Dallas Cartage Company

.In the Matter of DALLAS CARTAGE COMPANY and INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN & HELPERS OF AMERICA, LOCAL 745 If In the Matter Of INTERSTATE FIREPROOF STORAGE AND TRANSFER COMPANY and INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, STABLEMEN & HELPERS, LOCAL 745 1 Cases Nos. C-964 and C-968, respectively.Decided August 10, 1939 Trucking, - Pick-up and Delivery Service, and Warehouse Industry-Unite Appropriate for Collective Bargaining: truck drivers, helpers, dockmen (in- cluding the "extra dockmen" on temporary work by hour but on regular call), and checkers ; truck drivers, warehousemen, and checkers-Representatives : proof of choice : signed authorizations ; recognition by respondents-Collective Bargaining : negotiations on uniform contract demands presented to both re- spondents conducted jointly by latter's attorneys ; objections to and criticisms of Union's demands ; illusory counterproposals ; wage-cut by unilateral action during negotiations on wages; respondents ordered, upon request, to bargain with Union and if an understanding is reached embody said understanding in a signed agreement if so requested-Discrimination: employee discharged after decline of business handled exclusively by him ; :complaint dismissed as to charge of -discrimination. Mr. L. N. D. Wells, Jr., for the Board. Mr. Frank H. Rawling and Mr. Sam R. Sayers, of Fort Worth, Tex., for the respondents. Mr. H. S. Thatcher, of Washington, D. C., and Mr. F. D. Scott, of Dallas, Tex., for the Union. Mr. Sidney Sugerman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASES Upon charges and amended charges duly filed by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745, herein called the Union, the National 'So designated In the captions of the complaints . The correct name of the Union in full is International Brotherhood of Teamsters , Chauffeurs , Stablemen and Helpers of America, Local Union No. 745. 14 N. L. R. B., No. 29. 411 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its separate complaints dated June 7, 1938, against Dallas Cartage Company and Interstate Fireproof Storage and Transfer Company, both of Dallas, Texas, sometimes herein respectively called the re- spondent Dallas and the respondent Interstate and sometimes col- lectively called the respondents, alleging that the respondent Dallas had engaged in and was engaging in unfair labor practices affect- ing commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act; and that the respondent Inter- state had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and '(5) and Section 2 (6) and (7) of the Act. The complaints and notices of hearing were duly served upon the respondents and the Union. The complaints allege in substance that between September 20, 1937, and March 17, 1938, or thereabouts, the respondents refused to bargain collectively with the Union as the duly designated repre- sentative of the employees in the respective units appropriate for such purpose. The complaint against the respondent Dallas fur- ther alleges that on or about January 20, 1938, it discouraged mem- tbership in the Union by discharging an employee, Eddie L. Petty, and refusing him reinstatement because he had joined and assisted the Union. On June 21, 1938, the respondents filed their separate answers containing formal motions to' dismiss the respective complaints. While denying knowledge of the units appropriate for the purposes of collective bargaining, the answers concede the respondents' recog- nition of the Union as exclusive representative of all the employees of each for such purposes, but deny that they have ever refused to bargain collectively with the Union. They affirmatively allege a course of negotiations with a committee of the Union which they contend was genuine bargaining, resulting in an impasse through no fault or lack of good faith on'the part of the respondents. The answer of the respondent Dallas further denies that Petty was dis- charged for his union activity and, by way of explanation, alleges that his employment was terminated only because of a sharp de- .crease in business with the one customer whose freight exclusively had been handled by Petty, and that he was not qualified for any other position. Pursuant to notices, separate hearings in the two cases were held at Dallas, Texas, from June 30 to July 2 and on July 5, 1938, before Horace A. Ruckel, the Trial Examiner duly designated by the Board. At each hearing the Board and the respondent involved were repre- sented, by counsel, and the Union by its secretary; and all partici- -DALLAS CARTAGE COMPANY, 413 pated. Full opportunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties at each hearing. At the hearing upon the com- plaint against the respondent Interstate the parties to that proceed- ing stipulated and the Trial , Examiner ruled to incorporate in the record thereof by reference certain portions of the testimony given and offered, together with certain exhibits received and offered in evidence, in the case first heard against the respondent Dallas, sub- ject; however, to all - the 'respective motions, objections, and rulings made and exceptions taken with respect thereto in the latter case. During the course of the hearings the Trial Examiner made several rulings on motions and on objections to the admission of evidence. -The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. - . On October 7 and 8, 1938 , the Trial Examiner rendered his sepa- rate Intermediate Reports finding in substance that each respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, in that each respondent had refused to bargain collectively with the Union as exclusive representative of .the employees in the respective appropriate unit ; and further finding that ' the respondent Dallas had engaged in and was engaging in unfair . labor- practices affecting commerce , within the meaning of Section 8 ( 1) and (3) and Section 2 (6) and (7) of the Act, in that it had discharged Petty -and refused him other employment because of his union activities . The - Trial Examiner recommended , there- fore, that each respondent cease and desist from its unfair labor practices and, upon request, bargain collectively with the Union; further, that the respondent Dallas offer Petty reinstatement with back pay. ' On -October 21, 1938, each respondent filed separate exceptions to the respective Intermediate Report of the Trial Examiner. On October 24, 1938, the Union filed exceptions thereto, paralleled by a .similar exception of the respondent Dallas, directed solely to the Trial Examiner's exclusion of dockmen from the appropriate unit -in the case against the respondent Dallas. On November 21, 1938, .each respondent filed a brief in support of its exceptions. On May 26,11939, 'a hearing was duly held before the Board in Washington, ;D.. C., the cases being consolidated thereat for the purposes of. oral argument, in which the respondents and the Union participated by counsel. The Board has considered the exceptions and -briefs filed and the arguments presented. In so far as the exceptions are inconsistent 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the findings, conclusions, and order set forth below, the: Board finds them to be without merit. Upon the entire records in the cases, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESSES OF THE RESPONDENTS The respondent Dallas, a Texas corporation, is engaged in pick-up and delivery service on less-than-carload freight in Dallas, Texas, and its suburbs. It handles freight for 17 line-haul carriers and for- warders by rail and motor, limiting its own operations to loading and unloading at freight depot and store door, and to trucking between these points. 