Kay Provision Co.

National Labor Relations Board - Board Decisions

May 17, 1973

203 N.L.R.B. 706 (N.L.R.B. 1973)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kay Provision Company and Teamster Freight, Tank
Line & Automobile Industry Employees Local Union
No. 988, a/w the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America. Case 23-CA-4512
May 17, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND PENELLO
On February 12, 1973, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the Administrative Law
Judge 's rulings, findings ,' and conclusions and to
adopt his recommended Order.2
ed Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, as amended, by discriminatorily discharging its
employee, Don R. Gay, on or about September 5, 1972, and
by failing and refusing to meet and bargain with the Union,
the certified bargaining representative of its drivers and
mechanics, on or about August 31, 1972, and thereafter.
Respondent, in its answer dated October 28, 1972, admits
numerous allegations of the complaint , but denies that it
engaged in unfair labor practices. Additionally , Respondent
pleads in its answer, as an alternative defense , that the
Union violated its statutory obligation to bargain in good
faith with Respondent.
Hearing was conducted in this matter on September 9
and 10, 1972, in Houston, Texas. At the opening of the
hearing, General Counsel, pursuant to written notice previ-
ously given Respondent, moved to amend the complaint by
adding allegations concerning statements made by Betty
Johnson and James Doughty, agents of Respondent , relat-
ing to the discharge of Don R. Gay. The motion was granted
over Respondent's objections and Respondent entered its
denial of the amended allegations.'
At the conclusion of the hearing, General Counsel and
Respondent argued orally and subsequently submitted
briefs. Upon the entire record, upon my observation of the
witnesses, and upon due consideration of the arguments
and briefs, I make the following:
FINDINGS AND CONCLUSIONS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Kay Provision Company,
Houston , Texas, its officers , agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order.
1 We note that the hearing in this proceeding was held on November 9 and
10, 1972, and not as found by the Administrative Law Judge on September
9 and 10, 1972.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d (C.A. 3). We have carefully examined the record and find no
basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN , Administrative Law Judge: Pursuant to
an unfair labor practice charge filed September 14, 1972, by
Teamster Freight Tank Line & Automobile Industry Em-
ployees Local Union No. 988, a/w the International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America, herein called the Union, complaint
issued on October 20 , 1972, alleging that Respondent violat-
I JURISDICTION
Respondent, a Texas corporation, is engaged in the sale
and distribution of meat and meat byproducts at its plant
in Houston , Texas. During the past year, a representative
period, Respondent 's gross sales were in excess of $500,000.
Respondent also purchased and received goods valued in
excess of $50,000 from firms located in states other than
Texas. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent further admits, and I find, that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
Jurisdiction is properly asserted herein.
II THE UNFAIR LABOR PRACTICES
A. Background
All the events relevant here occurred during a period
beginning in May 1972 and ending early in September 1972.
The alleged refusal by Respondent to meet and bargain
occurred on August 31, 1972; the discharge of employee
Don R. Gay, a full-time truckdriver, occurred on September
5, 1972.
An organizational campaign among Respondent's em-
1 As indicated in the text , the matters alleged in the proposed amendments
related directly to the discharge of Don R Gay, which was alleged in the
original complaint , and the specific conduct alleged occurred within 6
months of the filing of the charge.
203 NLRB No. 129
KAY PROVISION COMPANY 707
ployees, in which Don R. Gay played a prominent role,
culminated in a Board -conducted election on of about June
8, 1972. Pursuant to that election , the Union was certified
on June 16, 1972, as the exclusive bargaining representative
of Respondent's full time over-the-road truckdrivers and
mechanics . Two bargaining meetings were held thereafter
between Respondent and the Union. The principal spokes-
man for Respondent at these two meetings was L . G. Clin-
ton, Esq ., co-counsel for Respondent in the instant
proceeding . He was accompanied at both meetings by Wil-
liam C. Trapani , Jr., vice president of Respondent, and at
the second meeting by James Doughty, Respondent's traffic
manager . The principal spokesman for the Union at the two
bargaining meetings was Richard A. Hammond, -president
and business manager of the Union. Hammond was accom-
panied at both meetings by Neil Mahaney, business agent
for the Union , and by Don R . Gay, the employee represen-
tative.
