Western Truck Lines, Ltd.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 3. By interrogating employees as to their union activities and sympathies , thereby interfering with, restraining, and coercing them in the exercise of their rights guaran- teed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 4. The activities set forth in paragraph 3 above are unfair labor practices affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Western Truck Lines, Ltd., Gillette Motor Transport , Inc. and Office Employees International Union , Local 45, AFL-CIO. Case No. 16-CA-1379. May 19, 1961 DECISION AND ORDER On January 12, 1961, Trial Examiner James A. Shaw issued his Intermediate 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint, and recommended that these particular allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support of his exceptions, and the Respondent filed a reply brief thereto. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report,' the exceptions, the briefs and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.2 ORDER Upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the 1 The Trial Examiner, under section B of the Intermediate Report, failed to clearly note that the person about whom witness M . I. Jennings was speaking was Bill C. Merrett, a supervisor in Respondent 's I B.M. department. 2 Absent exceptions, the Trial Examiner's findings and conclusions that the Respondent had violated Section 8(a) (1) of the Act are adopted pro forma. 131 NLRB No. 77. WESTERN TRUCK LINES, LTD., ETC. 501 National Labor Relations Board hereby orders that the Respondent, Western Truck Lines Ltd., Gillette Motor Transport, Inc., their offi- cers, representatives, agents,- successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees as to their union activities, inter- ests, or affiliations in a manner constituting interference, restraint, or coercion. (b) Threatening its employees with reprisals, including loss of employment by removal of their place of employment, for engaging in union or concerted activities or for joining a union. (c) Soliciting employees to report on the union activities or sym- pathies of their fellow employees. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Office Employees Inter- national Union, Local 45, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its Dallas office copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places where notices to employees are customarily posted. Respond- ent shall take ,reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondent violated the Act by dis- charging Tollie Pilgrim. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, 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, as amended, we hereby notify our employees that : 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees as, to their member- ship, interest in, or activities on behalf of, Office Employees International Union, Local 45, AFL-CIO, or any other labor organization in a manner constituting interference, restraint, or coercion. WE WILL NOT threaten our employees with a loss of their jobs or other reprisals, if they join, become interested. in, or en- gage in activities on behalf of, the above, or any other labor organization. WE WILL NOT solicit our employees to report on the union activities or sympathies of their fellow employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to engage in, or refrain from engaging in, union or concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection. All our employees are free to become or remain, or refrain from becoming or remaining, members of the Office Employees Inter- national Union, Local 45, AFL-CIO, or any other labor organization. WESTERN TRUCK LINES, LTD., GILLETTE MOTOR TRANSPORT, 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 Upon a charge filed June 17, 1960 , by Office Employees International Union, Local 45, AFL-CIO, herein referred to as either the Union or the Charging Party, the Regional Director for the Sixteenth Region of the National Labor Relations Board, herein referred to as the Board, issued a complaint dated August 2, 1960, against Western Truck Lines, Ltd., Gillette Motor Transport, Inc., herein referred to as the Respondent , alleging violations of Section 8(a) (3) and ( 1) of the National Labor Relations Act, as amended (61 Stat . 136, 73 Stat . 519), herein called the Act. In its duly filed answer, Respondent , while admitting certain allegations in the complaint, denied the commission of any unfair 'labor practice, and pleaded affirmatively that "the employee Tollie Pilgrim was discharged . .." for cause. Pursuant to notice a hearing was held before the Trial Examiner on September 12 and 13, 1960, in Dallas, Texas. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. All parties waived oral argument . Briefs were received by the Trial Examiner from the General Counsel and the Respondent on or about November 8, 1960. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: WESTERN TRUCK LINES, LTD., ETC. