Quality Transport Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1974

211 N.L.R.B. 198 (N.L.R.B. 1974)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quality Transport Inc. and Transportation Employees
Association, a/w District 2, MEBA, AFL-CIO.
Case 15-CA-4985
June 7, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 28, 1974, Administrative Law Judge
Benjamin A. Theeman issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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,
findings,I and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that Respondent, Quality Transport
Inc., New Orleans, Louisiana, its officers, agents,
successors , and assigns, shall take the action set forth
in the said recommended Order.
i We agree with the Administrative Law Judge's finding that Respon-
dent's President McClure's speech to the employees, implying that if the
Union won bargaining would be from "scratch," violated Sec. 8(a)(l) of the
Act, when considered in the context in which the remark was made and in
light of the numerous other unfair labor practices engaged in by the
Respondent.
DECISION
STATEMENT OF THE CASE
BENJAMIN A. THEEMAN, Administrative Law Judge: The
amended complaint ' alleged that Quality Transport, Inc.
(Quality or Respondent) from on or about July 26, 1973, 2
has engaged and is engaging in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
29 U.S.C. Section 151, et. seq. (the Act) among other things
by (a) illegally interrogating its employees about their
union activities ; (b) threatening employees on several
occasions with (1) loss of certain job benefits, including the
loss of monthly and yearly bonuses and the furnishing of
'uniforms and (2) plant closure and removal from New
Orleans to Dallas if the employees selected the Transporta-
tion Employees Association a/w District 2, MEBA,
AFL-CIO (the Union) to represent them; (c) illegally
circulating an antiunion petition among its employees; and
(d) terminating the employment of Jose King Jr., Benjamin
F. Miles, and Pat Warren and refusing to reinstate them
because of their union activities. Quality denied the
commission of the unfair labor practices; and denied that
certain dispatchers were supervisors within the meaning of
Section 2(11)3 and (13) of the Act. As an affirmative
defense Quality denied that the Board has jurisdiction of
the allegations in the complaint .4
Pursuant to notice, a hearing in this case was held in
New Orleans, Louisiana, on November 19 and 20. All
parties appeared and were represented by counsel. They
were given full opportunity to adduce evidence, examine
and cross-examine witnesses , and present oral argument.
All parties have submitted briefs that have been read and
considered.
Upon the entire record and from my observation of the
witnesses,5 I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Quality is a Louisiana corporation with its principal
place of business in New Orleans, Louisiana, where it is
engaged in the bulk transportation of cement and chemical
products. During the past year, a representative period, in
the course and conduct of its business, Quality purchased
and received goods valued in excess of $50,000 directly
I The original complaint was issued October 24 , 1973, on a charge filed
September 4, 1973, and an amended charge filed October 3, 1973, by
Transportation Employees Association, a/w District 2, MEBA, AFL-CIO
During the hearing the complaint was amended to include additional
allegations consisting of an antiunion speech by President McClure in
October, and the Company's creation and circulation of an antiunion
petition in November 1973.
2 All dates hereafter are 1973 unless otherwise indicated
3 Section 2( 11) defines a "supervisor" as.
any individual having authority, in the interest of the employer,
to hire , transfer, suspend, lay off, recall , promote, discharge , assign,
reward , or discipline other employees , or responsible to direct them, or
to adjust their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a
merely routine or clerical nature , but requires the use of independent
judgment.
4 This broad denial was made more specific by Respondent when it
moved during the hearing to dismiss the Section 8(a)(1) allegations alleged
in the amended complaint. The motion was denied . That denial is affirmed
below in section C.
5 The determination of the facts herein has not been made simple by the
devious testimony of witnesses . The many conflicts in testimony have
necessitated many credibility resolutions set forth hereafter . In making
credibility resolutions documentary evidence and the pertinent testimony of
all witnesses as well as their demeanors have been considered . Inconsisten-
cies and conflicting evidence were also considered. The absence of a
statement of resolution of a conflict in specific testimony or of an analysis
of such testimony does not mean that such did not occur See Bishop and
Malco, Inc. d/b/a Walkers, 159 NLRB 1159, 1161. To the extent that a
witness is credited only in part , it is done upon the evidentiary rule that it is
not uncommon "to believe some and not all " of a witness' testimony
N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A 2)
revised and remanded on other grounds 340 U.S. 474.
211 NLRB No. 27
QUALITY TRANSPORT INC. 199
from suppliers outside of Louisiana. Quality's home office
is based in Texas. Quality operates as an essential link in
interstate transportation that includes Louisiana, Missis-
sippi, Alabama, and Florida. During the same representa-
tive period, Quality received revenues in excess of $50,000
for performing its duties as a common and contract carrier
among these states.
It is found, as admitted, that Quality is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE UNION
It is found , as admitted, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues herein are adequately set forth in the
statement of the case above. Two of them: (1) jurisdiction
of the Board and (2) supervisory authority of the
dispatchers are threshold items and are disposed of first.
They are dealt with in sections C and D below.
B. Background Information
Quality transports cement via its own trucks or trailer
trucks based in the terminal in New Orleans. In most
instances, the driver started his run at the terminal, drove
to a cement plant in New Orleans to pick up his load, and
then delivered the load to the customer. The latter was
located in Louisiana, or one of the neighboring states.
After delivery the driver returned to the terminal.
Raymond L. Tapp was the terminal manager. He
reported to Burrell Tate, division manager based in Dallas,
Texas, who in turn reported to O. B. McClure, president of
Respondent.
Quality operated on a 24 hours a day, 7 days a week
basis. At the terminal, it generally employed 41 truckdri-
vers and 10 mechanics. The mechanics were in the shop
and maintenance department. Harold Lee was the shop
foreman .6 The truckdrivers 7 were under the control of
three dispatchers: Ray Bridges, Max DeVille, and Harold
Bracey.8
Tapp, Lee, and the three dispatchers were salaried
employees. Tapp and Lee worked from 8 a.m. to 5 p.m., 5
days a week and received no overtime.9 The dispatchers'
work was divided into three shifts per day: morning from
5:30 a.m. to 1:30 p.m.; afternoon from 1:30 p.m. to 9:30
6 Tapp, Tate, McClure, and Lee are admitted supervisors.
7 The record does not give a name to the truckdrivers department. That
group and their function will be referred to hereafter as truckdrivers.
8 Threshold issue (2) deals with the supervisory status of these
individuals.
9 Tapp testified that he was always available by telephone or two-way
radio; and that he and Lee sometimes came in Saturday a.m.
10 The dispatcher working from 1:30 p.m . to 9:30 p.m. came in the next
morning for the 5:30 a.m. to 1:30 p.m . shift . Then , he was off till 1:30 p.m.
of the following day.
'I Tapp testified that they get paid for overtime "if they work overtime."
This does not seem to be in agreement with DeVille who testified that
p.m.; and night from 9:30 p.m. to 5:30 a.m. The
dispatchers alternated shifts 10 but did not work week-
ends.11 Selected truck drivers were assigned as substitute
dispatchers for the weekend.
The shop mechanics were paid on an hourly basis. They
worked a 48-hour week, getting time and a half after 40
hours. The truckdrivers were paid a percentage of the load
handled.12 In addition, the drivers were paid certain extras
on an hourly basis of $2.50 per hour; for delay time when
loading or unloading, or when the truck was broken down
or for shop time when they did repair work on or washing
of the trucks and trailers.
The Company maintained a policy of giving awards and
benefits to the truckdrivers.13 Drivers get four free
uniforms a year. A new driver was on probation for 90
days. After that he was eligible for a bonus of $25 a month
if he was not late on delivery and kept the inside of his
truck clean.14 The driver received a yearly bonus of $150 if
during the preceding year he was accident free.15 In
addition, the driver received a safety pin.16 Quality
maintained group insurance for health and life. The cost
was shared equally by Quality and the employees. Quality
also maintained an educational fund that gave $1,000 at
the rate of $500 per year to the child of an employee that
went to college and maintained a C average or better. Free
coffee was available at the plant at all times. The drivers
received 1 week's vacation and $150 the first year; 2 weeks'
and $160 a week the second year, and $175 a week the
third year-17
Quality maintained a hunting lodge in Texas to which
safety drivers were invited for 3 days. Each invitee got $20
plus expenses. Drivers were selected by lot. Quality also
gave seniority pay to the drivers of 6 percent of the
employee' s gross earnings the first year. This increased
yearly to a ceiling of 10 percent.
Truckdrivers received their assignments on a daily or trip
basis. The dispatcher usually assigned the trip between
7:30 p.m. and 9 p.m. by telephoning the driver. There
existed a daily order of priority among the drivers. Low
man was determined by a point system. A dollar earned
was equal to a point. The driver who has made the least
money (the low man) the preceding day was entitled to the
best paying load the next morning. During the day, the
first driver back at the terminal was the first one out. For
missing a day's work a driver was given 20 points, 10 points
for missing half a day. 20 points equaled $20 which as Tate
testified "any body can make." He also stated that some
drivers would "rather take 20 points a day and be a little
bit low" the next day in order to "catch a good run out of
town."
The dispatcher on duty allocated the points to the drivers
dispatchers got straight salary every 2 weeks and got no credit for overtime.
12 Quality charged the customer by the 100 pounds. A new driver started
with 19.95 percent of the charge . The percent increased by 1 percent yearly
thereafter until it reached 22.95 percent.
13 Not all the benefits are listed herein.
14 The bonus was lost if he was late, had an accident , blew a tire, did not
show up for a load, etc.
15 The bonus increased with each accident free year thereafter.
16 Prior to August 31, 1973, a driver received a watch at the end of a
years service.
17 Mechanics received vacation pay on a 44-hour week schedule.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and made all the assignments . It was the dispatcher's
responsibility to make Tapp aware when a driver missed an
assigned run. The dispatcher did this by putting the
driver's card aside usually in the back of the box where the
cards were kept. Tapp then talked to the driver before the
dispatcher assigned him to another run. His card was then
put back in the box. The dispatcher also filled out what
was known as a "driver's report" relating any incident that
had occurred affecting the driver's performance. Examples
were lateness in reporting or delivery, accidents, etc.18 The
dispatchers were equal in their ranking, i.e., no dispatcher
had authority over the other. When the dispatcher made
the assignment , he advised the driver of the customer, his
place of business , reporting time at the terminal, the time
he was to make delivery, and the place where the driver
was to go to pick up his load. The driver was familiar with
the roads in the area, and usually knew how long the
assigned trip normally took to the customer and back to
the plant.
Management or supervisory employees of Respondent
have been named above. Hourly employees 19 involved in
this proceeding listed alphabetically are:
Michael Danna , interrogated by DeVille. Benny James
absented without leave , and interrogated by Tapp. Jose
King Jr., an alleged Section 8(a)(3) dischargee. Benja-
min Miles, an alleged Section 8(a)(3) dischargee.
Carroll E. Neuman circulator of an antiunion petition
drafted by Tapp. Gerald Vermeal interrogated by Tate
and Tapp. Don Warner interrogated by Tate and Tapp
and known as one of the main proponents of the
Union. Pat Warren, mechanic, an alleged Section
8(a)(3) dischargee.
