Merchants Delivery Service, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1975

219 N.L.R.B. 1220 (N.L.R.B. 1975)

1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merchants Delivery Service, Inc. and Food Processors
and Allied Workers Teamsters Local Union No.
1113, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen And Helpers of Ameri-
ca'. Case 23-CA-5289
August 25, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On April 29, 1975, Administrative Law Judge
Robert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a brief in support thereof.
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,2 and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order as modified herein.
The Administrative Law Judge found that, as a
prelude to the termination of employee Frank Um-
blance in violation of Section 8(a)(3) of the Act, Re-
spondent was instrumental in securing from its insur-
ance agency on August 29, 1974,3 a sternly worded
letter of warning criticizing Umblance's driving. The
Administrative Law Judge also found that Respon-
dent violated Section 8(a)(1) of the Act by, inter alia,
instituting in early September a new system of writ-
ten reprimands to employees for discriminatory pur-
poses and by the statement of Vice President John
Nabors, Sr., on October 19 that he would "get even"
with employee Raymondo Coronado if he found out
that the latter had voted for the Union on the preced-
ing day.
In his limited exceptions, the General Counsel
contends that Respondent should be ordered (1) to
expunge from its records all written reprimands is-
sued under its unlawful policy of initiating and utiliz-
ing them to dissuade employees from joining the
Union, and (2) to cease and desist from continuing
such policy. We agree. In addition, we shall provide
that Respondent expunge from its records the letter
from its insurance agency criticizing Umblance's
driving and that Respondent refrain from reprisals
and such threats as "getting even" with employees
for voting in favor of the Union.
i Herein called the Teamsters
2 Respondent contends that the Administrative Law Judge was arbitrary
and capricious in crediting the General Counsel's witnesses . It is the Board's
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 Merchants
Delivery Service, Inc., San Antonio, Texas, its offi-
cers , agents , successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified herein:
1. Insert the following as new paragraph 1(c) and
reletter the subsequent paragraphs accordingly:
"(c) Engaging in reprisals, threats thereof, or con-
tinuing its unlawful policy of issuing written repri-
mands to employees for the discriminatory purpose
of dissuading them from joining the Union."
2. Insert the following as new paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Expunge from its records the written repri-
mands issued on or before the date of the election
and also the letter of warning from Respondent's in-
surance agency criticizing the driving of employee
Frank Umblance."
3. Substitute the attached notice for that of the
Administrative Law Judge.
established policy not to overrule the Administrative Law Judge's resolu-
tions with respect to credibility unless the clear preponderance of all rele-
vant evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F .2d 362 (C.A. 3, 1951)
We see no basis for reversing his findings.
J All dates below are for 1974
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Food
Processors and Allied Workers Teamsters Local
Union No. 1113, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other union, by dis-
charging or otherwise discriminating against our
employees because of their union or concerted
activities.
WE WILL NOT engage in surveillance, or give
the impression of engaging in surveillance, of
our employees with respect to their union or
concerted activities.
WE WILL NOT interrogate any employee con-
219 NLRB No. 189
MERCHANTS DELIVERY SERVICE, INC. 1221
cerning that individual's union activity, or that
of any other employee, in a manner constituting
a violation of Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with loss
of jobs or closing of our business if a majority
become members of or assist a labor organiza-
tion.
WE WILL NOT engage in reprisals or threats to
"get even" with employees who vote for the
Union.
WE WILL NOT continue our policy of issuing
written reprimands to employees for the dis-
criminatory purpose of dissuading them from
joining the Union.
WE WILL expunge from our records the written
reprimands and the letter of warning from the
Company's insurance agency criticizing employ-
ee Frank Umblance's driving.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist the above-named Union, or
any other labor organization, to bargain collec-
tively through representatives of their choosing,
to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any or all such
activities.
WE WILL offer Frank Umblance immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges, and make
him whole for any loss of pay suffered as a result
of the discrimination against him.
Our employees are free to exercise any or all of
these rights, including the right to join or assist the
Teamsters, or any other union. Our employees are
also free to refrain from any of all such activities.
MERCHANTS DELIVERY SERVICE, INC.
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on January 22 and 23, 1975 , in San Antonio,
Texas, pursuant to a charge duly filed and served,' and a
complaint issued on November 13, 1974. The complaint
presents questions as to whether the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended . In its answer , duly filed, the Respondent
conceded certain facts with respect to its business opera-
' The charge was filed on October 9, 1974.
tions, but it denied all allegations that it had committed
any unfair labor practices.
The General Counsel and the Respondent were repre-
sented at the hearing. The Union did not enter a formal
appearance. All parties were given full opportunity to ex-
amine and cross-examine witnesses, and to file briefs. A
motion to dismiss, made at the close of the hearing, was
taken under advisement. It is disposed of as appears here-
inafter in this decision. The parties waived oral argument.
