Mission Petroleum Carriers, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1977

229 N.L.R.B. 1276 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mission Petroleum Carriers, Inc. and Michael D.
Graves. Case 23-CA-6023
June 6, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On February 3, 1977, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed limited exceptions to a part of the
Decision, a supporting brief, and a brief supporting
other parts of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
We agree with the Administrative Law Judge's
finding that Respondent terminated employee
Graves in violation of Section 8(a)(3) of the Act. We
note, however, that the Administrative Law Judge
failed to make a finding regarding a conversation
Respondent's terminal manager had with Graves
which was alleged as an 8(a)(l) violation. The
General Counsel has filed an exception to this
omission and we find merit in the General Counsel's
exception.
The record reveals that on April 9, shortly after
Graves was discharged, he returned to the terminal
to pick up his check. After leaving the terminal
office, Graves was advised by another employee that
Terminal Manager Womack wanted to speak with
him. Womack, in front of several employees who
were in the office, asked Graves if he had been silly
enough to join the Union, and proceeded to tell him
that he (Womack) had bet someone that Graves
would not join the Union. In our view, this amounted
to unlawful interrogation about Graves' union
activities. Although Graves had already been dis-
charged, the inclusion of the phrase "silly enough" in
the statement had the effect of warning other
employees that they would find themselves in a
situation similar to that of Graves if they joined the
Union. Accordingly, we find that in these circum-
stances Womack's question and statement violated
Section 8(a)(1) of the Act.
229 NLRB No. 184
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Mission Petroleum Carriers, Inc., Houston,
Texas, it officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Insert the following as paragraph I(a) and
reletter the subsequent paragraphs accordingly:
"(a) Interrogating employees regarding their union
activities and threatening them with reprisal if they
join a union."
2. In relettered paragraph l(c) substitute the word
"other" for the word "like."
3. Substitute the attached notice for that of the
Administrative Law Judge.
I 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 are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
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
Brewery and Soft Drink Workers, Teamsters
Local Union No. 919, a/w the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and Team-
sters Freight, Tank Line & Automobile Industry
Employees, Local Union No. 988, or any other
labor organization, by discharging employees or
otherwise discriminating in any manner in respect
to their tenure of employment or any term or
condition of employment.
WE WILL NOT interrogate our employees about
their union activities or threaten them with
reprisal if they join a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
and enjoyment of rights guaranteed to them by
Section 7 of the National Labor Relations Act.
WE WILL offer Michael Graves immediate and
full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent one, without prejudice to the seniority
and other rights and privileges enjoyed by him,
1276
MISSION PETROLEUM CARRIERS
and make him whole for any loss of pay he may
have suffered by reason of his discharge, with
interest at the rate of 6 percent per annum.
All our employees are free to become, remain, or
refuse to become or remain members of said Union
or any other labor organization.
MISSION PETROLEUM
CARRIERS, INC.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
a charge filed on April 13, 1976, by Michael D. Graves, an
individual, herein sometimes called the Charging Party, a
complaint was issued by the Regional Director for Region
23 of the National Labor Relations Board on July 9, 1976,
against Mission Petroleum Carriers, Inc., herein called the
Respondent. The complaint alleged that the Respondent
interrogated employee Graves about his union activities in
violation of Section 8(aX)(I) of the Act; and thereafter
discharged Graves and continues to fail and refuse to
reinstate him to his former position of employment because
he engaged in union activity in violation of Section 8(aX3)
and (I) of the Act. The Respondent filed an answer
denying the above allegations set forth in the complaint.
This case was heard before me in Houston, Texas, on
August 10, 1976. Briefs have been received from counsel
for the General Counsel and counsel for the Charging
Party, respectively, which have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Mission Petroleum Carriers, Inc., the Respondent herein,
is a Texas corporation engaged in the transportation of
bulk petroleum and petroleum products. During the
preceding 12 months, a representative period, the Respon-
dent purchased and received directly from outside the State
of Texas goods valued in excess of $50,000.
The complaint alleges, the parties stipulated, and I find
that the Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the parties stipulated, and I find
that Brewery and Soft Drink Workers, Teamsters Local
Union No. 919, a/w the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and Teamsters Freight, Tank Line & Automobile
Industry Employees, Local Union No. 988, herein called
the Union, are, and have been at all times material herein,
All dates referred to herein refer to the year 1975 unless specified
otherwise.
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Mission Petroleum Carriers, Inc., the Respondent herein,
is a Texas corporation with its principal office and place of
business in San Antonio, Texas, and several terminals in
Houston, Texas, where it is engaged in the transportation
of bulk petroleum, petroleum products, oil field equipment,
and iron and steel articles. The Respondent and the
employees in this proceeding are involved only with the
Mississippi Street terminal in Houston, Texas.
