Alamo Express, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1203 (N.L.R.B. 1960)

ALAMO 7ENPRESS^ INC.', A•ND ALAI [O }CARTAGE COMPANY 1203
6:, Seafarers .International Union of North America,'•Atlantic &'Gulf. District,
P, R. Division, AFL-CIO, was on March 5, 1959,,and at all, times since, has been,
the' exclusive-certified representative df the employees in the above-described unit
for the, purposes of"collective bargaining within - the meaning` of Section 9(a)'of
the Act. -
7.' By engaging in,. and inducing ' and encouraging ," the employees of Simmons,
'Inc.,.to engage in, a strike or a concerted refusal in the course of their employment
to perform services for Simmons, Inc., on -March 23, 1959, with an object of forcing
and' requiring Simmons, Inc., to recognize or bargain' with Comite de Empleados de
Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de la
Simmons,.Inc.) as the, bargaining, representative of the employees in the unit de-
scribed above, notwithstanding that another union had been certified by the Board
as the representative of such employees, Respondents Comite, Pacheco, Gambaro,
Garcia, and Burgos engaged in 'unfair • labor - practices within the meaning of
Section 8(b)j(4)'(C) of the Act.
8. The aforesaid unfair labor practices, occurring in connection withi the opera-
tions of Simmons, Inc., have a close, intimate, and substantial relation, to trade,
traffic, and commerce among the several States and ' tend to burden and obstruct
commerce and the free flow thereof, and therefore constitute unfair' labor practices
affecting commerce within the meaning of Section 2(6) and (7) of the Act. .
9. The General' Counsel has failed to prove that Filliberto Aviles Padilla and
Respondent Teamsters, Chauffeurs, Warehousemen and Helpers, 'Local' 901,
IBTCW & H of America, have committed, or are committing, any unfair labor
practices within the meaning of Section 8(b) (4) (C) of the Act. ' '
10. The General Counsel has failed to prove that Respondents Comite, Pacheco,
Gambaro,, Garcia, and Burgos induced, and encouraged concerted activities by
employees of any employer other than Simmons, Inc., or that an object of their
conduct was to force or require Simmons, Inc., to recognize or bargain with
Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTCW & H of
America, as the bargaining representative of any employees in the unit described
above.
[Recommendations omitted from publication.]
Alamo Express, Inc., and Alamo Cartage Company and Local
968, International Brotherhood . of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Local 657, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America and Local 968, International
Brotherhood _ of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Local 657,'International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America and Antonio Gil-'and Local 657, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America and Local 968 ,. International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America'
and Local 657, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Cases Nos.
23-CA-853, 23-CA-866, 23-CA-867, 23-CA-888, 23-CA-891, 23-
CA-892, 23-CA-896, ?23-CA-898, and 23-CA-902. June 17, 1960'
DECISION AND ORDER
On December 16, 1959, Trial Examiner' Sidney' Lindner issued his'
.Intermediate Report-ain the above-entitled proceedings,- finding that
the Respondent had engaged in and was engaging in certain unfair
127 NLRB No. 143.
1204 - DECISIONS OF: NATIONAL LABOR RELATIONS BOARD
labor practices and,recommending that it cease and desist therefrom
and take certain affirmative action', as set forth in the copy of the
Intermediate Report 'attached hereto. Thereafter the Respondent
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 [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner,' with the following addition.
The Respondent contends that the Board is estopped from adopting
The findings of fact and conclusions of'law of the Trial Examiner in
Cases Nos. 23-CA-853, 23-CA-866, 23-CA-867, 23-CA-888, 23-CA-
291, and 23-CA-892. It argues that the findings of. fact and conclu-
sions of law of the U.S. District Court for the Southern District of
Texas, Houston Division, in Civil Action No. 12514, .which are con-
trary to the findings and conclusions of the Trial Examiner, are res
judicata, because the General Counsel fully presented-the evidence
pertaining to the charges in these cases before the district court. We
find no merit in this contention. The jurisdiction of the Federal dis-
trict court under Section 10(j) of the Act is limited to granting the
Board "such temporary relief or restraining order as it deems just alnd
proper." We believe it is well established that proceedings, under
-Section 10 (j) of the Act have no binding effect whatever on the Board
in a proceeding on the complaint brought by the General Counsel
-before the Board 2 With due respect to the conclusions and actions
of the court in the injunction' proceeding in this case, we refer to the
following language of the U.S. District Court for the Southern Dis-
trict of Indiana in Evans v. International Typographical Union
(American Newspaper Publishers Assn.) : s
When the decision of a district court in a proceeding under Section
10 (j) for interlocutory relief is viewed in its relation to the pri-
mary proceeding under Section 10(b), it is neither final nor
conclusive as to the issues there presented. It is not final because
- ' 1 Member Rodgers does not to any degree rely , as did the Trial Examiner , upon the
small size of the Respondent ' s terminals to establish the Respondent 's knowledge of the
union activity of employees Woodard, Bonner , Eythell, Sallier , Gray, Hicks , Bowens,
Jackson, and Roy at the Houston terminal , and Fabala at the Corpus Christi terminal.
For the finding of knowledge Member Rodgers relies solely upon the credited testimony of
Woodard, Bonner, Eythell, Sallier , Cray, Ricks , Bowens, Jackson , Roy, and Fabala as to
rem,irks made by Respondent's managers and supervisors while interrogating the various
employees.
, 2 Boeing Airplane Company, et al., 80 NLRB 447, 451, footnote 14.
76•F.; Supp. "881, 885.
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1205
the standard of-inquiry in' Section -10(j) isthe probability of the
existence of facts, while the decision of-the Board in a Section
10(b), proceeding must rest upon=a full hearing and a-measure-of
proof- and inquiry extending- beyond the standard of ^ probability.
The decision of the district court is not-res judicata upon the final
hearing-of an administrative complaint, because in an application
for interlocutory and temporary relief under Section 10(j), the
court does not undertake to pass upon the merits of the principal
controversy. That lies within the province of the Board. The
district court determines- only - whether temporary relief - or a
restraining order should be granted during the pendency of an
adjudication of the issues by the Board. However, these elements
,of inconclusiveness. and lack of finality are inherent in any de-
cision granting interlocutory equitable relief pendente lite.
ORDER, -
Upon the entire record in tlie case, •and- pursuant to Section' 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Alamo Express,
Inc., 'and Alamo Cartage Company, San Antonio, Texas,* its officers,
agents, successors, and assigns, shall :
1. Cease and desist from : - ' -
(a) Discouraging membership in Locals 657 and 968,'International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of'America; or in any other labor organization of its employees, by
discharging any of its employees or in any other manner discriminat-
ing in regard to hire, tenure, or any other-term or condition of employ-
ment; except-as authorized by Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(b), Discharging or otherwise - discriminating against employees
because they gave testimony before the Board: - -
(c) Discharging-foremen in order to discourage the union activities
and membership of its employees.-
- (d) 'Engaging in surveillance of union meetings of its employees,
threatening employees with reprisal or economic loss because of their
union affiliations, activities, or sympathies, and-interrogating its em-
ployees concerning their union affiliations, activities, and sympathies
in a manner violative of Section 8(a) (1) of the Act. -
(e) In any other manner interfering with, ,restraining, or coercing
its employees in the exercise' of the right to self-organization, to form
labor organizations, to join or'assist.Locals 657 and'96S, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, to bargain collectively
- through 'representatives of their' own choosing, and to engage i a con-
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except as authorized in
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action with the Board finds will
effectuate the policies of the Act.
(a) Offer to John Woodard, Willie Bonner, Leonard Eythell,
Willie Sallier, Chester Roy, Taylor Gray, Boyce Hicks, Emory
Bowens, Lorenzo Jackson, Antonio Gil, Jose Solis, Leroy Jackson,
Alberto Uresti, Robert McGrue, Louis Fabala, Vicente Pena, Jesus
Ybarra, Pedro Gomez, Ricardo Mendez, Rodolfo Ochoa, and Raul
Ochoa, immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or
other rights and privileges, and make each whole for any loss of
earnings he may have suffered by reason of the discrimination in the
manner set forth in the section of the Intermediate Report entitled
"The Remedy." If any of the above named are at present serving
in the Armed Forces of the United States, the Respondent shall offer
them full reinstatement immediately upon their application, made
within 90 days of their discharge from the Armed Forces, and shall
notify them of their right to reinstatement.
(b) Preserve and upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to determine the amount of backpay due
under the terms of this Order.
(c) Post at its principal office in San Antonio, Texas, and at all
terminals throughout its system, including specifically Houston, San
Antonio, Corpus Christi, Harlingen, and Laredo, Texas, copies of
the notice attached hereto marked "Appendix." 4 Copies of said no-
tice, to be furnished by the Regional Director for the Twenty-third
Region, shall, after being duly signed by Respondent's representative,
be posted by Respondent immediately upon receipt thereof and main-
tained by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Twenty-third Region,
in writing, within 10 days from the date of this Order, what steps
have been taken to comply herewith.
4 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."
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1207
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section
8(a) (3) and (1) of the Act by discharging George Askey and
Selso Gil.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Locals 657 and 968,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or in any other labor organization
of our employees, by discharging any of our employees or in any
other manner discriminating in regard to hire, tenure, or term
or condition of employment, except as authorized by Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL NOT discharge or otherwise discriminate against em-
ployees because they give testimony before the Board.
WE WILL NOT discharge any foreman in order to discourage the
union activities and membership of our employees.
WE WILL NOT engage in surveillance of union meetings of our
employees, threaten our employees with reprisal or economic loss
because of their union affiliations, activities, or sympathies, and
interrogate our employees concerning their union affiliations, ac-
tivities, and sympathies in a manner violative of Section 8 (a) (1)
of 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-
tion, to form labor organizations, to join or assist Locals 657 and
968, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organiza-
tion, or bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act, or to refrain from any and all such
activities except as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer to the individuals named below immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make each of them whole for
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any loss of earnings he may have suffered by reason of the dis-
crimination against him.
John Woodard, Willie Bonner, Leonard Eythell, Willie Sallier,
Chester Roy, Taylor Gray, Boyce Hicks, Emory Bowens, Lorenzo
Jackson, Antonio Gil, Jose Solis, Leroy Jackson, Alberto Uresti,
Robert McGrue, Louis Fabala, Vicente Pena, Jesus Ybarra, Pedro
Gomez, Ricardo Mendez, Rodolfo Ochoa, and Raul Oclloa.
Any of the above-named presently serving in the Armed Forces
of the United States will be offered full reinstatement upon
application in accordance with the Selective Service Act after
discharge from the Armed Forces.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of Locals 657 and 968, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization.
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 filed by Locals 968 and 657, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America , herein jointly called the
Union, against Alamo Express , Inc., and Alamo Cartage Company , herein called
the Respondent , the General Counsel issued his complaints in Cases Nos. 23- CA-853,
23-^CA-866, and 23-CA-867, alleging that the Respondent had engaged 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. The Respondent filed an answer denying the commission of
unfair labor practices . A hearing was held on February 24 and 25, 1959, at
Houston , Texas, and on February 27, 1959, at San Antonio , Texas, before the
duly designated Trial Examiner . Thereafter, new charges were filed by the Union
and by one Antonio Gil against Respondent and the Trial Examiner granted a
motion of General Counsel to reopen the record in the original cases , and remand
to the Regional Director for the purpose of issuing an order consolidating cases,
complaint , and notice of hearing in Cases Nos. 23-CA-888, 23-CA-891,
23-CA-892, 23-CA-896, 23-CA-898, and 23-CA-902. The complaints in the
latter cases alleged that the Respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1), (3 ), and (4) and
Section 2 (6) and (7) of the Act. The reopened hearing was held on May 11, 12,
14, 15 , 18, 19, and 20 and July 9, 1959 , at Houston, San Antonio , Laredo, and
Corpus Christi, 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 . Motions by the General Counsel, during the hearing,
to dismiss the allegations from the amended complaints alleging that Earl Watson
and Clarence Blake were discriminatorily discharged in violation of Section 8(a) (3)
of the Act were granted without objection.
Upon the entire record, and from my observation of the demeanor of the wit-
nesses, I make the following:
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1209
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Alamo Express, Inc., and Alamo Cartage Company are separate Texas corpora-
tions which are so integrated as to form and constitute a single employer. Respond-
ent has its principal office and place of business in San Antonio, Texas, with terminals
in 15 cities located in the State of Texas. It is a common carrier engaged in the
transportation of freight by motor vehicles within the State of Texas and operates
under licenses issued by the Interstate Commerce Commission. During the 12-month
period preceding the issuance of the first amended complaint, which period is repre-
sentative of all times material herein, Respondent had a gross revenue in excess of
$3,000,000. Of this, an amount in excess of $100,000 was derived from inter-
changing and interlining freight with other carriers engaged in interstate commerce
and operating under licenses issued by the Interstate Commerce Commission. Re-
spondent admits and I find that at all times material herein it was engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Locals 657 and 968, General Drivers, Warehousemen and Helpers, affiliated with
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
The Board's records reveal that since 1946, the Teamsters have made several
organizational efforts to organize and represent Respondent's employees for purposes
of collective bargaining.1
The Union's most recent organizational efforts started in or about October 1958,
among Respondent's Houston terminal employees and thereafter spread to several
other terminals in the system as will be detailed hereinafter. George Aycock, vice
president and general manager of Respondent, admitted that when the Union's
latest organizational effort commenced, Respondent began hearing rumors of union
activity among its employees.
It is the General Counsel's contention as developed at the hearing that when
Respondent became aware of the renewed organizational activity among its em-
ployees, in November 1958, and in its admitted anxiety "to keep the Union out of
Alamo," it embarked on a course of action designed to interfere with the employees'
rights to organize and be represented for purpose of collective bargaining by, among
other things, interrogating them, engaging in surveillance of a union meeting, and
discharging any employee who was not "loyal" to the Respondent? Respondent
denied the commission of any unfair labor practices and asserted that union mem-
bership or activity did not play any part in its decision to discharge employees during
the height of the Union's organizing drive.
B. Interference, restraint, and coercion'at the Houston terminal
Willie Bonner, a truckdriver, testified that sometime in August 1958 he talked
with Nick Howard, union business agent, about organizing Respondent's employees,
because as he claimed other city truckdrivers were being paid twice as much as
the truckdrivers at Alamo. Several weeks after this conversation, Bonner signed a
union membership application card and passed out cards to 10 or 15 other employees.
The Union scheduled a meeting to be held on November 9, 1958. In addition
to notifying the employees through the mails, a notice was posted in the men's
restroom at the Houston terminal on the morning of November 7. Bonner testified
he saw the notice in the morning, but upon his return to the terminal later that day
it had been removed.
Bonner further testified that while he was loading some freight on the terminal
dock about 6:30 p.m. on November 7, Henry Walker, Houston terminal manager,3
1 See Alamo Express, Inc., et al ., 119 NLRB 6.
2 Aycock admitted that a part of what he meant by being loyal to Respondent was being
against the Union.
3 Henry Walker is a brother of J. Leo Walker, president of Respondent, whose office
was in San Antonio. Henry Walker will be referred to in this report as Walker and
J. Leo Walker by his full name.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him who was starting the Union . Because he was busy, Bonner told Walker
that he would talk to him later. When Bonner completed his work he went to
Walker's office, where the latter again inquired who was starting the Union. Bonner
disclaimed knowledge. Walker told Bonner he knew all about the meeting which
was called by the Union and showed him the notice which advised when and where
it was to be held. Walker asked how many employees were planning to attend the
meeting. Bonner said he did not know. Walker implored Bonner "to put a stop to"
the employees attending the meeting, warning him that Respondent would know
exactly how many went since he had friends at the union hall and for $15 or $20
could buy any information he wanted. Bonner went back to his work on the dock.
Taylor Gray, a truckdriver in Respondent's employ since March 1958, testified
that on November 9 he was driving his car to the union hall to attend the meeting.
He drove past the union hall twice but did not see any of Respondent 's employees.
On his third trip around , he saw a 1958 Mercury car parked down the street facing
the union hall. Under the impression that it was employee John Woodard's car,
he pulled up abreast of it and saw Walker and Aycock sitting In the front seat. Gray
said "Hello" to Walker and noticed that Aycock was writing something on a piece
of paper. Walker asked Gray if he was leaving. Gray said he was going to church.
Walker remarked that he heard some singing down the street and told Gray he had
better get on his way. Gray left.
Walker admitted that he talked with two or three truckdrivers about the Union
prior to the meeting. He inquired if they would attend. Walker testified that
Aycock arrived in Houston on November 8 to continue their discussions of Re-
spondent's business generally.4 They met again on the morning of November 9
when Aycock said to Walker , "Let's go over to the union hall and just see how
many men are over there. We might want to know how many we have to hire if
we have a picket line out here. It's a good way to find out." 5 They drove in
Walker's car to the vicinity of the . union hall, arriving there about 11:30 a.m.,
parked the car about a block away, and for approximately 45 minutes observed
the entrance of the union hall from the position where they were seated in the
parked car.
Aycock and Walker admitted that Gray's testimony regarding their surveillance
of the union hall was substantially true, with the exception that they deny Aycock
did any writing. Since Aycock and Walker admitted they drove to the vicinity of
the union hall so that they would know how many men Respondent would have to
hire for the number of Alamo's employees who attended the meeting and who
would not cross a picket line, it is altogether likely as Gray testified that Aycock
was writing notes on paper . I find the testimony of Aycock and Walker in this
regard to be highly implausible and I do not credit it. I find based on the testimony
of Gray, which I credit , that the incident of surveillance took place substantially as
testified by Gray.
