Texas Consolidated Transportation Co.

National Labor Relations Board - Board Decisions

Dec 12, 1952

101 N.L.R.B. 1017 (N.L.R.B. 1952)

TEXAS CONSOLIDATED TRANSPORTATION COMPANY 1017
ployees presently working and the inconclusiveness of the testimony
concerning the completion date of the Employer 's operations, we
believe that the Act will best be effectuated by the direction of an
election at this time.
[Text of Direction of Election omitted from publication in this
volume.]
6 The Brush Beryllium Co., 96 NLRB 1383, The Girdler Corporation, 96 NLRB 889.
R. C. DELAVAN, R. A. DELAVAN, EDDIE DAUGHETr, AND COLEMAN
DELAVAN, CO-PARTNERS, D/B/A TEXAS CONSOLIDATED TRANSPORTATION
COMPANY and GENERAL DRIVERS AND HELPERS LOCAL UNION No.
657, AFL. Case No. 39-CA-218. December 12, 1952
Decision and Order
On May 15, 1952, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed 2 The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner only insofar as they are consistent with our
findings, conclusions, and order herein set forth.s
I Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Murdock].
Owe reject the Respondent's contention that the hearing did not comply with legal re-
quirements because the Trial Examiner was not a lawyer. For purposes of this proceeding,
it suffices that the Trial Examiner was duly qualified, certified, and designated as a hearing
examiner under applicable law. International Union, United Mine Workers of America,
at at., 83 NLRB 916. We also find that the record does not sustain the Respondent's asser-
tion of bias and prejudice by the Trial Examiner against the Respondent and its counsel.
3 The Trial Examiner properly denied Respondent's motion to dismiss the complaint for
lack of jurisdiction. The record shows that the Respondent is engaged in the business of
transporting aviation gasoline from refineries in Texas to a number of United States Air
Force bases in that State. It delivered to Randolph Field and Kelly Field aviation gasoline
valued in excess of $500,000. Its operations are, therefore, sufficiently identified with the
national defense effort to warrant the assertion of jurisdiction to this case. Johnnie W.
Miller Sandwich Co., 95, NLRB 463.
101 NLRB No. 174.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that the Respondent discharged Mitchell
Lackey because of his activities on behalf of the charging Union.
In defense the Respondent asserts that it released him because of gross
disregard of the company's safety rules; in support of this defense,
it proved that he had a bad record of rule violations , culminating in
an accumulation of offenses which precipitated the discharge. Rely-
ing primarily upon an antiunion statement made by Manager Daughett
2 days after the discharge, and apparently without considering any
but 1 of 10 such violations shown, the Trial Examiner found a violation
of Section 8 (a) (3) of the Act in the discharge. We cannot agree.
Lackey was a truck driver regularly engaged in hauling aviation
gasoline and other highly inflammable petroleum products over long
distances. His record of violations of company safety rules, followed
repeatedly by warnings, long antedated his union activities. Thus,
in March 1948 he was reprimanded in writing for speeding. He was
similarly warned for speeding through an incorporated town 3 months
later. In September 1952 he was reported for speeding and tamper-
ing with the tachograph ( an automotive speed recorder ) on his truck;
this time the Respondent imposed a 5-day suspension as punishment.
In February 1951, about 2 months before his discharge, he was again
reprimanded in writing for speeding and driving beyond the center
road stripe. Lackey admitted that this last violation occurred because
he had dozed off at the wheel. Most of these violations and some
of those listed below were reported to the Respondent by the Markel
Company, which furnishes impersonal road-spotting services to
trucking companies throughout the country.
On about April 30, 1951, Lackey began to urge his fellow drivers
to join the Union, and Daughett expressed displeasure at the idea
to him. It was in the few days following that his extreme disregard
for regulations was reported. On a single trip from May 2 to 4, he
left the Sweetwater terminal without signing out on the dispatch
sheet; failed to stop at a railroad crossing in that town; drove at
excessive speed through the town of Hamlin; again failed to stop at a
railroad crossing; had a friend make a personal long distance call
for him on the company telephone; and, finally, ignored the company's
absolute requirement that he take an 8-hour rest at Sweetwater as a
safety break in a haul of many hours. When Lackey completed this
trip at San Antonio, the terminal manager attempted to reprimand
him for not having rested at Sweetwater, and Lackey temporarily
evaded criticism by falsely saying that no hotel room had been avail-
able. And a few minutes later, when Daughett expressed dissatisfac-
tion because Lackey had used the company telephone for a long dis-
tance call, Lackey said that he resented having safety inspectors
"breathing down his throat."
TEXAS CONSOLIDATED TRANSPORTATION COMPANY 1019
The next day Lackey reported for work several hours late, ap-
parently again without having taken the required rest between long
runs. Late that afternoon, when the truth of what had happened at
the Sweetwater hotel was learned, he was discharged.