The Charging Party, Michael D. Graves, an individual,
and his fellow employees with whom this proceeding is
concerned, were, or are employed in the capacity of
truckdrivers for the Respondent. As truckdrivers, they
operate the Respondent's 8,000- to 9,000-gallon capacity
trailer trucks hauling gasoline from Respondent's terminals
to various customer destinations. The drivers are paid on
the basis of the number of loads of gasoline they haul, and
occasionally, the Respondent sponsors a money contest
paid to a driver winner who hauls the most loads of
gasoline. Truckdriver Michael Graves was in the employ of
Respondent from March 15, 1974, until he was discharged
on April 8, 1976.' Three months prior to his discharge,
Graves won one of the aforedescribed gasoline hauling
contests. However, the crucial issues presented by the
pleadings and the evidence herein are whether the
Respondent on or about April 9, 1976, interrogated
Michael Graves in the presence of his fellow employees
about his union interest and affiliation; and whether the
Respondent's discharge of Graves on April 8, 1976,
constituted unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.2
B. The Supervisory Status of Harry Short and the
Employment of Gary Criswell and Edward Rouse
In support of the allegations that Harry Short is a
supervisor within the meaning of the Act, the General
Counsel produced two witnesses, Gary P. Criswell and
Edward Rouse. Gary Criswell who is admittedly the
brother-in-law of Harry Short testified that about mid-
October 1975 he asked Short about the possibility of his
employment with the Respondent. Short replied in effect
that he had suggested that Respondent take on part-time
employees and that he would check into that possibility
and contact Criswell later. In a few days Criswell was
called by Short, who had him complete an application for
employment. Upon completing the application Short then
instructed Criswell where to go to take his physical
examination, adding, that as far as he was concerned he
(Criswell) was hired if he passed the physical examination.
Criswell passed the physical examination and reported to
work. Truckdriver Edward Rouse testified that he too was
hired by Harry Short. Denying that he had the authority to
hire Criswell or Rouse, Harry Short testified that he simply
2 The facts set forth above are undisputed and are not in conflict in the
record.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submitted their applications for employment to Manager
George Womack for approval, who in turn approved the
employment of Criswell and Rouse for temporary status.
He further testified that Edward Rouse was recommended
to him for employment by Gary Criswell.
A. E. Kelly, general manager for the Respondent,
testified that Harry Short is not and has not been a
supervisor and does not exercise any specific supervisory
authority. However, the testimony of Criswell, Rouse, and,
to some extent, Harry Short established that Short assigns
the workloads to the drivers, exercising judgment with
respect to equity in distribution and distance of the
workload, in accordance with the time and economy
interests of the Respondent; that when an employee wants
to take leave, he contacts Harry Short; that when
discrepancies in worktime of the truckdrivers arise, they
are brought to the attention of Harry Short who resolves
them; and that Short told Rouse that the part-time
employment plan to relieve regular drivers was advanced
by him (Harry Short) and that the part-time help was his
baby and if it didn't work out, it would be his head rolled.
Short acknowledged that he received the applications of
Rouse and Criswell and that he interviewed them and
instructed them concerning their physical examinations,
but that the applications were telephonically submitted by
him to Terminal Manager Womack for approval. In an
effort to support his position that Harry Short is not a
supervisor, counsel for the Respondent tried to discredit
the testimony of Edward Rouse, who is presently confined
in the Harris County jail and appeared at the hearing
accompanied by a sheriff (or other custodial authority). He
asked Rouse if he had ever been convicted of a felony.
Rouse replied that he had, and further examination
established that this occurred before he was employed by
the Respondent. 3 Based upon the foregoing credited
evidence of record, I thereupon conclude and find that
Harry Short exercised some of the authorities itemized
under Section 2(1 1) of the Act, and therefore is a supervisor
within the meaning of the Act.
C. The Union Activity and Discharge of Michael
Graves
The undisputed evidence, which I credit, established that
for several months Respondent (General Manager Kelly
and Terminal Manager Womack) had promised Respon-
dent's truckdrivers a raise in pay on the amount of gasoline
loads they hauled. The discussion of the raises occurred in
the safety meetings which were held periodically by the
Respondent. When the truckdrivers did not receive a pay
raise they started discussing the feasibility of unionizing the
Respondent's terminal. Such discussions occurred in small
groups and dischargee Michael Graves personally talked to
all 14 or 15 of the drivers about the Union. Graves
3 Although Edward Rouse had at one time been convicted of a felony, I
nevertheless credit his testimony in this regard because it is supportive of the
testimony of Gary Criswell, and to some extent to that of Harry Short and
Michael Graves, with respect to the duties performed by Harry Short.
Moreover, as I observed the facial expressions and overall demeanor of
these aforenamed witnesses, I was thereby persuaded that they were
testifying truthfully in this regard. It further appears that the mode of
operation of the Respondent's business required Harry Short to do exactly
what the testimony of these several witnesses stated he did. The evidence
thereafter decided to contact a union. On April 6, 1976,
Michael Graves called a Mr. Renato A. Cuellar, president
and business manager of Local 919 of the Teamsters, and
told him that Respondent's employees were interested in
talking with him. On April 7, 1976, Mr. Cuellar met with
Michael Graves (and a fellow truckdriver) at 9 a.m. at
Dot's Cafe.
