Robertson Tank Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1969

174 N.L.R.B. 268 (N.L.R.B. 1969)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robertson Tank Lines, Inc. and International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Southern
Conference. Case 23-CA-2898
January 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 30, 1968, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the
Respondent, General Counsel and Charging Party
filed exceptions to the Trial Examiner's Decision
with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
'We find no merit in Charging Party's exception which in substance
asserts that Respondent maintained an unlawful no-solicitation rule, as this
matter was neither alleged in the complaint nor litigated at the hearing.
There is insufficient evidence to support the Trial Examiner's factual
finding that "[o]n November 15, while W P Brown was outbound with a
load, Brock passed him inbound toward Baytown in the opposite direction
near Katy, about 25 miles from Houston, shortly after Brock made a
U-turn in the road, chased and overtook Brown near Katy, flagged him
down, and solicited him to join the Union " The record merely establishes
that Respondent introduced as part of an exhibit a memorandum relating a
report to that effect. Nor is there sufficient record evidence to support the
Trial Examiner's factual finding that on the morning of November 19
when he called Cooper, Stautzenberger saw the workcard covering the
November 17 job performed by Walters However, there is substantial
evidence that at that time Stautzenberger had full knowledge of Walter's
performance on that particular job. These findings are accordingly
corrected
hereby orders that the Respondent, Robertson Tank
Lines, Inc., Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner: This case was tried
before me at Houston, Texas, on February 27 through
March 4, 1968, with all parties participating in the trial
through counsel. The issues are whether Respondent,
Robertson Tank Lines, Inc., (1) coerced its employees by
threats of loss of benefits if the above-named Union
succeeded in organizing said employees, in violation of
Section 8(a)(1) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq. (herein called the
Act), and (2) discharged and refused to reinstate three
employees for cause, or for concerted activities on behalf
of said Union in violation of Section 8(a)(3) of the Act.
The issues arise on a complaint issued December 29, 1967,
by the General Counsel of the Board through the Board's
Regional Director for Region 23,' and answer of
Respondent which admitted jurisdiction but denied the
commission of any unfair labor practices. At the close of
the testimony all parties waived oral argument but filed
written briefs which have been carefully considered in
preparation of this Decision.
Upon the entire record in the case, and from my
observation of the witnesses on the stand, I make the
following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS, AND THE STATUS OF
THE UNION
Respondent is a Texas corporation operating as a
motor common carrier of commodities in bulk, with its
principal office and place of business located in Houston,
Texas. In the 12 months before issuance of the complaint,
Respondent in its business performed services for
customers located outside Texas of a value exceeding
$50,000, and in the same period it had direct inflow of
goods valued in excess of $50,000. Respondent admits,
and I find, that it has been and is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
The above Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A The Union Campaign
The Union began a campaign to organize Respondent's
drivers and maintenance employees in October 1967, when
Conway D. Brock, Sr , a driver stationed at Respondent's
main terminal in Houston, sought out the Union for help
in organizing the employees. On November 1, 1967, Brock
obtained blank union authorization cards, one of which he
signed the same day, and thereafter began to solicit other
employees to sign them. The Union on November 1 sent
Respondent a letter advising it of the organization drive,
warning it of provisions of the Act guaranteeing
'The complaint issued after Board investigation of a charge filed by the
Union on December 1, 1967
174 NLRB No. 47
ROBERTSON TANK LINES, INC.
employees' rights and forbidding Employer interference
with such rights, and notifying it that Brock had signed a
card and was engaging in union activities protected by the
Act. It also stated it would from time to time advise
Respondent of other employees who engaged in such
activities and signed similar cards, with a view to giving
the Union majority status and enabling it to request
negotiations for a contract in a unit consisting of drivers
and maintenance employees "systemwide."
On November 10, 1967, Respondent circulated a letter
to all employees, advising them of receipt of the Union's
letter, and stating that it opposed a union in its operations
and would oppose its organizational efforts by all legal
means, gave them some cautionary advice about signing
union cards, and talked about the background and
character of the Union's president. There is no claim that
this letter in any way violated the Act, but it makes clear
Respondent's antiunion animus and its determination to
work actively against the Union's campaign by all legal
means.
To show further animosity toward the Union including
a probability of retaliation against employees for
adherence to it, General Counsel adduced testimony of
shop mechanics Milton E. Walters and Jack Houston
(whose discharges are considered below) to the effect that:
On the night of November 14, Walters and Houston ate
lunch on second shift at the Houston terminal with
mechanics Elvin Bruce and Don Bailey and Night Shop
Foremast Gus Stautzenberger. One of the group brought
up Respondent's November 10 letter to the employees,
and during general discussion about it and the advantages
of the Union, Stautzenberger said he was against the
Union "all the way" and did not want it to come into the
Company, but if it did, the men would probably lose their
safety and Christmas bonuses, and their Provident Fund.2
Walters replied that this made no difference to him, he
would still vote for the Union. Houston commented that,
while he was not organizing for the Union, he would vote
for it in an election. Stautzenberger categorically denied
that he was present or made the above remarks, stating he
normally eats in his office in order to be able to answer
the telephone readily. He is corroborated partially by
Bruce who admitted the general discussion and the
remarks of Walters and Houston favoring the Union, but
testified that Stautzenberger was not present at the time in
the lunchroom but was elsewhere in the shop, helping a
foreman from another shop, Fred W. Williams, load parts
into his car. Bruce also said that in the discussion
Houston commented he had left a $3.65 an hour job with
another concern to come to work for Respondent at $2.65
an hour, and Williams replied that he was "crazy" to do
that. Williams corroborated Bruce about Houston's
comments and his own reply, and the absence of
Stautzenberger, saying the latter helped him load parts in
his car after Williams left the lunchroom. However,
Williams" impression was that, the group discussion was
about an hour later, at a coffeebreak, and that the Union
was not mentioned at all. It must be noted that both
Walters and Houston were union sympathizers who claim
they were both discharged in violation of the Act, so that
their testimony was undoubtedly colored by partisan
considerations and mutual self-interest. When he testified
Williams was no longer employed by Respondent, which
enhances his credibility, but his story does not fully
corroborate that of Bruce, as he places the crucial
discussion at a different hour, with no talk of the Union
at all, hence he does not credibly contradict the union
mechanics on the alleged presence and remarks of
269
Stautzenberger earlier, or their remarks favoring the
Union. In addition, Bruce was confused as to the exact
date of the discussion, and admitted he was present only
during the first part of the discussion. On balance I
conclude that the weight of credible evidence supports the
versions of Walters and Houston, and I find the whole
conversation including Stautzenberger's remarks on the
basis of their testimony. As Stautzenberger was an
admitted supervisor, I conclude that his remarks are
chargeable to Respondent, which thereby coerced
employees by threats of economic reprisal for activity
which might bring the Union into the plant, in violation of
Section 8(a)(1) of the Act. In addition, the remarks of
Walters and Houston favoring the Union advised him,
and hence Respondent, that they were union sympathizers,
although not active union organizers.
B. Discharge of Conway D Brock, Sr.
Conway D. Brock, Sr., was hired by Respondent in
December 1955 and worked continuously for it as a
truckdriver until discharged on November 20, 1967. In the
year or so before discharge he had been operating a large
tractor-trailer unit out of the Baytown terminal, hauling
asphalt from plants of various customers in or near
Houston to other points in Texas.
Early in October 1967 Brock contacted the Union
about organizing employees of Respondent, held a
meeting with union officials in Houston about October 15,
and on November 1 received blank union authorization
cards for distribution, and signed one himself. After
October 15 he openly solicited other drivers for the
Union, and after November I he solicited many to sign
cards, as found hereafter. Thus, about midnight of
October 29, Brock caught up with driver William P.
Brown on the highway about 5 miles east of Katy, Texas,
while both were driving westward from Baytown with
loaded trailers, and flagged Brown to a stop at an isolated
point on the highway by flashing headlights at him. When
Brown stopped, thinking something was wrong with his
rig,3 Brock solicited him to join the Union by signing a
card. Just before Halloween, former driver Thomas L.
Cox and Brown were returning to Baytown from a long
trip and stopped their rigs for coffee at a cafe in Weimar,
Texas. Brock came in and joined them shortly, arguing
with Brown, and soliciting both and other drivers for
about 30 minutes to join the Union. Brown reported the
October 29 incident to Baytown Terminal Manager
Robert R. Cheek the afternoon of the 30th and shortly
after to Personnel Director George Lanier; Cheek also
discussed the incident with Lanier the same day. About
the same time Cheek got voluntary reports from several
other drivers of similar solicitations of them on the road
by Brock.' It is clear from these facts that Respondent
was well aware of Brock's union activity as early as the
latter part of October. I also find from credited testimony
of Brock and Cheek that from November 1 up to his
discharge, Brock openly solicited drivers for the Union at
truck stops, loading points, and terminals of Respondent,
This is a profit-sharing trust to which employees may make fixed
payments and the Employer contributes a share of profits, and from which
employees receive fixed payments upon retirement.
'It is customary for over-the -road drivers with large units to flash
headlights on and off if they see another truck, particularly one from their
company, traveling abnormally , so as to warn that driver to stop and
check his unit.
°I find these facts from credible testimony of Brown , Cox (who was
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both orally and by telephone, and that Respondent
received continual voluntary reports of his activities from
drivers who had been so solicited.
