Alamo Express, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1957

119 N.L.R.B. 6 (N.L.R.B. 1957)

'6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its exception, the Petitioner states, that the Regional Director
failed to verify Pretitioner's third objection- from the books of the,
Employer: In, the Petitioner's- view the Regional Director should
have determined whether any employee received unearned compensa-
tion immediately before election. The Regional Director is not re-
quired to investigate unsubstantiated charges. The complaining party
must furnish more than mere allegations. This the -Petitioner has
failed to do.2 Moreover, Petitioner's exception is now no more cor-
roborated with fact than its original objections to the Regional
Director. Therefore, in accordance with settled Board policy, we
overrule the exception in its entirety.3
Since Petitioner did not secure-a- majority of the valid votes cast
-in the election and since its exception is overruled, we will certify
the results of the election.
[The Board certified that a majority of the valid ballots was not
,cast for the International Electrical, -Radio and Machine Workers,
United Optical Workers Union, Local 408, AFL-CIO, and that this
-labor organization is therefore not the exclusive representative of the
employees of the Employer.]
CIiAZRMAN LEEDOM and MEri sER MURDOCK took no part in the con-
sideration of the above Decision and Certification of Results of
Election.
2The Rankle Company of Texas , 117 NLRB 462 ; H'fncher Manufacturing Company, 306'
NLRB 1314, 1316.
N. B. Liebman f Company, Inc., 112 " NLRB 88, 90.
Alamo Express , Inc., and Alamo Cartage Company and General
Drivers, Warehousemen & Helpers, Local 968, AFL-CIQ. Case
No. 39-CA-500. October 18,1957
DECISION AND ORDER
On March 12, 1957, Trial Examiner Herbert Silberman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom
and take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in other unfair labor practices and
recommended that the complaint be dismissed with respect thereto.'
:'There being no exceptions thereto, and -without passing on the merits, we adopt the
Trial Examiner 's recommendations that the allegations of the complaint - regarding- the
-discharges of Perfecto Tey, C. L. Vinson, Rubin Garza, and Teroy Riggans be dismissed.
119 NLRB No. 8.
ALAMO EXPRESS, INC. 7
Thereafter,, the Respondents, filed exceptions to the Intermediate
Report and a supporting brief.
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 [Chairman Leedom and Members Murdock and Rodgers].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondents' exceptions and brief, and the entire-
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modification noted.
below 2
Under all the circumstances, we agree with the Trial Examiner that
the Respondents, in violation of Section 8 (a) (1), (3), and (4) of
the Act, engaged in conduct which included interrogation of employees
concerning their union views, threats of discharge for union adherence,,
discharge of five employees for union adherence, and transfer and.
layoff of another employee because he gave testimony under the Act
adverse to the Respondents, as more fully set forth in the Intermediate
Report.
The record in this case shows not only that the Respondents mani-
fested opposition to union organization of their employees but also
that they questioned the employees concerning their union views and
resorted to threats to induce them not to affiliate with the Union.
For example, according to testimony credited by the Trial Examiner,
Vice President Shuler told one employee that "the Company would
never go union" and that "J. Leo Walker [a principal stockholder-
and officer of the Respondents] would go out of business if the union
came in." To another employee, Shuler stated : "If it goes union all
the union men are out of a job." Shuler also told a group of em-
ployees that, although he would like to keep them in the Respondents'
employ, they would be replaced if they continued in the Union.
Management representatives, including Shuler, questioned employees
as to whether they were union members and as to how they intended.
to vote in a forthcoming Board election, and Shuler inquired of one
employee as to whether he had decided to withdraw from the Union.
The record also shows that, even after the Union had lost the afore-
mentioned election, the Respondents planned to eliminate from em-
ployment those employees who adhered to the Union; and that, to
accomplish this purpose, the Respondents scrutinized the work of
union adherents to find pretexts for discharging them, even seeking
' In addition to the factors relied on by the Trial Examiner in concluding that the
Respondents unlawfully transferred and later laid off C . L. Solomon , we rely on the fact
that, on the day of Solomon 's layoff, the Respondents hired a former employee to do work
which Solomon was qualified to do, notwithstanding the Respondents ' assertion that the
layoff was motivated by a lack of work.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to entrap employees to manufacture such pretexts. This technique
was disclosed at the hearing in part by Todora Rucker. Based upon
Rucker's credited testimony, the Trial Examiner found that in a con-
versation between Dock Foreman Herman Chance and Rucker, Chance
stated that "the Company knew several employees to be union sympa-
thizers and intended to discharge them ... it was the [Respondents']
purpose to get rid of union sympathizers (specifically mentioning
Joe Barrera, who had already been discharged, and Rosales, who was
discharged the next week) so that the Union would be unable to
obtain another election in the future; and that [Terminal Manager]
Heneger asked him [Chance] to report if Rosales made a mistake
and to try to help Rosales make a mistake." Barrera and Rosales are
two of the employees found by the Trial Examiner to have been
unlawfully discharged.
The foregoing are but illustrative of numerous incidents relied on
by the Trial Examiner in making his unfair labor practice findings.
Based on the entire record, we are convinced, and find, that a pre-
ponderance of the credible evidence establishes that the Respondents
engaged in the unfair labor practices found by the Trial Examiner. '
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Alamo Express, Inc., and
Alamo Cartage Company, their officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership in General Drivers, Warehousemen
& Helpers, Local 968, AFL-CIO, or any other labor organization, by
discharging any of their employees or otherwise discriminating in
regard to their employees' hire or tenure of employment or any term
or condition of employment.
(b) Discharging or otherwise discriminating against any employee
because he has given testimony under the Act.
(c) Coercively or otherwise unlawfully interrogating employees
concerning their membership in, or activities on behalf of, General
Drivers, Warehousemen & Helpers, Local 968, AFL-CIO, or any other
labor organization; or interrogating employees with regard to their
knowledge of the union affiliations or sympathies of other employees.
(d) Sponsoring or endorsing the efforts. of employees to induce
other employees to refrain from joining or supporting General
Drivers, Warehousemen & Helpers, Local 968, AFL-CIO, or any other
labor organization.
(e) Threatening employees with discharge or other reprisals or
promising them benefits to discourage their affiliation with, or support
ALAMO EXPRESS, INC. 9
of, General Drivers, Warehousemen & Helpers, Local 968, AFL-CIO,
or any other labor organization.
(f) Threatening that Respondents will discontinue their business
if their employees designate General Drivers, Warehousemen & Help-
ers, Local 968, AFL-CIO, or any other labor organization, as their
collective-bargaining representative.
(g) Threatening that Respondents will not bargain with any labor
organization duly selected by their employees as their collective-
bargaining representative.
(h) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist General Drivers, Ware-
housemen & Helpers, Local 968, AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer Alonzo Amos Hill, Lawrence Jordan, C. L. Solomon,
Raul C. Gamez, Joe Barrera, and Dionaces Rosales immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges,
and make them whole in the manner set forth in the section of the
Intermediate Report entitled "The Remedy" for any loss of earnings
they may have suffered by reason of the Respondents' discrimination
against them.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due and the rights of employment under the terms of this Order.
(c) Post at their offices and terminals copies of the notice attached
hereto and marked "Appendix." 8 Copies of said notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall,
after being duly signed in behalf of the Respondents, be posted by
them immediately upon receipt thereof and maintained by them for
sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Rea-
3 In 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."
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondents discriminated in
regard to the hire and tenure of employment of Teroy Riggans, C. L.
Vinson, Rubin Garza, and Perfecto Tey, in violation of Section 8
(a) (1) and (3) of the Act.
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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate any of our employees regarding their
union membership or activities or their knowledge of the union
affiliations or sympathies of others in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8 (a) (1) of
the Act.
WE WILL NOT sponsor or endorse the efforts of employees to
induce others to refrain from joining or supporting General
Drivers, Warehousemen & Helpers, Local 968, AFL-CIO, or
any other labor organization.
WE WILL NOT threaten employees with discharge or other
reprisals or promise them benefits to discourage their affiliation
with or support of any labor organization.
WE WILL NOT make threats that we will discontinue our business
if the employees designate General Drivers, Warehousemen &
Helpers, Local 968, AFL-CIO, or any other labor organization,
as their collective-bargaining representative.
WE WILL NOT make threats that we will refuse to bargain with
any labor organization duly selected by our employees as their
collective-bargaining representative.
WE WILL NOT discourage membership in General Drivers, Ware-
housemen & Helpers, Local 968, AFL-CIO, or any other labor
organization, by discharging any of our employees, or in any
other manner discriminating against them in regard to their hire
or tenure of employment, or any term or condition of employment.
WE WILL NOT discharge or otherwise discriminate against any
employee because he has given testimony under the Act.
. WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
ALAMO EXPRESS, INC. 11
tion, to form labor organizations, to join or assist General Drivers,.
Warehousemen & Helpers, Local 968, AFL-CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to. refrain from any or all such activities except to
the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Alonzo Amos Hill, Lawrence Jordan, C. L.
Solomon, Raul C. Gamez, Joe Barrera and Dionaces Rosales
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges and will make them whole for any loss of
,earnings they may have suffered by reason of their discharge.
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-named . union or any
other labor organization, except to the extent that this right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY,
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 charges duly filed by General Drivers , Warehousemen &.Helpers, Local
968, AFL-CIO, herein called the Union, the General Counsel of the National
Labor Relations Board , by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued a complaint , dated October 27, 1955, against the Respondents,
Alamo Express , Inc., and Alamo Cartage Company. On May 29, 1956, a
first amended complaint was issued alleging that the Respondents had engaged in
and were engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, complaints,
and notices of hearing were duly served on the parties . The Respondents filed
verified answers to the complaints in which they denied having committed the
alleged unfair labor practices.
With respect to the unfair labor practices , the first amended complaint alleges,
in substance , that since about April 1, 1955, the Respondents by various acts set
forth therein have interfered with, restrained , and coerced their employees in the
exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8 (a)
(1) thereof, and between November 1, 1955, and May 6, 1956, discriminatorily
discharged nine employees in reprisal for their support of the Union, in violation
of Section 8 (a) (1) and (3) of the Act.
Pursuant to notice , a hearing was held on various dates between July 11 and
July 20, 1956, at Houston , Corpus Christi, and San Antonio, Texas, before Herbert
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silberman , the duly designated Trial Examiner . The Trial Examiner granted
motions made by the General Counsel at the close of the hearing to further amend
the first amended complaint with respect to minor matters and to conform the
pleadings to the proof . Thereafter , counsel for the General Counsel duly served
upon the other parties and filed with the Trial Examiner a motion to reopen the
record in this case , for leave to further amend the complaint herein and for a
hearing with respect to the matters set forth in the proposed amendments to the
complaint . On December 17, 1956, the Trial Examiner caused to be served upon:
the parties an order to show cause why said motion should not be granted, and
Respondents duly served and filed their reply in opposition to the General Counsel's
motion . On January 8, 1957, the Trial Examiner issued an order granting the
said motion . In substance , the further amendment to the complaint herein , alleges
that Respondents , in violation of Section 8 ( a) (1), (3), and ( 4) of the Act, on
July 13, 1956, transferred C. L. Solomon to a less desirable position and on
October 1, 1956, laid off or discharged C. L. Solomon for the reasons that C. L.
Solomon had joined or assisted the Union and on July 12, 1956, at the hearing
in this cause , gave testimony adverse to the Respondents . Respondents duly filed
a supplemental answer denying the commission of the said additional unfair labor
practices . Pursuant to notice a further hearing in this case was held on February 5,
1957, in Houston , Texas.
All parties were represented at the hearings by counsel and were afforded full
opportunity to be heard , to examine and cross -examine witnesses , to introduce
evidence pertinent to the issues , to present oral argument at the close of the
hearings and to file briefs and proposed findings of fact and conclusions of law
with the Trial Examiner . Briefs were received from the General Counsel and
the Respondents and have been carefully considered.
Upon the record in the case , and from my observation of the demeanor of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents admit the following allegations of the amended complaint:
Alamo Express , Inc., and Alamo Cartage Company , which are Texas corporations,
are so integrated as to form and constitute a single employer . Respondents are a
common carrier engaged in the transportation of freight by motor vehicles within
the State of Texas and operate under licenses issued by the Interstate Commerce
Commission . They operate freight terminals in 15 cities located in the State of
Texas and have their principal offices and place of business in San Antonio , Texas.
During the 12-month period preceding the issuance of the first amended complaint,
which period is representative of all times material hereto , Respondents' gross
revenue from their business operations was in excess of $ 3,000,000. Of this, air
amount in excess of $ 100,000 was derived from interchanging and interlining freight
with other carriers engaged in interstate commerce and operating under licenses
issued by the Interstate Commerce Commission . Upon the basis of the foregoing,
I find that the Respondents , during all times relevant herein, were engaged in
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers , Warehousemen & Helpers, Local 968, AFL-CIO, an affiliate of
International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory findings
Substantially all the events with which this proceeding is concerned took place
in Houston , Victoria , and Corpus Christi, Texas , where Respondents maintain
freight terminals.
1. Management hierarchy
J. Leo Walker and Louis E. Hart, who own substantially all the stock in Respond-
ents, are the Companies ' principal executive officers. Mr. Hart is primarily con-
cerned with sales while Mr. Walker is in charge of operations . The latter exercises
exclusive authority with regard to the hire and discharge of all employees , except
construction workers, and in these matters Walker usually follows the recommenda-
ALAMO EXPRESS, INC. 13
Lions of his subordinates. Although Respondents' supervisors customarily obtain
Walker's prior approval before discharging any employee, they have authority to
suspend an employee from duty and to stop his pay without advance permission.
.In such cases the action does not become final until confirmed by Walker.
Walker and Hart maintain their offices in San Antonio, Texas, where Respondents'
principal place of business is located. Also residing in San Antonio is W. A. Shuler,
a vice president of the Companies, who exercises general supervision of the over-
the-road drivers throughout the Respondents' freight system and also is responsible
for the maintenance of vehicles and the movement of freight. Shuler's duties
require his frequent visits to Respondents' various terminals.
Each of Respondents' freight terminals is in charge of a local manager . During
the times material herein, Henry D. Walker, J. Leo Walker's brother, was the ter-
minal manager at Houston. Also exercising supervisory functions at this terminal
were James Fitch, dock foreman, and Ike Burrows, dispatcher. James E. Heneger,
a vice president of the Companies, has been acting as terminal manager at Corpus
Christi since about January 15, 1956. Prior thereto, Ralph Koenig was terminal
manager. However, Heneger, who has been-in general charge of Respondents' op-
erations in the entire Corpus Christi area for more than 7 years, was Koenig's im-
mediate superior while the latter was manager of the Corpus Christi terminal. At
the time of the events herein, J. H. Mullenix and Herman Chance were dock foremen
and James Martin was the dispatcher at this terminal. With respect to Respondents'
Victoria operations, Claude F. Phan was terminal manager until about January 15,
1956, when he was succeeded by Ralph Koenig.
2. Questions as to agency
Respondents do not dispute that all the persons hereinabove named were its agents
within the meaning of the Act. It does, however, argue that it should not be
charged with responsibility for alleged unlawful conduct.of certain other individuals.
