Franks Flower Express

National Labor Relations Board - Board Decisions

Jul 16, 1975

219 N.L.R.B. 149 (N.L.R.B. 1975)

FRANKS FLOWER EXPRESS 149
Franks Flower Express and Transportation Employees
Association, a/w District 2, MEBA, AMO, AFL-
CIO. Case 15-CA-5377
July 16, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
KENNEDY
On January 27, 1975, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
Contrary to our dissenting colleague, we find no
basis for reversing the Administrative Law Judge's
denial of the Respondent's motion for a continuance,
requested because of the illness of its principal attor-
ney, George Duncan. The record shows that the firm
of which Mr. Duncan is a member was aware, no
later than October 18, that Mr. Duncan would be
unable to participate at the trial, then scheduled for
October 21. On that latter date, the Administrative
Law Judge granted the Respondent's motion for a 2-
day continuance, until October 23, to prepare its
case . When the hearing resumed, on October 23, a
junior member of Mr. Duncan's firm requested a fur-
ther continuance, which was denied. The Respon-
dent has excepted to this ruling, arguing that the Ad-
ministrative Law Judge "effectively denied the right
of Respondent to counsel of his own choice," and
requesting that the matter be remanded in order that
it be "given the opportunity to put on his case in
chief."
It is well settled that the granting or denial of a
continuance is a matter committed to the discretion
of the Administrative Law Judge and such decision
will not be reversed in the absence of a showing of
abuse. We find no such abuse in this case . Obviously,
the Administrative Law Judge concluded, and we
find, that the 5-day notice was sufficient time for the
firm representing the Respondent to arrange for sub-
stitute counsel, and the Respondent does not allege
that the attorney who tried the case did not have
sufficient time within which to familiarize himself
with the pleadings, or to consult with either Mr.
Duncan or the Respondent. Nor-with regard to the
conduct of the trial-does the Respondent specifical-
ly deny the Administrative Law Judge's finding that
"each party was afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses,
to argue orally on the record, and to submit proposed
findings of fact and conclusions." And there is no
suggestion that the allegations raised were not firmly
joined by the Respondent and its counsel. For, in-
deed, this was neither a complicated nor lengthy pro-
ceeding: During the trial, which lasted one-half day,
the General Counsel presented five witnesses and the
Respondent one.
Moreover, before closing the hearing, the Admin-
istrative Law Judge granted the Respondent addi-
tional time, until November 4, within which to show
"good cause" why it should be permitted to depose
other witnesses, even though the Respondent and its
principal counsel had ample time (42 days) before
the trial to arrange for their appearance.
Thereafter, on November 4, Respondent filed a
motion for continuance in which it alleged that the
testimony of its witnesses was essential and that a
denial of its motion to depose such witnesses would
deprive Respondent of administrative due process.
Respondent further stated that the hearing was post-
poned from October 21 until October 23 because of
the illness of counsel. Respondent did not allege that
the failure of Duncan to appear in any way preju-
diced Respondent's ability to defend itself at the
hearing. In our view, Respondent's failure to indicate
in its motion in what way, if any, it was handicapped
by the substitution of another member of the firm as
counsel vitiates its due process argument. Indeed, the
dissent cites only a few instances of limited import
and ambiguous nature as evidence of Respondent
counsel's alleged lack of opportunity to familiarize
himself with the case. For example, Crawford 's state-
ments concerning Respondent's refusal to admit the
Union's status as a labor organization may not even
have meant that he was unfamiliar with the case, but,
rather, that, although he did not agree with Duncan,
he felt bound to the latter's position on the issue.
Other exchanges relied on by our dissenting col-
league involve purely procedural matters of little or
no consequence in relationship to Crawford's knowl-
edge of substantive issues in the case, such as the
number of exhibits that must be proffered.
On November 12, the proceeding was closed upon
the Respondent's failure to show its case had been
prejudiced and to substantiate legitimate reasons for
its witnesses ' absence from the hearing.'
1 We and our dissenting colleague find no merit in the exception taken to
this latter ruling.
219 NLRB No. 28
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The dissent argues that Respondent was entitled to
the services of the attorney of its choice, citing Great
Lakes Screw Corporation v. N. L. R. B.;2 Mississippi Val-
ley Structural Steel Company v. N. L. R.B.;3 and Smith-
Weik Machinery Corp. v. Murdock Machine and Engi-
neering Co.4 We find those cases inapposite. In Mis-
sissippi Valley the unfair labor practice charges were
based on preelection misconduct, and counsel who
had handled the representation case and was the
only attorney conversant with the alleged miscon-
duct was ill and unable to appear at the unfair labor
practice hearing. The instant case, however, does not
involve any such prior proceeding and Respondent
did not even allege in its November 4 motion for
continuance that Duncan was the only attorney fa-
miliar with the fact and issues of the case.
