Checker Cab Co.

National Labor Relations Board - Board Decisions

Mar 24, 1969

175 N.L.R.B. 20 (N.L.R.B. 1969)

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace Cab Company, d/b/a Checker Cab Company
and Local 5 , Transportation Services and Allied
Workers of Seafarers International Union of
North America , AFL-CIO. Case 14-CA-4507
March 24, 1969
DECISION AND ORDER
BY MEMBERS FANNING , JENKINS AND ZAGORIA
On December 16, 1968, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and supporting
brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and
recommendations' of the Trial Examiner, as
modified below.
The Trial Examiner found that by removing
Robert Redmond's cab from service in order to
discourage the union activities of its driver, Charles
Gardner, and by discriminatorily discharging
Gardner thereafter, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act. In the absence of
exceptions, thereto, we adopt these findings and
conclusions.
The General Counsel, however, has filed
exceptions to the Trial Examiner's recommended
remedy, some of which we believe have merit.
Rather than recommending reinstatement, backpay,
and the usual posting of notices with respect to
Gardner's unlawful discharge, the Trial Examiner
has adopted as his recommended remedy the terms
of a settlement agreement negotiated by the parties
prior to the hearing, but which the Respondent had
refused to honor and approval of which had been
withdrawn by the Regional Director.'
'This agreement , as adopted , provided that Respondent would pay
Gardner $1,300 for "lost pay" and $151 to Redmond for the loss of
services of his cab . Earlier in the course of the proceedings the Regional
Director and the Trial Examiner had approved this settlement agreement
and later, when the Respondent had first refused to comply with its terms,
the Regional Director withdrew his support of the settlement and moved to
We do not believe that the terms of the aborted
settlement agreement should control or otherwise
effect the remedy in this proceeding. Rather, we
believe that the public interest requires that the
terms of the remedy be determined by the nature of
the violation and not by the interests of particular
parties. Accordingly, we find that the remedy will
best effectuate the purposes of the Act if it embraces
the usual reinstatement, backpay, and the posting of
the notice. We shall so order.
Nor do we find the Trial Examiner's
Recommended Order that cab owner Redmond be
recompensed for the loss of services of his cab in the
amount of $151 to be appropriate under the
circumstances presented. The fact that the ordered
withdrawal of the cab from service may have been
found to have been a discriminatory act directed
against the cab's driver, Gardner, cannot obscure
the fact that the cab was then in need of substantial
repairs if it was to meet vehicle standards imposed
by a city regulatory agency. Redmond admitted that
the repair responsibility for the cab was his, and
that the cab could not pass inspection had it
remained in service. He further testified that he did
not thereafter put the cab back in service, but
rather, because of the cost involved in bringing the
cab up to a standard which would permit it to pass
city inspection, decided to sell the cab, and a few
months later did in fact sell it. We do not find it
appropriate, therefore, as did the Trial Examiner, to
order the Respondent to compensate Redmond, a
third party and a nonemployee, for the loss of
services of his cab. In these circumstances, we deem
an order requiring Respondent to cease and desist
from ordering withdrawal of cabs from service for
discriminatory reasons sufficient to remedy the
violation. We shall revise the Recommended Order,
accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Ace
Cab Company, d/b/a Checker Cab Company, St.
Louis, Missouri , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from discouraging
membership in Local 5 , Transportation services and
Allied Workers of Seafarers International Union of
North America, AFL-CIO, or any other labor
organization , by removing from service for
discriminatory reasons any cab used by its
employees or by discriminatorily discharging any of
its employees or discriminating in any other manner
reschedule the hearing . At the rescheduled hearing the Trial Examiner took
evidence respecting these matters and found that the settlement agreement
was validly entered into, and he therefore recommended that the Board
order the Respondent to comply therewith. However , upon an interim
appeal taken by the General Counsel, the Board ordered the Trial
Examiner to commence with a hearing on the merits.
175 NLRB No. 8
CHECKER CAB CO.
with respect to their hire or tenure of employment
or any term or condition of employment.'
2. Take the following affirmative action which
will effectuate the policies of the Act: -
(a) Offer to Charles Augustus- Gardner immediate
and 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 earnings he may have
suffered by payment to him of a sum of money
equal to that-which he would have earned from the
date of his discharge to the date of the offer of
reinstatement, less his net earnings during such
period (Crossett Lumber Company, 8 NLRB 440).