When Gray reported to the terminal on November 10, Aycock called him into
the office. Gray testified that Aycock asked if he had changed his mind about
the Union after he left the vicinity of the union hall on Sunday . Aycock wanted
to know if Gray told any employees he had seen him near the union hall. Gray
replied that he had not. Gray testified also that Aycock said Alamo would never
go union , further "before he would let it go union he will [sic] fire all of the men
and hire a new crew."
Aycock told Gray that it appeared to him that the new men did not want the
Union but rather the older employees. Aycock wanted to know who were such
older employees, and requested Gray to :report back to him any information about
the Union he might pick up around the dock.
Bonner attended the union meeting on November 9. On the morning of
November 10, Aycock called Bonner into Walker's office at the terminal to have a
talk with him. Bonner testified that Aycock asked how the union meeting was
and he answered, "All right I guess." Aycock asked who attended. Bonner replied
he did not know . Aycock asked again if Bonner was there , to which he replied
that he was but he could not tell Aycock which of the employees or how many were
4 Aycock became general manager and vice president of Respondent on September 1,
1958, when he started a survey of the entire system. He testified he did not get around
to the Houston terminal , the largest in the system, until November 8 but had previously
talked with Walker in San Antonio on November I about the Houston terminal problems,
including the employees ' union activities , which were "very disturbing" to him and which
could have "a serious effect on" Respondent' s business.
6 The record reveals that there were no rumors or talk of a strike or picketing Respond-
ent's Houston terminal , nor were there any circumstances then present from which it
could reasonably be concluded that a strike would ensue.
ALAMO EXPRESS , INC., AND ALAMO CARTAGE COMPANY 1211
there. Bonner further testified that Aycock said he knew how many men went
to the meeting, because his car was parked down the street and he saw everybody
who went into the union hall. Aycock, reading from a list, mentioned most of the
names of employees who were at the meeting (including Taylor Gray and Leonard
Eythell) and wanted to know if they were there. Aycock inquired how long Bonner
had been working for Respondent. Bonner told him .6 Aycock reminded Bonner
of what happened several years ago when Respondent's employees attempted to
organize into the Union.7 Aycock told Bonner the Union was no good and that
J. Leo Walker, •executive vice president and president of Respondent during the
times material herein , would not countenance a union to represent Respondent's
employees, that he "would put a lock on the door and close the whole place down"
before he would approve the Union. Aycock concluded his conversation with
Bonner with the warning that he would fire any man he found out was in any
way involved in the Union. Bonner went out on its regular route, making his
deliveries and pickups of freight in the normal routine.
John Woodward, a city pickup and delivery driver, testified he signed a union
card in or about August 1958 and distributed union cards to five other employees in
the early part of November. Woodward attended the union meeting on No-
vember 9.
Woodard testified further that about 8:30 a.m. on November 10, he was called
into Walker's office, where the latter said, "I am just ashamed of you trying to
push this place into a union." Woodard denied he knew anything about the Union.
Walker refused to accept Woodard's denial and said, "Oh, yes, you know about it.
I heard you was a ringleader , you and Willie Bonner." Walker wanted to know if
Woodard went to the union meeting . Upon Woodard 's affirmative reply, Walker
commented that he knew Woodard went to the meeting because he saw him there.
Woodard testified also that Walker told him the Union "wasn't any good" and
figured out for Woodard that he was making more money than union members.8
Walker than requested Woodard to find out who the union ringleader was and he
would do something about it. Woodard then left to go out on his route.
Aycock and Walker continued their interrogations of "a good many" of Re-
spondent's truckdrivers , dockhands , and mechanics on November 10 and 11 and
thereafter.
Willie Sallier, a truckdriver on the city pickup and delivery service, testified that
on the morning of November 10 he was on the dock with several other employees
when instructions came out to the effect that Walker was talking to the employees
before they left to take out their regular routes. Sallier signed a union membership
card on the Saturday before the union meeting and also attended the meeting.
Sallier waited for his turn and was called into Walker's office. Sallier testified
that Walker inquired if the employees held a union meeting on Sunday . Upon his
affirmative reply, Walker told Sallier he knew about the meeting because he was
there and saw everybody who went into the union hall. Walker asked what was
discussed at the meeting and Sallier replied "union activities ." Walker than told
Sallier that Respondent "was going to thin out the men that went to the meeting."
Sallier left to go out on his regular route. Sallier also testified that either on
November 10 or 11 when Walker again talked with him, he wanted to know who
were the "ringleaders" and how many there were.
Leonard Eythell was a truckdriver for Respondent on several occasions . His last
period of employment commenced January 1956. Eythell signed a union card
about the beginning of November 1958 and attended the union meeting. Eythell
testified that on the morning of November 10, Aycock asked him about the union
meeting and what was discussed . Eythell replied, "The cost of living-fair prices,
wages," and matters of that nature . Aycock inquired whether the union officials told
the men that "if Alamo went union that 90 percent of the men working there would
be white, and a lot of colored guys would be out of work." Aycock also wanted
to know if the Union gave the men a party. When Eythell said "no," Aycock
remarked that it should have. Aycock told Eythell that the Union gave the men
only one side of the way it worked. Eythell told Aycock he had a load to take
to Galveston and the sooner he left the sooner he would return to Houston. Aycock
asked Eythell to think about what they had discussed and to come back in several
days and let him know his decision , whether he was for or against the Union.
Eythell left in his truck for Galveston.
Bonner was the oldest employee in point of seniority at the Houston terminal. He had
worked steadily for 9 years without a layoff.
7 See Alamo E:rpress , Inc., supra.
8 Woodard stated that be earned $110 per week as compared with the $103 per week
base rate of union members , but that he worked a much longer workweek.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chester Roy was employed by Respondent afternoons and evenings for 2 years
while attending Texas Southern University. He continued to work regularly as a
dockman and occasionally drove trucks after his graduation in 1958. Roy testified
that he signed a, union card in November 1958, and attended the union meeting.
Roy testified further that Walker called him into his office on November 10 and
talked with him about the Union. Walker asked Roy, "How was the meeting," and
what was discussed there. Walker also wanted to know if the Union made any
promises to the men. Walker than brought to Roy's attention the fact that the
Houston terminal had a number of old time-regular men and a group of compara-
tively new men like himself who worked on the dock, and that the Union was not
good for the new men and it was up to them to keep the Union out. Roy also
testified on, cross-examination that Walker thought the Union was "a bad thing" for
Alamo as well as for the men. Walker then gave Roy three typewritten copies of
a statement whereby Roy could withdraw from the Union and asked if he would
sign. Roy refused to sign and left Walker's office.
The following afternoon while Roy was working on the dock, Walker approached
him and again spoke about the Union. Later that afternoon Walker called Roy
into his office and inquired • if he had made, up his, mind to sign the withdrawal
statement. Roy acquiesced and signed. Walker told Roy he was doing the best
thing because "when you sign an application for the Union you just sign yourself
out of a job."
Joe Phillips, a city truckdriver in Respondent's employ for about 18 months,
testified that he attended the union meeting on November 9 where he signed a union
card. On the morning of November l0'he,was called into Walker's office. Phillips
testified that Aycock spoke to him first, and said the Union was not good for Alamo
or, for the employees; that he-did-not intend to have a union-at Alamo; and that,
it'was best for-,the employees "not to; fool" with the Union. Phillips testified also
that Walker then talked with him. Walker inquired about the union meeting. He
showed Phillips a list of the Houston terminal employees, pointing out to Phillips
that he was pretty far down on the list, so far as length of service was concerned:
Walker told Phillips that seniority is the criterion used by-the Union in retention of
employment and noted that Phillips stood little chance of keeping his job if the
Union was successful in organizing Respondent's employees. Walker asked
Phillips if he signed, a union card. Upon hisaffirmative reply, Walker told Phillips,
"By- [me] signing a card, as far down the seniority list as [I] was, that I would
just be cutting my own throat, signing myself out of a job by signing a card." Within
a week of the first conversation Phillips was again summoned to Walker's office.
He testified that Walker told him to read a copy of a,typewritten form withdrawal
statement and then asked if he was with him. Phillips answered "yes." Walker
said he was going to try to stop the Union; he did not know if the withdrawal
statements would do any good;,but that, in any event he was, going to try. Walker
asked Phillips to sign three copies of the statement withdrawing from the he Union,
which he did. - . .
,Miller Moss has been working on the dock at the Houston terminal, more than 2
years.. He attended the union meeting on-November 9 where he signed a union
card. Moss testified that while he was working on the dock on November 11,
Walker called him into the, office. Walker asked Moss if he attended the union
meeting and if he signed a union card: Moss answered that, he did. -Walker told
Moss the Union was no good, that he was just signing himself out of a job, particu-
larly since he was not a truckdriver and should be one of the last men to, sign
a union card. Moss testified further that Walker said if the Union was successful
in organizing Alamo's employees, and Respondent has to recruit from the union
hall, Moss would be the last man to be called to. work because.,Respondent would
ask for truckdrivers and Moss was not a truckdriver. Walker then requested Moss
to sign a withdrawal statement, which he did.
Mitchell Cash, who was in Respondent's employ as a dockworker and truckdriver
more than 2 years, testified that he was called into Walker's office on, November 10.
Walker inquired where he was on Sunday, November 9. Cash replied that he went
to a funeral. Walker asked Cash if he signed a union card. Cash told Walker he
had signed-one and returned it to the union hall with Willie Bonner. Cash testified
further that Walker told him that. Respondent would work only 26 men if Alamo
"went Union," 9 and in the event it needed more men it would get them from the
union hall for several hours work and then let them go. The next- day Cash 'was
called into Walker's office again. Walker gave Cash a prepared typewritten with-
9 About this time Respondent,had in its employ at the Houston terminal about 52 truck-
drivers, dockworkers , and mechanics. ' . - -
ALAMO EXPRESS, INC.,.AND ALAMO CARTAGE COMPANY 1213
drawal statement from the Union -and asked if he would sign it. , Cash agreed to
sign. Cash also testified that Aycock walked through Walker's office and in his
presence said "it looked like we are going to have to fire all of them."
- Boyce Hicks was first employed by Respondent in 1944. He worked :until 1946,
when he was called into the-service. Upon his release from the service he went
back to his job at Alamo and remained for 3 years until he quit. He again became
employed by Respondent in 1953 as a city pickup and delivery truckdriver. On
occasions he drove a tractor trailer and also worked on the dock.. Hicks testified
,that he joined the Union in 1956 and attended meetings. Several weeks before the
November 9 union meeting, he had just checked into the terminal at night when
Walker told him he wanted to see him in the office. Walker asked Hicks, "Who
was that got this mess started in here?" Hicks asked Walker what he meant. Walker
said, "You know about it. This damn union mess." Hicks expressed ignorance of
.the entire matter. Walker, then told Hicks that some men were "slipping" union
cards around the dock to different employees and again accused Hicks of knowledge
of what was going on. Walker warned Hicks that he had better talk to the em-
ployees because the Union was only "something to get [you] in trouble." He noted'
-that Hicks now had a job, but if he kept "fooling around with that union, you will'
be out of a job." Walker also told Hicks that if Respondent found out about em-
ployees in the, Union, they would have to go.
Hicks attended the November 9 union meeting. He testified that on the morning
,of November 10 he was called into Walker's office, where Walker inquired if he
.went to the meeting. • Walker told Hicks he knew he was there, and as a matter of
fact knew all the employees who were there. Walker inquired what transpired at the
meeting. Hicks answered that it was just a general meeting. Walker told Hicks
'that if he found out that flicks was definitely involved in union activities and was
helping in the organization he would fire him. Walker also told Hicks that he could
.always find some reason to fire him even if it meant following him all day. In an
.attempt to enlist Hicks' assistance to work against the Union, Walker requested that
he talk to his fellow employees and advise them not to "fool" with the Union, because
they,did not, know- what they were getting into. Walker told Hicks that the men
now had good jobs, but he would,fire anyone-he found out was in the Union.
Emory Bowens • was a university student when he entered Respondent's employ
in June 1957 as a part-time dockworker. Bowens signed a union card about
November 1 and attended the November 9 meeting. He testified that about 2 weeks
later he was called into Walker's office and Aycock came in just as he sat down.
Walker inquired if Bowens attended the union meeting. Before he could answer,
Walker said he knew Bowens had been there. Walker then asked if Bowens signed
a union card. Bowens refused to answer. Walker gave Bowens a slip stating that
by signing it Bowens would withdraw his application from the Union. Walker said
he was not sure whether this would actually work, but it was something he -was trying
to do. Bowens read the slip and pushed it back on the table without signing it. At
this point Aycock asked Bowens -what he was thinking about. Bowens replied "Noth-
ing in particular." Aycock said, "Damn it, you better start thinking." Walker then
said to Bowens, "From all actions and indications_ of you signing this union card,
you are just automatically signing your -job away." Walker told Bowens to go back
to work.
Lorenzo Jackson began working for Respondent in the summer of 1957. When
he returned to the.university in-September his hours were shifted so 'that he started
at 4 p in. He worked as a dockman. and occasionally drove trucks around the ter-
minal. Jackson signed a union card about November 1 and attended the meeting
on November 9 • Jackson testified he was,called into Walker's office after Bowens.
Walker asked Jackson if be was at the union meeting and if he had signed a union
card- ,Jackson denied that he.had signed a card or that he was at the,meeting."
Walker told Jackson he heard that either -he or;his brother was there.iO Jackson
told. Walker he did not know about his brother and continued to deny that he
attended the. union. meeting. Walker warned Jackson 'that if he signed - a union
card he would be automatically signing his job away. Walker told Tackson that if
the Union was ,successful in organizing Alamo„the Respondent would, cut down the
number: of Its employees and part-time men would lose their jobs. Walker also
asked Jackson to sign a withdrawal from the iUnion•which he refused to do.
Walker testified that while talking to the men about the effects of union member-
ship, he merely "tried to explain-[my] opinion as to what [I] thought."---Elaborat-•
ing.he revealed he told, the men "the union was bad for them and bad for the
company,"' further that if a picket ,line was set up at the .terminal, any man who
10 Jackson's brother Billy also was employed by Respondent as a dockman.
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not cross the picket line and come into work,' would be replaced. Walker
admitted, however, that he told Roy if he did not cross a picket line and come in to
work, "he would naturally be terminated." ii
Walker admitted that before the November 9 union meeting, he asked a-number
of employees if they were going to attend. Thus-it is clear that with the reactivation
of union activities in 1958, Respondent embarked upon a course of action designed
to frustrate the Union's efforts to organize 'its employees. The fact is, as Walker
admitted, Aycock had received word there might be union activities going on at the
Houston terminal and he instructed Walker to question the employees about such
activities. Walker admitted he told Moss that membership in the Union was bad
for him because, if there was a union contract, truckdrivers would be called to work
before him and-he would get work only in the event there was'any dockwork. Walker
admitted that he requested several employees to sign withdrawals from the Union.
Walker denied many of the incriminatory statements attributed to him as set forth
above in the testimony of the employees . However, in view of his admissions and
the fact as noted that he was instructed to question the employees about their union
activities and the further fact that he • and Aycock spied on the union meeting, it
seems unlikely to me that Walker only went so far as to express his opinion to the
employees, as he would have us believe.' I do not accept his denials. Moreover,
from Walker's demeanor on the witness stand and his contradictory answers, I was
not impressed with his reliability as a witness and I do not credit his testimony. I
find, based on the testimony of Bonner, Woodard, Sallier, Roy, Phillips, Moss, Cash,
Hicks, Bowens, and Jackson set forth above, which I credit, that the conversations
with Walker took place substantially as testified to by them.'
Aycock admitted calling to Bonner's attention the rumors he heard about the
Union and testified he advised Bonner the Union was not good for Alamo or for
him. Aycock was unable to recall whether he asked Bonner who attended the union
meeting. He admitted he discussed picket lines with Bonner and in no uncertain
terms told him that "Anyone that refused to perform their jobs in the capacity they
were hired for, refused to cross the picket line, would be dismissed from our organiza-
tion " Aycock -denied he told Bonner that J. Leo Walker would close down in the
event that the Union was successful in -its organization of Alamo employees. He
also denied he told Bonner that he saw every man who attended the union meeting.
Aycock admitted talking with Gray on November 10.. The only part of Gray's
testimony which Aycock denied was that he told him he would never let Respondent
go union and would fire all the men who joined the Union. Aycock testified he told
Gray he did not care if the employees "belonged to one union or ten. Just as long
as they performed and crossed the picket line, or carried on in case of a strike,
whether they would be dismissed or not."
Aycock admitted discussing the Union with Eythell. He evasively stated he
"handled it" in the same manner as he did with Banner. On direct examination
Aycock testified he talked with Eythell about his accident record and told him it
looked like he would be discharged, that he was making this recommendation to
Walker, but that he was leaving it up to Walker. On'cross-examination he testified
that he gave instructions regarding the discharge of Eythell to Walker either on
November 8 or 9, he was not sure. In this regard, Walker testified he was instructed
by Aycock on November 8 to discharge Eythell. When asked if Eythell had any-
thing to say with reference to his accident record , he was unable to remember.