In Great Lakes Screw Corporation the Trial Exam-
iner, midway through a 23-day hearing, excluded a
party's attorney for contemptuous conduct. The
court of appeals denied enforcement of the Board's
subsequent order, finding that the Board did not ade-
quately specify its grounds for finding counsel's con-
duct contemptuous and that in fact the misconduct
did not constitute contempt.
In Smith-Weik, principal counsel for the defendant
became ill shortly before the trial began and the dis-
trict court judge refused to grant a continuance. The
court of appeals concluded that the refusal to grant
the continuance was error, finding that the case was
complicated, principal counsel was ill, local counsel
was relatively unprepared, and the time for continu-
ance was short. In discussing the facts of the case, the
court further noted that numerous depositions had
been taken in the case and that local counsel did not
have copies of all of them. The instant case, however,
is not particularly complex and Respondent has
failed to show that Duncan possessed any relevant
information not available to Crawford.
We agree that a respondent in an unfair labor
practice proceeding is entitled to its choice of repre-
sentative. In this case, however, Respondent did not
allege at the hearing or in its motion for continuance
that it was denied this right. Moreover, Respondent
was granted the original continuance it requested,
and was represented at the hearing by a member of
Duncan's firm, who may be presumed to have
knowledge of the issues as framed by the pleadings,'
and who was afforded, and took advantage of, the
opportunity to cross-examine the General Counsel's
witnesses and to present a defense.
2 409 F .2d 375 (C.A. 7, 1969).
' 145 F.2d 664 (C.A. 8, 1944).
° 423 F .2d 842 (C.A. 5, 1970).
S In this connection , we note that Respondent was put on notice of the
need to prepare for the hearing by the Regional Director 's denial of the
October 18 request for a postponement
To be sure, the Respondent would prefer to have
the "opportunity" to retry its "case in chief" and,
perhaps, present additional testimony, but the ad-
ministration of justice requires an end to litigation at
some point. And, finding no abuse of discretion by
the Administrative Law Judge in the circumstances
of this case, we are satisfied that the Respondent has
had its day in court.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent Franks
Flower Express, Rose City, Texas, its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(c) of
the recommended Order:
"(c) Post at its Rose City, East Orange County,
Texas, establishment copies of the attached notice
marked "Appendix." lo Copies of said notice, on
forms provided by the Regional Director for Region
15, after being duly signed by Respondent's repre-
sentative , shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER KENNEDY, dissenting:
The Administrative Procedure Act, 5 U.S.C.,
§555(b), provides:
A person compelled to appear in person be-
fore an agency or representative thereof is enti-
tled to be accompanied, represented, and ad-
vised by counsel ... .
A party's right to counsel means the right to the at-
torney of his own choice-an attorney who is famil-
iar with both the facts and the law of the case. Since
the Administrative Law Judge's denial of
Respondent's motion for continuance deprived Re-
spondent of the services of its attorney of choice, I
find the ruling constitutes an abuse of discretion and
denial of due process. Accordingly, I would remand
this case for a new hearing before a different Admin-
istrative Law Judge.
FRANKS FLOWER EXPRESS
On October 18, 1974, Respondent sent a telegram
to the Regional Director requesting a continuance of
the hearing herein then scheduled for October 21.
Respondent asserted that its counsel, George Dun-
can, had developed a staphylococcus infection in his
right inner ear, was under a doctor's care and would
be unable to prepare for and attend the hearing. The
doctor at that time was administering medication to
Duncan and had ordered bedrest through October
22. Since Duncan was the only attorney in his firm
conversant with the facts and legal issues to be devel-
oped at the hearing, Respondent urged that the case
be continued until Duncan had recuperated. The Re-
gional Director denied the motion.
Upon Respondent's oral motion at the outset of
the hearing on October 21, the Administrative Law
Judge granted a 2-day continuance until October 23.
However, when the hearing resumed on October 23,
a junior member of Duncan's firm, Walter Crawford,
appeared "for" Mr. Duncan, "subject to a motion for
continuance . . . ." Crawford presented a letter
from Duncan's physician indicating that Duncan's
ear infection persisted. The physician's prognosis was
that Duncan would be unable to work for an addi-
tional 4 days. The Administrative Law Judge denied
Crawford's motion for an additional continuance as-
serting, "I will not grant you a continuance based
upon the fact that your law firm feels they ought to
have a different lawyer here than yourself."