Said backpay to be computed on a quarterly basis
in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, together with
interest thereon at the rate of 6 percent per annum.
Isis Plumbing & Heating Co., 138 NLRB 716.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under these regulations.
(c) Post at its plant and offices at St.' Louis,
Missouri, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 14,
after being duly, signed by Respondent's
representative, shall be, posted- by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional, Director for Region 14, in
writing, within 10 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices
not specifically found herein. -
'In the event that this Order is enforced by a decree of the United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 Local 5,
Transportation Services and Allied Workers of
Seafarers International Union of North America,
AFL-CIO, or in any other labor organization of our
employees, by removing from service for discriminatory
21
reasons any cab used by our employees or by
discriminatorily discharging them or in any other
manner discriminating against them in regard to their
hire or tenure of employment or'any term or condition
of employment.
,WE WILL offer to Charles Augustus Gardner
immediate and 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 earnings he may have
suffered by reason of our discrimination against him.
WE WILL notify Charles Augustus Gardner, if
presently serving in the Armed Forces of the United
States, of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
Dated By
ACE CAB COMPANY,
D/B/A CHECKER CAB
COMPANY
(Employer)
(Representative) (Title)
. This notice must remain posted for 60 consecutive days
from the' date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1040 Boatmen's
Bank Building, 314 North Broadway, St. Louis, Missouri,
Telephone 314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE '
LOWELL GOERLICH, Trial Examiner: This matter
originally came before the Trial Examiner on April 8,
1968, upon the complaint of the General Counsel, for the
National Labor Relations Board, herein referred to as the
Board, dated January 31, 1968, pursuant to a charge filed
by Local 5, Transportation Services and Allied Workers
of Seafarers International Union of North America,
AFL-CIO. On that date all parties executed a settlement
agreement which was approved by the Board's Regional
Director for Region 14 and the Trial Examiner.
Thereafter, on July 19, 1968, the General Counsel filed a
motion to. reschedule hearing in which it was alleged that
Respondent Ace Cab Company, d/b/a Checker Cab
Company, had failed to comply with the terms of the
settlement agreement and that the Regional Director had
withdrawn his approval of the settlement agreement.
Hearing was commenced upon said motion in St. Louis,
Missouri, on August 15, 1968, at which time Arthur S.
Margulis, without objection, withdrew as counsel for the
Respondent. The Respondent also appeared by Barbara
Costello, president of the Respondent. Continuance was
granted so that the Respondent might obtain counsel.
Thereafter the hearing reconvened on August 26, 1968, at
which time Kenneth V. Byrne appeared as counsel for the
Respondent.
The parties stipulated at the hearing that at all times
material herein, Ace Cab Company and Checker Service
Corporation had been a single-integrated business
enterprise and that during the year ending December 31,
1967, Ace Cab Company had a gross income in excess of
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$500,000 and that the operations of Ace Cab Company
are similar to the operations of Supreme , Victory, and
DeLuxe Cab Companies , as described in the Board's
Decision in the case reported in 160 NLRB 140 bearing
that title , that the aforesaid $500,000 gross income of the
Respondent is composed of an amount of around
$220,000 which is gross receipts of the Respondent and
that the remainder is made up of the gross income of
individuals who operate cabs which are associated or
affiliated with the Respondent in the same manner as set
forth in the case above mentioned . Credible testimony also
established that during the period above mentioned the
Respondent consumed gas and fuel oil in the amount of
$40,800 which originated outside the State of Missouri.
It was admitted that at all times material herein the
Respondent is and has been a corporation duly organized
under and existing by virtue of the laws of the State of
Missouri , and has maintained its principal office and place
of business in St. Louis , Missouri , where it is now and, at
all times material herein , has engaged in the furnishing of
taxicab services within the St. Louis, Missouri, area.
A current collective-bargaining agreement between Ace
Cab Company , Inc., doing business as Checker Cab, and
Local 5, Transportation Services and Allied Workers of
Seafarers International Union of North America,
AFL-CIO , governed the terms and conditions of
employment of the taxi drivers, including those who
worked directly . for the Respondent and those individuals
who operated cabs which were associated or affiliated with
the Respondent.