Aycock admitted that when he came to Houston on November 8, the employees'
union activities were "discussed at length" with Walker .' Such activities were "very
disturbing" to him , since, as he claimed , "Things of that nature could be very
serious and have a serious effect on our business." Indeed, one of his purposes in
coming to Houston was to "definitely . keep [ the Union] out" of Alamo.
What better way to achieve such purpose than interrogation , threats, and the herein-
after found discharges of employees for engaging in union activities . I do not
credit Aycock 's denials. I find based on the testimony of Bonner , Gray, and Eythell
that their conversations with Aycock took place substantially as testified to by them.
On the basis of the record as a whole, I conclude and find that by the following
enumerated acts and conduct of Aycock and Walker on or about November 7, 9,
10,' 11 -1 and 24 , the Respondent interfered with , restrained , and coerced its Houston
terminal employees in the exercise of the rights guaranteed in Section 7' of the Act,
in violation of Section 8(a) (1) thereof:
"The difference in language used by Walker is, quite significant . An employer may
replace striking employees in' order ' to carry on his business ' He may ' not, however,'
threaten an employee with discharge for striking, a right granted employees in the Act:
By using the terminology "terminated ,"'I can only conclude that Walker had in mind
discharge.
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1215
(1) Walker's interrogation of employees as to who was starting the Union and
as -to the number of employees who were planning to attend the union meeting;
(2) Surveillance of the November 9 union meeting by Walker and Aycock;
(3) Aycock's threat that J. Leo Walker would close the place down before he
would approve the Union;
(4) Aycock's interrogation of Bonner as to which employees attended the union
meeting;
(5) Aycock's threat to Bonner that he would fire any employee involved in
the Union;
0) Walker's interrogation of Woodard as to his attendance at the union meeting
and as to how many employees attended the union meeting;
(7) Walker's comment to Woodard that he . knew he went to the union meeting
because he saw him there;
-(8) Walker's request of Woodard that he ascertain the identity of the union
ringleaders for him; -
(9) Walker's interrogation of Sallier regarding the union meeting and his remark •
that he knew about the meeting and saw everybody who went into the union hall,
because he was there;
(10) Walker's threat to Sallier that Respondent "was going to thin out the men
that went to the meeting."
(11) Aycock's interrogation of Eythell regarding the union meeting;
(12) Aycock's threatening inquiry of Eythell if the Union told the employees
that if Alamo went union 90 percent of the men working there would be white
and a lot of colored guys would be out of work;
(13) Walker's interrogation of Roy about the union meeting and the discussion
there; -
(14) Walker's threat to Roy that the Union was not good for the new men and
it was up to him to keep the Union out;
(15) Walker's request of Roy that he, sign a withdrawal from the Union;
(16) Walker's threatening remark to Roy - that when an employee signs an
application for the Union he just signs himself out of a job;
•
(17) Aycock's threat to Phillips that it was best for the employees "not to fool"
with the Union as he did not intend having one at Alamo;
(18) Walker's interrogation of Phillips about the union meeting;
• (19) Walker's threat to Phillips that because of his short length of service with
Respondent he stood little chance of keeping his job if the Union was successful in
organizing Respondent 's employees;
(20) Walker's request of Phillips that he sign a withdrawal from the Union;
(21) Walker's interrogation of Moss as to whether he had signed a union card
and attended the union meeting; -
- (22) Walker's threat to Moss that he was signing himself out of a job by signing
a union card;
(23) Walker's request that Moss sign a withdrawal from the Union; -
(24) Walker's interrogation of Cash as to whether he signed a union card and
where he was on the day of the union meeting;
(25) Walker's threat to Cash that if the Union was successful in organizing
Respondent 's employees , it would work only 26 - men and any extra men would be
obtained from the Union only on a when and if needed basis;
(26) Walker's request that Cash sign a withdrawal from the Union;
(27) -Walker 's interrogation of Hicks as to which employees got the "union mess"
started at Alamo; -
(28) Walker's request of Hicks to talk to the employees and his threats that the
Union was just something. to get him in trouble , that he would be out of a job if
he continued to fool with the Union , and if Respondent found out about employees
in the Union "They got to go"; •
,(29) Walker's .interrogation of Hicks as to whether he attended the union meeting
and what transpired there , and his comment to Hicks that he knew all employees
who were there;
(30) Walker 's threat to fire Hicks if he found out he was involved in union
activities , his further threat to find some reason to fire him;
( 31) Walker's attempt to enlist Hicks ' assistance to talk to his fellow employees
against the Union , under threat of discharge;
(32), Walker's interrogation of Bowens as to his attendance at the union meeting,
and his union membership; •
(33) Walker's request that Bowens sign a withdrawal ` from the Union;
(34) Walker 's threat to Bowens that he was signing his job , away by signing a
union card; •
.. '
( 35) Walker's interrogation of Jackson a`s to his union membership and attendance'
at the union meeting; I • '
1216 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
'(36) Walker's threat to Jackson that if he signed a union card he was automatically
signing his job away;
(37) Walker's threat to Jackson that part-time men would lose their jobs if the
Union was successful in organizing Respondent's employees;
(38) Aycock's threat to Gray that "before he would let"[it] go union he will'
fire" all the men and hire a' new crew"; and
(39) Aycock's request that Gray report back to him any information about the
Union he might pick up around the dock.
C. The discharges at the Houston terminal
As heretofore found Respondent became aware of the reactivation of union activi-
ties shortly after they started and practically forthwith instituted its drive to forestall
the resurgence of organizational interest among its employees by is interrogations,
coercive' statements, threats, and surveillance of the union meeting. Indeed, by,
threatening employees with loss 'of jobs, it attempted to enlist, their support to
proselytize' on its behalf • and against' the Union. During this period, the comple-
ment of Houston terminal employees was 52. I find from the small size of Respond-
eht's terminal and from the interrogation and surveillance participated in by Respond-
ent that the Respondent had knowledge of its employees' union memberships and
activities.12
' John Woodard commenced his employment with Respondent in June 1950 as a
city pickup and delivery, driver. As heretofore found on the morning of "November
10, Woodard was interrogated by Walker about union activities generally and his
attendance at the November 9 union meeting. Additionally he and Bonner were
accused by Walker of being the "ringleaders" of the union drive. He was then'
released to go out on his route. - - -
Woodard testified that about 3:45 p.m. he received a shortwave radio message
on his truck calling him into the terminal to see Walker. Walker told Woodard that
business falls off at this time of year, that he had to cut expenses and was going
to have to let him go. Woodard inquired if this meant he was being fired after 8
years-of regular-employment, and Walker replied "Yes." Woodard testified further
that Walker also mentioned something about a misunderstanding that Woodard
had at the Rochester Rope Company, an Alamo customer, which required Respond-
ent-to send another truck there to pick up freight. Woodard stated he explained
to Walker `that he had straightened out the' matter himself and in fact had been
picking up Rochester Rope's freight for more than 3 months. Walker did not com-
ment. Woodard who had--never been laid off for any reason during his 8-year
tenure of employment with Respondent has not been reemployed.
Since the timing of the discharges of, Woodard and Bonner and the Respondent's
purported reasons therefor lend themselves to -such treatment,' they will be con-
sidered together. . I ' '
Willie Bonner, a-truckdriver on the city pickup and delivery service, became
ehiployed' by Respondent in February 1950. Bonner instigated the reactivation of
union activities among Respondent's employees. As" found' above, 'Bonner was
interrogated prior to the November 9 union meeting by Walker and on the morning
of November 10 by Aycock.- ,The lattef'also told Bonner "he would fire any man
that he found out was involved in the Uniori in any kind of way." - '
Upon- Bonner's return to the terminal" that evening, Walker, told -him 'when he
finished checking 'in to come into his office. Bonner testified Walker told him that
freight falls off in November and December, that he had to cut Houston terminal
expenses, that employee"seniority did' not mean anything, and that it looked like he
was going to have to`let'himigo., Bonner toldWalker it did not appear to him"
that freight had 'fallen 'off 'this year and he'was not aware -that'employee seniority'
did not have any significance 13 • : - -
Bonner and Woodard who regularly worked a 58-hour week. Monday to Saturday.
inclusive, with payday on-Friday,'were' discharged on'November"10 the first day of
the workweek. - ,.
,,
The Respondent' defends ' the discharges of Bonner and Woodard on the ground
that it'-had to effectuate economies and the said men were just, "unfortunate" in'
being caught in a reduction if, force. " Walkei testified, that on or" about November 1
I^ See Bituminous hate, ial & Supply Co , 124 NLRB 1007, and 'cases cited in"footnote'4.
See also Cosco Products iGompany,123 NLRB 766.
.,13The-record reveals.that the" senior'truekdrivers, of ,whom there were five'inclnding
Bonner 'and Woodard, were the highest hourly 'paid eripioye'es'receiving •$1 60 per hour
Furthermore,,-it is "undisputed ithat"seniority, was, recognized;at,the, Houston terminal' in""
the choice of vacations. ,
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1217
he was called to Respondent's San Antonio office, where he and Aycock discussed
"every phase" of the possibilities of reducing expenses at the Houston terminal.
Although Aycock was not familiar with the Houston- personnel , it was his idea, in
order to eliminate expenses , "to bring the payroll down,and ... probably start at
the higher salaried personnel."
It-will be-recalled' that Aycock assumed the general managership of the-Respbnd-
ent on or about September 1. Aycock testified that he immediately set out to
survey the entire , system with a view to a determination of why Respondent was
out of balance . . In carrying out this plan , he -testified he visited . the terminals
throughout the system, and gave the terminal managers a program on their daily
costs, and tonnage and a breakdown on each item of expense . He, also told them
in dollars and cents what it would take to put their particular terminal on a paying
basis, and left it up to the individual terminal manager to take whatever action he
deemed. necessary to bring his terminal into line. • ' ` . `
It appears , however, that this policy did not apply to the Houston terminal.- In
the first place,' even- though the Houston' terminal, was the largest'in the system,
with costs there greater than at any of the other terminals, and wheie admittedly most
savings could have been effectuated; Aycock' did not get there until 2 full months
had expired since he took over the general manager's job. Peculiarly enough he did
riot arrive until the air was rife , with rumors about employee union activities at the,
Houston terminal and only a day before the scheduled union meeting , which he and
Walker spied on in order to determine how many of Alamo's personnel attended the
meeting In the second place, was it mere happenstance that Aycock left it to the
discretion of all terminal managers to take whatever' action they deemed necessary
to bring their terminals into line, but with the Houston terminal, where Walker was
perhaps the most experienced manager-in the system , Aycock made an affirmative
recommendation that dock forces 'be reduced immediately and that some of the'
highest paid employees be terminated ? In spite of this - recommendation and a
further request by Aycock in a• letter to all terminal managers 14 to reduce payroll
costs , imploring them "do not put off until ,tomorrow what can be done today in
the way of getting in line to adjust business expenses .. ,"- I find it difficult to'
understand why Walker 'did not effectuate the- reduction in force at the Houston
,terminal when he returned from his meeting with Aycock. Instead, Walger waited
a week and did not take any:action until after he had engaged in surveillance of the
union meeting,, interrogated the men . about their union activities , accused them of
being the "ringleaders " in such activities ,' and threatened them with the loss of their
jobs
In'thiscregard , it is worthy of note that 'Walker 'testified on direct examination
that in his discussions with Aycock on November 8 they talked about discharging only
Leonard Eythell and did not mention any oth'er ' employee. Questioned on cross-
e'xamination ' as to ' when he decided to discharge -Bonner, he answered , "Actually I
Had been thinking of. Will Bonner and John Woodard, I had been analyzing my
employees over there, for a week immediately after, Mr. Aycock called me into
San Antonio." , He testified 'further that his -final decision was reached about 2 or
3;p'rri! on Monday,-'November 11'. -
Bonner and Woodard ' had more continuous service with Respondent than any other
employee at , the Houston terminal Walker ' admitted that Bonner 's 'work per-,
formance'-w'as, satisfactory:`" When asked about Woodard,- he answered, ,"Well, I
will put it this way:'I had-analyzed their work - and, I don't say . there .wis a complete
satisfaction "' 'Walker-also admitted that Bonner and' Woodard': "probably could"
perform the-services that the three, other 'highest-paid men were doing, but then-
amended his .answer and. said "but" don,t ,think, they could perform them in 'the
category;that'the men' 'I have on the job 'ire performing them
Walker's testimony' with, regard to the,declind ip,tonnage at"the Houiston terminal,
Respondent 's' alleged underlying reason for he terminations , of. Bonner . and Wood-
ard was c'ontradicto y and confusing., 'At one point Walker,testified,'that normally
there is a decline in tonnage . every ., year'; starting around . October which does not
pick np again until the_iniddle,of^Februarya5 Questioned regarding the date he.
noticed the; decline in"195,8, he answered; r.^When'Mr. Aycock advised me, around
the first of 'Nove'mber." ''Walker 'went on" to explain that 'figures' on tonnage at
Houston terminal are not kept there, ,but are prepared . on IBM machinès 'iii the ,San
Antonio office and a folly is mailed ' to 'him ' once a month :' He'sfated he has no
method of determining the tonnage other than by theznumber ' of loads which' are
'AS ee Respondent 's Exhibit No . G'in'ev'idence.
19 The 1958 figures - showed an increase of 3;800,000 pounds of hauled merchandise in'
Decemb'er ' over 'Noveinber . ' ' , I
L
560920-61-vol 127-78 "'
1218 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
run out of Houston , and that would merely be a guess as to whether the tonnage
is, down. Walker was then asked if he did not notice business falling off in the
latter part of September. He, replied he had no way of determining, since he did
not keep daily figures of-tonnage at Houston and was bound by the figures sent to
him. It was then called to his attention that a week previous to the instant hearing,
he testified before Federal District Judge Ingraham in an injunction proceeding as
follows:
Q. Mr. Walker when did you first notice business was falling off?
A. Actually, I knew it sometime the latter part of September.
'Walker testified that the above testimony was not in error and "[1] am sure that
'my records indicated that business was falling off at the Houston terminal in
September. I don't know positively, but, I am sure that they do." Finally, it was
pointed out to Walker that the records of tonnage hauled by Bonner on his regular
route showed little variation from June 1958 up until 'he was terminated. He was
;unable to reconcile such figures other than to say they were applicable only to
,Bonner 's route. -
In an attempt to show that costs were being cut by reducing the number of per-
sonnel, Respondent adduced evidence from Aycock who testified that from Sep-
tember through December 1958, 61 employees were terminated throughout the
•system,is of which 46 were drivers, dockmen, and mechanics . When asked on
cross-examination how many of the, 46 were terminated in a reduction in force,
Aycock replied it "would purely be a guess on my part." Further cross-examina-
tion, however, brought out that 14 of the 46 were reduced in force. It was also
revealed that 6 of the 14 are the subjects of the instant complaint . It is noteworthy
ithat during the period that Respondent was allegedly reducing in force, it hired
nine new employees as mechanics , dockworkers, and drivers , four of whom were
assigned to the Houston terminal.
I have heretofore not credited Walker. I find his testimony above wholly unre-
iiiable. Nor am I convinced from Aycock's testimony which was contradictory,
-vague,` and evasive that the true reason for the terminations of Bonner and Woodard
-was a . reduction in force. Aycock admittedly was unalterably opposed to, the
unionization of Respondent 's employees , - as was Walker. This, together with the
-timing of the discharges, the threats to engage in reprisals against employees who
joined or supported the Union, the fact that during their 8-year tenure of employ-
ment Bonner and Woodard had never been laid off or did they know of other
,employees at the Houston terminal who were laid off in a reduction in force,
convinces me and I find that Bonner and Woodard were discharged because of their
-union memberships and activities. -
Leonard Eythell was first employed by Respondent in 1955. He quit after several
-months but was reemployed in January. 1956 and worked steadily until discharged
.on November 10, 1958. At the time of his discharge Eythell drove a truck on the
Houston to Galveston run. He was paid $1.35 per hour and worked an average
.of 65 'hours per week. Eythell signed a,union card and attended the November 9
union . meeting. As heretofore found Eythell was interrogated by Aycock ' on the
-morning of November 10 about -his attendance at the union meeting . Aycock
also wanted to know if he was told that if the Union succeeded in organizing
Respondent 's employees , 90 percent of the men working there would be white.17
Before Eythell was released by'Aycock to drive his truck to Galveston , the latter
requested Eythell to think over for several days what he told him and let Aycock
know his decision, whether he was for or against the Union.
When Eythell returned` from Galveston that evening , Walker called him into the
office. Eythell testified Walker, told him his driving record; did not come up to the
standard required by Respondent and he would have to let him go.18 Eythell was
discharged on November 10 and
,
has not been reemployed by Respondent.