Michael Graves testified that as he arrived at Dot's Cafe
he pulled 50 feet or so past the fire hydrant so that his truck
would not block a fire hydrant and a no parking sign. He
put on his flashers and proceeded to look for Mr. Cuellar.
With respect to where Graves parked his truck, Mr.
Cuellar, who was wearing a colorfully labeled Teamsters
jacket, testified that as he arrived at Dot's Cafe he noticed
one of Respondent's trucks parked on the feeder road. On
further examination he stated that there was a no parking
sign there but not where the truck was parked, and he
stated that he did not notice whether the truck's blinkers
were on but he did not think so. Mr. Cuellar and Graves
met inside Dot's restaurant for about 30 minutes during
which time Cuellar advised Graves of his Section 7 rights.
He also told Graves that, although the law provides that he
should not be discharged for union activity, it was possible
that he could be discharged and, in such event, told Graves
to contact him. He further advised Graves that he was not
the proper union representative to organize the Respon-
dent's employees but that he would put Graves in touch
with the appropriate union representative for organizing
the employees.
At the close of his workday on April 7, Graves called
Dispatcher Harry Short (as was the established practice) to
learn what load and destination he had been assigned for
the next day. Short then informed Graves that he was not
dispatched because Terminal Manager George Womack
had something special for him. Graves called Manager
Womack at home that night and asked him why he was not
dispatched for the next day (April 8, 1976). Manager
Womock told him to come to the office the next morning at
8 o'clock because he wanted to talk to him.
When driver Graves reported to work the next morning
(April 8, 1976) Manager Womack had not arrived as yet
and he spent some time talking to fellow truckdriver
Eldered York. They discussed the possibility that Respon-
dent was going to fire Graves and, as Manager Womack
arrived, York told Graves that he wanted to talk to
Manager Womack before he (Graves) talked to Womack.
York then rushed to Manager Womack and they talked for
about 10 or 15 minutes. The substance of their conversa-
tion, according to the testimony of Manager George
Womack, was that York told him Michael Graves thought
he was going to be fired on account of a little accident he
had 3 days ago and on account of his talking with the
Union. Womack said he then told York that he did not
does not show that there was another terminal dispatcher who carried out
the same functions as Harry Short. Therefore, I conclude upon, and deduce
from, the logical consistency of all the evidence of record that Harry Short
did assign workloads, granted or approved leave, corrected discrepancies in
working time and attendance, hired part-time employees. and recommended
the employment of part-time employees. I also credit Rouse's corroborated
version over that of Manager Kelly because Manager Kelly appeared to be
testifying in support of his interest in this regard, since it would be favorable
to his position if Harry Short were found to be a supervisor.
1278
MISSION PETROLEUM CARRIERS
know anything about union talk but that Graves had been
told along with the other drivers at the safety meeting
about the three collisions, caused by parking on feeder
streets and the sides of highways; and that at that meeting
he (Womack) told all drivers that if anyone was caught
parking in that manner they would be discharged.
Thereafter, Manager Womack called Graves and, ac-
cording to Graves' testimony, the following conversation
ensued:
A. Well, he informed me-first of all, he said
that-something like that I had put him in a bind, that
he had needed me to pull the loads of the dispatch, of
the big dispatch that they had the night before, and that
the insurance man-that they had got a call from-first
he asked me if I had parked at Dot's Cafe the morning
before and had breakfast or anything. And I said, yes, I
had.
And he said that the insurance man they had for the
company come by and seen my truck parked out there
and wrote up a report of it and sent it to Mr. Kelly.
Q. All right.
A. And Mr. Kelly and said that, by looking at the
report, that I was parked in a hazardous location, or
whatever, and they were going to have to let me go.
Q. Did he tell you anything else about what that
so-called report had said?
A. Well, he said that I had parked on the feeder
road in a no parking zone, and that I didn't have any
flashers on my truck or any kind of safety devices or
anything like that to warn anybody.
Q. All right. And he told you that he was going to
have to let you go?
A. Yes, sir. And he said that if I needed-that I
had been a good employee, hadn't messed up real bad,
and if I needed any job references, to call him.
Graves further testified that he could not understand the
subject of the insurance adjustor's report because he knew
he was not parked in a no parking zone and that he left his
flashers on when he went into Dot's Cafe. Consequently,
Graves said he then contacted Respondent's insurance
adjustor, Robert Stevenson, and as a result of that
conversation 4 he was convinced that the Respondent was
not telling him the truth as to why he was discharged.5 He
thereupon contacted Mr. Ponce, the union representative
to whom he had been referred by Mr. Cuellar. They
discussed his discharge by Respondent and Mr. Ponce gave
him some union pamphlets and other union literature.
Graves took the literature along with union authorization
cards when he went to the terminal to pick up his check on
April 9. At that time he showed the literature to fellow
4 I excluded Graves' testimony with respect to the substance of a
conversation he had with Respondent's insurance adjustor, Robert Steven-
son. because such conversation was obviously self-serving.