Section 555(b) of the Administrative Procedure
Act, quoted above, means that a party to an adminis-
trative proceeding is entitled to representation by
counsel of his own choice. In Great Lakes Screw Cor-
poration v. N.L.R.B.,6 the Seventh Circuit found that
the Board had denied administrative due process to a
party whose attorney had been excluded from the
hearing by the Trial Examiner. In discussing section
555(b), the court stated:
This right to counsel has been interpreted to
mean the right to counsel of one's own choice.
Backer v. C.I.R., 5 Cir., 275 F.2d 141, 144
(1961).'
Certainly the statutorily provided right to be
represented by counsel of one's own choice is
fundamental and has been violated by the un-
warranted exclusion of counsel. It is impossible
to soothsay what ill-effects that unwarranted ex-
clusion may have had on the petitioner's case.
Denying petitioner his chosen counsel may have
6409 F . 2d 375 ( 1969).
7 Id at 380.
151
had a prejudicially adverse effect on witnesses
and inhibited succeeding counsel from fully ad-
vancing petitioner's position.
It is axiomatic that if the order of the Board is
found to be premised upon an unfair hearing
then such order must be set aside and the case
remanded to the Board for a new hearing.8
In a case factually similar to this one, Mississippi
Valley Structural Steel Company v. N. L. R. B., 9 the
Eighth Circuit found the Board's denial of a motion
for a month's continuance to be erroneous. There,
petitioner's attorney became ill and could not repre-
sent his client at the hearing. As in the instant case,
he was the only attorney in his firm who was familiar
with the facts. Petitioner requested a month's contin-
uance in order for its attorney to regain his health
and return to work. When the request was denied,
petitioner withdrew from the hearing, since there was
no one in its law firm who could become fully ac-
quainted with the case in the time allocated. After
the scheduled hearing was held, at which only the
Board presented its evidence, the Trial Examiner is-
sued his decision. The court ruled that the Trial Ex-
aminer abused his discretion by denying the motion
for continuance since there was no evidence that the
short postponement would have prejudiced the
Board or the union opposing petitioner. In the in-
stant case, the requested continuance, which would
have postponed the hearing approximately 4 days,
was an even more reasonable request than the
month's continuance which the Eighth Circuit in
Mississippi Valley, supra, found to have been warrant-
ed.10
Contrary to my colleagues' assertion that
Respondent's failure to allege prejudice in its motion
for continuance "vitiates its due process argument," I
conclude that substitute counsel was not sufficient to
provide Respondent with due process. Without cast-
ing any aspersions on the ability of substitute counsel
Crawford, it is evident from the record that he had
not been given sufficient advance notice to complete-
ly familiarize himself with the case. For example,
when the Administrative Law Judge asked him
whether Respondent was standing on the denial, in
its answer , of the Charging Party's status as a labor
organization , Crawford responded, "Your Honor, if
Mr. Duncan denied it, I guess we will have to stand
' Id. at 381
9 145 F 2d 664 (1944) -
10 The majority's statement that "Respondent did not allege that the fail-
ure of Duncan to appear in any way prejudiced Respondent 's ability to
defend itself at the hearing" constitutes a semantical smokescreen . Respon-
dent has alleged throughout this proceeding that failure to grant its motion
for a continuance (based upon Duncan's inability to appear) would consti-
tute a denial of administrative due process. In my judgment, there is no
meaningful difference between what my colleagues find Respondent should
have alleged , and what Respondent has, in fact, alleged
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on it." Likewise, when the Administrative Law Judge
asked him if he objected to admission into evidence
of a prior representation case decision in which it
was found that the Charging Party was a labor orga-
nization, Crawford answered, "We will stand on Mr.
Duncan 's denial, whatever that means ." 11 After
counsel for the General Counsel offered several ex-
hibits into evidence subject to the approval of
Respondent's counsel, Crawford responded, "Your
Honor, I'm not familiar with all the documents."
When counsel for the General Counsel argued that
the Administrative Law Judge should deny
Respondent's motion for a continuance on the basis
that Durel Franks and his drivers had sufficient no-
tice and full knowledge of the instant proceeding,
Crawford responded, "I don't know about that, Your
Honor, I don't know what he knew. All I know is
that he is broken down in Yuma and that informa-
tion was made available to me yesterday, I believe,
through Mr. Duncan. That's the extent of what I
know about it." When counsel for the General Coun-
sel offered into evidence a letter by Mr. Duncan to
Miss Charlotte White, cocounsel for the General
Counsel, in which Duncan stated that notification of
the Union's majority status was made by telegram to
Respondent, Crawford said, "I would object to that,
Your Honor, because I don't know what the facts are
on that."