Other officials of Respondent involved in the events rele-
vant here are Howard Kantor, president of Respondent,
and Betty Johnson, Respondent's dispatcher . Kantor, John-
son, Trapani , and Doughty are admittedly agents of Re-
spondent acting on its behalf, and supervisors within the
meaning of Section 2(11) of the Act.
As will presently appear , Mr. Clinton, following a heated
interchange with Hammond toward the close of the August
31 meeting, left the meeting with the statement that he
would not return until he received an apology for certain
remarks addressed to him by Hammond . No further meet-
ings were held despite a union request for such meetings.
Five days later, on September 5, 1972, Don R. Gay, who
had been on an extended truckdriving assignment between
the two bargaining sessions , was discharged . General Coun-
sel contends that the discharge was because of Gay's known
union activity, Respondent contends that the discharge was
because of Gay's falsification of vouchers and other papers
relating to his driving assignment.
Details follow.
B. The Discharge of Don R. Gay
Don R. Gay, an over-the-road truckdriver, started work
for Respondent on July 5, 1970. Gay was described by
William C. Trapani, Jr., Respondent's vice president, as
"always being a good driver." Nevertheless, Gay was admit-
tedly discharged on September 5, 1972, allegedly "for mis-
appropriation of Company funds as the result of numerous
irregularities in the trip that he made in August 1972.... "
(Resp . Brief, p. 16) General Counsel contends that the real
reason for Gay's discharge lay in the fact that he had been
engaged in union activities . Gay has not been reinstated.
It is undisputed that Gay played an active role in the
preelection organizational campaign , that he served as an
observer for the Union in the June election , that he was
thereafter appointed by his fellow employees as their job
steward and representative . As already noted, Gay was pre-
sent at both the August 9 and 31 bargaining sessions as the
employee representative . Gay's truckdriving assignment in
August 1972, which Respondent asserts gave rise to his
discharge , began immediately after the August 9 meeting
and extended until just before the August 31 meeting. The
discharge occurred 5 days later.
Respondent admits , of course , that it was aware of Gay's
union activities inasmuch as Gay served as union observer
in the election and participated also in the bargaining ses-
sions . However, as Respondent correctly argues , the fact
that Gay actively supported the Union does not insulate
him from discharge nor does it , standing alone , establish
any union animus on Respondent 's part in that regard. But
the record does contain independent evidence of such ani-
mus. Employee Thomas Molley testified that early in Au-
gust 1972 he asked Betty Johnson , Respondent's dispatcher,
if she had seen Don Gay. Betty Johnson replied that Gay
had not been in her office that day, that if Gay kept causing
trouble over the Union he would not be in any more, and
that "they were going to fire him or they were looking for
a reason to fire him ." Molley further testified that later in
August he was summoned, together with another driver, to
the office of James Doughty, Respondent's traffic manager,
whom Molley incorrectly identified as dispatcher or assis-
tant dispatcher. Molley stated that in the course of a conver-
sation about a late delivery, Doughty made reference to the
fact that Gay was out on a trip and that Gay was one of
those who would be gotten rid of because he was causing
so much trouble pushing the Union.
Employee James A . Moore testified that during April
1972 union activities were a common subject of discussion
and that he had talks on this topic with Betty Johnson and
Trapani. According to Moore , Betty Johnson told him
about a month before the June election that she wished she
could get rid of Don Gay because he was the troublemaker
that started the union situation . About a week after the
election Betty Johnson made virtually the same statement
about Gay to Moore.
The foregoing testimony of employees Molley and Moore
stands undisputed. Moore was not even cross-examined.