0 - Of approximately 325,000 pounds, of freight handled daily by this respondent, about 50 per cent has either its origin or its destination outside the State of Texas. The interstate journey variously begins or ends with this respondent's operation. This respondent maintains a fleet of 32 trucks -for its business. It normally employs upwards of 50 drivers, helpers, dockmen, and checkers. The respondent Interstate, a Texas corporation, operates a ware- house business in Dallas, Texas, and is also engaged in local - and long-distance truck hauling. Its gross business in 1937 amounted to more than $120,000, of which roughly $72,000 was derived from warehouse operations and $48,000 from hauling. The warehouse business consists, in substantial but undefined part, of the handling and storage of merchandise. shipped by manufacturers to this re- spondent's warehouse for distribution to their local customers as ordered. About 90 per cent of such spot inventories by tonnage is shipped to this warehouse from outside the State of Texas.2 - Approximately $28,000 of this respondent's revenues are derived from long-distance hauling, and about $20,000 from local drayage, including an indeterminate amount of pick-up and -delivery business. In its applications to the Interstate Commerce Commission for it certificate or permit as a common carrier under the "grandfather" clause of the Motor Carrier Act, 1935,3 this respondent represented that it had been operating as such over a territory embracing some 30 States. There had been no substantial change in the -nature of its business between the date of the filing of those applications in 1936 and the date of the, hearings herein. This respondent holds 2 For a discussion of the recent development of merchandise warehousing and its place and function in the scheme and flow of commerce , see Encyclopaedia of Social Solences, Volume xV, pp. 357-358, 415; Readings in Marketing, Fred E. Clark, pp. 499-501. a 49 Stat. 551, 552; 49 U. S. C . A. 306, 309. DALLAS CARTAGE COMPANY 415 itself out in the applications as a non-radial hauler over irregular routes across State lines by means of a fleet of 14 trucks and 1 tractor. It normally employs about 25 drivers, helpers, warehouse- men, and checkers. . II. THE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745, is a labor organiza- tion affiliated with the American Federation of Labor, admitting to membership truck drivers, helpers, warehousemen, freight handlers, and checkers in Dallas, Texas. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate units (a) The respondent Dallas employs truck drivers, helpers, dock- men, and checkers, besides a supervisory, business soliciting, account collecting, and clerical force. In addition, it employs a mechanic and a helper for truck maintenance and a watchman. The Union seeks a unit consisting only of the actual freight handlers, truck drivers, helpers, dockmen, and checkers. In its dealings with this respondent the Union negotiated on behalf of that unit. This re- spondent did not question the appropriateness of that unit nor has it suggested any other for the purposes of collective bargaining. The Trial Examiner found that "the' dockmen are largely tem- porary employees whose numbers fluctuate widely according to the size and nature of particular shipments," and therefore excluded them from the unit sought. Some of the dockmen are regular employees, paid on a weekly basis as are the other employees in that unit. Drivers and dockmen in the freight-transportation industry have traditionally combined in self-organization, just as mechanics have set themselves apart. The Board has in the past respected that tradition, no expressed desire or other consideration to the contrary appearing.4 There are some "extra dockmen" who are regularly on hand at this respondent's platforms for employment at an hourly rate of pay to handle large shipments. On call as they are, the "extra dockmen" are in hire anywhere from 11/2 to 8 hours a day, 6 days a week. The uncertain, temporary character of their employment is insufficient reason of 4Matter of Motor Transport Company and General Chauffeurs, Teamsters and Helpers, Local Union No. 200, 2 N. L. R. B. 492. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD itself: for their exclusion from the unit. In Matter of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines and Brotherhood of Railway and Steamship .Clerks, Freight Han- dlers, Express and Station Employees,' the Board recently observed as to "extra watchmen" similarly situated : ... these men enjoy a status not unlike that of regular em- ployees. All do sufficient work to give them an interest in the conditions of employment, and we feel that they should not be denied the advantages of collective bargaining. Our practice has been to include in the appropriate unit extra employees who are subject to call whenever needed . . . where the only union involved asks for their inclusion. We find that the truck drivers, helpers, dockmen (including the "extra dockmen" on regular call), and checkers constitute a unit appropriate for the purposes of collective bargaining, and that said unit insures to employees of the respondent Dallas the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. (b) Besides a supervisory and clerical staff, the respondent Inter- state employs truck drivers, warehousemen, and checkers, substan- tially all of whom are used interchangeably in these positions. The Union seeks a unit consisting of the truck drivers, warehousemen, and checkers. In its dealings with this respondent the Union nego- tiated on behalf of that unit. This respondent did not question the appropriateness of that unit nor has it suggested any other for. the purposes of collective bargaining. We find that the truck drivers, warehousemen, and checkers con- stitute a unit appropriate for the purposes of collective bargaining, and that said unit insures to employees of the respondent Interstate the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation of the majorities in the units (a) The pay roll of the respondent Dallas as at September 20, 1937, when negotiations with the Union were begun, lists 80 persons of whom not more than 70 are employees in the defined unit. On that day, upon demand of this respondent, the Union presented to the latter 52 signed authorizations in proof of designation of the Union as representative of a majority in that unit. This respondent' accepted the proof as sufficient, accorded a committee of the Union 5 12 N. L. R. B. 366. Also see Matter of Williams Diamond & Company etc. and Port Watchmen, Local No. in, 2 N. L. R. B. 859; Matter of Flewo Products Corporation and International Brotherhood of Electrical Workers, Local B-713, 7 N. L. R . B. 1163. DALLAS CARTAGE COMPANY 417 recognition, and has since conceded the Union's right to exclusive representation. At the hearings Neal Hodges, business agent of the Union, testified that he had personally witnessed each and every one of the 52 signatures at the times they were affixed. This respondent's pay roll as at June 23, 1938, the last made up before the hearings, lists 52 employees in the defined unit. By that date 15 of the 52 employees who had designated the Union as their representative were no longer in this respondent's employ, but the remaining 37 still constituted a clear majority