In addition to factual matters, Crawford was not
as familiar with the law or with Board procedure as
was Duncan. After the General Counsel presented
his case in chief, Crawford informed the Administra-
tive Law Judge, "There's nobody in our law firm who
does labor work up until today other than Mr. Dun-
can." Crawford's unfamiliarity with Board procedure
is evidenced by two exchanges with the Administra-
tive Law Judge. In the first instance, Crawford want-
ed to examine a witness on voir dire concerning the
alleged discriminatee's motel bill, and admitted,
"Your Honor, I'm not thoroughly familiar with the
procedure and perhaps I should wait for cross-exami-
nation . . . ." In the second exchange, after Craw-
ford offered a cargo manifest into evidence, the Ad-
ministrative Law Judge asked him, "Mr. Crawford,
are you familiar with the rule that requires duplicate
copies to be submitted?" Crawford answered, "No,
sir, I am not."
In my judgment, it is a denial of due process for
this Board to require a party to be represented at a
hearing by an attorney who is not fully conversant
with the facts, the law, and the procedure of the
Case. In Smith-Weik Machinery Corporation v. Mur-
dock Machine and Engineering Co.,12 the Fifth Cir-
cuit, through Judge Wisdom, agreed with this posi-
tion by holding that the denial of a continuance to
permit an ill attorney to return to work was not cured
by the use of substitute counsel at the trial. In that
case , a breach-of-contract action, the counsel for
plaintiff became ill and requested an indefinite con-
tinuance. The continuance was granted. When the
trial was set to resume , 2 months later, local counsel
for defendant advised the court that its principal
counsel was now ill with the flu and requested an
additional continuance. Substitute counsel asserted
that he was not adequately prepared to try the case.
The court advised counsel that a continuance would
not be granted under the circumstances. The Fifth
Circuit, in reversing the lower court, held:
In Anglo-American law, with trials based on
the adversary system as the best means of arriv-
ing at a just and legal result, the interests of jus-
tice in this case required that both parties be
represented by able counsel well informed on
the facts and the pertinent law. The illness of the
defendant's principal attorney and local
counsel 's relative unfamiliarity with the case tip-
ped the scales so heavily in favor of the plaintiff
as to effectually deprive the defendant of its
rightful day in court."
I find that here, as in Smith-Weik, supra, Respondent
was deprived of its rightful day in court. 14
In my judgment, Respondent's right to due process
requires a new hearing of this matter in order to pro-
vide attorney Duncan the opportunity to cross-exam-
ine witnesses and present Respondent's case. Ac-
cordingly, I would remand this case for a new
hearing before a different Administrative Law Judge.
11 My colleagues infer from these exchanges that, rather than being unfa-
miliar with the case , Crawford merely felt bound by Duncan 's position on
the issue although he disagreed with it . This inference is, of course, pure
speculation . Nowhere in the record does it appear that Crawford's position
differed from Duncan's.
12 423 F.2d 842 (1970).
131d at 844.
141 specifically reject my colleagues ' attempt to distinguish this case from
Smith-Weik, supra, on the basis that the issues here are "not particularly
complex ." I do not think that a litigant 's right to counsel should hinge upon
a determination by this Board as to the relative complexity of the issues
presented.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice:
FRANKS FLOWER EXPRESS
WE WILL offer Jeryl W. Davis his job or, if his
job no longer exists, a substantially equivalent
job.
WE WILL restore his seniority and pay him the
backpay he lost because we discharged him.
WE WILL NOT unlawfully discharge any of our
employees for the same reason we discharged
employee Jeryl W. Davis.
WE WILL NOT unlawfully ask our employees
whether they have signed union authorization
cards.
WE WILL NOT unlawfully ask our employees
who is involved in the Union or who is the lead-
er or instigator of the Union.
WE WILL NOT unlawfully request employees to
sign any document which suggests that we want
them to repudiate the Union.
WE WILL NOT unlawfully threaten to close
down our business if the Union comes into our
establishment.
WE WILL NOT unlawfully promise our employ-
ees that if they will stick with us and not with the
Union they will have a job as long as we are in
business.
The Act gives all our employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through representa-
tives they choose
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything which interferes
with these rights.
All our employees are free to remain, or refrain
from becoming or remaining, members of a labor or-
ganization.
FRANKS FLOWER EXPRESS
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH , Administrative Law Judge: The
charge filed by Transportation Employees Association,
a/w District 2, MEBA, AMO, AFL-CIO, herein called the
Union, on August 1, 1974, against the Respondent , Franks
Flower Express , was served on the Respondent on or about
the same date . A complaint and notice of hearing was is-
sued on September 11, 1974. The complaint charged that
the Respondent had committed certain violations of Sec-
tion 8(a)(1) of the National Labor Relations Act, as
amended , herein referred to as the Act, and had discharged
its employee Jeryl W. Davis on July 31, 1974, in violation
of Section 8(a)(3) of the Act.
