Terminal Services Houston

National Labor Relations Board - Board Decisions

Jun 2, 1977

229 N.L.R.B. 1117 (N.L.R.B. 1977)

TERMINAL SERVICES HOUSTON
Terminal Services Houston, Inc. and Edward McAnal-
ly. Case 23-CA-6125
June 2, 1977
Upon the entire record, including my observation of the
witnesses, I hereby make the following:
FlNDrNGs OF FACT
DECISION AND ORDER The Facts
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On February 3, 1977, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings,' findings, 2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Terminal Servic-
es Houston, Inc., Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
1 Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the brief adequately present the issues and
positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This
proceeding was initiated by a charge filed by Edward
McAnally on June 30, 1976.1 Pursuant thereto, complaint
issued against Respondent on August 18, alleging that it
had violated Section 8(a)(1) and (3) of the Act by certain
acts of interference, restraint, and coercion and by
discharging McAnally because of his union activities. On
October 14, hearing was held in Houston, Texas.
I Unless otherwise indicated all dates are in 1976.
2 Jurisdiction is not in issue. Respondent admitted that it meets the
Board's indirect outflow standard for the assertion ofjurisdiction.
3 The transcript shows "June 3" as the date of termination. This is clearly
an error and the transcript is corrected to show "June 30."
229 NLRB No. 153
Respondent is engaged in the business of repairing and
servicing containers and trailers in Houston, Texas.2
Edward McAnally was employed by Respondent as a
mechanic three or four times in a period of 3 years between
1973 and 1976, each time for 6 to 8 months, and each time
terminating his employment by quitting. His last period of
employment was from about January 2 to June 303 when
he was discharged.
After some discussion with fellow employees about the
need for union representation, McAnally called a represen-
tative of Local 1330, International Longshoremen's Associ-
ation, AFL-CIO (herein called the Union), and obtained
some union authorization cards. He signed a card on June
24. On June 25, he gave cards to two fellow employees and
talked to others about signing cards.
On June 28, a number of employees attended a meeting
at the union hall.
The next day, McAnally observed two strangers in the
shop and he asked Shop Foreman Ralph Powell, an
admitted supervisor, who they were. Powell said he did not
know, "Probably some of your friends from the Union
hall." McAnally asked him what he meant and Powell told
him, "Well, it's all over the shop and Richard Mendoza
called the men together, and you all had a union meeting
last night, and you were instigating all of it."
About an hour later, Powell called McAnally into his
office and asked him, "What's this union mess trying to do?
Get somebody run off?" McAnally said no and explained
what the employees wanted. Powell asked him if he had
signed a union card and McAnally told him he had. Powell
said it would do no good, that the Company would not
accept it.
The following morning, on arrival at work, Powell
greeted McAnally with "Hello, Union Steward."
Later McAnally was backing a trailer into the shop and
in doing so he struck the header over the shop entrance
with the top of the trailer.4 General Manager John W.
Nicholson, Jr., went over to the truck and told McAnally
he was fired.
Analysis and Conclusions
The foregoing consists of the testimony of McAnally and
represents the evidence on which General Counsel predi-
cates the allegations of the complaint. The statements
attributed to Powell are alleged to have been violative of
Section 8(aX)(I) of the Act and give rise to two questions:
should McAnally be credited, and, if so, were the
statements unlawful.
As to the first of these questions, I conclude that
McAnally should be credited. There was nothing in
4 According to McAnally, he was moving a container; according to
Nicholson, he was moving a trailer. Whether it was one or the other makes
no difference.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McAnally's demeanor to cause me to doubt his credibility
and I find nothing in his testimony to cause me to do so. In
this connection, I note that he admitted to several
accidents with equipment as attributed to him by Respon-
dent.
On the other hand, Powell did not expressly deny having
the conversation arising out of the visit of the two
strangers, nor did he deny interrogating McAnally about
signing a union card. Asked whether or not he had a long
conversation with McAnally about union activities and the
Company's attitude toward a union, he answered, "If I did,
I sure truthfully don't-I can't recall it. Let me put it this
way." This is not a denial.
More importantly, Powell gave testimony which struck
me as incredible. Thus, he was asked whether or not he had
discussed with McAnally attendance at a union meeting.
He said no that he did not know a thing about any kind of
meeting. But then, he proceeded to testify that mechanic
Joe Vargas approached him the night of the meeting and
handed him a piece of paper with an address written on it
(that of the Union) and said that he had been instructed to
be at that address at such and such a time for a meeting of
some kind and "that if he had to attend and join it, he was
going to quit." Powell told him to go home and forget it. In
the light of this testimony, Powell's testimony that he did
not know of the union meeting is incredible.