Among this latter group are included several of Respondents' salesmen, specifically,
George Kelly, Norman D. Rhodes, Harry Allen, and T. W. Longino. As to the
first three there is no evidence that they are supervisors within the meaning of the
Act or have any concern with personnel matters.' Accordingly, I find that re-
sponsibility for their conduct may not be attributed to the Respondents solely by
reason of their positions as salesmen. The situation with regard to Longino is
different. Longino has the title of sales manager. He testified that this is an empty
title and that he exercises no authority over other salesmen. Although the General
Counsel sought to prove that Longino actually performed managerial functions, it
is unnecessary to discuss the evidence adduced in that regard because J. Leo Walker
testified that Longino (together with Hart) is the supervisor of Respondents' other
salesmen. The fact that Longino may not have had occasion to exercise the au-
thority conferred upon him does not divest him of his supervisory status. "It is the
existence of the power which determines the classification." Ohio Power Company
v. N. L. R. B., 176 F. 2d 385, 388 (C. A. 6), cert. denied, 338 U. S. 899. "[O]nce
an -individual has actually been clothed with genuine power to perform a supervisory
function, he thereupon becomes a `supervisor,' even before an opportunity arises
to exercise his power, and even though he may not often find it necessary to exert
the power conferred." N. L. R. B. v. Leland-Gifford Company, 200 F. 2d 620,
625 (C. A. 1). Furthermore,' the fact that with Respondents' permission Longino
holds himself out as, and uses the title of, sales manager would reasonably cause
Respondents ' employees to regard him as a representative of management with au-
thority to speak for Respondents . For these reasons I find that Respondents are
responsible for Longino's conduct discussed below.
The final agency issue relates to the status of James F. Butler . Butler was not
called as a witness . Substantially all the evidence relating to his relationship with
the Respondents was furnished by the testimony of J. Leo Walker. According to
the latter, Alamo Express, Inc., rents the physical properties used in connection with
Respondents' operations from W & H Investment Company, which corporation
is also controlled by J. Leo Walker and Louis E. Hart. Butler is a building con-
tractor 'who "is employed by Alamo Express" to supervise Respondents' physical
premises and to do their construction work. He receives a guaranteed weekly
drawing of $125 and is paid an additional amount at the end of each year. This
additional sum is usually 4 or 5 percent of Respondents' savings computed upon
'In this regard they differ from Personnel Director Strowbridge in Safeway Stores,
Inc., 111 NLRB 968, 975, who "was in a strategic position to translate management
policies to employees."
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the basis of the difference between their actual construction costs and what the costs:
would have been had outside building contractors been called upon to perform
the work. However, the determination of Butler's commission or bonus is somewhat.
indefinite and appears to be within the control and discretion of Respondents. For,.
Walker testified, "last year he [Butler] got $500 commission on the job. This year
I don't know, maybe he will get a commission, maybe he will get a commission
this year, but I don't know how much it is going to be. I haven't agreed on the
basis of the amount to pay him yet." In addition, Respondents furnish Butler with
an automobile and $35 per month for the maintenance thereof plus gasoline and.
oil. Alamo Express, Inc., advances all the capital for Respondents' construction:
work. All materials used by Butler are paid for by W & H Investment Company
and Alamo Express, Inc. In connection with such purchases, Walker testified that:
"maybe Mr. Hart buys it with him or helps him or maybe I will." Likewise, these
corporations pay the .wages and salaries of all employees who work under Butler's,
direction. Butler, however, hires and discharges all construction workers. Walker
testified that Butler has had other construction jobs during the 2 years that his.
current relationship with Respondents has persisted, but was unable to furnish
any specific information in regard. thereto. It is Respondents' position that
Butler is an independent contractor and therefore Respondents are not responsible
for his utterances to their employees, while the General Counsel contends that
Butler is a supervisory employee whose alleged unlawful conduct is attributable to.
Respondents.
Although the Act excludes from the definition of the term "employee" any in-
dividual having the status of an "independent contractor" it does not describe the
characteristics of this status. However, congressional intent is reflected by House
Report No. 245 on H. R. 3020, 80th Cong., 1st Sess. (1947), where the distinction
between the two terms is explained in the following manner:
"Employees" work for wages or salaries under direct supervision. "Independent
contractors" undertake to do a job for a price, decide how the work will be
done, usually hire others to do the work, and depend for their income not
upon wages, but upon the difference between what they pay for goods, ma-
terial, and labor and what they receive for the end result, that is, their profit.
Butler does not depend upon "profits" for his income. He does not undertake to
do any job for Respondents at "a price" nor does he pay for goods, materials, or
labor. He risks no capital and has a guaranteed income of $125 per week which
is augmented by a small yearly bonus or commission in an amount which is deter-
mined by the Respondents based upon a somewhat ambiguous formula. Butler's
compensation arrangement with Respondents therefore has the characteristics of
-a regular salary rather than of a return. from an independent profit-making under-
taking. Although Butler apparently exercises sole supervision over the construction
work, the ultimate right to control the manner in which his services are performed,
realistically viewed, rests with Respondents. Butler has no written contract with
Respondents and his services can be. terminated by the latter at will. Thus, despite
the fact that there may be no one else in Respondents' employ qualified to supervise
construction work, in the event of their displeasure with the manner in which
Butler's services are performed, he can be discharged without.Respondents'-subjecting
themselves to liability for breach of contract and a substitute contractor can be
hired to take his place.
There is no rigid formula for distinguishing an independent contractor from
an employee. The determination in each case depends upon its individual facts.2
The factors present here indicating Butler may be an independent contractor are
that he is free from day-to-day supervision in regard to the construction work he
performs for Respondents, he has authority to hire and discharge the construction
workers and may have the privilege of undertaking construction work for others.
On the other hand, indicating the existence of an employer-employee relationship
between Butler and Respondents are that he incurs no financial risk, all capital and
equipment required for the construction work are furnished by Respondents, the
wages of the construction workers are paid by Respondents, Butler receives a
weekly salary from Respondents, and Respondents have the right to terminate the
relationship at will3 Upon the basis of the foregoing, I find that the dominant
2 N. L. R. B. v. Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C. A. 7), cert.
denied, 335 U. S. 845.
8 "While no single factor considered apart from all other relevant factors is necessarily
determinative of an individual's status as an employee or independent contractor, it is
well settled that the most essential characteristic of an employer-employee relationship
ALAMO EXPRESS, INC. 15
aspect of the relationship between Respondents and Butler is that of employer-
employee and that Butler is not an independent contractor .4 I further find that
Butler is a supervisor within the meaning of the Act. Although it does not appear
that Butler has any direct authority over Respondents ' drivers and dockworkers,
who are involved in this proceeding , there is ample evidence in the record that these
employees understand that Butler is a responsible agent of the Respondents .. Espe-
cially significant in this regard is the uncontradicted testimony of Virgil Jones
that as recently as July 1956 he observed Butler checking freight on the Respondents'
terminal dock in Corpus Christi. Therefore, I also find that Respondents must
assume responsibility for any infringements by Butler upon the protected rights of
Respondents ' drivers and dockworkers.
3. Background
The events litigated herein developed from a union organizing drive begun
among Respondents ' employees in the early spring of 1955 which was spearheaded
by a group of over-the -road drivers domiciled in Houston . There had been several
previous organizational efforts by the Teamsters which Respondents had resisted
successfully . J. Leo Walker testified that in 1946 a representation election was
conducted which the Teamsters lost. Nevertheless , following the election, that labor
organization picketed Respondents ' terminals .5 Further picketing of Respondents'
terminals took place in 1948 and again in 1951 . On the latter occasion the picket-
ing was continued " for several months. Another encounter between Respondents
and the Teamsters occurred in 1953 when the San Antonio Local of the Teamsters
threatened a strike which Respondents succeeded in enjoining.6
About April 1955 Respondents became aware of a new organizational effort
among their employees? Vice President Shuler testified that he had learned that
the over-the-road drivers stationed at the Houston terminal were dissatisfied with
certain conditions of their employment , that they had sought the assistance of the
Union and the Union was planning to call a strike. Shuler therefore went to
Houston to see what he could do to adjust the drivers' complaints . In addition,
Respondents , through the agency of Shuler, Henry Walker, Heneger, and other
supervisors , polled the employees at Houston , Corpus Christi, and others of their
terminals as to whether they would cross a picket line were the Union to call a
strike and also, at the same time, told the employees that there were many appli-
cants for their jobs and those who refused to cross the anticipated picket lines
would be replaced . Despite Respondents ' apprehensions no strike was called in 1955
and no pickets paraded before any of Respondents ' terminals.
In August 1955, at the request of the Teamsters , J. Leo Walker met with the local
representatives of that organization . He rejected their request for a contract. How-
ever, as a result of these conferences , Respondents entered into an agreement with
the Union for an election to determine whether a majority wished to be represented
is the retention by the employer of the right to direct and control the manner in which
the employees ' work shall be performed , that is, the right to determine not only the result
but the methods and means by which the result is to be accomplished . In this con-
nection, it is not necessary that the employer actually direct or control the manner in
which the services are performed . It is sufficient if he has a right to do so. An important
element bearing on the existence of the 'right to control ' is the right of the employer to
hire and discharge the persons doing the work, and where an employer has the right to
terminate the relationship at will it indicates an employer -employee relationship ." Citizen
New8 Company, Inc., 97 NLRB 428, 432.
* The Whiting Lumber Company , 97 NLRB 265.
6 Henry Walker testified that the election and subsequent picketing occurred in 1950.
The administrative records of the National Labor Relations Board do not show that any
election was held in 1950 among any of Respondents ' employees , while they do show that
the Union lost a consent election in Case No . 16-R-2142 , which was held on December 20,
1946.
6 J. Leo Walker testified that in 1953 there was some picketing at Respondents' San
Antonio terminal only. Contrary to this testimony , Henry Walker testified that there was
picketing at the Houston terminal also.
7 Henry Walker testified that he did not become aware of the 1955 organizational drive
until September of that year. This testimony is not credible. Not only did J. Leo Walker,
W. A. Shuler , and James E. Heneger testify that they had learned of organizational
activities among their employees in April 1955 , but Shuler further testified that in April
he discussed with Henry Walker the problems which world arise if a picket line were to be
placed at the Houston terminal.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Union. Pursuant thereto an election was conducted by the National Labor
Relations Board on October 24 through October 27, 1955, at Respondents' various
terminals, which the Union lost.
During all times material hereto Respondents were inexorably opposed to the
organization of their employees by the Union. This is reflected not only by Re-
spondents' unfair labor practices, discussed below, but also by specific expressions
of their antiunion attitude by responsible management representatives. For instance,
Archie S. Calhoun, who was one of the early supporters of the 1955 organizational
effort, testified without contradiction that in May or June of that year in a con-
versation with J. Leo Walker the latter said to him, "I want to tell you one thing.
You are not going to ram that union down my throat. I will go out of business
before I have my place to go union." Respondents' vice president, W. A. Shuler,
testified, as follows:
Q. Did you tell them [Respondents' employees] anything about the com-
pany's opinion on the union or how the company felt on the company being
unionized?-A. That probably was brought up, and I believe one time I made
a statement, or may have made it several times, that they [Respondents] never
had went union.
Q. Did you tell them how the Company felt about the drivers joining the
union?-A. We probably discussed that. I know the Company never had signed
a contract. We had numerous picket lines. I gathered from that they could
figure it out for themselves.
The General Counsel contends that in April 1955 when Respondents learned of
the generating organizational activity among their employees they embarked upon
a course of action designed to prevent the Union from attracting the support of a
majority and in so doing engaged in conduct which unlawfully infringed upon
employees' rights guaranteed by Section 7 of the Act. After the election, and
despite the Union's defeat, according to the General Counsel, Respondents sought
to forestall any future resurgence of organizational interest among their employees
by discharging known union supporters whenever occasions arose which furnished
ostensible justification. It is argued that the employees named in the complaint
were discriminatorily discharged in furtherance of this plan and the reasons advanced
by Respondents for their discharges are mere pretexts disguising Respondents' unlaw-
ful motivation. Respondents, on the other hand, deny the commission of any
unfair labor practices and assert that union membership or activity had no influence
upon their decisions to discharge the said employees.
B. Events at Houston
The Union's most recent drive to organize Respondents' employees was initiated
toward the close of January 1955 by the activity of six over-the-road drivers stationed
at Respondents' Houston terminal. These employees were William Crawford Barnett,
Asa Alton Colburn, Archie S. Calhoun, Clarron R. Chaney, Charles Toon, and
C. L. Vinson. By April Vice President Shuler had learned that the over-the-road
drivers had enlisted the Union's aid to press employment complaints and had heard
rumors that the Union was planning to call a strike. Shuler went to Houston "to
see what could be done about" the drivers' grievances and during April and May
of 1955 spent considerably more time than was his custom at that terminal. During
his stay at Houston he discussed questions relating to the rumored strike with all
the drivers at the terminal. It is alleged that various questions he asked the employees
and statements he made to them at this time violated Section 8 (a) (1) of the Act.
The complaint also alleges that other representatives of management while at Houston
also engaged in conduct infringing upon the rights guaranteed employees by Section
7 of the Act. These latter individuals were J. Leo Walker, Henry Walker, and
James F. Butler.
1. Shuler's conduct
Barnett testified that in early April 1955, Shuler spoke to him and Colburn. Shuler
asked what they thought about the Union and whether they were members. Both
acknowledged their union membership. Shuler then asked when they had joined.
After they replied to this question Shuler said, "Mr. [J. Leo] Walker will close up;
he can't pay-he won't attempt to pay that kind [union] of wages, he doesn't make
that kind of money, and he will close up before he will attempt to pay it." In this
conversation Shuler explained that Mr. Walker "had put in his lifetime making this
freight line and he wouldn't sign a contract with no union to operate it." Later the
same day, according to Barnett's further testimony, Shuler again spoke about the
same subject. On this occasion there were present, in addition to himself, Colburn,
ALAMO EXPRESS, INC. 17
Chaney, and Vinson. There was a discussion about wages and Shuler again said
J. Leo Walker would "close up" before he attempts to meet the union wage scale.
"He told us that all of us that belong to the Union would be fired, of no fault of the
Company's." 8 Barnett testified that Shuler also asked him to withdraw from
the Union and to speak to Colburn, Chaney, and Vinson about withdrawing.
Barnett refused both requests.
Barnett testified to a further meeting with Shuler, which took place about May
1, and which was attended by Colburn, Chaney, Vinson, and Calhoun. According
to Barnett, Shuler asked him if he was going to carry a picket sign on May 15 when
it was rumored a strike would be called. Shuler then said, "Mr. [J. Leo] Walker
will -close up before he will pay the union wages. He doesn't make that kind of
money. . . You will be discharged; every man that refuses to run out on that
strike will be discharged, of no fault of the Company." 9 Colburn's version of this
meeting, although generally corroborating Barnett's testimony, places Shuler's remarks
in a slightly different perspective. According to Colburn, Shuler said' "that the
Company would never go union." Shuler asked if he would cross the picket line
in the event the rumored strike materialized and when Colburn said he would not,
Shuler replied that employees 4vho refused to cross the picket line would be replaced
and substitutes were available. Shuler also said, "he hated to see all of us go out
and get tangled up in something like that [referring to the Union], because we were
all good men and he would like to keep us, but if we persisted in staying in that
union, they were going to have to replace us."
Colburn also testified that a few days later Shuler "asked me if I had decided
whether I was going to pull out of the Union or not. I said I didn't think I was.
He said, `I guess that means you are going to walk [the picket line] on May 15.'
Colburn further testified that about 2 weeks later Shuler told him that J. Leo Walker
would go out of business if the Union came in.
C. L. Vinson testified that about April 25, Shuler called him into Henry Walker's
office, and in the latter's presence, asked Vinson, "What is wrong? Why do you
want the Union?" Vinson replied that he was not making any profit. Shuler
concluded the conversation with the remarks, "A man that doesn't want to better
himself is a pretty sorry man; I wouldn't want him to work for me. . . . If it goes
union all the union men are out of a job. . . . Don't go union." Henry Walker
denied that any such conversation occurred.