C. The Board has Jurisdiction of Certain Section
8(a)(1) Allegations
In its answer, at the hearing and again in its brief,
Quality erroneously contended that the Board had no
jurisdiction in this proceeding of the Section 8(a)(1)
allegations . This erroneous contention was based on the
following facts:
a. On August 10, the Union filed a charge with the
Board, Case 15-CA-4948, alleging that Quality had
violated Section 8(a)(1) and (3) of the Act , in that:
On or about August 7, 1973, Quality Transport, Inc.
did by its officers, agents, and representatives, interfere
with , restrain, and coerce its employees in the exercise
of the rights guaranteed in section 7 of the Act and has
used threats of employment condition changes to
discourage membership in the Union.
b. On October 3, with the approval of the Regional
Director , Region 15, the charge in Case 15-CA-4948 was
withdrawn by the Union. Quality was duly notified. The
record shows nothing further with regard to the charge or
any actions taken with regard to it.
c. On September 4, the charge was filed herein alleging
that Quality had violated Section 8(a)(1) and (3) of the Act
in that:
On or about the dates indicated below, the above-
named Employer, by its officers, agents , and represent-
atives, terminated the employment of BUDD
PEDDICORD, JOSE KING, BENJAMIN MILES and PAT
WARREN because of their membership and activities in
behalf of the TRANSPORTATION EMPLOYEES ASSOCIATION,
a/w DISTRICT 2, MEBA, AFL-CIO, a labor organization,
and at all times since such date had refused and does
now refuse, to employ the above-named employees:
Budd Peddicord-August 25, 1973
Jose King-August 26, 1973
Benjamin Miles-August 28, 1973
Pat Warren-August 30, 1973
d. On October 3, the Union filed an amended charge
that was the same as that of September 4 except that the
name of Budd Peddicord was eliminated.
e. The charge and the amended charge both contained
the standard clause:
By the above and other acts, the above-named
employer has interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed by
Section 7 of the Act.
Quality's erroneous contention as set forth in its brief is
as follows:
Under Section 102.9 of the Board's Rules and Regula-
tions, it is provided that a charge may be withdrawn
only with the consent of the Regional Director, with
whom such charge was filed, or the Trial Examiner or
Board, and that upon such withdrawal a complaint
thereon shall be dismissed. The Respondent contends
that the Regional Director, by withdrawing the 8(a)(1)
charges in 15-CA-4948, and subsequently issued a
complaint on which there is no operative charge
concerning the 8(h)(1) violations. Charge No.
15-CA-4985 addresses itself only to alleged 8(a)(3)
violations, and the Section 8(a)(1) violation alleged in it
was most derivative in nature . In support of the
Respondent's position, Respondent cites New York
Shipping Assn., 112 NLRB 1047 (1955), and Harcourt &
Co., Inc., 98 NLRB 892.20
The complaint in this proceeding stems from the
amended charge dated October 3 which contain no
specifically alleged Section 8(a)(1) violations. But the
charge did allege that the named employees were discrimi-
natorily discharged. Further, as quoted above, the charges
do contain the standard clause alleging violation of the
rights guaranteed by Section 7 of the Act. It is now well
established that a general charge filed with the Board
containing the standard clause quoted above is considered
a valid foundation for particularized Section 8(a)(1)
18 Tapp admitted that when it was very busy, the dispatchers sometimes inapposite . Further , it is noted that unlike the cited cases, the complaint in
failed to make out reports. this proceeding was bottomed on a different charge than that filed in Case
19 They are truckdrivers unless otherwise indicated. 15-CA-4948.
20 For the reasons stated hereafter, the cases cited by Quality are
QUALITY TRANSPORT INC.
allegations in a complaint issued by the General Counsel.
See EFCO Corporation, 150 NLRB 1505, 1511, fn. 9, and
cases cited therein.
Quality is apparently contending that the withdrawal of
the charge in Case 15-CA-4948 had some kind of res
judicata effect on the issuance of the complaint in this
proceeding. Quality does not explicate this theory in any
way. The charge in Case 15-CA-4948 was withdrawn with
the approval of the Regional Director pursuant to the
authority vested in the Regional Director acting in behalf
of the General Counsel in Section 102.9 of the Board's
Rules and Regulations . That Section provides that where
no complaint was issued, the charge could be withdrawn
"only with the consent of the regional director with whom
such charge was filed." 21 The record contains no evidence
to show that in consenting to the withdrawal of the charge
in Case 15-CA-4948 the General Counsel investigated the
allegations in the charge, made any determination bearing
on them, or took any action showing that the merits of the
charges had been considered. These facts might have some
weight in view of Section 3(d) of the Act, that gives the
General Counsel exclusive control or disposition of the
charge once it is filed and further gives him "final
authority, on behalf of the Board, in respect to the
investigation of charges and the issuance of complaints
before the Board, ...." In any event, Quality's conten-
tion is much too broad. The charge in Case 15-CA-4948
dealt with actions that were alleged to have occurred on or
about August 7. The actions dealt with in the complaint
included many that occurred after the first week in August.
As a matter of procedure and fact, Quality did not object
when the complaint was amended at the hearing to include
an allegation concerning McClure's speech to the employ-
ees about October 8, and the illegal circulation of an
antiunion petition about November 1.
21 Respondent either miscontrues the facts or the Section when he states
in his brief "and that upon such withdrawal a complaint thereon shall be
dismissed "
22 Great Plains quotes from Texas Industries Inc v N L R B , 336 F 2d
128, 132 (C A 5, 1964) That quotation is particularly apt here
It is established that this section [l0(b)] precludes the Board from
issuing a complaint on its own initiative, and that a charge is a
prerequisite to the institution of proceedings before the Board
However, the charge is not a formal pleading, and its function is not to
give notice to the respondent of the exact nature of the charges against
him. This is the function of the complaint The charge rather,
serves merely to set in motion the investigatory machinery of the
Board It is largely for the benefit of the Board, not the respondent, so
that it may intelligently determine whether and to what extent an
investigation is warranted Consequently, the Board has considerable
leeway to found a complaint on events other than those specifically set
forth in the charge , the only limitation being that the Board may not
get "so completely outside the charge that it may he said to be
initiating the proceeding on its own motion " [Citations omitted ]
23 ". the dispatchers take orders from the customers and dispatch the
loads to the drivers. They also write up late slips on drivers who are late or
miss runs , but this is done under the direction of Ray Tapp, and no action is
taken on them by the dispatchers The loads to the drivers are assigned by a
point system which is determined by the dispatch sheet The assigning of
such loads and the making up of the dispatch sheets is only routine in
nature The dispatchers do not have any authority to hire, fire, or
recommend increases " (Transcript references omitted )
24 In response to a question from his counsel as to what the dispatcher's
authority was, Tapp answered vaguely
A Well, I don't know as they have any authority They have got a
job to do just like the drivers have They have got to get them loads out
They call and dispatch loads for me, but the only authority that I know
201
Under the above circumstances , it cannot be said as
Respondent's motion indicates that the Regional Director
issued a complaint on his own initiative as he is forbidden
to do by Section 10(b) of the Act. See Great Plains Steel
Corp, 183 NLRB 968, and cases cited therein.22
D. DeVille and Bridges Are Supervisors
Quality contends that DeVille and Bridges are not
supervisors . In its brief , Quality lists some of the responsi-
bilities they have and do not have.23 The paragraph winds
up with the statement "The only authority, according to
Tapp, that the dispatchers have is if a driver gives them a
bad time, they can put the driver's card in the back of the
box until Tapp has a talk with the driver." 24 Quality in its
brief has dealt insufficiently with the record as well as
Tapp's testimony.
The record shows that Tapp and Lee were present at the
shop from 8 a.m. to 5 p.m. A dispatcher was there around
the clock . Tapp testified that in his absence "the operation
of the company" was normally run by "the dispatcher
that's on duty dispatching." 25 Tapp also confirmed that in
Lee's absence the dispatcher on duty ordered mechanics
out on the road to take care of trucks that had broken
down; and had the authority to assign a driver to the truck
for a trip after it was repaired.26
Danna testified that when he was first hired about May
1971 he had had a conversation with Tapp. The latter told
him to listen to the dispatchers and he would have no
trouble. Danna understood the statement to mean the
dispatchers had "authority." Danna testified further that
there were occasions when dispatchers had "excused" him
from working when he wanted time off.
DeVille testified that his contact with the drivers was to
"book them , call them and give them their load" and to
they have got, is if a driver comes in there and gives them too rough a
time, they don't have to dispatch them They can put them in the back
of the box till they see me They can ' t fire them or hire them
Nevertheless , it is noted that in that statement there is a clear admission of
the dispatcher's supervisory authonty over the drivers , i e, when in the
opinion of the dispatcher the going gets rough, or the driver gives the
dispatcher a "rough time ," the dispatcher "don't have to dispatch them."
This is considered direct evidence that the dispatchers' use independent
judgment
25 Tapp's testimony continued.
Q. In your absence, Mr Tapp, who runs the operation of the
company?
A normally the dispatcher that's on duty dispatching
Q The dispatcher handles things that apse in your absence?
A Right
Q. This would include receiving shipments and orders for the next
day9
A. Right
Q And assigning certain drivers to certain runs9
A Right
Warren's undenied testimony was that Tapp had told him in 1971 when
Warren was previously employed by Quality that " the dispatchers had the
same authority he did "
26 This after-hour authority of the dispatcher over mechanics was
confirmed by Warren from his own experience . Warren testified without
refutation that he received work assignments while on duty at the shop from
each of the three dispatchers and was called after hours at home by the
dispatcher and given road assignments On one particular weekend, Warren
received such an assignment from the substitute dispatcher then on duty
Warren also testified that upon orders from the dispatchers he worked
overtime and was paid for such work , that this had occurred "At least once
a week "
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"send them out in the morning ." He also testified that that
he gave "emergency time off, like [when] they call and get
sick ." Further, DeVille testified that when a driver calls in
asking for a day off, "If Ray Tapp's not there, and . . . he
had a good reason, I can give him a day." 27 The record
does not show that these matters were first referred to
Tapp.
Dispatchers had the authority to make out, did make
out, and submit late reports on the drivers. Quality granted
the dispatchers considerable leeway in the determination
of what constitutes a late report, and permitted them to
exercise independent judgment in that regard. Bridges
testifie41 that late slips were not made out if the drivers
were "less than 15 minutes one way or another" or "unless
they are extremely late." According to DeVille the
dispatcher had the authority not to report a driver when he
was late in reporting because his car had had a flat or had a
mechanical break down, etc. Dispatchers also had the
authority to penalize a driver who missed a run by
allocating points to him. This affected his income and
rights to the next day's run. See Valley Transit Company,
Inc., 142 NLRB 658, 659.
Conclusion
The above facts clearly show that the dispatchers
including Bridges and DeVille exercised full authority over
the terminal for approximately 16 of the 24 hours a day
when Tapp and Lee were absent . They had no authority to
hire or fire but they did have authority to use or not use
drivers, to order mechanics to work on certain trucks, and
under certain circumstances to give drivers time off, and to
assess points against them . In making these determinations
which were not infrequent, the dispatchers used their
independent judgment . Each dispatcher also used his
independent judgment in assigning runs and in filing late
reports.
The record contains other evidence of the supervisory
status of the dispatchers . In light, however , of N.L.R.B. v.
Metropolitan Life Insurance Co., 405 F.2d 1169 (C.A. 2,
1968), it would only lengthen this decision unnecessarily to
itemize them . Metropolitan and Board decisions 28 hold that
Section 2(11) of the Act speaks in the disjunctive; that to
constitute a person a supervisor it is sufficient to show that
the individual performs any one of the functions , or in the
performance of his duties possesses one of the enumerated
powers and responsibilities , set forth in that section.29 As
set forth above, the record clearly shows such powers were
within functions of Bridges and DeVille . Accordingly it is
found that Bridges and DeVille at all times mentioned
27 About 1 1 /2 months before the hearing , DeVille called James on a
Friday night to assign him a dispatch the following day. James asked
DeVille for the Saturday morning off because he was "going to Alabama
. or Mississippi ." The record does not show that DeVille said, "No."
James did not show in the morning and was away for a week.
79 See Ace Tool Engineering Co., Inc., 207 NLRB No. 23, Great Central
Insurance Company, 176 NLRB 475.
sa Note the language in N.L.R.B. v. Riviera Manor Nursing Home, Inc.,
(C.A. 7), decided Nov. 16, 1973, *73-1339 [unpublished, see 487 F .2d 1405 ]
wherein the court stated:
But this does not make her any less a supervisor if she had any of the
powers described in the statute . See Amalgamated Local Union 355 v.