Out of the remarks of Powell to McAnally on June 29,
General Counsel has extracted five independent 8(a)(1)
violations which are set forth in paragraph 7 of the
complaint. I find nothing violative in Powell's remarks
revealing his knowledge of the employees' union activities
and McAnally's role therein as there was no suggestion
that the knowledge had been obtained by unlawful
surveillance or interrogation. To the contrary, in saying
"it's all over the shop" Powell merely revealed that he had
heard about the union activities in the regular course of
things. This should not have surprised McAnally consider-
ing the size of the shop. As his remarks were made in
response to a question by McAnally and contained no
threats of reprisal, I am unable to see how they constituted
interference, restraint, and coercion. Accordingly, I shall
recommend dismissal of paragraph 7, subparagraphs (a),
(b), and (c). 5
In view of the conversations between Powell and
McAnally on June 29, I am also unable to see wherein the
greeting "Union Steward" on June 30 was unlawful and I
shall recommend dismissal of paragraph 7, subparagraph
(e).
Powell's interrogation of McAnally, however, stands on
different footing. It had no legitimate purpose and when
the inquiry was couched in such terms as "union mess" and
referred to getting somebody run off, the interrogation bore
a clear tendency to coerce and was violative of Section
8(a)(1) of the Act.
As to the discharge of McAnally, Respondent asserts
that it had no knowledge of his union activities and that he
was discharged for misconduct. I reject the assertions.
My findings above relative to the conversations between
Powell and McAnally clearly establish knowledge of
I The cases cited by General Counsel at the hearing do not support a
contrary conclusion.
McAnally's union activities on the part of a supervisor.
True, McAnally was not discharged by Powell, but by
General Manager John Nicholson and he denied knowing
about McAnally's union activities. I do not credit him. The
shop was a small one and Powell's statement to McAnally,
"its all over the shop," belies Nicholson's claim of lack of
knowledge. As a matter of fact, Nicholson's denial of lack
of knowledge was somewhat equivocal. Thus, when asked
if he knew McAnally was trying to organize a union, he
answered:
No, sir, not really. We-the rumor had spread through
the shop-oh, the rumor had been around for some
three years that the shop was being organized, so when
I heard about it this time I didn't place any faith in it,
because as I mentioned, it had been a constant rumor.
In light of the foregoing, the findings relative to Powell's
remarks, the size of the plant, the timing of the discharge,
and the clearly pretextuous reasons asserted for discharge,
the inference is warranted that Nicholson knew of
McAnally's union activities or suspected him of being
involved.
As to the assertion of misconduct, I have already
described the incident on June 30 when McAnally struck
the header over the shop entrance with the top of the
trailer. I do not credit the testimony that this incident was
the reason for his discharge, nor that it was the straw that
broke the camel's back. My reason for discrediting such
testimony is that uncontradicted testimony reveals that it
was not an uncommon occurrence for a driver to commit
such a mistake. No one had even been warned of discharge
before, much less discharged, for such a mistake. More-
over, the summary manner in which the discharge was
effected without giving McAnally any opportunity to
explain and without even an inspection of the trailer for
possible damage (there was none) compels a finding that
the incident was seized on by Nicholson to discharge
McAnally because of his union activities.
The record indicates, however, that the incident of June
30 was the last of several instances involving McAnally
wherein Respondent suffered losses. For example, on May
9, while backing a truck up an inclined plane to hook up to
a trailer, the engine fan hit the radiator and ruined it. On
another date in May, McAnally delivered a trailer to a
customer and when he pulled the tractor from the trailer it
dropped lower than it should because the landing on the
trailer gear had not been adjusted properly. As a result a
tractor could not back up to the trailer for a hookup. An
employee of the customer complained to McAnally, but
McAnally did nothing about it and left. On June 1, while
working on a repair job, McAnally was struck in the mouth
by a makeshift tool he was using. Angrily, he tossed the
tool (a pipe) away from him and it struck a radiator lying
against a wall. On June 10, while moving a forklift,
McAnally struck and broke the windshield and damaged
the top of a truck with the arms of the lift. On June 25,
McAnally backed a tractor into a pickup and busted a
taillight lens.
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TERMINAL SERVICES HOUSTON
There is no dispute that the foregoing incidents occurred.