Shuler specifically denied that he had asked Barnett to withdraw from the Union
and also denied that he had told Barnett the latter would be fired unless he
withdrew from the Union. Shuler testified that when he was in Houston in April
and May 1955 he discussed the rumored strike with all the drivers there, including
Barnett, Colburn, and Chaney. His object was to find out how many drivers
would cross a picket line in the event of a strike. During these conversations he
discovered who were the supporters of the Union. In Shuler's words, "most of the
men admitted they had a card." Shuler further testified that he told Barnett,
Colburn, and Chaney that if they didn't cross the picket line "I would have to
replace them" 10 Shuler also testified that "I mentioned to all of them that they
would have to have a withdrawal card to run if we had a picket line." 11 Shuler
denied having specifically said to Barnett, Colburn, or Chaney that "J. Leo Walker
8 Barnett also testified, "Of course, I didn't get just what `no fault of the Company's'
would mean."
9 The words "run out" in context mean refuse to drive a truck.
10 Shuler did not specifically deny telling Barnett that all employees who went on strike
would be discharged. He testified he said he would have to replace them, but "I may not
have used the word `replace' every time, but I believe I did specify I would have to have
a man to make that run or take that truck out that night."
11 Shuler explained that a union member is not permitted to cross a picket line. There-
fore, any union adherents among Respondents' employees who intended to cross a picket
line at their premises would have to free themselves from their union obligations by with-
drawing from the Union. If, as Shuler testified, that is what the men understood his
remarks to mean, he told them, in effect, that in the event of a picket line at Respondents'
premises, in order to avoid being replaced, they would have to resign from the Union as
well as refuse to honor the picket line. Shuler further testified that there were occa-
sions in the past when drivers whom Shuler knew were members of the Union crossed that
labor organization's picket line at Respondents' Houston terminal. Qualified by this further
testimony Shuler's remarks about the necessity of a union withdrawal card meant that in
the event of a strike union members would be automatically replaced regardless of whether
they were willing to cross the picket line.
476321-58-vol. 119-3 -
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not pay union wages or sign a union contract," or "[J. Leo Walker] would
close operations before he would pay union wages or sign a union contract,"
However, Shuler testified that he probably told them "we couldn't pay union wages."
He also admitted that he discussed a possible closing down of operations with the
same individuals. In this connection he told them, "if there was enough men
not crossing the picket line we would be closing until we could get enough men
to open up with." Finally, Shuler acknowledged that in his discussions with
the Houston drivers "they could figure it out for themselves" that the Company
was opposed to the Union.
Of the witnesses who testified to the foregoing events, Shuler and Colburn
impressed me as having been the most reliable. Shuler's answers to most questions
asked him on both direct and cross-examination were straightforward. His expo-
sition of the events about which he was questioned was full and, despite some
ambiguity and uncertainty, there was no evident attempt on his part to withhold
material information. Colburn also impressed me as a sincere witness. His answers
were direct, responsive, and unhesitating. He seemed to have an accurate recollec-
tion of the events about'which he testified. Barnett, was a less reliable witness.
He was prone to be argumentative and appeared to embellish upon his recollection
of the events in issue in order to add to the forcefulness of his testimony. Although
I do not believe Barnett strayed far from the truth in giving his account of the
events in issue, nevertheless, his testimony carried with it an element of inexactitude.
Henry Walker impressed me as being totally unreliable. His recollection of many
incidents about which he testified was patently faulty. In addition, his answers
when examined by opposing counsel tended to be vague and evasive.
The evidence with regard to Vice President Shuler's activities at Respondents'
Houston terminal establishes violations of Section 8 (a) (1) of the Act by reason
of:
(1) Unlawful interrogation of Barnett and Colburn. Shuler did not deny
Barnett's testimony that in April 1955 he asked both Colburn and Barnett whether
they were members of-the Union or Colburn's testimony that in the following month
he inquired whether or not Colburn had decided to withdraw from the Union.
Shuler, in effect, acknowledged that he had questioned the employees about their
union membership when he testified, "most of the - men admitted they had a
[union] card." Such interrogation, in the context of Respondents' open hostility
to the Union and Respondents' other unfair labor practices, discussed below, served
to restrain and coerce the employees in the exercise of their right to self-organization
by "its natural tendency to instill in the minds of the employees fear of [future]
discrimination." N. L. R. B. v. West Coast Casket Company, 205 F. 2d 902, 904
(C. A. 9).
(2) Threats that employees who do not withdraw from the Union would be
discharged. I credit Colburn's testimony that about May 1, Shuler said to him and
other employees present, including Barnett, that, although he would like to keep
them in Respondents' employ, if they continued in the Union they would be re-
placed.12 Also Shuler did not deny Vinson's testimony that about April 25, Shuler
said to him, "if it goes union all the union men are out of a job." is -
(3) Threats that Respondents would discontinue their business if the Union were
to be designated as the employees' collective-bargaining representative. Colburn
testified that in the May 1 conversation Shuler said that the Company would never
go union 14 and 2 weeks later told him that L Leo Walker would go out of business
if the Union came in. I credit Colburn's testimony in this regard. Shuler did not
deny having made the remark that the Company would never go union. Although
he answered, "No," when asked by Respondents' counsel whether he had said
that J. Leo Walker "would close operations before he would pay union wages or
sign a union contract," he explained that he "probably" mentioned Respondents
could not pay union wages and further that he spoke to the employees about
Respondents discontinuing operations in the event of successful picketing. In view
121 find Colburn's account of the event more accurate than Barnett's. Shuler did not
specifically deny Colburn's version of the May conversation and did not specifically testify
as to what he did say on that occasion. -
'$ I credit Vinson in this regard, despite Henry Walker's denial that any such conversa-
tion took place.
14 Barnett testified that Shuler said that J. Leo Walker would close up before he would
pay union wages because he could not afford to pay such wages. Although Barnett's
version, in substance, does not differ substantially from Colburn's, I credit the latter's
testimony as being the more accurate.
ALAMO EXPRESS, INC. 19
of the ambiguity of Shuler's testimony in this regard and his failure clearly to deny
Colburn's testimony, I credit Colburn's version of his conversation with Shuler as
reflecting an accurate account of the event.
2. Henry Walker's conduct
Colburn testified that about the middle of April 1955, Henry Walker began a
conversation with him about the Union. According to Colburn, Walker said he
had heard that Colburn was a member of the Union and inquired why Colburn had
joined and why if, he wanted union representation, he did not quit and get a union
job. During this conversation, Walker also said , "before they would be union,
they would pull the door down and go out of business and we would all be out
of a job." 15 I credit Colburn, despite Henry Walker's denial, and find that the
latter's threat to the effect that Respondents would cease operations before they
would recognize the Union as their employees' collective-bargaining representative
is a violation of Section 8 (a) (1) of the Act.
I find Calhoun's uncontradicted testimony that on an occasion when he applied to
Henry Walker for a loan from the credit union, the latter asked "what about that
union ," it does not establish any infringement of employees' rights.
Chaney testified that on Saturday, April 23, 1955, Henry Walker called him
into the office and began a conversation about the Union. Walker said he had
heard that Chaney belonged to the Union and Chaney acknowledged the accuracy
of Walker's information. Then, according to Chaney, "he told me that he had
known that I hadn't belonged to the union before he hired me and that was one
of the reasons, the main reason that he hired me, that I was letting myself be
talked into trouble and that-he told me that all of us involved in the union he
would have to let go; said he had men waiting to replace us. And he wanted me
to talk to Colburn and try to talk him out of belonging to the union, and also
myself to resign and get a withdrawal card from the union. And he said that
Alamo couldn't and wouldn't pay union wages , and . . . that they would close
the doors before they would sign a contract, Mr. Walker, Mr. Leo Walker would."
Chaney further testified that he had another conversation with Henry Walker
which probably took place the following Monday. On this occasion, Walker asked
Chaney whether he had changed his mind about the Union and Chaney replied
that he was going to remain in the Union. Walker then said that "we would
all be fired." I credit Chaney's testimony,1e and find Respondents have violated
Section 8 (a) (1) of the Act by reason of Henry Walker's interrogation of Chaney
as to whether he intended to continue his membership in the Union, Henry Walker's
suggestion that Chaney resign from the Union and urge Colburn to do the same, and
Henry Walker's statements to Chaney that Respondents would "close the doors
before they would sign a contract" and that the union members would be discharged.
The employees whose testimony has been discussed thus far in this Report are
over-the-road drivers who were instrumental in the initiation of the Union's 1955
organizational drive. The Union was successful also in winning the support of
numbers of Respondents' dockworkers and city pickup and delivery drivers and
the complaint avers that Respondents also engaged in conduct infringing upon their
right to self-organization:
Various persons who are employed as dockworkers or city pickup and delivery
drivers at Respondents' Houston terminal testified to conversations with Henry
Walker occurring between April and October 1955 in which they were interrogated
concerning their union membership, their knowledge as to union membership of
other employees, and threatened with reprisals for their union support. Henry
Walker denied all incriminatory statements attributed to him. He admitted having
had conversations with these employees, but testified that the discussion was limited
to inquiries with respect to whether the employees would report to work in the
event of a strike and a picket line. I have considered the testimony of each witness
who was questioned about conversations with Henry Walker separately and in
relation to all other evidence adduced at the hearing concerning the occurrences at
Houston during the period relevant hereto and, despite Henry Walker's controvert-
'6 Colburn also testified that on a later occasion Henry Walker said to him that Re-
spondents were financially unable to pay union wages, that an attempt to pay union wages
would put Respondents out of business, that Leo Walker had worked all his life to build
up the Companies and he refused to go broke by paying union wage scales.
"Henry Walker denied having made the statements testified to by Chaney. According
to Walker, "I told Chaney that I thought there was going to be a picket line and asked him
would he cross it, and if he didn't cross it I would have a man to take his place."
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing testimony , I find that Henry Walker engaged in the following conduct and by
reason thereof Respondents have violated Section 8 (a) (1) of the Act: 17
(1) In June or July 1955, questioning Elmer Thornton as to whether the latter
was a member of the Union.
(2) In the late spring or early summer 1955, questioning Stacy McGregor as
to the latter's knowledge of other employees who signed union cards and suggesting
that McGregor advise his fellow employees "not to mess with" the Union.
3. J. Leo Walker 's conduct
John Woodward testified without contradiction that prior to the October election
J. Leo Walker interrogated him concerning what he knew about the Union and told
him that Respondents were not "able to pay union wages like other freight lines,
that he was a small operator and he couldn 't pay union wages, and he would have
to shut the places up and go out of business." I find the foregoing interrogation
and threats violative of Section 8 (a) (1) of the Act.18
4. James F. Butler's conduct
The evidence relating to Butler's activities is uncontradicted. I find that Re-
spondents have violated Section 8 (a) (1) of the Act by reason of the following
conduct by Butler:
About a week before the October election , interrogating Elmer Thornton con-
cerning his voting intentions and telling Thornton that Respondents would probably
close down if the Union won the election.
About a week before the election stating to George Stewart that "he don 't think
the old man would sign a contract because he can't stand it."
Prior to the October 1955 election questioning John Woodward concerning the
way he intended to vote in the pending election.
Questioning C. L. Solomon , about 3 weeks before the election , concerning his
voting intentions and telling Solomon "that any man that voted for the Union, if
they didn 't win, that he would lose his job," and that J. Leo Walker would not
sign a union contract because he wasn't able to pay union wages and that Respondents
would close up before they went union.
5. The discharges
Alonzo Amos Hill
Hill, who was employed as a city pickup and delivery driver , was discharged on
November 8, 1955. Hill had signed a union card and prior to the election wore a
button on his cap advertising his support for the Union . 19 On the day he was dis-
17I do not credit the testimony of Teroy Riggans which with regard to the events in-
volving Henry Walker is internally inconsistent . I also do not credit the testimony of
L. D. Woodard whose testimony was given haltingly and who appeared to be somewhat
confused concerning the events about which he was questioned at the hearing . I do not
credit the testimony of John Woodward to the extent that it is uncorroborated and con-
troverted by Henry Walker. Woodward was an obviously reluctant witness. He was
unable to recall significant incidents until a prior affidavit was shown to him by the
General Counsel . Then, the testimony he gave on direct examination concerning state-
ments he heard Henry Walker make became confused by his answers on cross -examination
with regard to these same events.
1s I do not credit Alonzo Amos Hill 's testimony , denied by J. Leo Walker, that the
latter told him "everybody that voted for the Union would be fired."
11 Hill testified that about 3 days before the election J. Leo Walker asked him what the
button was . Hill answered that it was a union button to which Walker responded that
those who voted for the Union will be fired . Walker denied having had such conversation.
The latter impressed me as an essentially honest witness . However, his answers to the
questions asked him on direct examination by Respondents ' counsel, as well as on cross-
examination , were curt . Because of this some of his testimony is fraught with ambiguity.
In this instance Walker's unexplained "No" to the question whether he had had "such
conversation" with Hill does not necessarily constitute a denial that he had had some
conversation with Hill on the occasion in question. This is confirmed by Walker ' s further
testimony that he saw Hill at about the time Hill testified they had had a conversation
but did not recall having spoken will Hill then. Hill also impressed me as a truthful
person. However , Hill appeared to harbor the belief that others were seeking to wrong
him. In consequence , he may not have retained a wholly objective recollection of events
ALAMO EXPRESS, INC. 21
charged , according to Hill, as he was bringing his truck to the loading platform of
Respondent 's Houston terminal he received conflicting orders from the checker on
the dock and from James Fitch, the dock foreman , with regard to where to park
the truck . After he had stopped the truck at the place indicated by Fitch and went
onto the loading dock Fitch said to him, "Men that work for me are supposed to do
what I say ." Hill answered that he did what Fitch had told him to do. Fitch,
however, then said, "Hell, you are fired. Shove off." Hill then punched his time-
card and left . Hill further testified that when he subsequently returned to obtain
his paycheck he asked the terminal manager, Henry Walker, why he had been dis-
charged but did not recall the answer.
Henry Walker testified that the dock foreman , Fitch, gave him Hill 's timecard
(which was already punched out) with the advice that "Hill refused to pull [drive
a truck containing ] a load of city freight for delivery." Henry Walker telephoned
J. Leo Walker in San Antonio about the matter and obtained authorization to dis-
charge Hill.20 With regard to whether Hill was at any time specifically advised
as to the reason for his discharge , Henry Walker testified , "I believe I told him
when he came and got his final check , or he assumed it, I don 't know." 21 Henry
Walker also testified that Hill was "wanting in average judgment and talent" which
was a source of dissension and trouble . However, he did not elaborate upon the
subject. In any event , any such deficiencies on the part of Hill are irrelevant to the
issues herein because both Henry Walker and J. Leo Walker categorically testified
that the reason Hill was discharged was for refusing an assignment.
Although the reason assigned by Respondents for Hill 's discharge was his purported
refusal of an assignment , no one with first-hand information about Hill's alleged
dereliction was called to testify on behalf of the Respondents. James Fitch , the dock
foreman, whose order Hill is alleged to have disobeyed , was not called as a witness.
Fitch was still in Respondents ' employ at the time of the hearing , according to
J. Leo Walker's testimony . Respondents ' unexplained failure to call upon Fitch
to testify , "is itself persuasive that [Fitch 's] testimony , if given, would have been
unfavorable to [Respondents ]. The production of weak evidence [ Henry Walker's
testimony as to what he was told by Fitch] when strong is available can lead only
to the conclusion that the strong would have been adverse ." Interstate Circuit, Inc. v.