I I discredit Michael Graves' denial that he was wrongfully and illegally
parked because I was persuaded by the demeanor of the witnesses, the
geographic layout of Dot's Cafe as shown by photographic exhibits, and the
circumstantial evidence of record that Michael Graves was parked illegally
and in violation of Respondent's rules and Department of Transportation
Regulations on April 7. 1976; and that Graves did not leave his truck
flashers on at the time. However. I credit Graves' contention that
Respondent's insurance adjustor did not detect and report Graves' wrongful
truckdriver Edward Lee Rouse, Gary Criswell, Coleman
Richard and possibly a few other truckdrivers on the
parking lot. When Manager Womack arrived, Graves went
into the office and picked up his check and he placed a
copy of the union literature on the terminal's bulletin
board. Graves also testified that, about a year ago after the
union election at Respondent, Manager Kelly told him the
company had come a long way and that he was opposed to
the Union and hoped it would stay that way.
Shortly after he (Graves) left the office, truckdriver
Coleman Richard came out and advised him that Mr.
Womack wanted to talk with him. Graves thereupon
reentered the office and he testified that the following
transpired:
A. Mr. Womack told me that he had made a ten
dollar bet with someone and asked me if I had been silly
enough to join the union, that he bet him ten dollars that I
wouldn't.
Q. All right. Then what did you say?
A. Well, I told him he shouldn't make bets like
that, he might lose his money.
According to Gary Criswell, others besides him who were
present in the office during the above-described conversa-
tion were Edward Rouse, a man named Pat, a mechanic
and Respondent's bookkeeper, whose names he could not
recall. Criswell corroborated Michael Graves' testimony of
that conversation as described above by Graves. Graves
said he then left the office and placed the union pamphlets
on the bulletin board.
Terminal Manager George Womack's account of his
conversation with Michael Graves during the payday
meeting was as follows:
And I asked him, I says, something wrong with it?
Did we pay you for all your loads, or is there something
missing?
He said, no, it surprised me, they are all there. And
he stood there, I guess, for two or three minutes.
And I looked down at the desk and saw this bulletin,
and I just asked him, I said, say, Mike, tell me
something. I said I made a bet a while ago with an old
boy, I said, tell me whether I lost or not.
He said, what was it?
I sai4 I bet him ten dollars that you hadn't been
involved in any union activities. Did I lose or win?
He said, well, I'll tell you this much, he said, I don't
have a union card in my pocket right now, but
tomorrow I might.
And I said, well, I'll be doggoned. Well, best of luck.
parking to Respondent because Respondent did not produce a report of the
adjustor nor did it have the adjustor appear as a witness for Respondent. On
the contrary. the record shows that Respondent now contends that Graves'
wrongful parking at Dot's Cafe was discovered and reported to Respondent
by Respondent's general manager, A. E. Kelly, who testified to such fact at
the hearing. However. I discredit Terminal Manager George Womack's
account and his denial, supra, that he did not first tell Graves of an
insurance adjustor's report. Obviously, Manager Womack had to change his
story about an insurance adjustor's report because he did not have one, and
because he probably learned that Graves had contacted Respondent's
insurance adjustor and probably learned that there was no such report.
1279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He stood there maybe two or three more minutes,
and they started easing out, him and all the other
fellows.
Q. Have you ever told any of the employees of the
company that Mike Graves could think twice about
joining a union?
A. No.
Q. You categorically deny that?
A. Ido.6
Gary Criswell further testified that, subsequent to the
discharge of Michael Graves, he and fellow employee
Edward Rouse were in the office of Dispatcher Short when
Short said Michael Graves was no longer with Mission
Petroleum. They asked him why and their conversation
continued as follows:
A. We asked Mr. Short, well, what happened?
What happened to Mike?
He has been dismissed, the reason being-
Q. Who is this speaking now?
A. Harry Short. He said the reason that was given
is he parked his truck in an unsafe manner in front of
Dot's Cafe.
I said, well, what do you mean? All trucks park over
there. They stop and get coffee, something to eat.
He said, well, I didn't say anything, but he was over
there talking to some union officials. You say anything
like that, and I'll deny it.
Dispatcher Harry Short denied that he had any discus-
sion with Graves about the union matter. However, he said
about a week after Graves was terminated he had a
discussion with Gary Criswell, Elton York, and the other
drivers, wherein lie told them that Graves was terminated
because he parked his truck in an unsafe parking place. He
denied saying anything about a union and he denied that
on the next day he ever told drivers the real reason Graves
was terminated was because he met with a union official in
Dot's Cafe.'
Based upon the foregoing credited testimonial evidence
and the logical and credited circumstantial evidence of
record, infra, I conclude and find that immediately prior to,
on, and subsequent to April 7 Michael Graves was engaged
in union activity in and about Respondent's terminal and
at Dot's Cafe; and that Respondent had knowledge of such
activity on April 7, prior to its discharge of Graves on April
8.