Eythell admitted that during his tenure of employment he had five accidents.19
The damage caused in the-accidents of October 9 and 10 , 1958 , were so minor that
Eythell paid for the, repairs from his salary . The record is not clear as to whether
-the Respondent or its insurer . were found liable in the accident of November 1,
1957, which Eythell claimed was caused by a sheriff's car. Eythell recalled that .
e Tt appears from Respondent ' s letterhead that it has 23 terminals in its system
17 Eythell is a Negro.
'e Other than Aycock 's general testimony that 'when a person ' has a number of small
accidents , he is also subject to a major one, the record , does not contain any evidence of
Respondent 's required standards fors its drivers. . ,
10 Such accidents took' place on February 5 and November '1, 1 957, and June 23 and,
October 9 and 10, 1958. -
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1219
shortly after the November 1, 1957, accident, Walker assigned him to drive a truck
to Freeport, Texas, and told him not to speed or he would pull his card. Eythell
testified credibly and without contradiction that other than the said warning about
speeding, Walker never mentioned a word to him about his accident record. Eythell
also testified credibly that no Respondent official or supervisor ever,warned him
that he would be discharged1,because of his accident record or if he had any more
accidents.20 1, 1 ,
Aycock testified that when an employee has two accidents within a 12-month
period, the matter is brought to his (Aycock's) attention. He admitted that Eythell's
accidents were called to his attention and he was certain that within a few days after
the October 10 accident, he imagined about October 13, he received notice of same
from Respondent's insurer together with information about the type of accident,
the monetary value of the damages, and the number of accidents the employee has
had since he has been in the employ of the Respondent. Aycock also testified that
he considered Eythell's accident record serious enough to warrant discharge. He
claimed that even'though he had all the information regarding Eythell's accident
record on or about October 13, "Being in the position [I] am in, and having a lot
of ground to cover, [I] could not execute all of [my] plans in one day." When
reminded that he could have called Walker on the telephone or written him a letter
with instructions to discharge'Eythell at any time between October 13 and November
10, he answered, "I could have; but I didn't." In fact, Eythell was not discharged
until after he was interrogated by Aycock about union activities and about his
attendance at the union meeting, which Aycock observed. It is worthy of note,
that whereas Respondent persisted throughout the hearing the only reason for Eythell's
,discharge was on account of his accident record, his final termination slip sets forth
as the reasons, "Accident record -and reduction in force." Under all these circum-
stances, I am persuaded and find that:Eythell's discharge on the heels of the sur-
veillance of the union meeting and the interrogations and threats of the employees
by Walker and Aycock was motivated by Respondent's desire to coerce its employees
into abandoning their union memberships and activities.
Willie Sallier was employed by Respondent as a truckdriver on the city pickup
and delivery service. Sallier joined the Union before the November 9 meeting, which
he attended. On November 10 he was interrogated by Walker about his attendance
and about what took place at the union meeting. He, was also told by Walker that
Respondent was "going to thin out the men that went to the meeting." Sallier pulled
his regular route on November 10 and 11. On his return to the. terminal about 7
or 8 p.m. on November 11, he was again summoned to Walker's office. Sallier
testified that Walker told him he did not think Saltier told the truth about what went
on at the union meeting and the identity of the "ringleaders," and he was discharging
him. Sallier had been employed for 3 years and had never been laid off prior to
his termination. He was earning $1.35 per hour, working an average of 65 hours
per week. '
Walker testified he had decided to discharge,Sallier on Monday morning, Novem-
ber 10. He stated he picked Sallier for discharge because he had placed him on
practically every route in Houston 21 in an attempt to find one which would suit
both Sallier and Respondent's customers best, but that Sallier was not satisfactory
on any route to which he could be assigned permanently. Walker admitted that
Sallier knew the city of Houston "but he just couldn't get over it, didn't try to get
over, it." Walker also testified that Sallier's troubles with customers consisted of
"leaving freight at the docks or 'getting the freight and leaving the bills of lading at
the docks, or ' running late into particular customers that requested certain time
pickups." - Additional reasons for Sallier's. discharge testified to by Walker were
that Sallier was always "borrowing a little cash" from the credit union, from J. Leo
Walker in San Antonio, and from the witness; that he borrowed lunch money from
his route collections; and that Sallier's creditors were constantly- calling- him on
company time with reference to collections 22 •
Walker denied he told Sallier he was going to "thin out" the men who went to
the- union meeting. He also denied saying to Sallier he, was discharging him for
not telling the truth about the union meeting. On cross-examination Walker
testified that the primary reason for discharging Sallier was, "Because [I] could
not find a satisfactory route that would satisfy him or myself." Although Walker
20 In the previous section of this report, I did not credit Aycock's testimony regarding
his conversation with Eythell on' November 10 concerning his accident record.
Respondent has 15 routes in Houston _-
22 When asked by his' counsel to'give the facts with reference to this latter complaint,
19alker'answered;"just loan shark after loan shark called trying to get a hold,of Willie
Some of them asking me personally 'to' see that Willie would come in to see them
11
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claimed to have spoken to Sallier about this matter, he was unable to state when
he spoke to him about his job performance, and could not remember how long
prior to Sallier's discharge he had talked to him. Walker admitted that the practice
of employees borrowing money from the Respondent is participated in by practically
all of them. Walker also admitted that the lunch money which Sallier occasionally
borrowed from his route collections. was always repaid on payday. Walker was
unable to name a creditor who called him about Sallier. He did not remember the
last time he received a complaint that Sallier was a bad credit risk.
• Sallier admitted that during his tenure of employment he worked on all routes.
He denied that this was for the reason that a satisfactory route could not be found
for him and explained that he was transferred to different routes to take the places
of drivers on vacation, and when the vacation period ended he went back to his
regular route. It is undisputed in the record that Saltier was driving his regular
route for about 5- or 6 months prior to his discharge. Sallier denied that Walker
ever expressed dissatisfaction with his handling-of routes.
It is interesting to note that of the many reasons testified to by Walker for Sallier's
discharge, none of these appeared on his employment card. The only reason noted
on the card, which Walker admittedly gave the San Antonio' office, was "too many
accidents." With regard to the matter of accidents,' Sallier testified without contra-
diction that no mention, was, made of this when Walker discharged him. Sallier
admitted that during his period of employment three people. ran into his truck
He stated that Respondent's insurer never talked to him about the accidents, nor
did he "even get a ticket" because of them
Here, as previously, I find Walker to be an unreliable witness, whose testimony
F do not credit. The reasons advanced by Walker for Sallier's discharge at the
hearing were many, and differed from those given Sallier orally and noted on his
employment card. None of the said reasons. was supported by credible evidence.
-Under all the circumstances, I am persuaded and find that Sallier's discharge,
within a day after the interrogations and threats by Walker, was motivated by
and was the result of the Respondent's opposition to the unionization of his employees.,
,Taylor Gray commenced working for Respondent in March 1958. He was an
hourly paid driver and had a regular route on the city pickup and delivery service
He joined the Union shortly after the November 9 union meeting. Gray was
subpenaed by the General Counsel and testified as a witness in the hearing for a
temporary injunction against Alamo, held before Judge Ingraham in Federal district
court in Houston during the week of February 16. He-also testified before me as
a witness called by the General Counsel in the hearing on the -complaint case in
Houston, Texas, on February 24, 1959. His testimony, which I credited, was
adverse to the Respondent.
- Gray returned to work on' February 25 He testified that his regular pickup
route 23 since he became employed was confined to the vicinity of Navigation Street
There were some 20 to 30 customers on this route, of which number 10 to 12 had
freight every day and depended on Gray to check ,with them to ascertain the time
the freight would be ready for shipment. Prior to February 25,there were occasions
when he was told by the dispatcher over the truck radio to go off his regular route
for several blocks to pick-up freight. Gray .testified without contradiction that on
such occasions the dispatcher. always inquired if-he was caught•up on his regular
pickup customers. It-was Gray's responsibility to make certain - that freight was
picked up from regular customers. If he was not,caught up and reported that he
had to stop at certain customers to pick up freight-before they, closed for the day,
the dispatcher accepted his word'and would not, order him off his regular route.
There were times when Gray was able to.make additional: pickups on his regular
route prior to February 26: - ''
` Gray testified thaVit is the driver's duty to check with the-dispatcher every so;
often over the truck radio 'for additional orders. On the afternoon of February, 26,
Gray did not get an answer from the dispatcher on his radio so, he telephoned-the
office and spoke to her:" She,ordered- him to come into the office to, work on the-
dock. Gray protested that he had: more pickups to make., He -was nevertheless -
ordered into the terminal and arrived about 4.30 p in. and-continued to;work on the
dock until 10 p.m. '' ' ' - ' •'
When Gray' checked into' work- on February 27,' Mrs: Reeves, .the dispatcher, ,told-
him he missed several pickups the previous day. Gray reminded Mrs.-Reeves of
their conversation and told her that:in spite of his protest he was ordered in to work
on the dock.' Gray 'proceeded to do his regular- job of -loading his, truck and
z' Gray reported for work at 8 a:m • • , He worked -on the dock breaking out trailers, loading
his bobtailtruck, and then went'out-to make deliveries. His pickups usually started
between 1 and 2 p.m. after all"'deliveries'were completed. , - ,
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1221
making deliveries and pickups on February 27.. That afteroon Gray testified he
was again ordered off his route to make a pickup in Pasadena, about 7 miles away
each way. Gray complied with the dispatcher's order, with the result that when
he got back to his regular route he was too late to pick up from A. C. Holmes, a
regular customer, and it was necessary for another truck to-make this particular
pickup. Gray went about his normal duties on February 28.
When Gray reported for work on Monday, March 2, he was told Walker wanted
to see him. Two employees were sitting in Walker's -office when Gray entered.
Gray testified without contradiction that Walker told him that he was going to fire
him this morning and-he had two witnesses present so that they could hear what he
had to say. Gray asked why he was being discharged. Walker, according to Gray,
replied that it was taking him 45 minutes. daily on company time to write up
his tonnage report when he returned to the terminal at night. Gray told Walker,
that upon instructions he had- been making up his tonnage report for the past 6
months at the customers'' places of business in the field when he picked up the
freight. Walker then told Gray he was firing him because he was "trifling." Gray
told Walker that he had been working the same way since the first day he.started.
Walker gave Gray still another reason for discharging him and told him he did
not like to go off his route. Gray replied that he always went off.-his route when
so requested by the dispatcher. Walker retorted with the comment, "Well, we had
to forte you off." , Gray has not been reemployed by-Respondent.
Walker was out' of the city on February 27 and 28. He testified that when he
returned to the Houston terminal on the,morning-of March 2, the dispatcher told
-him she had trouble with Gray, who-did -not want to leave his route to make a
Pasadena pickup, even though it was in the morning and there" were no other pick-
ups he had to make. Only after-some convincing by the dispatcher, did Gray go
out to Pasadena, to make the pickup. Walker testified he then had Gray come to
his office and discharged him for the following reasons: ' (1) 'Layout _'on a route,
taking too long"; (2) "Not co-operating with the dispatcher"; and (3) "Refusing to
leave his own territory when he was caught up, going into other territories to help
catchup." Walker also testified he warned Gray several times that he would be
fired if he did not do better and cooperate-with the dispatcher when he was asked
to leave his regular route. " Walker stated that Gray wanted to control all the
pickups in his territory and not leave his regular route to go into another driver's
territory even though he ran into a slack period. On cross-examination Walker
admittedly could not. recall when he warned Gray about not cooperating with the
ditspatcher or how many times he so.warned him. In fact, when pressed for an
answer, Walker replied, "Well, I -will- say this, I will say that froin last February to
March 2 of this year." When -asked • if .he meant February 1958, Walker an-
swered, "1958. I might even jump back.to-December of '57 if he.was working for
me." 24 Walker admitted, however,, that in the past Gray made pickups off his
regular route, but it was always on Walker's urging. Walker admitted that when
he discharged Gray he brought up the matter of his writing tonnage 'reports at the
terminal on company time. Walker stated that for a time Gray followed his
instructions and filled in the tonnage reports at the various places of business where
freight was picked up, but fell back into the old routine of writing them in the
-terminal, at night, which delayed, the, checkers as.well as the loading operation.
Walker also admitted that Respondent has a problem with other-drivers laying out
,on their routes, and that some of those drivers are still working for.Respondent.
Although Respondent gave as its principal reasons for Gray's discharge, his
purported lack of cooperation with the dispatcher and his refusal to leave his
regular route to make'pickups when so requested by, the dispatcher, it did not call
Mrs. Reeves to testify on its behalf, in spite of the-fact that the Trial Examiner
advised Respondent's counsel that Walker's testimony in this regard was hearsay
and a finding based thereon would not. be made. Respondent's unexplained failure
to call Mrs. Reeves as a witness, "Is itself persuasive, that [her], testimony, if -given,
would, have been unfavorable to [Respondent]. The production of weak evidence
[Walker's testimony as to what he-was told by Mrs. Reeves] 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. .
Gray, whose testimony regarding -the surveillance of the November 9 union
meeting, and the' interrogation by Aycock,.on November 10 I.have previously
credited, impressed me as a sincere, honest witness. I credit his testimony set forth
above and his testimony on rebuttal that prior to his discharge he was never warned
about "laying out" on the job,-nor was he ever talked to by Walker about refusing
-24 It will be recalled,that Gray started his employment, with Respondent in-March 1958.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to cooperate with the dispatcher. I have already set forth my impression of
Walker as a witness and I see no need to burden this report further with a repetition
thereof, needless to say I do not credit his testimony particularly when it is uncor-
roborated as in the instance set forth above. Under all these circumstances I am
persuaded and find that Gray's discharge came about because he testified at the
Board proceeding and because of his union membership and activities.
Boyce Hicks started his last period of employment with Respondent in 1953.
He worked steadily until discharged on March 2, 1959. I have found above that
Hicks was interrogated by Walker about the Union prior to the November 9 union
meeting. He was also interrogated by Walker after the union meeting regarding
his attendance there, and threatened with discharge if he continued his union
membership and activities, even if it was necessary for Respondent to "find some-
thing to fire [youl for."
On reporting for work on the morning of March 2, Hicks was summoned to
Walker's office, where, in the presence of two employees, Walker told Hicks he was
being discharged and he wanted the two employees to hear the reasons.
Hicks testified he asked Walker what this was all about and why was he being
discharged? The following colloquy ensued:
Walker asked, "Do you remember last Thursday?" Hicks replied, "Yes, sir.
What happened last Thursday?" Walker said, "You checked in short."
Hicks commented, "Well, I have been checking in short off and on since I
have been here. There's maybe a dozen other guys that's checking in, doing
the same thing." Walker said "Yes, but you are the worst one. I am going to
fire you for using company funds." Hicks noted, "Well, if I was making
anything, I wouldn't have to use the company funds." Walker said, "Well, I
am going to allow you a chance, that is what I am going to do, I -am going to
allow you a chance to make something."
Hicks left and has not been reemployed by the Respondent.
Hicks admitted that he checked in $3 short from his collections the previous
Thursday. Hicks explained that since he started to work for Respondent, drivers
who make collections would run out of personal funds along about Wednesday or
Thursday and they would use several dollars from their collections to buy lunch.
When they checked in at the terminal at night, the cashier gave them a slip to fill
out with their name and the amount of the shortage. On Friday night (payday) the
amount was paid back to Respondent. Hicks also admitted that two or three times
Walker talked with him and other drivers in his presence, who were also checking
in short, and told them to stop the practice and if they were in need of some money
to obtain it either from him or the cashier. Hicks did not recall the last time
Walker talked to him about checking in short. He testified that in the last year
of his employment he had not checked in short often. He denied that Walker ever
warned him that a repetition of this offense would result in his discharge. Hicks
did not know of any other employee who had been discharged by Respondent for
this reason . Hicks was a bonded employee. It is also noted that Respondent
withholds a week's salary from each employee until such employee quits or is
discharged.
Walker testified that Hicks was discharged for continuously using Respondent's
funds. On direct examination Walker testified that he discussed the matter of
checking in short with Hicks "on several occasions, numerous times," especially on
Thursday nights. On cross-examination, Walker was asked how often Hicks used
company funds in the past 6 months. He answered, ". . Count the Thursdays
and you will find out. That's about all I can say." When questioned further if
it was his testimony that Hicks was checking in short every Thursday, Walker
answered, "Just about. I wouldn't say every Thursday. Just about every Thursday."
Walker admitted that Hicks was not the only driver who checked in short. He also
admitted discussing the matter with two of the drivers named by Hicks. He testified,
however, that this was not a common practice and so far as he knew maybe 2 out
of the 42 drivers did so on an irregular basis. Walker admitted that Hicks paid up
his shortages on Friday. At ;another point in his cross-examination Walker testified
that Hicks used company funds to a certain extent since he began his last period of
employment in 1953. But, Walker continued, "In the last year . it's just about
every Thursday at least once a week." Walker stated he spoke to Hicks 10 or 15
times in the past year to discontinue checking in short, and to borrow from Walker
when he needed some funds. Walker was unable to state with any preciseness when
he warned Hicks that he would be discharged if he continued the practice, other
than that he spoke to him on February 20 about not checking in his bills the previous
night. Walker also stated that with respect to this shortage he did not know the
amount thereof and indicated that Hicks did not pay off this shortage until February
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1223
27 even though he promised to pay it on February 20. In spite of this infraction and
the many past warnings, Hicks was permitted to pull his route on February 21 and
the entire week of February 23 to 28. Walker's excuse was that he was in court that
week.25 I do not credit Walker. On the other hand Hicks testified honestly that
he did use company funds and checked in short although not often in the past year.