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT 503 The complaint alleges and the Respondent admits in its answer that : ( 1) Respond- ent is and has been at all times material hereto a corporation duly organized under and existing by virtue of the laws of the State of Texas having its principal office and place of business at 2311 Butler Street in the city of Dallas, Texas, and is now and has been at all times mentioned continuously engaged at said place of business, hereinafter referred to as the "Dallas Terminal," as a common carrier; and (2) in the course and conduct of its business operations at its Terminal at Dallas, Texas, during the immediate past 12-month period, which period is representative of all times material hereto, purchased equipment consisting principally of trucks and truck parts, a recurring capital expenditure, valued in excess of $50,000, of which more than $50,000 was shipped in interstate commerce to the Terminal from points outside the State of Texas. ^ During the same period Respondent transported public freight to various companies, which freight was valued in excess of $50,000. Said com- panies receiving said public freight did business in excess of $50,000 from outside the State of Texas, during the same period of time. In the circumstances the Trial Examiner finds that the Respondent herein is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Office Employees International Union, Local 45, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues As the Trial Examiner sees it we are confronted herein with the following issues: (1) whether or not Tollie Pilgrim, an employee of the Respondent, was discharged on June 15, 1960, because of his activities on behalf of the Charging Union; and (2) whether certain statements by Bill Merrett, supervisor of the Respondent's account- ing department, to employees were violative of Section 8(a)(1) of the Act. Let us first consider the case as regards Tollie Pilgrim. 1. The alleged discriminatory discharge of Tollie Pilgrim After long and careful consideration of the record, and the briefs of the parties, the Trial Examiner , quite frankly, finds himself in a most "perplexing" situation 'regarding the case as to Pilgrim. For example Pilgrim's connection with the Charging Union does not present itself until he was interrogated by the General Counsel on rebuttal. To be sure, counsel for the Respondent did interrogate him on cross-examination about a statement he had given a Board agent prior to the hearing, in which he had made certain statements as to whether or not he desired to go back to work for the Respondent in the event his charges against the Respond- ent were sustained by the Board. The record shows that Pilgrim was first employed by the Respondent on or about August 1, 1958. He was a file clerk for about 6 months, and then was transferred to a similar job in the supply room. During this period of his employment, by the nature of his duties he came under the observation of Robert L. Carraway, manager of the traffic department. As time rolled by Carraway became impressed with Pilgrim and saw potential possibilities in him as a traffic clerk. With this in mind, he transferred him to such a job on or about November 5, 1959. He took the place or "desk" of one R. E. Stulting who was promoted at the same time to "junior outbound rate clerk." At the time Pilgrim was promoted to traffic clerk he was interviewed by Dwain Hendrix, assistant traffic manager. In the course of their conversation Hendrix gave Pilgrim some books concerning traffic problems, and suggested that he read and study them at times convenient to him.- Carraway did likewise and suggested that he not only study them, but to not hestitate to discuss with either Hendrix or himself any problems that came up in his studies. Several witnesses for both the General Counsel and the Respondent testified regarding Pilgrim's work from the time he started in November 1959 to the date of his discharge on or about June 15, 1960. From what the Trial Examiner is able to glean from their testimony, Pilgrim did as good a job as could be expected of an inexperienced employee in this field for the first few weeks of his employment 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a traffic clerk. In addition there was general agreement that he appeared to be interested in his work. However the same witnesses were likewise in general agree- ment that he seemed to lose interest in his work after he returned to the job from a sick spell around the middle of March 1960. Suffice it to say at this stage of the report that Carraway observed Pilgrim's attitude toward his work at this time and had a conversation with him in this regard. At the onset of the hearing the General Counsel called Carraway as his first wit- ness, presumably, in support of his case-in-chief. A resume of his pertinent testi- mony regarding the issues herein follows below. As indicated above Carraway was responsible for Pilgrim's being promoted to the job of traffic clerk. In the course of his testimony he said, in substance, that he became concerned about Pilgrim and his overall attitude toward his work 2 or 3 weeks after he returned to work in March 1960. His testimony follows: Q. (By Mr. CALLAWAY.) Do you know about what time it was, can you fix it-if you can't, say so-but about when did you have a conference or talk with Mr. Pilgrim? A. It was about two or three weeks after he had returned from his illness. Q. What transpired at that conference? Just say the best you can what you said to him and what he said to you. A. Well, I noticed that his work was getting behind over there and I went over to his desk and asked him what was the trouble that he wasn't getting his work out, that we expected him to keep the work up when he was able to do the work, and now since he had returned that if he wasn't able to work he could go home, but he said he was having terrible headaches and I told him, "Well, if you are not able to work," I says, "we don't expect you to, but if you are able to work we want you to get this