On February 28, 1975, both the General Counsel and the
Respondent submitted briefs. Upon the entire record in the
case, including the briefs of counsel, and from his observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation with its principal
office and place of business in San Antonio, Texas, is en-
gaged in the business of warehousing and local delivery of
goods and materials. During the year preceding the is-
suance of the complaint the Respondent purchased goods
valued in excess of $50,000 from firms outside the State of
Texas which were shipped directly from outside that State
to the Respondent's facilities in San Antonio. Upon the
foregoing facts, the Respondent concedes, and I find, that
Merchants Delivery Service, Inc., is engaged in commerce
within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Food Processors and Allied Workers, Teamsters Local
Union No. 1113, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
herein Union, or Local 1113, is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
During the spring of 1973 the Union participated in an
election at the Respondent 's warehouse which the Union
lost. In August 1974 the Union renewed its organizational
campaign among the Respondent 's employees . In a letter
dated August 26, 1974,2 it requested that the Respondent
recognize Local 1113 as the majority representative for a
unit made up of its drivers , warehousemen , forklift opera-
tors , and dockmen . That same date the Respondent filed a
representation petition seeking a Board election . Merchants
Delivery Service, Case 23-RC-4133. The Respondent re-
ceived the Union's demand for recognition on August 28,
but it did not come to the attention of the Respondent's
president, Robert N . Vetters, until August 29, when the
latter returned from a vacation . On September 5, Frank
Umblance, a truckdnver , was discharged , according to the
General Counsel in violation of the Act , but according to
the Respondent for cause.
2 All dates hereinafter are for the year 1974, unless indicated otherwise.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel further alleged that, after receipt of
the Union's request for recognition, the Respondent began
issuing discriminatory reprimand letters to its employees,
and that it discriminatorily changed the work assignments
of two of its employees. All of these charges are denied by
the Respondent in their entirety.
On October 18, when the representation election was
held, the Union lost.
B. The Alleged Violations of Section 8(a)(1); Findings of
Fact and Conclusions of Law in Connection Therewith
Ted Garcia, organizer for the Texas Conference of
Teamsters, testified that his first contact with the
Respondent's employees in the 1974 organizing campaign
was with Frank Umblance, a truckdriver. According to
Garcia, this occurred during mid-June of that year when he
gave Umblance some of his business cards and urged that
employee to telephone him after ascertaining the extent of
union interest among his colleagues . A short while later,
and while at work, one of these cards dropped from
Umblance's shirt pocket. It was observed by Julio Bravo,
one of the older employees at the warehouse. The latter
then engaged in a conversation with Umblance about Gar-
cia and the Teamsters.
Bravo testified that earlier, and at some point during the
preceding April, President Vetters asked him whether he
had heard anything about a renewal of the Union's cam-
paign. According to Bravo, as a consequence of this inqui-
ry, shortly after observing Umblance with Garcia's busi-
ness card he reported the incident to Vetters as well as the
ensuing conversation which he had had with his coworker?
Although Umblance was the first employee contacted by
Garcia, when the organizational drive began in August,
others, rather than Umblance, played a much more active
role. According to Garcia, these were employees Felix L.
Mireles, Dudley Edwards, Felipe M. Guerra, Rolando
Briones, and Raymondo Coronado. On or about August 12
the Union held its first meeting . About nine of the employ-
ees attended, including Umblance, Edwards, and Guerra.
Several of the employees testified that the next day they
were interrogated about the meeting by Jack I. Nabors, Sr.
The latter was vice president and operating manager of the
Respondent Company. His son, Jack I. Nabors, Jr., was
the Respondent's warehouse manager . According to em-
ployee Guerra, on the morning after the union meeting and
after he had signed a union authorization card, Nabors,
Sr., asked him whether he knew anything about the Union
and whether he had attended any meetings. Guerra at first
replied in the negative. Nabors, Sr., thereupon told him
that he was aware of how many people were in attendance
at the meeting and their identity and that he knew that
Guerra was among the group. Guerra testified that at this
3 Bravo 's testimony was credible In addition , Vetters readily acknowl-
edged having had the conversation which Bravo attributed to him . He fur-
ther testified that , because of the earlier election and the knowledge that the
Union could petition for a second election after the lapse of 12 months, on
several occasions after March 1974 and until the June incident involving
Umblance he questioned Bravo as to whether he knew of any new organiza-
tional activity. According to Vetters, his instructions to Bravo were "keep
your ears to the ground and if you hear anything, please let me know."
point he acknowledged having been at the meeting himself
and that he told the company official "that he apparently
had some good source of information." According to
Guerra, Nabors concluded the discussion with the state-
ment that if the employees "voted union, that [the Compa-
ny] couldn't be made to pay what they didn't have and that
if the Union won . . . they would probably have to close
up." The Union subsequently held a number of other meet-
ings , approximately 1 week apart. Guerra testified that the
morning after each of about four of these meetings, Na-
bors, Sr., asked him if he had attended and that in each
instance he acknowledged having done so.