of the employees in the unit. We find that on September 20, 1937, and at all times thereafter the Union was the duly designated representative of a majority of the employees of the. respondent Dallas in the appropriate unit and, pursuant to Section 9 (a) of the Act, was the exclusive representa- tive of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) The pay roll of the respondent Interstate as at September 20, 1937, when negotiations with the Union were begun, lists 35 persons of whom not more than 30 are employees in the defined unit. On that day, upon demand of this respondent, the Union presented to the latter 18 signed authorizations in proof of designation of the Union as representative of a majority in that unit. This respondent accepted the proof as sufficient, accorded a committee of the Union recognition, and has since conceded the Union's right to exclusive representation. At the hearings signatures to 3 of the 18 authoriza- tions were identified by witnesses and those to the remaining 15 were conceded by this respondent to be genuine. This respondent's pay roll as at June 30, 1938, the last made up before the hearings, lists 28 persons of whom not more than 22 are employees in the defined unit. By that date 3 of the 18 employees who had designated the Union as their representative were no longer in this respondent's employ, but the remaining 15 still constituted a clear majority of the employees in the unit. We find that on September 20, 1937, and at all times thereafter the Union was the duly designated representative of a majority of the employees of the respondent Interstate in the appropriate unit and, pursuant to Section 9 (a) of the Act, was the exclusive repre- sentative of all the. employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain On or about August 20, 1937, the Union presented to each of the respondents for consideration a proposed contract of stock form 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incorporating the Union's demands. Its preambles describe the Union as one of the two contracting parties. The substance of the demands was as follows : (a) Recognition of the Union and a closed shop; (b)- arbitration of contested discharges and grievances; (c) maintenance of Union shop steward by the employer; (d) privilege not to cross another picket line; (e) seniority in lay-offs; (f) 8-hour day, 6-day week, and extra pay for overtime. Provisions for wages and rates of pay were left in blank, subject to discussion. Neither of the respondents had had previous bargaining experi- ence with labor organizations. Pondering the effect of acceptance of the Union's demands upon the business, W. I. Ford, president of the respondent Interstate and himself a licensed attorney, expressed to the Union uncertainty as to his course. He shortly consulted and retained Rawlings & Sayers, Esqs., as attorneys in the matter. Know- ing. that the respondent Dallas had been approached by the Union with a contract, Ford conferred with Walter B. Williams, president of that respondent, who was unfamiliar with its duties under the Act and was confused by the phrasing and scope of the Union's demands. Learning from Ford what the respondent Interstate proposed to do, and knowing that Rawlings & Sayers had effectively represented cartage concerns in this field, Williams decided to engage the same law firm for the purpose. Although, by arrangement of the parties at the outset, neither Ford nor Williams attended meetings between their attorneys and the Union or directly participated in negotiations, it is well first to consider their attitudes toward' the situation and their instructions from time to time to the attorneys, before examining into the latter's efforts. Ford testified that he had always told the respondent Inter- state's employees: "Join anything you wanted, I have no objections to whatever you join, but do not join anything that prevents or inter- feres with the operation of the company, where yours and my pay roll comes from." Williams testified that the respondent Dallas is an active member of the Dallas Open Shop Association, affiliated with the local Chamber of Commerce, "because we made our money in Dallas, we try to live off of the Dallas business, and we try to uphold the things that built up Dallas." Both respondents instructed and authorized Rawlings & Sayers along similar lines : to meet with the Union, discuss details and negotiate terms of a contract, and report back recommendations. The respondents reserved to themselves the right of ratification, upon the exercise of which, by the testimony of Williams and Ford, they would sign contracts with the Union. The attorneys' authority in this engagement was further limited, however, by preliminary and repeated injunctions laid upon them by both clients that a closed shop was definitely unacceptable and that the other cardinal demands DALLAS CARTAGE COMPANY 419 were objectionable in principle, as inapplicable to the exigencies of their businesses. While he did not so inform the attorneys, Williams was neverthe- less determined at all times that the respondent Dallas would never agree to the arbitration of discharges, testifying : ". .. I naturally wouldn't do it (let the management of the company get into the con- trol of an arbitration board), because a fellow running a business, lie can't do that, can he?" The respondent Interstate went further and advised the attorneys that the following demands were uncom- promisingly opposed for the reasons noted : the maintenance of a shop steward, because the increased overhead would be intolerable; the arbitration of discharges, because employees had been carefully selected and knew their duties; changes in wages, rates of pay, or hours, because no other scale or schedule would be feasible; the privilege of not crossing another picket line, because it would re- strict this respondent's freedom of operation. Neither of the re- spondents suggested to the attorneys what concessions they would make to the Union's overtures or to what extent they might recede from their own positions. The first meeting of Rawlings & Sayers with the Union was held on September.9, 1937. In a session lasting 30 to 40 minutes, the parties merely sought information, arranged for the presentation of credentials, and laid the groundwork for future discussions. On September 20, 1937, they convened again. The Union had present Frank Cusack, Esq., an attorney. Then or at the previous meeting it was agreed that since the contracts delivered to the respondents were identical, as were the operations of the respondents in many respects all discussions should cover and pertain to both without distinction. There followed for 4 to 5 hours a reading of the proposed contract, paragraph by paragraph, with interruptions for interpretation and definition of and comment on terms and princi- ples. The respondents' attorneys insisted on designation of their respective employee groups as principal parties to any contract made with the Union, the latter to act and be described therein as agent only. To this the Union acceded. Several other minor word and .form changes were agreed upon, but in the main the demands of substance were rejected. The contract was to be rewritten by Cusack and resubmitted to Rawlings & Sayers after receipt'.of the latter's stated objections in writing. In an 8-page letter dated September 21, 1937, sent to Cusack and the Union, the respondents' attorneys recapitulated their objections : The closed-shop feature is flatly turned down as incompatible with the