Considering the foregoing facts, most of which are not reported in
the Intermediate Report, we are not satisfied that the record contains
sufficient substantive evidence to support the complaint allegation of
discriminatory discharge as to Lackey. Rather, we believe that
Lackey's consistent flouting of vital safety rules was of such gravity
that it forced the Respondent to sever him from its working force,
irrespective of any misgivings General Manager Daughett may have
had about his union activities. It is true that 2 days later, while
arranging with Union Organizer Teague for a consent election,
Daughett said that because Lackey had lied about his union activities,
he, Daughett, had decided to seek a legitimate occasion to discharge
him. However, we cannot say that after Lackey's gross misconduct,
the Respondent would not have discharged him in any event. Cer-
tainly, we may not presume that, absent the misconduct, Daughett
necessarily would have carried out his original intentions. Accord-
ingly, we conclude that the Respondent discharged Lackey because of
his progressively bad record of rule violations, and shall therefore
dismiss the 8 (a) (3) allegation of the complaint'
Like the Trial Examiner, however, we find that Daughett' s interro-
gation about Lackey's union activities on April 30, 1951, his warning
to him on May 4 not to "contact" other employees on the subject of
the Union, and his statement to Teague on May 7 revealing the Re-
spondent's intent to discriminate against union employees, each inter-
fered with, restrained, and coerced the employees in their exercise of
the rights guaranteed by the Act and therefore constituted separate
violations of Section 8 (a) (1) thereof.
Order
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, R. C. Delavan, R. A. Delavan,
Eddie Daughett, and Coleman Delavan, copartners, doing business
as Texas Consolidated Transportation Company, San Antonio, Texas,
their agents, successors, and assigns, shall:
1. Cease and desist from :
Interrogating its employees concerning their union activities,
threatening them with discrimination because of their union activities,
4 Because he believes that Daughett 's admission to Teague by its very words unequivo-
cally revealed an illegal motivation in the discharge , Member Houston would find that the
Respondent violated Section 8 (a) (3), and that Lackey's errors were used as a pretext to
lend colorable Justification to the discharge.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or in any like or related manner interfering with, restraining, or
coercing their employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist General Drivers
and Helpers Local Union No. 657, AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as guaranteed in Section 7 thereof.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its terminals in Texas copies of the notice attached
hereto and marked "Appendix A." 5 Copies of said notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall, after
being duly signed by the, Respondent's representatives, be posted by the
Respondent immediately upon receipt thereof, and be maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within ten (10) days from the date of this Decision and Order,
what steps have been taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminatorily
discharged Mitchell Lackey.
a If this Order is enforced by a United States Court of Appeals , the notice shall be
amended by substituting for the words "Decision and Order" In the caption thereof the
words "A Decree of the United States Court of Appeals , Enforcing an Order."
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees regarding their union
affiliations or activities, threaten them with discrimination be-
cause of their union activities, or enforce any rule prohibiting
them from engaging in reasonable union activities on company
property or elsewhere on their own time.
TEXAS CONSOLIDATED TRANSPORTATION COMPANY 1021
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in their right to self-organization,
to form labor organizations, to join or assist GENERAL DRIVERS AND
HELPERS LOCAL UNION No. 657, AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to the hire or tenure of employment or any term
or condition of employment because of membership in or activity on
behalf of any such organization.
TEXAS CONSOLIDATED TRANSPORTATION COMPANY,
Employer.
Dated-------------------- By----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board, and an answer having been filed by the above-named
Company, herein called the Respondent, a hearing, involving allegations of vio-
lation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act, was held in San Antonio, Texas,
on April 14, 15, and 16, 1952, before the undersigned Trial Examiner.
In substance the complaint alleges and the answer denies that the Respondent :
(1) On May 5, 1951, discriminatorily discharged employee Mitchell Lackey be-
cause of his activities on behalf of the above-named Union, herein called the
Union ; (2) since about April 30, 1951, has threatened, warned, and interrogated
its employees regarding union activities ; and (3) by such conduct has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
by the Act.
At the hearing all parties were represented, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence perti-
nent to the issues, to argue orally upon the record, and to file briefs and pro-
posed findings and conclusions. Argument was waived ; a brief from the Re-
spondent has been received and considered.
A motion by the Respondent made at the close of the hearing to dismiss the
complaint, upon which ruling was reserved, is disposed of by the findings, con-
clusions, and recommendations below.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a copartnership having its principal office and place of busi-
ness in San Antonio, Texas. It is engaged in the business of transporting petro-
leum and petroleum products within the State of Texas.