Employee Edwards gave similar testimony as to Nabors,
Sr. According to Edwards, the morning after the first meet-
ing Nabors called him to his office where he told him that,
whereas Edwards could do as he wanted as to the Union,
that the Company would not be able to pay higher salaries
and that there was no "sense in getting involved in the
Union." On another occasion, and after a union meeting,
Nabors asked Edwards if he was having the union meeting
at his home. The employee replied in the negative. Later,
when Nabors asked him if he had attended a union meet-
ing which had been held the night before Edwards ex-
plained that he had not gone because he was sick. Edwards
testified that the third union meeting was held in some
secrecy and at a tavern, rather than at the union hall where
the previous meetings had been held. He testified that the
next day, and notwithstanding the attempt at keeping co-
vert the site of the meeting, Nabors, Sr., greeted him with
the statement, "Well, I see you are still participating in the
Union."4
Employee Mireles testified that, the morning after the
first organizational meeting, he was called into the compa-
ny office where Nabors, Sr., questioned him about the
meeting and asked him who was responsible for distribut-
ing authorization cards. According to Mireles, Nabors
wanted to know what the organizer promised and then told
him that Local 1113 really did not have any organization to
back it up, and that Garcia was working for himself with-
out the support of the Teamsters. Mireles testified that Na-
bors then asked whether he had signed a card and, after he
acknowledged having done so, Nabors asked him who was
involved in the organizing effort among the employees. Ac-
cording to Mireles, when he gave a noncomittal response
to this query, Nabors concluded their discussion with the
statement, "I know who the two men involved are, they are
Roland Briones and Frank Umblance ... those two guys
[are] involved in the Union."5
Employee Raymondo Coronado testified that he signed
an authorization card about August 26 and not long there-
after his supervisor, Jack I. Nabors, Jr., questioned him
about the Union. According to Coronado, when he feigned
ignorance of the subject and asked "What Union," Nabors
said "You know what Union." Coronado testified that,
when he sought to maintain that he did not know what his
supervisor was talking about, Nabors told him, "I know all
about it, who goes to the meetings, and so forth." Accord-
ing to Coronado, Nabors, Jr., then told him "Next time,
4 The quotations in the above paragraph are from Edwards' testimony
5 The quotations in the above paragraph are from the testimony of Mi-
reles
MERCHANTS DELIVERY SERVICE , INC. 1223
... if he find out . . . I was in the Union, I was lost and
he would fire me." Coronado testified that about 4 days
later and after another union meeting , Nabors, Jr., asked
him if he was going to the union meetings. According to
Coronado, when he denied that he was doing so, Nabors
contradicted this answer with the comment "I know you
are" and then told him that if he found out that Coronado
voted for the Union he would be fired.
As noted earlier, on August 26, the Union wrote the Re-
spondent to request recognition as the majority representa-
tive of the drivers and warehousemen and also filed a rep-
resentation petition with Region 23 of the Board. The
Respondent received this correspondence on or about Au-
gust 28. According to Vetters and Nabors, Sr., this was the
first knowledge that either of them had that there was orga-
nizational activity in progress among their employees. Vet-
ters and both of the Nabors denied ever having engaged in
any interrogation of the employees as to the meetings or
their union activities. As found earlier, however, President
Vetters acknowledged having talked with employee Bravo
on a number of occasions during the spring and early sum-
mer to ascertain whether Bravo knew about any incipient
union activity, and Bravo testified that in June he reported
to Vetters, at Vetters' request, about the evidence that em-
ployee Umblance had been in touch with Garcia, the
Teamsters organizer. The employees whose testimony is
outlined above may not have been completely accurate in
every respect as to their recollection of the purported con-
versations with Nabors, Sr., and his son. However, they
appeared frank and honest throughout their appearances
on the witness stand and their testimony was unshaken on
cross-examination. The various denials of the Nabors, on
the other hand, were implausible. Consequently, it is my
conclusion that the employees were more credible in this
respect than either Vice President Nabors or Warehouse
Manager Nabors, and that the conversations in question
occurred substantially as these employees testified.
Employee Mireles testified that on the day of the elec-
tion Nabors, Sr., asked him if he realized that, if the em-
ployees voted for the Union, the Company would lose
what was known as "the Universal contract." According to
Mireles, after he answered with the statement that he had
no knowledge of such a development, Nabors, Sr., told him
"If we go union, I just got the notice [that] we will get the
cancellation in 30 days."6 Employee Coronado testified
that the day after the election he asked Nabors, Sr., about
borrowing some money and the company vice president
questioned him as to whether he had voted for the Union.
When Coronado denied that he had done so, Nabors, Sr.,
asked him if he would like to take a lie detector test and
told him that if he found out Coronado had voted for the
Union he would "get even. "7 Nabors, Sr., denied having
interrogated either Mireles or Coronado. However, here
again, based upon their respective demeanor and the back-
ground set forth earlier, I conclude that the employees
6 The quotation is from Coronado's testimony
7 The quotation is from Coronado's testimony.
were the more credible and that the conversations which
they described occurred substantially as they testified.