respondents' businesses; the respondents must have the choice of their employees' 1-day rest in 7; apart from the faultiness of 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the devised technique of arbitration, the provision is an unenforceable "common law" agreement at odds with local statute governing the arbitration of labor disputes; the selection of a shop steward shall be subject to the respondents' approval, and his activity shall be engaged in on his own time; while employees need not cross another picket line, the respondents may hire men who will do so; the seniority provision is inadequate; a grievance committee interferes with direct employer-employee relationship. Several less essential points of the Union program were also touched upon. Confirming the respondents' recognition of the Union and their purpose fully to consider its demands, Rawlings & Sayers pointed to the practical difficulties of departure from established methods controlled by com- petitive factors and regulatory bodies having jurisdiction of their business activity. By October 7, 1937, Cusack had submitted a redraft of the contract to Rawlings & Sayers embodying their points of agreement, but pre- senting substantially the same main Union demands already at issue. On or about October 20, 1937, all the attorneys and the Union com- mittee met again to discuss the modified document. The respondents' stand at this time is best illustrated from a 12-page letter dated October 27, 1937, which their attorneys dispatched to Cusack. Reiterating the objections levelled against the first draft, it informs the Union, "We are advising our client that unless this closed shop feature is eliminated in its every phase and entirety, it should not sign the contract." It objects to the contract definition of "employee," and to an inferred limitation upon the respondents' power of dis- charge in a clause subjecting inefficient and disobedient employees "to whatever discipline the employer may deem proper and necessary." Observing that the machinery set up for arbitration, although cor- rected of its original faults, "would virtually shut down the business of my client," and only leave the parties in the end to seek enforce- ment of an' award in the courts, Rawlings & Sayers conclude "that the same should not be in this contract, and we are accordingly advis- ing our client." Without criticism of the now defined duties of a shop steward, the latter repeats that the provision is not acceptable for the reasons first given. In the name of the public, in the interest of the free flow of commerce, and by force of the authority of the Texas Railroad Commission, all as invoked in their letter of September 21, the attorneys renew their objection to' the picket-line privilege with'the admonition "that unless this objection is met we shall advise our client to reject said contract." Suggesting further amplifica- tion of the new provision governing questions of seniority, objection is taken to "company seniority" as demanded, although no indication is given that "classification seniority," from which the former is dis- tinguished, would be acceptable. The letter notes various modifica- DALLAS CARTAGE COMPANY 421 Lions in the new draft made to meet previous suggestions, but points out that new matter was written into the document. The attorneys proceed to consider such matter with the same critical eye turned -upon each and every other provision, essential or not. Throughout the length of these letters much is made of the fact that the respond- ents' employees must conform to requirements of insurance com- panies, the Texas Railroad Commission, and the Interstate Commerce Commission, with respect to general fitness for their duties. This argument was strenuously urged at the hearing before the Board to stress the respondents' helplessness privately to contract away rights in derogation of their duties to such authorities. Hours and over- time'provisions are picked apart as unworkable in the circumstances of the respondents. The letter closes on a note of warning that "un- less you . can change your proposed contract to meet our objec- tions . . . we shall advise our client not to execute said contract." On December 15, 1937, another meeting was held, Cusack in the meantime being displaced as the Union's attorney. For the first time the Union made specific wages and hours demands, asking the re- spondents how much wage increase they would be willing to pay if unable to meet the requested scale. The conferees agreed to await preparation and study of financial statements of the respondents' operations for the year closing December 31, 1937. On January 1, 1938, without previous notice to or consultation with the Union, the respondent Dallas put into effect a general wage-cut. On January 6 the parties met, A. J. Pickett, Esq., now representing the Union as' attorney. Rawlings & Sayers presented the Union with both fi- nancial statements, showing a decrease in the respondent Dallas' business as compared with 1936, and voiced Ford's hope that the re- spondent Interstate would not have to reduce wages. Pickett pro- tested against the wage-cut, rejecting Rawlings & Slayers' offer to open their clients' books to the Union for inspection. Although'the discussion did not touch upon any of the other controversial points of the proposed contract, Pickett threatened Union reprisal unless an. agreement was made. The meeting broke up without result. In a few days the Union delivered-to Rawlings & - Sayers and to the Regional Director a resolution of its membership that unless an agreement was negotiated in good faith by January _ 15; 1938, the protection of the Act would be sought. In reply,, and for the in- formation of. the Regional Director, Rawlings & Sayers wrote on January 11 a review of their dealings with the Union. and asked .wherein the respondents had failed. in their duty- under - the Act. Again reference was made to the respondents' business. figures to explain why the Union's wages and hours demands could not be com- plied with, but no offer was made on the .part of the respondent Dallas. to, restore the peremptory wage-cut. .Besides,, the letter re- 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD veals a reluctance on the respondents' part to enter into any contract at all : ". . . they ( the respondents ) do not feel warranted in signing any contract at this time because of the ever changing conditions and the uncertainty of their being able to continue even under the pres- ent arrangement." On March 3, 1938 , after the filing of the charges, the Union com- mittee met with Sayers at the Regional Office. The Union waived its demand for a closed shop , but insisted upon restoration of wages by the respondent Dallas to their former level and upon fixing hours at the present schedule . In addition, the Union held to its other principal demands, modifying the seniority provision, however, to operate by work classification rather than by company service as disapproved by the respondents. Pleading for an opportunity to place the latest demands before his clients for decision, Sayers nevertheless made known the expected grounds of resistance. He regarded wages and hours commitments for any defined period of time as impossible ; they must remain subject to change by the respondents. Arbitration was unacceptable : it would result in cum- bersome delays , it would be of no legal effect; it would wrest con- trol of the respondents' businesses from management. Seniority of any kind must abide the respondents' wishes. On