Respondent argues that their testimony should not be cred-
ited . On the other hand , neither Betty Johnson nor James
Doughty , both admittedly agents of Respondent, was
called as a witness. I find the testimony of Molley and
Moore to be credible and I find that the statements they
attributed to Betty Johnson and James Doughty were made.
As already indicated, Gay was assigned right after the
August 9 bargaining meeting to a truckdriving trip which
lasted about 2-1/2 weeks. In the course of this trip which
involved the pickup and delivery of truckloads of rice, can-
dy, honey, meat, and other products , Gay drove from
Respondent 's plant in Houston , Texas, to Carrolton, Mis-
souri ; Fort Wayne, Indiana ; Hungerford , Illinois; Nash-
ville, Tennessee ; Louisville, Kentucky; Onsted, Michigan;
Saginaw, Michigan ; McAlester, Oklahoma; Oklahoma
City, Oklahoma ; and finally back to Respondent's plant in
Houston, Texas, where he arrived late in the night of August
26 or in the early morning hours of August 27 .1
The day following his return to Houston , Don R. Gay
filled in his expense account voucher and turned it in to
2 During the initial part of his trip, while enroute to Fort Wayne , Gay was
informed by Betty Johnson in a telephone conversation that his brother had
died and , with Respondent 's permission , left his truck in St Louis and flew
back to Houston for a day to attend his brother's funeral.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent' On Friday, September 1, Gay was given his
salary check but not his expense check. James Doughty told
Gay his expense check was not ready because Trapani was
still trying to confirm some charges listed in Gay's expense
voucher. Doughty told Gay his expense check would be
ready the following day. Accordingly, on the following day,
Saturday, September 2, Gay returned to the plant and
talked to Trapani. Trapani told Gay that Respondent would
not honor some of the charges listed by Gay because Gay
had not done the work for which the charges were made.4
Gay insisted that he had done the work. Nevertheless, the
face amount of Gay's expense check was reduced by sub-
tracting the challenged charges. A further substantial reduc-
tion was made to recover certain loans made by Respondent
to Gay some months earlier for expenses attributable to an
operation Gay had undergone. A heated discussion also
ensued between Trapani and Gay as to this amount and
Trapani made an adjustment in that regard. There was no
mention of discharge in this conversation and, so far as
appears, no mention of Union or union activity.
The following 2 days, Sunday and Labor Day, September
3 and 4, were not workdays. Early in the morning of Sep-
tember 5, Gay called Traffic Manager James Doughty to
ask if his truck was ready. Doughty did not respond to
Gay's question but after some preliminary conversation in-
formed Gay that Gay was fired and that the decision to fire
Gay had been made by Trapani. Gay thereupon reported to
the plant to ask Doughty whether the matter could be
worked out. Doughty told Gay he thought Gay was getting
a bad deal and that Gay should take the matter up with the
Labor Board. Doughty asked Gay not to quote him because
if Gay did, Doughty would be fired and blackballed out of
the industry. A few days later Gay, who was anxious to get
his job back without resort to Board proceedings, again
talked to Doughty. Doughty, after initially telling Gay that
the grounds asserted for his discharge were the submission
of several false charges in his expense voucher, confided to
Gay that the real reason for his discharge was that Gay had
been "a thorn in the side of the company because of union
activities."
Gay's testimony as to the foregoing conversations with
Doughty stand undisputed; Doughty did not testify. More-
over, the statements attributed to Doughty by Gay are in the
same vein as the statements I have heretofore found to have
been made by Doughty to employee Thomas Molley. I
credit Gay's testimony in this regard and find that Doughty
did make the statements to which Gay testified.
3 As more fully described below, Respondent makes certain cash advances
to its drivers to cover expenses they will undergo during a trip . After the trip
is completed , the drivers submit expense accounts so that Respondent can
reimburse them for funds due over and above any cash advances made to
them.