National Labor Relations Boars( 481 F.2d 996, 1000 (2d Cir. 1973).
herein were supervisors within the meaning of Section
2(11) of the Act 30
E. The Union Campaign
On July 26, Parks a representative of the Union met with
a couple of Quality employees. They agreed to a meeting
with a committee of 10 employees on July 29. At this
meeting, the committee discussed the union organization
campaign.31 When the meeting ended the employees took
union cards with them to secure signatures. The next union
meeting was on August 5 attended by about 19 or 20
employees about 5 of the original 10. Signed cards were
turned in. Again, cards were issued to this group to obtain
signatures. The next meeting was on August 19 attended
by about 25 to 27 employees.32
The union campaign was low key. No union handbills
were used. Employees talked the Union up to other
employees and solicited other employees for signatures in
and at the plant. As shown hereafter, there is no question
that management knew that the union campaign was going
on and generally knew who the union sympathizers were.33
It is noted that the dispatchers admitted they talked union
to the employees during July and August.
On August 10, the Union by telegram advised Respon-
dent that it represented a majority and demanded
recognition. On the same day, the Union filed a representa-
tion petition with the Board which included the dispatchers
as employees in the unit. The representation hearing was
held on August 31. At the hearing, the Union amended its
petition to exclude the dispatchers from the unit. The
Decision and Direction of Election issued on September
25. It contained a finding by the Regional Director that the
dispatchers were supervisors and excluded from the unit.
The election was held on October 15. Of the 55 employees
eligible to vote, 26 voted for and 24 against the Union. Five
ballots were challenged. Thereafter, the Regional Director
issued a report resolving the challenged ballots which
included the three discriminatees. Respondent excepted to
that decision, and the matter is now pending before the
Board.
F. Quality 's Antiunion Activity in Violation of
Section 8(a)(1)
Quality's answer denied the commission of any inde-
pendent Section 8(a)(1) violation. In this proceeding
30 This finding takes into consideration that the dispatchers were
included in the unit in the petition for representation filed by the Union on
August 10 . Further, it has been noted that in the Representation Proceeding
Case l5-RC-5220, the Regional Director in his Decision and Direction of
Election dated September 25, 1973, determined that the dispatchers were
supervisors and were accordingly excluded from the unit.
$1 The names of the employees on the committee were not given.
32 At this meeting King jumped up and shouted "This is right, stand
aside and give me some cards, and I am going to get the bunch of other guys
signed." He left with a stackful of cards. There was no direct evidence that
management was aware of this action.
33 DeVille testified that in July and August all there was around the
terminal was "union talk ."
QUALITY TRANSPORT INC.
Quality introduced little or no evidence to contravert that
of the General Counsel.34 The findings hereafter made are
based on the credited testimony of the employee witnesses,
and are undisputed except where noted.
1. August 1973
Three supervisory personnel illegally interrogated em-
ployees and made restraining and coercive statements to
the employees during the month of August. They are
Tate,35 Tapp, and DeVille. Their actions will be dealt with
in that order.
a. Division Manager Tate
In August prior to the 4th, Tate spoke to Warren in the
shop. Tate asked Warren if he knew anything about the
Union and which one it was. Tate also asked if he knew
what the complaints of the men were. Warren answered
that he preferred a more orderly shop and with a union it
might be obtained. Tate said he was not interested in
Warren's position. About a week later Tate spoke to
Warner. This occurred in the plant yard near the garage.
Tate made the statement to Warner "that he heard [he]
was heading this union business, and what did [he] know
about it, and what were the men's complaints ...."
Also early in August Tate talked to driver Vermeal. This
conversation occurred in the driver's room in the presence
of drivers Robert Friar and Norm Canis. Toward the end
of the conversation Tapp walked in. According to
Vermeal's credited testimony:
I had come in off a run and was making out my
paper work and Burrell Tate was in from Texas, and he
walked out where I was sitting and asked me what the
hell was this talk about union, and I told him it wasn't
talk, it was fact, and he asked me what problems the
men had, what grievances. I explained it to him ... .
Ray Tapp then joined the conversation after me and
Burrell Tate was talking, and Burrell asked me if I was
aware the company gave us some benefits. I was aware
of a couple but I wasn't aware of all of them, and he
related them to me, which was specifically the hunting
trip and the yearly bonus, safety bonus that we get, and
he expressed that the company didn't have to give those
to us, they didn't have to give us the watch. And Ray
Tapp just more or less agreed to what he was saying.
b. Terminal Manager Tapp
In the first few days of August, Tapp talked with driver
James. The latter's credited version of the conversation
was:
A. Well, he asked me what was going on and I
asked him what did he mean, and he said about the
union. And I told him I didn't know. I hadn't heard
anything about the union at that time, and he took
•i^ Not all the Section 8(a)(1) activity is listed Those found are
considered sufficient to show the violation, the scope and depth of Quality's
union animus, and to justify the order issued herein
{"I Tate was present during the hearing but did not testify
IS This conversation is placed during the 1st week of August because
Warner stated that it occurred before his conversation with Tate that
occurred about August 7, 8, or 9
'T King testified that Tapp spoke to him alone about the Union on
August 28 See next paragraph Tapp denied he ever spoke to King about
203
some papers of one of the other drivers, some records,
and showed me what the company had given this guy
in a period of one year, and he asked me did I think we
could get these benefits from the umon, and I told him
I didn't know, and he said this guy had been working
for Bulk Transport and he was in a union over there,
and he didn't have anything to show for it. He also
asked me could I keep him posted on anything I could
hear about the union.
Q. Was anything else said during this conversation,
Mr. James?
A. No, I just told him I would. He said if we voted
the union in that we would probably lose our monthly
bonus, our yearly bonus and our uniforms.
About the same time, Tapp interrogated Warner.36 The
conversation took place in Tapp's office. According to
Warner's credited testimony the conversation went as
follows:
..... Mr. Tapp had called me into his office, and Mr. Tapp
kind of asked if I was also in with this union business
and I replied that I thought he knew what I thought of
the Teamsters union, and I wouldn't have anything to
do with it, and that was about the end of the union
conversation up there.
On August 11, Tapp spoke to King37 and four other
drivers while they were sitting in the driver's room. Tapp
referred to benefits the drivers would lose if the Union
came in. His address went as follows:
A. Mr. Ray Tapp entered the drivers' room-this
was on a Sunday . . . and he started talking about the
union. It was, like I say, five drivers including myself
sitting at the tables . . . . He said that the old drivers
were trying to form a union and that it wouldn't be to
our benefit to join the union because of the benefits
that we would lose. He would name the benefits.38
ADMINISTRATIVE LAW JUDGE THEEMAN: Just contin-
ue with the conversation.
THE WITNESS: Named the benefits. Only three of
them, to my knowledge that I can remember he named,
were the monthly benefits, the yearly bonus-well,
there were three bonuses. Monthly bonus, yearly bonus
and-I don't remember the other one he said . . . and
then a question rised up from one of the drivers, he had
named what we would lose and he said, "Anything the
company gives you, that they can take away."
A. I was pretty concerned with the pulling out of
the watch and I asked him about a watch and I said,
"Do we still get a watch?"
And he said, "Anything that the company gives
you-" and he did mention all these things were given
by the company. He said we would lose them all.39
the Union Tapp's denial is not credited
38 During cross-examination, King changed this conversation to substi-
tute the word "could" for "would" whenever the latter appeared This
change does not change the fact that Tapp was implying a loss of benefit if
the Union came in
39 Also during this conversation Tapp asked King if he had ever been in
a union before King answered he had Tapp stated , "he had been through a
stage of hell in his time over union and he didn 't want to see any more
union "
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 28, a day before King was discharged Tapp
spoke to King once more . He directed King to certain
employees who would advise him better than Warner
about union activities . The conversation follows:
... He told me these were two people that could
definitely give me better information concerning the
union , who were for the union at one time and had
learned better and he told me if I would talk to these
people, I would learn a little more about the union.
Q. (By Mr. Boykin) Mr. King, how did the subject
of the union come up?
A. He just came completely out and wanted to
know who I had been talking to about the union and I
told him Don Warner.
*
Q. Do you recall Mr. Tapp asking you about your
feeling in regard to the union?
A. Yes, he did.
Q. What did he ask you?
A. Asked me how did I feel about the union and I
told him that I was for it but the majority of the men in
the company was for it. In other words, the majority
win.40
On several occasions during August, Tapp spoke to
employees in the presence of other employees. On one
occasion, he spoke to Warren in the presence of Lee and
others. He told them "he couldn't see how he had gotten
anyone to hate him enough to where they would vote for
the union." On another occasion Tapp told Neuman that
he didn't want to see the Union come in because he was
afraid of losing his job. It was his opinion that the
Company would think that he as terminal manager was
unable to keep the men satisfied.
c. Dispatcher DeVille
In the first week of August DeVille spoke to driver
Danna in the presence of driver Alfred Parker. According
to Danna's credited testimony the conversation went as
follows: 41
A. ... I don't know what you fellow are pushing
us for.
Q. Pushing what?
A. Pushing this union, and began saying you are
going to lose all your bonuses, your percent, like you
get a percentage , you lose all that, and you take a
fellow like Don Warner, he come back with that, all he
want to do is take and sit back and collect the money,
the monthly dues, of course, if he gets you roped into
this union. And let's see, what else. They were going to
take and close the terminal down if the fellows
continued to push this here, you know, send trucks
back to Texas because the main office in Texas didn't'
want this terminal down in New Orleans to begin with,
.... He said now it was agreed with the Government
where they can only make the maximum of 22.5, he
says, and that's the agreement they have with the
Government, therefore there is no more money that the
union can get out from us.
In the second week in August, King was among a group
of drivers to whom DeVille was talking. According to
King's credited testimony: 42
A. . . . it was a conversation being held in there
when I arrived in there. Max DeVille, the dispatcher,
was speaking to another driver and he was telling the
other driver that if the company men did have a union
and after they had won, that the company itself would
find out who the men were that elected the union and if
the union lost, that the company would find out who
the men were, that they would be terminated. He also
said that before the company would let a union come
in, they would either sell the trucks or send them back
to Dallas.
Conclusions as to the August Actions
Tate's interrogation of Warren, Warner, and Vermeal
and Tapp's interrogation of James, Warner, and King43 all
were made without any explanation as to purpose and
without any assurance against reprisal or retaliation. The
Board has said, "Questioning of selected employees about
their union sympathies . . . without any assurance against
reprisal, by its very nature tends to inhibit employees in the
exercise of their right to organize." Engineered Steel
Products, Inc., 188 NLRB 298. See also H. L. Meyer Co.,
Inc., 177 NLRB 565, enforced as modified 426 F.2d 1090
(C.A. 8, 1970); Standard Fittings Co., 173 NLRB 42, 46;
Struksnes Construction Co., Inc., 165 NLRB 1062; N.L.R.B.
v. Camco, Inc., 340 F.2d 803 (C.A. 5, 1965) cert. denied 382
U.S. 926 (1965); Jervis Corporation, Bolivar Division v.
N.L.R.B., 387 F.2d 107, 109, 111 (C.A. 6, 1967); N.L.R.B.
v. West Coast Casket Co., 205 F.2d 902, 904 (C.A. 9, 1953).
Tapp's request of James that he keep him posted on
anything he hears about union activities constitutes
surveillance and an illegal invasion of employees' private
union interests. Cf. P. R. Mallory Co., 175 NLRB 308, 309.