The Respondent filed a timely answer alleging that it
153
had discharged Davis for "good cause, due to his having
violated Respondent's rules and in obtaining money under
false pretenses."
The case came on for trial on October 21, 1974, and was
continued at the request of the Respondent until October
23, 1974, at which time each party was afforded a full op-
portunity to be heard, to call, examine and cross-examine
witnesses, to argue orally on the record, and to submit pro-
posed findings of fact and conclusions. Evidence was intro-
duced after which the Respondent's counsel moved for an-
other continuance on the ground that "the drivers involved
are outside the state and that we were not able to get them
in here and they are crucial witnesses and I am advised Mr.
Franks is broken down in Yuma, Arizona and is unable to
get back here, and we feel that their testimony is essential."
Ruling on this motion was held in abeyance and the Re-
spondent was granted until November 4, 1974, to submit
reasons and affidavits, if necessary, as to why its continu-
ance should be granted and it be allowed to offer addition-
al evidence. Thereafter the Respondent, within the time
allowed, renewed its motion in written form, appending
thereto Application for Deposition. Thereafter a Ruling
and Order on Motion for Continuance was entered on No-
vember 12, 1974, a part of which read: "Although the Re-
spondent was granted time in which to support its request,
for an additional continuance, it has failed to show good
cause why its request should be granted. The General
Counsel's points are well taken.
"IT IS ORDERED that the Respondent's Motion for
Continuance to take deposition and for a continuance be
denied and that the trial in this case be closed and submit-
ted for decision. Briefs may be filed by the parties on or
before December 16, 1974, which period will afford the
Respondent ample time to lodge a direct appeal to the
Board in event it excepts to this ruling."
The Respondent and the General Counsel elected to file
briefs within rule. All briefs have been carefully consid-
ered.
FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent, a sole proprietorship, with its principal of-
fice and place of business located at Rose City, East Or-
ange County, Texas is engaged in the commercial transpor-
tation of flowers and produce. It has a loading dock at San
Carlos, California.
During the preceding 12-month period, a representative
period of all times material herein, Respondent derived
i The facts found herein are based on the record as a whole and the
observation of the witnesses The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses , and the
teaching of N.L R.B. v. Walton Manufacturing Company & Loganville Pants
Co, 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradic-
tion to the findings herein , their testimony has been discredited, either as
having been in conflict with the testimony of credible witnesses or because
it was in and of itself incredible and unworthy of belief. No testimony has
been reviewed and weighed in the light of the entire record. No testimony
has been pretermitted
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revenues in excess of $50 ,000 for the shipment of goods
from its Louisiana and Texas terminals directly to points
outside the States of Louisiana and Texas.
Respondent is, and at all times material herein has been,
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union Organizational Campaign and the Alleged
Violations of Section 8(a)(1) of the Act
1. At all times material herein Durel Franks was the
owner and Ford E. Phillips was the dispatcher of the Re-
spondent. Employee Jeryl W. Davis had intermittently
worked as a truckdriver for the Respondent commencing
in 1970; his last tour was from October 1973 until July 31,
1974, at which time he was fired. Davis signed a union
support card on July 17, 1974. He also solicited employees
for union support and obtained 11 signed union authoriza-
tions. In addition Davis arranged for several employee
meetings with Stanley LaFleur, a union representative.
These meetings were held at the Four Seasons Truck Stop
on Route 167 north of Lafayette, Louisiana. While on the
road Davis obtained six employees' signatures to union
support cards in Odessa, Texas, and Laredo, New Mexico
(sic). He also distributed blank cards to other employees
and "Right to Vote" pamphlets.
Thereafter a telegraphic demand for recognition dated
July 29, 1974, was dispatched to the Company by the
Union and was received by the Respondent (according to
dispatcher Phillips) prior to the discharge of Davis on July
31, 1974. A petition for an election was filed on July 29,
1974, in Case 15-RC-9458 and mailed to the Respondent
on the same date.
On July 30, 1974, while employees Percy J. Hebert and
Rodney Pisiani were in Franks' office in Beaumont, Texas,
Franks asked Pisiani, "What about this union, Rodney?