During Brock's tenure and at time of discharge
Respondent had issued to drivers a Driver's Operating
Manual containing a company rule which provided that
employees would be disciplined for "unauthorized use of
equipment," and had actively enforced violations of that
rule by outright discharge for first violations. Brock was
well aware of the rule and adi.iitted he knew of several
past instances of discharge of drivers for its violation, The
record also shows clearly that Respondent had discharged
at least 16 drivers for its violation since 1959, and I am
satisfied and find that during his 12 years of service Brock
knew the rule was actively enforced by the discipline of
discharge. Respondent claims that it discharged Brock on
November 20, 1967, for recent violations of this rule, the
last one which precipitated actual discharge occurring on
Friday, November 17, 1967.
The record shows that from November 1 to 15, Lanier
got numerous voluntary reports from drivers of similar
activities by Brock while on the road. Thus, in this period
Brock stopped one or more times at a regular rest and
food stop in Weimar, Texas, while returning empty to
Baytown, to solicit W. P. Brown and other drivers, who
were eating there; on one of these occasions he left the
cafe before the others and was shortly observed by Brown
driving in the opposite direction about 15 miles further
east toward Baytown, following another company truck.
On other occasions Brock was reported to have stopped at
rest or food stops at Rosenberg, Luling, Humble,
Flatonia, Weimar, and other points in Texas, to solicit
drivers; each location was a more or less regular stop for
company drivers while on regular outbound or return runs
from or to Baytown. On several occasions he continually
solicited a driver at rest stops, when driving outbound
with a load in convoy with that driver, during which the
two normally stopped together at the same places for rest,
food, etc. On November 15, while W. P. Brown was
outbound with a load, Brock passed him inbound toward
Baytown in the opposite direction near Katy, about 25
miles from Houston; shortly after Brock made a U-turn in
the road, chased and overtook Brown near Katy, flagged
him down, and solicited him to join the Union. About the
same time Brock stopped at a regular cafe stop in
Weimar while inbound to Houston to solicit Brown and
other drivers eating there, and then left before the others,
apparently to resume his return run; shortly after, while
running toward Houston, Brown saw Brock near
Columbus driving in the opposite direction and following
and overtaking another truck driven by Cox. Apparently,
the November 15th flagging of Brown was noticed by
another driver, M. Adams, who reported it to Tom
Clowe, assistant to the Houston general manager, Edward
0. Gaylord.' As Clowe considered a U-turn on a main
highway dangerous handling of company equipment, he
sent Lanier on November 15 a memo suggesting
investigation of the incident and steps to have such use of
called by General Counsel ), and Cheek . I do not credit Brock 's denial of
the Katy incident , or his testimony that he did not begin active solicitation
of drivers at truck stops and elsewhere until November 3, for he did not
deny specifically Cox's testimony , and my own appraisal of Brock's
demeanor on the stand indicated clearly that he was a very aggressive,
self-confident, and argumentative person, who was undoubtedly an
outspoken solicitor for the Union , so that I consider it more likely than
not that, after his first contacts with the Union early in October, he did
not wait until November 1 , when he got blank cards, to try to recruit
drivers for the Union by oral solicitation wherever he encountered them
equipment by Brock stopped. Lanier, the same day, sent
Baytown Manager Cheek a memo indicating receipt of
reports of risky U-turns and chasing of drivers by Brock
for personal business, in violation of the company rule; he
advised that since Respondent was on notice that Brock
was represented by a union, the Company could not
handle the problem directly [with Brock because the
Union was not a proper legal representative to handle any
intracompany business, and that this left Respondent no
alternative but to terminate Brock if he continued to
operate equipment in this way in violation of company
rules. I find that Respondent was entitled to rely on the
numerous reports of] Brock's activities found above, since
the record shows all of them came voluntarily from
drivers accosted by Brock, none were solicited by
management, and their truth is attested by Brock's frank
admissions of constant union solicitation, which he
justified by saying that "his time was his own" on a
return trip, so long as he brought his rig into the terminal
safely and within a reasonable time.
On Friday, November 17, while returning eastward
from a long run to Devine, Texas, Brock saw several
Robertson rigs opposite a cafe at Luling on the north side
of the road. He drove past, and circled his unit to come
back to the cafe. After parking and looking in the other
tractors for the drivers, he entered the cafe, ordered
coffee, and solicited drivers John M. Kirby and Kenneth
Haas to join the Union. He spent about 15 to 30 minutes
in the discussion, then reentered his rig and resumed the
return trip. Luling was not a normal rest stop for him
(though it was for other Robertson drivers), as he had
never stopped there before, so it is clear that he
deliberately stopped there this time to solicit the
Robertson drivers and incidentally drink coffee He drove
about 40 miles further east to Flatonia where he saw at
least one Robertson rig parked on the opposite side of the
road at a cafe which was a regular stop for company
drivers. Finding no place to park off the eastbound lane,
he drove onward several blocks to a crossover in the
two-lane road, made a U-turn, and drove back to the cafe
where he parked next to other company trucks and a large
van. He entered the cafe, ordered a meal, and while eating
solicited driver A. J. Pate to join the Union. When he left
the cafe after eating, he saw driver Claude Brown, with
Terminal Manager Donald W. Cranfill, drive up and park
a company rig on the shoulder across the road. As they
walked across into the cafe, Brock entered his.rig, and
they saw him drive it in a wide U-turn around the large
van and into the highway until he was heading east, and
drove away. When making the U-turn he drove his rig
slowly in a low gear, but did not make any stop for
observation of traffic before entering and crossing the
highway while completing the U-turn. Brock drove east
about 22 miles to Weimar, where he stopped for another
cup of coffee at a cafe run by a friend, which is also a
regular rest stop for Robertson drivers. After staying there
"not over an hour" without seeing any other company
drivers, he continued his return trip to Baytown terminal.'
Kirby reported the Luling solicitation to Baytown
Manager Cheek when he returned later that day, but when
'I do not credit testimony of Brock and Cox denying the November 15th
incident , in light of Brock 's admissions of constant solicitation of drivers
from and after November 3 , both on outbound and inbound runs, and
considering the fact that Cox, while no longer employed by Respondent,
was admittedly a union adherent while so employed during this period, and
also admitted some union activities of Brock at this time.
'The events of this trip , aside from the events at Flatonia, are based on
ROBERTSON TANK LINES, INC. 271
Cranfill reported the Flatonia incident to Lanier at
Houston, he recited only Brock's maneuver with his rig,
which alarmed him as reckless handling of equipment; he
asked Lanier what the company policy was on making
U-turns on high-speed highways.' At Lanier's request,
Cranfill and Brown signed written reports of the incident.
As soon as he got the reports, Lanier talked to Clowe and
Cheek about them the same evening, and the three agreed
that some action against Brock was necessary, so they
arranged a meeting for Monday noon , November 20, with
Gaylord. At that meeting, attended also by James M.
Robertson III, an administrative assistant , and John
Crow, assistant to Lanier, they all reviewed the written
reports in light of the Clowe and Cheek memos of the
15th, and prior reports from drivers on Brock's activities.
They decided to discharge Brock for unauthorized use of
company equipment for personal business in violation of
the company rule cited above. Final checks for Brock's
pay, safety awards, Provident Fund credits, and his
termination record, were immediately prepared, and
Cheek took them to the Baytown terminal, where he
telephoned Brock at home in the afternoon, asking him to
report to the terminal at once.' Brock asked if he could
bring someone with him, such as an attorney Cheek said,
no, as this would be just a talk between the manager and
the driver, that Brock would not be represented by anyone
else. Brock said he would call back in 15 minutes and tell
him whether he would come in. Shortly thereafter he
called and said he would come in. He came to Cheek's
office about 5 p.m. and acted very nervous. Cheek asked
why he was nervous, and Brock replied he was afraid "for
his life," had never been so afraid in the last 30 days.
Cheek said he need not be afraid in that office, asking,
"What is the worst thing that I could do to you?"; Brock
did not answer, so Cheek said "The worst I could do is
terminate you" and Brock said, yes. Cheek said that was
what he had called him in for, to say he was terminated.
Brock asked why, and Cheek replied he had been seen
using a company vehicle to make a U-turn to come back
to a cafe for his personal business . Brock asked where it
occurred and who had reported it, but Cheek did not
explain. Brock then said he had turned back to a cafe, but
that "I did not go back very far." Cheek said his money
was ready, and gave him his final checks. At Cheek's
request, Brock turned in a gasoline courtesy card and
signed the termination slip which stated that he was
terminated for "using company equipment for personal
usage."'
credited admissions of Brock , the happenings at Flatonia are based on
credited testimony of Claude Brown and Cranfill, as corroborated in part
by admissions of Brock . I do not credit conflicting testimony of Brock
tending to show that , when leaving Flatonia, he made a "box -type" turn
from the cafe into the eastbound lane, with one sharp right angle turn off
the highway , then a full stop at right angles to it to watch for traffic both
ways, and another sharp right angle turn on the highway itself to bring
himself into the eastbound lane, for the physical dimensions of the two
highway lanes (22 feet wide overall), compared with the 55-foot length of
his rig, would make such a precise maneuver impossible, and I am also
satisfied from his admissions that he often made U-turns on highways to
find parking at rest stops , that it is more likely than not that on this
occasion-he made a casual and real "U-turn" into the highway without
stopping for traffic
'Interstate Highway 90 at this point is only a two-lane road , 22 feet
wide , with no protective median strip , and a 60-mile per hour speed limit.