4 One of the challenged charges was Gay's claim for $5 for rearranging a
load on his truck to equalize the weight distribution. Trapani disallowed this
claim on the ground that Gay had, contrary to company policy, failed to call
in for permission to do so . A few other challenged charges related to Gay's
claim for compensation for helping unload his truck in situations where the
unloading was normally done by the company receiving the shipment. Gay
testified, however, and his testimony in this regard was not disputed , that on
occasion Respondent directs its drivers to help out in the unloading where
the need for expedition is urgent because the truck is needed for another
pickup or delivery and that in such circumstances payment to the driver is
authorized . According to Gay, Betty Johnson had given him such directives
in the challenged instances.
On the basis of all the evidence I find that General Coun-
sel has established a prima facie case that the real reason for
the discharge of Don R. Gay was his known union activity
and sympathy. Quite clearly, Gay's preelection activity, his
role as union observer in the election, and his function as
union steward were known to Respondent. Moreover in his
capacity as employee representative at the two bargaining
meetings , Gay played more than a passive spectator role. At
the August 31 meeting, which preceded Gay's discharge by
5 days, Gay strongly resisted a company bargaining propos-
al because it would violate seniority rights of Respondent's
drivers.
Equally clear is that Respondent resented Gay's union
activities and was seeking an excuse to get rid of him. The
comments of Betty Johnson and James Doughty, officials
and agents of Respondent, unmistakably reflect the views
of management in that regard and it strains credulity to
accept Respondent's suggestion that these were "mere opin-
ions offered by minor supervisors" and did not reflect
management 's motivation or its intention. The precipitate
nature of the discharge-no mention of discharge was made
in the September 2 conversation between Trapani and Gay
concerning the latter's alleged false charges, although this
was the reason later given for the termination-and the
manner in which it was executed, by relaying the notice of
discharge through James Doughty are also suspect. And
certainly, cogent confirmation of the true reason for the
discharge arises from Doughty's later acknowledgment to
Gay that the real reason for the discharge lay in his union
activities. Despite Respondent's protestation that Doughty
played no role in the discharge decision, it is not without
significance that Trapani designated Doughty to communi-
cate that decision to Gay.
Respondent's principal defense is that it discharged Gay
for "misappropriation of Company funds" in connection
with his August trip. Both Gay and Trapani testified exten-
sively as to cash advances made to Gay prior to and in the
course of his trip, charges and expenses incurred, and times
of pickups, deliveries, and layovers while waiting for further
trucking assignments . There were discrepancies in the testi-
mony but the discrepancies for the most part were attributa-
ble to the fact that Gay was testifying largely from memory
about the myriad details of a trip he had taken about 3
months before he testified, whereas Trapani's testimony was
based on business records which were available to him.
Moreover, the discrepancies were for the most part of no
great import 5 and, to the extent that the business records
might be more reliable, reflected an error in Gay's recollec-
tion rather than a lack of candor.
The question of "misappropriation of Company funds"
has to do with certain charges claimed by Gay which were
disallowed by Trapani (see fn. 4, supra). I credit Gay's testi-
mony that he believed the questioned charges were warrant-
ed either because they were pursuant to customary practice
3 A conspicuous exception in this regard consists of two $75 advances
which Gay received from Ryder Truck Lines, Inc., on August 17, 1972, which
were not listed in Gay's expense voucher or reported by him Admittedly,
however, Respondent did not learn of these advances until the date of the
instant hearing and, obviously, these advances played no role in the discharge
determination which occurred on September 5, more than 2 months earlier
The significance of the Ryder advances will be dealt with later in this Deci-
sion
KAY PROVISION COMPANY
(shifting of truck loads to avoid violation of state laws re-
garding distribution of weight relative to axles) or because
he received directives from Betty Johnson which justified
the charges. On the other hand, I also credit Trapani's testi-
mony that on the basis of the information he had, he be-
lieved the charges in question were unwarranted.