United States, 301 U. S. 208, 226. On the other hand, Hill, who I find was a truthful
witness, testified that he never refused an assignment . For this reason and for the
further reason that I find Henry Walker was a totally unreliable witness I do not
credit Henry Walker's uncorroborated testimony that Fitch had reported to him
that Hill had refused an assignment.
The evidence of Respondents' hostility to the Union and its intention to operate
without union representation for its employees is overwhelming . Furthermore,
there is abundant credited evidence evincing a predisposition on the part of the
Respondents to terminate the services of the union adherents among their employees.
At the time Hill was discharged , Respondents had knowledge of his union member-
ship by reason of the fact that he had worn a union button on his cap while at work
during preelection period, which antedated his discharge by about 2 weeks. The
reason advanced by the Respondents for Hill's discharge was not supported by
credible evidence and I find unconvincing . On the other hand, "the Union was not
welcomed by the persons having authority to discharge and employ . If no other
reason is apparent [ to explain Hill's discharge ], union membership may logically
be inferred ." N. L. R. B . v. Tex-O-Kan Flour Mills Company , 122 F . 2d 433,
438-439 (C. A. 5).
Lawrence Jordan
Lawrence Jordan, who-was employed at Respondents' Houston terminal as a city
pickup and delivery driver and occasionally was assigned over-the-road runs, was
discharged on November 4, 1955. Respondents contend that Jordan was discharged
for an infraction of a company rule prohibiting drivers from using trucks against
which are connected with the injury he suffered . Accordingly, I have resolved the conflict
between the testimony of J. Leo Walker and Hill in favor of Walker not because I con-
sider Hill was a less truthful witness but because I believe Walker was a more reliable
witness.
2' Fitch had authority to order Hill to punch out , which meant that Hill was tentatively
discharged subject to confirmation of Fitch's action by his superiors.
21 This testimony was given by Henry Walker on the first day of the hearing when he
was called as an adverse witness by the General Counsel. The following week , toward
the close of the hearing , when Henry Walker was recalled to the witness stand by Re-
spondents ' counsel, he testified that Hill never came to see him after the day of his
discharge.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which there are writeups . In this regard , Respondents ' standing instructions are
that whenever a driver notices any defect with the truck he is driving he is required
to write up the nature of the complaint on a slip of paper ( no form is furnished
and any piece of paper is acceptable ) and the vehicle may not thereafter be used
without special permission until repairs are effected. Drivers do not use any desig-
nated trucks regularly. If a mechanic is on duty in the maintenance shop when a
driver goes for a truck the mechanic will tell the driver which to take. However,
as is frequently the case, if a driver goes for a truck before the mechanic arrives in
the shop the driver selects whichever is available. The newer trucks are supposed,
to be used for the over-the-road runs while the older trucks are primarily for mtra-
city use. It is the duty of the driver before taking out a truck to ascertain that there
is no writeup against it.
Drivers customarily deposit the writeups in a box kept in the dispatcher 's office.
These writeups call attention to any defects they might have noticed while using a
vehicle. The serviceman, who is not a mechanic, is one of the first to report for
work in the mornings . He opens up the maintenance shop and usually takes the write-
ups, which have been deposited in the box the previous evening, from the dispatcher's
office and places them on a clipboard which is kept on a table in the shop. The
writeups are destroyed by the mechanics after the repairs are made. No records
are kept of the writeups and repairs.
Turning now to the events leading to Jordan 's discharge , Jordan testified that when
he reported for work at 7 a. m., on November 3, Dock Foreman Fitch told him to get
a truck and to take a shipment of freight to Freeport, Texas. Jordan went to the
shop. The only person there was J. H. Hollis, the serviceman . 22 Hollis told Jordan
there were three trucks, numbers 226, 411, and 512 in the yard, but writeups had
been made with respect to numbers 226 and 411. Jordan then looked to see whether
there was a writeup against 512 which was a brand new truck. He looked in the
box in the dispatcher 's office, on the clipboard in the shop , and also in the truck,
but found no writeup . Hollis and three other drivers, Henderson , Cooper, and
George Stewart , who had also come to the shop for trucks , helped Jordan look for
a writeup against 512. Jordan telephoned the dispatcher, Ike Burrows, who told
him to take the truck if further check did not uncover a writeup.23 No writeup
was found for truck number 512. Jordan used the truck for his trip to and from
Freeport without incident and did not notice any defect in the vehicle.
The next morning, according to Jordan, when he reported for work his timecard
was missing from the rack. He asked Dispatcher Burrows where it was and was
told that Henry Walker wanted to talk with him. With regard to his subsequent
conversation with Henry Walker, Jordan testified , as follows:
Q. Did you have a conversation with him later on, did you go to see him?
A. Yes, sir, I saw him on the docks and asked him why was my card in Ike's
desk. He says to me, "I wanted to talk to you concerning the tractor you used
to go to Freeport ." He said , "There was a write-up on that truck."
I said , "No, sir , there wasn't."
He said, "There was."
I said, "I checked and checked real good. I had some other guys to check
with me."
He said, "I am convinced that there was."
I said , "Mr. Walker , will you allow me to get these fellows and bring them
to you and ask them in your presence if the write -up was on the truck?"
He said, "No, I won't allow it. I am convinced there was."
Q. What else did he say?
A. I asked him if that means I was fired. He didn't say I was or was not. He
said, "I am going to take and make an example of you for the other boys."
George Stewart corroborated Jordan's testimony . Stewart testified that when
he reported for work on November 3 he saw Jordan looking for writeups in the
dispatcher 's office and he did the same. Later Stewart also looked for writeups
in the garage. Stewart testified he found no writeup for truck 512.
Henry Walker testified that he discharged Jordan for taking a truck out of the
shop which had a writeup against it . On the morning of November 3, as is his
29 Hollis is not a mechanic and has no authority to make truck assignments.
23 Jordan testified that this was the first time no mechanic was present to assign him a
truck since the new foreman , Lynch, had been placed in charge of truck maintenance. He
also testified that it had always been his practice (occasions arose before Lynch became
shop foreman ) to report by telephone to either Dock Foreman Fitch or Dispatcher Burrows,
usually the latter, whenever a mechanic was not present to assign a truck to him.
ALAMO EXPRESS, INC. 23
custom , he stopped at the shop to get the writeups and truck 512 was gone although
there was a writeup with respect to it. Walker testified that he made a thorough
investigation. He talked to several people in the shop but did not remember who
they were. Also, according to Walker, "I talked to Burrows and everybody on
duty I could find . I don't recall who all was on duty at that time . . . If it was
Burrows I talked to, he said he did not tell [Jordan] to take the truck." When
Jordan returned from Freeport about 4 or 5 p. m., the same afternoon , according
to Henry Walker , he had the following conversation with him:
I said, "Who told you to take the truck?"
He said, "Someone told me." 24
He said he didn't know there was a write-up. I asked him if he looked at
the clip board. He said he didn't see one there. I told him there was one
there when I got there. I asked 'him if any other trucks were around there.
He said there were but he didn't see anything wrong with this truck.
Walker then testified that he discharged Jordan at this time. Walker denied that
Jordan told him that other men helped look for a writeup for truck 512, that
they found no writeup, and that Jordan offered to bring those men to Walker to
prove his statement.
Hollis, the serviceman, who was called as a witness by Respondents, testified
that on the morning in question a writeup for truck 512 was attached to the
clipboard on the table in the shop where writeups are usually kept and further
that he specifically told Jordan that there was a writeup on 512. According to
Hollis, Jordan "said Ike Burrows told him to get a truck to go to Freeport. I told
him all the trucks down there had a writeup on it, and they told me not to let a
truck go out with a writeup. And I also told him, too, if he took the truck, he
was on his own because I wasn't going to have anything to do with it." Jordan
nevertheless, took the truck.25
W. A. Shuler testified that on the morning of November 3, he went to the
shop about 8 a. m., before any mechanic arrived and saw a writeup for truck 512
on the clipboard. Shuler asked Hollis where the truck was. Hollis replied that
it was in use. Shuler then asked who had given permission for the truck to be
used and Hollis answered he did not know 26 Shuler testified he then "jumped on"
Henry Walker 27 and Ike Burrows 28 about the matter and explained to them,
"that is why your trucks can't get worked on, because they take them out with
reports on them."
Shuler, who is in charge of truck maintenance, further testified that no one
had ever been discharged for using a truck with a writeup against it, although this
occurred on the average of once or twice each week. The reason that no one
had been discharged for such offense is that it could never be ascertained whether
the driver had actual knowledge of the existence of a report against the truck.
Shuler explained that such situations would be uncovered when the employee who
made the writeup inquired subsequently whether the vehicle had been repaired.
"Then we would start looking for his report, and he would help. He would know
what kind of a paper it was on, and so forth, whether it was a yellow piece of
paper or a white piece of paper. We would locate some of those where they
actually had been destroyed, taken off the clipboard and destroyed in order to use
the truck." 29 Shuler did not testify that he recommended Jordan's discharge or
was consulted with regard to whether Jordan should be discharged. Shuler testified
that he did not learn of Jordan's discharge until some time after the event.
Lawrence Jordan was an impressively frank witness. His testimony was forth-
right and unequivocal. With regard to the conflict between Jordan's version of
21 Walker later testified in this regard that Jordan said Dispatcher Burrows told him.
25 Hollis testified that Shuler asked him about the truck that day. Hollis did not
testify that Walker spoke to him about the incident.
21 Hollis testified that Shuler spoke to him and he told Shuler what had happened. It is
clear from Shuler's testimony that Hollis did not tell him Jordan knew there was a
writeup against truck 512.
27 Henry Walker did not testify to any conversation with Shuler about the incident.
28 Shuler testified, "Ike said he didn't know anything about it. He sent him down there
for a truck and that is all he knew about it." This is not inconsistent with Jordan's
testimony because the latter testified that when he spoke to Burrows about taking the
truck Burrows told him to check for a writeup against it first. Thus , Burrows would
have had no knowledge about Jordan taking a defective truck.
'There had been occasions when the writeups had been crumbled and thrown out of
the door or in the trash barrel.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the events leading to his discharge and Henry Walker's and Hollis' versions, I
credit Jordan.
Respondents' assertion that Jordan was discharged for using a truck with knowledge
that there was a writeup against it is unconvincing. Henry Walker, who made the
decision on behalf of the Respondents, testified he first made a thorough investigation.
The only result of his investigation, according to Walker's testimony, was that he
discovered no one had specifically directed Jordan to use truck 512. He did not
testify that he learned from Hollis or anyone else that Jordan took truck 512 with
knowledge that there was a writeup against it. Nevertheless, the next morning
Henry Walker accused Jordan of having done so and refused to pay attention to
Jordan's denial or even to permit Jordan to produce other employees who might
confirm his story that no writeup on truck 512 could be found at the time he took
the vehicle. This hardly supports Henry Walker's assertion that he made a thorough
investigation, but rather indicates that Walker had resolved to discharge Jordan
for other reasons and was using the November 3 incident as a convenient pretext
to hide his true motives. Also belying Walker's assertions is Shuler's testimony
that writeups were handled in such casual fashion that, despite the fact on the average
of once or twice each week drivers took out trucks with writeups against them, it
never was possible to accuse any driver of having done so deliberately. In these
circumstances, there certainly existed no basis for Henry Walker's purported con-
viction that Jordan had knowledge of the writeup against truck 512 when he took it.
Further suggesting that the November 3 events were not the true reasons for Henry
Walker's decision to discharge Jordan is that the penalty was unusually severe for
the offense charged. What Jordan had been accused of doing had been occurring
regularly once or twice each week and no other driver had ever been disciplined
for such infraction of the company rule. Jordan had never previously been guilty
of any similar offense. Finally, Jordan was not involved in any accident by reason
of his use of truck 512 on November 3 so that no loss accrued to the Respondents
therefrom 30
Jordan testified that prior to the October election he had signed a union card
and wore a union button on his cap for a period of a week. Henry Walker admitted
he saw Jordan wearing such button. In view of Respondents' antipathy towards the
Union and their predisposition to engage in reprisals against the union supporters
among their employees, I find that Jordan was discharged because he had openly
avowed his support for the Union rather than for the unconvincing reason advanced
by the Respondents.
Teroy Riggans
Teroy Riggans, who was a city pickup driver at Houston, was discharged on No-
vember 4, 1955, at the specific direction of J. Leo Walker. The latter testified that
the previous evening he observed Riggans and several other employees in a truck
talking instead of unloading freight as they were supposed to do. Walker watched
them for awhile. He then went to the truck and told Riggans to break it up, to
get to work, and to get the other boys with him working. Walker continued his
stroll along the loading platform. Upon turning around he noticed that Riggans
still had not moved any freight from the truck. After scolding Riggans again for
shirking his work, J. Leo Walker went to the terminal manager's office and told
Henry Walker to discharge Riggans. Henry Walker protested such action, saying
that Riggans was one of the best men he had. That evening J. Leo Walker tele-
phoned Henry Walker from San Antonio and ordered Riggans discharged. J. Leo
Walker further testified that he had observed Riggans on other occasions talking
instead of working and previously had spoken to Henry Walker with regard to
discharging Riggans. He also testified he had no knowledge of Riggans' interest
in the Union.
Riggans, who began working for Respondents in 1948 and who signed a union
card about April 1955, testified that he wore a union button while at work before
the election. With regard to the occurrences on the evening before his discharge,
Riggans testified that he was unloading a trailer with another employee and the two
were talking while so engaged. J. Leo Walker came by and watched them for
a few minutes and then said, "Riggans, you are holding up the dolly too long; put
3° "It has, of course, often been pointed out that unusually severe punishment for a
common offense . . . may be ground for a finding" that the Act has been violated.
N. L. It. B. v. Cities Service Oil Co., 129 F. 2d 933 (C. A. 2). See also N. L. It. B. V.
Eastern Massachusetts Street Railway Company, 235 F. 2d 700, 709 (C. A. 1).
ALAMO EXPRESS, INC. 25
a little freight on them and send them up." The next day Henry Walker discharged
him saying it was on J . Leo Walker 's instructions.
The General Counsel contends that Riggans was discharged because of his union
sympathies and "the most transparent excuse for discharge in the entire case is
that given relative to Teroy Riggans." There are a number of factors which cast
suspicion upon Respondents ' asserted reason for Riggans' discharge . He had been
employed by Respondents for about 7 years and had never been criticized with
respect to his work . 31 Henry Walker testified that there was nothing uncommon
about men talking while working together and Respondents had no objections to the
men carrying on conversations so long as it did not interfere with the progress of
their work . Henry Walker was unable to recall another specific instance when an
employee was discharged for similar cause, although he testified he was sure that
it had happened . On the other hand, there is no evidence to indicate that J. Leo
Walker knew Riggans was a union adherent and the former testified that he
ordered Riggans' discharge for shirking work rather than for talking . Considering
all the circumstances surrounding Riggans' discharge , including J. Leo Walker's
hostility towards the Union, I find that the General Counsel has not established
by the necessary preponderance of evidence that Riggans was discharged for his
union affiliations rather than for the reason asserted by Respondents.
C. L. Vinson
Vinson is the only over-the -road driver whom the General Counsel alleges was
discriminatorily discharged . Vinson was one of the instigators of the union move-
ment among Respondents ' employees and was discharged on January 18, 1956, by
Henry Walker upon the instructions of J. Leo Walker.32 The latter testified that he
ordered Vinson's discharge "mainly because he cussed the Company out and cussed
me out."