During 1951 it purchased equipment valued at more than $75,000, of which more
than 50 percent originated and was shipped into Texas from points outside that
State. During the same period it transported, within the State of Texas, petro-
leum and petroleum products valued at more than $750,000, about 95 percent of
which was transported by the Respondent to and from operations of oil compa-
nies engaged in interstate commerce. It transported to Army Air Force bases,
in Texas, aviation gasoline in that period valued at more than $500,000.
Contrary to the contention of the Respondent, it is found that it is engaged in
commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers Local Union No. 657, AFL, is a labor organization
admitting to membership employees of the Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Events
Mitchell Lackey went to work for the Respondent as a truck driver in 1943 and
was employed in that capacity, with the exception of a period in 1944-45 when he
left of his own volition, until May 5, 1951, when he was discharged. He has not
been reinstated.
A summary of events surrounding the discharge follows.
During the last few days of April 1951, Lackey began helping W. W. Teague,
business manager of the Union, to organize the Respondent's truck drivers. On
April 30 he was called into the office by General Manager Eddie Daughett, who
told him that he had his record before him, which was "pretty good," but he had
beard he was "starting that Union business again." Lackey evaded the accusa-
tion by asking, "Who started that stuff?" Daughett declared that no union was
needed and that he did not want someone telling him how to run his business.
He further accused Lackey of being "mad" because disappointed in not being pro-
moted to dispatcher sometime before then, and told him that if he was not satis-
fied he could find another job.
Lackey failed to heed Daughett's clearly implied warning, and with Teague on
May 1 visited a number of his fellow employees at their homes.
On May 2 Lackey started a run to Borger, Texas, and returned to San An-
tonio during the afternoon of May 4, a distance of about 1,100 miles. On this
run, and according to a rule promulgated by bulletin on March 16, 1951,
drivers were required to rest 8 hours at Childress, on the way to Borger, and
to rest 8 hours at Sweetwater on the return trip to San Antonio. Lackey took
his rest at Childress. At Borger he received a telephone call that his baby
was sick in San Antonio, and apparently decided then, or sometime later, that
he would not take the required 8 hours rest at Sweetwater. (The Respondent's
drivers are not paid wages based upon hours worked, or salaries, but receive
a percentage of the revenue paid to the Company on each haul.) Lackey reached
TEXAS CONSOLIDATED TRANSPORTATION COMPANY 1023
Sweetwater with another driver and they reported in at the terminal. Leaving
their trucks at the terminal they were driven by another employee to the local
hotel where the Respondent had made arrangements for a room, or rooms, to be
held in reserve for its drivers. A double room was available. Lackey and his
fellow driver would not take the double room. The clerk offered to arrange
for another room at another hotel. They declined , and resumed their trip to
San Antonio. Not far out of Sweetwater, however, they pulled off the road
and slept for 3 or 4 hours.
When they came into the San Antonio terminal Lackey was told by Nelson
Wolff, the terminal manager, that he had been informed by the Sweetwater
manager that the two drivers had not taken their rest on the way in from
Borger. Lackey said there were no rooms available. Wolff replied that he
would check into the matter. Daughett, who in the meantime had been waiting
around the terminal, then called Lackey aside, and accused him of calling a
union representative over the company telephone at Sweetwater. Lackey denied
the accusation, but said he guessed that Daughett by then knew he was working
for the Union. Daughett replied, "You're damn right I do," but went on to
say that it would do him no good because the men did not want the Union. He
told Lackey that he did not want him going around "disturbing" the other
drivers when they were resting, or "contacting" them on his property. He
further said that they could put up a picket line and walk their legs off, but
he would not sign a contract with the Union.
The following afternoon Wolff called Lackey into the office and discharged
him, showing him the following telegram addressed to Daughett :
THERE WAS 1 DOUBLE ROOM AVAILABLE AND HOTEL MANAGER
CALLED ANOTHER HOTEL AND OFFERED TO SEND THEM TO THIS
HOTEL BUT DRIVERS WOULD NOT ACCEPT
The wire was from the Sweetwater terminal manager. Lackey asked him
if that was the reason he was being fired. Wolff replied in the affirmative and
upon Lackey's request gave him the wire.
Lackey reported his discharge to Teague. On the following Monday Teague
asked for and obtained an interview with Daughett. In substance, Daughett
told the union representative that after Lackey had denied taking part in the
union organization on April 30 he had found out that he was the leader, that
he resented Lackey's having lied about his union activity, and that he had
instructed Wolff to "find something legitimate" to discharge Lackey for.
Daughett declined to reinstate Lackey.'
B. Conclusions
It is General Counsel's contention that Lackey was discriminatorily dismissed
because of his union activities. The Respondent not only denies this contention
but claims that he was discharged for reasonable and legitimate cause, in that
he failed to take his 8-hours rest at Sweetwater and that this violation of a
rule, when considered in the light of his past record, warranted disciplinary
action.