The critical issue , however, is whether even assuming the
charges were unwarranted-and I have found that Trapani
believed that they were-this was the real reason for the
discharge. While there is a dearth of evidence in the record
in this regard, it seems fair to infer that expense vouchers
turned in by drivers were regularly reviewed by manage-
ment prior to payment. It seems fair to infer also that on
occasion, as in Gay's case, particular charges were disal-
lowed.6 In Gay's case, he vigorously argued that the charges
he made were proper. And,significantly, in the course of the
September 2 discussion between Trapani and Gay, Trapani
at no point suggested that the charges he challenged would
be considered grounds for discharge. On the contrary, the
discussion at that time concerning the amount to be deduct-
ed to cover loans previously made by the Company because
of Gay's hospitalization apparently contemplated Gay's
continued employment. Yet 3 days later on September 5,
the "false charges" were suddenly put forward as the reason
for the discharge.
On the totality of the evidence I am satisfied and I find
that the questioned charges, now sweepingly denominated
as "misappropriation of Company funds," were advanced
as a pretext to conceal the real reason for the discharge. I
find further that Respondent's resentment at Gay because
of his outspoken union advocacy, a resentment acknowl-
edged by Respondent's own officials and agents, was the
real motivation for the discharge. Accordingly, I find and
conclude that Respondent discharged Gay because of his
union activities and thereby violated Section 8(a)(3) and (1)
of the Act.
C. The Refusal To Meet and Bargain
With the Union
The issue presented here is whether Respondent violated
its statutory obligation to meet and bargain with the Union.
The existence of a bargaining obligation on the part of
Respondent in the first instance is unquestioned. The com-
plaint alleges, Respondent admits,and I find that pursuant
to a Board election conducted on June 8, 1972, the Union
was certified on June 16, 1972, as the exclusive bargaining
representative of an appropriate unit of Respondent's em-
ployees. I further find, pursuant to admitted allegations,
that the appropriate unit consisted of all full-time over-the-
road truckdrivers and all full-time mechanics excluding all
other employees, salesmen , guards, watchmen, and supervi-
sors.
As already noted, Respondent and the Union held two
bargaining meetings following the certification, the first on
August 9, 1972, the second on August 31, 1972. Hammond,
president and business manager of the Union, was the prin-
6 Indeed , Trapani testified that there had been occasions in the past where
charges listed by drivers had been cut back, but that no driver had ever been
discharged for that reason
709
cipal spokesman for the Union. He was accompanied by
Neil Mahaney, union business agent, and Don R. Gay.
L. G. Clinton, Esq., attorney for Respondent, accompanied
by Trapani and Doughty, already identified, was the princi-
pal spokesman for Respondent.
The first meeting was relatively short. The Union present-
ed a contract proposal. Respondent at that time had no
contract proposal to submit. After a relatively short discus-
sion, it was agreed to hold a second meeting on August 31
for which Respondent would prepare and submit its con-
tract proposal. Respondent did so.
The August 31 meeting consumed several hours, devoted
largely to the consideration of corresponding provisions of
the respective contract proposals relating to terms and con-
ditions of employment. Based on the composite testimony
of several of the participants, it appears , as is not infrequent-
ly the case in the early stages of bargaining negotiations,
that both parties exhibited some rigidity of position. None-
theless, a small measure of accommodation was achieved.
After a prolonged discussion of various proposals and late
in the meeting, the subject of leaves of absence for employ-
ees was raised.
Again, based on the composite testimony of both General
Counsel's witnesses and Respondent' s witnesses, I find that
the discussion between Hammond and Clinton at this point
began to be quite heated. Hammond interjected a comment
to the effect that Respondent appeared unwilling to agree
to any proposal that came out of the Union's contract offer.
Clinton retorted that this was not true. Hammond then said,
according to Respondent's testimony, that Clinton was a
"bald-faced liar"; according to Hammond's testimony, that
Clinton was telling him "a bald-faced lie."7
Hammond testified that Clinton at this point became
enraged. Trapani acknowledged that Clinton was "upset"
and "turned red." In any event Clinton told Hammond that
in his many years of negotiations he had never been called
a liar before. Clinton put his papers in his brief case and,
with the further statement that he would not return to nego-
tiate until he received an apology, walked out the door.