work caught up." As the Trial Examiner interprets the record Pilgrim's version of the foregoing incident was as follows: 1 Q. Was this the first time he had ever said anything like that to you? A, Well, back in February when I was sick, I had the flu for the third time and I was out for three weeks. When I was out, came back, why, we had a big discussion as to whether I was going to take my vacation as sick leave or not, and he said at one time that he thought about terminating me because I couldn't make up my mind. At this point the Trial Examiner desires to point out again that he is attempting to show by sequence Pilgrim's difficulties with his superiors from the time he returned to work around the middle of March 1960, up to the date of his discharge on or about June 15, 1960.2 From what the Trial Examiner gleans from the record, Pilgrim for the first few months of his employment as a traffic clerk was required to work every evening from 5:30 to 7:30 p.m., in the outbound freight department. His immediate superior was Amos M. Lozano, senior outbound rate clerk. On or about April 13, 1960, Lozano went to Carraway and requested that Pilgrim be taken off the work he was then doing in his department. His reasons for his action is best told in the following excerpt from his testimony on direct examination: Q. Following Mr. Pilgrim's being installed as traffic clerk out at Gillette along about November of '59 for a period of time did he do some work, extra work for you at night in the billing? A. He used to come in at 5:30 and bill until 7:30, yes, sir. Q. Was he taken off of that work, night work in your department? A. Yes, sir. Q. Why was he taken off? A. I requested for him to be taken off my department. Q. To whom did you make your request? A. Mr. Carraway. Q. What were the reasons that you requested that Mr. Pilgrim be taken off of that department? A. Well, Mr. Pilgrim got where he just slowed down on the job and slowing down so much the other two billers were beginning to slack down on their end of the bargain, too, so I either let him go or everybody was going to be the same way, one of the two, slow down, not be able to get our work done in time. 1 This excerpt is taken from that portion of Pilgrim 's testimony that deals with what transpired at the time he was discharged on June 15, 1960 See supra in re Pilgrim's illness during February and March 1960. WESTERN TRUCK LINES, LTD., ETC. 505 Q. Did anyone suggest that you make this complaint and suggestion to Mr. Carraway or was it your own idea? A. My own initiative. Q. Did Mr. Carraway comply with your request? A. Yes, sir. Q. And was Mr. Pilgrim taken off of that night work and just put back in his regular work? A. Yes, sir. Carraway complied with Lozano's request and Pilgrim was taken off the job. How- ever, he continued to work on Monday nights from 5:30 to 7:30 p.m. for an addi- tional 2 or 3 weeks. Again, his work did not satisfy Lozano, who laid him off with- out consulting Carraway. Lozano's testimony was as follows: Q. After he was taken off of your crew, didn't he continue to work for you on Monday evenings? A. Just on Monday evenings, and that was just for a short time. Q. What was the length of time? A. Well, I think I finally-I don't think it was over two weeks after that time that I re-used him on Monday evening when I finally just got rid of him altogether. Q. How did you get rid of him altogether? A. Well, I talked to Mr. Carraway that I didn't want the man working for me, that we all double up and get the work done. Q. You talked to Mr. Carraway again the second time? A. No, the second time, no, I didn't. I told Tollie he could come in early on Mondays and just work from 8:00 to 5:00 and from then on he just worked from 8:00 to 5:00. Q. You told Tollie not to come in? A. That's right. Q. You didn't report it to Mr. Carraway? A. No, sir. Q. All right. Did you tell Mr. Pilgrim why you didn't want him coming in any more? A. Told him l just couldn't use him. He knew that he was slow on the job and he knew that was the reason I was getting rid of him. Q. Did you tell him that was the reason? A. Well, he knew for certain. No. I didn't tell him, no. Q. You didn't tell him? A. No. Q. You don't know what he knew, do you? A. Well, no, I guess not. Q. O.K. When you talked to Mr. Carraway about having Tollie taken off of your crew, did you agree at that time that he was to continue coming in on Monday nights? A. Yes, uh-huh. As the Trial Examiner sees it, the General Counsel contends that the reason Pilgrim was relieved of his work in the evenings in Lozano's department was because of a business slump. He interrogated both Lozano and Carraway and both denied emphatically that they had ever so informed Pilgrim at the time he was taken off his work in Lozano's department. Pilgrim's testimony is most interesting as the following excerpt therefrom clearly indicates: Q. All right. Did there come a time when you were taken off of his shift and just worked on Monday nights? A. Yes. Q. All right. Were you told by anybody why that move was being made? A. I was told by him and Mr. Carraway, I think in a joking mood, that the business was falling off and they had to let me sort of get caught up on my desk and help the other rate clerks out. Q. Did you continue to work on Monday evenings? A. Yes. Q. Was there anything said to you other than that, was any complaint made about your work at that time? A. No. Q. Mr. Carraway talked to you or Mr. Lozano talked to you? A. I believe both of them talked to me. Q. All right. Was any complaint made at that time to you? A. No complaint. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. All right. I mean about your work, any mention about your work? A. No. Q. When you quit working-did you continue working just on Monday nights? A. Yes, for a short time. I don't know how long thereafter, and then I quit altogether. [Emphasis supplied.] After careful consideration the Trial Examiner is inclined to and does credit the denials of Lozano and Carraway that they told Pilgrim at ,the time he was taken off the job in Lozano's department that it was due to a "slack" period in the department. At this time the Trial Examiner desires to point out that all of the foregoing incidents occurred at least a month and a half before the Union started its organiza- tional campaign amongst the Respondent's employees, which the record shows was around June 1, 1960. Another incident cited by Carraway in the course of his testimony on direct ex- amination regarding Pilgrim's attitude toward his job after he returned to work in March 1960, was his failure to report for work on April 27, 1960. Not only did he fail to report to work, but according to Carraway's credible testimony "-he didn't leave any word or send any notice or anything." While .the foregoing incident might be considered trivial by some, nevertheless it is not so considered by the Trial Examiner, not as to the incident itself standing alone, but its impact, upon a decision that Carraway was required to make 1 week later. It was the policy and practice of the Respondent to give its employees periodic wage increases every 6 months, until they reached the top level rate per hour for the job. In Pilgrim's case he would have been entitled to a 10-cent per hour in- crease on May 5, 1960, which was 6 months after he was promoted to the job he held at times material herein. The granting of the increase was at the discretion of the department head, Carraway in this instance. Carraway, after due consid- eration did not grant Pilgrim the raise. His decision in this regard is best told in the following excerpt from his own testimony, which is fully credited by the Trial Examiner. Q. (By Mr. CALLAWAY.) Maybe you don't recall the question, but was there any time along this time under your practice in your department that Mr. Pilgrim would be entitled to a merit increase had his work in your judgment justified it? A. Yes, sir, six months from the date that he transferred into my department he would have been eligible for a ten cent an hour increase if he had been doing his work properly and if he had made suitable proficiency in this study work. Q. Well, now let's try to fix that date. He came in on November- A. November 5. On May 5 he would have been eligible for the increase. Q. Was he given the increase? A. No, sir, he was not. Q. Why not? A. The main thing, it was due to his absence and then after he came back from his illness he never did show the proper interest in the job. I think he was dissatisfied and unhappy because we charged part of his illness to vacation pay or something. Q. Let me ask you. That's one of the questions I want to ask. At this particular time did or did not any little controversy or something arise or dis- satisfaction on Mr. Pilgrim's part about the fact that part of his time when he was away sick was charged to his vacation? A. Yes, I think he came into my office one day and--or I asked him in, I have forgotten which, but we did discuss it and I told him since he was out so much and so many days on the sick time pay that it's more than what ,we usually allow, that we'd like to charge part of his illness to vacation. Q. Well, now, did he take an exception to that or not? A. Well, he didn't voice much exception to me on it, no, sir, or objection. Q. Now, this May 5 increase, as I understand, you did not give it to him and I am not sure, I want to be sure it's in the record as to why he wasn't given his May 5 merit increase. A. Like I say, it was because he had been out from the job, because he had, was-his work was behind, he was not up with his work and he was not making any progress in his tariff stage. In passing the Trial Examiner desires to again point out that Carraway's decision to not grant Pilgrim the above increase was at least 3 weeks before the Union started its organizational drive amongst the Respondent's employees. WESTERN TRUCK LINES, LTD., ETC. 507 We now come to an incident that occurred a short time before Pilgrim was dis- charged. On this occasion he was back in the file room pulling some freight bills. While he was there he got into a conversation with one of the clerks, Jerry Key. What transpired at this time is in the considered opinion of the Trial Examiner best told in the following excerpt from Pilgrim's credible testimony: Q. (By Mr. SMITH.) Tell us what the occasion was, what was happening and who was present when Mr. Vaughn spoke to you. A. Well, it is just like Jerry Key stated, I was pulling freight bills and he had been filing right close to me and he stood up to-we said something, I think we were talking about his newly marriage. He had just gotten married the night before, something like that, and we were talking- TRIAL EXAMINER: And he went to work? The WITNESS: Yes. TRIAL EXAMINER : Excuse me. A. And Mr. Vaughn came by. He just kind of walked by and stood off from us and said, "You boys separate. You are shooting the breeze too much," or something of that sort. Q. (By Mr. SMITH.) Did you separate? A. Yes, we did. Q. By separate, what did you do? Did one of you move off