6 I credit the testimonial account of Michael Graves over that of
Terminal Manager George Womack that on Aprl 9 the latter asked Graves
if he had been silly enough to join the Union. I credit Graves' version
because he appeared to be testifying in a straightforward and truthful
manner and because his version is essentially corroborated by the testimony
of former employee, Gary Criswell. On the contrary, I observed Manager
Womack as being uneasy and rather cautious while testifying on this subject
and I was not persuaded that he was testifying truthfully. Furthermore,
Respondent's bookkeeper and one of its mechanics who were undeniably
present during the conversation did not appear on behalf of the Respondent
to controvert Graves' version. Even though Michael Graves denied during
this hearing that he had ever been indicted and it was later shown that he
had in fact been indicted, I nevertheless credit his testimony because he
appeared to be testifying truthfully and because his version is consistent
with Criswell's version. I do not know why Graves denied that he had not
been indicted when in fact he had been. but even so an indictment does not
establish guilt under our system of jurisprudence and the evidence of his
D. The Truckdriving Record of Michael Graves
Respondent General Manager A. E. Kelly testified that
on the morning of April 8, 1976, he was in route to
Respondent's dock facility on the Gulf Freeway when he
noticed one of Respondent's trucks parked in a no parking
zone. He turned around, came down off the Freeway and
drove up to the truck which was parked near the front of
Dot's Cafe. He checked the vehicles' number and proceed-
ed on to his office. Immediately, he called Terminal
Manager Womack and asked who was driving that
particular vehicle. Manager Womack told him Mike
Graves was driving that particular truck. He then advised
Manager Womack that, due to Michael Graves' past
driving record and his conversations with Graves in
relationship thereto, Graves should be terminated immedi-
ately. Terminal Manager Womack said he carried out the
order.
When asked what conversations he had with Graves,
Manager Kelly stated that he had a conversation with
Graves on February 24, 1976, the substance of which was
as follows:
Mike Graves came over to that terminal to have
some repair work done on his truck and I was talking to
him out in the shop. I told Mike that I wanted to visit
with him a few minutes about his driving record. I told
him how important a driver's record was to a profes-
sional truck driver, and due to his accidents and his
rear end-the way that he had been parking his trucks,
that the first thing you know, his driving record would
be so bad that he wouldn't be able to obtain a job for a
trucking company, wouldn't be able to meet the
Department of Transportation rule and regulations,
that his driving record was very, very important, and
that if he was illegally parked again, that he was going
to be subject to immediate termination.
Manager Kelly further described Graves' driving record
as follows:
Q. (By Mr. Hackney) After he was rehired, did he
have any other accidents which you used in making
your determination?
A. Absolutely.
Q. Would you describe those specifically for the
Court?
indictment was introduced into the record only to test his credibility.
Moreover, in spite of Graves' inconsistent statement with respect to the
indictment, his testimonial version of the conversation, like that of Gary
Criswell's, is further supported by other testimonial and circumstantial
evidence in the record, infra. I therefore find no logical reason to discredit
Graves' testimony simply because he first denied that he was indicted for
stealing gasoline.
7 I credit Gary Criswell's testimony of the conversation he had with
Supervisor Harry Short as to why Michael Graves was discharged. Not only
was 1 persuaded by his demeanor, as he testified, but his version is amply
supported by the logical consistency of all of the evidence of record.
Additionally, as Harry Short testified, I particularly observed him nervously
moving his hands during the crucial aspects of interrogation on this subject.
He was quite ill at ease and I was persuaded by his conduct that he was not
testifying truthfully. I therefore discredit his version on the subject
conversation.
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MISSION PETROLEUM CARRIERS
A. He had another accident where he had pulled
off of the freeway and stopped his vehicle and claimed
to have gotten out of the truck-I don't know what
for- and was hit in the rear by another vehicle.
Q. All right, sir.
Did Mr. Graves have any other accident prior to the
time of his discharge?
A. Yes, he did. He had one accident where that he
was going through an intersection, and he struck a car
and fatally injured one man and injured two more
persons.
Q. Are these the only accidents, or were there other
accidents?
A. There were other accidents. Two days prior to
his discharge he had had an accident. And it is
company policy that all accidents are to be reported
immediately. He went to the shop foreman and asked
him if he would repair this damage for him, and the
shop foreman, in turn, reported it to Mr. Womack.
When Manager Womack was asked had the Respondent
ever had to pay out any money on account of accidents
caused by Michael Graves, Manager Womack said that he
has seen the check from the other party's insurance
company made payable to the Respondent as a result of an
accident, but he did not know of any case where the
Respondent had to pay liability damages for Graves'
accidents.
With respect to Respondent's rules prohibiting parking
within 50 feet of the Freeway (thoroughfare or roadway),
Michael Graves said that he has seen many of Respon-
dent's trucks parked within 50 feet of the roadway. In
support of his testimony in this regard he submitted
photographs (G.C. Exhs. 4-9) taken on August 7, 8, 9, and
10, 1976, showing six of Respondent's trucks parked within
less than 50 feet of a thoroughfare at the site of several
restaurants or coffee shops, within 10 to 45 miles of the
Respondent's terminals. He further testified that the
Respondent has never had to pay out any money
attributable to accidents caused on his part.