Did you sign a card?" Both employees admitted signing
cards and Pisiani said, "Durell, it's because I don't have no
hospitalization, that-I signed this card." Franks responded,
"Who's involved in this union? Who's the leader?" Pisiani
answered that he did not know. Franks then asked the
employees to read a document and commented that they
should sign it if they wanted to. According to Hebert the
document disclosed that "if the union should come into the
company that [Franks] would sell his trucks and close his
business down." There were 9 or 10 signatures on the docu-
ment. After the employees signed the paper Franks said,
"Now, I didn't make you all sign this paper." 3
2 An election was held on October 16, 1974. Challenges were determina-
tive of the results of the election.
3 On cross-examination Hebert was shown the following written lan-
guage, Resp . Exh. 2:
After the document was signed Franks again asked the
employees who the instigator of the Union was. Pisiani
answered that he did not know. Franks replied, "I know
it's Red.4 Red is the instigator. That's all right. I will fire
him for a motel slip I have in my hand." Franks also com-
mented, "I don't want the union. I got a million dollars in
assets and I can close down the business and live all right
the rest of my life." He added that he had "ordered some
new trucks which he was going to cancel."
As the persons parted Franks asked the employees
whether they were going to "stick with him or the union."
He said that if they "stuck" with him they would have a job
"as long as he was in business ." When Franks asked He-
bert what he was going to do Hebert told him "not to
worry about it."
On July 31, 1974, Franks "flagged down" employees
Roger Boudreaux and Chester Marcatel near Spindletop
Truck Stop in Vidor, Texas. Franks talked to Marcatel
first. Franks handed Marcatel a "paper" and asked him to
sign it if he desired. Marcatel signed the paper which he
said "seems like" Respondent's Exhibit 2 set out above.
Franks thanked him for signing it and asked if Boudreaux
would consider signing the paper. Marcatel answered that
he did not know. He also asked Marcatel whether he had
signed a union card. Marcatel answered affirmatively.
Marcatel asked Franks if it were not too late to stop the
Union because it was in Federal hands. Franks replied in
the negative and said that "he had enough money, if he
would go union, that he will shut down the company and
that he had enough money to live the rest of his life with-
out the Franks Flower Express."
Franks asked Marcatel to "motion" Boudreaux to come
over. Boudreaux responded and Franks handed him the
same paper . Franks also showed Marcatel a paper with 12
or 15 truckers' signatures on it.
Boudreaux signed the paper. He heard Franks say that
he "would probably have to lose his flower business if he
went union."
Later both Marcatel and Boudreaux were asked by Phil-
lips to sign similar documents which they did.
2. By the interrogations detailed above the Respondent
TO ALL EMPLOYEES OF FRANKS PLOWER EXPRESS:
I will ask you one question-If you had a business that you had worked
hard to build up, would you want a union or anyone else to tell you
how to run your business' I'm asking those who did sign and the ones
who did not to vote in favor of not going union. I will not have anyone
telling me how to run my business. And I don't think that any of you
know a trucking company hauling farm products, as we are, being put
in a union.
We appreciate your consideration.
PLEASE DATE:
[Followed by lines for signatures.]
Hebert testified that he was handed a similar document sometime after
August I. 1974, in the Lafayette office by Phillips, who pulled it out of a
desk drawer and said , " I want you to read this. If you want to sign it, go
ahead and sign it" Hebert responded , "Gene, I done signed one before."
(Phillips did not contradict this testimony .) After having been shown the
document, in reference to what the first document contained , Hebert testi-
fied , "I'm not sure it was in the document, no. He [Franks] could have said
that at the time but I 'm not sure." Nor was he sure the documents were not
the same.
Davis' nickname was "Red "
FRANKS FLOWER EXPRESS
violated Section 8(a)(1) of the Act. N.L.R.B. v. Super Toys,
Inc., 458 F.2d 180 (C.A. 9, 1972); Hendel Manufacturing
Company, Incorporated, 197 NLRB 1093 (1972); Answering,
Inc., 215 NLRB No. 118 (1974). The Respondent likewise
violated Section 8(a)(1) of the Act by Franks' threat to
close down his business if the Union came into his estab-
lishment; 5 and by Franks' promise that if employees
"stuck" with him rather than the Union they would have a
job as long as he was in business.
In respect to Franks ' alleged unlawfulness in circulating
the petition (Resp. Exh. 5) to which he requested employ-
ees "of their own free will" to affix their signatures, the
Respondent relies on Section 8(c) of the Act as a defense.