somewhere? A. Jerry moved down on the other end and started filing down on the other end. Q. All right. Now, was this the only time Mr. Vaughn ever said anything to you about it? A. Yes. Q. Was it a serious thing at the time? Did he act like it was a serious proposition? A. He didn't act like he was very serious, but I am sure he meant it. Pilgrim's account of the incident was in the main, corroborated by that of Key and Vaughn. The only difference being whether Vaughn told them to quit talking and separate, or used the phrase "shooting the breeze too much." As the Trial Examiner sees it further discussion herein as to whether Vaughn used the above phrase or not is meaningless and quite frankly would be "much ado about nothing." The importance of the testimony is that Vaughn requested Pilgrim and Key to break up their conversation and move apart. From what the Trial Examiner gleans from the record Vaughn did not report the above incident to Carraway until about a week before Pilgrim was discharged on June 15, 1960. The importance of this incident is found in the following excerpt from Carraway's testimony: Q. After this complaint of Mr. Lozano, did you have a complaint from any other supervisor- A. Yes, sir, I did. Q. About the work of Mr. Pilgrim? A. Yes, sir. Q. Who was that? A. Mr. L. C. Vaughn. Q. Who was Mr. Vaughn? A. He is the department head of the IBM and the freight accounting depart- ment. Q. Do you recall when Mr. Vaughn made his complaint, about? A. Yes, sir. I think it was a week or so before he was dismissed. Q. Before Mr. Pilgrim was dismissed? A. Yes, sir. Q. And what was the nature of Mr. Vaughn's complaint? A. Well, he told me that it had become necessary for him to relocate one of his employees because of the excess conversations that Mr. Pilgrim was having with him. Q. Is Mr. Vaughn here and is he to testify? A. Yes, sir. At long last we come to the testimony of Mrs. Marjorie Gunn. The importance of her testimony will be apparent below. Suffice it to say at this time that it was her complaint to Carraway, regarding Pilgrim that led to his discharge on June 15, 1960. According to her credible testimony she was a long-time employee of the Re- spondent, and at times material herein was the cashier in the accounting department. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the morning of June 15, 1960, she was busy making up her bank deposit. This was part of her regular duties and required her to concentrate on the job. This is understandable by the very nature of this type of work. Her desk though set off by itself, was nevertheless in close contact to those of other employees in the depart- ment. Right behind her desk perhaps 3 or 4 feet, were the desks of employees of the inter-line department, where the "beep" or IBM machines were located. On her desk, at all times material herein, were several telephones. In such a setup there was naturally considerable noise, from the "beep-beep" of the IBM's, the ringing of telephones on hers and nearby desks, and normal conversation between employees. However like most folks she became accustomed to the 'sbuzz" as she put it and was able to do her job without much trouble. In the course of her work she had seen Pilgrim back in the inter-line department on several occasions, and had heard him talking to several of the employees about all matters of things from baseball to insurance and on occasion they would be discussing the Union. She had no personal business relations with Pilgrim except on occasion he would come back to lay a check on her desk. From what the Trial Examiner gleans from the record there had been considerable resentment against Pilgrim wandering around the area in which she worked by other employees, presumably because he could wander around as he pleased and talk to others while they were required to stick to their desks during working hours. Insofar as this record is concerned no complaints were filed with management by any of the employees so affected. In all fairness, the Trial Examiner desires to point out that in his opinion many of these so-called complaint's were groundless for the reason that the record clearly shows that Pil- grim's job required him to devote a portion of his time in other departments in his search for missing freight bills. Be that as it may however, there were "gripes," so to speak, amongst the employees in question in their daily banter back and forth to each other. In passing the Trial Examiner feels compelled to point out that one would be most naive to believe that there was anything new or novel about such banter in either the Respondent's offices or those of any other employer. The fact is that trivialities are daily occurrences amongst human beings when thrown together either by the nature of their employment or by mere chance. Such was the atmosphere on the morning of June 15, 1960. Now back to Mrs. Gunn's testi- mony. On the morning in question Pilgrim was back in the inter-line department and was talking to several of the employees, particularly Leslie and Bogie, whose desks were right behind hers. According to Mrs. Gunn their conversation upset her and interfered with her work. She became distracted, and as the Trial Examiner in- terprets her testimony, decided to put a stop to such interference. With this in mind she went to see an old friend and fellow employee, Claiborne Christie, during the noon hour and told him her troubles. The main reason she went to Christie was because she wanted to talk to somebody about Pilgrim's conduct and seek their advice as to whether