Cranfill, as the new manager of the main Houston terminal, was making
the run with Claude Brown in order to familiarize himself with driver
operations As one of his duties was to maintain company rules on safe
operation of equipment , he was watching during this run the operation of
any Robertson rigs he saw , and in the normal course he was required to
In light of Respondent's admitted union animus, made
known to employees about November 13, its discharge of
the sole employee union organizer , whose union activities
were well known to it, within a week for an alleged
unauthorized personal use of his rig which involved open
solicitation for the Union, raises a prima facie case of
discriminatory discharge which requires Respondent to
adduce cogent proof of discharge for cause to rebut the
inference of discriminatory motive It is clear from the
record that on at least three occasions after October 30,
Brock had deviated from the normal course of inbound
runs to reverse the direction of his rig by U-turn to follow
and overtake drivers, or to go back to a rest or food stop,
to solicit them for the Union. In each instance of a cafe
stop, although he ordered and drank coffee pro forma as
at any such stop, he spent most of his time in the
solicitation. Hence, it can be inferred that, absent the
turnaround for that purpose, he would have continued on
to Baytown without the need of making two extra U-turns
or other turnaround maneuver. It goes without saying that
any U-turns on a high speed highway with a 55-foot long
behemoth like the rig Brock was driving constitute more
of a hazard to his own equipment and others driving on
the highway, than if he had made stops merely by drawing
off to the right side of the road, and then reentering it in
the same direction in careful fashion. Hence, to the extent
that Respondent was influenced in the discharge by the
factor of unnecessary U-turns to engage in the personal
business of union solicitation, particularly the November
17 incident when at least one such turn was made without
a precautionary stop prior to actual entry on the traveled
highway lanes, it must be said that Respondent presents a
cogent case of discharge for cause, particularly since this
discharge was only one in a series of discharges for
unauthorized use of company equipment during the past
10 years. The inference of this motive as the salient factor
is further supported by the fact that the personnel
department cited on November 15 the unauthorized use,
including risk to the equipment, in violation of the
company rule, as ground for discharge if Brock continued
such violation, and actual discharge 5 days later, after
review of the facts, for the November 17 repetition of the
violation, all of which appears consistent with basic past
practice in enforcement of the unauthorized use rule.
However, these facts lose much force in light of other
significant circumstances:
1. First, it is patent that Brock's use of equipment for
union solicitation appeared to be a far less serious
violation of the rule, overall, than any prior cases of
unauthorized use. The record shows that, in prior
discharges therefor, the drivers had in some cases driven
rigs far out of the normal course of a run, either outbound
or inbound, thus consuming far more fuel and time than
report and write up any violation of safety rules he observed Hence, his
report to Lanier on this incident appears to have been in the normal
course. There is no proof that he knew beforehand of Brock's run, nor that
he was deliberately observing his operations for any special purpose
'Brock had been assigned on Sunday , November 19, by the Baytown
dispatcher to make an asphalt delivery to Moore, Texas, at noon on the
20th , and Brock ' s usual routine for that run was to leave the loading
platform at Houston late the night before. He was sleepmg at home on the
afternoon of the 19th, when the dispatcher called him about 7.30 p in. and
said Cheek had telephoned an order not to dispatch Brock until further
notice , so he was taking him off the Moore run. Hence, Brock was still at
home when Cheek called him on the 20th
'The events of November 17 through 20 recited above are found from
credible and mutually corroborative testimony of Lanier , Cheek , Brock,
and documentary evidence.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
usual; in some cases they had detached tractor from
trailer, parking the latter in unusual places and using the
tractor as a passenger car for personal use, such as
drinking bouts, transportation of relatives, or social calls,
for long periods of time, which resulted in late deliveries
of material or otherwise deprived Respondent of normal
use of the equipment; other cases involved keeping rigs at
home for extended periods without advising the
dispatcher, so that loading of the tanks and delivery of
material were substantially delayed; in a few cases the
driver lied about the use of equipment during investigation
of the reasons for its absence; in a few instances the
diversion of a tractor for social purposes such as drinking
resulted in accidents or internal damage to the equipment.
The salient factor in all of these cases was a flagrant or
gross misuse of it for personal purposes which resulted in
some substantial or measurable detriment to Respondent
in the operation of its equipment and its business. In
contrast, none of Brock's personal use of the equipment
for solicitation purposes resulted in delays in deliveries, or
in return of his rig so late as to prevent its use in normal
course, or in any damage to equipment. Most of his
solicitations occurred at normal rest or food stops, where
drivers could talk to other drivers about anything; and
Respondent admitted at the hearing that personal talk
about union matters at such stops was not prohibited by
any company rule or policy, provided Brock at the time
was following his normal route. This narrows
Respondent's complaint to Brock's maneuvering of his rig
through extra U-turns on highspeed highways, as well as
chasing and stopping other drivers, to engage in union
solicitation. While extra starts and stops enroute for this
purpose at other than normal food or rest locations
obviously tend to put more strain on his rig, Respondent
received no reports, and does not contend, that such stops
violated any company rule, if no evidence of risky or
unsafe handling of or damage to the rig appeared, or
detriment to Respondent through delay of delivery or
return of the rig to the terminal was involved; and since
no evidence of this was reported by drivers, or otherwise
came to Respondent's attention, this reduces such stops
for solicitation to mere technical violations of rule 4, far
different from the gross misuse of equipment involved in
other discharge cases. The sole substantial proof of
potential damage to Respondent is also reduced to the
extra U-turns by Brock when he turned back to solicit
drivers at a rest stop already passed, or to chase drivers
for that purpose. Lanier testified that such maneuvering,
being unnecessary to his work, could increase cost of
operation of the rig on that particular trip; but,
Respondent produced no proof that any of these extra
turns appreciably increased operating costs or effectively
diminished Respondent's profit from the trip, or Brock's
share thereof. In addition, it is significant that no driver
named by Lanier as reporting on Brock's conduct made
any complaint or reported any facts indicating unsafe
handling of his rig or any actual hindrance to them in
their assigned work through Brock's solicitation; almost
all complained only of irritation at Brock's solicitation,
which often resulted in heated arguments and thus
annoyed them. Hence, this narrows the basis for his
discharge to his double U-turn at Flatonia on November
17, with no cautionary stop before entering the highway
on the second, and leads me to find that the conclusion in
the Clowe report of November 15 that Brock had
operated unsafely once in turning to chase W. P. Brown,
and Lanier's conclusion of the same date that such
operation violated safety rules as well as the company rule
against unauthorized use, were not supported by the facts
to an extent that warranted discharge under Respondent's
past and present disciplinary practices.
2. From the standpoint of safety alone, which is one of
the most potent considerations in the transportation
industry, Respondent's own treatment of the reports on
Brock's activities show that before the November 17
incident it had never considered Brock's handling of his
rig alarming. I have noted above that drivers reporting on
his recent activities did not indicate he handled his rig
unsafely. Although Lanier indicates that some of their
reports appeared to raise doubts about the safety of his
operations,'0 he admits he made no effort to talk to Brock
about it. One of Lanier's main duties was to talk to
drivers individually as well as at safety meetings about
their driving habits, in order to correct bad habits and
improve their driving ability and safety of operation,
especially where reports of unsafe operation had come to
his notice; hence his failure to talk to Brock even privately
after getting these reports is potent proof that he received
no evidence that Brock was endangering equipment. He
admits drivers reporting on Brock gave at most their
opinions about his driving, and that his chasing of other
drivers and some unnecessary flagging down of other rigs
were not necessarily unsafe operations or reckless driving,
"depending on all the circumstances", but Lanier did not
query drivers to get "all the circumstances" which might
indicate safe or unsafe driving. Hence, it appears
Respondent did not have even minimal evidence of unsafe
operation which would warrant either the mild corrective
action of discussion with Brock, much less the conclusions
and suggestions of drastic discipline in the memos of
November 15, or possible discipline for violation of
company safety rules or policy. Lanier admits he treated
the drivers' reports, particularly the earlier ones, as
"routine matters" of "no special importance" such as to
require statements from the drivers, further investigation,
or action against Brock. He explains this lack of concern
about the reports by saying no supervisor was "involved"
in any of the incidents. This circumstance, plus the
obvious contrast in its handling of the November 17
incident where Supervisor Cranfill'was "involved," shows
that Respondent was not concerned about Brock's
handling of equipment while engaged in union solicitation
before November 17, and impels the inference that the
Lanier memo of November 15, insofar as it suggested
possible punishment for continued unsafe handling of
equipment, had no basis in fact and was thus more
indicative than not of a preliminary step in a management
plan to build a pretext case for Brock's discharge, where
the outstanding factor was his continued and persistent
solicitation of drivers enroute for the Union.