Tate's statement to Vermeal and Tapp's statement to
James and King44 that the employees will lose benefits
they then enjoyed in the event the union came in was
coercive and in reprisal for their union activities all in
violation of Section 8(a)(1) of the Act. Cf. Brown Specialty
Company, 174 NLRB 519, 520, where the Board found a
violation for threats to take away much less valuable
benefits. See also Bauer Welding & Metal Fabricators Inc.,
154 NLRB 954, 962.
DeVille's statements to Danna and King that Respon-
dent will close its New Orleans plant and move it and the
trucks to Texas are a clear retaliatory threat of what will
40 On direct examination King placed this conversation on August 28.
On cross-examination King placed it on August 11. It is considered that
King was confused and gave the wrong date on cross-examination
41 DeVille admitted having conversations with some drivers about the
Union during July and August. He did not deny the Danna conversation.
He professed not to remember one held with Miles in which the Union was
mentioned, not listed herein.
42 DeVille admitted he talked with King but didn't remember or think
that he talked about the Union.
43 Refers to the August 28 conversation
44 Refers to the conversation with four other driers present.
QUALITY TRANSPORT INC.
occur in the event union activities continued . Such threats
are coercive and violative of Section 8(a)(1) of the Act. See
N.LR.. v "Gls3 l ` Ps c'Ring Co., `395 U.S. 575, 618-619
(1969); Jervis Corporation, Bolivar Division, supra at p. 110,
112.
2. October 1973
About October 8, 1973, Tapp held a conversation with
Vermeal in the driver's room in the presence of two or
three unnamed drivers. They were "hashing over the
union" and Tapp said " . . . if the union was voted in that
he was sure to lose his job, and I asked him why, and he
said well, naturally the company would say it was his fault
the men went union, and he wasn't satisfying the men, and
I said it would be piss poor management to get rid of him."
On October 12, 1973, there was a meeting of Respon-
dent's officials, employees, and their wives. Dinner was
included. President McClure addressed the assemblage
after being introduced by Tapp:
... He stated his name , and his opinions about the
union, that the company operated 25 years successfully
without union representation, that he was going to do
everything legally that he could do to forestall the
election and the negotiations. Then he proceeded to,
and he turned around to the blackboard which was
there, listed the benefits that we have now, namely the
uniforms, the monthly check. In the wintertime I
understand we can borrow $200 around Christmas, you
know, in case we are hunting, the 3 days of hunting,
which I didn't know about until it was explained to me
by Burrell Tate. In other words, he listed all the
company benefits on the blackboard. He also drew a
square table, and put a chair on one side and a chair on
the other side, and he proceeded to tell us that this is
what the company has to offer now, the benefits, and
then with this same motion he turned around and said
that the only thing we have to do is negotiate in good
faith, that the union has nothing to offer, we have
nothing to give. He then erased all the benefits. He
drew a circle around an X in the middle of the table,
and said that this is where we start, indicating the zero,
nothing.45
In the same address, McClure stated he was going to
forestall the election and negotiations as long as he could
legally do so. Also, he stated he could promise nothing, nor
was he there to threaten in anyway. But it was after he
made these statements and as a closing statement and
gesture that he erased the benefits, drew a zero around the
X, and said "this is where we start."
Conclusions as to McClure's Speech
The foregoing shows clearly that McClure was threaten-
ing the employees with the loss of their existing benefits if
the Union came in . In effect, he told them that when
bargaining with the Union began the bargaining would
45 According to the undisputed testimony of Vermeal and Neuman.
46 Lee had entered Tapp's office about this point. He corroborated
Neuman 's testimony.
47 At that time Tapp told Neuman that he did not think the employees
could or would lose their benefits.
205
start from "zero" or "scratch." The implication is fully
present the loss sustained was due to the presence of the
Union. Such threats of bargaining from scratch and the
attendant loss of benefits are proscribed by the Act and
violative of Section 8(a)(1) of the Act. Bauer Welding &
Metal Fabricators, Inc., supra; Tamper, Inc., 207 NLRB No.
142.
3. The antiunion petition , November 1973
On November 1, 1973, Neuman and Tapp were in
Tapp's office. Tapp said "it would tickle the shit out of
[me] if somebody would start a petition to try to keep the
Union out" and Neuman said he would do it. Telling
Neuman that he would have nothing to do with the
petition Tapp wrote out the language of the petition for
Neuman.46 He gave the same to Neuman folded in a sheet
of Respondent's stationery. About 2 hours later, Neuman
informed Tapp that he had spoken to two drivers about the
petition; that they had said it was a good idea because they
were afraid the employees would lose "all our company
business if the Union came in." 47 Neuman told Tapp that
he would get the petition up at home that night. Tapp
responded that he would "check with Dallas and see what
they thought." Tapp also told Neuman that the company
attorney wanted the petition with the signatures on it by
November 6.
On November 2, Neuman brought the petition back in
its completed form and started procuring signatures on it.
The petition on a sheet of paper that was obviously
Quality's stationery read as follows including the letter-
head: 48
Quality Traiisport, Inc.
P.O. Box 29247
New Orleans, La. 70189
NOVEMBER 1, 1973
To Whom it may concern
We, the undersigned , Employees of Quality Trans-
port Inc. wish to see if we can stop the Union , the AFL-
CIO, from coming into our company.
About noon, he told Tapp he had 10 or 12 names on the
petition. Tapp said that sounded good, to keep trying and
if they got a majority it might do some good. Neuman
asked Tapp to speak to the company lawyers to find out if
Neuman could get into personal trouble "carrying this
petition around." 49 Tapp said he would. About 2 hours
later Tapp told Neuman that he couldn't get into any
trouble at all; that he had nothing to worry about.
On November 3, Neuman had breakfast with Tapp at a
truck stop away from the plant. Parker, a truckdriver, was
present. Neuman told Tapp he was having some problems
with the petition. Tapp responded that he wanted Neuman
to have it ready to mail by November 5. Tapp left the
48 Tapp admitted that the language was his except for two words, "We,
the undersigned."
49 Neuman testified that "Rumor had it that I could serve time in the
Federal pen and a fine because this petition was illegal."
+l^
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition with Neuman who told him he had 25 names on it
and that he would try to get "the majority of the names on
it" by November 5.
On November 6 about 5:30 a.m., Neuman left the
petition on Tapp's desk in an unsealed envelope. That
night on the two-way radio Tapp confirmed to Neuman
that he had found the petition. Neuman left the petition
with Tapp with 28 signatures on it that he had procured.
Tapp testified that after he got to the office two employees
walked in and wanted to sign the petition. He "throwed" it
to them, they signed it, and left. The total number of
signatures was 30.
On November 9, about 5:30 p.m., Tapp told Neuman
that the petition should be back from Texas the next day
(Saturday), and that on Monday, November 12, it would
be given to Parks, the union representative.
Conclusion as to the Antiunion Petition
The foregoing clearly shows that Quality in fact directed
and assisted in the preparation and circulation of, and
solicitation of signatures on, an antiunion petition by and
among employees. Such actions constitute interference
with and restraint of the rights guaranteed under Section 7
of the Act in violation of Section 8(a)(1) of the Act. Bauer
Welding & Metal Fabricators, Inc., supra at 963; Standard
Fittings Co., supra, 44, 45.
G. The Discharges of Miles, King, and Warren
1. Benjamin Miles
a. Introduction
Miles was twice employed by Quality as a truckdriver.
He first worked for 2 1/2 to 3 months in 1971. His second
employment began February 10, 1972, and ended August
29, 1973. The General Counsel contends that Miles was
discharged because of his union activities and affiliations,
and that the reason for the discharge given by Quality is
pretextual. Quality asserts that Miles was terminated
because of absence from work.
b. Quality had knowledge of Miles union activity
and affiliations
Miles testified that the only union "activities that I
actually engaged in was talking to different men in the
shop50 about signing up for the Union." The record does
not show when this union activity occurred nor its extent.
The indication is that the activity was small and happened
about the time he signed a union card which was on
August 5. Miles testified that the union campaign started
"sometime in the latter part of July." He attended no union
meeting before he was terminated.
During the week of August 13, Miles had a conversation
with Bridges in the drivers' room. Other unidentified
drivers were present. Bridges came up and said "the
50 This constituted mechanics as well as drivers.
51 The report contained the statement "I talked to him and told him he
was going to have to improve ." Miles testified the words were not on the
report when he signed it . Tapp testified that the words were written in the
report either before Miles signed it or while he was still in the room . In view
dispatchers would be eligible to sign up for the union the
same as drivers." Miles gave the opinion that "a salaried
man was not included as a percentage man and would not
be allowed to sign up." During the same week, Miles had a
conversation in the drivers' room with DeVille and Bridges
with Tapp sitting about 4 or 5 feet away. DeVille
mentioned that the dispatchers would be able to sign up for
the Union. Miles stated he didn't "think they were eligible
on account of being salaried men," and he believed "a
salaried man is a company man."
During this week also there was a conversation in the
drivers' room among Tapp, Miles, and a driver called Otis
Smith. According to Miles the following occurred:
During that conversation Mr. Tapp walked out, and he
went back and he told Otis and I to wait a minute, he
would show us the benefits that the company offered
over the union, and he went in and brought out what
we call the company Bible and started reading off the
different benefits that the company could offer over the
union, . . . and I asked at that point if that's what the
company offered, work your life through with them to
the end of your retirement, and then get a boot in the
butt.
From the foregoing, it is concluded that Quality had
knowledge that Miles was a union member and participat-
ed in its activities.
c. Miles' employment history
In October 1972, Miles became ill, complaining of pain
in the chest and shortness of breath. Under doctor's orders
he stayed away from work without objection from Quality
from October 24 to November 19, 1972. On April 10, 1973,
Miles became ill again and remained away until April 29,
1973. Again there was no objection from Quality for this
absence of about 19 days.
On July 27, 1973, Miles had an employee interview with
Tapp. His past performance was discussed and certain
qualities were rated on an Employee Interview Report by
checking a box marked "Good, Fair, or Poor." Miles was
rated "Poor" on "Dependability." Miles signed the report
after the rating was done.51 One of the questions asked by
Tapp was why had Miles taken so much time off. In
response Miles stated that he and other drivers were
"getting pretty blowed up about the way Buddy Boudreaux
was doing the plant, so why should any body else give a
damn." Tapp told him he shouldn't be using another driver
as an example. Miles admitted that among the things
discussed at this conference were the problems of his
getting out there and doing a job for the employer; and
that "he was unavailable for runs, unavailable for work, a
great deal of the time."
In early August, exactly how early in the month is not
clear from the record, Miles told Tapp that Miles' brother
would have to go to the hospital for an operation; that
of Tapp's uncertainty , it is found that the words were not in the report when
Miles signed it. Further , Tapp testified that at this interview he told Miles
that "... if you don't improve, I have got to let .. you go." Whether
Tapp actually made this statement or not is not significant in view of the
fact that such a result was the full implication of the interview.
QUALITY TRANSPORT INC. 207
Miles wanted time off for that purpose; that Tapp said,
"that's all right. Let us know .... 1152 On August 21, Miles
became aware that the operation was to occur the next day.
He asked for time off to attend to his brother.53 As shown
in the footnote the record is not clear as to how and
through whom Quality became aware of the fact that Miles
wanted time off beginning with August 22. Nor is the
record clear how much time Miles asked for. What is clear
though is the fact that Tapp knew that Miles was taking off
with permission for some unspecified period of time.
The next time that Miles appeared at the terminal was
August 23 or 2454 to pick up his paycheck. Then Tapp saw
Miles and greeted him .55 That was the last communication
between Miles and either Tapp, DeVille, or Bridges until
Miles returned on August 29.56
During his absence , Miles' card had been kept in the
drivers box. DeVille marked him off on August 22, 23, and
24 and assigned 20 points to him for each day. Another
dispatcher marked him off for Saturday, August 25, and
assigned 10 points for the half day. No notation was made
for Sunday, August 26. Again, Miles was marked "off" for
August 27 and 28 and assigned 20 points for each day.