Graves acknowledged that he knew parking his truck in
front of Dot's Cafe was a violation of the Department of
Transportation's regulations dealing with loaded gasoline
trucks. He admitted that he had not taken photographs of
parking signs in front of the various eating stops in the
photographs, with the exception of one, but stated that
such signs were there. Dot's is the only eating stop within
the city and he acknowledged that Respondent's policy was
to get the truck off the road if possible, but that there were
R In evaluating the credibility of Managers Kelly and Womack versus the
credibility of Michael Graves, with respect to Graves' driving record and
Manager Kelly's warning Graves about the same, I found it necessary to
credit and discredit various aspects of the testimony of each of the above-
named witnesses, because I was persuaded that each witness was selective in
his testimony with reference to his respective interest in the outcome of this
proceeding. I therefore credit such aspects of their testimony on which I was
persuaded by their demeanor, by any available records, by any manifested
propensity which indicated that they were telling the truth, as well as by the
logical circumstantial evidence in the record which tended to support such
aspects of their testimony. In doing this, I credit Manager Kelly's version
over Graves' that he discovered how Graves was wrongfully parked in
violation of company rules and Department of Transportation Regulations
at Dot's Cafe on April 7. 1 also credit Manager Kelly's version that he had
talked to Graves on February 24 and possibly a few other times because it is
few places where you could park the truck completely off
the road within the city limits of Houston.8
Analysis and Conclusions
The issues presented for decision by the pleadings and
the evidence in the instant proceeding are as follows:
(1) Whether Dispatcher Harry Short was a supervisor for
Respondent on and prior to the discharge of Michael
Graves on April 8?
(2) Whether Michael Graves was engaged in union
activity on and before April 8?
(3) Whether Respondent had knowledge of union
activity on the part of Michael Graves before it discharged
him on April 8?
(4) Whether Respondent's discharge of Michael Graves
was motivated in whole or in part by union activities of
Graves?
The Supervisory Status of Dispatcher Short
With respect to the supervisory status of Dispatcher
Harry Short, the credited evidence of record clearly
demonstrates that the only dispatcher, Harry Short,
assigned employees' workloads, granted and approved
employees' leave, corrected discrepancies in the employees'
working time and attendance, hired and recommended the
hiring of part-time employees, and exercised independent
judgment in coordinating the distribution of work assign-
ments so as to satisfy the economic interest of the
Respondent. Although these functions do not exhaust
every supervisory function described and itemized under
Section 2(11) of the Act, the Board has consistently held
that an individual need not possess or exercise every aspect
of authority or function described in the Act in order to be
found a supervisor.
Since Dispatcher Harry Short was the only dispatcher
and the principal, if not the only, managerial person with
whom the truckdrivers communicated daily, and from
whom they received orders every day, it is obvious that
Short who exercised the aforedescribed authorities is a
supervisor within the meaning of the Act. See Custom
Bronze & Aluminum Corp., 197 NLRB 397 (1972); and
Consolidated Freightways Corporation of Delaware, 196
NLRB 807 (1972), cited by counsel for the General
Counsel.
inconceivable that any employer would not talk with a driver who had
several accidents, regardless of whether or not the driver was responsible for
such accidents. However, I do not credit Manager Kelly's story that he gave
Graves a final and ultimate warning on February 24, or any other time, that
he would be discharged if he were found wrongfully parked on a road again.
I discredit Manager Kelly's testimony that he gave such a warning because
the record shows that he did not give Graves a single formal (written
warning) in spite of the accidents which the record recites. Moreover,
Graves undisputedly explained that the accident where someone ran into
the rear of his truck was not occasioned by his having parked the truck, but
rather, by the truck having broken down on the side of the road. Also, the
evidence is consistent that Graves did not cause Respondent to pay liability
damages for any accident in which he was involved. The fact that
Respondent retained Graves in its employ with the record of his accidents
tends to support Graves' explanations.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union Activity of Michael Graves
The undisputed evidence of record shows that several
days prior to April 7 Michael Graves talked to all 14 or 15
of Respondent's truckdrivers about organizing a union;
that he contacted a union representative (Mr. Renato A.
Cuellar) on April 6 and met with him on the next morning
(April 7) at Dot's Cafe; and that he talked to coworker
Eldered York on April 8 about his union activity and
thereafter distributed union literature at Respondent's
terminal on the same date.
Respondent's Knowledge of Graves' Union
Activity and Its Discharge of Him
The crucial and highly controverted issues presented for
determination are whether Respondent had knowledge of
Michael Graves' above-described union activities at the
time it discharged him on April 8 and, if so, did
Respondent discharge him for engaging in such activities.
Although Respondent denied it had knowledge of Graves'
union activities prior to its discharge of him on April 8, the
credited evidence of record shows otherwise.