Until the union issue arose , took hold, and blossomed and because of Respondent's
admitted hostility to it bloomed into unfair labor practice charges and the hearing
in the instant matter, all of the complained of acts of Hicks were condoned. I have
no doubt that such acts would have continued to be condoned "and that the straw
that broke the back of [Respondent's] tolerance and condonation," 26 was the union
activity at the Houston terminal, Hicks' participation therein, and his refusal to
cooperate with Walker "to talk to the men . . . because the Union was something
to get you in trouble." Indeed, Respondent kept Hicks on his payroll for 6 years
with knowledge that he was from time to time checking in short. In view of this,
can it now be said in the face of Respondent's admitted hostility to the Union, its
interrogation of the employees' union activities, and its threats to the employees if
they continued their union membership and activities, that "checking in short" was
the true reason for Hicks' discharge? I think not and I find that Hicks was dis-
charged because of his union membership and activities.
Emory Bowens, Lorenzo Jackson, and Chester Roy were discharged by Walker on
March 2, 1959. All were students at Texas Southern University and worked after
school, part time about 40 hours per week, as dockmen, which duties included work
as checkers.
I have previously found that Bowens was a union member and attended the
November 9 union meeting . Some 2 weeks thereafter he was interrogated by Walker
regarding his union membership and his attendance at the meeting. When he refused
to sign the withdrawal from the Union which Walker had prepared for his signature,
he was threatened with the loss of his job.
Bowens testified that on March 2, he and Roy reported for work at noon 21 The
dispatcher told them not to punch the clock before they talked with Walker. Roy
went in first 28 When Roy left Bowens went into the office. In addition to Walker,.
there was present an employee called "preacher."
Bowens testified that Walker told him he had to let him go because he was making
up a new schedule and Bowens did not fit into it. Walker, according to Bowens,
said he hated to do this because he knew Bowens was a good worker. Bowens left
and has not been reemployed.
Jackson had previously refused to sign a withdrawal from the Union. It appears
that he was forewarned by Walker that he would lose his job when the latter in-
terrogated him in or about the end of November 1958, at which time he was told
there would be fewer men working at the terminal and no place for him. Jackson
reported for work on March 2 at 4 p. m. He was told to see Walker who told him
he was being laid off since Respondent did not have enough "bobtail" truckdrivers,
and that it had to hire more drivers and get rid of some of the dockmen. Jackson
left and has not been reemployed.
Bowens testified, corroborated by Jackson, that of the nine part-time employees,
only the three who attended the November 9 union meeting (Bowens, Jackson, and
Roy) were discharged on March 2, the others continued in Respondent's employ.
Walker testified on direct examination that the only reason for discharging Bowens
and Jackson was that "[I] was going to establish and did establish, 5 new routes."
25 Walker sat in on the Board hearing and testified as a witness on February 24, 25,
and 27.
26 See Magnolia Petroleum Company v. N.L.R.B., 200 F. 2d 148 (C.A. 5).
27 Bowens and Roy had by this time completed their courses at the university and were
given permission by Jimmy Ingram, an acting dock foreman, to start working at noon
rather than 4 p.m. because they were good workers and because they were needed, thus
enabling them to make more time.
29 Roy did not testify at the reconvened hearing in Houston regarding this matter on
May 11, 1958, because he was in the service. The parties stipulated that Roy was dis-
charged by Respondent on March 2, 1959, and that he was the same person who testified
as a witness called by the General Counsel in the instant 'hearing at Houston on Febru-
ary 24, 1959. I have found above that Roy was a union member, that he attended the
union meeting, that he was interrogated by Walker regarding such activities, that he at
first refused to sign a union withdrawal slip given him by Walker, that after several
further attempts by Walker, Roy signed, and that Walker told him that he was then
doing the best thing because when he signed an application for the Union he was just
signing his job away. His testimony at the hearing on February 24, 1959, was adverse
to the Respondent.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to accomplish this, Walker claimed he "had to take off some of the non-
drivers, even though they were good men, to let them go, and put on drivers in their
place." Walker testified that so far as Roy is concerned he had been advised by the
latter, he thought back in January, that he was going into the Army most any day,
therefore "[I] didn't want to take time, [I] couldn't take time, to let Chester pull
a regular route and then come right behind him and replace him and train somebody
else." 29 Walker stated that but for the fact that Roy advised that he was going into
the service, he "would be with me today." 30 He also said that Bowens and Jackson
"were both very good boys and would be with me today if they were driving boys."
Walker admitted, however, that four of the part-time employees working for Re-
spondent at the time of the hearing herein do not drrive, three are checkers and the
fourth continued to do dockwork. Furthermore Walker admitted that part-time
dockmen have become drivers by learning to drive a truck in the vicinity of the
terminal and then obtained a commercial license. It does not appear that Bowens
and Jackson were afforded this opportunity.
I do not credit Walker's testimony. Indeed from the mere recital of some of
Walker's testimony on cross-examination one can glean that the reason given by
Walker for the -discharges of Bowens, Jackson, and Roy was not the true reason.
Q. At the time you laid off these part-time boys, how many drivers did you
plan to hire?
A. I had planned on 5 additional routes which would be immediately 5 drivers.
Q. Now, did that mean you were going to hire new employees for these 5
additional drivers?
A. Five drivers.
Q. You were going to hire 5 drivers?
A. Not exactly hire 5 new employees. I was going to layoff some employees
and replace them with drivers.
Q. How many new employees did you hire as a result of the 5 new routes?
A. I haven't established 5 new routes.
Q. You haven't established them yet?
A. No, sir. I think I have established three.
Q. Have you hired any new employees s ince March 2?
A. Yes, sir.
Q. How many have you hired,
A. I don't know.
Q. You don't have any idea?
A. No, sir, I don't. 3 or 4. .
Q. When did you hire these drivers?
A. I don't know.
Q. When did you hire the first one?
A. I don't remember. I would have to see the payroll record to see.
Considering the testimony of Bowens and Jackson which I credit and Walker's
fabricated reasons for discharging the men, the conclusion is inescapable and I find
that Bowen and Jackson were discharged because of their union membership and
activities. I find also that Roy was discharged because he testified at the Board
hearing on February 24, 1959, and because of his union membership and activities.
D. interference , restraint, and coercion at the San Antonio terminal
Robert McGrue was employed by Respondent at various times in 1951, 1957, and
1958. McGrue testified that in or about September or October 1958 he talked
with Antonio Gil, dock foreman, on the telephone and inquired if Respondent needed
any help. Gil told McGrue to come down to !the terminal. When McGrue arrived,
Gil told him he would call Bill Shuler, terminal manager. McGrue testified that
Gil then made a telephone call, and he heard Gil say that McGrue was at the
terminal, that he was a good truckdriver and a good worker, and inquire, "You
want to use him?" Continuing his telephone conversation Gil turned to McGrue
and asked, "Do you belong to the Union?" McGrue told Gil that he did not,
which information Gil transmitted on the telephone. McGrue was hired.
29 The record reveals that Roy had a driver's license and Walker admitted that on occa-
sions Roy was assigned to drive Respondent 's trucks on pickup and delivery routes.
Furthermore it does not appear, as Walker claimed, that a breaking-in period was given
new drivers. On the contrary, Gray testified credibly that he was assigned to a regular
route when he became employed.
10 The record does not contain the date Roy went into the service.
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1225
McGrue testified that he became a union member about the middle of October
1958 and passed out cards to about six employees, which were signed and returned
to him. In or about the middle of November, one Murphy, who had previously
been introduced by Shuler to the employees as a new dock foreman,31 asked
McGrue if he had signed up in the Union. McGrue denied that he had, whereupon
Murphy said, "Well, I heard that you had signed up." Murphy also told McGrue
that even though he was one of the best workers, he was "afraid" he would have
to let him go.
An employees' meeting was held at the San Antonio terminal at 1 p.m. on
November 24. Present were Shuler, Murphy, Aycock, and Swayze, the latter in
charge of sales. Shuler talked to the employees about the handling of freight and
about claims against the Company. McGrue, corroborated in substance by Dock-
man Leroy Jackson, testified that Shuler told the employees there was a rumor
afloat that Central Freight Lines was going to take over Alamo; that this was mere
propaganda which the Union was using to scare the employees into signing union
membership cards; and that any employee caught signing up in the Union or
engaging in union activity would lose his job. Swayze, according to McGure's
uncontradicted testimony, reiterated Shuler's comments about the use of Central
Freight Lines propaganda by the Union and additionally brought to the employees'
notice that Central Freight Lines did not have any Negro employees, other than
in the shop. Aycock told the men that if he heard of anyone signing up with the
Union, he would lose his job. Murphy mentioned that a raise was in the making,
but that he did not know when it would come about or the amount.
Jackson testified that at an employees' meeting held on the dock at the San
Antonio terminal in January 1959, Shuler told the men that when J. Leo Walker
was sick, there were negotiations to sell Alamo to Central, but the deal fell through.
Shuler assured the men they did not have to worry about Alamo being sold to
Central, but in the event they had anything to do with the Union they would not
be with Alamo. Shuler, according to Jackson, also said that if the Union was
successful in organizing Respondent's employees, J. Leo Walker would never sign a
union contract; further that he would not pay people to work for him and have the
Union run the job.
Although truckdriver Jose Solis was unable to testify what other management
officials spoke about at the November 1958 employees' meeting, he remembered that
Aycock said if he caught anybody signing up with the Teamsters, he would be fired
immediately.
While Shuler testified that Gil actually put McGrue to work, he denied that he
told Gil to ascertain whether McGrue was a union member. In fact Shuler did
not remember any conversation with Gil when McGrue was hired.
Shuler denied that when he addressed the employees at the November 1958
meeting he said that any man caught signing up with the Union would lose his
job. He testified he told them it was none of his business if they were union
members, "but the Company in order to stay in business, was going to have to
operate Alamo Express, because they had to make a profit to stay in business .. .
and there was no way to make a profit with someone else running the Company."
Shuler admitted that when he made reference to "someone else running the Com-
pany" he had the Union in mind. Shuler testified he did not think Aycock "even
mentioned the Union." This was in contradiction to Aycock's testimony who
stated he told the employees if they did not perform their regular duties in the
event a picket line or strike was set up, they would be replaced. Aycock also re-
plied "yes" in answer to the question, "Did you talk to the men about anything
other than union matters on that date?" put to him by Respondent's counsel. When
Shuler was recalled to testify at the hearing in May he was unable to remember
when the employees' meetings were held other than to say "I know we have them."
Shuler did not impress me as a reliable witness. His testimony was ambiguous
and in contradiction to the testimony of other Respondent witnesses. At times his
answers were vague and evasive and it appeared that his recollection of a number
of incidents about which he testified was poor. I do not credit his testimony.
Murphy, who is still in Respondent's employ, was not called to testify. Aycock was
admittedly hostile to the Union. One of his basic aims when he assumed the
general managership of Respondent was "to keep the Union out." He admitted
discussing a phase of possible future union activity at the November employees'
meeting. I do not credit his denial of threats to the employees if he found out they
were union members or engaged in union activities.
B'Ray Parr, a dock foreman, testified that Murphy was assistant terminal manager
when he was employed in San Antonio.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, based on the testimony of McGrue, Gil, Jackson, and Solis which I credit
and on the record as a whole , that Respondent interfered with, restrained, and
coerced its San Antonio terminal employees in the exercise of rights guaranteed in
Section 7 of the Act, in violation of Section 8(a) (1) thereof, by the following
enumerated acts and conducts: (1) Gil's inquiry if McGrue was a union member
when he applied for a job; (2) Murphy's interrogation of McGrue regarding his
union membership; (3) Murphy's threat of discharge of McGrue; (4) Shuler's
threat that employees caught signing up in the Union or engaging in union activities
would lose their jobs; (5) Aycock's threat of discharge to any employee joining
the Union; (6) Murphy's promise of benefit to the employees; and (7) Shuler's
threat of discharge at the January 1959 meeting and his coercive statement that
J. Leo Walker would never sign a union contract.
E. The discharges at the San Antonio terminal
Robert McGrue was a truckdriver who worked for Respondent on three occa-
sions. His last period of employment commenced in September or October 1958.
I have previously found that he was questioned about union membership when he
applied for the job. After he joined the Union and distributed cards among the
employees, he was interrogated regarding his union membership and activities and
threatened with discharge even though he was "one of [my] best workers."
McGrue testified that he did not find his card in the time rack upon reporting
for work on November 26 at 11 a.m. Inquiring of Gil and Murphy where his card
was, McGrue was referred to Shuler. McGrue testified further that Shuler told
him, "Mr. Walker has been on my back . . . on account of too much cost. I am
going to have to let you go. Along with you, I am going to have to let four other
guys go. I have got to pick them out and get the four guys that's been here less,
and I am going to let them go." McGrue had never been warned about his work
as a truckdriver nor had he been criticized or reprimanded. Shuler also told McGrue
that if business picked up he would give him a call. McGrue has not been
reemployed.
Alberto Uresti, a checker, testified credibly and without contradiction that about a
week after McGrue's discharge he was discussing the shortage of men to cover all
the pickups and to do the necessary workaround the terminal with Dock Foreman
Parr. Uresti inquired why then was McGrue let go? Parr replied that McGrue
was discharged because he had been trying to get men into the Union. Their
conversation was interrupted when Parr was called down to the office.
Shuler testified that McGrue was discharged by him on Aycock's order in an
effort to reduce expenses at the San Antonio terminal. Shuler also claimed that an
additional reason for the discharge was that whereas McGrue was a good worker,
during the first month of his employ thereafter he observed him standing around.
In spite of the fact that McGrue was, according to Shuler, " standing around, every
time I seen him in the last month," he recalled only talking to him one time about
this, and could not remember when he mentioned it to McGrue. Shuler admitted
that there are employees presently working at the San Antonio terminal who were
reprimanded for standing around. At one point in his cross-examination Shuler
testified he believed he received Aycock's letter to terminal managers about business
being bad and about cutting cost, before he discharged McGrue. At another point,
when asked if Aycock suggested that he lay off the higher-paid employees or any
other category of employee, Shuler answered, "I don't remember him making any
suggestions at all. I believe that the letter was after McGrue was let out because
I told him I had already cut off one and had figured on cutting some more off."
Not only did Shuler never get around to laying off any other employees, but in
contrast to the action taken at the Houston terminal where part-time dockmen were
discharged purportedly because they did not drive trucks, one Joe Galvan, a part-
time dockworker, was retained in Respondent's employ when McGrue was let out.
Moreover, McGrue's employment record reveals that during November he worked
an average of 56 hours a week although it was claimed that business was bad.
I do not accept Shuler's testimony. Respondent's attitude toward the Union at
the San Antonio terminal was no different than its attitude at the Houston terminal,
heretofore fully described, or for that matter at any of its other terminals. Aycock
visited all terminals when he assumed the general managership. Employee union
activities and membership were "very disturbing" to him. Indeed, one of his basic
aims was to "keep the union out" of Alamo. Under all the circumstances, I con-
clude and find that McGrue was discharged because he was a union member and
for the reason given by Parr to Uresti, which remains undenied in the record, "he
had been trying to get men in the Union."
Antonio Gil started his employment with Respondent in June 1953. He was
promoted to dock foreman, a supervisory position, about 8 months before his
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1227
discharge on February 26, 1959. It is the General Counsel's contention as alleged
in the complaint that Gil was discharged for the reason that he failed and refused
to comply with Aycock's request that he interrogate employees regarding their union
membership and activities.
Gil testified that in or about July 1958 , while talking with Shuler about the men
working at the San Antonio terminal, the latter inquired if he knew which em-
ployees were signing up with the Union . Gil told Shuler he did not know. Shuler
asked Gil the same question several times after that and also requested that Gil
try to find out who had signed up for the Union. Gil also testified that about mid-
October 1958 , Aycock asked him how things were going around the dock. Gil
replied "ok." Aycock then inquired what Gil heard about union activities around
the dock. Gil answered "nothing." Aycock asked if Gil knew any of the boys who
had signed up with the Union . Gil said he did not . Aycock told Gil he wanted to
get all the information he could about the boys who were signing up with the
Union. Gil testified that Aycock talked to him along similar lines about five or
six times.
On the morning of February 23, 1959, Aycock called Gil to his office in a further
effort to find out which employees were signed up withthe Union. Gil said he did
not know. When Gil returned from lunch that day, he was again summoned to
Aycock's office and a similar inquiry was made by Aycock, with the same answer
by Gil. Aycock told Gil that he knew the latter had some kinfolk working for
Alamo. Gil said his brother was there , that he had hired him with Shuler's
approval . He also said he had two uncles working there but that he did not
hire them . Aycock asked Gil if he knew that his brother was a union member
when he was hired . Gil replied that he did not . Aycock wanted to know if
Gil's brother was presently a union member . Gil replied , "No, sir." Aycock
repeated that he wanted Gil to tell him "who signed for the Union and who's not
signed up for the Union." Gil said he did not know . Aycock accused Gil of
withholding information about the Union and said he was discharging him.
Questioned on cross-examination regarding his conversations with Gil about re-
porting union activities and the reasons given Gil when he was discharged , Aycock
testified as follows:
Q. Now, Mr. Aycock, will you tell us about these conversations you had with
Gil about the Union ? When did that start?
A. Shortly after I arrived here, sir.
-Q. Around October of 1958?
A. Yes, sir.
Q. Now , would you tell us what you said to him at that time?
A. Yes, sir, I asked him on a number of occasions to try to determine the
number of personnel that was involved in the union uprising, activities that
we were having, rumors we were hearing, rumors we were hearing, and if at
all possible to find out and advise me as to what his findings were.