Vinson testified that the night before his discharge he drove a tractor with at-
tached trailer into Respondents ' San Antonio terminal in a heavy rain . In accord-
ance with customary procedures, he got out of the tractor , uncoupled the trailer,
drove the tractor to the warehouse door, and then went into the office to punch the
time clock . Jack David, the nightman, who was the only dock employee on duty
at the time , told Vinson that. he had to deliver the trailer to a customer in San
Antonio. This meant that Vinson was required to hitch the tractor onto the same
trailer that he had just uncoupled . Vinson became angry and said, "Why didn't
you get off your damn fanny and tell me before I uncoupled the trailer . Let you
go take that damn thing over there , because I am tired of getting out in the rain."
Vinson admitted that he also used a few oaths, but denied that he applied them to
J. Leo Walker or the Respondents.
J. Leo Walker testified that the following morning he was told by another line
driver, Drebert, who witnessed the event , "about Vinson cussing me out and cussing
out the Company and everything ." He asked Shuler to investigate the matter and
also left instructions for Jack David, the nightman , to report to him when the latter
came to work that evening . After Shuler and David confirmed Drebert's story,
J. Leo Walker telephoned Henry Walker in Houston and directed him to discharge
Vinson.33
There is no doubt upon the record herein that it had been reported to J. Leo
Walker that Vinson swore at him and the Company . J. Leo Walker made an
investigation and upon satisfying himself that the report was correct discharged
Vinson. Some question exists as to the fairness of Walker's investigation because
Vinson was given no opportunity to defend himself. However, the issue herein is
not whether Vinson was justly condemned and thereby merited discharge but
whether he was discharged for his union activities. I find that the General Counsel
has failed to prove this latter fact by a preponderance of the evidence.
81 Henry Walker did not contradict Riggans in this regard . However, Henry Walker
testified that he considered Riggans a poor employee and eventually would have recom-
mended his discharge . This testimony is unconvincing . If Henry Walker had been
contemplating Riggans ' discharge , there was no reason for him to protest when J. Leo
Walker suggested that Riggans' services be terminated.
s2 Line 23 , page 64 of the transcript of record is hereby corrected by changing "Exhibit
3-C-1" to read "Exhibit 3-G-1."
83 J. Leo Walker testified he would not have discharged Vinson had he merely used
strong language , but he would not tolerate such language being leveled at himself and
the Company.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. L. Solomon
The issue as to Solomon is whether the Respondents, on July 13, 1956, trans-
ferred him to a less desirable job and, on October 1, 1956, laid him off because he
supported the Union and gave testimony adverse to the Respondents at the hearing.
in this case. Solomon was hired by Respondents on February 23, 1953, as a city
pickup and delivery driver at their Houston terminal. Some months later he was
given as his regular daily assignment the job of picking up freight at the Universal
Carloading Company. He did this until July 13, 1956. Solomon considered the
Universal assignment desirable work. He customarily left Respondents' terminal
about 8:30 a. in., for Universal's loading dock and remained there until about
4 p. m. His duty was to load into his trailer all freight designated for Respondents.
During periods when there was no freight to be stacked he was free to rest or read,
but he was supposed to remain close to the trailer. On the average Solomon had
about 11/2 hours' free time each day. In addition, he was subject to no immediate
supervision during the time he was at Universal.
Solomon testified as a witness for the General Counsel in the afternoon of
July 12, 1956. The next morning when he reported for work, Terminal Manager
Walker said to him, "Solomon, you won't have to go to Universal anymore because
we are not going to be handling as much freight out of there as we have been and
I will put a man over there that can't drive. You are a driver." This was done
for the next 2 days only. Then, Jack Crowder, another city pickup and delivery
driver who had been working for the Respondents less than 3 months, was given,
the Universal assignment and has been performing that job ever since. After
Solomon was removed from the Universal job he was principally employed as a
stacker at the Houston terminal with occasional driving assignments.34 On Oc-
tober 1, 1956, Solomon was notified that he was being laid off. He protested to
Henry Walker that he had more seniority than many other employees who were
not being laid off. However, Henry Walker told him that Respondents did not
observe any seniority policy. At the time Respondents employed about 46 dock
workers and city drivers at their Houston terminal. Solomon had worked longer
for Respondents than all except 6 or 7 of these employees.
Henry Walker did not deny any of the foregoing. Henry Walker testified that
he removed Solomon from the Universal assignment because he had received.
"numerous" complaints over a 2-year period from the foremen at Universal Car-
loading Company that Solomon had been absent from his station at his trailer
when they were ready to deliver freight to him. This meant that the Carloading.
Company's employees had to handle the freight twice. Upon investigation, Henry
Walker found that these complaints were true. He testified, "I got the complaints,
I did Solomon like I do any other employee, I go around and try to straighten them
up, try to correct them." Walker was vague as to when he received the complaints.
concerning Solomon. There is no evidence that any complaint was made within
a period of several months preceding the day Solomon was removed from the
Universal assignment. Furthermore, although Walker did not deny that he had
told Solomon that he was being taken off the Universal assignment because Re-
spondents were not going to handle as much freight from Universal, Walker testified
that the tonnage from Universal is the same, or "maybe there has been a little
increase." Walker also testified that Respondents do not observe any seniority
policy with regard to layoffs and on October 1, 1956, in an economy move, he laid
off six employees. He included Solomon in this group, despite Solomon's seniority,.
because he considered Solomon an unsatisfactory employee.
The General Counsel contends that Solomon was discriminatorily relieved of his
assignment at the Universal Carloading Company on July 13 because he gave testi-
mony in this cause the preceding day and not because of alleged inattention to his.
duties. He also argues that but for this discrimination Solomon would not have
been laid off on October 1 because his replacement, Jack Crowder, is still in Re-
spondents' employ and is still servicing the Universal account for Respondents. The
evidence does not support Respondents' contrary position. Although Henry Walker
testified that he stopped sending Solomon to Universal Carloading Company because
of the numerous complaints he had received about Solomon's being away from
his truck when the employees of Universal Carloading were ready to deliver freight
to him, he offered no explanation as to why he decided to effect Solomon's transfer
on July 13. According to Walker, during a period of 2 years he had received many
complaints concerning Solomon's absences while at Universal Carloading and had
done nothing other than urge Solomon to be more diligent in his work. Neverthe-
M This transfer of duties did not involve any reduction of wage rate or gross earnings.
ALAMO EXPRESS, INC. 27
less, despite the fact that he had received no complaint about Solomon for a period
of several months and despite the absence of any other provocation, Henry Walker
removed Solomon from the desirable Universal assignment the day after he gave
testimony at the hearing in this case. Moreover, when Henry Walker notified
Solomon that he was not to pick up freight at Universal any longer Henry Walker
did not tell him that his duties were being changed because he had been performing
his work at Universal Carloading Company unsatisfactorily; instead, Walker told
him it was because Respondents were going to handle less freight from Universal
Carloading Company. This assigned reason was not true. If the true reason for
Henry Walker's decision to remove Solomon from the Universal Carloading assign-
ment was Walker's dissatisfaction with Solomon's performance of his job, there
is no apparent reason why Walker should not have advised Solomon of the fact
instead of giving him a fabricated explanation. This, together with the timing of the
transfer, Respondents' hostility towards employees who joined or supported the
Union, and their threats to engage in reprisals against such employees convince
me that the reason assigned by Respondents for Solomon's transfer was spurious
and that the transfer was effected as a reprisal against Solomon for having given
testimony adverse to Respondents at the hearing in this case and for having supported
the Union.35 Had Respondents not discriminatorily transferred Solomon from
the Universal Carloading assignment he would not have been laid off on October
1, 1956. Furthermore, I do not credit Henry Walker's testimony that despite Solo-
mon's length of service he was selected for layoff ahead of 40 employees with less
seniority because of the unsatisfactory character of his work. Accordingly, I find that
the transfer of Solomon on July 13, 1956, and his subsequent layoff on October 1,
1956, were discriminatory and in violation of Section 8 (a) (1), (3), and (4) of the
Act.
C. Events at Victoria
1. Longino's conduct
Employees Hile Hernandez, Sylvester Hernandez, and Rubin Garza testified to
three conversations with Sales Manager Longino during the period from a month
preceding the election to the day of the election. Rubin Garza also testified to a
private conversation he had with Longino about 2 weeks before the election. Al-
though the specific recollection of each of the witnesses differed somewhat with
respect to the precise words used by Longino, the substance of their testimony was
the same, namely, that Longino told them that Respondents would discharge all
union supporters after the election was over. Longino admitted he had conversations
with these employees concerning the Union. He testified as follows:
Because some of them asked me if they voted yes or no how it would affect
their job. I said, "I can assure you it will not affect your job with Alamo Express
or Alamo Cartage." I said, "Alamo Express," frankly. "But I believe I can
truthfully say this, if the Union wins the election and by some means throws a
picket line around our place of business, you will still have a job regardless of
how you vote until such a time that if they should throw a picket line around
our place and you refuse to cross that picket line and report for duty; we have
to have someone to replace you on the job so we can continue doing business."
That was really the consensus of everything I had to say to them regarding the
whole thing.
I credit the testimony of the witnesses called by the General Counsel rather than
the circumspect explanation of Longino. I find, therefore, that Respondents have
violated Section 8 (a) (1) of the Act by reason of Longino's threats that employees
who support the Union will be discharged after the election.
2. Butler's conduct
Hile Hernandez testified without contradiction that about 2 weeks before the
election James F. Butler had a conversation with him during which the latter said,
"Alamo wouldn't go union so anybody that signs for it would probably be out of a
job." Such threat by an agent of the Respondents constituted a violation of Section
8(a) (1) of the Act.
3. Phau's conduct
Rubin Garza testified without contradiction that in June 1955 Terminal Manager
Phan asked him what he knew about the Union. Garza replied that he had signed
35 Solomon 's testimony is uncontradicted that he told James F. Butler prior to the
October 1955 election that he was going to vote for the Union.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up with the Union. Whether interrogation of an employee by a representative of
management concerning union matters is a violation of Section 8 (a) (1) of the
Act depends upon the totality of the employer's conduct. When such interrogation
is related to other conduct by the employer demonstrating the employer's hostility
to the union and indicating a disposition on his part to engage in reprisals against
union supporters, then the interrogation has a reasonable tendency to make employees
apprehensive that they may be the subject of the employer's reprisals. Although,
for the sake of convenience in writing this Report, the Trial Examiner has discussed
the events at each of Respondents' terminals in separate sections it does not mean
that the Trial Examiner believes that the employees at each were isolated from
those at other terminals and that occurrences at one of the terminals should be con-
sidered separate and apart from the happenings at other terminals. On the con-
trary, not only did the same officials of the Respondents visit the various terminals
but the over-the-road drivers in the course of their employment also traveled among
the terminals in Respondents' system. In the circumstances, there undoubtedly was
considerable communication among the employees of the various terminals with
regard to union matters and Respondents' attitude thereon during the period the
organizational drive was current. Accordingly, Phau's interrogation of Garza cannot
be considered as a mere casual or isolated inquiry. It must be viewed together with
other conduct discussed herein demonstrating the Respondents' hostility towards
the Union. When so viewed, Phau's interrogation of Garza had the tendency to
cause reasonable apprehension of reprisals against employees engaging in union
activity and therefore was coercive within the meaning of Section 8 (a) (1) of the
Act.
4. The discharge of Rubin Garza
J. Leo Walker testified that Garza was discharged on November 12, 1955,
because he had been involved in a long series of accidents. Garza's testimony
shows that between October 1954 and July 1955 he was involved in four collisions
with other vehicles while driving Respondents' trucks. He further testified that on
four other occasions between January 1955 and August 10, 1955, he suffered
personal injuries while at work. In his last accident he lost the tip of his middle
finger. With regard to the time selected for Garza's discharge, J. Leo Walker
testified, "Well, the boys wanted to fire him before that [November 12, 1955], but
I didn't let them fire him because he is personally injured, had a finger or some-
thing that was beat up or something. . I carried him on until we got through
with that and got a release on it [referring to a claim filed by Garza in connection
with the injury he sustained on the latter occasion]. The General Counsel argues
that the fact Garza was permitted to return to work after recovering from his
last injury indicates that his subsequent discharge was unrelated to his accidents.
This argument presupposes without any evidentiary basis an absence of compassion
on the part of Respondents' officials. I find nothing implausible in J. Leo Walker's
explanation that he was reluctant to discharge Garza while the latter was absent
from work because of his injuries. Accordingly, I find that the General Counsel
has not proved that Garza was discharged for 'his union membership rather than
for the reason asserted by Respondents.
D. Events at Corpus Christi
1. The testimony of Todora Rucker
Todora Rucker was hired as cashier at Respondents' Corpus Christi terminal on
March 1, 1955. She worked at that job until the middle of December 1955 when
she was demoted to assistant cashier. Finally, she quit Respondents' employ on
February 7, 1956. Mrs. Rucker, who maintained friendly relations with the
drivers at the terminal, opposed their organization by the Union and with the
knowledge and approval of James E. Heneger, a resident vice president of the
Companies at Corpus Christi, sought to influence the employees to vote against
the Union. Mrs. Rucker testified about her dealings with Heneger and her anti-
union campaigning. In addition, she testified that she had learned from Dock
Foreman Herman Chance about Respondents' plan to effectuate their preelection
threats of discharging employees who were union supporters in order to prevent
any future renascence of organizational activity at the terminal. Respondents'
counsel in seeking to impeach her credibility points out that "Mrs. Rucker was
disappointed when she was not rewarded by the Company because of her antiunion
opinions and activities. She was more than disappointed when she was demoted
shortly after the election." In assessing Mrs. Rucker's testimony I have not dis-
counted the possibility that she may have sought to retaliate against Respondents
ALAMO EXPRESS, INC. 29
for the reasons alluded to by their counsel. Nevertheless, I have concluded that
she was a completely truthful witness. Her comportment as a witness at the
hearing impressed me favorably. Her testimony was given without hesitation and
in a straightforward manner. Her answers to the questions put to her, although
somewhat garrulous, were responsive. She stuck close to the subjects of the ques-
tions and did not drift into unrequested explanations. She was as cooperative on
cross-examination as upon direct examination. Her answers at all times were
complete and unevasive. Furthermore, where her testimony can be related to
undisputed facts or facts clearly established by the evidence, it is consistent there-
with. I find Todora Rucker's testimony reliable. The vital portions of Mrs.
Rucker's testimony were contradicted by Heneger and Chance with whom I was
much less favorably impressed. Heneger was interrogated at length by the General
Counsel as an adverse witness. Generally, he responded to counsel's questions only
after unduly long pauses and then on occasions his answers were given in almost
indistinct mutters. Not only was he a grudging witness, but also he was evasive.
In addition his recollection of many events about which he testified was poor.
Herman Chance was also an extremely hesitant witness. Even making due allow-
ance for the fact asserted by Respondents' counsel that he had been without
sleep for 26 hours before his appearance as a witness at the instant hearing, his
extremely long pauses before answering some of the simplest questions addressed
to him on cross-examination impressed me as having been dictated by considerations
other than those that might be based upon an effort to recount the facts exactly
as he remembered them. Furthermore, his testimony concerning critical conver-
sations with Mrs. Rucker was in part implausible. On the whole, I find both
Heneger and Chance were unreliable witnesses.