Based upon the foregoing the Trial Examiner held that
at all times material herein the Respondent is and has
been an employer as defined in Section 2(2) of the
National Labor Relations Act, as amended , herein called
the Act , and engaged in operations affecting commerce as
defined in Section 2 (6) and (7) of the Act.
Both the General Counsel and the Respondent
maintained that the settlement agreement should be
vacated and the issues raised by the complaint litigated.
The Union requested that the Trial Examiner enter an
order recommending to the Board "that it issue its order
that the Respondent comply in all respects with the
settlement agreement."
The Trial Examiner heard evidence and argument upon
these matters.
The credible evidence disclosed that the Respondent
with the advice of counsel executed the settlement
agreement with full knowledge of its content and
consequences , and that the Respondent posted the notice
required by the settlement agreement which among other
things contained,
We will make owner Robert Redmond whole for loss
of cab rental because we removed his cab from service
by paying to him the sum of $151.
We will pay $1 ,300 to Charles Gardner , who has
waived his right to reinstatement, for pay lost because
his cab was removed from service because he was fired.
Thereafter the Respondent refused to pay the money
due and owing under the settlement agreement.
There was no claim made or evidence submitted
indicating that the Respondent had engaged in any unfair
labor practices subsequent to the date of the settlement
agreement.
Upon this state of the record the Trial Examiner held
that good cause had not been presented which would
justify the vacation of the settlement agreement and
recommended to the Board that the Respondent be
required to abide by the settlement agreement and make
payments in accordance with its provisions. The Trial
Examiner further recommended, in event the Respondent
did not make the payments pursuant to the settlement
agreement within 10 days, that the Board enter an order
requiring the Respondent to make additional payment of
such amounts as may have accrued since the date the
settlement agreement was executed.'
The General Counsel filed a direct appeal from the
Trial Examiner's ruling . The Board entered the following
order: "It is hereby ordered that General Counsel's
request for special permission to appeal Trial Examiner's
ruling refusing to vacate settlement agreement and
conduct hearing be, and it hereby is, granted, and that the
appeal be, and it hereby is, granted, the Trial Examiner is
reversed and he is hereby directed to conduct hearing on
the complaint."
Pursuant to such direction the case came on for hearing
on August 29, September 16, and October 14, 1968, at St.
Louis, Missouri. Each party was afforded a full
opportunity to be heard, to call, examine, and
cross-examine witnesses , to argue orally on record, to
submit proposed findings of facts and conclusions of law,
and to file briefs. All briefs have been carefully considered
by the Trial Examiner.
The issue before the Trial Examiner is whether the
Respondent, because Charles Gardner, the union steward,
had engaged in union activity , removed from service the
The Trial Examiner commented:
It is the Trial Examiner 's opinion that he has beard no good cause
why the Respondent at this late date should be entitled to repudiate its
agreement which was solemnly entered into by its counsel and be
allowed to relitigate the issues in this case and cause the expense and
delay, and the continued disturbance of interstate commerce which
always results from this type of litigation.
The Trial Examiner further commented:
The Trial Examiner is of the further opinion that the General Counsel's
claim that the settlement agreement should be vacated because it has not
been complied with does not constitute good cause for vacating it either.
Had there been some subsequent unfair labor practices or something
of that character , then the Trial Examiner would approach the whole
situation from a different point of view , but here we simply have a
settlement agreement which was solemnly entered into by the parties, the
purpose of which was to resolve issues in a case, then we find one party
that refuses to abide by the terms of such settlement agreement. The
Respondent has had its day in court . It appeared , it had an opportunity
to exercise all the rights of causing the General Counsel and the
Charging Party to present their case, it chose not to do that, instead it
waived those rights and composed any differences that it might have, as
the General Counsel did his claim , into a settlement agreement. Such
agreement ought not to be treated lightly. The purpose of the agreement
was to resolve a dispute which arose in interstate commerce. Such
settlement agreements are encouraged , not only by the Board, but by the
courts and by the statute itself.
The Trial Examiner is of the opinion that at this time if he vacated
the settlement agreement he would be acting in contradiction of the
declared policy of the Act , and in reopening this case he would be
contributing to discord and disharmony in interstate commerce, and
keep alive issues which have been resolved.