March 14, 1938, still awaiting Sayers' report on his clients' reaction to the latest proposals, Howard LeBaron, the Board's Field Examiner in the Region, who had investigated the charges on file and had been present at the March 3 conference, called Sayers on the telephone to arrange their next meeting. In that conversation Sayers stated that he would bring his clients' counterproposals into the next meeting. On March 15, 1938, Rawlings & Sayers sent the Union a 9-page letter concerning their clients' viewpoint, which for its evasion of any point of substantial agreement , may be exemplified by the following excerpts : ... If an arbitration board is provided for . .. with general power to hear and determine all grievances , it would effectuate a closed shop beyond doubt. It is apparent that the management of the Company, in re- spect to employing and discharging its employees, as well as the hours, rates of pay, and other conditions, would thereby release its authority to a grievance board having no knowledge of the company's business methods necessarily maintained to insure its existence. * * * * * * * The courts of Texas had condemned arbitration because it deprives the courts of justice of jurisdiction to hear and deter- DALLAS CARTAGE COMPANY 423 mine issues between the citizens, and that any substituted body for that of our lawfully constituted courts was against public policy and unenforceable. An arbitration agreement is void, and certainly we would advise our client against entering into a void contract. On the other hand, we feel that your committee would not desire a covenant in the contract which you knew to be void. * * * * * * * ... Our clients . . . being familiar with the length of time necessarily consumed in an arbitration hearing, are unwilling to, sign a contract containing the arbitration feature. * * * * * * * . .. The conditions imposed, which include closed shop and. the features flowing from it, steward, arbitration, and seniority,. will not permit them (the respondents) to operate such business, at a profit. * * * * * * * . .. Wages cannot be increased until the revenue will warrant same, and such condition does not exist now . . . As to the, future, they are willing to better the conditions of their em- ployees as to pay, hours, and working conditions when, in their judgment, conditions will permit. . .. In keeping with these rules and regulations (of the Texas: Railroad Commission), these companies will preserve the sen- iority rule as it now exists, reserving the right to exercise their judgment in determining the fitness and qualifications aforemen- tioned. * * * * * * * ... Common carriers must accept freight when offered for- shipment and must. deliver it in due course; otherwise, the fed- eral and state laws penalize them by. imposing fines and finally may cancel their permits of operation for failure to perform., Such an agreement as you propose (regarding picket lines),, would constitute a flagrant violation of these requirements on., its face. Keeping the door open for "further negotiations," the respondents:, declined to execute a contract containing any items of the Union's. demands but that the schedule of hours in force January 1, 1938,, remain unchanged. On March 17, 1938, the Union hastened to respond by letter "de-. manding something besides `a :bunch of poppy coc' (sic), which as- we ' see it is all, we,have,.ever.gotten . .. As you will recall, on more, than one occasion, you have been asked if you can't sign our. proposals„ 190935-40-vol. 14--28 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to give us what you can or will sign in the matter of an agreement or contract . . . we do not believe, according to your letters, that there is any contract which we might submit that you would attempt to do anything with except offer your objections." Rawlings & Sayers denied the accusation by letter dated March 29 in reply, and protested, "We still have an open mind in respect to these matters, and will be glad to discuss them further at your convenience." Therein Sayers suggested that, because of a difference in the operations of the two respondents, negotiations and discussions on their behalf thereafter be separated. On April 7, 1938, the group again met, LeBaron attending to offer the good offices of the Regional Director. Sayers commenced to restate seriatim the objections which the respondents had to the Union's proposed contract. The Union representatives asked whether the objections and reasons were the same as had been theretofore expressed. Sayers said they were. He did not submit any counter- proposals, but maintained that the Board might best decide whether or not the course of dealings constituted collective bargaining. The Union would prolong the conference no further. Two months later Rawlings & Sayers submitted to the Union, :through- J. C. Cooper of the Department of Labor Conciliation Serv- ice as intermediary, a document purporting to set forth in three para- graphs the respondents' counterproposals. The first recognizes the :Union as exclusive representative of their employees for the purposes .of collective bargaining.' The other two paragraphs are set forth in full below : II Effective as of this date, the rates of pay, wages, hours of .employment and other conditions of employment which have heretofore been adopted and are now in force with respect to such relations existing between this company and its respective employees, are hereby recognized and the same shall remain in full force and effect until such time as the management of this .company shall conclude that it is for the best interest of the com- pany to change, modify, increase or decrease same, and in the .event the management of this company concludes that any change shall be made it reserves the right to make such changes, provided that same will not be made until a conference has been had with the bargaining committee. Any change made shall be- come effective thereafter by notifying the employee involved or affected by such change or modification and the conclusion reached by the management of this company, after consulting said bar- gaining committee, shall in all things be final. DALLAS CARTAGE COMPANY III 425 The policy of this company heretofore and now has been to normally exercise the right to select its employees or to discharge them for cause. A continuation of this policy and right is hereby reserved in the management of this company, and in the exercise of such right, the management will not discriminate against any employee because of his union or non-union affiliation, but the employees' respective rights will be considered without regard to whether they do or do not belong to any union or other organi- zation. The business policy, management, and control of this company is now and shall at all times be fully vested in the man- ager and other agents selected and appointed by it, and such agencies may, at any time, for any reason, change, alter or modify such policies, in which event the action of said agencies of this company shall be final. [Emphasis supplied.] The respondents contend that the foregoing declaration of their intentions, taken with all the conferences and correspondence re- ferred to, discharged their duty of collective bargaining under the Act. In their expatiations on objections to the Union's demands and in this document the Board is asked to find that the respondents not only bargained honestly over terms but in fact made serious counter- proposals looking toward an agreement. In Globe