Q. Who was joining the Union?
A. Yes, sir.
Q. The number of men?
A. Number of men.
Q. What did Gil say when you told him that?
A. He said that he would, sir.
,Q. To your knowledge did he ever do it?
A. No, sir, he never brought me any-
Q. Did he ever report to you?
A. Yes, sir, he has.
,Q. What kind of reports did he give you?
A. He said that he didn 't know.
Q. All right. Now, when Gil was discharged , what did you tell Gil?
A. I didn't think he could handle the job.
Q. Anything else?
A. That he hadn 't cooperated with management on their requests.
Q. Now, by cooperating with management on their requests what were you
referring to?
A. A number of things, such as I have testified to, on the reports we have
requested from him.
Q. Tell us these things?
A. On the reports we had requested from him, his inability , in my opinion,
to handle his personnel properly, and not cooperating with management on
reporting the union activity, things of that nature.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Now, you testified you never told Gil to interrogate employees, is that
correct?
A. That's correct , yes, sir.
Q. But you did expect him to interrogate employees?
A. No, sir, I did not.
Q. Well, how did you expect him to find out about their membership in the
Union?
A. Well, he had a lot of relatives. It should have been forthcoming.
Q. Well, it would be by questions, wouldn't it?
A. Yes, sir, it would be.
Q. And you weren't interested only in his relatives, were you?
A. No, I was interested in all personnel.
Q. In other words you expected him to go out and find out from all of
them if he could?
A. Yes, sir, he was part of management and, in my opinion, should have
performed in a management capacity.
Q. And as such should have gone out and questioned employees about the
Union?
A. He should have carried out instructions, yes, sir.
Q. And they were your instructions?
A. Yes, sir.
Q. And your instructions expected him to ask employees about the union
activity going on out there that you were concerned about?
A. Absolutely, yes, sir.
In view of Respondent's hostility to the Union and its discharges of employees
because of their union memberships and activities described supra, the reasonable
inference to be drawn from Aycock's request of Gil that he report to him the union
activities at the San Antonio terminal, was to assist Respondent in its campaign
against the Union. I so find. The Board has held that the discharge of a supervisor
for refusing to aid in a campaign against a union unlawfully interferes with, restrains,
and coerces the nonsupervisory employees involved.32 Under all the circumstances
and on the record as a whole, I find that by discharging Antonio Gil on February
23, 1959, among other reasons because of his failure to report to Respondent the
union activities of the rank-and-file employees, Respondent violated Section 8 (a) (1)
of the Act. I find it unnecessary to discuss Respondent's alleged other reasons for
Gil's discharge. Further Gil's reinstatement with backpay is necessary in order to
restore to the Respondent's rank-and-file employees their full freedom to exercise
the rights guaranteed them in Section 7 of the Act and thus effectuate the policies
of the Act. I will so recommend hereinafter.
Leroy Jackson was employed by Respondent in June 1958 as an hourly paid
dockworker. He testified as a witness for the General Counsel in the injunction
proceeding in Houston during the week of February 9, 1959, and before me at the
Board hearing in San Antonio on the morning of February 27. His testimony set
forth above, which I credited, was adverse to the Respondent.
Alberto Uresti started his last period of employment with Respondent in June
1958 as a checker and occasionally he drove trucks. In December 1958, Uresti
was laid off by Shuler because of some alleged shortage of tires which had been
sent to the San Antonio terminal for shipment to other points. Uresti talked with
Aycock and J. Leo Walker about the matter and after a layoff of a day and a half,
was reinstated to his job. Uresti like Jackson testified at the injunction proceeding
and before me on the morning of February 27. It will be recalled that he testified
credibly and without contradiction that Dock Foreman Parr told him McGrue was
discharged because he had been trying to get men to join the Union.
Jackson testified, corroborated by Uresti, that after they finished testifying at the
Board hearing on February 27 they went out to the terminal together, arriving
there shortly after noon.33 Parr, according to Jackgson and Uresti, told them to take
the remainder of the day off, since there was not enough work to be done around
the terminal, and he was going to have to send some of the boys home who had
82 See Talladega Cotton Factory, Inc., 106 NLRB 295 ; Inter-City Advertising Co. of
Charlotte, N.C., Inc., et at., 89 NLRB 1103, modified on other grounds 190 F. 2d 420
(C.A. 4) ; Vail Manufacturing Company, 61 NLRB 181, enfd. 158 F. 2d 664, 666-667
(C.A. 7), cert. denied 331 U.S. 835.
3s Jackson reported for work regularly at 11 a.m, and worked until finished at night.
He testified that the dockmen on the 11 a.m. shift worked 5 days a week, Monday through
Friday. Uresti was on the late shift. He reported for work at 11 a.m. 6 days a week
with Saturdays off.
ALAMO EXPRESS, INC., AND ALAMO, CARTAGE- COMPANY 1229
been working ail morning. Jackson, testified that he went home and returned to the
terminal about 3:30 or 4 p.ni. when he received his paycheck from one-of the office
-per'sonnel. Jackson saw Parr'and inquired if he could be used on Saturday. Parr said
no" but he would see him on Monday. When Jackson reported for work at 11 a.m.
on Monday, Parr told him not to punch-the clock, but to get his final check at the
office. The reason for discharge on' Jackson's payroll sheet reads, "Final. Failed
to show up for work as instructed. No drivers license. Undesirable." Jackson
testified he talked with Aycock several days-later and asked why he was fired. Aycock
said he did not report back for work after testifying at the Board hearing. Jackson
protested that he did not report back, and that as a matter of fact that,was the first
thing he did when he was excused from the hearing. _ Aycock then said, "Well,
you know." Jackson said he did not know. Aycock told Jackson he was "undesir-
able." ' Jackson has not been reinstated by Respondent.
Shuler testified'he recommended Jackson's' discharge because he failed to show
up for work- when asked to report. This conflicts with Aycock's testimony, who
stated that acting on Parr's recommendation he dismissed Jackson. With regard
to one of the reasons for discharge on Jackson's payroll sheet, "no drivers license,"
Shuler admitted that dock hands are not required to have a driver's license.
Parr testified that Jackson and Uresti returned to the terminal together on Friday
afternoon and he gave each his check. Parr admitted that he told them they could
`take the afternoon off. Parr stated however he told Jackson to come back on Satur-
day and Jackson said he would be there. Parr testified that Jackson did not show up
on Saturday morning and that he was needed. Parr was unable to state with cer-
tainty the time Jackson was to report on Monday. He thought Jackson was on the
8 a in. shift.34 Questioned on direct examination if Jackson was back on the job
Monday morning, Parr answered, "Well, I'm not sure. ... I think he came in
around noon that Monday, as well as I can remember." On cross-examination, when
asked if it was not a fact that Jackson and Uresti inquired if they might punch the
clock and go, to work when they 'came to- the terminal on Friday; Parr answered
that he was not sure. He conceded they could have asked him that. 'Asked to relate
his conversation with Jackson' on Friday, Parr answered, "Well, sir, there is no
conversation to it. I gave the boys their checks and told them to come back and
work Saturday. I told Albert I would see him Sunday at 1 o'clock." Parr admitted
that Jackson did not usually work on Saturday: His explanation for requesting
Jackson to come to work this particular Saturday was "because I-was short on help
and he had been off, lost 2 days work,- see, • and I wanted to let -him make up part
of his time he, had lost." In spite of the alleged shortage of help on Saturday, Parr
admitted that Dockmen John.Scott and Ed Dunkan Aid not work on Saturday,
February 28. Like Jackson they usually did not report on Saturday. In fact, Parr
was ,not sure that Robert Maddox, a part-time dockworker who was on Saturday
work, came in to work on February 28. Jackson impressed me as a sincere witness
who was making every effort to give a complete and truthful version of the events
as they occurred. Parr, on the other hand, was evasive and appeared completely
cowed testifying before his employers., .I do not accept his testimony above.
Uresti admittedly did not report for work on Sunday. March 1, because of a hay
fever attack. He testified that at 9:30 a.m. his wife telephoned the terminal to report
him sick, but did not get an answer. Later that morning Uresti's brother-in-law,
Albert Rivas, who was employed by Respondent, stopped at his home in order
to go to work with him.35 Rivas testified he found Uresti sick in bed. Rivas arrived
at the terminal at 1 p in. He testified he told Parr that Uresti would not be to work,
that he 'was home sick. Rivas also told Parr that Uresti's wife had called the ter-
minal earlier that day but did- not get an answer. Parr according Rivas, merely
said that "Swayze had been looking for Uresti."
Uresti reported ready for work at 10:30 a.m. on March 2. Parr told him he
did not have a -timecard any longer and' to pick up his final check at the office.
Uresti testified Parr could not tell him why he was being discharged, other than to
advise that those were the orders. Uresti sought out Shuler, but the latter was not
at the terminal. Uresti stated he left the terminal and went to the union hall
to look for work. 'He never obtained the reason for his discharge. The final
notation on his payroll sheet 'reads, "did not come to work as instructed." Uresti
has not been reinstated. '
Although Respondent adduced evidence in its attempt to show Uresti's short-
comings as a checker, Aycock admitted" that the immediate cause of his discharge
was his failure to report for work on Sunday, March 1.
34 As previously noted Jackson reported regularly at 11 a.m.
5 Rivas and Uresti drove to,the terminal together.
123b ' 'DECISIONS' OF'IQATIONAL` LABOR RELATIONS'' BOARD
Regarding his'version of,the event's on-March 1, Parr testified that Uresti did-not
report for work, that he' had not received ally information from any source that
'Uresti,was not going to' work; that he inquired of Rivas where Uresti was, and Rivas
-replied that he did riot know; he thought Uresti was at home. I do not credit Parr
and find in accordance ' with- Rivas' creditable testimony that he reported Uresti
sick when he came to work March 1.
Parr admitted that Uresti was,a good worker.who reported for work consistently,
and 'usually worked Sundays as required. In fact,' in January 1959 Murphy men-
tioned the possibility to Uresti that he take charge' of the- dock on Sundays and be
responsible for the crew-and the loading of the trucks, in order that Parr might have
,a day off. Under all these. circumstances, I am persuaded and find that the dis-
charges of Jackson and Uressti on the next working day after they testified at the
Board hearing was effected as a reprisal against them for having- given testimony
adverse to the Respondent in- the instant situation and because of their union mem
'bership and support, in violation of Section 8(a)(3) and (4) of the Act.
Jose Solis became employed by -Respondent in June 1956 as a truckdriver on
the city pickup and delivery service in San Antonio. He had a regular route and
worked steadily until this discharge on March 2, 1959. Solis testified as a witness
called by the General Counsel at the injunction proceeding in Houston, and before
me at the Board hearing in San Antonio on February 27. His testimony was
adverse to Respondent. On February 28 Solis worked from 8 a.m. until 2 p.m.
After he finished for the day, he drove to Laredo, Texas, in the company of Manuel
Perez, a union job steward, to proselytize in behalf of the Union among Alamo's
employees there. Upon reporting fof work on March 2, Solis saw a list of employees,
to be discharged which contained his name. Solis asked Foreman Brown for the
reason and he was told to see Shuler. The latter told him to see Aycock. Solis
testified that Aycock told him'he was-not discharging him for union activities but
because he testified at the Board hearing, that Aycock would fire anybody he caught
fooling around with the Union, and further because Solis was unable to remember
anything else that was said at the employees' meetings. Aycock also mentioned
that Respondent had too many complaints from Strauss-Frank.36 The notation
on Solis' payroll record reads, "Undesirable. Complaints from Straus-Frank. Would
not follow instructions " Aycock testified on cross-examination as follows:
Q. When you discharged Solis-tell us what you told Mr.. Solis and what he
told you, the conversation that took place?
A. I told Solis that I was discharging him for paying no attention to company
meetings. Instructions were given at those meetings, he couldn't remember a
thing that was said.-Also for the reason that he made the statement that I
personally said I would fire any man that joined the Union, which there was not
no truth to at all.
Q. Because he had testified to that?
A. Yes, that's right. -
Thus; among other reasons given for Solis' discharge, it is clear, as Aycock admits,
that one of the reasons was Solis' testimony at the Board hearing which Aycock
claimed was not truthful. There is no need to again resolve the credibility issue
between Solis and Aycock, since I-have heretofore credited Solis' testimony regarding
Aycock's threat at the November 1958 employees' meeting. Accordingly. having
found that Solis was discharged, among other reasons for having testified, truthfully,
in a Board, hearing that Aycockj threatened to discharge immediately any employee
who he caught signing up with the Teamsters'Union, the Respondent. thereby violated
Section 8(a)(3) and (4) of the Act. Under these circumstances, I will not discuss
nor determine whether Respondent's other reasons for Solis' discharge were valid.
- Selso Gil was a dockworker whose last period of employment commenced in
August 1958. He was an hourly paid employee, who started work at 4 a.m. and
finished for the day about 3:30 p.m., ,6 days a week, Monday through Saturday. He
is a brother of Dock Foreman Antonio Gil. Selso signed a union card in January
1959. He was discharged on March 2, 1959. The reason noted on his payroll record
was, "Final, drinking on lot, left work without authority." Selso did not remember
that on Saturday, February 28, he reported for work nearly an hour late and shortly
thereafter-left the dock without obtaining supervisory approval. He admitted drink-
ing,'on Saturday, -and returning. to the dock in a drunken condition. He did not
remember that he performed any work. Although the record is replete with evidence
indicating that Respondent grasped the opportunity to discharge any employee-who
was affiliated with the Union and or a participant in union activities, I find that with
90 Straus-Frank is a regular customer on Solis' route.
ALAMO•-EXPRESS, -INC., AND'ALAMO CARTAGE COMPANY 1231
-respect to Selso Gil, the General Counsel has failed to prove by, a preponderance- of
the evidence that, he was discharged for these'reasons, rather than,for the reasons
given by Respondent 37 I will recommend hereinafter that the complaint be dismissed
-insofar as it is alleged that Selso Gil was discriminatorily discharged.
T. Discharges; interference, restraint, and coercion at the Corpus'Christi - terminal'
Louis Fabala was, a truckdriver. on the Respondent's city delivery-service from
September 1957 until his discharge on November 22, 1958. Fabala testified he signed,
a' union card at the beginning of November 1958 and thereafter proselytized on the.
Union's behalf by talking to the employees at the terminal and passing out cards,
among them. . - •
Fabala testified credibly and without contradiction that about a week or 10 days,
before he was terminated, James Heneger 38 came down to the dock and inquired_
if he signed a union card. Fabala denied that he did. Heneger told Fabala that the
Union was no good and implored him not to sign a card. Heneger then threatened,
"anybody that will sign, will be fired."
On November 22 Fabala reported for work as usual at 8 ^a.m. While he was
working on the dock about 11 a.m., he was asked by Milton Snell, terminal manager,
to come into his office. Fabala testified that Snell told him he had to lay him off
because of business, that things were moving slowly. Fabala remarked that there-
were five or six men who had been hired after him and he saw no reason why they
were not laid off first. Snell said that he was running the place. Upon Fabala's
inquiry regarding any complaints that Snell had about him, the latter said that he
had nothing against him. Fabala told Snell that he had a large family and that a_
layoff at this time would work a hardship on him. Snell then told Fabala he was,
letting him go because he had been fooling around with the Union. Fabala has not
been reemployed by Respondent.
Snell assumed the duties as terminal manager at Corpus Christi on November 1,
1958.39 He testified that within a few days after the arrival he decided it would be
necessary to lay off some men in an effort to cut costs because business had fallen
off. He also stated that he received instructions to this effect in the form letter sent-
by Aycock to terminal managers dated November 10, referred to supra. Although
Snell denied that he knew that Fabala was a union member and was engaging in_
union activities at the time he discharged him, he admitted that he selected Fabala
for discharge because he had received several reports from Dock Foreman Pruitt,
and possibly from other sources, that Fabala was talking to the other employees.
about getting more money, thus-,causing confusion among the men and "stirring:
things up." Indeed, when Snell was asked if it was not a fact that but for Fabala's
creating dissension and unrest among the employees by his talking to them about.
higher wages, he would still be employed by Respondent, he answered, "I would
say if he wasn't agitating trouble like that, he would still be there." Based on Snell's
testimony and his admissions and with nothing more, it is clear that Fabala was,
discharged for engaging in concerted activities, a right given employees under Section
7 of the Act. It must also be pointed, out, however, with respect to the necessity-
for a reduction in force at the Corpus Christi terminal, alluded to previously by
Snell, and which Respondent claims to be the underlying cause for,Fabala's discharge,
that the record reveals that Respondent hired two employees as combination dock--
37 In arriving at this finding, I have considered Selso's testimony that when he talked
to Aycock on March 2 about the reason for his layoff, Aycock said he spoke to Shuler
"about the boys that were signing up for the' Union" and that Shuler had the names in
his office, and that Aycock could not do anything about that This testimony was adduced
from a leading question and while it gives rise to a suspicion regarding the reasons for-
Selso's discharge, I will not base a finding on suspicion alone
' It is the Respondent's contention raised at the hearing that Heneger was a salecman-
solicitor for Respondent and as such was riot a supervisor within the meaning of the Act
It was called to the attention of Respondent's counsel that he had agreed and stipulated
with the General Counsel at the outset of the hearing that Heneger was a vice president
of Respondent from November 1958 through January 1959. The record also reveals that
Reneger became Respondent's district manager in Corpus Christi, on April 1, 1959, and
in addition was the acting terminal manager at Corpus Christi from April 6 through
April 30, 1959 It is also noted that in 119 NLRB 6, Heneger was Respondent's res-dent
vice president and terminal manager'at Corpus Christi. I-find that as an officer of Re-
spondent Heneger was acting as its agent and was therefore an employer within the
meaning df the Act. See Mount Hope Finishing Company. et ai ,-106 NLRB 480, 498
» He had previously been terminal 'manager in Weslaco; Texas, and has been in Respond.
ent's employ for 5 years.