Hammond made an effort with Trapani and Doughty to
ameliorate the situation and continue bargaining, but his
effort failed. A later request for continued bargaining, con-
tained in a letter dated September 12, 1972, from the Union
to Respondent, elicited no response. Except for
Hammond's propitiatory remarks at the August 31 meeting
following Clinton's departure, no apology was extended to
Clinton and no further bargaining negotiations have been
held.
The question presented is quite narrow. As noted, both
Respondent and the Union stoutly supported their re-
spective positions at the August 31 meeting, the first meet-
ing at which contract proposals came under serious
consideration. This is hardly unusual at an initial bargain-
ing session . Accordingly, General Counsel expressly disa-
vows any contention that Respondent was in the first two
meetings engaging merely in surface bargaining or bargain-
ing in bad faith. By the same token the fact that the Union
likewise engaged in hard bargaining at these early sessions
affords no basis for Respondent's affirmative defense that
71 find it unnecessary to resolve this discrepancy.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union bargained in bad faith and, hence, absolved Re-
spondent of its statutory bargaining obligations.
The narrow question left for resolution , therefore, is
whether, in all the circumstances detailed in the record and
here summarized , Hammond's remark , in the course of a
vehement interchange with Clinton , that Clinton was a
bald-faced liar or had uttered a bald-faced he justifies
Respondent 's refusal to meet and bargain with the Union
unless an apology is tendered.
This is not a novel issue . Both Board and court authority
have addressed themselves to virtually identical or quite
comparable situations . The net of this comment has been
that while verbal excesses and impeachments of veracity in
such circumstances are to be regretted and faulted , the reali-
ties of collective bargaining and labor relations are such that
the bargaining obligation may not be conditioned on obser-
vance of otherwise desirable social amenities . It is not neces-
sary for purposes of this case to explore the outer limits of
verbal excesses . It may be assumed that there are such lim-
its. But in the instant case Hammond 's remark , while con-
cededly intemperate , was prompted by a previous statement
made by Clinton, was part of a heated interchange, and
reflected "no such underlying hostility to the Respondent as
to make collective bargaining between Respondent and [the
Union] a futility." Deeco, Inc., 127 NLRB 666, 667 (1966).
See also The Bettcher Manufacturing Corporation, 76 NLRB
526, 527 (1948); Signal Manufacturing Company, 150 NLRB
1162 (1965), enfd . sub nom. N.L.R.B. v. Signal Manufactur-
ing Company, 351 F.2d 471 (C.A. 1, 1965), cert. denied 382
U.S. 985 (1966). In view of a consistent line of authority and
the underlying rationale there expressed , it would be super-
fluous to add further comment here.8
I conclude and find that by refusing to meet and bargain
with the Union after the meeting of August 31, 1972, Re-
spondent violated Section 8(aX5) and (1) of the Act.
CONCLUSIONS OF LAW
1. By discharging Don R . Gay on September 5, 1972,
because of his union activities , Respondent violated Section
8(a)(3) and (1) of the Act.
2. All full-time over-the-road truckdrivers and all full-
time mechanics employed by Respondent at its Houston,
Texas, plant, excluding all other employees , salesmen,
guards, watchmen , and supervisors as defined in the Act
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
3. At all times material here , the Union has been the duly
designated and certified representative of the employees in
the aforesaid unit.
4. By refusing to meet and bargain with the Union after
August 31 , 1972, Respondent has violated Section 8(a)(5)
and (1) of the Act.
5. The foregoing unfair labor practices affect commerce
N.LRB. v. Lambert d/b/a Sue-Ann Manufacturing Company, 250 F 2d
801(C.A. 5, 1958), cited by Respondent is plainly distinguishable . Aside from
the fact that Lambert was a proceeding in contempt , the court placed its
principal emphasis in that case on the fact that it was the union , the com-
plaining party, which broke off the negotiations with the statement that it was
futile to go on, and that the union took no further action until 3 years later
when the comtempt petition was filed (supra at 803).