The request of the General Counsel to vacate the settlement
agreement is denied.
On the other hand , the Board cannot obviously countenance a
Respondent or a Charging Party, or any other party to a settlement
agreement who refuses to abide by the terms of such agreement.
Thus, it appears to be in order that the Trial Examiner recommend
some action on the part of the Board which will effectuate the policies of
the Act and obtain what all parties agreed was the preferred method or
means of settling a dispute which arose within the terms of the Act.
The Trial Examiner has considered , therefore, the motion made by the
Charging Party that the purpose of the Act may be best effectuated at
this point by recommending an order that the Respondent be required to
abide by the settlement agreement and make payment in accordance
therewith....
CHECKER CAB CO.
cab owned by Robert Redmond and later discharged
Gardner in violation of 8(a)(1) and (3) of the Act.
Upon the whole record and upon his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE LABOR ORGANIZATION INVOLVED
Local 5, Transportation Services and Allied Workers of
Seafarers International Union of North America,
AFL-CIO, herein called the Union ; is now and has been
at all times material herein , a labor organization within
the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
Charles Augustus Gardner was employed by the
Respondent on October 16, 1962, as a taxicab driver. Up
until November 30, 1967, he operated taxicab 102 which
was the property of Robert Redmond to whom he paid
$12 per day rental. Redmond paid the Respondent $133 a
month for affiliation with the Respondent, for which the
Respondent furnished radio dispatcher service and
insurance . Gasoline and petroleum, products were required
to be purchased from the Respondent.
,Gardner became a shop steward for the Union in April
1967.
In June 1967 Gardner commenced picketing the
Respondent together with James Matthews, the Union's
president. The Respondent had failed to pay money to the
union welfare fund as required by the labor agreement.
The money was paid.
The next Sunday after Gardner picketed he and several
other employees did not report for work.' On the
following Monday, Gardner was the first absentee "called
in" by Chappel Monroe, the Respondent's personnel
director and manager , and asked for an explanation. He
told Monroe that he was "tired" and "took off." Monroe
replied, "Well, you are just going to take off three more
days." Additionally Monroe observed that the Respondent
"might as well start right there and enforce the contract"
and that from "now on" if he didn't work on the days he
was "supposed to work," he was going to be laid off.
Gardner protested his suspension and that of the other
drivers on the ground that all employees had not been
treated alike . After a conference with President Costello
the suspended drivers were returned to work.
In June 1967 Gardner informed President Costello that
a water fountain should be provided and the restroom
should be kept clean, so that men could "do what they
have to do." This was done.
In October 1967 Gardner became the Union's chief
steward.
In the same month the Respondent's cabs were "pulled
off" the street because the Respondent didn't pay a
security bond. Gardner participated in pressing a claim for
a prorated refund for all owners for the 16 hours during
which the cabs lost service. After a conference with
President Costello, Gardner told Monroe that they were
to refund the money. Monroe said the Respondent would
pay the money only to those who asked for it. Gardner
protested. Later in the day Monroe said the owners would
get $2.25. Gardner told Monroe this was not the right
'The labor agreement required that "all drivers must work a six (6) day
period . All even numbered cabs shall work even numbered Sundays and
odd numbered cabs will work odd numbered Sundays "
23
figure but it should amount to about $12.50. Monroe said
that President Costello would never pay such amount and
asked Gardner who was pushing the payment. Among
other things Monroe said, "Somebody is pushing it and
whoever is pushing it will `be sorry." Monroe and Gardner
then met with President Costello and she insisted that she
would pay nothing. Gardner 'then signed -and presented a
grievance to President Costello at which time he said to
her, "Mrs. Costello, if you would just listen to me a
moment and take a little advice, you will save yourself
some money." Gardner continued: "What has happened
as a result of filing ;of this grievance is concerning every
man that was involved that was suppose to work that
Sunday, which means about 3 dollars per hour, forty-eight
dollars for the sixteen hours, less his expenses which
would be about twenty-five per day per man he would
have to pay out. On the other hand, you just have to give
the owner twelve fifty." Mrs. Costello replied that "she
didn't want [his] advice, that she would see her attorney
and [he should] get out of [her] office she was busy." The
grievance was finally settled for the compromise amount
of $10 a cab.