Considering the November 17 incident alone, while I
have found evidence of risky operation in the second
U-turn into the highway without stopping, it is notable
that, according to Lanier, Cranfill did not directly charge
that this maneuver was dangerous or even risky, but
merely asked what company policy was on such operation,
as he felt it was "alarming."" Yet, Lanier did nothing to
warn a valuable driver like Brock against repetition,
although it was the first recorded incident in 12 years of
careful driving, as outlined below This warrants the
inference that Brock's driving on November 17 was not
"For example, W. P. Brown's report of seeing Brock drive his rig empty
the wrong way on a highway, andotherdrivers' comments about his chasing
rigs on highways in an outbound direction, while he was running empty
"While Cranfill was properly on watch for all aspects of driver
ROBERTSON TANK LINES, INC. 273
the real reason for discharge, but only a pretext i'
3. The remaining technical violation of rule 4 inherent
in Brock's personal discussions with drivers, taking the
form here of union solicitation while enroute, had never
before been considered by Respondent as grounds for
discipline of drivers under any company rule or policy. A
plausible reason for this lies in the credible testimony of
witnesses of both sides that Respondent has always been
lenient and flexible about the nature and extent of drivers'
personal practices while on the road. The main duty of a
driver is to drive his rig from the terminal and pick up
loads, in time to make delivery at the time and place
required by the customer, and to return to terminal by the
shortest feasible route within a reasonable time thereafter,
usually (before midnight of the day of delivery or the day
following, depending upon the length of the trip, so that
his rig can be inspected and serviced promptly in
preparation for the next trip. Aside from these
requirements, the driver's movements on the road,
including the route traveled and the number, location, and
time of stops enroute both ways, are left almost entirely
to his discretion. In fact, in the interest of safe driving,
Respondent encourages drivers to stop for refreshment,
meals, test, or to check condition of their equipment,
whenever they feel it necessary in order to keep
themselves in proper physical shape to drive alert and
safely, and the rigs in proper running condition. No time
limits ai a placed on the length or number of stops; if a
driver considers it necessary to stop to sleep for periods
up to 10 hours, or to make extra stops, he is encouraged
to do so," provided he advises the dispatcher at the
terminal if the stop might make him late for delivery or
delay his return in normal time . In addition, drivers often
stop at will at home, or at other than normal stops
enroute, usually on return trips, to pick up food or other
items for personal use or that of other company personnel
including officials; while Respondent does not specifically
permit this, it in effect condones it in that it has done
nothing officially or unofficially to prevent it, for it did
not have inspectors on the road checking on movements of
drivers, and there is no proof that it had ever disciplined
drivers for transacting such personal business enroute,
provided they made deliveries on time and returned to
terminal within a reasonable time." The reason for this
lenient attitude clearly lies in the fact that the pay of most
drivers, and asphalt drivers in particular, was a percentage
of the revenue of their trucks from each trip."
operations during this "training" run with Brown, the written reports of
neither gave details on Brock's operations that day. Driver Pate was
interviewed by Lanier and gave an oral report, but never a written
statement , and he did not testify at the hearing Lanier admits he only
secured from him confirmation of the union solicitation at the cafe
''Lanier says he gave orders that Brock should not be interviewed or
warned about his actions , because of the Union's letter about him, which
indicated it would represent Brock in any dealings with Respondent, and
Lanier says Respondent did not recognize the Union as Brock's agent at
that point for any dealings with Respondent. However, this excuse appears
flimsy, for that explanation did not prevent Respondent from talking to
Brock alone, refusing to allow him to have any representative present,
when he was discharged.
"AII asphalt hauls out of Baytown are intrastate , hence not governed by
Interstate Commerce Commission 's rules regarding maximun speeds,
maximum driving periods, etc.
"My finding of Respondent's leniency in use of equipment enroute
makes it unnecessary to resolve the conflicts in testimony relating to
company policy on parking of equipment by drivers at or near their homes.
"Drivers received pay by the hour only for waiting time over 2 hours at
loading or unloading points.
The reports to Respondent about Brock's activities
from October 29 to his discharge indicated that he stayed
well within the general ambit of personal activities enroute
which Respondent had countenanced in the past. One
apparent deviation appeared to be constant solicitation of
drivers for the Union, but Respondent admits such action
at rest stops is within the area of permissable personal
talk among drivers on any subjects. His other notable
deviation from routine operation was the making of
additional U-turns on the road to chase and solicit drivers,
which were not necessary to the performance of his work.
However, he testified without contradiction, and I find,
that he had often made such turns merely to return for a
rest or meal stop at a cafe on the opposite side of the
road, and there is no proof that Respondent discouraged
or prohibited this, provided it was done safely or without
undue risk to equipment.16 The final apparent deviation
from normal practice during the November 17th trip, on
which Respondent based the actual discharge, involved a
deliberate double U-turn to solicit drivers. While this
clearly was unnecessary to his return trip, and he made
the second turn in a rather reckless manner, it is plain
that it did not deprive Respondent of the normal use of
the equipment, or cause other economic loss, hence it
must fall within the class of personal use enroute which
Respondent had not objected to in the past, although it
was a technical violation of rule 4." It follows that
Respondent's sharp deviation from past disciplinary
practice for such violation, in its discharge of Brock
therefore, is another potent indication of discrimination,
for it was suddenly enforcing the rule in rigid manner
against a known union adherent and organizer.
4. The same inference is impelled by the manner in
which Respondent investigated his actions and meted out
discipline. The Driver's Manual advised drivers that
discharges are "controlled by the terminal manager at the
terminal" where the driver is stationed, and "discharge
will be after a complete analysis of the circumstances of
the situation, and shall be justified before the termination
is completed." Gaylord testified that during the
investigation the terminal manager has discretion to give
the driver a chance to explain an alleged violation of rule
4 (or any other rule) before discharge, and that the
Manual further states that any employee who feels he had
been hastily or unjustly terminated "will have the
prerogative of requesting a hearing by the committee" -
consisting of a 3-man board chosen from among 5 named
officials including Smart, Gaylord, ' and Lanier. Gaylord
testified that under these provisions discipline of drivers is
usually handled by the terminal manager, including oral
warnings before discharge, and Lanier admitted that,
while discharge is the authorized discipline for violation of
rule 4, the seriousness and extent of violation are
considered before deciding upon discharge instead of some
lesser discipline, and that even if a man is discharged for a
first violation, he can be recommended for rehire
"depending on the circumstances." In line with this
"At most, the Driver's Operating Manual directed drivers only to "drive
defensively" by using sound judgment to stay out of accidents, but Lanier
admits that this did not prohibit U-turns as such , but only turns and other
maneuvers which might be considered reckless driving under all the
circumstances
"I find from uncontradicted testimony of Brock that he often stopped at
Flatonia for meals , like other drivers , and that on this occasion he found
no parking place on the inbound side of the road when he reached the cafe,
so had to drive a short distance and U-turn back to the cafe, and that he
had often done this in the past when he was unable to find parking space
on the right-hand side of the road
27 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice, the record shows that, among the 14 other rule 4
discharges delineated in the testimony, in 2 cases written
or oral explanations were procured from the driver himself
and considered before his discharge, 2 drivers received one
or more warnings about violations before discharge, and
at least 2 drivers (Raymond David Moss and Eugene
Paterson) were rehired, one of them 3 times, after flagrant
personal use of equipment which caused proven loss to
Respondent during such use. Most of these discharges
were handled directly by the terminal manager In
contrast, Brock was never given any warning by his
manager or other official for the claimed repeated
violations of rule 4, or his alleged dangerous driving, his
opportunity for explanation of his conduct was limited to
the short remark about the extent of his turnaround on
November 17 in the final interview with Cheek, during
which Cheek refused to give him any information on the
place or details of the violation, and did not remind him
of his right to consideration by the "review board"; and
there is no proof that Respondent ever considered him for
rehire, despite the single technical but otherwise harmless
violation. The salient fact is that Respondent was content
apparently to receive only a partial account of his
conduct, and was not interested in hearing both sides.
Although there is no proof of the driving or earning
ability of the other discharged drivers, which would assist
in comparison of treatment, the record clearly shows that
Brock was outstanding in a total force of nearly 400
drivers, in point of general deportment, driving ability,
safety record, and earning ability.18 The marked disparity
between Respondent's summary and drastic discharge of a
very valuable employee for a single technical rule
violation, and its far more lenient treatment of other
drivers guilty of far more serious violations of the same
rule, none of whom had engaged in any union or
concerted activity, persuasively impels the conclusion that
his discharge was not for his comparatively minor rule
violation but for his known union activity. In light of
Respondent's clear union animus, this disparate treatment
also impels the inference that in these circumstances,
Brock would probably not have been discharged, absent
his union activity.
Considering all the factors and circumstances pro and
con," I am constrained to conclude that Respondent has
not sustained the burden of going forward with evidence
sufficient to overcome the prima facie case of
discrimination shown by General Counsel, and that
General Counsel has on the entire record sustained the
ultimate burden of proof by a preponderance of credible
evidence that Brock was discharged because of his open
union activity, and that Respondent's claim of discharge
for violation of the company rule against personal use of
equipment was but a pretext to conceal the discriminatory
motive, and that by such discharge Respondent
discriminated against Brock in violation of Section 8(a)(3)
and (1) of the Act. 2°
"In the last 3 years, including 1968, his profit sharing from his truck
earnings averaged about $2500 a year , which was well above the general
driver average, and was due in large part to his driving skill and ability, his
receipt of the longer , more profitable asphalt runs due to long and
unblemished service , and the fact that he had had no chargeable accidents
for 12 straight years , and had received increasingly more valuable safety
awards annually for 11 years. He was one of only 20 drivers with 12 or
more years of service , and 1 of 14 in this group who had perfect driving
records He had never received a prior disciplinary suspension or layoff
during his whole service
"Some other aspects of Brock ' s movements on the November 17 trip to
Devine, Texas, are the subject of conflicting testimony , and Respondent
In reaching the ultimate finding and conclusion, I have
considered carefully the circumstances that Brock was at
times quite general and at times evasive and
argumentative in testimony about his travel practices, and
self-contradictory on other points and about details of
some of the incidents enroute in which he was involved,
but the other circumstances outlined above which support
a conclusion of discrimination far outweigh these aspects
of Brock's demeanor, testimony and deficiencies of
memory, as well as the factor of self-interest and union
partisanship.