McAnally had explanations for all of them, but without
reviewing each one it may nevertheless be fairly said that,
except perhaps for the instance when the truck fan ruined
the radiator, each instance was attributable to some degree
to carelessness on McAnally's part. However, such instanc-
es of carelessness are clearly irrelevant to his discharge on
June 30. The reason I so find is that some of them involved
substantial losses to Respondent. The radiator damaged by
the fan had to be replaced at a cost of about $300. The
windshield broken by the forklift had to be replaced at a
cost of $100, and Respondent lost man-hours in fixing the
top of the truck. The radiator damaged by the thrown tool
was a total loss if Supervisor Powell is to be believed. 6 Yet,
McAnally was neither reprimanded nor warned of dis-
charge if he continued to be careless. Under the circum-
stances, the assertion that the incident of June 30, which
was not unusual and which involved no damage, was the
straw that broke the camel's back borders on the frivolous.
Finally, I have considered the evidence relative to
McAnally's absenteeism. It is clearly irrelevant to his
discharge.
In short, upon consideration of the timing of the
discharge, and the patently pretextuous reasons asserted
therefor, I find that McAnally was discharged because of
his union activities in violation of Section 8(a)(1) and (3) of
the Act,
CONCLUSIONS OF LAW
1. Terminal Services Houston, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Longshoremen's Association, Local
1330, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating Edward McAnally about his union
activities in a manner constituting interference, restraint,
and coercion of employees in the exercise of Section 7
rights, Respondent engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(l) and
Section 2(6) and (7) of the Act.
4. By discharging Edward McAnally because of his
union activities, Respondent engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(l) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, I find it necessary to order Respondent to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discharged Edward
McAnally because of his union activities, I shall order it to
offer him immediate and full reinstatement to his former
6 I do not believe Powell regarding this issue. The radiator was to be sent
for cleaning before McAnally damaged it and could have been a total loss
for reasons unrelated to McAnally's action. Powell clearly had little
knowledge of the matter and Respondent could easily have produced more
probative evidence of the damage than it did.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
job or, if such job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and to make him whole for any
loss of earnings he may have suffered by reason of his
unlawful discharge by payment to him of a sum of money
equal to that which he normally would have earned as
wages, from the date of his discharge to the date of the
offer of reinstatement, less net earnings, to which shall be
added interest at the rate of 6 percent per annum in
accordance with the formula set forth in F W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
The unfair labor practices committed by Respondent
strike at the very heart of employee rights safeguarded by
the Act. I shall therefore place Respondent under a broad
order to cease and desist from in any manner infringing
upon the rights of employees guaranteed in Section 7 of the
Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
(C.A. 4, 1941).
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER 7
The Respondent, Terminal Services Houston, Inc.,
Houston, Texas, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Interrogating employees about their union activities
in a manner constituting interference with, and restraint
and coercion of, employees in their exercise of Section 7
rights.
(b) Discouraging membership in, or activities on behalf
of, International Longshoremen's Association, Local 1330,
AFL-CIO, or any other labor organization, by discharging
employees or otherwise discriminating in regard to hire or
tenure of employment or any terms or conditions of
employment of its employees.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist a labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Offer Edward McAnally immediate, full, and uncon-
ditional reinstatement to his former job, or, if such job no
longer exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered
by reason of the discrimination against him by payment to
him of a sum of money equal to the amount he normally
would have earned as wages from the date of his discharge
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the date of his reinstatement in the manner set forth in
the section herein entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of the amounts
of backpay due under the terms of this recommended
Order.
(c) Post at its Houston, Texas, place of business copies of
the attached notice marked "Appendix." s8 Copies of said
notice on forms provided by the Regional Director for
Region 23, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint found not to have been sustained by the
evidence be dismissed.
s In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law when we discharged
Edward McAnally because of his activities on behalf of the
Union. The Board has ordered us to post this notice.
WE WILL NOT discharge employees because of their
activities on behalf, or in support, of International
Longshoremen's Association, Local 1330, AFL-CIO,
or any other labor organization.
WE WILL NOT question employees about their union
activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed to them in Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer to reinstate Edward McAnally to his
former job, or, if such job no longer exists, to a
substantially equivalent job, and WE WILL make him
whole by paying him the wages which he lost because
we discharged him unlawfully.
You are free to become and remain, or to refrain from
becoming, members of International Longshoremen's
Association, Local 1330, AFLCIO, or any other labor
organization.
TERMINAL SERVICES
HOUSTON, INC.
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