Mrs. Rucker testified that it was her sincere belief that the employees' best
interests would not be served by union representation. About a week before the
October election Vice President Heneger summoned her to his office. He began
what developed into a lengthy conversation by telling Mrs. Rucker he had learned
she had had a meeting with Joe Gonzales, one of Respondents' employees, who
Heneger knew "was trying to line the boys up to vote for the Union at the
forthcoming election." Mrs. Rucker expressed her opinion that "the Union was
exploiting those boys" because the Union could not win the election in the face
of Respondents' opposition and the Union would be unable to find comparable
employment for the men should they lose their jobs. Heneger said these were
his beliefs also because Respondents would not sign a union contract and if the
Union were to win the election and call a strike the possibility existed that work
would become so scarce that the Companies would be forced to shut down and
the employees would be worse off than if they remained unorganized. Heneger and
Mrs. Rucker expressed to each other additional and more general reasons for
their opposition to unions. After making the observation that she was friendly
with the employees, Heneger asked Mrs. Rucker whether she knew who was for
the Union. She replied she did not. Heneger suggested that she tell the men, if
she had opportunity to do so, that they could best protect their jobs by voting
against the Union. Mrs. Rucker promised that she would telephone the drivers
during the weekend and urge them to vote against the Union.
As she had agreed to do Mrs. Rucker spoke to almost all the men and advised
them to vote against the Union. She also told them that the Respondents would
never sign a contract with the Union and that in the event of a strike the oppor-
tunity for work would be reduced.
The following Monday, Mrs. Rucker reported to Heneger that she had spoken
to all but two of the men and that she did not detect much union sympathy.
Heneger asked what she had learned concerning Raul Gamez, Dionaces Rosales,
and Abel Anguiano. She said she did not know but would talk to them again.
Later the same day Mrs. Rucker asked Rosales and Perfecto Tey to stop at her
home that evening because she wanted to talk to them further about the election.
They did so. On this occasion she again explained that the Company would not
bargain with the Union and a union victory at the polls might be followed by a
strike and loss of employment. During the conversation they told her that there
was going to be a union meeting the next evening to decide who would be the
union observers at the election. Rosales also told Mrs. Rucker that, although
he was indifferent to the Union, he had promised his friend and fellow employee,
Joe Barrera, that he would vote for the Union.
The next morning, Tuesday, Mrs. Rucker reported to Heneger that there was
going to be a union meeting that evening and also that she did not believe more
than 3 or 4 men would vote for the Union in the election. She also told him that
the men had given voice to several complaints with respect to working conditions
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that the union organizer had promised to correct such matters if the Union
were to win the election . Mrs. Rucker suggested that a round -table discussion with
the men whereat promises could be made that Respondents would adjust their
grievances would influence their votes more than anything else. She volunteered
to conduct such discussion and to tell the men that Mr . Heneger was willing to go
to San Antonio to try to work out a solution to the employees' grievances with
J. Leo Walker. Mrs. Rucker also offered to have such meeting at her home that
night at which time she would serve refreshments. Heneger was in accord with these
suggestions and offered to defray any expenses she might incur for coffee and
sandwiches. Mrs. Rucker held the meeting that night. Mr. Hobbs, one of the
salesmen , delivered coffee and the ingredients for sandwiches to Mrs. Rucker's home.
At the meeting, Mrs. Rucker made a speech in which she urged the men to vote
against the Union. When asked whether Mr. Heneger said anything about a raise
she replied, "No," but that Heneger had said he would try to iron out the employees'
lesser complaints . She testified:
I told them that the Company operated on a non-union basis, that their
sentiments were non-union , and that they weren't going to go union , that they
felt they could operate without any union contract and they weren't going to
sign with the union regardless, and if it came to a strike and a picket and a
general shutdown that they would shut down before they would sign a union
contract, that that's the way they felt about it. .. .
I said, "I am telling you that Mr. Heneger has a pretty good idea which
ones of you are members of the union and are sympathetic towards the union
and while he won't fire you for that when the opportunity presents itself, you
make mistakes or they lay off somebody for lack of work, you are the ones
that will be the first to go and you will just have to watch your step." 36
Wednesday morning Mrs. Rucker told Heneger that all the men had appeared
at her party and not more than 3 or 4 would vote for the Union. She also informed
him that Joe Barrera and Raul Gamez had been selected as the union observers.
Heneger expressed his disappointment at learning that Barrera was a union adherent
when he remarked, "That goddam Joe Barrera, as good as I have been to him." 37
Heneger mentioned to Mrs. Rucker that Pete Mungia would be the Respondents'
observer at the election and "had been helping him with the boys and talking to
them and explaining to them that it would be better for them to vote for the
company than for the union."
On the day of the election Heneger and Mungia went to San Antonio where the
ballots were counted. Upon Heneger's return Mrs. Rucker asked him how many
Corpus Christi employees voted for the Union. Heneger replied that it could not
be determined because all the. votes were counted together. He added that "he
didn't know then but we will know eventually."
Towards the last of November, after the election, Heneger asked Mrs. Rucker
to report to him the names of the men who made mistakes, mentioning particularly
Barrera, Rosales, Henry Carranco, Robert Ayala, and Willie Johnson.
Mrs. Rucker also testified to a conversation with Dock Foreman Herman Chance
which has bearing upon the discharges, discussed below. Chance, who was a
family friend, visited her a few days after she had quit her job with Respondents
on February 7, 1956. During their discussion, Chance told Mrs. Rucker that the
Company knew several employees to be union sympathizers and intended to discharge
them. Chance said it was Respondent's purpose to get rid of union sympathizers
so that, the Union would be unable to obtain another election in the future. He
specifically mentioned Joe Barrera, who had already been discharged and Rosales,
who was discharged the next week 38 Chance also told her that Heneger had asked
31 Reneger did not authorize Mrs. Rucker to make this threat of discharge. However,
she told the men that Heneger was paying for the refreshments and had authorized her
to make other statements. In these circumstances, Mrs. Rucker would be regarded as
reflecting management 's attitude when voicing this threat even if expressed as a persona]
opinion. Because the antiunion meeting was sponsored by Heneger , Respondents must
assume responsibility for all statements made thereat by Mrs. Rucker even though not
specifically authorized.
37 Heneger had told Mrs. Rucker that Barrera was one of the men who had walked off
the job during an earlier strike but was subsequently rehired after having given assurances
that he was through with the Union.
38 As it affects the discharges of Respondents' Corpus Christi employees, I find no pro.
bative value in and therefore Place no reliance upon Chance 's speculations , as recounted by
Mrs. Rucker , that Dock Foreman Mullenix was rehired after having left his job because
ALAMO EXPRESS, INC. 31
him to report if Rosales made a mistake and to try to help Rosales make a mistake.
Heneger and Chance testified about their conversations with Mrs. Rucker and in
significant respects their testimony conflicted with Mrs. Rucker's. However, I credit
Mrs. Rucker's versions of her conversations with Heneger and Chance as the more
reliable.
The foregoing credited evidence establishes several violations of Section 8 (a) (1)
of the Act. One was Heneger's attempt to ascertain through Mrs. Rucker the extent
of prounion sentiment among the employees generally and in addition to discover
whether specific individuals were in favor of the Union. Such efforts to ferret
out information concerning the identity of union members and the extent of union
interest among the employees, which fall into the general classification of surveillance,
constitute unlawful infringements upon the employees' protected right to engage
in self-organization because they reasonably tend to place employees in fear that
the information was sought and acquired for purposes of affecting the security of
their tenure and tend to inhibit employees in the free exercise of their rights under
the Act. Nashua Manufacturing Corporation of Texas, 108 NLRB 837, enfd. 218
F. 2d 886 (C. A. 5). Even if the employees were not aware of the fact that Mrs.
Rucker was reporting their sentiments to Heneger, because Heneger desired the
information for the purpose of singling out the union supporters for future reprisals,
the espionage Mrs. Rucker was conducting on behalf of Respondents violated the
Act.39 For, as stated in N. L. R. B. v. Collins & Aikman Corporation, 146 F. 2d
454, 455 (C. A. 4), "any real surveillance by the employer over the union activities
of employees, whether frankly open or carefully concealed, falls under the pro-
hibitions of the Act." A second violation of the Act flows from Heneger's sponsor-
ship and endorsement of Mrs. Rucker's efforts to induce the employees to vote
against the Union. Finally, responsibility attaches to Respondents for Mrs. Rucker's
threats voiced to the employees that Respondents would not bargain with the Union
and would discriminate against union adherents and Mrs. Rucker's promise to the
employees that the Respondents would adjust their grievances. Kanmak Mills, Inc.,
93 NLRB 490, modified in other respects, 200 F. 2d 542 (C. A. 3). The fact that
Mrs. Rucker volunteered to assist Respondents in their antiunion campaign does
not absolve Respondents from responsibility for the unlawful consequences of her
conduct since, her activities were carried on with the knowledge and approval of
Vice President Heneger. Stainless Ware Company of America, 87 NLRB 138, 154.
2. Other conduct by Heneger
Heneger testified that about May 1955, union talk at the Corpus Christi terminal
became quite pronounced and he heard rumors at that time that a strike would
be called. Without indicating any time he testified that "I have probably asked
most of them if they were going to walk the picket line." 40 None of the men
admitted that they would "walk the picket line" in the event of a strike although
some stated they would not. In these conversations he told the employees that
those who failed to report for work in the event the premises were picketed would
be replaced and that he had many applicants for their jobs. He further testified
that he told some of the employees that he did not think J. Leo Walker would
sign the standard union contract.41
Other witnesses' testimony establishes that Heneger was not so cautious in his
remarks to them. I find further violations of Section 8 (a) (1) of the Act by
reason of:
Frank De Luna's testimony that about 2 weeks before the election Heneger asked
him whether he was involved with the Union and told De Luna that he (Heneger)
knew some of the men for the Union and was going to discover the rest and in-
tended to discharge them.42
Virgil Jones' testimony that about 2 weeks before the election in a conversation
with Heneger he brought up the subject of the Union and "Mr. Heneger said that
Mullenix was willing to cooperate with Heneger in searching for ostensibly nondiscrimina-
tory reasons for discharging union supporters, and that he did not believe Barrera had
been caught off his route.
°G-rand Central Aircraft Co., Inc., 103 NLRB 1114, 1159, enfd, 216 F. 2d 572 (C. A. 9).
40 Heneger later testified that be meant that he had asked the employees whether they
would cross a picket line.
u Heneger also testified that he may have said to Mrs. Rucker, "We weren't union and
never been union since I had been there. I might have said that I didn't think the
Company wanted a union."
43 Although De Luna spoke with a distinct foreign accent lie gave his testimony in a
credibly sincere and unwavering manner. I do not credit Heneger's denial.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Walker would not go union , that he would close down before he would go
union, and that we would probably be without a job." Heneger's version of their
conversation did not include any of the foregoing statements. Virgil Jones is, and
for 19 years has been, regularly employed as a city fireman in Corpus Christi. He
has the rank of captain in the fire department. For approximately 5 years he has
been working part time for Respondents at their Corpus Christi terminal. His
interest in this proceeding is minimal since he is a part-time employee who is
supplementing his regular income by working for Respondents. Moreover-, there
is no evidence that Jones was a supporter of the Union and, although Jones is a
member of another labor organization, it appears that his personal interests might
be adversely affected by Respondents' recognition of the Union as the employees'
bargaining representative.43 Furthermore, Jones' appearance, attitude on the wit-
ness stand, and manner of answering questions impressed me more favorably than
any other witness at the hearing. I am of the opinion that his testimony was
objective, sincere, and truthful. Accordingly, I credit Jones.
Heneger's remark to employee Dionaces Rosales about a week before the elec-
tion that "if I [Rosales] want my job just go ahead and vote for the Company,"
which conveyed the threat that Rosales would lose his job if he voted for the Union.44
Heneger's questioning employee Raul C. Gamez with regard to how he stood
with the Union 45 In the posture of Respondents' hostility towards the Union and
other unlawful conduct such interrogation "carries with it the purpose to retaliate
against union sympathizers and, by threat of job or other reprisals, coerce them
into a vote of action which does not express their free will." N. L. R. B. v. McGahey
et al., d/b/a Columbus Marble Works, 233 F. 2d 406 (C. A. 5).
I base no unfair labor practice findings upon the testimony of employees Perfecto
Tey and Joe Barrera concerning conversations they had with James E. Heneger.
Tey I find to be an unreliable witness and, despite my reservations as to Heneger's
veracity, I do not credit Tey's uncorroborated testimony which was denied by
Heneger. Barrera initially testified that Reneger said that he would be replaced
if he signed for the Union. On further examination , however, Barrera testified that
Heneger said employees who do not cross a picket line would be replaced. It is
uncertain from Barrera's testimony whether Heneger made both remarks or just
the latter and Barrera's initial testimony was merely a personal construction of
Heneger's statement. Accordingly, I find that Barrera's testimony with regard to
his talk with Heneger is too ambiguous upon which to base an unfair labor prac-
tice finding.
3. Conduct of Foreman Mullenix
Virgil Jones testified that about 10 days before the election he had the following
conversation with Dock Foreman J. H. Mullenix:
Mr. Mullenix asked me if us firemen or the firemen would vote "No" on the
union as a personal favor to him, that Mr. Walker would not go union and that
if it was voted in, well, he would sell out or close out and that we would all be
without a job, and I told him that I would rather not vote at all.46
I credit this testimony 47 and find the threats voiced and efforts to influence the
firemen's vote in context of such threats were coercive and violated Section 8 (a)
(1) of the Act.
43 Jones testified that during the conversation with Reneger the latter said, "Even
though if Mr. Walker did go union that it might interfere with us working there due to
the fact that us carrying two union cards. . . . I made the remark, well, I wasn't scared
of the two cards, but it could happen like it did at Brown over there whenever they
changed unions, they had a clause in there that they had to guarantee so many hours
which it was impossible for us to get in, so therefore we were laid off due to that fact."
44 I do not credit IIeneger's denial.
45 I do not credit Ieneger's denial.
46 Jones' testimony was corroborated by Antonio Rodriguez, another part-time employee
who is also a city fireman. Rodriquez testified that Mullenix in the form of a request for
a personal favor asked him and Jones not to vote at all in the election unless they voted
against the Union. Mullenix's attempt to dissuade Jones and Rodriguez from voting in
the election unless they voted against the Union accompanied as it was by the threat that
the Respondent would close operations in the event of a union victory was coercive.
N. L. If. B. v. Williams Lumber Company, 195 F. 2d 669 (C. A. 4).
47 Mullenix's version of this conversation omits all references to threats that Respondents
would close down if the Union were to win the election. He admitted, however, that "I
told them [Respondents' employees] that the Company, everyone I talked to, I said the
Company was not going to go union."
ALAMO EXPRESS, INC. 33:
On the other hand, I find that the testimony of employee Frank De Luna
concerning a conversation with Mullenix wherein the latter prophesied possible loss.
of employment for union members by reason of Respondents ' right to replace
strikers was within the area of permissible comment. I also find the testimony of
employee Dionaces Rosales concerning his conversation with Mullenix too indefinite-
upon which to base an unfair labor practice finding.
4. Other conduct
Employees De Luna, Barrera, and Tey testified without contradiction that prior
to the election , at one of the regular safety meetings held by the Respondents for
their Corpus Christi employees , Harry Allen , a salesman , made a speech in which
he told the employees attending the meeting to vote for the Company and against
the Union and further said that there probably would be a strike and that
Respondents would not sign a contract with the Union and that they would close
the terminal before signing a contract with the Union . 48 Because this speech was
made at an official company meeting of employees in the presence of Vice President
Heneger, Terminal Manager Koenig, Foremen Chance and Mullenix and none of
these officials repudiated Allen's statements , in the circumstances , Allen was per-
mitted to hold himself out as a spokesman for management and responsibility for
his statements in this speech is attributable to Respondents . I find therefore that
Respondents further violated Section 8 ( a) (1) of the Act by reason of the threat
made by Allen in his speech to the employees that Respondents would close the
terminal before signing a contract with the Union.