When Graves met Union Representative Cuellar at Dot's
Cafe on the morning of April 7, Mr. Cuellar was wearing a
colorful jacket with the name "Teamsters" in letters across
it. As they sat in the cafe discussing the organization of
Respondent's employees, Respondent's general manager,
A. E. Kelly, drove up to the cafe, purportedly to investigate
the numerical identity and the propriety of the parking of
the loaded truck which Graves was driving and had
parked.
According to testimony of Manager Kelly, he was so
concerned about one of its trucks being wrongfully parked
at Dot's that he drove down off of the Freeway from which
he spotted it and came up to the truck simply to take the
number of the truck because of the danger it posed to the
community, in view of a new history of accidents
occasioned by Respondent's truckdrivers failing to park 50
feet off the roadway. It struck me as being rather strange
that a company official who personally knew its truckdri-
vers as does Manager Kelly would not have entered the
cafe to warn, fire, or order the driver to move the truck if it
in fact posed the danger he said it did. However, instead of
following that course of action, Manager Kelly said he
returned to the terminal to ascertain who was driving the
truck and, upon learning that it was operated by Michael
Graves, ordered his discharge. While the course of action
allegedly taken by Manager Kelly under these circum-
stances are certainly possible, I do not believe his story.
The total evidence of record strongly infers that Manager
Kelly had prior knowledge that Graves was in the cafe on
union business or that Mr. Kelly did the reasonable and
normal thing after arriving there: Followed natural
curiosity and entered the cafe to see who was the driver of
the truck and, in doing so, observed Graves and Union
Representative Cuellar, who was wearing his obviously
labeled "Teamsters" jacket. Upon discovering or verifying
Graves' union activity in the cafe, Manager Kelly went or
returned directly to the terminal and ordered Graves'
discharge. The above analysis of Manager Kelly's knowl-
edge of Graves' union activity is further supported by his
precipitous order to Manager Womack to discharge Graves
without warning or talking to him. This is especially so
when it is considered that Graves has been in the
Respondent's employ for 2 years prior to this incident of
wrongful parking.
Further reinforcing the evidence that Respondent had
knowledge of Graves' union activity is the first reason
Manager Womack advanced to Graves as to why Graves
was being discharged on April 8. More specifically, when
Graves asked Manager Womack why was he discharged,
the latter advised him that Respondent's insurance adjus-
tor had observed Graves wrongfully parked at Dot's Cafe
and, pursuant thereto, submitted a written report of the
matter to Respondent. However, since Graves did not
understand the basis for such a report, he contacted
Respondent's insurance adjustor and could not verify that
such a report had been made. Respondent apparently
learned that Graves had contacted its insurance adjustor
and possibly learned that there was no such report.
Consequently, the Respondent did not contend at the
hearing that it had ever received such a report from its
insurance adjustor. Nor did Respondent have its insurance
adjustor appear at the hearing to confirm or deny such a
report. Instead, at the hearing the Respondent established
that it was General Manager Kelly who discovered Graves'
wrongfully parked truck at Dot's Cafe. I perceive this
change in Respondent's story about how it learned about
Graves' wrongfully parked truck as an abandonment of a
futile effort on its part to contrive a story that would
conceal the fact that Manager Kelly was in or around Dot's
Cafe at the time Graves was there.
In other words, if Graves could not have established that
a company official had been at Dot's Cafe at the time he
(Graves) was there, Respondent could then successfully
maintain that Mr. Kelly did not observe Mr. Cuellar in his
well-labeled union jacket. Respondent would be better able
to then conceal its knowledge of Graves' union activity.
The fact that Respondent (Mr. Womack) told Graves the
story about an insurance adjustor is additional evidence
that it knew about Graves' union activities which it tried to
conceal. I also considered the probability that the Respon-
dent received prior notice about Graves' union activity or
his meeting with Mr. Cuellar at Dot's Cafe, since Graves
had talked to all of the truckdrivers about the Union and
his efforts to organize the employees.
Although I find the above-discussed chain of direct and
circumstantial evidence of Respondent's knowledge of
Graves' union activities sufficient to establish knowledge of
such activity on the part of the Respondent, more
probative evidence of such knowledge is found in the
credited testimony of Supervisor Gary Criswell. That is,
only a day or two after Graves was discharged by the
Respondent, Gary Criswell asked Supervisor Short why
Graves was discharged. Supervisor Short said Graves was
over at Dot's Cafe talking to some union officials, but if
they repeated or quoted him, he (Short) would deny it.
Since Short is a supervisor (a part of management) and the
person between the truckdrivers and Managers Kelly and
Womack, I consider it reasonable to rely on the authentici-
ty of Short's explanation, as Criswell obviously did.
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MISSION PETROLEUM CARRIERS
It is also established by the evidence that on April 9
Manager Womack asked Graves if he had been foolish
enough to join the Union because he (Womack) had bet
$10 he would not join the Union. I consider this question
and statement as additional evidence from which knowl-
edge of Graves' union activity, as well as union animus on
the part of the Respondent, may be inferred.