or not she should report the incident to Carraway. Christie was in charge of Government collections in the over-charge claim division of the traffic department. By coincidence he occupied the desk next to Pilgrim at times material herein. The upshot of their discussion was that he told her that he could see no harm in her reporting the incident to Carraway. At around 1 p.m., Mrs. Gunn went into Carraway's office and complained to him about Pilgrim's conduct on the morning in question, and at times prior thereto. In the considered opinion of the Trial Examiner what transpired in Carraway's office at this time is best told in the following excerpt from her testimony: Q. Now, Mrs. Gunn, it's been testified that Mr. Pilgrim was discharged on June 15 .and also that on that same day you had talked to Mr. Carraway about Tollie Pilgrim. Now, you testified that you had gone into his office. A. Yes, sir. Q. Was anybody else present? A. Well, there was Mr. Hendrix was present. He's Mr. Carraway's assistant. Q. All right. What was this conversation about? Would you relate it for us, please, ma'am? A. Well, word for word I do not remember other than I told Mr. Carraway that Mr. Pilgrim was in the back talking quite a bit to the other employees back there and that by so doing that he was distracting me from my work and it wasn't only for that day, it was over a period of time, quite a bit of time, and also that I knew that he had been soliciting for the union, and that's about all. Q. All right. Now, did you mention anything about that you had received complaints from employees? A. Well, not complaints; conversation that he had been doing that. WESTERN TRUCK LINES, LTD., ETC. 509 Q. You said that, told him that you had had conversation with three em- ployees? A. Yes, sir. Q. Did you tell Mr. Carraway that they were complaints? A. Well, I would imagine in the form of a complaint. However, I don't know that I used the word complaint . I was doing the complaining. Q. All right. You were the only one that was complaining? A. Yes, sir. Q. All right. Now, those three employees that you mentioned to him, did you mention their names? A. No, sir. After Mrs. Gunn left his office Carraway kept his eye on Pilgrim 's desk. Accord- ing to Carraway, Pilgrim was away from his desk practically the entire afternoon until around 4 p .m. As the Trial Examiner interprets the record Carraway went back to his desk when he returned and found a lot of unfinished work lying around, particularly 12 volume reports and 170 unfinished or unworked overcharge claims. What transpired at Pilgrim's desk is in the considered opinion of the Trial Examiner best told in the following excerpt from Carraway's testimony: Q. (By Mr. CALLAWAY.) Who was present at that time? A. Well, 1 was at his desk and I believe the employees at the desk on each side of it and probably those behind him probably heard the conversation. Q. Who were those employees? A. Delbert Cooper was-they were all within , say, ten feet of us at the time-it would be Delbert Cooper, Norman Pope, C. B. Johnson, Claiborne Christie and Wyndel Roper. Q. Now, tell us briefly what you said to him and what he said to you. A. •I came over and I told him he was behind with his work, that he wasn't doing his job and I thought he ought to get him a job somewhere else, he wasn't doing himself or us either one any good. Q. What did he say? A. He didn't say anything . After he didn't, I asked him why he was behind with all that work there and then I had all these reports and all coming in on him. When I did see all these volume reports stacked up there I told him he could just go on home right then , I wouldn't need him any more. Q. Did he give you an explanation of why he was behind? A. He didn't open his mouth. I told him I would mail him his check so he wouldn't have to come back for it. Q. Mr. Carraway, I think I have only one other question of you . I would like for you, although I think it is in the record from time to time, I would like for you in summary form to tell the Examiner exactly why on June 14 you discharged Mr. Pilgrim. A. Well, because of all of these reports that had come in and he had not applied himself to his studies and he had-he was neglecting his work and he had had to be removed from the night work because he was unsatisfactory. Just all of it put together, that it wasn't any one particular thing , it was just all of it put together just capped the climax. Pilgrim's account of what transpired at the time of his discharge is practically the same as Carraway's, consequently the Trial Examiner finds that Pilgrim was discharged under the foregoing circumstances. We are now faced with the crucial question involved herein , to wit : Was Tollie Pilgrim discharged for cause or because of his activities on behalf of the Charging Union? As the Trial Examiner sees it the position of the Respondent is that what transpired on the morning of June 15, 1960, was merely coincidental , and that the compelling force behind Carraway's action was the accumulation of adverse reports on Pilgrim's conduct on the job, and his overall lackadaisical attitude toward it, particularly after he returned to work in March 1960; (2) Carraway's dis- appointment in Pilgrim's overall approach to the job and its potential possibilities, which was evidenced by his failure to consult with his superiors regarding the books on traffic problems which they had given him to study when Carraway selected him for the job ; (3) his tendency to aimlessly wander around from department to department and