A good deal of testimony was adduced regarding Lackey's record of rule
violations, extending backward over a period of years. It appears that insur-
1 The foregoing findings rest upon the credible portions of the testimony of individuals
involved, certain documents in evidence, the inherent probabilities in the situation as de-
pleted by undisputed evidence, and the Trial Examiner's observation of the witnesses,
both while on the stand and while listening to others testify.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance spotters, as well as the Company's own safety' engineers, frequently follow
the Respondent's truck drivers, and submit reports on such trailing regarding
speed, failure to stop at railroad crossings, etc. Lackey did not have a clear
record. There is no doubt that the employee, long before May 5, had given
the Respondent sufficient cause to discharge him.
The undisputed fact remains, however, that while such cause had existed, no
effect followed until after he became active on behalf of the Union. There is no
credible evidence of any serious reports on Lackey from March until May 2,
which was after Lackey had been warned regarding union activities on April 30.
The testimony of Daughett and Wolff as to the dismissal is so confused and
contradictory as to be unreliable. For example, Wolff claimed that Daughett
had nothing to do with the discharge, and that he, himself, did not decide to
take action until after receiving the above-quoted wire from Morse, at which
time he investigated Lackey's record and found it so bad that be decided to
dismiss him. Daughett, on the other hand, while explaining why he had called
Lackey for the April 30 interview, in effect said that he did so when Wolff asked
him to because of his unsatisfactory driving. If Daughett's testimony is to be
believed, that on April 29 he and Wolff discussed the employee as "one of the
marginal drivers," then it follows that Wolff was well aware of Lackey's record
before the morning of his discharge. Daughett denied knowing anything about
the discharge until Monday, May 7. Not only is this denial incredible in the face
of other portions of his testimony, but the wire from Morse, received the morn-
ing of May 5, was addressed to him, and not to Wolff, who claimed he was the
one who sought the information about the hotel rooms.
The Trial Examiner is convinced that Daughett's candid admission to Teague
revealed the true motive behind the discharge. Daughett had discovered, after
his interview with Lackey on April 30, that the employee actually was a leader
in the union activities, and told Wolff to find a "legitimate" reason to get rid
of him. On Lackey's next trip out, May 2, he was followed by an insurance
inspector, and special reports were made by the Sweetwater terminal manager
both to a company inspector and to Wolff. There is no evidence that ever before
had so much concentrated attention been paid to Lackey's driving. It is reason-
able to conclude, and the Trial Examiner finds, that the initial motive was
resentment against Lackey's union activity, that discharge was then decided
upon and held in abeyance only until the employee was observed violating one
or more rules to provide an apparently "legitimate" reason'
In summary, the Trial Examiner is convinced by the preponderance of cred-
ible evidence that Lackey was discharged because of his leadership in union
activities, and that thereby, and by Daughett's questioning of him on April 30
and his instructions on May 4 not to "contact" other employees, the Respondent
interfered with, restrained, and coerced employees in the exercise of rights guar-
anteed by the Act.
2 The courts have had occasion to consider similar situations. In Edward a. Budd
Manufacturing Company, 138 F. 2d 86, the Court of Appeals for the Third Circuit said :
"The case of . . . is extraordinary. If ever a workman deserved summary discharge it
was he . . . But it is certainly too great a strain on our credulity to assert, as does the
petitioner, that . . . was discharged for an accumulation of offenses." And in The Balti-
more Transit Company, et al., 140 F. 2d 51, the Court of Appeals for the Fourth Circuit
said, in affirming the Board's findings of illegal discharges, that "There is evidence that
upon their union activity becoming known they were subjected to unusual surveillance by
supervisory employees and numerous complaints of violations of rules were made against
them "
TEXAS CONSOLIDATED TRANSPORTATION COMPANY 1025
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action to effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the
hire and tenure of employment of Mitchell Lackey. It will be recommended
that the Respondent offer to him immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and that he be made 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 that which he normally would have earned as wages
from the date of discrimination to the date of offer of reinstatement, less his
net earnings during such period.' The back pay shall be computed in the manner
established by the Board, and the Respondent shall make available to the Board
payroll and other records to facilitate the checking of the amount due.`
The character and scope of the unfair labor practices engaged in indicate an
intent to defeat self-organization of employees. It will therefore be recom-
mended that the Respondent cease and desist from in any manner interfering
with, restraining, or coercing its employees in the exercise of rights guaranteed
by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. General Drivers and Helpers, Local Union No. 657, AFL, is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Mitchell Lackey, thereby discouraging membership in the Union, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
8 Croeaett Lumber Company, 8 NLRB 440.
A F. W. Woolworth Company, 90 NLRB 289