On Miles' return on August 29, Tapp discharged him
because as Tapp testified, "I didn't hear anything else from
him, . . . until the 29th, when he came back . . . I called
him in and asked him where he had been, and he said he
had been tending to his brother. I says, we tried to call you
and you don't have a telephone57 ... I had to hire
somebody to drive your truck, I needed a driver for the
truck . . . I am just going to have to let you go ... I said
the least you could have done was call us . I had to call you,
the dispatchers tried to call you, and never received no
answer."
According to Miles on August 29 he arrived at the plant
about 11 o'clock. Tapp was out to lunch. On his return
Tapp spoke to Miles and told him he would have to let him
go "for taking so much time off." Miles responded "that's a
pretty damned poor way of doing it . . . a man can't even
be off with a family member having a major operation, that
he has to get fired over it."
The record contains no evidence of dissatisfaction with
Miles after the July 27 conversation . Tapp stated that there
was one occasion prior to August 29 but after July 27 when
Miles did not "show" because his car broke down. Tapp
spoke to him about it, believed the story, and excused
Miles' "no show."
Conclusions with Regard to Miles
Despite the varying stories among Miles, Tapp, Bridges,
and DeVille, the record shows that Tapp, Bridges, and
DeVille knew that Miles was taking off because of his
brother's surgery and had stayed away in connection with
that disability. The record also shows that for the last 3 or 4
days of that period Miles was not in touch with the
terminal. But the record leaves no doubt that Tapp, et. a1.,
knew why he was away. Management offered no explana-
tion why nothing was said to Miles on August 23 or 24
when he showed up for his check although Tapp, Bridges,
and DeVille saw him that day. Nor does management offer
any explanation for his card continuing to show that he
was carried on the books through August 28. Management
also offers no explanation for the difference in treatment of
Miles when he was excused for his earlier absence in April
1973 and the absence in August when he was away because
of his brother's illness . Nor does management offer any
explanation for the difference in treatment of Miles and
Boudreaux. The record does not show that after the July 27
talk with Tapp, Miles had stayed away, missed a run, or
was otherwise up for report. Nevertheless he was fired on
August 29. On the other hand the treatment given
Boudreaux was different.
Tapp knew Boudreaux and his reputation for undepend-
ability. On July 17, Tapp had an employee interview with
Boudreaux. His mark for dependability was "Poor" and his
report contained the notation by Tapp "feel he will try to
improve." Among the drivers and the dispatchers Bou-
dreaux was known as one who would take local runs only
and refuse out of town runs. Vermeal testified to the fact
that in the early part of August, Boudreaux did not show
for a run. Boudreaux was due to go out at 3:30. Boudreaux
called the dispatcher Bracey several times to say he was
coming in. He failed to do so and Vermeal took the run.
There is no evidence that Boudreaux was spoken to about
this failure. In the latter part of September, or early
October, Boudreaux did not show up for a run necessitat-
ing a substitute driver. Boudreaux's card was in the box
when Tapp came in . That day Tapp held a long
conversation with Boudreaux on the telephone. Since then,
52 This conversation is not denied by Tapp.
51 The record is somewhat confusing about how this occurred. Miles
testified that on August 21 he notified Bridges who said , "Okay let us know
when you are able to come back "; that Tapp was there and he believed
Tapp overheard the conversation ; that he did not speak to Tapp. Tapp
testified that on August 21 Miles asked him for "one day, may be , two off,
and may be till the week end"; that Tapp responded "well one or two days,
fine, but if you are going to have to be off longer than that, give me a call."
Inconsistently with this statement Tapp stated in the termination report he
filed on Miles that Miles asked for I day off .... Bridges testified that he
did not remember the period commencing with August 21; that he
remembered no conversation with Miles ; that for the period from August 21
to August 29, he saw Miles only once when the latter came in after August
21 to pick up his check . DeVille testified that on August 21, Miles told him
about his brother's operation . DeVille told him to see Tapp and "Roy Tapp
told him to come to tell me not to book him . I didn't." DeVille testified that
Miles asked for "Wednesday off and may be Thursday for his brother's
operation ." Vermeal testified that he was present when Miles spoke to
Tapp ; that Miles asked for the rest of the pay period off, that Tapp said,
"sure ... under the circumstances" and to make sure that Miles told the
dispatcher to put him "in the back of the box."
54 Tapp testified it was 24. Vermeal and Miles testified it was 23. Bridges
saw Miles but did not remember the date . Whether it was August 23 or 24
does not affect the conclusion hereafter drawn.
55 Tapp testified that he might have said "Hi Ben or something like that"
and nothing more. Vermeal and Miles (the latter on cross-examination)
testified that Tapp asked after Miles brother Miles also testified that at that
time Tapp said, "Let us know when you are able to come back." It is
considered unnecessary in light of the following facts to determine the exact
statement made by Tapp.
56 Bridges reiterated the fact that he didn 't remember the period from
August 21 to 29. Despite these statements he did testify that Miles' mother
called while his brother was in the hospital. She asked that Miles call her.
The record is not clear whether this call was received by Bridges or some
other person in the terminal . Budges gave Miles the message . He did not
specify how that was done . Budges also stated that he tried to contact Miles
by telephone to give him a run but could not reach him.
51 An obvious misstatement according to DeVille's testimony.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to Tapp, Boudreaux "had made me a good
employee."
Finally, the record shows several instances where Quality
employees were away from the plant a week or more
without permission and were not discharged because of
their absence . In particular, employee James was absent in
July for 1 week during which Quality did not know his
whereabouts . He did not contact Quality. They could not
contact him. When he returned Tapp was told that he had
spend a week in jail in Alabama. James missed several runs
thereafter . The record shows that James is still employed
by Quality. The record contains no evidence that James
was reprimanded or warned , or received any sort of
censure for this week's unauthorized absence without
contact 5s
As is stated more fully in section I hereafter, the
difference in treatment between Miles and other employees
equally delinquent , and the difference in treatment of
employees including Miles , in July and later in August,
stems from the existence of the union activities in the plant
commencing late July.
King if he had ever been a member of a union before and
King answered, "yes I had."
On August 28, the day before King's discharge, Tapp
and King held another conversation. Tapp asked King
about the people he had been speaking to about the Union.
King mentioned Don Warner.61 Tapp told him that
Warner "didn't know what he was talking about" and
advised King to speak to Cox and Parker "who were for
the Union at one time and had learned better ......
During this conversation Tapp also asked King how the
latter felt about the Union. King told him he was for it,
"the majority of the men in the company was for it ... the
majority win." 62
Tapp testified that he heard King's testimony and denied
that he ever spoke with King about the Union in his office.
He specifically denied the "majority" conversation, but did
not deny the Warner statement. He did not deny the
August 11 conversation 63
On the record as a whole and under the above
circumstances, it is found that sometime before August 29,
1973, Quality was aware that King was a union member.
2. Jose King, Jr.
a. Introduction
King began his employment with Quality as a truckdri-
ver on July 17, 1973 . He was discharged on August 29,
1973. As with Warren and Miles, the General Counsel
contends King was discharged because of his union
activities and affiliation and that the reason stated by
Quality was pretextual . Quality contends that the discharge
was for cause . In its brief Quality states , "Tapp testified
that on the 22nd of August he warned King that if he was
late again he would be discharged. Subsequently, King was
late for a run and was terminated by Tapp."
b. Quality had knowledge of King's union activity
and affiliation
King 's union activities were minor . He signed a union
card on August 17. On August 19, he attended a union
meeting at which, he "hollered" the Union was "right,
stand aside and give me some cards , and I am going to get
the bunch of other guys signed." 59
On August 11, Tapp spoke to King and four other newly
hired drivers in the driver's room.80 Tapp told them of the
benefits they could lose if the Union came in. King asked
him if they would "still get a watch?" Tapp answered
"Anything the company gives you . . . ." Tapp asked
sa Both Boudreaux 's and James' records are dealt with in greater detail
in section H below.
56 There is no evidence to show that Quality was aware of this action.
Parks , the union representative, told the union people to keep the campaign
"low key ... [without) handbills . . . to talk to the guy ... they could
trust" Despite this, there is no question as admitted by Quality, that the
latter was fully aware of the existence of the union campaign and activity
among the drivers and shop employees . As DeVille testified during July and
August , union talk "was all there was."
eO See section F,l,b, above:
61 Known in the plant as the most active union supporter.
62 As stated in section c below much of King 's testimony has not been
credited . King testified that the conversation about majority occurred on
August 28 . He also stated it occurred on August 11. King could have been
c. King's employment history
Tapp hired King after a personal interview and a check
on King's recommendations. King satisfactorily passed a
prehiring driving test. At the interview Tapp told King that
he had been told by King's previous employer that he had
"a heavy foot and that he was fast." Tapp made King
promise "he would slow down, and be real careful, with
that $35000 piece of equipment."64
From July 17 to August 21, the record is free of evidence
of action by King as an employee that was subject to
criticism. For the period commencing August 21 through
August 29 four late reports were filed:
(1) On August 21, Bridges filed a report showing that
King was due at the terminal at 6:30 a.m., but arrived at
7:35 a.m. The report stated he had a flat tire on his car. It is
considered that this lateness was "washed out" for as
Bridges testified, a lateness due to such a cause was not
held against the driver.65
(2) On August 22, King was assigned a run to Houma,
Louisiana, to leave at 4:30 a.m. DeVille was the dispatcher.
By 5:30 a.m. King had not arrived and a standby driver
was assigned the run. According to an IBM printout
showing all the runs King had while employed by Quality,
on August 22, he was assigned and drove another run to
Morgan City, Louisiana. The record, however, is in a
confused state as to the events that occurred on August 22
after King arrived at the terminal. They will be dealt with
confused about the date . He testified though that this conversation occurred
in his talk with Tapp . On August I I he had no direct talk with Tapp. In the
light of the foregoing , it is found that the "majority" conversation occurred,
and on August 28.
83 Tapp admitted as stated above that he talked many times with drivers
about losing benefits.
64 The last refers to Quality's trucks. The record contains no evidence
that King's discharge is related to "a heavy foot."
65 Tapp testified similarly that a man would not be penalized for arriving
late at the yard, if he was delayed by a flat tire in his own car. (Note also
Tapp's excuse of Miles "no show" when the latter's car broke down. See
section l ,c above .) Tapp added the proviso that there was no penalty, "if he
didn't miss the load." The record does not show that on 8/21 King missed a
load.
QUALITY TRANSPORT INC.
in detail in an attempt to arrive at what actually did
happen. Three people (DeVille, Tapp, and King) testified
concerning the events of August 22. Their testimony will be
dealt with in that order.
DeVille identified a late report dated 8/22/73 that he
had made out. His testimony on the report in its entirety
follows:
Q. What is the date on it?
A. 8-22-73.
Q. What did you do with it?
A. Gave it to Ray Tapp.
Q. And is all of that writing on that report yours?
A. No. The bottom is Ray Tapp's.
Q. All right, sir. There is light blue ink and dark
blue ink. Which writing is yours, sir?
A. Light blue.
Q. The light blue ink is yours?
A. Yes.66
Q. And the initials in light blue is your signature?
A. Yes.
Q. Where did you get the information from or for
that late report.
A. Well, he was due in at 4:30 and at 5:30 he
wasn't there.
JUDGE THEEMAN: That wasn't the question.
Q. (By Mr. Schoolfield) Where did you get the
information for that report?
A. I was dispatching.
Q. Did you get it off your dispatch sheet?
A. Yes. He was booked on a load, and I had to put
another man on the load at 5:30 because he wasn't
there.
Q. Do you recall the incident?
A. Well, I could look at the dispatch sheet, but I
don't recall every man that's late, but I remember when
he was late this time because that's when Ray called
him in the office.