C. Discharge of Milton E. Walters
Walters was hired in June 1967 by Houston Shop
Foreman Earl P. Cooper as a mechanic at the main
Houston shop. After working there 2 or 3 weeks he
voluntarily accepted transfer to the Baytown terminal
shop, with a pay raise, upon the understanding with
Cooper that he could return to Houston if dissatisfied
with the Baytown assignment. During his short stay at
Houston, he proved to be a good workman who improved
in his work, and Cooper had recommended him highly for
the Baytown job, as competent to do miscellaneous repair
work. At Baytown Walters worked on second shift under
supervision of Forman Eddie Lawrence. When Brock
began his union solicitation in October, Walters did not
engage in any similar or other active organizing work for
the Union However, in October he had several talks
about it with Al Miller, a dispatcher at Baytown terminal,
in which he made it clear that he favored a union, as
other members of his family were members of the
Teamsters, and he felt there were distinct advantages to
the Union, so if it came to a vote in the terminal, he
would vote for the Union." I have also found above that
Walters expressed prounion sentiments in a talk with
Houston Shop Forman Stautzenberger and other
employees at the Houston shop on November 14. The
record shows Stautzenberger is a supervisor, hence I find
that Respondent knew at least on November 14, if not
sooner, that Walters strongly favored the Union, although
he was not active in its behalf.
For the first month or so, Walters' work at Baytown
was satisfactory, but in August Lawrence discovered that
he began to take more than normal time for repair jobs,
so Lawrence talked to him about several of them. In
addition, Walters had several heated arguments with
drivers about the repair jobs he was assigned to do on
their trucks. Toward the last of October, Walters had an
argument with Terminal Manager Cheek about a repair
job, during which Cheek suggested he suspend work on it
until he could get advice from the more experienced
Lawrence. Walters resented this, feeling Cheek did not
have proper confidence in his ability, but nevertheless
sought advice from Lawrence, who merely confirmed
Walters' diagnosis of the cause of the trouble and proper
intimates in its brief that some movements are open to question, but I
make no finding thereon because Respondent did not cite or rely on them
at time of discharge , and even if I found that some of his acts were not
strictly in line of duty, the salient fact is that they did not prevent him
from making his delivery on time or returning to Baytown within
reasonable time, as required.
10Frosty Morn Meats, Inc. v N.L R.B., 296 F 2d 617, 621 (C A. 5);
Alamo Express , Inc, 170 NLRB No. 26, Houston Cartage Company, Inc.,
2 NLRB 1000, 1005, 1006; N L.R.B v Longhorn Transfer Service, Inc,
346 F.2d 1003, 1006; Jackson Packing Company, 170 NLRB No. 155.
vI find the Miller talks from uncontradicted testimony of Walters, as
Miller did not testify
ROBERTSON TANK LINES, INC.
method of repair. Walters complained to Lawrence about
Cheek's orders, and said he wanted to leave Baytown and
return to Houston, as he did not like Cheek's "attitude"
toward him. He also said he wanted more experience on
major, complete overhaul work, none of which was done
at Baytown, but only at Houston; at Baytown Walters had
been doing preventive maintenance and emergency repair
work Lawrence said he did not want to see Walters leave,
but would not object to his return to Houston. Near the
end of October Walters called Cooper at Houston to ask
if he could return, as they had agreed. Cooper said he
could, and took steps to arrange it, so that Walters was
transferred back to Houston on November 6, with no
reduction in pay, where he worked thereafter on second
shift under Foreman Stautzenberger.
At Houston, Walters did repair work assigned to him
by Stautzenberger, generally of a wider variety and more
complicaled than at Baytown. On each assignment, he
used a 1 imecard prepared for that job, on which he
recorded his name, punched the times when he began and
finished the work, and noted the component parts he used
in the repairs. Respondent bases his discharge of
November 20 mainly on alleged inefficient performances
of two repair jobs after his return to Houston, claiming it
was a continuation of poor performance at Baytown
illustrated by three specific repair jobs.
On the evening of November 14, Walters was assigned
to replace a leaking grease seal on the front wheel of a
tractor. 'Walters spent 4 hours on the job, and then
punched out, and another mechanic spent one-half hour in
finishing the job. The next day Stautzenberger examined
the timecard, noted the time recorded and that Waiters
had not finished the job, and then told Walters he was
spending too much time on repair jobs, that he was
standing and talking too much and not getting out his
work promptly. On November 17, Stautzenberger gave
Walters a similar repair job. When he handed the work
order to 'Walters at the start of the shift, the latter looked
at it and said "Yeah, this is another one of those dirty
jobs, pulling an oil seal running in grease, it pours out on
the floor, you get it all over you; I will just go ahead and
make 4 hours on it." Stautzenberger said nothing in reply,
but did follow his progress on the job. Walters actually
clocked _3.8 hours on this job Stautzenberger saw the
workcard on the morning of November 19th, and at once
called Cooper, reciting Walters' action and remarks when
given the workcard, and the length of time spent on the
job; he also cited the earlier job, and said Walters had
been spending too much time in standing and talking and
not working, and asked Cooper to talk to Walters, to see
what he could do with him. Cooper at once contacted
Lanier, reported what Stautzenberger had told him, and
said he was undecided what to do, but that he would talk
to Walters first, and if he did not "straighten up," he
would discharge him. At the start of the second shift that
afternoon. Cooper called Walters to his office, told him
"you are not the same man you were when you were here
before, what has happened to you?" and said his work had
become unsatisfactory since he came back from Baytown.
He mentioned the two repair jobs on which Walters had
taken long periods of time, and asked why. Walters
admitted taking the time shown on each, but offered no
explanation, merely asking for a chance to "do better"
and "square it with you." Cooper then said he would have
to let him go, he would have to find another job, and that
he should come in Monday for his final checks.22 Later
during the shift Walters asked Stautzenberger, "what was
the problem?" and Stautzenberger said he did not know,
275
but that he had heard Tom Clowe ( assistant to Gaylord)
wanted Walters fired. That evening Walters called Lanier,
said he had been fired and could not get a good reason,
and asked if it was "over the union business." Lanier said
he did not know about the discharge, or the reason, but
would check into it and have an answer if Walters would
come to his office about 8.30 or 9 a.m. Monday. Walters
said he would. He then called Clowe at his home and
asked the same question. Clowe replied that he was "kind
of in the dark about it, but I will find out something for
you." Walters said his wife was upset about the discharge,
and Clowe told him not to worry, but that he should come
to the office about 9:30 or 10 a.m. Monday after Clowe
attended a meeting, and Clowe would have "some
answers."
On Monday Lanier did check on the discharge shortly
after he came in at 7:30 a.m. and was in his office most of
the morning, except for attendance at a management
meeting. When Walters came to the terminal about 9
a.m., he went to Cooper's office, where the latter said his
checks would be ready about 11 a.m. Walters said that
was O.K., as he had come down to see Lanier and Clowe.
He then waited outside the office building for some time,
during which he saw and spoke to Stautzenberger and
Maintenance Superintendent Stanley Smart.
Stautzenberger told Walters he had come in all dressed up
because "they" had called him down there; and when
Walters asked Smart why he had been fired, Smart
replied, "Don't you know? If I had been Gus
Stautzenberger Friday night I would have fired you then
and not waited until Sunday." Walters then waited outside
the office, without trying to see Lanier or Clowe, until 11
a.m. when Cooper called him in and gave him his final
checks and had him sign the termination form. Walters
said he would not "let the matter just ride like it was,"
and Cooper replied that he had a right to see Lanier,
Clowe, or Smart. Walters said he was there that morning
to see them. Walters then went outside again and' stood
near Lanier's office, but did not go in. He waited until
lunchtime, and then went home. Walters returned to the
shop about 9 p.m. to pick up his tools. While there,
Stautzenberger approached and told him, "I hope you
don't hold me responsible for what happened here."
Walters replied that he felt he was responsible to a certain
extent for the discharge, but that Respondent was using
Stautzenberger as a "scapegoat" in order to have a reason
for firing Walters because of his views on the Union.
Stautzenberger said he also felt "they was using me," and
then helped him pack his tools. Walters has never
returned to the terminal, nor has Respondent ever sought
to reinstate him.
Respondent's defense is that Walters' work and general
conduct began to deteriorate at Baytown, long before the
union activity began, and it continued to do so after his
return to Houston, culminating in the November 14 and
17 rather routine repair jobs on which he spent unusually
long hours, which caused his discharge. It is clear that
Walters went to Baytown with the benefit of a strong
recommendation from Houston Foreman Cooper, and
that for a month or so his work there was satisfactory.
"I find this conversation from credited testimony of Cooper, as
corroborated in part by that of Walters. Testimony of Walters indicating
that Cooper did not cite the work orders and refused to give Walters a
chance to explain is not credited, because from my appraisal of the two
men on the stand , and considering Cooper's original high opinion of
Walters' work, I think it more likely than not that he cited his deficiencies
to him in detail, and asked for an explanation, and that Walters refused to
give any explanation.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howev i, there is cogent proof that his work and attitude
changed. I find from credible testimony of Lawrence and
company records, with some corroboration from Walters
himself, that- Almost from the beginning, Walters
complained about the limited and rather routine type of
work assigned to him. He also had several arguments with
drivers about truck repairs, and once shortly before
November 1st, he had a very heated argument with one
driver about what was wrong with his truck, which
became so noticeable that Lawrence had to take him aside
and talk to him privately to calm him down, and to advise
him that he did not like Walters' attitude toward the
drivers, saying they all "had to get along" to earn their
pay. Walters earlier had an argument with another
mechanic, which arose after Walters had tried without
success to reassemble a wheel with new bearings, and left
the job unfinished, and the other mechanic, Powell,
finished the work properly the next day; they argued over
it, with Walters accusing the other mechanic of doing
"shoddy" work; Lawrence had to talk to both to calm
them down; Powell got so angry that he threatened to quit
and had to be pacified. Once in October, Walters was
assigned to repair a shiftbox in a tractor transmission, but
could not make the gear selector work after he
reassembled it, so he had to call on Lawrence for help.