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In addition to directing Respondent to cease and desist
from the specific unfair labor practices found, as required
by the statutory scheme, the nature and scope of these un-
fair labor practices, a discriminatory discharge and a refusal
to bargain warrant the imposition of a further order direct-
ing Respondent to refrain from infringing in any manner
upon the rights of its employees to organize and bargain
collectively through representatives of their own choosing.
Affirmative relief is also appropriate here. I shall direct
Respondent to meet and bargain collectively, upon request
and without precondition, with the Union as the collective-
bargaining representative of the employees in the unit de-
scribed herein, and to embody any understanding reached
in a signed agreement. The remedial order will also include
the customary provisions relating to the posting of notices
and related matters.
Special mention should be made concerning the question
of affirmative relief for the unlawful discharge of Don R.
Gay. The normal remedy for the illegal discharge of an
employee is to reinstate him and make him whole for lost
earnings . In the instant case Respondent vigorously argued
that the discharge of Gay was proper but, for reasons al-
ready stated, I have found that Respondent discharged Gay
as a reprisal because of his union activities. This conclusion
was based on the situation as it existed on September 5,
1972, the day of the discharge. Not considered in that regard
was the fact that Gay on August 17, 1972, had received two
$75 advances from Ryder Truck Lines, Inc., which he had
not reported to Respondent. Inasmuch as Respondent ad-
mittedly did not learn about this until the date of the hear-
ing, approximately 2 months after the discharge, this
consideration obviously did not enter into its decision to
effect the discharge. See fn. 5, supra.
However, Respondent argues persuasively that even on
the premise that Gay was unlawfully discharged, this later-
discovered dereliction by Gay precludes the normal remedy
of reinstatement and backpay. Invoked is the familiar prin-
cipal that even an illegally discharged employee is not enti-
tled to reinstatement where he has been guilty of serious
misconduct.
The argument is appealing. A deliberate effort to defraud
an employer is serious misconduct 9 It follows that if Gay
was guilty of such an effort, reinstatement and backpay
should be withheld.
But the nub of the matter is precisely in the question
whether Gay's failure to report the two $75 advances consti-
tuted an effort to defraud Respondent. Advances, particu-
larly advances made in the form of checks, cannot readily
be concealed, especially where, as here, Respondent in the
normal course of business will be, as it was here, charged for
those advances. More particularly, the record establishes
conclusively that there was no attempt to conceal. Gay
testified that he had reported to Dispatcher Betty Johnson
at the time he received the assignment from Ryder that he
9 The advances made by Ryder Truck Lines, Inc, to Gay were in
Respondent's behalf and Respondent , of course , is obligated to Ryder for
those advances
KAY PROVISION COMPANY
was getting an advance from Ryder but Gay put the amount
at $50. Trapani, in his testimony, confirmed that he had
been apprised of the "communication between Mr. Gay and
my dispatcher, Betty Johnson, indicating the amount of the
trip, the revenue for the trip," and the $50 advance from
Ryder. Under these circumstances it can hardly be conclud-
ed that Gay was seeking to conceal that he had received an
advance from Ryder or that he had tried to conceal the trip
on the basis of which the advance was made. Normal busi-
ness routine would , as it did, necessarily reflect the actual
amount of the advance.
Gay was culpable, to be sure, in that he reported an
advance of $50 rather than $150. Moreover, the record af-
fords no explanation for the error or whether it was a mere
matter of oversight in a long and complicated trip. Nonethe-
less, in view of the fact that apart from minor discrepancies,
Gay reported with substantial accuracy the complex sched-
ule of pickups and deliveries, layovers, expenses incurred,
and the several advances made, in view particularly of the
fact that he did report, as Respondent acknowledges, that
he did receive an advance from Ryder and the trip in con-
nection with which the advance was made, there is no basis
for a conclusion that Gay intended to, or could have expect-
ed to, defraud Respondent. Gay can and should be faulted
for the gross error of $100 in his Ryder accounting, but I
find that his dereliction did not constitute an attempt to
defraud.