Upon the foregoing findings of fact, I now find that the
Respondent violated Section 8(a)(1) of the Act by the fol-
lowing conduct of Vice President Jack Nabors, Sr.: (1) his
interrogation of employees Guerra, Edwards, and Mireles'
after several of the union meetings held in August, during
which questioning Nabors sought to ascertain whether the
employees had attended, signed a card, or otherwise par-
ticipated; (2) his conduct in questioning Guerra in mid-
August about his attendance at a union meeting, during
which conversation Nabors told the employee that he knew
Guerra was present and that he knew how many others
were in attendance as well as their identity, and his state-
ment to employee Edwards after another meeting which
the latter attended later that month when Nabors com-
mented, "Well, I see you are still participating in the
Union," thereby, in each instance, giving Guerra and Ed-
wards the impression that the Respondent was keeping the
union meetings under surveillance; (3) his interrogation of
employee Mireles in mid-August and after the Union's first
organizational meeting at which time Nabors questioned
Mireles as to who was responsible for distributing authori-
zation cards and when Mireles feigned ignorance of the
subject Nabors identified Umblance and Briones as the
employees most responsible for having brought the Union
to the plant, thereby giving Mireles the impression that the
Respondent was keeping the employees' union activities
under surveillance; (4) his statement in mid-August to em-
ployee Guerra that, if the employees voted the Union in
the Company "would probably have to close up," his state-
ment to employee Mireles on the day of the election that if
the Union won the Respondent would lose one of its con-
tracts within 30 days, and his statement to employee Coro-
nado the day after the election that if he found that Coro-
nado had voted for the Union, he would "get even" with
him.
Similarly, the Respondent violated Section 8(a)(1) by the
following conduct of Warehouse Manager Jack Nabors,
Jr.: (1) his interrogation of employee Coronado about the
Union twice during the month of September when he gave
the employee the impression that the Respondent was
keeping all union activities under surveillance by his com-
ment on the first occasion that "I know all about it [the
Union], who goes to the meetings and so forth," and his
later comment to Coronado wherein he contradicted the
employee's denial about having attended the latest union
meeting with the statement that he (Nabors) knew that the
employee had, in fact, attended; and (2) his statements to
Coronado on these same two occasions that if he found
that Coronado was in the Union the employee "was lost
and he [would] fire [him]," and that if he found out that
Coronado voted for the Union the employee would be
fired.
It was likewise a violation of Section 8(a)(1) of the Act
for President Vetters to request employee Bravo, during the
spring and early summer, to report to him as to the union
activities of his coworkers.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Alleged Violations of Section 8(a)(1); Findings of
Fact and Conclusions of Law With Respect Thereto
1. Frank Umblance
Umblance was employed by the Respondent as a truck-
driver from March 1973 until his discharge on September
5, 1974. Prior to his employment by the Respondent he had
had over 25 years' experience as a driver. He testified that
the only reprimand he ever received while with the Compa-
ny was the one he was given at the time of his termination.
He further testified, credibly, that he had never been dis-
charged from any other driving job, nor criticized for any
accidents which he had had. Seven or eight years prior to
coming to work for the Respondent, and while employed
as a driver by another company he had accidentally killed
a bull that was on the highway. Umblance credibly testi-
fied that he was not charged with any traffic violation at
the time and that the rancher who owned the bull paid for
the damages to the truck which he was driving. On Septem-
ber 5, 1974, Umblance was terminated after Vetters sum-
moned him to his office and afforded him the opportunity
to resign or be discharged. Umblance credibly testified that
Vetters told him at the time that such action was necessary
because the Respondent 's insurance company "would no
longer carry me . . . on my driving record."
As found earlier, Union Organizer Garcia contacted
Umblance in mid-June and gave him some business cards
to encourage the employee to contact him after he had
discussed the Union with his coworkers. Very shortly
thereafter, when employee Bravo saw one of these cards in
Umblance's possession and had a discussion with him
about Garcia, Bravo reported the incident to President
Vetters. When the organizational campaign began the fol-
lowing August, Umblance attended meetings with the
other employees and on August 23 he signed an authoriza-
tion card. During the actual organizational effort which
developed in August some of the other employees were
more active in soliciting their coworkers to join than Um-
blance. Nevertheless, in mid-August when Vice President
Nabors questioned employee Felix Mireles as to who was
responsible for distributing authorization cards for the
Teamsters, Nabors characterized Umblance as one of the
"two guys . . . involved in the Union."
On August 28, and the same day that the Respondent
received notice of the Teamsters demand for recognition,
Umblance incurred an accident while driving one of the
Respondent's trucks. According to President Vetters it was
not until the following day and upon his return from vaca-
tion that he learned of the Union's request for recognition.
He testified that that same day Nabors, Sr., informed him
that that morning he had reprimanded Umblance for poor
driving and had given him a final warning that unless his
driving improved the Company would let him go. Nabors,
Sr., did not testify as to any conversation he had with Um-
blance on that day. The employee, on the other hand, cred-
ibly testified that when he gave the vice president a report
on the accident, Nabors, Sr., made no adverse comments
to him.