On November 20, 1967, Gardner spoke to Monroe
about the Respondent's delinquency in payments to the
welfare fund which were due on November 5 and 20. In
that these payments were not paid Gardner commenced
picketing the Respondent on November 21, 1967.
On November 22, 1967, Evelyn. Dennis testified that
during a phone conversation Monroe said to her, "Man,
your man, Gardner, is out here picketing the pumps, and
he has been brainwashed by Matthews and Milton Stanley
both, and I am going to get my chance yet to fire him."
Dennis "stopped him" and said, "No, let me talk to
him." Monroe 'responded, "You better talk to him
because I am going to fire him."'
The picket line, with Gardner picketing continued until
November 29, 1967, at which time the delinquent welfare
payments were made
On the next day, November 30, 1967, when Gardner
returned to work from picketing he was denied a work
permit. He was told he had "a bad looking fender and
Mrs. Costello wanted the cab off the street." The accident
which had caused the damaged fender had occurred in
September 1967 and had been reported to the Respondent;
it was known to Mrs. Costello. Nevertheless Gardner had
been permitted to operate the cab from the time of the
accident until November 30 with the damaged fender.
During this period his, cab had neither been removed from
the streets by the Respondent nor by the city of St. Louis.
The city of St. Louis requires an annual cab inspection
for licensing. In addition random inspections are required
when the city receives information that a cab needs
inspection. When cabs are notified to report for random
inspection it is not the general practice to require them to
be removed from the streets.' The Respondent received a
random notice on December 1, 1967, citing for inspection
cabs 102 (Gardner's cab), 141, 169, 183, and 214. These
cabs with the exception of 102 appeared for inspection on
December 19, 21, 27, and 29, respectively. None of the
cabs was removed from service by the city or the
Respondent after the inspection. Cab 141 continued on the
'While Monroe appeared as a witness he did not deny the testimony of
Dennis . Dennis' testimony is credited
'Lawrence E Otterbach , who had been an investigator in the city street
department , testified that it was not the city 's general practice to remove
the cab from the streets for fender damage at the time the notification for
the random inspection was sent.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
streets although its headlight was knocked out and a
fender was damaged . Cab 211, one of the Respondent's
other cabs, after a random inspection , was allowed to
remain on the streets by the city and the Respondent
although the left fender and the rear bumper were
damaged.
On December 1, 1967, Gardner began driving Edward
Johnson's cab 189 for the Respondent. On December 9,
1967, Gardner had a brake failure in cab 189. Brake fluid
had escaped from the braking system. At the time, with a
fare, Gardner was approaching a car which had stopped
for a car about to make a left turn. His cab hit the car.
When the police arrived Gardner "had the police take
special note that the brakes had gone out and there was
fluid out in the street."
Gardner reported the accident to the Respondent and
Supervisor Thomas Jones appeared. Jones found the
brakes to be inoperative and brake fluid on the street.
Gardner's written. report to the Respondent on Monday,
December 11, 1967, in part stated:
I was headed West on Natural Bridge Blvd. at a
speed of about 15 or 20 m.p.h. after having applied the
brakes for a car in front of us which had stopped for
another car in front of it to make a left turn off
Natural Bridge into a side street. When I first applied
the breaks [sic] the cab slowed down and then the
break [sic] tention [sic] suddenly went off and the break
[sic] peddle [sic] fell to the floor and I ran into the rear
end of the car in front of me because of a break [sic]
failure.
Robert Redmond repaired cab 189. He found that the
left front wheel cylinder was "completely out" and that
such condition was caused by wear. He testified that the
resulting leak in the braking system would cause complete
failure of the brakes. Although Gardner appeared on
Monday, December 11, 1967, for a cab, thereafter he
received no assignment.
On December 14, 1967, cabdriver Milton Stanley, a
union steward, overheard Monroe say that Gardner was
fired. Stanley inquired and Monroe said Gardner had been
fired on "orders of Mrs. Costello." Gardner and Stanley
then talked to Monroe who told them Gardner had been
fired because he had a "front-end accident." Monroe also
claimed Gardner had been " tailgating" and that the other
lanes were empty. Stanley and Gardner then tried to see
Mrs. Costello and were informed that she did not have
time to talk with them or "any other damn representative
of the union ." Gardner heard Mrs. Costello comment that
"he is fired and he is going to stay fired and [she didn't]
want to talk to him." Stanley and Gardner then went to
the union hall. Matthews phoned Mrs. Costello, but she
'would not budge. Gardner filed a grievance.