Lawrence directed Walters to disassemble the shiftbox and
recheck it, to which Walters objected, saying that it was
working fine. Lawrence then noticed that the box had
been reassembled without a necessary original bushing,
without which it could never work; so he showed it to
Walters, and both men then reassembled the box with the
bushing in place, and it worked properly thereafter. On
August 31, Walters spent about 8.7 hours on one job,
replacing a grease seal on a drive wheel and installing new
heater hoses. As Lawrence knew from long experience
that this type of work should not take more than 3-1/2
hours, he complained to Walters about the time spent on
that job, telling him to expedite his work on such jobs
because'the longer he took on them, the longer he kept
the equipment out of operation and prevented drivers
from making more runs and improving their profit
sharing." Walters replied that some jobs took longer to do
than others, but that he would try to do better in the
future. On ari assignment of either July or August 26,
Walters logged 4.6 hours to replace a broken starter
switch on a tractor, which normally should take no more
than I hour. On October 17, Walters spent 4 hours to
dismantle and check over a truck transmission, an
operation which normally took no more than 2-1/2 hours.
When Lawrence asked him why this took so long, Walters
got angry, telling Lawrence he was not qualified to tell
him how long it should take; this particular job was done
over a period of about 3 days, with another mechanic,
Ayers, also working on it.
On several iccasions, Lawrence complained to
Terminal Manager Cheek about the length of time
Walters took on jobs, and his two arguments with a driver
and a mechanic. I have already found that Walters
quickly became dissatisfied with the limited type of work
given him at Baytown, and resented Cheek's remarks and
doubtful attitude about his ability as a mechanic. It was
The unusual length of this job contrasts sharply with a repair job done
by mechanic Powell on September 4, 1967 , in 4 3 hours, which involved
basically the same dismantling of a whole wheel assembly with replacement
of seals, etc; replacement of heater hoses required on Walters' job
normally took about the same time as removal of wheel lugs and
installation of new ones , as required on Powell's job
shortly after his argument with Lawrence about the
transmission job in October, and Lawrence's warning
about his attitude after his argument with the driver, that
Walters requested transfer back to Houston
While it is a fair inference that Walters' work
performance at Baytown probably suffered because of his
dissatisfaction with that job in general, his arguments with
drivers and other mechanics, the warnings he got from
Lawrence, and his resentment of Cheek's attitude toward
him, the record falls short of indicating that his declining
performance was such as to warrant in Respondent's eyes
discipline more drastic than the few verbal admonitions
given him. Walters gave detailed explanations in
testimony to show that the unusually long hours spent on
the starter switch and transmission overhaul jobs were
caused in the former case by his inability to make the
switch work by rebuilding it, which required a trip to
Houston to get a replacement from a wrecked truck, all of
which added over 2 hours to the normal time for the job,
and in the second case he had to dismantle only the rear
portion of the transmission (rather than pull the whole
unit out intact, which takes less time), to replace defective
bearings and accessories, and this was done only after he
and Lawrence had discussed it for about 30 minutes, and
Lawrence had called Houston to find out whether to pull
the whole unit and send it to Houston for repair, or repair
it at Baytown; and after the latter course was decided,
Lawrence himself worked about 2 hours with Walters to
get the rear portion off before repairs could be made I
must accept this explanation because Lawrence admitted
he did not see Walters working on most of the jobs cited
above, and I find from credible testimony of Walters,
Houston, and admissions of Lawrence, that in motor
repair work some jobs take longer than others, depending
on the conditions encountered, including size, complexity,
and condition of the units worked on. Lawrence also
admitted that Walters' troubles with other workers and
poor performance was sporadic, not continuous, and that
the work orders of August 26, 31, and October 17 were
the only ones he could find to "verify" his complaints to
Cheek, out of more than 3 months of Walters' work; it is
also significant that he searched for and secured these
orders only toward the last of November, when Cheek
asked for such proof after the discharge; they were not
shown to Cheek at the time of the complaints to him.
Cheek admitted that he never took any steps to give
Walters warnings or reprimands, and that, while he and
Lawrence were disappointed in his substandard
performance, they had not reached the point of decision to
discharge him, because of Cooper's original
recommendation of him It is also significant that they did
not suggest or initiate the transfer back, it was Walters'
own idea, and they approved it because of Cooper's
interest in the man and desire to work with him on his
problems.
While Walters' performance at Baytown was not
considered bad enough to warrant discharge, the lack of
discriminatory intent toward him is bolstered by the fact
that, even though Respondent probably knew of his union
sentiments (as well as of Brock's union activities), it
readily transferred him back to Houston in accordance
with his agreement with Cooper. However, even with its
knowledge of his union sympathies, Respondent still had
the right to keep his past deficiencies in mind and to
watch to see whether he improved his performance at
Houston, where the broad type of work he wanted was
available for him. But his performance did not improve.
Credible testimony of Stautzenberger and R V.
ROBERTSON TANK LINES, INC.
Snodgrass (leadman on third shift, whose work on that
shift overlapped the second shift about 3 hours) indicates
that: After return to Houston, Walters frequently stopped
work completely on an assigned job, after Stautzenberger
had left the shop between 10 and 11 p.m., and walked out
to the parking lot to spend up to 30 minutes talking to a
lady in a parked car.x" Walters had never done this while
working at Houston before. Snodgrass did not at once
report these incidents to Stautzenberger, because he
normally did not try to check on jobs assigned to men by
the second shift foreman; however he did tell him about
Walters' work stoppages after he observed Walters do it
the nights of November 14 and 17. Further, Cooper and
Stautzenberger testified credibly that as soon as he
returned, Walters began to gripe about the work given to
him, indicating he would like to choose his own jobs,
although the normal practice was to assign repair work to
mechanics in rotation, and under this practice Walters was
given both simple and more complicated jobs, as they
came up in rotation. In the second week after his return
he did the jobs of November 14 and 17, which Respondent
considered far too long, as found above; and he admitted
that, when assigned one or the other, he made the
complaining remark indicating displeasure with it and an
intent to stretch it out, as I have found above, and his
actual clock time of 4 hours for one and 3.8 hours for the
other strongly indicates that on one or both he
deliberately slowed down his work to vent his displeasure
at the assignments. It was but natural that, having warned
him after the first job about taking too long, and then
noting a similar slowdown on the second after Walters'
threat to do so, Stautzenberger would report this at once
to Cooper; and when Cooper called him in on Sunday, the
19th, it is also notable that he did not discharge him
outright, but only after reproaching him for not acting up
to his former standard of work at Houston, citing his two
recent delinquencies, giving him a chance to explain them,
and getting no explanation, but instead an admission of
poor performance implicit in Walters' request to "do
better" and "square it with you." The same admission is
implicit in Walters' signal failure to make any real
attempt to see either Clowe or Lanier, as they suggested,
as he verified to Cooper on Monday morning in the
2-hour period while waiting for issuance of his final
checks, or to ask for review of his discharge by a board of
top officials (which probably would have included Lanier)."
To rebut these cogent circumstances, Walters testified
in detail about the many steps involved in performing the
November 17 grease seal job, including the time spent in
finding the tractor to be worked on, moving it into the
shop, hoisting it properly, and then disassembling the
wheels and other component parts. He indicates that the
disassembly was difficult, and he had to get help from
another mechanic after appealing to Stautzenberger; he
also loss time in finding the proper tools for the job.
However, he admits that he took one break of 15-20
minutes when he got "disgusted" with the job, and then
"rode the card" for the last half hour noted on the
timecard, by using it to clean up and prepare to go home;
no supervisor was present in the shop at this time. The job
"I do not credit Walters' vague and unconvincing denials of these social
talks.
"Since he had no hesitancy about seeing Cooper twice in his office that
morning , I cannot accept Walters' flimsy excuse for not seeing Clowe or
Lanier or asking for a review board , that he waited outside their offices all
morning but was not' called in I am convinced he did not try to see them,
because he knew he had no answer to his delinquencies which had caused
his discharge.
277
was not new to him, as he had performed it two or three
times before, but he insists this particular operation took
the longest time of any. I cannot accept this explanation
because I have found that he was angry when getting it,
threatened to stretch it out, was angry while doing it, and
finally added a half hour of nonworktime on the card at
the end. That he engaged in a deliberate slowdown, or
"padded" his timecard, on this job, in protest against its
assignment to him, is indicated strongly by his oblique
admission of guilt when Cooper confronted him with it,
his refusal to give Cooper the detailed explanation of its
difficulties which he now states in testimony (although the
unusual difficulties, if they existed, must have been much
clearer in his mind when talking to Cooper only 2 days
later), and his failure to seek the review of discharge by
higher management officials to which he knew he was
entitled. In addition, I find no clear or credible
explanation by Walters of the reasons why he took so
long to do the November 14 job. On all these facts, I am
impelled to conclude that Walters engaged in a slowdown,
or padded his timecard, on both jobs, that Stautzenberger
gave him a verbal admonition about it the first time, but
when he did the same thing 2 days later, in an admitted
deliberate stretchout of the job, Stautzenberger properly
reported the facts to Cooper. The latter, as his sponsor,
gave him a clear chance to explain away his poor
performance and, when he did not do so, discharged him.