Late on August 29, the Respondent's insurance agency
sent a very sternly worded letter of warning to the Compa-
ny wherein it criticized Umblance's driving, referred to his
having had two accidents, requested that a driver observa-
tion check be made on him immediately and virtually or-
dered that Umblance be taken off the Respondent's trucks.
Betty Granger, an employee of the insurance agency and
the author of the letter, testified that she sent the letter
after a conversation with Vetters in which the latter sup-
plied the information which she used in composing the let-
ter. According to Granger, it was her intent, after her dis-
cussion with Vetters, to give the Respondent's president
something which could be shown to Umblance and fright-
en him to such an extent that his driving habits would
improve. She further testified that after speaking with Vet-
ters it was her impression that Umblance was a young man
and that the letter was drafted on that assumption. Um-
blance, of course, was a man in his middle years with over
25 years' experience as a driver. According to Granger,
although such letters had been sent by her agency on rare
occasions previously, when subpenaed to testify at the
hearing, she could find no similar letter in the agency files.
She further testified that it was not her intention, when
composing the letter, to exclude Umblance from insurance
coverage. Granger also testified that her agency's criterion
for excluding a driver from a policy is three accidents or
one very serious accident involving the driver's sheer negli-
gence . Umblance did not fall in either of these catergories.
The Respondent's report to the insurance company was
made by Ray M. Layton, office manager for the Company.
In that report the accident was described as having oc-
curred when Umblance was backing a Merchants' vehicle
up to the dock of Southwestern Motor Transport (hereinaf-
ter SMT) and as having involved scraping the side of a
parked trailer. The latter was known as a Herder trailer
and in the accident report the damage was described as "2
cuts on middle [and] side of Herder trailer." In a pencilled
notation which appears on the report form from the insur-
ance agency's file there appears the following: "9-25-74
Mr. Layton advised to hold off-Herder may or may not
present a repair bill for minor damage."
At the time of the hearing no liability claim had been
paid on Umblance's accident of August 28. Granger testi-
fied that the agency averages about one liability claim per
month involving the Respondent's drivers. Notwithstand-
ing the frequency of these accidents only one driver had
been discharged in the preceding 2 years for unsatisfactory
driving. Vetters acknowledged that even as to that employ-
ee, one Robert E. Lee, the termination was based not only
on the individual's poor record but also his very intemper-
ate attitude toward the Respondent's president when Vet-
ters sought to discuss the matter with him. Even as to Lee,
the Respondent gave the employee a written warning and
allowed him a 2- to 3-week opportunity to improve his
performance before discharging him. Umblance received
no such consideration.
At the hearing, the Respondent emphasized that the ac-
cident on August 28 was the second in which Umblance
had been involved. The first had occurred almost 18
months earlier and within 2 weeks after Umblance had
been hired. Umblance testified, credibly and without con-
tradiction, that he was never reprimanded about this acci-
dent. Insofar as the record indicates, nothing was said to
MERCHANTS DELIVERY SERVICE, INC.
him then about that matter and the company officials nev-
er referred to it after his later accident on August 28.
Vetters testified that, as a result of Umblance's last acci-
dent and the letter from Granger, he ordered a private in-
vestigator to follow Umblance for the entire day of Sep-
tember 4. The investigator reported that at times Um-
blance had driven from 5 to 10 miles per hour over the
55-mile-per-hour speed limit on an interstate highway, that
on one occasion, he backed one block down a side street to
make a delivery, and that once he did not check his rear
doors after making a delivery. On the basis of this report
and the letter from Granger, on September 5, Vetters gave
Umblance the choice of either being discharged or resign-
ing. At Vetters' suggestion Umblance took the latter option
to protect his employment record when applying for anoth-
er job.
The Respondent offered in evidence a number of slips
purportedly from Umblance's personnel file which attri-
buted to him a variety of driving infractions, or minor
mishaps, which occurred over a 5-month period from
March to August 1974. Vetters acknowledged that al-
though he saw these slips as they came to his office he took
no action on any of them. He thought that he talked with
Umblance about speeding on one occasion, but had no
recollection to when this occurred. There was no evidence
that Umblance was shown any of these alleged deficiency
reports and the Respondent acknowledged that the em-
ployee was given no written reprimands. The memoranda
from Respondent's personnel file were received in evi-
dence. Although when Vetters testified he attributed spe-
cific dates to these incidents only two of these exhibits in
the record are dated. The first is a report made by Nabors,
Sr., on August 28, which analyzed Umblance's production
record for the preceding 2 weeks in great detail and states
that, on the afternoon of August 28, Nabors advised the
employee that, unless he improved, the Company would
replace him. The next exhibit is dated August 29 and pur-
ports to set out the discussion Nabors, Sr., had with Urn-
blance about his accident at the SMT dock. Umblance had
that accident late on the afternoon of August 28 .8 Earlier
herein it was found that his first contact with Nabors, Sr.,
thereafter, was the following morning when he reported the
occurrence to the Respondent's vice president and received
no criticism when he did so.