I do not base any unfair labor practice findings upon the testimony of employees
Tey and Rosales concerning conversations with James Butler because of the
ambiguity of their testimony in that regard , nor upon the testimony of employee
Wilber Driggers concerning alleged conversations with Terminal Manager Koenig,
which the latter denied , because Driggers ' incriminatory testimony exacted only
after a series of leading questions lacked the air of conviction to be deserving of
credit. I also find that the General Counsel has failed to prove that Respondents
spied upon the employees who attended a union meeting at the Princess Louise
Hotel in Corpus Christi.
5. The discharges
Raul C. Gamez
Raul C . Gamez was hired about January 15, 1954, as a city driver and dock
worker at Respondents ' Corpus Christi terminal. He was discharged on November
29, 1955. The complaint alleges that this discharge was discriminatory and in
violation of the Act.
About 2 weeks before the October election, Vice President Heneger questioned
Gamez as to how he stood with the Union . At that time Gamez said he was
not for the Union. However , subsequently Gamez served as the union observer
at the election thereby publicizing his union allegiance despite his earlier attempt
to hide such fact from Respondents.
Gamez was discharged by Terminal Manager Ralph Koenig who testified he
did so without seeking prior authorization from, or confirmation of his action by,
J. Leo Walker.49 According to Koenig , Gamez had picked up a shipment of
furniture from the National Carloading Company. As Gamez was unloading the
freight from his truck Koenig saw that the cartons in which the furniture was.
packed were torn and the furniture was damaged. Koenig asked Gamez why he
had failed to get a notation of the damage from the Carloading Company.50 Gamez.
replied that he had not asked for any. Koenig then said he "just couldn 't tolerate
that," and discharged Gamez. Koenig testified that this conversation took place
about 6 p. m., that he fired Gamez on the spot and that he probably made a report
to Heneger the same night. Koenig further testified that 2 or 3 weeks earlier he
48 I credit De Luna's version of Allen ' s speech as being the most accurate.
49 J. Leo Walker testified no one had authority to discharge an employee without his
approval.
so When a shipper offers a driver freight which is damaged or encased in a damaged
carton the driver is under instructions not to accept the freight unless a notation of the
damage is endorsed on the freight bill by the shipper . The purpose of the notation is to
save Respondents harmless against claims alleging their responsibility for damage to the
freight. The drivers are under further instructions to telephone the terminal whenever a
shipper refuses to note an exception on the freight bill in such cases.
476321- -58-vol. 119 4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had reprimanded Gamez for rough handling a case of paint while loading a trailer
and 'had reprimanded Gamez on other occasions for rough handling freight. There
was a previous occasion, according to Koenig, when Gamez had returned with a
carton in bad condition. and he had asked Gamez "to please watch it close and
be sure to get those exceptions." Koenig noted on Respondents' station payroll sheet
for Gamez' last period of employment that he was discharged "account rough
handling of freight." 51 Although Koenig testified that Gamez returned with
damaged freight on the day of his discharge neither Koenig nor anyone else on
behalf of Respondents testified that any claim was ever made upon the Respondents
in that connection.52
Gamez' version of the circumstances leading to his discharge conflicts materially
with the foregoing. According to Gamez, he was not notified of his discharge the
night of November 29, but in the morning of November 30. When he reported for
work at 7 a. m., his timecard was missing and Dock Foreman Herman Chance told
him to wait for Terminal Manager Koenig. Upon the latter's arrival about 9 a. m.,
Gamez asked him why he was discharged. Koenig replied that he did not know,
but it was probably for mishandling freight. Gamez inquired, what freight, and
Koenig said he believed it was a shipment of pipe which Gamez had delivered to
-the naval base but he did not really know. Gamez asked whether Koenig could do
anything for him and the latter said, "No, since the orders came from San An-
tonio . as far as I know you are fired." Gamez then found Mr. Heneger and
asked him the reason for his discharge. Heneger replied that he did not know and
since Gamez had been discharged by Ralph Koenig there was nothing he could do.
Gamez testified that in this final conversation with Heneger he asked whether he was
being discharged because of damaged pipe he had delivered to the naval base in July.53
Heneger said, "He didn't know, probably was. . . . Didn't know, just mishandling
freight."
As to the furniture incident, which according to Koenig precipitated Gamez' dis-
charge, the latter testified that the event occurred not on the day of his discharge
but 3 or 4 days earlier. In this regard Gamez testified that when he picked up the
furniture he noticed that the cartons in which it was packed were damaged and asked
the consignor's checker for a notation on the freight bill. The checker, asserting
that the furniture was not damaged, refused.54 Upon returning to the terminal
Gamez told Dock Foreman Mullenix what had happened. Mullenix took the freight
bills and went to the office. Later Koenig came to the dock and reprimanded Gamez
for having failed to obtain a notation that the furniture cartons were damaged when
received. Gamez testified that this incident was not mentioned to him on the
day of his discharge. Gamez also testified that about a month before his discharge
he had been cautioned by Koenig to exercise greater care in stacking freight.
I credit Gamez' version of the events leading to his discharge rather than Koenig's.
The former was a well-spoken witness. In giving his testimony he made no effort
51 Koenig testified that Gamez was the only employee within his knowledge ever to have
brought damaged freight to the terminal without having obtained a notation thereof on
the freight bill. He further testified that it is not possible for a driver to accept a
damaged shipment without knowledge of the fact because an employee of the Respondents
is always on band to observe freight being loaded onto Respondents' trailers even in
instances where the consignor undertakes the loading operations. However, contrary to
Koenig, employees De Luna, Rosales, and Rodriguez testified that it was common for
Respondents to leave an empty trailer at a carloading company with no employee of
Respondents in attendance and after the trailer was loaded one of Respondents' drivers
would pick up the trailer and accept the freight bill without having had an opportunity
to check the freight for damage. Rodriguez further testified about an occasion when
Koenig asked him why he had not obtained a notation on the freight bill for damaged
furniture which he had picked up from a consignor and he explained that "it was im-
possible for me to stack the freight and check the bills at the same time, and that I had
missed seeing this particular piece, although I watch for them." This explanation was
accepted by Koenig. Koenig did not deny Rodriguez' testimony.
62 This tends to corroborate Gamez' testimony with regard to the furniture, namely, that
although the cartons in which it was packed were torn, the furniture itself was not
damaged.
11 Gamez testified that although the delivery of the pipe was made in July 1955, about
a week or two before his discharge he was questioned about the matter by Koenig who
asked him whether he knew the quantity of pipe that had been damaged.
54 Gamez testified that he should have telephoned Respondents' terminal manager about
the matter before accepting the freight without a notation, but did not remember whether
he had done so.
ALAMO EXPRESS, INC. 35
to withhold or conceal facts which might have been damaging to his cause. He
freely testified to instances of damaged freight where culpability could have been
attributed to him. Thus, despite the fact that Koenig and Heneger had testified
before him at the hearing without mentioning the damaged pipe which had been
delivered to the naval base, Gamez himself raised the subject. Koenig, on the other
hand, was not so candid. For instance, his testimony that he knew no other employee
who returned with damaged freight without having obtained a notation thereof on
the freight bill and that Respondents' trailers are never loaded by a shipper without
an employee of the Respondents being on hand to inspect the freight for damage
was so manifestly contrary to the facts that it is hardly explainable as forgetfulness.55
To the extent that Koenig's testimony might have been corroborated, corroboration
is lacking. Koenig testified positively that he discharged Gamez without obtaining
J. Leo Walker's approval. J. Leo Walker, however, testified that "Mr. Koenig
consulted me on that employee [Gamez] before he fired him." Thus, J. Leo
Walker's testimony not only contradicts Koenig but tends to corroborate Gamez'
testimony that he was told by Koenig that the orders for his discharge came from
San Antonio. Koenig testified that the furniture incident occurred on November
29 while Gamez testified that it occurred several days earlier. Respondents did not
offer in evidence their file copies of the freight bill or other documents to verify
the date on which the furniture had been picked up by Gamez. Koenig testified
the furniture was damaged which was denied by Gamez. No evidence of any
claim having been filed against Respondents on account of damage to the furniture
or other evidence corroborating Koenig in that regard was introduced into the record.
According to Gamez' credited testimony when he pressed Koenig for a reason
for his discharge Koenig stated it probably was for mishandling freight and made
reference to a shipment of damaged pipe delivered by Gamez to the naval base in
July. Corroborating Gamez' testimony in this respect is the fact that at the time
of Gamez' discharge Koenig endorsed on the Respondents' station payroll sheet as the
reason for the action "account rough handling of freight." However, at the hearing,
Koenig did not testify that it was Gamez' alleged rough handling of freight which
precipitated his decision to discharge Gamez, but instead that it was Gamez' failure
to obtain a notation for freight which he had picked up in a damaged condition.56
The inconsistency between the reason given Gamez for his discharge and the reason
advanced at the hearing is indicative that neither motivated Respondents' action.
The testimony offered on behalf of Respondents that Gamez had been guilty of
various acts of rough handling of freight has only slight bearing upon the issue here
because both Koenig and Heneger testified that it was the furniture incident alone
which precipitated Gamez' discharge. Furthermore, the pipe incident, as to which
Koenig testified at length only after the subject was mentioned by Gamez in his
testimony, occurred some 4 months before his discharge. Similarly the two other
incidents referred to by Koenig in his testimony, even if credited, were also remote
from the day of Gamez' discharge. Thus, it is not likely that these incidents prompted
Respondents to discharge Gamez in November 1955. Although it is true that Gamez
had violated a standing instruction by having accepted the furniture on the occasion
in question without obtaining a notation upon the freight bill that the cartons were
damaged, he was reprimanded at the time by Koenig and the latter made no allusion
to this incident when he notified Gamez of his discharge several days later. It would
appear that this incident, not mentioned to Gamez at the time of his discharge, was
a "palpable afterthought." N. L. R. B. v. Wells Incorporated, 162 F. 2d 457, 459
(C. A. 9). If it was the furniture incident which motivated the Respondents to
discharge Gamez, it is unnatural that Koenig would have failed to have told this to
Gamez when discharging him and instead have told Gamez that he was being dis-
charged for the rough handling of freight and have noted the latter reason rather
than the former reason on the Company's station payroll sheet. N. L. R. B. v. Smith
Victory Corp., 190 F. 2d 56, 57 (C. A. 2).
Weighing against Respondents' unconvincing explanation for Gamez' discharge
is Respondents' unconcealed hostility towards the Union and Heneger's desire to get
rid of all union supporters among the employees at Respondents' Corpus Christi ter-
minal. I conclude that Gamez was discharged for his support and activities on
behalf of the Union rather than for the reason asserted by Respondents.
'' In this regard several witnesses, including Rodriguez, refuted Koenig. See footnote 51,
supra . Rodriguez also is a city fireman who works part time for Respondents and like
Jones impressed me as being a completely truthful witness.
6' Gamez is not accused of having been responsible for the alleged damage to the
furniture.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joe Barrera
Joe Barrera had worked for Respondents as a city pickup driver at its Corpus
Christi terminal for about 6 years before his discharge on January 17, 1956, by
Vice President James E. Heneger. The latter testified that Barrera was discharged
because he "was off his route using his truck apparently for personal use." Ac-
cording to Heneger, on the day in question Respondents ' dispatcher , James Martin,
reported to him that Martin had seen Barrera off his route . When Barrera returned
to the terminal that evening Heneger asked him why he had left his route . Barrera
made no reply . Meneger then told Barrera he was discharged . Heneger testified
that drivers are not supposed to go off their routes without permission and before
speaking with Barrera on the evening of January 17 he made a check and found
that nobody had given Barrera such permission . Heneger also testified that pre-
viously he had warned Barrera several times against leaving his route without
permission , the last warning having been given 3 or 4 months before the discharge.
Dispatcher Martin was not called as a witness . However, Dock Foreman Mullenix
testified that he saw Barrera 18 to 20 blocks from his route on the morning of
January 17. According to Mullenix, when he arrived at the terminal he asked
the morning dock foreman, Chance, whether Barrera had a delivery in the vicinity
where Mullenix had seen him. Chance said no. Mullenix then reported the
matter to Heneger.57 That evening when Barrera returned to the terminal Mullenix
said to him "that was pretty bad, `as old a hand as you are, Joe, that you can't stay
on your route . I am going to have to turn this incident over to Mr. Heneger. It's
gotten out of my hands .' " Barrera protested that he had not left his route that
day. Mullenix also testified that on previous occasions it had been reported to
him that Barrera was seen off his route but he ( Mullenix ) never spoke to Barrera
about the matter. Mullenix further testified that he had warned drivers many times
about going off their routes because "there 's a lot of them did that," 58 but no one
had ever been discharged for such infraction and the practice had recently been
discontinued . Lastly, Mullenix testified that about 2 or 3 weeks earlier Dispatcher
Martin had reported to him that Martin had seen Barrera off his route at about
the same place Mullenix saw Barrera on January 17.
Barrera testified he had not left his route on January 17. When he returned to
the terminal that evening Mullenix asked him why he had gone off his route and
he denied that he had done so. About 6 p. m., that same evening Heneger asked
the same question and Barrera again denied the accusation . Barrera testified he
was not discharged that evening. The next morning when he reported for work
his timecard was missing . Barrera went to the office and asked Heneger why he was
being discharged . Heneger replied, "because you was off your route." Barrera
asked who had told him so and Heneger replied that three people had made such
report but he would not reveal their names.
Respondents ' asserted reason for Barrera 's discharge is not convincingly sup-
ported by the evidence . Heneger testified that on January 17, Dispatcher Martin
reported to him that the latter saw Barrera off his route that day. Martin was not
called by Respondents as a corroborating witness and no explanation was offered for
their failure to do so. Mullenix testified that he had reported to Heneger on
January 17 that he had seen Barrera off his route . However, Heneger testified
that he had no recollection of Mullenix having made such report to him on January
17 but "had heard complaints on that before" from Mullenix . The testimony of
Mullenix is to the contrary . He averred that he had overlooked all previous in-
formation that Barrera was seen off his route and never reprimanded Barrera for
such reported infractions of the company rule. Mullenix further testified that 2 or
3 weeks earlier Martin had told him that the latter had seen Barrera off his route
but did not testify that Martin reported any similar incident to him on January 17.
The absence of Martin 's testimony and the inconsistency between Heneger's and
Mullenix's testimony give added weight to Barrera 's denial that he had left his
route on January 17 and suggest the possibility that Respondents ' witnesses re-
suscitated an old event to lend ostensible justification for Barrera 's discharge. Other
facts impinge further upon the reliability of Heneger 's and Mullenix 's testimony.
Barrera testified that he was not discharged until the morning of January 18.
Heneger testified he notified Barrera of his discharge in the "late afternoon" of
January 17 between 6 p. m. and 7 p. m. However, Barrera's daily timecard for
57 Heneger testified that he did not recall such complaint about Barrera having been
made to him by Mullenix on January 17.
580n the other hand, Heneger testified that the company rule prohibiting drivers from
leaving their routes was "not too often" violated.
ALAMO EXPRESS, INC. 37
January 17 shows that he did not punch out until 8:39 p. m., that night. This
fact tends more to corroborate Barrera than Heneger. In addition, the evidence
establishes that no other driver had ever been discharged for leaving his route
without permission. In the circumstances, therefore, to select Barrera, who had
been working for Respondents for more than 6 years and who had never been repri-
manded for such offense,59 as the first employee to be disciplined on this account
and to mete out the severe punishment of discharge does not seem natural.
On the other hand, Heneger's reaction upon learning of Barrera's union activity
furnishes a more substantial clue to Respondents' motive for discharging him.