Jones had reported the accident to Mrs. Costello on
Sunday, December 10, 1967, by telephone. On Monday or
Tuesday Jones filed his report of the accident together
with Gardner's report which appeared on the reverse side
of Jones' report. Remarks attached to Jones' report
revealed:
At about 5:15 pm Dec. 9, 1967 Checker Cab 189 was
traverling [sic] West in the 77 hundred block of Natural
Bridge, when a 1964 Chev stopped because of car in
front of it making left turn. Charles Gardner, Driver of
Checker Cab 189 said that when he applied his foot to
brake his cab his brakes had gone out and he was
unable to stop his cab in time to keep from striking the
1964 Chev in the rear causing extensive damage to
Chev. Driver of Chev said he was knock against the
windshield, that he was going to his doctor and the
passenger in the cab was taken to Jewish hospital, and
sent home with a brace on her neck, she is under
doctor's care at home. I spoke with her husband
Sunday evening and he said she was resting well.
In his report Jones did not attribute fault to Gardner
although sometimes he included such findings in his
reports.
According to Mrs. Costello, on Sunday she "came to
the lot and found out that Mr. Gardner had a front-end
accident and how serious the accident was," but she did
not decide to discharge him until she "saw the report the
next morning from Mr. Jones." On Monday afternoon,
December 11, she testified that she told Monroe to tell
Gardner he was through.' According to Mrs. Costello she
did not see Gardner's accident report before she fired him
and didn't "ask him what happened" although ordinarily
she discussed such matters with the employee involved.
She testified, "I had the supervisor's report before me and
that was all I had to have." She, however, admitted that
Jones had told her that Gardner had "told him that the
brakes had failed, had gone out," and indicated that
Robert Wolf, presently manager and vice president of the
Respondent, had tested the brakes and found that they
were out; however, she testified that he "couldn't
determine whether that happened before the accident or
because of the accident."` Nevertheless, Mrs. Costello
made no further investigation nor would she talk with
Gardner.
In answer to her counsel as to "what, if anything," she
took into consideration when she discharged Gardner on
"December 9 or 10 of '67," Mrs. Costello answered, "The
weather,' the size of the street, the time of day it was,
time of traffic, the heaviness of traffic, and many other
things. These are the specifics."'
While Mrs. Costello testified that the "sole reason" for
Gardner's discharge was the accident on December 9,
1967 (a front-end or chargeable accident),' she said she
took into consideration the "warning" she had given him
in "February 67,"'° his "past driving record"" and the
accident he had "on December 9."
'While Mrs . Costello testified that she had Jones' accident report before
her, she denied that Gardner's report was before her or that Gardner had
made a report. The fact that Gardner's report appeared on the reverse side
of Jones' report with the notation on Jones' report at the top "Fill out
both sides" and at the bottom "over" causes the reliability of Costello as a
credible witness to become suspect . Moreover , when Jones teitiliied, he first
said that Gardner did not turn in a report and that he had never seen a
report from him. When confronted with the report he changed his
testimony . The testimony of Jones and Costello raises a question as to
whether the Respondent intended to conceal Gardner's report which plainly
disclosed that the cause of the accident was instant brake failure.
'According to Monroe he also mentioned the faulty brakes.
'Jones' report noted : "weather misty."
'It is indeed significant that these "specifics" did not include the subjects
of instant brake failure , its cause and effect , obvious, important
considerations which would have contributed to whether Gardner was
actually at fault or whether good cause existed for his discharge.
'A "chargeable accident" was interpreted by Mrs. Costello to be
"Whenever it is our fault."
"Gardner had been involved in an accident on February 21, 1967.
According to his testimony, which is uncontradicted, as he approached an
intersection , his cab slipped on a sheet of ice caused by the leakage from a
broken water main and the back end of a Harris cab coming around the
corner connected with "the very tip of [his] left front bumper." As an
aftermath of the accident the next morning Mrs. Costello gave the driver
of the Harris cab and his passenger "S50 each in connection with this
accident ." Gardner was off the night of the accident and returned to work
the next day. Gardner testified that he "did not run into the rear" of the
Harris cab and he denied, as was asserted by Mrs. Costello, that she said
" See page 25.