1232 DECISIONS OF, NATIONAL, LABOR RELATIONS BOARD .
workers and truckdrivers on November 3 and 11; respectively.,, Moreover,, in carrying
,out its reduction-in-force plan,-Respondent found it necessary to lay off in addition
to Fabala only one other employee in November„ and that person was an extra man.
Finally, the record reveals that the Corpus Christi terminal had 23 drivers and dock-
ment at the time of the hearing in February 1959, the same number of men it had
on November •1,. 1958.40- Under all these, circumstances and, the whole, record, I
find that Fabala was discharged for the reason that he was a union, member and
engaged in concerted activities -for the purposes of collective bargaining or other
mutual aid or protection in violation of Section, 8 (a) (3) of the Act. .
'Jesus Ybarra was employed by Respondent in 1957. He testified that when he
applied for work, Heneger inquired if he was a member of-a union. Ybarra replied
that when he was employed in East Chicago, Indiana, he was a memberof.a CIO
union, but that he no longer paid dues to the said, union. Heneger'told Ybarra that
Respondent did not want a union among its employees and in the event Ybarra joined
the Union while working for Alamo, and thereafter looked for a job elsewhere, he
would give him a bad recommendation. Ybarra worked for 2 or 3 months and was
laid off in a reduction in force.41
Ybarra commenced his second period of employment in or about September 1958.
He was a casual worker until November 3 when he went on the regular payroll.42
About a_week prior to his discharge on November 22, Ybarra talked with Union
Steward Garcia at the Brown Express terminal in Corpus Christi, and signed a union
membership card. Ybarra testified that he had an infection caused by some foreign
matter in the eye for about 3 days before November 22, but continued to perform
his duties. About 5 a.m. on November 22, Ybarra telephoned the dock foremah
to advise him that he would not work that day as he was going to a hospital to
attend to his eye. Ybarra came into the terminal at 9-a.m. to get his check (Saturday
was the regular payday). Ybarra was,told,by Dock Foreman Pruitt that Respondent
would not need him any longer, and that his check was in the office. Ybarra testified
that Snell called Pruitt into the office and inquired if he (Pruitt) would need Ybarra
any more. Pruitt replied he did not think so. Ybarra.testified without contradiction
that Snell told, him that he was seen at Brown Express and inquired what he was
'doing there. Ybarra replied that he went there to see some-friends who worked for
Brown Express. Snell wanted to know, "What kind of friends were they?" Snell
then remarked that,he though Ybarra went there to join the Union, and in fact in-
quired if Ybarra signed a card. Upon Ybarra's affirmative reply, .Snell said that
was why he was going to fire him and added that business was slow and there was
not too much freight to be delivered; but that, if he was,needed he would call him
back in January. Ybarra remarked that three men were hired after he was, and
asked why they were not discharged before -him: - Snell told Ybarra that as the
manager he ran the business as he saw fit and could fire anyone he wanted to.
Ybarra has not been reemployed by Respondent.
Snell testified that he discharged Ybarra on November 22 in a reduction in force
and for unsatisfactory work. In discussing the discharge of Fabala above, I set
forth the'evidence adduced regarding Respondent's contention of the necessity for
a reduction in force at the Corpus Christi terminal. There is no need to dwell on
this contention further, suffice it to 'say that the new hirings by Respondent in
November 1958 and the fact that its complement of employees was the same in
February 1959 as it was in. November 1958, do not, in my opinion, permit of any
definitive finding as to the extent that the force had to be reduced, if in fact it had
to be reduced at all. -
Turning next to Ybarra's unsatisfactory work preformance, Snell testified that
by this he meant it was "hard to get him to understand the handling-delivering of
freight." Snell testified further that it was explained to him, and he (Snell) felt that
whereas Ybarra indicated he understood, he actually did not because he did not
understand or know English well. Other than the aforestated explanation, Snell
merely testified categorically that Ybarra's work was unsatisfactory.
Ybarra denied that anyone in management ever complained about the way he
was doing his job or warned him about the manner he was handling freight. He
admitted that on one occasion, about 3 weeks before his discharge, Snell inquired
why his truck was parked in front of a bar. He explained to Snell that it was not
40 With such a small complement, knowledge of the union activities of the empioyees
can he inferred. See Bituminous Material & Supply Co , supra.
41 The above evidence was received solely for background purposes . I will not base any
findings thereon. -
42 As a' casual worker Ybarra worked around the dock and drove a truck about 10 or
11 hours • a, day; the same as he did as a worker on the regular payroll.
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1233
a bar, but a cafe where he stopped for coffee. Snell said he did not want to see
trucks parked and employees spending any time at such places. Ybarra testified that
he spoke sufficient English for driving and working on a truck and made himself
understood with anyone while performing his job 43 I credit Ybarra's testimony.
Considering the credited testimony of Ybarra, together with the fact that Respondent
was hostile to the Union,44 the evidence of a disposition on its part to rid itself of
known union supporters, and the unconvincing nature of Snell's testimony with
regard to his reasons for discharging Ybarra, the conclusion is inescapable and I
find that Ybarra was discharged because of Respondent's belief that he was a union
member and was engaging in union activities.
George Askey had three periods of employment with Respondent. He worked
in 1950, in 1956, and from June 1957 until his discharge on March 2, 1959. He was
a truckdriver on the city pickup and delivery service.
Askey testified that when Heneger hired him in June 1957, he was asked if he
intended "to fool with the union." He told Heneger he would not. Askey signed
a union membership card in February 1959. He talked with three or four other
employees about joining the Union. On the night of Febiuary 14, a union meeting
was held in Askey's house. On February 28, Askey was accosted by Heneger with
the greeting, "God damn you, George." Askey inquired what Heneger meant and
was told "you are fooling around with the Union. You ought not to do it."
Heneger inquired if Askey had a meeting at his house. Askey denied that he
had. Heneger said that some of Askey's friends told him of the meeting.
On March 2, Askey returned from his route to the terminal about •6:30 p.m. He
was ushered into Snell's office and was told that he was being terminated as of that
evening. Askey admitted that Snell told him he had learned of his criminal record,
that he was considered a bad risk, and that Respondent's customers would complain
if he was kept in its employ.
Askey's criminal record consisted of three felony convictions. Askey admitted
that he, among other Respondent employees, had been under investigation by city
detectives of Corpus Christi and the FBI for alleged thief of freight in shipment.
Askey was perhaps one of the most active union protagonists among the employees
'at the Corpus Christi terminal, and as I have heretofore found it was Respondent's
objective to rid itself of such employees. This set of circumstances, particularly
the timing of the discharge, gives rise to the suspicion that discriminatory action
was taken against Askey. But suspicion is not proof and a finding of violation of
the Act cannot be based on suspicion alone. See Valencia Service Co., 103 NLRB
1190. We are faced here with Snell's uncontradicted testimony that even though
he had knowledge of Askey's criminal record 3 weeks before the discharge, he was
requested by city detectives handling the investigation to hold up releasing him,
and discharged him at the first opportunity that Askey could have been dropped
without interfering with the criminal investigation. Unlike the American Bottling
Company case, 99 NLRB 345, where the defense raised in the discharge of two
employees was that they were ex-convicts, and the Board rejected such defense finding
discrimination because the record revealed that the company knew of the criminal
record of the two employees at the time they were hired, in the instant situation
Askey admitted that he did not reveal his felony conviction when he was hired in
1957, nor was he asked by anyone in management about the said record during
the period of his employment. Upon all of the foregoing, I find that the General
Counsel has not sustained his burden of proving by a preponderance of the evidence
that Askey was discriminatorily discharged.
Vicente Pena was employed as a truckdriver by Respondent for a total of nearly
10 years. It was stipulated by the parties that Pena worked at the Corpus Christi
terminal from January 1958 until he was discharged on March 2, 1959, and prior
thereto he worked at the McAllen. Texas, terminal for about 5 years.
While working at-the Corpus Christi terminal, Pena continued to maintain his
residence in McAllen, and as noted heretofore when Snell became the terminal
manager, they drove together on weekends from Corpus Christi to their respective
homes. It was on such a trip' that Snell told Pena, while they were discussing the
Union, that "Alamo will not go union," a reflection of Respondent's hostile policy
towards the Union's oiganization of its employees.
43Ybarra acknowledged that he could not make himself understood well in "l.'gal
business," such as the hearing herein. It was necessary to have an interpreter at the
hearing.
44 In addition to Respondent's hostility set forth in detail previously , Snell admitted that
he told employee Pena while they were driving together , shortly after he was transferred
to Corpus Christi , that "Alamo will not go union."
560940-61-vol 127-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pena testified that during the time he was employed at the Corpus Christi terminal,
he received his mail there. In January 1959,.Pena received a letter from the Union
addressed to him at the terminal.45 At this time, Heneger mquired if he had anything
to do with the Union. Pena said "no." Pena testified that m the latter part of
January, while the was resting in the bunkroom at the terminal, Heneger came in and
asked if he had received a letter from the Union, Pena acknowledged that he had
and that in fact he had it there. Heneger inquired as to the whereabouts of the letter.
Pena told him it was in his shirt pocket. Heneger took the letter and did not return
it to him. Pena testified that it was shortly after this incident that he again signed
a union membership card, and attended the union meeting at Askey's house on
Febiuary 14.
Pena was discharged by Snell about 2 p in. on March 2. He testified that Snell
gave as reasons for the discharge, (1) complaints from customers to whom Pena
made deliveries and (2) complaints from the dock foreman. Pena told Snell that
there might have been a complaint from one customer, due to the fact that when
he was delivering meat there he was unable to carry a piece of beef weighing about
200 pounds, because of a broken right shoulder bone he had suffered in the past.
He acknowledged that one, of the store clerks had to help him. In fact, Pena stated
he reported this incident to the dock foreman and was told not to worry about it,
that it would be taken care of. Pena testified that before Snell discharged him, no
one in management said anything to him about customer complaints. Pena also
testified that after Snell discharged him, he went to the dock foreman and asked
what complaints the latter had about him Pena testified without contradiction that
the foreman said he did not have any complaints. Pena admitted that while he was
on the Armour meat run, there were several occasions he was short in the weight
of meat delivered to customers.
Snell testified he discharged Pena for unsatisfactory work. He stated that on two
or three occasions the dock foreman reported to him that he instructed Pena to take
out straight loads, that Pena complained about the assignments and hesitated about
carrying them out, and complied only after an argument with the dock foreman and
the latter threatening that he would get someone else for the job. Snell recalled
telling Pena in December or January that Pruitt was the dock foreman and he (Pena)
was going to have to take instructions from him Snell was unable to remember
when he last received a complaint from Pruitt about Persia's arguments with him
regarding taking out straight loads. He amended his answer subsequently and said
it was within the 2-week period before Pena's termination, because it was after
Pena was taken off the Armour meat run Snell also testified that Pruitt complained
that he instructed Pena to "clock out," but he continued to work and it was necessary
for Snell to tell Pena to check out Here again, Snell was unable to testify as to the
date of this occurrence, but upon being pressed said "it happened after he was on
the meat run, and if I am not mistaken, that is one of the times or the time I
personally went over there and asked Mr. Pena to clock out."
Snell testified that Respondent had a contract with Armour & Company by the
terms of which Respondent picked up an Armour refrigerated truck loaded with
fresh meat and delivered the same by one of its drivers to Armour customers. Pena
was assigned to this work for about a month and was taken off the run about 2 to 3
weeks before his discharge Snell testified that he heard from the Armour rep-
iesentative that two Armour customers complained of dissatisfaction with Pena's
attitude, his lack of understanding, and the fact that he'mixed up their packages of
meat. Snell also stated that he could not get Pena to understand how to handle
the reporting of overages and shortages. Snell said that because Pena was unable
to get the meat packages straight, he brought meat,back undelivered that he claimed
was over, but actually was not; that he just, did not deliver it correctly; and that
instead of turning it into' cold storage, he left it in the meat trailer. Snell was
unable to state whether the item left in the trailer was fresh meat.
The Respondent did not call Dock Foreman Pruitt to testify in its behalf, even
though the latter was the only one with first-hand information about Pena's alleged
derelictions. It must be,- remembered that one of the, basic reasons assigned by
Respondent for Pena's discharge was his purported refusal to acceptTruitt's instruc-
tions which brought about arguments over assignments and,"clocking out." Re-
spondent's unexplained failure to call upon Pruitt to testify is itself persuasive that
his testimony, if given, would have been unfavorable to Respondent In any event
I credit Pena's uncontradicted testimony that Pruitt said he did not have any com-
plaints against him. I have no doubt, based on Pena's frank admission that because
he was short 'in the weight of_meat delivered to customers several times, such cus-
45 Pena testified he was a: member of'the Union when he worked for-Brown Express and
Robinson, during the time he was not employed by Respondent. .
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1235
tomers complained. However, I credit Pena's testimony that Armour's customer
complaints were not brought to his notice by anyone in Respondent's supervisory
hierarchy.
Considering the length of Pena's employment with Respondent, together with
the fact that his discharge, so far as he was concerned, was totally unanticipated,46
the assumption is reasonable that if this urgent procedure was compelled by legiti-
mate reasons, some incident inbolving grevious misconduct must have occurred which
merited application of immediate and severe discipline, or that a condition arose
whereby any delay in getting rid of Pena would have been seriously detrimental
to the Respondent's business interest. I find no basis in the record for belief that
either of these considerations compelled the Respondent's sudden and unforewarned
action against' an employee with 10 years' service. On the other hand the timing of
the discharge and its precipitative character are decidedly compatible with the view
that it was part of the Respondent's unlawful conduct directed against the Union,
including its' hostility toward employees who joined and supported the Union,47
its acts of interrogation, its threats to engage in reprisals against such employees;
and its discharges heretofore detailed. Under all these circumstances and upon
the whole record, I am persuaded and find that the discharge of Pena was motivated
like the other discharges, by Respondent's desire to rid itself of union adherents and
to coerce its employees into abandoning their support of the Union.
I also conclude and find based on the record as a whole that by the following
enumerated acts and conduct, Respondent interfered with, restrained, and coerced
its Corpus Christi terminal employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8 (a) (1) thereof: (1) Heneger's interro-
gation of Fabala regarding his union membership; (2) Heneger's threat to Fabala
that any employee who signed a union card would be fired; (3) Snell's inquiry of
Ybarra if he signed a union card; (4) Heneger's interrogation of Askey regarding
a union meeting held at his house; and (5) Snell's coercive statement to Pena that
"Alamo will not go union."
G. Discharges; interference, restraint, and coercion at the Harlingen terminal
Ricardo Mendez was employed by Respondent in August 1957 and was discharged
on March 3, 1959. Pedro Gomez was employed by Respondent in September 1957
and was discharged on March 3, 1959. Mendez and Gomez were'hourly paid truck=
drivers assigned to regular routes and work a 6-day week, Monday through Saturday.
Gomez signed a• union membership card in January 1959. Gomez testified that
in mid-January, Gene Thompson, Respondent's Valley supervisor,48 called him into
the terminal office and told him a union representative was in Harlingen attempting
to organize Respondent's employees into the Union. Thompson also told Gomez
the men should not sign up with the Union. Gomez testified that in the latter part
of January, Thompson spoke to him again. Thompson inquired if Gomez knew the
employees who had signed union cards. Gomez stood mute. Thompson told
Gomez not to sign up with the Union because "it was very crooked."
Gomez also testified without denial that on February 23 Dock Foreman' Mares
asked if he and Mendez had signed union cards. Gomez answered "no." Mares
did not accept Gomez' answer. Mares accused Gomez and Mendez of having
signed union cards and told him that Aycock had obtained their names from a
good friend of his in San Antonio. Mares implored Gomez to tell him the truth
because he had to call Aycock in San Antonio and report whether they had signed
union cards. Gomez inquired what Mares was going to do. Mares replied he
thought he was "going to run [us] off."
Mendez testified that in • addition to signing a union membership card he talked'
with other employees and was successful in getting two of them to sign cards.
Mendez testified without contradiction that on February 23 Mares talked to him
alone at the terminal and inquired if he and Gomez signed up for the Union.
Mares insisted on this information because Aycock had been informed by a friend,
in San Antonio that Mendez and Gomez were .pressuring the, employees to sign
iup with the Union. Mendez denied everything.
46 He was discharged on Monday, March 2, the beginning of the workweek.
47 It will be recalled that Pena was interiogated by Heneger about the union letter he
received at the terminal and other union activities
48 Thompson was in charge-of terminals, at Brownsville, Harlingen, Weslaco, McAllen,
and Edinburg Under Thompson's overall supervision, Tom Ashworth was-the agent in
charge and Elias Mares` was the dock foreman at the Harlingen terminal. The latter re-
sponsibly directed the work of drivers and dockmen. I find that Ashworth and Mares
were supervisors at all times material-herein. - - -
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the afternoon of March 3 Ashworth told Mendez that business was very slow,
that some 30 men at the different terminals were going to be laid off, and that he
was one of them. Mendez was never criticized for the manner in which he per-
formed his job. Mendez has not been reemployed.