Mrs. Rucker testified that when she told Heneger shortly before the election that
Barrera would be one of the union observers, he expressed his feelings with the
remark, "That goddam Joe Barrera, as good as I have been to him." 60 Explaining
further the reason for Barrera's discharge is the admission of Dock Foreman Herman
Chance that Barrera had been included on the list of employees at the Corpus Christi
terminal who had been or would be discharged because their union allegiance had
been discovered by Respondents. I find that Barrera was discharged not for the
reason asserted by Respondents but because of his union allegiance and activities.
Dionaces Rosales
Dionaces Rosales worked for Respondents as a city pickup and delivery driver
at its Corpus Christi terminal from April 11, 1953, until he was discharged on
February 15, 1956, by James E. Heneger. Heneger initially testified that he dis-
charged Rosales "for not collecting money on his freight bills." 65 According to
Reneger, Rosales "was very careless about collecting for shipments. . Just about
every day he made his deliveries" he was guilty of a failure to collect freight charges
as indicated on the freight bill. Heneger testified that although he had reprimanded
Rosales about such omissions "numerous times," the latter's failure to collect freight
charges was "a constant thing" and "it seemed like he was getting worse as time
went on." On the day Rosales was notified of his discharge Heneger had 4 or 5
uncollected freight bills which had been accumulated during a 2 or 3 days' period
and he told Rosales that that was the reason for Respondents' action. Rosales said
nothing at the time. Heneger further testified that it was "not too often" that other
drivers forgot to collect the freight charges, and at the time he discharged Rosales
no other driver was guilty of a similar offense.
Rosales' alleged offense falls under the category of extending credit. Respondents'
final station payroll sheet for Rosales has endorsed upon it that "he was discharged
because of carelessness with handling money-extending credit to individuals."
As to Rosales' carelessness with handling money, Heneger testified as follows:
Q. Well, where did the carelessness with the handling of money come
in?-A. I think [Rosales] was losing bills, losing freight bills, and I think
that also they had trouble when he checked in his money not checking, showing
it to the cashiers.
Q. But you didn't mention carelessness with handling of money to [Rosales]
when you fired him?-A. I don't know whether I mentioned that or not.
Q. You had never warned [Rosales] about being careless with the handling
of money, had you?-A. Oh, anybody that's in the business knows that you
have to be careful with your money.
Q. Then you think [Rosales] ought to have known that?-A. Sure, absolutely.
Q. And you never mentioned it to him?-A. Well, I don't know whether
I ever did 62
63 I credit Barrera ' s testimony that he was never reprimanded for being off his route
despite I-leneger ' s rather vague testimony that he had done so. Mullenix specifically
testified that he had never reprimanded Barrera for leaving his route without permission.
80 Reneger in his testimony admitted after considerable equivocation that on the day of
the election the Board agent asked for Barrera as a union observer but he was on his
route and unavailable.
G' Where a consignee does not have a credit account with Respondents the dock foreman
affixes a red letter stamp upon the freight bill to the effect that the driver must collect
the freight charges. In such cases the driver is not supposed to leave the freight with
the consignee unless he is paid the charges.
°' Testimony was offered with respect to improper behavior on the part of Rosales having
been reported to Respondents on two occasions . However, both incidents antedated
Rosales ' discharge by considerable periods of time . Heneger did not testify that his
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rosales testified that on the evening he was discharged he was told to report to
Heneger who said, "Rosales , I guess I am going to have to let you go." Rosales
asked why and Heneger showed him a freight bill and a check . Rosales testified
Heneger said the freight bill was for a charge he had failed to collect . As to the
check, Rosales testified that about 3 weeks earlier he received a check in the sum
of $4.55 from a consignee in payment for a $1 .55 freight charge. He did not
realize the check was made out in a larger amount than the charge until it was
called to his attention by Respondents ' cashier when he turned in his day 's collec-
tions. Rosales also testified that he was never reprimanded for not properly han-
dling money or for extending credit without authorization.
After Rosales had testified , Heneger was recalled as a witness by Respondents'
counsel and corroborated Rosales' testimony that he showed Rosales one freight
bill and the check during Rosales' exit interview.63
W. A. Mayhall, Respondents ' system auditor , testified that in November 1955 he
conducted an audit at the Corpus Christi terminal . He testified that he found
possibly as many as 1,000 unpaid freight bills where the drivers should have col-
lected the charges upon delivery . He made no further audit at Corpus Christi
until July 1956 by which time he found that the situation with regard to delinquent
collections had been corrected.
Upon analysis, Heneger's testimony is in substantial respects implausible. He
averred that the drivers other than Rosales seldom failed to collect the freight
charges when the bills were marked for collection . This is unlikely when measured
against Mayhall 's testimony that in November 1955 he found about 1,000 unpaid
bills for freight as to which the drivers should have collected the charges upon
delivery.64 Heneger also testified that although other drivers only infrequently
failed to make collections Rosales "just about every day he made deliveries" had
been remiss in collecting the freight charges from customers who did not have
credit accounts with Respondents . It is improbable that Respondents would have
continued Rosales in their employ for almost 3 years if he was guilty of an almost
daily infraction of Respondents ' rule with regard to collections . Finally, if Rosales
had been guilty of so many failures to collect freight charges it is suspicious that
Heneger found it desirable and necessary when advising Rosales as to the reasons
for his discharge to emphasize the single incident when in payment of a freight bill
Rosales accepted a check made out in an amount greater by $3 than the actual
freight charges. On the whole , I find the Respondents ' asserted reason for dis-
charging Rosales unpersuasive.
Effectively and completely refuting the validity of Respondents ' asserted reasons
for Rosales ' discharge is the testimony of Todora Rucker. In her second conversa-
tion with Heneger , described above, Heneger specifically asked her what she had
learned with regard to Rosales ' union preferences . She replied that she did not
know but would talk to him again . That evening she found out from Rosales that
he intended to vote for the Union in the election . In November , following the
election, Heneger asked Mrs. Rucker to report to him the names of men who made
mistakes and particularly requested her to report any mistakes on the part of
several specific employees , including Rosales. This tends to indicate that Heneger
was seeking an ostensible nondiscriminatory reason for discharging Rosales.
Finally, Mrs. Rucker testified that a few days after she left Respondents' employ,
on February 7, 1956, but before Rosales was discharged , Dock Foreman Chance
informed her that the Respondents intended to discharge several employees whom
they knew to be union sympathizers and Rosales was one of them . Considering
Mrs. Rucker 's credited testimony together with the fact that the Respondents were
hostile towards the Union, the evidence of a disposition on their part to sever the
employment of known union supporters and the unconvincing nature of Heneger's
testimony with regard to his reasons for discharging Rosales, the conclusion is
inescapable that Rosales was discharged because of Respondents ' belief that he
was an active union' adherent.
Perfecto Tey
Perfecto Tey was discharged on Sunday , April 29, 1956 . Dock Foreman J. H.
Mullenix testified that he personally discharged Tey. The reason assigned by
decision to discharge Rosales was influenced thereby and the evidence shows that one of
the incidents was never reported to Heneger prior to Rosales ' discharge.
es It should be noted that initially Heneger did not testify that he mentioned the check
or showed the check to Rosales during the latter's exit interview.
ss Mayhall also testified that of these at least 100 or 200 were with respect to deliveries
made within a short period before the audit.
ALAMO EXPRESS, INC. 39
Respondents for Tey's discharge was that on that day he reported for work 11/2
hours late and drunk. The evidence shows that every Sunday the Respondents
transport 2 trailer loads of bread for 1 of their customers. Because of the particular
requirements of the customer it is necessary that the deliveries be made on time.
On the day in question, according to Respondents' witnesses, Tey reported for work
11/2 hours late and under the influence of liquor to such an extent that he could
not be trusted to drive a truck. Tey's testimony does not differ substantially from
that of Respondents' witnesses. He testified that he reported for work 1 hour late
rather than 11/2 'hours late. Tey also testified that he had had a few beers before
he reported for work, but was not drunk. Although he testified he was in condition
to load a truck, he did not testify that he was in condition to drive a truck. Despite
evidence in the record indicating that Respondents welcomed the opportunity to
discharge Tey because of their suspicions that he was one of the union supporters,
nevertheless, I find that the General Counsel has failed to prove by a preponderance
of the evidence that Tey was discharged for that reason rather than for the reason
asserted by Respondents. I shall, therefore, recommend that the complaint be
dismissed insofar as it alleges that Tey was discriminatorily discharged.
E. Conclusions -
The evidence is overwhelming that Respondents were implacably opposed to the
representation of their employees by the Union. At various times between 1946
and 1953, the Union had engaged in unsuccessful attempts to organize Respondents'
employees. In the spring of 1955 the Union began still another such effort. The
Union's last campaign met Respondents' immediate resistance. Respondents'
agents did not limit their antiunion activities to the expression of views, arguments,
and opinions. The employees were threatened with discharge for giving support
to the Union and were warned that Respondents would discontinue their business
before they would recognize and bargain with the Union.65 In addition, attempts
were made to discover the identity of all the union supporters despite the fact
that some employees were sufficiently temerarious to wear union buttons while at
work. The object of these efforts was to cull from Respondents' employment rolls
all union adherents and thereby to stave off the possibility of any future renewal
of organizational activity by their employees. Therefore, despite the Union's
failure to obtain the votes of a majority of Respondents' employees in the October
1955 National Labor Relations Board election, Respondents were intent upon
severing from their employ those employees whom they discovered were union
adherents. In so doing Respondents waited for such employees to make some
missteps which would furnish Respondents with an ostensible nondiscriminatory
reason to effect their discharge. With respect to the employees alleged herein
to have been discriminatorily discharged, the question in each case is whether the
employee would have been discharged for his alleged misconduct absent Respondents'
knowledge of his union sympathy. The principles applicable to such situations are
clear. "If employees are discharged partly because of their participation in a
campaign to establish a union and partly because of some neglect or delinquency,
there is nonetheless a violation of the . Act." N. L. R. B. v. Jamestown
Sterling Corp., 211 F. 2d 725, 726 (C. A. 2). Conversely, union membership is
not a shield which immunizes an employee from discipline for incompetency, ineffi-
ciency, or misconduct. The subject for investigation in each case is what was the
employer's "motivating reason" 66 for effecting the discharge-the employee's union
activities or the unsatisfactory performance of his job. I have found that Re-
spondents' asserted reasons for having discharged or laid off employees Hill, Jordan,
Solomon, Gamez, Barrera, and Rosales were pretexts and that absent Respondents'
knowledge that they had supported the Union they would not have been separated
at the times in question for the reasons asserted by Respondents. I therefore find
that Respondents discriminated against these employees with regard to their hire
and tenure of employment. On the other hand, I have found, despite suspicions
to the contrary, that the General Counsel has failed to prove by a preponderance
of the evidence that the motivating reasons for the discharge of employees Riggans,
Garza, Vinson, and Tey were their union sympathies and activities rather than the
reasons assigned by Respondents.
By discriminatorily discharging Hill, Jordan, Gamez, Barrera, and Rosales for
their union support and activities and discriminating against Solomon for the addi-
06I do not base any unfair labor practice finding upon Respondents' letter to their
employees with regard to the Christmas 1955 bonus.
01N. L. R. R. v. Whitin Machine Works, 204 F. 2d 883, 885 (C. A. 1).
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional reason that he gave testimony in this case Respondents have violated Section
8 (a) (3) and (4) of the Act , and have also interfered with , restrained , and coerced
their employees in the exercise of the rights guaranteed them by Section 7 of the
Act, in violation of Section 8 (a) (1) thereof . Independent of these actions Re-
spondents have further violated Section 8 (a) (1) of the Act by reason of their
conduct , described above, which unlawfully infringed upon their employees ' rights
protected by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in
'connection with the operations 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices , it will
be recommended that they cease and desist therefrom and that they take certain
.affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents unlawfully discriminated in regard to the
hire and tenure of employment of Alonzo Amos Hill, Lawrence Jordan, C. L.
Solomon, Raul C. Gamez, Joe Barrera , and Dionaces Rosales. It will be recom-
mended that the Respondents offer each of them immediate and full reinstatement
to his former or a substantially equivalent position 67 without prejudice to his
seniority or other rights and privileges and make each of them whole for any loss of
-earnings he may have suffered by reason of the Respondents ' discrimination against
him by payment to him of a sum of money equal to that which he normally would
have earned from the date of his discharge or layoff to the date of Respondents'
offer of reinstatement , less his net earnings during said period.68 Said loss of
earnings shall be computed in accordance with the customary formula of the Na-
tional Labor Relations Board.69 It will also be recommended that the Respondents
preserve and, upon request , make available to the Board or its agents for examina-
tion and copying all records necessary and useful to determine the amount of back
pay due under the terms of this Recommended Order, including pertinent social-
security payment records , timecards , and personnel records and reports.
The Respondents ' violations of the Act , found herein , disclose a fixed purpose
to defeat self-organization by their employees . Because of Respondents ' unlawful
conduct and its underlying purpose the Trial Examiner is persuaded that the unfair
labor practices found herein are related to other unfair labor practices proscribed
by the Act , and that the danger of their commission in the future is to be anticipated
from Respondents ' conduct in the past. The preventive purposes of the Act will be
thwarted unless the remedial order is coextensive with the threat . In order, there-
fore, to make effective the interdependent guarantees of Section 7 of the Act, to
prevent recurrences of unfair labor practices and thereby to minimize industrial
strife which burdens and obstructs commerce , and thus to effectuate the policies
of the Act , it will be recommended that Respondents cease and desist from infringing
in any manner upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Alonzo
Amos Hill, Lawrence Jordan , Raul C. Gamez , Joe Barrera , and Dionaces Rosales,
thereby discouraging membership in the Union , the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
2. By discriminating in regard to the duties, hire , and tenure of employment of
-C. L. Solomon because he gave testimony at a hearing conducted pursuant to the
provisions of the Act and because he gave support to the Union , thereby discourag-
67 The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch,
,65 NLRB 827.
68 See Crossett Lumber Co ., 8 NLRB 440.
9D See N. L . R. B. v. Seven - Up Bottling Company of Miami, Inc ., 344 U . S. 344, and
F. W. Woolworth Company, 90 NLRB 289.
ASSOCIATED WHOLESALE GROCERY OF DALLAS, INC. 41
ing membership in the Union , the Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8 ( a) (3) and (4) of the Act.
3. By interfering with, restraining , and coercing their employees in the exercise-
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com -
merce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondents have not engaged in any unfair labor practices by reason of
the termination of employment of Teroy Riggans, C . L. Vinson, Rubin Garza, and
Perfecto Tey.
6. The Respondents have not engaged in any unfair labor practices by reason.
of conduct alleged in the complaint to have interfered with, restrained , or coerced
employees except insofar as such conduct has been found hereinabove to have violated
Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
Associated Wholesale Grocery of Dallas, Inc . and Dallas General
Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO..
Case No. 16-CA-9538. October 18,1957
DECISION AND ORDER
On December 10, 1956, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
ceptions to the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, Respondent's exceptions, and the entire record in
the case, -and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
We agree with the Trial Examiner that Respondent unlawfully
discharged the economic strikers by its letter of August 29, 1956..
The intent of the letter, to advise the strikers that their employment
terminated by their failure to return to work, is clearly apparent,,
despite the attempt to shift the onus of severing the employment.
relationship upon the strikers.
We do not expect an employer at the onset of a strike to measure
each phrase in a communication to his strikers against Board prece
dents, but neither are we disposed to resolve every ambiguity, in-
tentional or otherwise in such a letter, in the employer's favor. Re-
spondent chose to tell its employees that their failure to report for
work meant that their employment was ended. Only a close reading
of the remainder of the letter makes it possible to decide that Re-
119 NLRB No. 9.