The next morning Vetters returned from his vacation to
learn that the day before the Union had made a demand
for recognition. Very soon thereafter, Vetters was engaged
in a telephone conversation with Granger at the insurance
agency and the latter, on the basis of the information
which Vetters supplied and for the sake of helping a driver
who she assumed was a young man, sent the stringent
letter of August 29, even though such letters were not nor-
mally sent and although at the time of the hearing Granger
could find no similar letter in the agency files. Granger's
letter suggested that a driver investigation report be made
on Umblance. Vetters promptly had this accomplished, yet
this report disclosed nothing more serious than a minor
speeding incident, and by no means indicates that Um-
s Respondent's report to the insurance agency gives the time of the acci-
dent as 5.45 p.m., August 28.
1225
blance was a chronic speeder or a reckless driver. Prior to
the sequence of events that began after the Respondent
received the Union's request for recognition, Umblance
had never been warned about his driving habits and had
driven professionally for over 25 years without having been
involved in any accident for which he was charged with a
traffic violation. Notwithstanding the foregoing facts, on
September 5, Vetters demanded, and secured, Umblance's
resignation, allegedly because the Respondent's insurance
company "would no longer carry [him] . . . on [his] driving
record."
2. Concluding findings
There are few employees as to whom an employer does
not have a basis for discharge at any given time. The issue
here, however, is not whether the termination of Umblance
was for a good reason or a bad reason, but whether it was
illegally motivated within the meaning of the Act. On the
record herein Umblance was a responsible employee with a
satisfactory work history extending over an 18-month peri-
od. There is substantial evidence that the Respondent iden-
tified Umblance with the revival of the Teamsters organi-
zational efforts at the warehouse. In June, Vetters received
a report from employee Bravo that Umblance had been in
touch with Garcia, a Teamsters official. Shortly after the
Union began its organizational campaign in August, Na-
bors, Sr., questioned employee Mireles as to who was re-
sponsible for distributing authorization cards at the ware-
house and when Mireles gave a noncommittal response,
Nabors himself thereupon identified Umblance as one of
the two employees whom he characterized as "guys .. .
involved in the Union."
On the basis of all the evidence in the record, the acci-
dent in which Umblance was involved on August 28 was of
a very minor character. At the time of the hearing, and
almost 5 months later, the insurance agency had paid no
claim arising out of it. Nevertheless, after securing a letter
from the latter which was drafted by the insurance repre-
sentative for the purpose of helping Umblance improve his
driving proficiency, Vetters set in motion a sequence of
events which within less than a week led to the
Respondent's president telling Umblance that he would
have to resign or be discharged because, on his driving
record, the Respondent's insurance company would no
longer carry him. This, of course, was not true, for Granger
specifically denied that in preparing her letter she had any
intention of excluding Umblance from insurance coverage.
In view of : (1) Umblance's previously satisfactory work
record; (2) the lack of any earlier warnings that he was in
danger of dismissal; (3) the Respondent's knowledge that
Umblance had had contact with a Teamsters official in
June; (4) the declaration of Nabors, Sr., in mid-August and
after the organizational campaign began, that he consid-
ered Umblance to be one of two employees closely identi-
fied with the Union; (5) the Respondent's pronounced an-
tipathy to the Union, as manifested by the numerous
violations of Section 8(a)(l) of the Act described earlier
herein; (6) the celerity with which the Respondent moved
against Umblance once the Union made a demand for rec-
ognition and it became evident that the Union's strength
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the employees was substantial; and (7) Vetters' rep-
resentation to Umblance that his dismissal was required
because the insurance agency would no longer carry him
on its policy when, in fact, the insurance agency had made
no such demand, it is my conclusion that the primary moti-
vation for the termination of Umblance was not his work
record, but his identification with the Union. By this con-
duct the Respondent discriminated against Umblance and,
in so doing, violated Section 8(aX3) and (1) of the Act.
N.L.R.B. v. Hribar Trucking, Inc., 406 F.2d 854, 856-858
(C.A. 7, 1969) (Pagels); N.L.R.B. v. Symons Manufacturing
Co., 328 F.2d 835, 837 (C.A. 7, 1964).
D. The Alleged Discriminatory Work Assignments;
Findings of Fact and Conclusions of Law With Respect
Thereto
The General Counsel alleged that late in September the
Respondent assigned Guerra to unload Dal-Ton trailers
alone, rather than with customary assistance by reason of
Guerra's support of the Union, and that in mid-September
it discriminatorily reassigned employee Edwards from his
regular Woolco-Woolworth stores route. The Respondent
denies both of these allegations.