converse with other employees , as illustrated above in the Gunn incident; and finally; (4) the unusual accumulation of volume reports and, in particular, the 170 overcharge claims that were found on his desk when 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carraway went back to talk to him at around 4 p.m. on the date of his discharge, June 15, 1960. The Trial Examiner has referred above to some of the testimony adverse to Pilgrim, particularly concerning the complaints of Lozano , Vaughn, and Mrs. Gunn. In addition he has commented upon Carraway's testimony, and in particular the problem he was faced with when Pilgrim could have been granted a merit increase of 10 cents an hour in the early part of May 1960. With the foregoing in mind the Trial Examiner desires to point out to all concerned that the incidents and happenings referred to above all occurred prior to the advent of the union activities amongst the employees, except regarding the Gunn affair. As will be shown below it is this phase of the case that has caused the Trial Examiner grave concern. Quite frankly the record is none too clear about either Pilgrim's activities on behalf of the Union or that of other employees in the department we are concerned with herein. As the Trial Examiner interprets the record there were approximately 46 employees in the department in which Pilgrim worked .3 There is some refer- ence in the record that there were two representation petitions filed with the Board at sometime prior to Pilgrim's discharge. From the meager evidence in the record the Trial Examiner is persuaded that there were two unions competing to represent the Respondent's employees in the department in which Pilgrim worked, the "Teamsters" and the Charging Union herein. When the petitions referred to above were filed and by whom is not shown in the record . In any event the record does show that the activities of the Charging Union herein started around the first part of June 1960 . Insofar as Pilgrim's activities on its behalf are concerned, the record is likewise most meager. As the Trial Examiner sees it the only pertinent and probative evidence in the entire record is found in Pilgrim's testimony on rebuttal.4 There, Pilgrim testified as follows in this regard: Q. While you were working at Western-Gillette were you passing out union cards to the employees? A. Yes, I passed out three, I think it was, maybe four. Q. Wasthis during office hours? A. No, it was during lunch hours. Q. Did you talk to any of the employees during working hours about the union? A. Well, if it was, it was in code or something, I mean I never come right out and asked anybody to join the union during working hours. Q. How do you mean in code? A. We would just say what's the rumors about the union or something like that, you know. Q. But you would talk about union, is that right? A. Yes, very little. TRIAL EXAMINER : How was that? The WITNESS: Very little. TRIAL EXAMINER: Very little? The WrrNESS: Yes. It was mostly during lunch hours, afternoons, and so forth. Q. (By Mr. SMITH.) Did you talk about the union any time during office hours? A. Yes, a little. Q. Did other employees? A. Yes. I think just about everyone that was interested did. Mr. SMITH: I have no further questions. Mr. CALLOWAY: Sorry, Mr. Examiner, but this opens up a completely new field not even gone into. TRIAL EXAMINER: All right. It hadn't been touched on. As indicated above the Respondent called several witnesses in its case-in-chief who testified regarding Pilgrim's conduct on the job. He has reference to the following witnesses, Christie, Lozano, Carraway, Vaughn, Stulting, Hendrix, and Merrett. The Trial Examiner has referred above to the testimony of Lozano, Carraway, Vaughn, and to some extent that of Christie. The gist of the testimony of all of the above was to the effect that Pilgrim spent more time than he should have away from his desk by wandering around and talking to other employees. a From General Counsel's Exhibit No. 1-the original charge herein. A Except for the testimony that followed from the Gunn affair WESTERN TRUCK LINES, LTD., ETC. 511 In the considered opinion of the Trial Examiner the best evidence in the record regarding Pilgrim's attitude toward his job is found in his own testimony which follows: Q. Mr. Pilgrim, it has been represented to a representative of the company by a representative of the National Labor Relations Board that you prefer the job in which you are now working and that you do not want to go back to work for Gillette. Is that correct or not correct? A. That is correct in the sense that if the union succeeds I would like to go back. Q. In other word;, you now take the position that if the union succeeds you would like to go back and if it doesn't you don't want to go back? A. That's right. Q. Did you make a statement to any representative of the Board subsequent to the filing of this charge that you did not want to go back and authorize the Board to state to the company that if they would pay you three weeks' back pay that you did not want to go back, that you wanted to keep your job? A. I made a statement that if the union would win the election I would go back and take the back pay and if they didn't I would just take the back pay. Q. And if they didn't. Now, when you say the union, there are two unions involved in this matter. Two unions appeared when they had the election; two unions were there. Which union do you refer to? A. The Office Employees International Union. Q. Then is it a correct statement of your position