On balance, therefore, and after careful consideration, I
conclude that Respondent's violation of the Act should not
go unremedied because of its post-discharge discovery of
the true amount advanced by Ryder to Gay. Accordingly,
I shall direct Respondent to offer Gay reinstatement to his
former job or, if that job no longer exists, to a substantially
similar job, and to make Gay whole for earnings lost as a
result of his wrongful termination by payment to him of the
sum of money he normally would have earned, absent the
unlawful discrimination, from the date of his termination to
the date of Respondent's offer of reinstatement, less Gay's
net earnings during that period.10 Backpay shall be comput-
ed in the manner prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), and interest shall be added as pre-
scribed in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). Respondent will preserve the records necessary to
effectuate this purpose.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I recommend the following:
ORDER "
Respondent, Kay Provision Company, its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Teamster Freight, Tank
Line & Automobile Industry Employees Local Union No.
988 a/w the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization, by discharging or otherwise discri-
minating against any person in regard to the hire or tenure
of his employment or any term or condition of his employ-
ment.
711
(b) Refusing to meet and bargain collectively concerning
wages , hours, and other terms and conditions of employ-
ment with the above-named Union as the exclusive bargain-
ing representative of all its employees in the unit described
hereunder.
All full time over-the-road truckdrivers and all full time
mechanics, excluding all other employees, salesmen,
guards , watchmen, and supervisors as defined in the
Act.
(c) In any other manner interfering with, restraining or
coercing its employees in the exercise of the rights guaran-
teed under Section 7 of the National Labor Relations Act,
as amended.
2. Take the following affirmative action to effectuate the
policies of the National Labor Relations Act, as amended:
(a) Offer Don R. Gay immediate reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent job, without prejudice to his seniority or other
rights and privileges, and make him whole for lost earnings
in the manner set forth in the portion of this Decision enti-
tled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all records necessary to com-
pute the amount of backpay due under the terms of this
recommended Order.
(c) Upon request, meet and bargain collectively with the
above-named Union as the exclusive bargaining representa-
tive of the employees in the above-described unit, and
embody in a signed agreement any understanding reached.
(d) Post at its plant in Houston, Texas, copies of the
attached notice marked "Appendix." 12 Copies of the notice,
on forms provided by the Regional Director for Region 23,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered, defaced, or covered by any other
material.
(e) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps Respondent
has taken to comply herewith.
10 It is contemplated here that any discrepancy with respect to the Ryder
advances may well be adjusted by the parties as part of this computation. If
any question should arise in this regard it could best be resolved on a fuller
record in subsequent compliance proceedings
11 In 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.
12 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, or otherwise discriminate
against, any employee to discourage activities in sup-
port of Local 988 of the Teamsters Union, or any other
union.
WE WILL offer Don R. Gay his old job back and WE
WILL pay him for earnings he lost as a result of his
discharge.
WE WILL meet and bargain upon request with Local
988 of the Teamsters Union as the exclusive bargaining
representative of all our employees included in the de-
scription below about their wages, hours, and working
conditions and, if agreement is reached, we will sign
such an agreement.
The employees are:
All full-time over-the-road truckdrivers and all full-
time mechanics, excluding all other employees,
salesmen , guards, watchmen, and supervisors as de-
fined in the Act.
WE WILL NOT in any other manner interfere with the
right of employees to engage in organizational activi-
ties or in collective bargaining, or to refrain from such
activities.
Dated By
KAY PROVISION COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any question concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office , Dallas-Brazos Building , 1125 Bra-
zos Street, Houston, Texas 77002, Telephone 713-226-4271.