Cotton Mills v. National Labor Relations Board, 103 F. (2d)'91 (C: C. A. 5th, 1939), the Court said, in enforcing that part of the Board's Order G requiring the employer to bargain collectively : there is a duty . . . to enter into discussion with an open and fair mind, and a sincere purpose to. find a basis of agreement touching wages and hours and conditions of labor, and if found to embody it in a contract as specific as possible, which shall stand as a mutual guaranty of conduct, and as a guide for the adjustment of grievances. In that case the Board had decided as follows: Although . . . the respondent met with the Union representa- tives, received proposals, accorded such proposals ostensible con- sideration and engaged in discussions of them, an analysis of this conduct compels the conclusion that in fact the respondent did not recede from or alter in any material particular its position of May 17 (that it would not'bargain). Throughout the con- ferences,' the respondent not only systematically rejected each and every Union proposal, . . . but also persistently declined to Matter of Globe Cotton Mills and Tewtile Workers Organizing Committee, 6 N. L. R. B. 461. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make any counter-proposals. Counsel for the respondent argues in his brief that since it expressed its views in open conference and since its ideas were not acceptable to the committee, it would have been a vain and foolish thing to submit a formal proposal to the same effect. This argument has a surface plausibility but the difficulty with it lies in the fact that while rejecting the Union's proposals in open discussion the respondent not only did not give but in fact carefully avoided any affirmative indi- cation of possible terms upon which it would be willing to agree. It is obvious that this technique was calculated to and did make any productive negotiations impossible. The respondent's tactics in readily participating in discussions in which its agents carefully avoided any semblance of agreement to proposed terms and offered no suggestions for changes accept- able to them convince us that the respondent only sought to give the appearance of obedience to the Act without ever entering into genuine collective bargaining. Notwithstanding that the employer believed there was no occasion for a contract, the Court said on review, it was under a duty to join in formulating one to which both parties could agree, fixing terms as definitely as possible and for such duration as might be agreeable, whether on its present basis of operations or a new one; and while a counterproposal is not indispensable to bargaining, "still when a counterproposal is'directly asked for, it ought to be made, for the resistance in discussion may have been only strategy and not a fixed final intention." We turn now to consider the respondents' purpose in dealing with the Union, as reflected in what they did. They met each and every consequential demand of the Union with captious criticism or blunt refusal. The full correspondence written by their attorneys is richly interlarded with legalistic and sometimes specious arguments. No concession or modification offered by the Union to meet the respond- ents'"objections served to provide a common basis of understanding, for new grounds of criticism were offered on each occasion. On the other hand, every apparent concession made by the respondents was retracted and dissipated on being taken seriously. Typical of the device employed was the respondents' treatment of the proposals for seniority and arbitration. At first, the respondents' only objec- tion to the seniority provision was that it was limited in application to the reduction of working force. The implication that the prin- ciple of such regulation was acceptable drew strength from the re- spondents' further suggestion that the provision be enlarged to cover every phase of the employees' status. Upon revision accordingly, the DALLAS CARTAGE COMPANY 427 criticism turned to the fact that seniority was set up on a plant,. rather than a work-classification basis. The implication grew even stronger, only to collapse when at last, the criticism met, the respondents in- sisted on subordinating the right to their own power to determine all questions of personnel as in the past. More evanescent still was the hope of arriving at an agreement on arbitration. At one stage the provision submitted by the Union was criticized principally for indefiniteness as to the periods of time in which the machinery of arbitration must operate. That adjusted, a common-law arbitration became objectionable as cumbersome and futile, but a statutory arbi- tration under the laws of Texas governing labor disputes' would be agreeable. Finally, arbitration in any form was refused as an abdication of the respondents' power of management. The testimony of Sayers reveals the device employed to obstruct the reaching of an agreement : Q. What did you have to say at this meeting about arbitration, about the management's attitude towards arbitration? * * * * * * A. That under the decisions of our Supreme Court, a common law arbitration agreement, such as proposed here was not-didn't carry any verity, it had to be enforced in a court of competent jurisdiction . . . and in as much as they would eventually have to go to the courts for an enforcement of that agreement, that I thought it was a useless consumption of time, and would serve no good purpose. Q. Did you offer any counter proposal, that is any machinery to take the place of the arbitration machinery? A. Yes. Q. What was that? A. That there is an arbitration statute governing labor in Texas, and that if that were followed we would have an enforce- able arbitration agreement. * * * * * * * Q. You were willing then to agree to an arbitration setup such as that outlined in the statutes of the State of Texas? A. That is right, on the assumption that it would eventually- either party would have a right to go to court to determine their rights. I will be perfectly frank, my answer to them was always that I was opposed to substitute a board of arbitration for the constituted courts of this country; I repeated that many times to them. 'Title 10, Articles 239-243, Civil Statutes, 1925. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Well now, Mr. Sayers, isn't it true that the award of an. arbitration board, even one set up following the state's statutes can be enforced only through the courts? A. That is why it is valid, yes sir. Q. Why then would you agree to that and not to the arbitra- tion as set up in the contract? A. The arbitration set up in the contract as I said before was meaningless to me under the decisions of our courts; you eventu- ally had to get in court to settle your dispute; why not cut across and go there in the first instance. If there were still any doubt as to the respondents' attitude toward collective bargaining with the Union as demanded, it must be dis- pelled by a consideration of the contents of their so-called counter- proposal, which Sayers testified he had drafted in November 1937. The. document contains a wholly illusory commitment on the respond- ents' part, except that it grants recognition to the Union as exclusive bargaining agent. It promises adherence to the Act's prohibition of any discrimination against employees for their union affiliation, and emphasizes the management's right to change at will the "business policy" of tho company. Paragraph II of the "counter-proposal" limits the respondent's conception of collective