In light of his past deficiencies at Baytown, his failure to
improve and Respondent's action thereon noted above
presents cogent proof that he was discharged for cause,
and not for his union sentiments. In this connection, I also
note that in his discharge interview with Cooper nothing
was said by either regarding the Union or Walters' union
sympathies; the fact that Walters brought it up in later
talk with Stautzenberger, including the charge that the
shop foreman was being used as a "scapegoat" to
discharge Walters on a pretext, and the foreman's oblique
agreement, does not amount to substantial proof of
discriminatory motive which would outweigh the
impressive sequence of facts denoting a discharge for
cause.'* Nor is this defense weakened by the fact that
Cooper did not talk to Walters about his job performance
and attempt to straighten him out before the discharge, as
he told Cheek he would when they arranged the transfer
back to Houston: while Stautzenberger received
indications right after his return that Walters was
stretching out jobs, griping, standing around, and at times
even leaving the shop during his shift for social purposes,
this did not come to Cooper's attention until after the
November 17 repair job, when Stautzenberger reported all
his conduct of the past 2 weeks to Cooper, hence it does
not seem unnatural for Cooper to give Walters a chance
to improve at Houston on his own, without specific
advance advice or admonition, and to say nothing until he
got a clear report that he was not improving; on the
contrary, it would appear more natural for Cooper to
assume at the outset that Walters would resume his
former satisfactory work, once he achieved his desire to
get away from Baytown and return to Houston (but
without reduction in pay), where he had a chance to do
the wider variety of work which he wanted. I have also
considered the suspicious circumstance that Walters was
discharged when the Houston shop was already short two
mechanics, which became three on his discharge, but this
does not become in my view an inference persuasive of
discrimination, in light of credible testimony of Cooper
"Since Stautzenberger must have known of Cooper 's high regard for
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and admissions of Walters that there had long been a
general shortage of good mechanics in the Houston area,
and Cooper was always asking mechanics to watch out for
good mechanics and let Cooper know about them; hence
this was no more than a normal situation when Walters
was fired , and it was soon alleviated , for Cooper testified
credibly that he was able to replace Walters in the first
week after his discharge , and filled the other two
vacancies in the second week thereafter
I have carefully examined the other facts and
circumstances , including some weaknesses in and conflicts
of testimony of company witnesses , which General
Counsel considers strange or incredible and thus indicative
of discriminatory motive for the discharge of Walters, but
while they arouse suspisions of discrimination against him,
I conclude that either singly or together they do not
overweigh the persuasive facts and circumstances outlined
above which point to poor performance at Houston, in
continuation of similar conduct at Baytown , as the sole
motivation for the discharge . Considering all the pertinent
facts and circumstances pro and con , I must conclude that
Respondent has adduced cogent evidence sufficient to
rebut the prima facie case of discrimination made by
General Counsel , and that on the entire record General
Counsel has failed to sustain the ultimate burden of
proving that Walters was terminated for discriminatory
reasons. I therefore grant Respondent ' s motion to dismiss
the complaint as to Walters, and recommend that it be
dismissed insofar as it alleges his discharge violated the
Act.
D. The Discharge of Jack Houston
Jack Houston was hired by Respondent about July 1,
1967, as a mechanic at the main Houston terminal, with a
background of several years of experience as a general
auto mechanic. Until his discharge on November 21, he
worked mainly on diesel engines , at first on'day shift, and
later at times on both day and night shifts. He received a
10-cent raise after 2 months on the job, which he had been
promised on hiring if his work proved satisfactory.
I have found that Respondent learned on November 14,
1967, of Houston's prounion sentiments in the general talk
of some mechanics with Foreman Stautzenberger.27 There
is no proof that Houston ever actively solicited for the
Union, like Brock.
During his first week of work, Cooper asked Houston if
he would be interested in transferring to the Baytown
shop, saying it was short of help, and someone had to go
down there. Cooper offered him a raise as an inducement.
Houston refused the offer, saying he owned his home in
Houston, and his wife also had a good job there.
Sometime in late September or early October, while
talking to Houston about the condition of some trucks
sent in for repair from the LaPlace, Louisiana, terminal of
a concern associated with Respondent, Cooper asked
Houston if he would be interested in transferring to that
terminal as a working shop foreman on straight salary.
Walters' work, and that he was in effect his sponser , I consider it only
natural that the foreman would not take any drastic action on his own
toward Walters , and would at all times attempt to remove himself from
any controversy between management and Walters, considering it Cooper's
problem , not his.
"In view of Stautzenberger 's coercive remarks and Houston's expression
of his union sentiment on that occasion , and Respondent ' s clear knowledge
of Brock's union activities , I do not credit pro forma denials by Smart and
Cooper of any knowledge of Houston ' s union sympathies at or before his
discharge
Houston, who had already learned of the vacancy from
another employee," said he was not interested, because he
had too much at stake in Houston. Houston received no
later comments or criticism from any official about his
refusal to make these transfers. However, he had
consented to transfer temporarily from first to second
shift at Houston in September, at the request of Cooper,
to relieve a shortage of mechanics on the latter shift. Up
to his discharge, Houston apparently was a satisfactory
employee, for he never received any warnings or other
discipline for poor work.
On November 21, the day after the unlawful discharge
of Brock, as soon as Houston reported for work on
second shift, Cooper sent him in to see Operations
Manager Stanley Smart, saying Smart had a
"proposition" for him. Smart told Houston that he was
badly short handed for mechanics at the Port Arthur,
Texas, shop of Apex Truck Rental Company29 which was
turning down repair work because it could not get
mechanics locally, that he needed another mechanic down
there at once, he knew Houston could do the work as he
had seen him rebuilding engines at Houston, and that he
would have to send him to Port Arthur, as he was the
youngest mechanic (in point of service) in the main shop.
Houston asked when the 'transfer would take place, and
Smart replied, "right now, today" he needed a man there
immediately. Houston replied it would be impossible for
him to go on such short notice, as he had to discuss a
decision like that with his wife. Smart repeated that he
would have to send Houston, as he needed a man there
and Houston was the youngest; he offered to give him a
raise and pay his living expenses at Port Arthur while he
was getting located there permanently. Houston said that
if he needed a man there for a week or so until Smart
could hire another man permanently for the place,
Houston would be glad to go on a temporary basis. Smart
replied, no, he needed a man there permanently. Houston
replied that he was not interested in going "just-like that,"
that he could not go without talking it over with his wife,
that his home was in Houston and his wife had a job
there, so he did not want the job.30 Smart again repeated
the need for a mechanic that Houston had to go. Houston
asked if he "had" to transfer, and Smart replied, yes, it is
mandatory, and that "if you do not want to go, we are
just going to have to dissolve partnership." Houston then
said, "well if it is go or leave the company, then I will just
get my tools and leave now and get a job elsewhere; I was
going to quit January 1, anyway, two other mechanics and
I are going out to the Gulf Freeway and start our own
repair business." Smart replied that if he had intended to
quit, "let us just make it effective today, you are quitting
today, and I will call the personnel office and have them
start the check-out process now. "Smart then called
Cooper, and told him to figure out Houston's time. As
Houston was leaving, he asked Smart if "that had
anything to do with the union business," that he had not
"Late in September, one Randall who worked in the personnel office
under Lanier , had asked if Houston was interested in the LaPlace job,
intimating he could arrange it with the terminal manager there , who was a
friend of his. Houston told him he was not interested.
"Apex is a separate Texas corporation which has the same common
control , stock ownership , and management as Respondent and other
enterprises in the "Robertson group ," and a common office with
Respondent at the main Houston terminal Respondent's personnel office
has usually supplied Apex with mechanics as needed.
"Port Arthur is 110 miles from Houston , so a transfer would require
Houston to live apart from his home and wife, or sell his home and make
his wife quit her own job , in order to make the transfer
ROBERTSON TANK LINES, INC.
engaged in any of it, and Smart replied that it did not,
that "it is your affair, your right and privilege, that is
none of my business.""
Houston then went back to the shop and told Cooper of
his termination. Cooper was angry about it. Houston
asked him why it happened, and Cooper replied he did not
know, he had nothing to do with it. Houston disagreed,
angrily saying, "it does not make any sense" and "you are
forcing me to go to Port Arthur, but you are going to be
short one man at Houston." Houston returned about 7
p.m. to receive his final checks from Stautzenberger, but
refused to sign the usual termination slip because it stated
no reason for termination.
In light of Respondent's knowledge of the union
activity, its unlawful discharge of Brock found above, and
its prior knowledge of the prounion sentiments of
Houston, the separation of the latter on the day after
Brock's discharge, including Smart's quick seizure on
Houston'"s remarks about later plans for quitting, to make
it appear that he was quitting that very day, raises a
prima facie case of constructive discharge which requires
Respondent to adduce cogent proof to rebut it.
Respondent's sole defense is that Houston voluntarily
quit, after being apprised of the economic necessity of his
transfer, rather than accept a higher paying job at the
Port Arthur shop. In support of this defense, and Smart's
remarks in the final interview, General Manager Gaylord
and Personnel Director Lanier testified that- Respondent
has a policy, which is announced to employees upon hire,
that they can be required to transfer to another location,
if help is needed there, under penalty of discharge if they
refuse. In line with this policy, Respondent has at times
transferred mechanics, particularly Diesel mechanics, from
its own work force to the Port Arthur shop of Apex,
which has had continual trouble getting mechanics locally.
In selecting men for transfer Respondent chooses the
junior man in point of service who is qualified to do the
work of the classification of the vacancy. Houston was
chosen on this basis, as he was qualified to do the work
needed at Port Arthur. Smart testified that: The need for
a Diesel mechanic at Port Arthur became apparent about
November 1 when Carl Lee, operations manager there,
asked for Smart's help in getting a mechanic, advising
that his shop had to turn away work because of a shortage
of Diesel mechanics. On November 20, Lee called again
to find out if Smart had secured a mechanic. Smart said,
no. Lee reported he was unable to find any good
all-around mechanics around Port Arthur, and that he
was "in a rush" as the shop foreman was going on
vacation, leaving him short another man. Smart then
decided to send Houston, as he was the junior all-around
Diesel mechanic in point of service. However, this defense
has many weaknesses disclosed by other facts in the
record.
