregoing shall apply to all of the pipe-yard employees, except those named in the complaint as having been restored to their former jobs on May 7, 1956, the first regular working day after their discriminatory layoff on the night of May 4, 1956. Their names follow below: Eddie Watson Cornelius Perry L. D. McCullough Fred Sampson 17 See The Ridge Tool Company, 102 NLRB 512, 513, enfd. 211 F. 2d 88 (C. A. 6). Is N. L. R. B. v. J. I. Case Company, Bettendorf Works, 198 F. 2d 919 (C. A. 8), enfg. as modified 95 NLRB 47, cert. denied 345 U. S. 917. BUILDING MATERIAL & DUMP TRUCK DRIVERS 135 The Trial Examiner has also found above that the Respondent discriminated in regard to the hire and tenure of employment of the following employees: R. C. Knipe, May 8, 1956. Verdis L. Wade, July 24, 1956. Having so found, the Trial Examiner will recommend that the same remedy and formula be applied to them in the mode and manner set forth immediately above as regards the discriminatorily laid-off employees. As the unfair labor practices committed by the Respondent were of a character striking at the roots of employees' rights safeguarded by the Act, and disclose a propensity on the part of the Respondent to continue, although not necessarily by the same means, to defeat self-organization of its employees , it will also be recommended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. General Drivers, Warehousemen & Helpers Local Union No. 968, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the following employees, J. D. Singleton, Joe Teel, Clauzell Culpepper, Gorree Kizzee, Eddie Watson, J. C. Newman, L. D. McCullough, Cornelius Perry, Fred Sampson, R. C. Knipe, and V. L. Wade, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining , and coercing employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent did not discriminatorily discharge W. A. Willtrout, Ezra Champion, and Dock Knipe. [Recommendations omitted from publication.] Building Material & Dump Truck Drivers Local No. 420, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America 1 and Fisk & Mason. Case No. 21-CB-856. March 18, 1958 DECISION AND ORDER On July 16, 1957, Trial Examiner Howard Meyers issued his Inter- mediate Report in the above-entitled proceeding, 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, and Charging Party, Fisk & Mason, filed a brief in support of. the Intermediate Report.' 1 The Board having been notified by the AFL-CIO that it deems the Teamsters ' certifi- cate of affiliation revoked by convention action, the identification of this Union is hereby amended. 2 Fisk & Mason's request for oral argument is hereby denied, as the record and briefs adequately present the issues and the positions of the parties. 120 NLRB No. 19.