bargaining to "consul- tation" with the Union whenever it decides to make any changes in existing wages, hours, and conditions of employment, to be followed by notification to the employees of such changes. It is not enough that the respondents met and discussed with the Union its demands. In Matter of St. Joseph Stock Yards Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 159,8 the Board said : An assertion that collective bargaining constitutes no more than discussion designed to clarify employer policy and does not include negotiations looking toward the adoption of a binding agreement between employer and employees is contrary to any realistic view of labor relations. The development of those rela- tions had progressed too far when the Act was adopted to permit the conclusion that the Congress intended to safeguard only the barren right of discussion. That the respondents themselves recognized no sense of their re- sponsibility to bargain collectively is betrayed by the wage-cut action of the respondent Dallas. While the alleged process of bargaining was going forward and the Union awaited financial statements by which to guide the fixing of scales, that respondent took drastic uni- lateral action without consultation with or previous notice to the very 8 2 N. L. R. B. 39. DALLAS CARTAGE COMPANY 429 party with which it was presumably. dealing on that topic in good faith. The respondent Interstate took no such action, wrote Sayers in one of his letters, because its business had not fallen off appreciably. It seemed not to occur to the respondents or their attorneys that it was of the essence of collective bargaining that no rupture be created in their dealings by forcing upon the Union a fait accompli in a matter then under negotiation. As we regard the entire record, the conclusion is inescapable that the respondents neither bargained nor intended to bargain collectively with the Union. They shrewdly recognized the Union for what it claimed to be and accorded it the courtesy of interviews. They lis- tened with respectful attention to the Union's demands and pretended to weigh and trade advantage against disadvantage, as might be expected of persons genuinely engaged in a bargaining effort. They affected some semblance of an endeavor to reach a mutual understand- ing, but on scrutinizing the verbiage to which they resorted we find that this effort was palpably insincere. There remains but one contention of the respondent Interstate to. consider. It urges that, on or about October 7, 1937, at a meeting between Sayers and Cusack which Ford attended, it was agreed that. Cusack should submit a separate draft of contract to fit the peculiar conditions of the business of that respondent. Cusack was to procure detailed information concerning its business from W. F. Reed, an employee of the respondent Interstate who was a member of the Union committee. As such separate draft was never submitted, it is claimed,, there no longer existed a subject matter of collective bargaining upon which to predicate a refusal. This argument fails, however, in the light of the admission in that respondent's answer that it nevertheless continued to negotiate with the Union committee upon the original demands. Moreover,, although Cusack was soon thereafter relieved of his engagement as attorney for the Union, neither the respondent Interstate nor Rawlings & Sayers renewed their request for the segregation of negotiations until March 29, 1938, when the attorneys pointed out the existence of a difference in their clients' opierations. They wrote : "* * * I thought the negotiations could be carried on for both of these companies together without any conflict. Probably I was wrong in this conclusion and it may be best for us to separate the negotiations and discuss them one from the other. I wish you and your committee would give some thought to this as it may be helpful." We also observe that every letter sent to the Union by Rawlings & Sayers in connection with the proposed uniform contract for the two respondents was expressly stated to be written on be- half of both of them, without mention of any distinction between their respective objections. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that on September 20, 1937, and at all times thereafter, the respondents refused to bargain collectively with the Union as the representative of all their employees in the respective appropriate units hereinbefore described, with respect to rates of pay, wages, hours of employment, and other conditions of employment. We also find that by such refusal the respondents have interfered with, restrained, and coerced their respective employees in the exercise of the rights guaranteed by Section 7 of the Act. B. The discharge of Petty Eddie L. Petty had been in the employ of the respondent Dallas since May 15, 1933. For a few months his job was to unload freight at the depot. After September 20, 1933, he was assigned the exclu- sive task of checking freight out of the Brown Candy & Cracker Company, whose products the respondent Dallas loaded and delivered to the various carriers for shipment. Besides checking the freight, he generally assisted the truck driver and helper in the loading. On occasion too, especially for rush deliveries at unusual hours, he drove that respondent's trucks, both bob-tails and 6-wheelers, from the garage to the platform to have ready for an early start. His work was done satisfactorily and his ability was never questioned. In the course of his employment he received several wage increases. On being dismissed he was given letters of unstinted recommenda- tion by the respondent Dallas. In the autumn of 1937 the Brown Candy & Cracker Company, because of a dispute in which it was engaged with the carriers, effected a change in its method of shipment, with the result that the volume of the respondent Dallas' freight business from that cus- tomer diminished month by month from 639,000 pounds in October 1937 to 272,000 pounds in January 1938, and thereafter, by May 1938, to 144,000 pounds. Petty was aware of the course of that sharp decline and in December 1937 had been told by Williams, that respondent's president, that expenses in handling this particular account would have to be reduced. On January 19, 1938, Nelson, the general manager, notified Petty that his employment would terminate on the next day, because of the loss of business. Petty asked Williams and Nelson on several occa- sions thereafter for other employment with the respondent Dallas, claiming a right of preference based on the length of his service. Although he was promised consideration, he was not reemployed by that respondent, notwithstanding that several new hands were later hired from time to time for dock work and truck driving. The curtailed freight operations at the Brown Candy & Cracker Company platform continued to be handled by the truck driver and helper alone, without the services of a checker. DALLAS CARTAGE COMPANY 431 The _ Union contends that Petty was discharged and refused em- ployment by the respondent Dallas because of his union activities. Petty was a charter member of the Union, which was organized June 27, 1937. He was its recording secretary . As such he signed and delivered its various resolutions and communications to the respondent Dallas in the course of the Union's efforts at collective bargaining with that respondent. For these activities and for the purpose of diverting the course of such efforts on the Union's part,, the latter maintains, Petty was singled out for