1. Felipe Guerra
Guerra, a warehouseman, testified that, about 3 weeks
before the election, Warehouse Manager Jack Nabors, Jr.,
assigned him the job of unloading Dal-Ton trailers 9 for I
entire week, during which time, in contrast with earlier as-
signments, he was given no help. Employee Coronado testi-
fied that on one occasion during this week when he was
free and volunteered to help Guerra, Nabors, Jr., ordered
that he clean up the restroom instead. Coronado also testi-
fied that usually three different men worked on the Dal-
Ton job during the course of a week. Nabors, Jr., denied
any discrimination with respect to Guerra' s assignment
and denied assigning Coronado to clean the restroom rath-
er than permit him to help Guerra.
Coronado was not an impressive witness in support of
Guerra's contention that he was discriminated against.
Most of the time in question Coronado was working in a
building across the street from where the Dal-Ton trailer
was located and from this vantage point he was unable to
have anything approaching a complete picture of what was
occurring at the place where Guerra was at work.
Nabors, Sr., testified from the warehouse records that
from September 17 to November 14, 29 Dal-Ton trailers
were unloaded, and that of this number the following em-
ployees participated: Guadalupe Torres unloaded one by
himself. Raymond Coronado unloaded one by himself.
Frank Medrano unloaded 16 by himself. Guerra unloaded
six trailers by himself and five with help. As to the latter
group, on one trailer Guerra started at 8:55 a.m. and was
given help at 1:30 p.m. On a second trailer he started un-
loading at 7 a.m. and was given help at 2:30 p.m. On a
third, he started unloading at 6:45 a.m. and was given help
at 11:15 a.m. On a fourth, he started at 7 a.m. and was
given help at 8 a.m. On the fifth and last he started at 8:45
a.m. and had help until the job was finished.
On the basis of the foregoing evidence it is my conclu-
sion that the General Counsel failed to establish by a pre-
ponderance of the evidence that Guerra was the subject of
discriminatory work assignments.
2. Dudley Edwards
Edwards, a truckdriver, testified that he was the princi-
pal driver for all merchandise being sent to the local Wool-
co-Woolworth stores.10 Edwards signed an authorization
card early in the organizational campaign, attended most
of the union meetings , and was the union observer at the
election . According to Edwards, on the day of the election
he was given another route and thereafter made only one
run on the Woolco-Woolworth route until the time he vol-
untarily left the Respondent's employ on November 8. Ed-
wards testified that before the election he was the only one
to make the Woolco-Woolworth run, except when he fell
behind in which event employee Walter Savage was as-
signed to help him.
Vice President Nabors testified, contrary to Edwards,
that the Woolco-Woolworth assignment was not consid-
ered a definite route and that five or six different drivers
made deliveries to those stores. He further testified from
the dispatcher's records that from June 3 to October 18, the
day of the election, employee Savage made 62 deliveries to
Woolco-Woolworth stores, whereas Edwards made only
43. According to Nabors, Sr., from October 18 through
November 11, Savage made 11 Woolco-Woolworth deliv-
eries, and Edwards made 7.
The General Counsel called, in rebuttal, the receiving
clerks for two different Woolco stores. One was Teresa
Nebgen who testified that during August, September, and
October, Edwards made at least one delivery a week to the
store where she was assigned and that he made one deliv-
ery in November.ii Judith M. Dunaway, another Woolco
receiving clerk, gave some testimony that tended to corrob-
orate Nabors, Sr. Thus, she testified that, in addition to
Edwards and Savage, the Respondent had two other driv-
ers who made deliveries to the store where she worked. She
testified that she normally saw Edwards about three times
a month. From her records she testified that, on October
30, Savage made a trip to that store, but that the last mani-
fest which Edwards signed was dated October 2. These
records were inconclusive, however, for Dunaway testified
that the driver was required to sign a manifest only if there
was damaged merchandise on a shipment. As a result, the
records that she kept gave no indication as to how many
times a driver came to her store when there was no dam-
aged merchandise for which he had to sign.
From the foregoing, it is my conclusion that the General
Counsel has failed to establish by a preponderance of the
evidence that Edwards was the principal driver who
worked on Woolco-Woolworth deliveries or that he was
10 There are five Woolco stores and three Woolworth stores in the San
9 These were trailers owned by another freight line known as Dallas Ton- Antonio area.
page 11 Of course, on November 8, Edwards quit working for the Respondent
MERCHANTS DELIVERY SERVICE, INC. 1227
discriminatorily denied such assignments subsequent to the
representation election on October 18.
E. The Respondent's Issuance of Reprimand Letters;
Findings and Conclusions With Respect Thereto
Early in September the Respondent initiated a policy of
issuing written reprimands to the employees. Prior to that
time, reprimands, if given, were oral. Mr. Holleman, labor
relations consultant for the Respondent, stated at the hear-
ing that this practice was instituted on his recommendation
and immediately after September 8, when he was retained
to represent the Company.
Two such letters were sent to employee Guerra. The
first, dated October 1, stated that since his initial employ-
ment in July 1973 "and until very recently you have been a
good employee, but your recent behavior is grounds for a
3-day suspension . . . [to] be taken at a time to be named
and convenient to the company." The letter then enumerat-
ed five different incidents during the preceding 3 weeks
when Guerra allegedly engaged in work delays, com-
plained about his assignments, and made various mistakes.