CHECKER CAB CO. 25
Jones testified that this was the only accident he had
ever investigated involving brake failure.': He testified that
he had investigated a front-end accident involving driver
Stanley who had skidded into a car and determined that it
was his fault. Stanley was not discharged. Jones also had
investigated a front-end accident in which driver
Bnnkley's foot slipped off the brake pedal. He determined
that it was Brinkley's fault. Brinkley was not discharged.
Mrs. Costello recalled a front-end accident in 1967
involving employee Foster. He was not discharged.
The labor agreement between the Union and the
Respondent provided that, "No employee shall be
suspended, discharged or otherwise deprived of
employment or adversely affected in his employment
tenure in the absence of good and sufficient cause."
On the basis of the credible evidence in this case the
Trial Examiner concludes that the accident of December
9, 1967, was not the fault of Gardner, but resulted from
instant brake failure over which Gardner had no control,
facts which were known or could have been reasonably
ascertained by the Respondent had the Respondent
wanted to make inquiry Under these circumstances the
Trial Examiner cannot find that Gardner was discharged
for good and sufficient cause.
Nevertheless "[i]t is true, of course, that `Management
can [still] discharge for good cause, or bad cause, or no
cause at all It has, as the master of its own business
affairs, complete freedom with but one specific, definite
qualification it may not discharge when the real
motivating purpose is to do that which Section 8(a)(3)
forbids.' ""
The Supreme Court teaches that in the consideration of
an alleged discriminatory discharge it is the "`true
purpose' or `real motive' in the hiring or firing that
constitutes the test."" Thus in this case the question is
What was the Respondent's "true purpose" or "real
motive" for the discharge of Gardner.15 The Trial
Examiner is convinced that the "real motive" and "true
to him that if he had "another front end accident that [he] would have to
be discharged " (Mrs Costello testified that he was returned to work with
the warning that "if there was anymore front-end accidents he would be
terminated ") Since there is no credible evidence that the February 21
accident was a front-end accident or that Gardner had ever been involved
in a front-end accident, the subject of front-end accidents in connection
with the February 21 accident was not necessarily germane Thus the Trial
Examiner is prone to believe Gardner's denial that he had not received the
warning Mrs Costello testified that Gardner "had more accidents after
this, quite a few, but he had been hit "
"Mrs Costello did not review Gardner's pnor accident record but relied
upon her memory of his prior accidents Gardner admitted that he had
been involved in 12 accidents in about 5 years of driving Some of these
accidents occurred while Gardner was not in the cab The only alleged
"chargeable accident" was the one which occurred on February 21, 1967
"Jones testified that he investigated over 100 accidents a year for the
Respondent
"N L R B v Transport Clearings, Inc. 311 F 2d 519, 523 (C A 5) The
"mere existence of valid ground for discharge is no defense to a charge
that the discharge was unlawful, unless the discharge was predicated solely
on those grounds, and not by a desire to discourage union activity "
N L R B v Symons Manufacturing Co , 328 F 2d 835, 837 (C A 7) In
the case of N L R B v Whitin Machine Works, 204 F 2d 883, 885 (C A
I), it was said
Although the discharge of an inefficient or insubordinate union member
or organizer is lawful, it may become discriminatory if other
circumstances reasonably indicate that the union activity weighed more
heavily in the decision to fire him than dissatisfaction with his
performance Motivation is an elusive fact
In Solo Cup Company, 237 F 2d 521, 525 (C A 8), it said,
A justifiable ground for dismissal is no defense if it is a pretext and not
the moving cause
purpose" of the Respondent in removing Gardner's cab
from the streets on December 1, 1967, and later
discharging him on or about December 12, 1967, was to
discourage activity on behalf of the Union and
membership in the Union and that thereby the
Respondent violated Section 8(a)(1) and (3) of the Act '°
There seems little doubt that the Respondent
discriminated against Gardner because he, as a union
steward, gave the Respondent a "hard time " Shortly
after he became a steward in April 1967, he picketed the
Respondent's premises. He pressed for a water fountain
and improved restroom facilities. He demanded payment
for owners whose cabs were idled because the Respondent
failed to provide a security bond, at which time Monroe
threatened that "whoever is pushing it will be sorry."