that if the Office Employees Union should win the election that you would like to go back to work for the company? A. Yes. Q. But that if the Teamsters win the election or if neither wins the election you don't want to go back to work; is that a correct statement? A. That's correct. Conclusion It has been well said that "Hard Cases Make Bad Law"; so is it here. After long and careful consideration the Trial Examiner is convinced and finds that Tollie Pilgrim was discharged for cause. This finding is based upon the record considered as a whole. To be sure there is suspicion, but suspicion is not evidence and should not be indulged or relied upon by any trier of the facts . As the Trial Examiner sees it Carraway was "fed up" on Pilgrim's attitude toward his job, and Mrs . Gunn's complaint was the straw that "broke the camel's back," and led to his discharge on June 15, 1960. The principal issue herein is the motive behind Pilgrim's discharge that of course is to be determined by the record considered as a whole. The fore- going was the motive and as indicated was the reason for his discharge. It will be recommended below that the complaint as to Pilgrim be dismissed in its entirety. B. The alleged violation of Section 8(a) (1) of the Act As the Trial Examiner sees it, this portion of the complaint rests upon the credible testimony of three witnesses, to wit: Emil K. Hrabin, the Respondent's vice president in charge of operations at all times material herein , Mrs. Mittie Jennings, an em- ployee in the IBM or "Beep" department, and Bill F. Merrett, supervisor of that department. The gist of the entire case in this regard is found in the testimony of Mrs. Jennings. An excerpt therefrom follows below: Q. All right, and what did he say now? A. He asked me if I had heard in case we went union, if I had heard they would move the office, the general office to the West Coast, and I told him I had heard those rumors. Q. All right. What did he say? TRIAL ExAMINER: You had what? The WrFNESS: That I had heard the rumors. Q. (By Mr. SMITH.) What did he say? A. He said they would move our department first and then Mr. Hrabina's department, which was operations. I asked him what he meant by operations. He said it was Mr. Hrabina's department. He said Mr. Hrabina did not care for the local people there going union but if the general people went union they would definitely move the office. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What do you mean by the distinction when you say local people as different from the general people? A. Well, there are people who work in what we call the local office, which is, I presume, the outbound freight there, bill clerks, rate clerks and what have you, and then the people in the general office. Q. All right. You work in the general office? A. That's right. Q. All right. He said he didn't mind the what? A. The local people going union. Q. Going union. A. But if the general people join the union that they would definitely move the offices. So I asked him why. So he said "well, in case we went union, that he would lose all control over his people," that-- Q. Who? A. Mr. Merrett. He said he would tell one office to do so and if we said, "That's just not my job," he said, "Then I'd fire you, then you would go to the union and the man would tell me that I couldn't do that and then you all would laugh at me and I wouldn't have any authority at all." Q. What did you say? A. Well, I said, "If they did, Mr. Merrett, that's probably right." So he said, "Well, you can do anything that you want to but," said, "if you do vote for the union," said, "I'll immediately disqualify Mabel Lee." TRIAL EXAMINER: Do what? The WITNESS: Disqualify Mable Lee. The Mrs. Lee referred to in the above quote, was a handicapped person whom the Respondent, to its credit, kept in its employment. The Respondent in its case-in-chief called as its first witness Emil K. Hrabin, vice president in charge of operations, and as the Trial Examiner interprets the record he was in charge of the Dallas office. The gist of his testimony was that a meeting of the "top" personnel, of the corporation it was decided that if one of the competing unions won the election, then in accordance with a suggestion as to operation costs from the Interstate Commerce Commission they would move the entire department with which we are concerned herein to Los Angeles, California. Somehow from that meeting it very conveniently "leaked" to those in a supervisory capacity in its Dallas office. That in the final analysis was what Merrett passed on to those who were classified as the Trial Examiner interprets the record as "employees." To him such a threat of the loss of every benefit that over the years they had received from the Respondent including their jobs, if they had the temerity to exercise their statutory rights under the Act is most compelling. In the circumstances the Trial Examiner finds that Merrett's ill-timed statements in his capacity as a supervisory employee were violative of Section 8 (a) (1) of the Act for which the Respondent is responsible. And it is so found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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. Office Employees International Union, Local 45, AFL-CIO. is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. Western Truck Lines, Ltd., Gillette Motor Transport, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The record as a whole does not support the allegation regarding Tollie Pilgrim. [Recommendations omitted from publication.]