Respondent contends that it discharged Graves for
wrongfully parking his truck at Dot's Cafe, in view of his
accident-prone truckdriving record. The Administrative Law
Judge does not evaluate the reasonableness or moral
propriety of Respondent's contended reasons for discharg-
ing Graves. However, I did examine Respondent's con-
tended reasons for discharging Graves in order to ascertain
whether such reasons were motivated in part by the union
activity of Graves. In examining Respondent's aforestated
reasons for Graves' discharge, I particularly noted the
following factors:
1. Graves was first advised that he was discharged for
wrongfully parking his truck in front of Dot's Cafe.
2. Subsequently, at the hearing Respondent contends
that Graves was so discharged in view of his poor
(unexplained) truckdriving record also.
3. Although Graves' truckdriving record, as developed
and described at the hearing by Respondent, is unfavor-
able, it does not appear quite so unfavorable after Graves
established that he was not at fault in the accidents
enumerated, and that Respondent incurred no liability in
damages therefor.
4. Graves' explanations of the driving accidents then
make it appear that Respondent was exaggerating the
unfavorable signficance of his driving record.
5. Respondent retained Graves in its employ in spite of
his truckdriving record until he wrongfully parked his truck
on April 7, at the opportune time when Graves was
meeting with a union official.
6. Respondent could not establish that it ever gave
Graves a written warning or an ultimate warning about his
truckdriving record.
7. Respondent precipitously discharged Graves on
April 8 without a warning even though Graves had been in
its employ for 2 years prior thereto.
Respondent contends that on April 7 General Manager
Kelly was in route to work when he just happened to
observe one of Respondent's trucks parked in front of
Dot's Cafe; that he followed his curiosity and drove his car
down off the Freeway and down to the Dot's Cafe at a time
when one of its truckdrivers, Michael Graves, was in the
cafe holding a union meeting with a Teamsters representa-
tive. From this testimonial version Respondent would ask
one reading this record to attribute the timely passing of
Mr. Kelly and his timely investigation of the parked truck
to coincidence. However, after a reading of the entire
record in this case, I am persuaded that Mr. Kelly's
discovery of Graves' wrongful parking and its discharge of
Graves cannot be logically attributed to coincidence. In
fact, common experience discredits it.
When all of the above factors are considered in
conjunction with all of the heretofore discussed evidence of
record, it becomes obvious that Graves was discharged by
the Respondent for his union activity. While I willingly
concede that a poor driving record may amply serve as just
cause for discharge of a truckdriving employee, I reject
Respondent's contention that that was the reason it
discharged Graves. On the contrary, based upon all of the
evidence of record, I find and conclude that Respondent's
discharge of Graves was substantially, if not wholly,
motivated by Respondent's knowledge of Graves' union
activity, and that Respondent's contention that Graves was
discharged for his poor driving record and wrongfully
parking his truck at Dot's Cafe was a mere pretext to
conceal its unlawful discharge of Graves.
I find that Respondent's discharge of Michael Graves
was discriminatory and violative of Section 8(a)(3) and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section 1II,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial Order, I shall
recommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies of
the Act.
It having been found that Respondent interfered with,
restrained, and coerced employee Michael Graves in the
exercise of his Section 7 protected rights, in violation of
Section 8(a)(1) of the Act; and that it discharged Michael
Graves in violation of Section 8(a)(3) and (1) of the Act,
the recommended Order will provide that Respondent
offer Michael Graves reinstatement to his job and make
him whole for loss of earnings within the meaning and in
accord with the Board's decisions in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumhing &
Heating Co., 138 NLRB 716 (1962), except as specifically
modified by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4
1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Mission Petroleum Carriers, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Brewery and Soft Drink Workers, Teamsters Local
Union No. 919, a/w the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
1283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, and Teamsters, Freight, Tank Line & Automo-
bile Industry Employees, Local Union No. 988, are, and
have been at all times material herein, labor organizations
within the meaning of the Act.
3. By discriminating in regard to tenure of employment
of Michael Graves, thereby discouraging membership in
the Union or other labor organizations, Respondent has
engaged in unfair labor practices condemned by Section
8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 8
Respondent Mission Petroleum Carriers, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating in regard to tenure of employment of
employees, thereby discouraging membership in the Union
or other labor organizations.
(b) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
s 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.
(a) Offer Michael Graves reinstatement to his former
position or, if such position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights previously enjoyed, and make him
whole for any loss of pay suffered by reason of the
discrimination against him with interest at the rate of 6
percent, in the manner described in the section entitled
"The 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,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of the recommended Order.
(c) Post at Respondent's terminals at Houston, Texas,
copies of the attached notice marked "Appendix." 9 Copies
of said notice, on forms provided by the Regional Director
for Region 23, after being duly signed by Respondent's
representatives, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 23, in
writing, 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 violations of the Act not herein found.
9 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."
1284