Gaylord's story that all workers are advised of possible
mandatory transfer subject to discharge when they are
hired is not credibly supported by Foreman Cooper who
hired Houston, other company officials, or regulations
offered by Respondent, hence I credit Houston's
testimony that he was never advised of such policy when
he was hired. The existence of the policy itself, and its
enforcement if it in fact existed, is negated by the
"The events of November 21 are found on credible and mutually
corroborative testimony of Houston and Smart . I do not credit Houston's
denial of talk about quitting at a later date to start his own business, for
he admitted he often talked about those plans with others in the shop, and
I consider it more likely than not that he mentioned it here in the terms
found above
279
following circumstances: (1) Walters' transfer to Baytown
by Cooper was clearly voluntary with the unqualified right
to return, although Baytown was badly in need of
mechanics at the time; (2) Cooper had twice before
offered Houston transfers to Baytown and LaPlace, and
he was not disciplined in any way, much less discharged,
for his refusal to go; (3) Brock testified without
contradiction, and I find that, he had once been offered a
temporary transfer to another part of Texas, with right of
return, and in late 1966, Lanier had told him he did not
have to move to Baytown when the asphalt operations
moved there, but would only have to give up the lucrative
asphalt hauls if he did not move with the operation; there
was no threat of discharge; and (4) Lanier testified that
Respondent had in the past discharged workers for refusal
to transfer, but Respondent never produced any personnel
records (as in the case of discharge of drivers for
unauthorized personal use of equipment) to substantiate
actual enforcement of the claimed mandatory policy.
These circumstances indicate that any transfer policy was
in practice a lenient and nonmandatory one prior to
Houston's case, with any move being voluntary and even
temporary, if the worker wanted only to try out the new
location, even where the need was clear. The sudden and
onerous application of a mandatory transfer rule under
pain of instant discharge in Houston's case is such a sharp
contrast as to raise a strong inference that Respondent
wanted him to refuse and quit under threat of discharge.
Further, the claim of a pressing need for a Diesel
mechanic, on which Respondent bases the application of
the mandatory rule, is greatly weakened by the facts that,
although Port Arthur called for a man as early as
November 1st, Respondent did not try to transfer any
other mechanics down there even on a temporary basis
before the November 20th call, nor did it send any other
men permanently because, as Smart says, it had no
"applications" (apparently from new applicants); but this
is a flimsy excuse because Smart admits he had other
qualified but older mechanics in Houston, whom he could
have sent on a temporary basis, as indicated by past
practice, yet he does not offer any credible explanation
why he did not send one of them (except to say they were
"much older"); and the lack of "applications" seems to be
a spurious reason, for it is clear from management
testimony that Houston was seeking new mechanics for
itself, but not getting them because of a plain lack of
them, during all this period. Further, even after Houston
"quit," as Respondent claims, and although Smart says he
still had the emergency call for a man, he admits the need
was only partially filled when Port Arthur finally settled
for a man from that area about December 1st, who was
only an engine mechanic, not a fully qualified truck
mechanic like Houston. All of this indicates that the "dire
need" used to cause Houston to quit did not in fact exist.
Smart's reason for not sending an older man, even
temporarily, further deflates the claim, for he says "it was
not that real big emergency it had to be done right then,"
even though he admits the vacation of the Port Arthur
foreman made it a far greater emergency on November
21st than on November 1st; the inconsistency in this
testimony is significant. Finally, the, same inference arises
from his explanation he did not have to send an older man
down because of 24-hour phone service between Houston
and Port Arthur, and "we can just send a man over there
or else we will just have to bring it to Houston to be
repaired"; and he offers no proof that Port Arthur sent
any work to Houston in that week; he does not try to
explain why these expedients would not have justified
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acceptance of Houston's offer of a temporary transfer of 2
weeks. He also admitted that Port Arthur was "not really
hurting" in that week. I am convinced by these admissions
that the emergent "need" at Port Arthur did not really
exist so as to require the imposition of a sudden
mandatory transfer policy on Houston, and that this.
spurious policy was brought up suddenly as a pretext in
order to force Houston, an otherwise satisfactory
employee, to quit when faced with an unfair and
intolerable demand, without consideration of his personal
situation, in order to conceal an ulterior motive.31 This
conclusion is further supported by the fact that Houston's
separation left Houston itself three men short, and the
alleged emergent "need" of Port Arthur still
unsatisfied, which could well have been avoided in
part at least by a temporary assignment of either Houston
(as he offered) or a more senior mechanic to Port Arthur.
As Respondent has offered no rational or credible
explanation for its action on Houston's refusal to transfer
on short notice, and Smart quickly seized on his side
remarks about plans for quitting later-to try to make it
appear that he was voluntarily quitting that very day, but
he did not insist on Houston signing a termination slip
containing that as the reason for the separation, I can
only conclude that the real reason for the separation was
his known union sentiments. I therefore conclude that
Respondent has failed to rebut the prima facie case of
discrimination shown in the record, and that General
Counsel has sustained the ultimate burden of showing by
substantial proof in the entire record that Respondent
forced Houston to quit, and thus constructively discharged
him, on November 21, 1967, because of his known union
sympathies, in violation of Section 8 (a)(3) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having been found that Respondent has engaged in
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent unlawfully discriminated
against Conway D. Brock , Sr., and Jack Houston by
discharging and refusing to reinstate them, I shall
recommend that Respondent offer each of them
immediate and full reinstatement to his former or a
substantially equivalent position , without prejudice to
seniority or other rights and privileges previously enjoyed,
and that Respondent make them whole for any loss of pay
suffered by reason of its discrimination against them, by
payment to each of a sum of money equal to that which
"In reaching this conclusion , I find it unnecessary to indulge in the
speculations in the Union 's brief based on the timing of some of Brock's
union activities in this period , for there is no credible proof that Houston
was in any way connected with them or that Respondent desired to remove
him from the Houston scene to prevent him from helping Brock.
he would have earned as wages from the date of the
discrimination against him, as found above, less net
earnings during said period, the backpay to be computed
in the manner prescribed in F. W. Woolworth Company,
90 NLRB 289, with interest at the rate of 6 percentum
per annum to be added to the backpay due, as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716. I will also
recommend that Respondent preserve and make available
to the Board or its agents, upon request, all records
necessary and pertinent for computation of the backpay
due.
In view of the nature of the unfair labor practices
committed which indicate Respondent's basic disregard
for the fundamental rights of employees protected by the
Act, I shall recommend issuance of a broad cease and
desist order.
I shall also recommend dismissal of the complaint
insofar as it alleges a discriminatory discharge of Milton
E. Walters.
CONCLUSIONS OF LAW
1. The Union named above is a labor organization
within the meaning of Section 2(5) of the Act.
2. By discharging Conway D. Brock, Sr., and Jack
Houston and failing and refusing to reinstate them,
because of their union activities and sentiments, thereby
discriminating in regard to their hire and tenure of
employment and discouraging union membership and
activities among its employees, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
3. By threatening employees with loss of benefits and
other economic reprisals if they supported the Union in its
efforts to organize Respondent's employees, Respondent
has interfered with, restrained, and coerced its employees
in violation of Section 8(a)(1) of the Act.
4. The unfair labor practices aforesaid are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act by its discharge
of Milton E. Walters, as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and on the entire record in the case, I
recommend that Robertson Tank Lines, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the above-named labor
organization, or any other labor organization of its
employees, by discharge or refusal to reinstate its
employees, or discriminating in any other manner in
regard to their hire or tenure of employment of any term
or condition of employment.
(b) Threatening employees with loss of benefits if they
support the above-named labor organization or any other
labor organization in efforts to organize employees of
Respondent.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of any rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Conway D. Brock, Sr., and Jack Houston
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
ROBERTSON TANK LINES, INC. 281
seniority or other rights and privileges previously enjoyed,
and make said employees whole for any loss of pay they
may have suffered by reason of the discrimination against
them, in the manner set forth in the section entitled "The
Remedy."
(b) Notify above-named employees if presently serving
in the Airmed Forces of the United States of their right to
full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed F orces
(c) 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.
(d) Post at its terminals and shops in Houston and
Baytown, Texas, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 23, after being duly
signed by Respondent's representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places,nicluding all places where notices to its employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.34
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges any discriminatory action
against Milton E. Walters.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
3"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
WE WILL NOT discourage membership by any of our
employees in International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
Southern Conference, or in any other labor
organization, by discharging or refusing to reinstate our
employees, or in any other manner discriminating
against our employees in regard to their hire or tenure
of employment or any other term or condition of
employment.
WE WILL offer Conway D. Brock, Sr., and Jack
Houston immediate and full reinstatement to their
former or substantially equivalent positions, without
prejudice to seniority or other rights and privileges
previously enjoyed, and we will make them whole for
any loss of pay they may have suffered as a result of
the discrimination against them, in the manner
described in the Trial Examiner's Decision.
WE WILL NOT threaten our employees with loss of
benefits if they support the above-named labor
organization, or any other labor organization, in efforts
to organize our employees, or in any other manner
interfere with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to form,
join, or assist any labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all of such
activities.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
All our employees are free to become or remain, or to
refrain from becoming or remaining , members of
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Southern
Conference, or any other labor organization.
ROBERTSON TANK LINES,
INC.
(Employer)
Dated By
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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
employees that:
(Representative ) (Title)
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.
If employees have any questions concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 228-4296.