The Respondent maintains that the petition "is no more
than the right of an employer to speak to his employees
about the advantages of union organization, and that such
statement is not coercive." However, it is obvious that the
request to sign the petition was an unlawful query as to the
employees ' union affection and the employees' signing, in
effect, registered the employee's repudiation of the Union
and the acknowledgement that Franks was not going to
have a Union or anyone tell him how he was going to run
his business. An employee who would have viewed the pe-
tition in any other light would have been a dull employee
indeed. Moreover, if Franks had not intended that an
employee's signature would register his repudiation of the
Union and an acquiescence in Franks' request that those
"who did sign" vote "in favor of not going union," the
petition would have served little purpose. Indeed, the
words set out above used by Franks while soliciting leave
little doubt as to the coercive character of his solicitations.
Franks' use of the petition in the manner he did constituted
a violation of Section 8(a)(1) of the Act. See Priced-Less
Discount Foods, Inc., d/b/a Payless, 157 NLRB 1143
(1966); enfd. 405 F.2d 67 (C.A. 6, 1968).
B. The Discharge of Jeryl W. Davis
On July 31 , 1974, Jeryl W. (Red) Davis was at Spindle-
top Truck Stop in Vidor, Texas , "right out of Beaumont."
He phoned the Lafayette terminal and was told by a fe-
male employee that he was "to be paid off," and that
Franks wanted to talk with him. Davis contacted Franks
by phone and later Franks appeared at Spindletop. Three
other drivers were with Davis . After Franks had talked to
the three drivers he showed a motel ticket dated July 15,
1974, in the amount of $ 12.60 to Davis and asked him
whether he had ever seen it. Davis answered , "Yes, I have."
Franks said , "Well, it just cost you your job." He further
remarked that "he don't pay for a motel until the truck was
unloaded ." Davis replied that a driver had been with the
truck at the time it was being unloaded. Franks countered
that "he still didn't pay for motel rooms." Davis was "paid
off right there."
The Respondent claimed that a written rule was in effect
as follows:
s See Marshfield Steel Company v. N.L.R.B., 324 F.2d 333, 336 (C.A. 8,
1963); Masdon Industries, Inc., 212 NLRB 505 (1974).
NOTICE ALL DRIVERS
155
AGAIN, WE WILL TELL YOU THAT THERE WILL BE NO ROOM RENT
PAID UNTIL AFTER THE TRUCK IS UNLOADED AND YOUR WAY-
BILL IS DATED TO THAT EFFECT. NO ONE WILL MAKE SPECIAL
ARRANGEMENTS TO BE UNLOADED OTHER THAN MYSELF, DU-
REL FRANKS, OR GENE PHILLIPS . TRUCKS MUST BE MANNED
UNTIL UNLOADED.
DUREL FRANKS
While Davis indicated that he had never seen the rule in
writing he said that he had learned from other drivers that
"no motel rooms would be paid for by the company until
the truck was unloaded."
On July 14, when Davis incurred the motel bill, his truck
had not been unloaded. The truck was unloaded on July
15, 1974.
Davis had paid the motel bill. On returning from the run
(two drivers were with the truck; Davis was the lead driv-
er), which had been to National City, California, Davis on
July 17, 1974, presented the motel bill with some others for
reimbursement to employee Yarborough who approved the
bill. Davis told her at the time that "one driver went and
unloaded the truck and the other one stayed in the motel."
Davis heard nothing further of the incident until July 31,
1974. Davis testified that a similar incident occurred on
July 21, 1974, on which occasion he was also reimbursed.
The General Counsel contends that Davis was not termi-
nated because of the motel bill incident but because of his
union activity. The Respondent maintains that the dis-
charge was for the reason expressed to Davis by Franks
and suggests that Davis "obtained such refund under false
pretenses ." As to the charge of false pretenses, which ap-
parently was not relied upon by Franks, the credible record
reveals that Davis informed Yarborough before she ap-
proved the bill that "one driver went and unloaded the
truck and the other one stayed with the truck." With this
disclosure there appears to have been no intent on Davis'
part to conceal the transaction. Indeed, if there was an
error connected with the reimbursement, Yarborough was
equally at fault, although the record does not disclose that
she was likewise treated. Moreover, it seems reasonable
that if the rule were being enforced Yarborough would
have disallowed the reimbursement.
Various factors support a conclusion that Franks used
the motel bill incident as a pretext to rid his business of a
union partisan.
Franks, in effecting the discharge, did not accept any
explanation of the incident from Davis nor did he afford
him an opportunity to return the $12.50. In this respect it
seems an unnatural occurrence that Franks should have
fired a good truckdriver, who had on several occasions
been rehired, rather than have permitted him to return the
$12.50, especially in view of the hearsay character of the
rule. Moreover, Franks took no action against Davis until
it became known-that Davis was a union partisan and the
Union was seeking bargaining rights. The record in this
respect is barren of any explanation for the delay from July
17 until July 31, 1974.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the union animus of Franks 6 and his threat
the day before that he would fire "Red," the "instigator," 7
for a motel slip, the Respondent 's claim that Davis was
fired for the violation of the rule falls flat and the real
motive stands out like a sore thumb , i.e., to discourage
membership in a labor organization and to interfere with
the right of employees "to self organization and to form,
join , or assist labor organizations."