Tapp's testimony on this subject follows:
Q. (By Mr. Schoolfield) Let me refer to respon-
dent's exhibit 9. There is some black writing on there.
Can you tell me about that, please?
A. Yes, sir, I wrote that on there.
Q. What does it say?
A. It says, called in the office and warned this was
his last time , signed by myself.
Q. What date was that?
A. 8-22.
King testified at length and with some contradiction and
confusion about the events of this day. On cross-examina-
tion the following testimony was first given by King.
Q. I'm asking you. Didn't Mr. Tapp call you in the
office and warn you that this was the last time that you
would be late for work or you would be discharged, on
August 22nd?
es The late report was received in evidence . It showed in blue ink, the
statement "Run Missed Houma ... I hour late had to put Stand-By man
on it," in black ink the statement , "Called in office & warned that this was
last time."
209
A. That is correct.
Q. This is correct?
A. Yes, it is.
Q. August 22nd is a week prior to the 29th. What
day was the 29th?
A. The 29th was a Wednesday.
Q. So, the Wednesday prior to that, you were
called in the office, and warned that the next time you
were late for work, you would be discharged, is that
right?
A. That's right.
Immediately after this King denied that he had held any
conversation with Tapp on August 22. King then admitted
that he "only missed one run and that was to Houma" and
he believed "it was the 25th." After he was referred to his
IBM print-out to refresh his recollection King testified.
A. I was scheduled for Houma and I missed the
Houma run and I took a Morgan City in place of it.
Q. What's the date you took the Morgan City run?
A. That would have to be on the 22nd.
Q. That's what I was trying to establish. So, it was
the 22nd that you missed the Houma run, is that right?
A. Yes, that is correct.
Then, King denied that he spoke to Tapp on August 22. He
stated that he received no warning on August 22, but did
on August 28; that he had held three conversations with
Tapp during the month of August on the 11th, 28th, and
29th and no others. After this statement the following
question and answer took place.
Q. All right . Now, let me ask you this . In the latter
part of August , were you warned by Mr. Tapp that the
next time you were late for work you would be
discharged?
A. I do remember being warned but I do not
remember what date I was warned on and I do not-I
believe-I don't believe it's the 22nd . It may be the
22nd.
King then again admitted that he missed the run on August
22; 67 that it was mentioned by Tapp the latter part of
August-this date was August 28 and it was on that later
date Tapp told him that the next time he was "Late to my
destination" he would be discharged.
The conflict, contradiction, and equivocation in King's
testimony make it difficult to credit him. Accordingly, on
the basis of the foregoing, it is found that substantial
evidence support a finding that on August 22, Tapp
warned King that the next time he was late reporting he
would be fired.
(3) On August 25, King was dispatched to leave the
terminal at 5:30 a.m. for a trip to Donaldsonville,
67 Later in cross-examination on the number of times he was late in
August King admitted that he had "testified that on the 22nd of August [he
was ] one hour late reporting and lost a run."
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louisiana. He left at 7 a.m. Bridges filed a late report on
King .68 King flatly denied that he had worked on August
25. When it was pointed out that the day was a Saturday,
King stated positively that this was the Saturday before his
discharge and he neither took a run nor reported to the
terminal . King's testimony is not credited. The dispatch
sheet for August 25 showed that King had a run that left
New Orleans at 7 a.m. and was completed at 12:30 p.m.
The dispatch sheet data was confirmed by the data
contained on the freight bill for this trip made out by King
and the bill of lading for the same day made out in the
name of the receiver of the freight 88
On Monday, August 27, King did not report to work
because the motor in his car had burned up. Because of
this Tapp spoke to him on Tuesday, August 28, and
explained his absence. Apparently that explanation was
accepted. The conversation then continued with the
discussion of union matters detailed in section F, l,b
above.70
(4) For August 29, Bridges filed a late report on King
showing that the latter was due at the terminal at 5 a.m.,
arrived at 5:40 a.m., and left for his destination at 6:10
p.m.71 This late report was based on the dispatch sheet
dated 8/29/73. After he had made it out, Bridges gave the
late report to Tapp. When King returned Tapp terminated
him. According to Tapp the conversation went as fol-
lows: 72
A. I told him that I went as far with him as I could,
and I warned him about being late, that he was still on
a trial basis and I talked with him before, and didn't
look like it done any good to talk to him, so I was going
to have to terminate him.
Q. What did he say?
A. I don't remember his exact words. He didn't
think it was fair. Said he hadn't never been late on a
delivery, but on this particular morning he was late on
that delivery.
possibility that problems about King's driving might arise.
Under these circumstances , it is reasonable to conclude
that Tapp kept a careful watch over King's record. The
record shows no complaint about King's work from July 17
when he was hired until August 21.73
King testified without denial that he had worked for
Quality, long and often and never turned down a job. As
shown by his IBM printout there was a period from July 23
to August 18 in which he worked every day including
Saturdays and Sundays.74 As a matter of record Tapp and
all the dispatchers admitted that it was not uncommon for
a driver to miss a run . On such an occasion a standby
driver would take over. Apparently, it was to provide for
such occasions that drivers were assigned to standby duty.
Under these circumstances, there appeared nothing unusu-
al about King missing a run on August 22. A standby
driver took it over and King was assigned a substitute run.
King was given unusual treatment for a not unusual
occurrence. He was told by Tapp that the next time it
would occur, he would be terminated. The record shows no
instance of any other driver who missed a run that was
similarly treated.75 Why King? Because by this time the
union campaign had full momentum and Tapp was
showing union supporters what could happen to them.
Having started the plan to terminate King for what seemed
to be cause, it was no problem to select a pretext within a
short time thereafter. No explanation is given why King
was not terminated for his late report on August 25.
Perhaps, the late report did not give a full semblance of
cause. In any event, a better reason was found on August
29 when he left late and arrived at the customer 3Q minutes
after schedule. The record does not show that the half
hour's delay caused the customer any serious problems.76
In any event, King was terminated. It is of some
significance that this occurred 1 day after King's talk with
Tapp about Don Warner and the request for union
information, and 2 days before the representation hearing
before the Board.
King admitted that he had been called by dispatcher 3. Pat Warren
Bracey the night of August 28 to report the morning of
August 29 at 5:30 a.m. King also admitted to being half
hour late on his delivery to the customer. a. Introduction
Conclusions with Regard to King
When he was hired Tapp knew King had what he called
"a heavy foot." No doubt this alerted Tapp to the
ss Bridges testimony was based on the dispatch sheet dated 8/25/73 and
a late report of the same day.
89 It was ordered at the hearing that the documents used to make the
entries on the 8 /25/73 dispatch sheet should be placed in evidence as
posthearing exhibits . Respondent sent these to the Administrative Law
Judge by letter dated November 29. They were the freight bill and bill of
lading referred to above . The General Counsel had no objection to their
receipt in evidence . Accordingly, both bills have been received in evidence
as Resp . Exh. 12(a) and have been placed in Respondent 's exhibit file. The
correspondence with regard to the exhibits have been placed in the case file.
In view of the foregoing it is found that the entry made on King's IBM
printout of his trips which gave the date of 8/24/73 for this Donaldson trip
was an error as testified to by Tapp.
70 King's IBM printout shows that he did not work on August 27. Tapp
does not deny that he spoke to King on August 28 but generally denies
speaking about the Union to King . On the record, King is credited that he
held the conversation with Tapp on August 28.
Warren was employed as a shop mechanic by Quality on
two occasions: In 1971 he was employed for 3 months. He
left because he did not wish to work on a certain shift. He
was reemployed in February 1973 77 and terminated on
71 This is the time he left the terminal to go to the cement plant to pick
up his load. He left the cement plant for the customer at 6:35 a.m.
72 King's version of the conversation is somewhat different . In view of
the admissions hereafter stated that he was told to report at 5:30 a.m. and
that he was 1 /2 hour late at delivery, it is considered that Tapp's version is
credible.
73 As shown above the August 21 late report was excused.
74 During this period he missed Monday, August 16. There is no claim
by Quality that King was other than a competent and efficient driver.
75 Vermeal and James admitted they missed runs . The record does not
show similar treatment.
76 It is conceded that Quality had the right to discharge King for arriving
late if that was the cause. This comment goes only to the weight that may be
given to the late arrival under ordinary circumstances. King testified that he
had to wait at the customer about an hour to be unloaded.
77 His foreman was Harold Lee.
QUALITY TRANSPORT INC. 211
August 30, 1973. The question to be resolved here is what
caused the termination? 78 Quality asserts it was a voluntary
termination by Warren. The General Counsel asserts he
was discharged because of his union activities and
affiliations.
b. Quality had knowledge of Warren's union activity
and affiliation
As shown above, there is no question that Quality was
aware that a union campaign was occurring at the plant.
Further the record clearly shows that Quality had
knowledge of Warren' s union partisanship. Uncontrovert-
edly the record shows that three management officials
spoke to Warren about the Union during August prior to
his termination. One or two days before Tate asked him if
he knew anything about the Union and which one it was.79
Warren responded that with a union the Company might
have a more orderly shop. In mid-August Tapp with Lee
present spoke to Warren and some other mechanics in
Tapp's office. Tapp told them that he did not "see how he
got anyone to hate him enough to where they would vote
for the union." In the latter part of August, Lee held three
conversations with Warren .80 During one Graves, another
shop employee, was present. The conversations were
general . In effect Lee stated that after comparing wages
and working conditions, the men were better off without
the Union; and Warren answered that the men would have
a better deal with the Union.81
c. Warren had an accident
On July 31 Warren was sent to Houma, Louisiana, to
work on a truck that was having a problem with an
inoperative pressure hose. It was jammed with cement. In
making the repair, a blast occurred that flung cement in
Warren's face .82 He felt a burning sensation in his lungs.
Warren drove the company truck back to the plant and
reported the accident to the dispatcher on duty. At the
latter's request, he waited for Lee to come in. Lee arrived at
8 a.m. With Lee's permission Warren went to see Dr.
Segura, the company doctor. Dr. Segura examined Warren
and gave him the following note:
May RTW 83 if away from cement dirt for 24-48
hrs.-Recheck tomorrow.
Warren returned to the terminal and showed the note to
Lee who told Warren he could take as much time off as he
wanted. Warren took off 3 days. He returned and with
Lee's consent worked a reduced number of hours'for 2 or 3
days. Then he went back to his regular schedule.
About 2 weeks later, Warren told Lee he was having
trouble breathing and that he wanted to see his own
physician, Dr. Russell. Lee had no objections. Dr. Russell
was on a 2 weeks' vacation. On August 29, Warren visited
78 There is no question of Warren's capability. The record shows that
Lee thought well of him as a mechanic and had recommended Warren for a
raise.
78 See section F, l,a above.
80 No date is specified . Warren testified they occurred the week "prior to
my discharge."
81 Warren signed a union card on August 4. Daily thereafter he talked to
him. After an examination Dr. Russell gave Warren the
following note:
Mr. Pat Warren was seen by me today, complaining
of dust pain and shortness of breath. I would
recommend that he avoid environmental irritants for
approximately one week.
The morning of August 30, Warren went to Dr. Segura
again and showed him the above note. Dr. Segura gave him
another note reading:
Able to return to work-But believe above is allergic to
dust particles . May have to find other job.
The Events on August 30 According to Warren
On direct examination Warren testified that he arrived at
the plant at 10 a.m. and gave Lee both notes. Lee said,
"We will see what Ray Tapp has to say about this." When
they got to Tapp's office, Tapp read the notes and told
Warren, "If that's the case, we don't need you any more."
Warren responded, "he would come back in a day or so to
get his tool box." Tapp told him he could finish out the pay
period if he wanted to. Warren rejected that offer because
there was one day left84 and he was not feeling well.