Gomez testified that on March 3 he received a telephone call from Thompson
who told him that on Aycock's orders he had to lay off some men because business
was slow and he was discharging him. Thompson assured Gomez that when
business picked up he would reemploy him because he knew the route. Gomez
has not been reemployed.
Thompson testified that for some 45 to 60 days prior to March 1, 1959, he had
been discussing reducing the force with Aycock. Sometime after this discussion
with Aycock, and with the latter's knowledge, the situation was explained to the
employees at the Harlingen terminal and they agreed that rather than a reduction
in force they would work a shorter workweek. Accordingly, he claimed Respondent
operated on a reduced schedule with each man working 6 to 8 hours less per week.
On or about March 3 Aycock peremptorily instructed Thompson to reduce his staff
in Harlingen by two men. Thompson testified he selected Gomez and Mendez
for termination, based on the merit system and without considering seniority.
Thompson stated he and Ashworth talked about laying off employee Aleman who
was hired for part-time work on December 29, 1958, but decided to keep him on
because of his performance in deliveries. Although Thompson testified on direct
examination, as heretofore set forth, that seniority was not considered in making
the terminations, he testified on cross-examination, "we took the names of all the
men and just made a decision among the two we thought would be better to lay off,
the time of employment they had there, their abilities, performance on deliveries, and
such." Thompson admitted that Mendez and Gomez were satisfactory employees
and that he could have kept them on to work "extra." It is interesting to note,
however, that the payroll record reveals that Aleman began working full time imme-
diately after the terminations of Mendez and Gomez. Indeed, Thompson admitted
that Aleman picked up the same route that Mendez formerly had. It is also
significant that the Harlingen terminal, according to Thompson's testimony, was
affected primarily by a loss in outbound volume tonnage hauled on straight truck-
load lots,49 which was not in the ordinary sense handled by the city pickup and
delivery men. In this regard, Gomez testified that during this tenure of employment
there were no layoffs because of slow business. It is also significant that even
though Thompson told Gomez he would recall him when business picked up, the
payroll record reveals that one Jesus Mercado was hired in June 1959.. Finally,
Thompson admitted interrogating Gomez about the Union contacting him. He
stated that thereafter Gomez asked his advice about the Union. He told Gomez
that Alamo "was not interested and would appreciate him going along with us,"
and by this he meant he did not want Gomez to join the Union. He also admitted
making some uncomplimentary remarks about the Union.
For the most part the testimony of Mendez and Gomez was undenied or corro-
borated in substance by Thompson. I was also impressed with their sincerity and
I credit their testimony. Thompson, for all practical purposes, admitted carrying
on Respondent's unalterable opposition to the unionization of its employees. This
together with the timing of the discharges (within a week after Mares said he
would "run them off"), the threats to engage in reprisals, against employees who
joined or supported the Union, and the fact that Aleman was put on full-time work
simultaneously with the discharges of Gomez and Mendez, convinces me and I
find that Gomez and Mendez were discharged because of their union memberships
and activities in violation of Section 8(a)(3) of the Act.
I also conclude and find that by the following enumerated acts and conduct,
Respondent interfered with, restrained, and coerced its Harlingen terminal em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, in violation
of Section 8(a)(1) thereof: (1) Thompson's interrogation of Gomez regarding
employees who signed union cards; (2) Mares' interrogations of Mendez and Gomez
regarding their signing of union cards; and (3) Mares' threat to "run off" Gomez
and Mendez because of their union memberships and activities.
H. Discharges; interference, restraint, and coercion at the Laredo terminal
Rodolfo Ochoa and Raul Ochoa are brothers who became employed by Re-
spondent in 1949 and 1952, respectively. They were discharged on March 12, 1959.
4° Thompson explained that straight truckloads are loaded by the shipper with his labor,
and Respondent merely sends a tractor driven by its driver to spot the trailer who then
drives into the terminal From the terminal the load is either interlined or taken by a
.regular line driver to its destination.
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1237
Rodolfo was a truckdriver on a regular city delivery route and worked contin-
ously from the time of his employment in 1949 until he was terminated. In addi-
tion to driving the gasoline engine trucks on his regular route, Rodolfo considered
himself a competent driver of diesel engines. The Laredo terminal had only two
other drivers besides Rodolfo who had regular routes.
Raul's primary job was checking freight at the terminal. On occasion he was
assigned to drive gasoline as well as diesel engine trucks. He was the only checker
who also drove trucks.
Rodolfo and Raul testified they attended union meetings in October 1958 and
on February 18, 1959. They signed union membership cards on March 1, 1959.
Raymond Gillespie, Respondent's terminal manager at Laredo, talked with the
brothers individually about their union memberships and activities about 2 weeks
before he discharged them. Rodolfo testified that Gillespie also inquired whether
he had talked to anyone about the Union, and referred specifically to the Solis
brothers of San Antonio,50 and Schaeffer, the local union's president. Rodolfo
denied that he had. Raul testified that Gillespie called him to the platform on the
outside of the terminal while he was working and asked if he had talked to the
Solis brothers of San Antonio. Raul denied that he had talked with them.
Gillespie then told Raul that the Solis brothers were from the Union, and in case
the Union won, he (Gillespie) was told by J. Leo Walker that Respondent would
close the business.
On March 12, Franciso Alvarado, dock foreman, informed Rodolfo that Gillespie
said he was discharged. Rodolfo testified that Gillespie confirmed the fact that he
was discharged and added that Raul was also discharged. Gillespie gave as the
reasons for the discharges, (1) in the case of Rodolfo, a complaint against him from
customer Manuel Rodriquez, and (2) in the case of Raul, that he had broken the
bar on tractor No. 501. Gillespie told Rodolfo the discharges were ordered by
Mr. Walker.
Raul had the day off on March 12. Early on the morning of March 13, Raul went
to Gillespie's home to talk with him about the discharge. Raul testified that
Gillespie said it was on orders from Aycock and Walker for having broken the
bar on the tractor.51 Raul protested that he and his brother were old workers in
point of seniority and furthermore employee Cuelar had also broken the bar which
had been replaced on the tractor. After some further conversation, Gillespie told
Raul he could not do anything, the discharges were on orders from Walker and
Aycock.
On March 13, Rodolfo, Raul, their mother, and Rodolfo's wife, Estela, who
spoke English fluently and acted as interpreter, went to Respondent's San Antonio
office to see J. Leo Walker. Estela testified credibly and without denial that they
met J. Leo Walker and told him they came to San Antonio to find out why the
Ochoa brothers had been discharged. Walker asked when they were fired. He
was told the previous day. Walker called Aycock to his office and asked him why
the brothers had been fired. Aycock gave as reasons that Raul had broken a
tractor axle and Rodolfo had a customer complaint against him. Estela remarked
that employee Cuelar had also broken the tractor axle and wanted to know why
he had not been terminated. Aycock thereupon said there were other reasons for
discharging the Ochoas. He said they were ignorant and did know how to speak
English He added that "they are always monkeying around with the customers."
At this point Aycock and Estela stepped outside of Walker's office, where they were
without the hearing of the others. Aycock asked Estela if her husband and his
brother had signed any paper. Estela said "no." Aycock- asked if they had
spoken to the Solis brothers or to the boys that belonged to the Union in Corpus
Christi. She answered "no." Aycock wanted to know if she was "sure." She
replied that she was. With Estela acting as interpreter, Raul -told Aycock they
wanted "fairness" and they were only asking for their jobs. Aycock then inquired
of Raul through Estela if they had talked to any union people, mentioning Schaef-
.fer's name, or if they had signed any union papers The answer was "no." Aycock
said he was "always a fair man," that he would investigate, that in the interim they
were suspended rather than fired, and he would write them a letter the following
week. They have not heard from the Respondent and have not been reinstated.
In defense of its discharges of the Ochoas, Gillespie testified that acting upon
instructions from Aycock, he posted a notice on the Laredo bulletin board on or
50I have heretofore found that Jose Solis was discriminatorily discharged from the San
Antonio' terminal on March 2, 1959, in violation of Section 8(a) (3) and (4) of the Act.
5' Raul testified without contradiction that in the 3 weeks between the time the axle
was broken and his discharge nothing was said to him by anyone in management about
this incident
1238 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about March 5 to the effect that on March 12 two men would be terminated because
a reduction in force was absolutely necessary Thereafter he reviewed the employ-
ment records of these employees and decided that the two men to be discharged
were Rodolfo and Paul Ochoa, because of the following factors: "Difficulties with
customers, abusive to their fellow employees, continuously agitating and bringing
about dissatisfaction among all, inability to operate correctly diesel equipment and
inability to learn or refusal to learn to comprehend and understand the instructions-
on the correct operation of diesel equipment." In answer to a leading question,
Gillespie stated he also considered the ability of the employees to speak, read, and
write English. Referring specifically to Raul Ochoa and his duties as a checker,
Gillespie testified that because Raul did not read bills it was necessary for the dock
foreman or his assistant to read them, call off the number of pieces of freight and
the name of the consignee, translate all these items from English to Spanish, and
Raul would then read the address tag on the freight and check if the item was or
was not there. According to Gillespie, if the checker was able to read and write
English, he could process the entire bill himself. The amazing thing about his
complaint, which I consider purely an afterthought, is that Respondent over a period
of 10 years of continuous employment in the case of Rodolfo and 7 years in the case
of Raul accepted the fact that they were unable to read or write English well and
took 'no action because of this circumstance until after they were interrogated about
their union activities. Moreover, it must be pointed out that Laredo is a border
city, many of whose inhabitants speak Spanish or are bilingual. Indeed, Oscar
Rodriguez, a Respondent customer called to testify in its behalf on another aspect
of this" case, stated that he-never spoke English to Respondent's employee, Garcia,
when the latter made deliveries to him, because they always conversed in Spanish.
With regard to customer relations, Gillespie admitted that the Ochoas got along
very well with some customers, but he had reports of dissatisfaction from customers
Oscar Rodriguez and Philip Moore. Rodolfo admitted that about 8 or 9 months
prior to his discharge he had a dispute with Oscar Rodriguez regarding the place-
ment separately of white 'wall tires from black tires, which he was delivering.
Rodolfo maintained that he continued to make deliveries to Rodriguez up until
the time he was discharged.52 He denied having any difficulties with Moore. He
testified that nothing was ever said to him about customer complaints by anyone in
management.
It appears clear from the record that customer complaints did not loom very
important or take on any special significance with Respondent until the time of the
hearing herein, because as Gillespie admitted he never spoke personally with the
Ochoas about these matters, but rather discussed it in a group with all of the other
employees.
So far as the Ochoas being able to correctly operate diesel equipment is concerned,
little discussion is necessary, suffice it to say that Gillespie admitted he permits 5 of
the 14 Laredo drivers to operate diesels in spite of the fact that he considers only 1
of the 5 to be a competent diesel operator.
Gillespie did not impress me as a credible witness His testimony lacked candor
and was inconsistent. He testified in a manner which indicated to me more of a
concern not to give answers unfavorable to Respondent than to disclose the true
facts as he knew them. Rodolfo and Raul Ochoa were responsive and cooperative
witnesses, who throughout their testimony impressed me with their sincerity and
forthrightness. Estela Ochoa's testimony was not contradicted. She impressed
me as an honest witness. I credit the testimony of Rodolfo, Raul, and Estela Or-boa.
Under the circumstances set forth above and on the whole record and further
in view of the inconsistent reasons given for the discharges, the lack of warning
that their work was unsatisfactory and the timing of the discharges (shortly after
they were interrogated about union membership and activities), I find that Respond-
ent discriminatorily discharged Rodolfo Ochoa and Raul Ochoa in violation of
Section 8(a)(3) of the Act. I find further that the interrogation of the Ochoas
and other Laredo employees regarding their union memberships and activities inter-
fered with, restrained, and coerced the Laredo terminal employees in the exercise of
.the rights guaranteed in Section 8(a)(1) of the Act.
52 Oscar Rodriguez testified that during the course of the dispute Rodolfo made some
abusive remark to him, which he could not remember, even though he was able to state
precisely what he said to Rodolfo. He also testified, although lie was not sure, that the ,
incident took place 4 or 5 months before March 12. He admitted that ,he heard nothing
further about the matter until the day of the hearing when Gillespie asked him to testify
on behalf of Respondent and they talked about what he would testify. Rodriguez did not
impress me as a truthful witness, I do not credit his testimony.
ALAMO EXPRESS, INC., AND ALAMO CARTAGE COMPANY 1239
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of Respondent set forth in section 1, above, have
a close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes threatening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce , it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of employment of John Woodard , Willie Bonner, Leonard Eythell , Willie Sallier,
Boyce Hicks, Emory Bowens, Lorenzo Jackson, Robert McGrue, Louis Fabala,
Vincente Pena, Jesus Ybarra, Pedro Gomez, Ricardo Mendez , Rodolfo Ochoa, and
-Raul Ochoa in violation of Section 8(a)(3) of the Act, and Chester Roy, Taylor
Gray, Jose Solis, Leroy Jackson, and Alberto Uresti in violation of Section 8(a) (4)
and (3 ) of the Act , it will be recommended that Respondent offer to each immediate
and full reinstatement to his former or substantially equivalent position without
prejudice to their seniority or other rights or privileges and make each whole for
any loss of pay suffered by reason of the discrimination against him by paying to
each a sum of money equal to that which he would have earned in the employ of
the Respondent from the date of his discharge to the date of Respondent 's offer of
reinstatement , less his net earnings elsewere, in accordance with the formula estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289. The record
shows that Chester Roy entered the Armed Forces of the United States sometime
'subsequent to his discriminatory, discharge and may not be available for immediate
reinstatement . In order to restore him to his position and thus effectuate the
policy of the Act, it is recommended that the Respondent , upon application by
Chester Roy, made within 90 days of his discharge from the Armed Forces, offer
him reinstatement without prejudice to his seniority or other rights and privileges.
It is also recommended that the Respondent be ordered to notify Chester Roy that
he will be reinstated upon application within 90 days of his discharge from the
Armed Forces; and that the Respondent make him whole for any loss of earnings
he may have suffered because of the Respondent 's discrimination against him, by
payment to him of a sum of money equal to the amount he would normally have
earned as wages between the date of his discharge and the date when he entered
'the Armed Forces, and between a date 5 days after his timely application for rein;
statement and the date of the offer of reinstatement by Respondent , less his net
earnings during these periods. It is also recommended that the Respondent be
ordered to pay Chester Roy immediately that portion of his net backpay accumulated
between the date of his discriminatory discharge and the date when he entered
into the Armed Forces, without awaiting a final determination of the full amount
of his award . Hunt Heater Corporation , 108 NLRB 1353 ; Stationers Corporation,
96 NLRB 196.
Having also found that the Respondent discharged Foreman Antonio Gil in
violation of Section 8(a)fl) of the Act, and thereby interfered with, restrained,
and coerced its nonsupervisory employees in the exercise of their rights guaranteed
under Section 7 of the Act, it will be recommended in order to restore to the non-
supervisory employees their full freedom to exercise these rights that Respondent
offer to Antonio Gil full reinstatement to his former or substantially equivalent
position , without prejudice to his seniority or other rights and privileges , and make
him whole for - any loss of pay suffered by reason of such discharge , by payment
to him of a sum of money in accordance with the Board 's Woolworth formula,
supra.
It has also been found that the Respondent conducted an antiunion campaign by en-
gaging in surveillance of union meetings and by means of interrogation , threats, and
other illegal conduct in order to interfere with and intimidate the employees from
exercising their rights under the Act . By the number, variety , and seriousness of
the unfair labor practices thus engaged in, the Respondent has revealed such a
fundamental antipathy to the objectives of the Act as to justify the inference that
.the commission of other unfair labor practices may be anticipated in the future and
it will be recommended , therefore , that Respondent be ordered to cease and desist
from in any manner interfering' with , restraining, or coercing its employees in the
exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Locals 657 and 968, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen , and Helpers of America , are labor organizations within the meaning
of Section 2(5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of some
of its employees , thereby discouraging concerted activities and membership in the
aforesaid Unions, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 ( a) (3) and (4) of the Act.
3. By discharging a foreman in order to discourage its. employees ' union activities
and membership the Respondent has engaged in unfair labor practices within the
meaning of Section 8 ( a) (1) of the Act.
4. By the above unfair labor practices , and by otherwise interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not commit unfair labor practices by discharging George
Askey and Selso Gil.
[Recommendations omitted from publication.]
Southwest Hotels, Inc. and Chauffeurs , Teamsters & Helpers
Local 878, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America . Case No. 26-CA-
783. June 17, 1960
DECISION AND ORDER
On March 7, 1960, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the Charging Union filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
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 entire
record in this case, including the Intermediate Report and the excep-
tions, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
1 we agree with the Trial Examiner that the Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the policies of the Act to assert juris-
diction herein . For a detailed analysis of the jurisdictional facts concerning the Respond-
ent see : Southwest Hotels , Inc., 126 NLRB 1151.
127 NLRB No. 154.