"Illegal motive has been held supported by a combina-
tion of factors, such as 'coincidence in union activity and
discharge . . . general bias or hostility toward the union'
... variance from the employer 's 'normal employment
routine' . . . and an implausible explanation by the em-
ployer for its action . . . ." McGraw-Edison Company v.
N.L.R.B., 419 F.2d 67, 75 (C.A. 8, 1969). Thus it is clear
that the credible facts in this case satisfy the criteria for
illegal motive.
Accordingly, it is found that by the discharge of Jeryl W.
Davis on July 31, 1974, the Respondent violated Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act for jurisdiction to be exer-
cised herein.
3. By interfering with , restraining , and coercing employ-
ees in the exercise of rights guaranteed by Section 7 of the
Act, the Respondent engaged in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
4. By unlawfully discharging Jeryl W. Davis on July 31,
1974, the Respondent engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. It having
been found that the Respondent unlawfully discharged Je-
ryl W. Davis and thereby violated Section 8(a)(3) and (1)
of the Act, it is recommended that the Respondent remedy
such unlawful conduct. It is recommended in accordance
with Board policy 8 that the Respondent offer Jeryl W. Da-
vis immediate and full reinstatement to his former position
or, if such position no longer exists , to a substantially
6 "[E]very equivocal act that was done may be properly viewed in the light
of respondent 's animus toward the effort to organize its men ." N.L.R.B v
Houston and North Texas Motor Freight Lines, Inc, 193 F 2d 393, 398. (C A
5, 1951) cert. denied 343 U.S. 934 (1952).
7 "[W]here the discharge in question involved the "key" employee in an
organizational drive, it may supply shape and substance to otherwise equi-
vocal circumstances ." N.L.R.B. v. Davidson Rubber Company, 305 F.2d 166,
169 (C.A 1, 1962).
8 See The Rushton Company, 158 NLRB 1730, 1731 (1966).
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 as a result of the
discrimination against him by payment to him of a sum of
money equal to the amount he would have earned from the
date of his discriminatory discharge to the date of an offer
of reinstatement , less net earnings during said period, to be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and including interest at the rate of 6 percent per
annum in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this pro-
ceeding, and pursuant to Section 10(c) of the Act, it is
recommended that the Board issue the following:
ORDERS
Respondent Franks Flower Express, its agents, succes-
sors, and assigns , and its owner Durel Franks, shall:
1. Cease and desist from:
(a) Discouraging membership in Transportation Em-
ployees Association a/w District 2, MEBA, AMO,
AFL-CIO, or any other labor organization, by unlawfully
discriminatorily discharging any of its employees or dis-
criminating in any other manner with respect to their hire
or tenure of employment or any term or condition of em-
ployment in violation of Section 8(a)(3) of the Act.
(b) Unlawfully interrogating its employees regarding
their union or concerted activities.
(c) Unlawfully requesting its employees to sign any doc-
ument which suggests that it wants employees to repudiate
the Union.
(d) Unlawfully threatening to close its business if the
Union comes into its establishment.
(e) Unlawfully promising employees that if they stick
with it and not with the Union they will have a job as long
as it is in business.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Jeryl W. Davis immediate and full reinstate-
ment to his former position or, if such position no longer
exists , to a substantially equivalent position, discharging if
necessary any employees hired to replace him, and make
him whole for any loss of pay that he may have suffered by
reason of the Respondent's discrimination against him in
accordance with the recommendations set forth in the sec-
tion of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
9In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and order , and all objections thereto shall be
deemed waived for all purposes.
FRANKS FLOWER EXPRESS 157
(c) Post at its Rose City, East Orange County, Texas, for Region 15, after being duly signed by Respondent's
establishment and its Lafayette, Louisiana terminal, copies representative, shall be posted by it immediately upon re-
of the attached notice marked "Appendix." 10 Copies of ceipt thereof, and be maintained by it for 60 consecutive
said notice, on forms provided by the Regional Director days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
10 In the event that this Order is enforced by a Judgment of a United said notices are not altered, defaced, or covered by any
States Court of Appeals, the words in the notice reading "Posted by Order other material.
of the National Labor Relations Board" shall read "Posted Pursuant to a
(d) Notify the Regional Director for Region 15, in writ-Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board." ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.