After much searching inquiry on cross-examination
Warren admitted that after Dr. Russell gave him the note
he intended to ask for a week off; that on August 30 when
he showed the two notes to Lee he did ask for "a week off."
The record does not show any response from Lee other
than the one about going to see Tapp. Also, on cross-
examination Warren testified with less certainty that he
thought Lee told Tapp about the request for time off when
the three met shortly thereafter.
The Events on August 30 According to Lee
Lee stated that on August 30, when Warren brought the
two doctor's slips to him, Warren asked what Lee wanted
to do about it. Lee had nothing to tell him but that they
would have to see Tapp. Lee explained that it was out of
his authority.
According to Lee the following took place in Tapp's
office.
A. Well, Ray read the slips, not being able to quote
the exact words, but Pat asked us what we wanted to do
about it. I said, Pat, that is going to have to be entirely
up to you. You are the man to be the judge. I have a
mechanics job open. I need a mechanic and the job is
yours if you feel like you can handle it, fine. If you
don't, you are going to have to be your own judge
about it.
Q. What did Mr. Tapp say?
A. Mr. Tapp told him essentially the same thing.
drivers about the Union when they came up in their trucks. He attended a
union meeting on August 19.
82 The blast occurred at 2 a.m.
83 Return to work.
84 Actually , there were 2 days left. The second was a Saturday when
Warren did not normally work.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He said you are going to have to decide whether you
feel like you can work in this condition or not.
Q. What did Mr Warren say?
A. Pat said, he felt like, well, he just couldn't work
in the dust and conditions that we had.
Q. Did Mr. Tapp say anything else?
A. And Ray asked him, he said, well, we have got 2
days to the end of the pay period. Do you want to look
for another job? Do you want to continue to look for a
job or do you want to take off now and find this job. It
is up to you what you want to do.
Q. And what did Mr. Warren say to that?
A. Mr. Warren said that he would just go ahead
and find him a job.
Q. Is that the end of the conversation as you recall?
A. That's the end of the conversation as I remem-
ber it.
Q. What did Mr. Warren do then?
A. He shook hands with us and we shook hands
with him, and he left, and we wished him well, hoped
he found a_good job. I wished him well and hoped he
would find a job, a good job, that he could work in.
The Events on August 30 According to Tapp
Tapp stated that the first he knew about Warren not
being able to work for Quality was when Warren and Lee
came to his office on August 30 and handed him the two
notes . Lee told him that Warren had brought them in; and
that Lee wanted Tapp to look at them. Tapp did and told
Warren "it looks like you got a problem." Warren said:
... yeah. Looks like I am allergic to dust, and I said,
well, you know that dust is all we got around here, and
I said, what's your intention? What are you going to
do? And he said, well, I guess I am going to have to
find me another job. I said, well, do you want to finish
out the pay period? Work as long as you want to til you
find something or whatever you want to do, and he
said , well, I said it makes no difference to me. You are
the one that's got to live with this thing. And he
stuttered a minute , and said, well, I just got one or two'
more days in this pay period. He says, I might as well
go ahead and try to find me something, and get started
on it, and I will come back in a day or two and pick up
my tools.
I said, well, I hate to lose you but that's the way it is.
So he left at that time.
Q. Did Mr. Lee say anything during this conversa-
tion?
A. No, he spoke before I did.
Q. In your office?
A. Yes.
Q. What did he say?
A. He told me that he hated to lose Pat, but Pat
said it was looking like he was going to have to find
another job, and that he felt like, Pat felt the same way
that I did, he could go ahead and work a few more days
if he wanted to till he did find something, but Pat took
it on himself to say he thought he had better go on,
since there was just a day or two left in the pay period,
he might as well go ahead and find him something and
get something started, so we all shook hands and he
left.
Conclusions with Regard to Warren
Warren's admission that he asked Lee for "a week off"
when he showed Lee the doctor's notes dated 8/29 and
8/30 is undisputed. The request was made in Lee's office
before Warren and Lee went in to see Tapp. Such a request
appeared to be in keeping with Warren' s intentions
stemming from the recommendation of Dr. Russell that
Warren "avoid environmental irritants for approximately
one week." There is some doubt that Warren renewed his
request in Tapp's office. In any event, the record does not
conclusively show that "a week off request" was discussed.
The failure of such a discussion to occur lends support to
Warren's testimony that Tapp came up with a brusk
decision, "we don't need you any more." It appears
reasonable that having made the request of Lee earlier,
Warren would repeat that request in Tapp's presence had
he been given the opportunity. This request would have
been a reasonable response to Lee and Tapp when they
asked Warren, "what was he going to do about it" had they
actually asked that question. Certainly the request would
have been more reasonable than the response "I guess I am
going to have to find me another job" that Lee and Tapp
stated was the answer Warren gave. It would have been a
more reasonable response if the discussion was as friendly
as Lee and Tapp stated it was. In any event, Warren
appeared a reliable and impressive witness and his
testimony is credited. On the other hand, that much of the
testimony of Lee and Tapp that stated that Warren said, in
effect, that he would go ahead and find himself another job
is not credited.
It follows from the admission elicited from Warren that
he did not quit his job as Tapp and Lee aver. Neither Tapp
nor Lee offer any other reason for Warren's severance
from Quality except that he quit voluntarily. This reason
having been shown false, the conclusion is inescapable that
Warren was discharged. Neither Tapp nor Lee give any
cause for the discharge. Thus, it is reasonably concluded
that Warren was discharged for his union activities and
affiliations.
Several factors support this last conclusion. Warren's
accident occurred on July 31. On that day with Lee's
assistance he went to the company doctor and then
reported to Lee with the doctor's note. He asked Lee for
time off and Lee told him he "could take as much time off
as [he] wanted." As noted Warren took 3 days off and then
worked half days for the next 2 or 3 days, without
comment or question from Tapp or Lee. On the other
hand, on August 30, Warren faced an entirely different and
hardened attitude. Lee told him the matter was out of his
authority, he didn't know what to do about it, and they
should go and talk to Tapp. This change and these actions
do not square with Lee's earlier actions and attitude of July
31. The climate was sharply different in early August from
that in late August. What significant events had occurred
that caused the change? In early August, the union
campaign was dust coming to life. Warren had not yet
signed up with the Union and management was not yet
aware of his union sympathies. By August 30, the lines
QUALITY TRANSPORT INC.
between Union and management were sharply drawn. The
union campaign was in bloom. Quality actively carried out
its antiunion operations. Warren 's union sympathies were
known to Lee and Tapp. It can readily be concluded that
these interim events affected the relationship between
Warren and Lee and Tapp and led to his discharge.
Finally, as noted above in the case of Miles, the record
shows that employee James was absent in July for 1 week
during which Respondent did not know of his whereabouts
nor had James been in contact with Respondent. Since that
time James has been late for several runs . The record
contains no evidence that James has been warned,
reprimanded, or censured in anyway. James is still
employed by Quality.85
H. Quality 's Treatment of Other Employees
The record shows clearly that there are employees still
employed by Quality whose employment record contained
lapses in employment behaviour similar to that of King,
Miles , and Warren.
1. Boudreaux received a poor dependability rating
On July 17, Boudreaux had his annual employee
interview with Tapp. As in the case of Miles, he was rated
poor on dependability. Tapp included a statement on
Boudreaux's report that he felt Boudreaux would try to
improve. Vermeal testified without refutation that in early
August he took a run that Boudreaux did not show up for.
On that day, Boudreaux was on standby. Bracey was the
dispatcher . Boudreaux's run was scheduled to leave at
3:30. By 4:30, Boudreaux had not showed and Vermeal
was assigned to his run. During the interval, Bracey called
Boudreaux several times and was told that he was on his
way. Boudreaux never called in. Tapp testified that there
were several occasions after his interview with Boudreaux
when Boudreaux refused to take runs assigned to him
because they were local runs . The other drivers complained
of these actions . The last of these refusals , according to
Tapp, occurred in the latter part of September or the early
part of October. Boudreaux refused a run and Bridges was
required to assign it to another driver. At that time, Tapp
spoke to Boudreaux on the telephone , "and had a good
long conversation with him." The record shows that
nothing more drastic than that was done.
2. James was away a week unheard from
James was employed by the Respondent for about 2 1/2
years. The latter 1 1/2 years he was a driver.
In the month of July, James was away a week and
Respondent neither knew where he was nor did they hear
from him . He was gone from one Saturday to the next.
During his absence , Tapp tried several times to get him on
the telephone but got no answer. On his return he reported
to Bridges who told him to see Tapp the following
e5 Warner, a truckdriver, testified that in September 1972 (9 months
before the union campaign started ) his mother had a slight stroke . He asked
Tapp for time off. The latter said, "go ahead and just report in when [you ]
come back ." Warner took 4 or 5 days off. Nothing was said when he
returned . Miles was off sick with company leave from April 10 to 29, 1973.
This is in accord with Lee 's testimony that within the past 9 months he
213
Monday. Tapp told him that they had "been hurting
around here" because of his absence. Tapp sent him out
that Monday. Since then, James missed three or four
runs .86 Tapp spoke to him about them. The last time that
Tapp spoke to him was about October 19 or 20, when
James did not show up at all. Since the talk with Tapp,
James missed two more runs, the last one occurring in the
month of November. The record does not show that
Respondent has taken any punitive action to James for
these delinquencies.
3. Treatment of other employees by Respondent
on August 25
Bridges testified that there were drivers employed by
Respondent at the time of the hearing against whom late
reports had been filled out. He gave the number as "maybe
5" and that they were the "older drivers." He personally
had made out several drivers' reports on one of the drivers.
Bridges also testified that he makes out as many as five
drivers' reports a day in the regular course of business. On
August 25, a driver by the name of Pierce was shown on
the dispatcher's sheet to have been 45 minutes late in
reporting. The dispatcher's sheet showed that he was
scheduled to leave the terminal at 1 but did not arrive until
1:45. Bridges testified he did not make out a late report. He
could not testify why he did not do so, nor the reason for
Pierce's lateness. It is noted that Bridges made out a late
report on King for that date because he left the terminal at
7 a.m. when he was scheduled to leave at 5:30 a.m.
Vermeal admitted that he had reported late many times in
August.
4. Dissimilar treatment given other drivers the
day King was fired
On August 29 a driver by the name of Jackson was
scheduled to leave the terminal at 12:30 and did not do so
until 1 hour later. Bridges could not recall if he had made a
late report for Jackson. The same day driver Friar was 25
minutes late. He was scheduled to leave the plant at 7 a.m.
and arrived at 7:25 a.m. As with Jackson no late report was
filed nor was any excuse for his lateness shown.
5. Other drivers had been late
There existed among the drivers a feeling that the
reporting time given to them by the dispatcher was usually
too early. The key to the action was that the delivery
should not arrive late at the customer. It was generally
conceded that many of the drivers knew the roads to take
and approximately how long certain runs would take.87
Based on this knowledge they would report at the plant to
start the run in order to give them a reasonable time to
arrive at the customer without being late. In many of these
cases , the time they reported at the terminal was later than
the time given them to report by the dispatcher. This
granted time off to other mechanics because of illness and those employees
are still working for Quality.
86 James testified that in late October or early November , he was late
three times in I week in reporting to the yard. Each time he was about 35/40
minutes late.
87 Tapp admitted that these were the facts
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice was known to Tapp and the three dispatchers.
While it was not condoned entirely, it was recognized as a
matter that did -exist. Vermeal testified that about 99
percent of the truckdrivers were late. In his own case he
stated that his arrival at the terminal late or on time
depended upon the dispatcher. If it was DeVille, he would
be prompt, because DeVille "knows how long it takes you
to get to the destinations." If it was Bridges, Vermeal came
in when he felt it was proper. Bridges did not know the
area and did not "know how long it takes you to get there."