discriminatory treat- ment. It points to the fact that, while he was not replaced at the job he had been doing, his work was absorbed by men his junior in point of service ; and that he was refused other work for which he claims to have been qualified. Disputing his qualification for any other work available, the respondent Dallas contends that it "let (Petty) go because the job played out," and for no other reason. The Union's contention has no support in the record. The respond- ent Dallas is not shown to have had any objection whatever to any particular employee's membership or activity in the Union. Petty wore his union button on the job without comment by his superiors. He was the least militant and influential officer of the Union in that respondent's employ. The respondent's dealings with the Union were conducted in a manner free from any suspicion of discrimination directed against individual members of the Union. We find that by discharging Petty the respondent Dallas did not discriminate in regard to his hire and tenure of employment. The allegations of the complaint against the respondent Dallas with respect to Petty will be dismissed. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find. that the activities of the respondents set forth in Section III A above, occurring in connection with the operation of the respondents described in Section I above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Finding that the respondents have engaged in unfair labor prac- tices, we shall order them severally to cease and desist therefrom and to take such affirmative action as will remedy the effects thereof. We have found that on September 20, 1937 , and at all times there- after the respondents refused to bargain collectively with the Union as the exclusive representative of their employees in the respective 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate units.' Accordingly, in order to effectuate the purposes of the Act, we shall order each of the respondents to cease and desist from this unfair labor practice, and upon request to bargain collec- tively with the Union as such exclusive representative, in respect to rates of pay, wages, hours of employment, and other conditions of employment. We shall further order each of the respondents to take -certain other action more particularly specified below. Upon the basis of the above findings of fact and upon the entire -record in the cases, the Board- makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs,. Stablemen and Helpers of America, Local Union No. 745, is a labor organization within the meaning of Section 2 (5) of the Act. . . 2. The truck drivers, helpers, dockmen (including the "extra dock- men" on regular call), and checkers in the employ of the respondent Dallas constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act,. 3. The truck drivers, warehousemen, and checkers in the employ ,of the respondent Interstate constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745, was on September 20, 1937, and at all times since has been, the exclusive representative of all employees of the respondents in such respective units for the purposes of collective bargaining; within the meaning of Section 9 (a) of the Act. 5. By refusing on September 20, 1937, and at all times thereafter, ,to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745, as the exclusive representative of all their employees in the respec- 1,ive appropriate units, the respondents have each engaged in and are engaging in unfair labor practices, within the meaning of Sec- tion 8 (5) of the Act. 6. By interfering with, restraining, and coercing their respective employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have each engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. By discharging Eddie L. Petty, the respondent Dallas did not engage in any unfair labor practice, within the meaning of Section 8 (1) or (3) of the Act, as alleged in the complaint. . DALLAS CARTAGE COMPANY ORDER' 433 .Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that, 1. Dallas Cartage Company, Dallas, Texas, and its officers, agents, successors, and assigns shall cease and desist from : (a) Refusing to bargain collectively with the exclusive representa- tive of all its truck drivers, helpers, dockmen (including the "extra dockmen" on regular call), and checkers, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties, for the purposes of collective bargaining or other mutual aid and protection, as guaranteed by Section 7 of the Act. 2. Interstate Fireproof Storage and Transfer Company, Dallas, Texas, and its officers, agents, successors, and assigns shall cease and desist from : (a) Refusing to-bargain collectively with the exclusive represent- ative of all its truck drivers, warehousemen, and checkers, in respect to rates-of pay, wages, hours of employment, and other conditions of employment; (b) In any other manner interfering' with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purposes of collective bargaining or other mutual aid and protection, as guaranteed by Section 7 of' the Act. 3. Dallas Cartage Company, Dallas, Texas, and its officers, agents, successors, and assigns shall take the following affirmative action, which the Board finds will effectuate the policies of the Act : Upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745, as the exclusive representative of all its truck drivers, helpers, dockmen (including "extra dockmen" on regular call), and checkers, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on such matters, embody said understanding in a signed agreement, if requested to do so by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745. 4. Interstate Fireproof Storage and Transfer Company, and its officers, agents, successors, and assigns shall take the following af- firmative action, which the Board finds will effectuate the policies 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act : Upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745, as the exclusive representative of all .its truck drivers, warehousemen, and checkers, in respect to rates of pay, wages, hours of employment, and other conditions of employ-- ment, and, if an understanding is reached on such matters, embody said understanding in a signed agreement if requested to do so by International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local Union No. 745. 5. Dallas Cartage Company and Interstate Fireproof Storage and Transfer Company, both of Dallas, Texas, and their respective of- ficers, agents, successors, and assigns shall severally take the follow- ing further affirmative action, which the Board finds will effectuate- the policies of the Act : (a) Post immediately and keep posted for a period of at least. sixty (60) consecutive days from the date of posting, throughout their respective warehouses, garages, and loading platforms, notices: to their respective employees that they and each of them respectively will cease and desist in the manner set forth in paragraphs 1 (a) and (b) and 2 (a) and (b), and will take the affirmative action set -forth in paragraphs 3 and 4 of this Order; (b) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this Order what steps they and each of them have taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint against Dallas Cartage Company, in so far as it alleges that said respondent, by discharging Eddie L. Petty, engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, be, and the same hereby is, dismissed.. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.