Again he picketed on November 21, 1967, and while he
was on the picket line Monroe, referring to Gardner's
picketing, warned an acquaintance of Gardner that she
"better talk to him because [he] was going to fire him."
On December 1, when Gardner returned to work after
concluding his picketing his cab was precipitously removed
from the street without apparent reason or immediate
need. Upon the occurrence of the very next incident for
which he could have been purportedly discharged, he was
summarily dismissed even though the incident occurred
through no fault of Gardner.
The pretextual nature of Gardner's discharge is
apparent. Other drivers involved in accidents of similar
kind who were at fault were not discharged The decision
to discharge Gardner was made without discussion with
him although the Respondent admitted it was customary
to discuss with a driver his accident before discharge and
offer him an opportunity to explain the accident. The
Respondent refused to meet with Gardner and Union
Steward Stanley or "any damn union representative" as
provided in the first step of the contractual grievance
procedure The Respondent stubbornly refused to consider
the mitigating factor, i.e., Gardner's lack of fault, in the
analysis of the "specifics" weighed in deciding Gardner's
discharge and manifested a mind willfully closed to
uncontroverted proof of instant brake failure as an
element to be considered in assessing the justification for
his discharge. Gardner's prior accident record, including
but one incident of an alleged "chargeable" accident in
February 1967, did not justify a discharge for a
not-at-fault accident."
Thus, from the threats conveyed to Gardner relating to
his activities as a union steward, from the timing of the
removal of his cab from service without immediate need
immediately after his picketing ceased, from the purely
pretextual nature of his discharge as disclosed above, and
"The Supreme Court has said in Local 357 , International Brotherhood
of Teamsters [Los Angeles-Seattle Motor Express] v N L R B, 365 U S
667, 675
""Actual motive, a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-serving In such cases,
the self-serving declaration is not conclusive, the trier of fact may infer
motive from the total circumstances proved Otherwise no person accused
of unlawful motive who took the stand and testified to a lawful motive
could be brought to book " Shattuck Denn Mining Corporation, 362
F 2d 466, 470 (C A 9)
"Cf Shattuck Denn Mining Corp, supra, Socony Mobil Oil Company,
Inc, 357 F 2d 662 (C A 2), and Market Basket, 144 NLRB 1462, 1463
"This appears to have been conceded by Mrs Costello when she
acknowledged that after the February 21 accident Gardner had been
involved in "quite a few" accidents for which he had not been disciplined,
apparently because "he had been hit " From her testimony it seems that
these subsequent accidents were not Gardner's fault for which reason no
action was taken against him
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from a consideration of the credible record as a whole, the
Trial Examiner finds that the "real motive" of the
Respondent was to discourage union activities and
membership in a labor organization.
The removal of Redmond's cab from service in order to
discourage Gardner's union activities caused a financial
loss to Redmond and such loss had the foreseeable effect
of causing Redmond and other cab owners to refrain from
renting their cabs to drivers who might exercise their
Section 7 rights and was violative of Section I of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent occurring in
connection with its operations as herein set forth have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE RECOMMENDED REMEDY
In that the Respondent has committed no subsequent
unfair labor practices and has already posted a notice the
Trial Examiner is of the opinion that no useful purpose
will be served by requiring the reposting of a notice.
In that the General Counsel and the Charging Party
were satisfied that the settlement agreement executed on
April 8, 1967, approved by the Regional Director, Region
14, and the Trial Examiner would effectuate the purposes
of the Act and there having been no subsequent unfair
labor practices committed by the Respondent, the Trial
Examiner recommends, except for the posting of the
notice, that the Respondent be ordered only to comply
with the terms of the settlement agreement. However, in
addition to the payment of $1,300 to Charles Gardner and
$151 to Robert Redmond under the settlement agreement,
interest at the rate of 6 percent per annum shall be paid
on said amounts commencing on April 8, 1967, and
continuing until paid in full.
Conclusions of Law
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and it will
effectuate the purpose of the Act for jurisdiction to be
exercised herein.
3. By removing Robert Redmond's cab from the streets
on December 1, 1967, and by unlawfully discharging
Charles Augustus Gardner, on or about December 12,
1967, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]