Vermeal mentioned the names of various drivers that
reported in this manner including Friar and Boudreaux. In
keeping with the foregoing, Tapp admitted that insofar as
the Respondent is concerned, the time the customer is
scheduled to get the product was most important. DeVille
testified that he had made out late reports on "pretty near
everybody. I don't think there is any man in the company
that don't have one in their files." He has made out several
reports on a driver called Rice who started employment
with Respondent later than King and was still employed by
Respondent. DeVille also stated that there are a number of
drivers still employed by the Company who have passed up
runs on occasion even though they "are not supposed to
pass them up." The "passing up" action occurs once or
twice a week. Usually, a report is made out on the driver.
Tapp stated he was aware that "driver reports" are not
filled out by the dispatcher in all instances.
1. Conclusions about Miles, King, and Warren
The conclusions in this decision have not easily been
reached. Respondent, except for Warren, has set forth facts
which under other circumstances might be considered just
cause for discharge if those facts were in fact the cause for
the discharge. But under all the facts of this case and the
analysis hereafter, it is concluded that the moving or
primary cause for the discharge was the union organization
campaign; that Miles, King, and Warren were selected for
discharge as union adherents as an example and warning
to other employees that termination is the reward for
supporting the Union.
There is no question, as shown, that Quality was opposed
to the Union and did not want the terminal unionized. This
is clearly evident from the illegal antiunion campaign that
started early in August and was continued through
November as shown by the antiunion petition. It is
reasonable to conclude that the antiunion motive was not
88 It is recognized that these conclusions are an inference but it is
considered that under the circumstances herein the inferences are well
founded and permissible . Shattuck Denn Mining Corporation v NL.R.B.,
362 F .2d 466, 486 (C.A. 9, 1966). It is also considered that the evidence upon
which the inferences are based are substantial , go beyond suspicion, and
amount to more than a scintilla . Dubin-Haskell Lining Corp v. N LR B.,
375 F.2d 568, 573 (C.A. 4, 1967). Note particularly the language of the
Second Circuit Court of Appeals when dealing with knowledge and
antiunion motivation in connection with a discharge . The Court in N.L R B
v. Long Island Airport Limousine Service Corp., 468 F.2d 292, 295 (C.A 2,
1972), stated:
More important , there is no good reason why the two factual
propositions-employer knowledge of general Union activity and
employer anti-Union motivation in discharging a particular employer
-need be proved by different types of evidence . As to each, direct
evidence may not be obtainable and circumstantial evidence and
"inferences of probability drawn from the totality of other facts,"
confined strictly to actions that were independently
violative of Section 8(a)(1); that such strong union animus
must and did permeate and pervade the actions involving
the discharge of the three employees in question.
Especially significant in this area is the fact that the
alleged reasons for the discharge of Miles and King only
became cause for discharge after the campaign started. The
record is replete with testimony both of the employees and
management that Tapp for a long period prior to July 1973
had maintained a lenient policy in dealing with absences
whether explained, unexplained, or caused by illness; that
the same leniency was shown to drivers who were late on
arrival at the plant or who missed their runs entirely; that
the chief punitive measure used by the Company as a
deterrent was the point system. It is especially significant
that prior to the commencement of the union campaign (a)
there is no evidence that Respondent adopted a policy of
calling in drivers after a late report and warning them that
the next time they were late they will be discharged as was
done with King; (b) there is no evidence that an
unexplained absence for a period of a week was considered
case for summary discharge as was the case with Miles. To
the contrary, such an absence was condoned entirely as
was the case with James; and (c) there is no evidence to
show that missing a run was cause for discharge even
though the person who missed the run had previously
missed several, or was a person like James who had
absented himself for a week without explanation and then
again missed some runs . It is also significant that the
termination of three union people occurred within a 2-day
period, August 29 and 30, and immediately before the day
set for the representation hearing. The termination of three
known union members within a 2-day period was bound to
receive special attention and notoriety among the employ-
ees and it can easily be concluded that the impact of the
termination of three union adherents for causes that had
not previously been causes for termination was not lost
upon the other employees even though the employees were
not union leaders. The conclusion follows that under all
these circumstances, Respondent selected Miles, King, and
Warren for termination knowing that they were union
members with the intention that their termination should
act as a deterrent to other employees in their support of or
adherence to the Union.88 A termination under these
circumstances is unlawful under Section 8(a)(3) of the
Act.89
In any event, even assuming that Miles and King were
[Citations omitted .] are perfectly proper.
89 Colonial Lincoln Mercury Sales, Inc, 197 NLRB 54, 58 of the
memorandum decision where the Board in adopting Judge Silberman's
Decision stated:
Unlike violations of Section 8(a)(1), unlawful motive normally is an
essential ingredient to an 8(a)(3) finding . An employer may discharge
an employee for any reason whatsoever , or for no reason-so long as
the discharge is not related to the employee's union membership or
activities. A corollary of this proposition is that union membership does
not immunize an employee from discharge or other employer
discipline. But an employer violates the Act if he discharges an
employee because of the employee's union membership or activities,
even if another contemporaneous reason for discharge exists It matters
not that the employee may have been incompetent or otherwise may
have deserved discharge ; if the efficient, proximate reason for the
employee's discharge is his union membership or activities the
discharge is unlawful. Likewise , an employer also acts unlawfully if,
QUALITY TRANSPORT INC. 215
guilty of the different actions charged by Tapp when he
discharged them, the Board and the courts have long
recognized "that discriminatory treatment of employees by
their employer, motivated in whole or in part by their
union or protected activities, violates Section 8(a)(3) and
(1) and that `the mere existence of valid grounds for a
discharge is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
activity.' " Singer Company v. N.L.R.B., 429 F.2d 172, 179
(C.A. 8, 1970). See also Arbie Mineral Feed Co. v. N.L.R.B.,
436 F.2d 940, 942-943 (C.A. 8, 1971); A. P. Green Fire
Brick Company v. N.L.R.B., 326 F.2d 910, 916 (C.A. 8,
1964); N.LR.B. v. Solo Cup Co., 237 F.2d 521, 524-525
(C.A. 8, 1956).
See also Filler Products, Inc. v. N.L.R.B., 376 F.2d 369,
377 (C.A. 4, 1967), where it was held "a justifiable ground
for dismissal of an employee is no defense to an unfair
labor practice charge arising out of such dismissal if such
ground was a pretext and not the moving cause for the
dismissal ." Also see N.L.R.B. v. Hanes Hosiery Division,
Hanes Corporation, 413 F.2d 457, 458 (C.A. 4, 1969), and
cases cited therein where it was held that if a desire to stifle
union activity was a factor in the company's decision to
discharge the employees, the discharges were discriminato-
ry and hence unlawful.
It is concluded from the entire record herein that Miles,
King and Warren were discharged because of their union
affiliation and activities.
IV. THE EFFECT UPON COMMERCE OF QUALITY'S
UNFAIR LABOR PRACTICES
The activities of Quality set forth in section III, above,
occurring in connection with Quality's operations de-
scribed 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
of earnings he may have suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he normally would have earned
from the aforesaid date of his discharge to the date of the
Respondent's offer of reinstatement, less his net earnings
during such period. The backpay provided for herein shall
be computed on the basis of calendar quarters, in
accordance with the method prescribed in F. W. Woolworth
Company, 90 NLRB 289. Interest at the rate of 6 percent
per annum shall be added to such net backpay and shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Quality Transport, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Transportation Employees Association a/w District
2, MEBA, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed by
Section 7 of the Act, as above found, Quality has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. For the reasons which are stated in Consolidated
Industries, Inc., 108 NLRB 60, 61, and cases there cited, I
shall recommend a broad cease-and-desist order.
5. The aforesaid conduct are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
6. By discriminating in -regard to the hire and tenure of
employment of employees Miles , King, and Warren,
thereby discouraging membership in or activities on behalf
of a labor organization, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(3) of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
the following recommended order shall be issued.
It having been found that Quality has engaged in certain
unfair labor practices, it is recommended that it cease and
desist therefrom and that it take certain affirmative action
which is necessary to effectuate the policies of the Act.
Having found that the Respondent unlawfully dis-
charged Benjamin Miles and Jose King, Jr., on August 29,
1973, and Pat Warren on August 30, 1973, it is recom-
mended that the Respondent offer each of these employees
immediate and full reinstatement 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 each of them whole for any loss
while actively opposing a union 's organizational drive , he indiscrimi-
nately terminates employees (rather than seeking out and selecting for
discharge those who were leading the union 's drive) for reasons which
otherwise would not have prompted such action-even if by chance the
employees who are discharged did not support the union The
employer's object in such case is to demonstrate to the employees that
the union will bring them harm, not benefits, and thereby to "chill" the
employees' self-organizational interest . Such chilling effect can be
RECOMMENDED ORDER90
Quality Transport, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their union
sentiments and activities.
(b) Threatening its employees with cessation or reduction
of benefits in the event they chose the Union.
(c) Spying on the union activities of its employees or
creating among its employees the impression that it is
engaging in surveillance of their union activities.
achieved (and in some cases more effectively) by haphazard discharges
as well as by selective terminations of the union leaders.
90 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
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Instigating, initiating , and circulating an antiunion
petition among employees or soliciting employees to sign
such antiunion petition, or assisting in the instigation,
initiation , circulation , and solicitation of employees'
signatures upon an antiunion petition.
(e) In any like or related manner, interfering with,
restraining , or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist any
labor organization , to bargain collectively through repre-
sentatives of their own choosing and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Offer to Benjamin Miles, Jose King, Jr., and Pat
Warren immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason of
the unlawful discrimination against them 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
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 this recommended Order.
(c) Post at its place of business in New Orleans,
Louisiana, copies of the attached notice marked "Appen-
dix."91 Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly signed
by Respondent's representatives , shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint herein
be dismissed insofar as it alleged any unlawful conduct
other than that as above found.
91 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to the Recommended Order of an Administra-
tive Law Judge of the National Labor Relations Board and
in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employ-
ees that:
As the result of a trial before the Administrative Law
Judge of the National Labor Relations Board , it was found
that we violated the Act in the respects set forth in his
Decision, and to remedy these unfair labor practices, he
has recommended that we advise you that:
WE WILL NOT coercively question any employee
regarding his own or other employees ' lawful union
activity.
WE WILL NOT threaten any employee that he or she
will suffer the loss of any existing benefits or conditions
of employment or will be treated less favorably because
of union activity.
WE WILL NOT spy on the union activities of our
employees nor create among our employees the
impression that we are engaging in surveillance of their
union activities.
WE WILL NOT instigate, initiate, or circulate an
antiumon petition among our employees or solicit our
employees to sign an antiunion petition , or assist in
instigating, initiating , circulating , or soliciting signa-
tures to such a petition among our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any employee in the exercise of
his or her right to join or assist Transportation
Employees Association a/w District 2, MEBA,
AFL-CIO, or any other labor organization to bargain
collectively through their representatives, or to engage
in other concerted activity, or to refrain from such
activity, except as such right may be affected by some
agreement as provided in Section 8(a)(3) of the Act.
WE WILL offer to Benjamin Miles , Jose King, Jr.,
and Pat Warren immediate and full reinstatement to
their former jobs or , if those jobs no longer exist, to
substantially equivalent positions , without prejudice to
their seniority and other rights and privileges, and WE
WILL make them whole for any loss of earnings they
may have suffered by reason of the unlawful discrimi-
nation against them.
All our employees are free to support or to become or
remain members of Transportation Employees Association
a/w District 2, MEBA , AFL-CIO, or any other labor
organization , or to refrain from such activity, subject to
Section 8(a)(3) of the Act.
Dated By
QUALITY TRANSPORT, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Plaza
Tower, Suite 2700, 1001 Howard Avenue, New Orleans,
Louisiana, 70113, Telephone 504-527-6361.