The letter concluded with the threat that unless Guerra's
work improved he would be dismissed . A second repri-
mand, dated October 10, charged that, on October 8, after
Guerra reported that he had to secure medical care for a
sick child he did not return to the warehouse or call back.
It concluded with the admonition that if this conduct was
repeated Guerra would be subject to discharge.
Edwards also received two letters of reprimand. In the
first, dated October 18, President Vetters enumerated Ed-
wards' alleged deficiencies as a truckdriver over a period of
a year and asserted that that morning Edwards was respon-
sible for the breakdown of the truck to which he was as-
signed. The letter concluded with the warning that if Ed-
wards continued "to mistreat trucks and cause unnecessary
repairs" he would be subject to immediate termination. In
another letter dated October 21, Vetters criticized Edwards
for an accident which occurred that morning and in which
his truck was damaged. This letter also concluded with the
declaration that unless Edwards' performance improved he
would be dismissed. 12
The General Counsel conceded that in each instance de-
scribed in the reprimand letters the Respondent had a le-
gitimate basis for issuing a reprimand. The allegation that
Section 8(a)(1) was violated is based on the fact that subse-
quent to the initiation of the Union's organizational drive
the Respondent changed its personnel practices and on
September 8, as its advisor acknowledged, instituted a sys-
tem of written reprimands for any employee infraction of
its rules.
The Respondent was free to institute any changes in its
personnel policies that its business judgment dictated, so
long as these changes were not motivated for discriminato-
ry reasons and for the purpose of discouraging its employ-
ees in the exercise of their rights under Section 7 of the Act.
From the content of the warning letters outlined above,
12 Employee Mireles received two reprimand letters , the last of which was
a notice that he was being discharged . The General Counsel did not allege
that this termination was discriminatory.
however, it is evident that there is support for the General
Counsel's contention that some of the letters, at least, were
designed to dissuade the employees from supporting the
Union. Thus, in the October 1 letter to Felipe Guerra, Pres-
ident Vetters noted that until recently Guerra had been a
good employee, "but your recent behavior is grounds for a
3-day suspension. . . [to] be taken at a time to be named
and convenient to the company." In the letter of October
to Edwards, President Vetters reviewed all of the abuse to
which Edwards allegedly subjected his truck during the
preceding year. During this same period, as found earlier
herein, the Respondent's officers and supervisors uttered
many discriminatory threats and engaged in numerous acts
of discrimination, including the discharge of an employee
for his support of the Union. In the light of this back-
ground it is now found that the new system of reprimands
was instituted, at least in part, for discriminatory purposes.
In so doing the Respondent further violated Section 8(a)(1)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the tenure of Frank
Umblance, thereby discouraging membership in the
Union, the Respondent has engaged in and is engaging in,
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, the Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The General Counsel has not proved by a preponder-
ance of the evidence that the Respondent interfered with,
restrained, or coerced its employees in the exercise of the
rights guaranteed by the Act, except by the specific acts
and conduct found herein to have been violative.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that the
Respondent be ordered to cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily dis-
charged Frank Umblance, it will be recommended that the
Respondent be ordered to offer Umblance immediate and
full reinstatement , without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings that he may have suffered from the time of
his discharge to the date of the Respondent's offer of rein-
statement . The backpay for the foregoing employee shall
be computed in accordance with the formula approved in
F. W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest computed in the manner and amount prescribed in
Isis Plumbing & Heating Co., 138 NLRB 716, 717-721
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1962). It will also be recommended that the said Respon-
dent be required to preserve and make available to the
Board or its agents , on request, payroll and other records
to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respon-
dent are of a character striking at the root of employees'
rights safeguarded by the Act, it will be recommended that
the said Respondent be ordered to cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4, 1941).
Upon the foregoing findings and conclusions and the
entire record , and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 13
Respondent , Merchants Delivery Service , Inc., San An-
tonio , Texas, its officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging , or otherwise discriminating against any
employee because of activity on behalf of Food Processors
and Allied Workers , Teamsters Local Union No. 1113, a/w
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or any other la-
bor organization.
(b) Interrogating any employee concerning that
individual's union activity , or that of other employees, in a
manner constituting a violation of Section 8(a)(1) of the
Act.
(c) Threatening its employees with loss of jobs or closing
of its business if a majority become members of, or assist, a
labor organization.
(d) Engaging in surveillance , or giving the impression of
engaging in surveillance, of its employees with respect to
13 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.
their union or concerted activities.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Frank Umblance immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges and make him
whole in the manner set forth in the section 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, or appropriate, to analyze the amount of backpay
due.
(c) Post at its warehouse and dock in San Antonio, Tex-
as, copies of the attached notice marked "Appendix."14
Copies of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by the
Respondent's authorized representative, shall be posted by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 23, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges any unfair labor practices, other than
as herein specifically found.
14 In the event that the Board's Order is enforced by a Judgment of a
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 "