Tompkins Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1963

142 N.L.R.B. 1 (N.L.R.B. 1963)

Tompkins Motor Lines , Inc. and A. J. Spain, Jr. Cases Nos.
26-CA-1317 and 26-CA-1301. April 16, 1963
DECISION AND ORDER
On November 5, 1962, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, 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 Inter
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief, and the General Counsel
filed a brief in support of the Intermediate Report.
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 [Members Leedom, Fanning, and Brown].
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 Inter-
mediate Report and the entire record in the case, including the excep-
tions and briefs,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner to the extent they are con-
sistent herewith.
As more fully set forth in the Intermediate Report, A. J. Spain, Jr.,
was a casual or extra employee who had worked for the Respondent
for a substantial amount of time loading and unloading cargo and
doing intracity truckdriving in connection with Respondent's motor
carrier operations. On November 11, 1961, Spain filed a grievance
against the Respondent under the then current contract between Re-
spondent and a Teamsters Local, which grievance was rejected by the
grievance committee on January 16, 1962.' Respondent stopped call-
ing Spain for employment from November 28, 1961, to and including
January 23. Beginning January 24, Respondent again utilized
Spain's services for both dock work and driving, but on April 10, it
"grounded" him-i.e., continued to use him for dock work but not for
driving-allegedly because he had an accident on February 22, while
driving Respondent's truck.
On February 1 Spain filed charges in Case No. 26-CA-1217 alleging
that the Respondent had violated Section 8 (a) (1) of the Act by deny-
i Because in our opinion the record , exceptions , and briefs adequately set forth the issues
and positions of the parties, the Respondent 's request for oral argument is denied.
2 Unless otherwise specified , all relevant dates were in 19G2.
142 NLRB No. 2. fl
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing him employment between November 28, 1961, and January 23, be-
cause he had filed the grievance. On April 13, the General Counsel
issued a complaint in that case alleging the violations as specified in
the charge. On May 21 the parties entered into a settlement agree-
ment under which the Respondent, although not admitting the com-
mission of the alleged unfair labor practices, agreed that it would
not discriminate in the employment of casual employees because of
the exercise of any statutory rights and would "not vary, alter or
modify its past practices with regard to the employment of casual
employees." 3 At the meeting at which this settlement agreement was
reached, and immediately before it was signed, Spain asserted that
Respondent had been refusing to hire him for driving since April 10
for unlawful reasons. It is undenied that the parties at that time
agreed that should Spain feel he was being unlawfully discriminated
against by the Respondent's failure to restore him to driving, this
would have to be the subject of a separate charge against Respondent.
On June 11 Spain filed the charge in Case No. 26-CA-1301, alleg-
ing violation of Section 8(a) (1) and (4) in that the Respondent had
"grounded" him because he had filed the grievance and the charge
in Case No. 26-CA-1217. The Regional Director thereafter set aside
the settlement agreement and on July 17 issued the consolidated com-
plaint which is now before us.
The Trial Examiner rejected the Respondent's defense that it had
"grounded" Spain for cause; concluded that he could consider the
Respondent's presettlement conduct in determining its motive; and
found, based on evidence of such presettlement conduct, that the
Respondent's refusal on and after April 10 to employ Spain for
driving was unlawfully motivated and a violation of the Act as alleged
in the complaint. He accordingly affirmed the Regional Director's
order setting aside the settlement agreement in Case No. 26-CA-1217
and found further that the Respondent had violated Section 8(a) (1)
by refusing to employ Spain from November 28, 1961, to January 23,
1962. The Respondent excepts to these findings, contending that
its failure to assign Spain to truckdriving was not a resumption or
continuation of the practices which were the subject of the settlement
agreement, and, hence, the setting aside of the agreement was im-
proper. Respondent argues further that the Trial Examiner was
precluded from considering the presettlement conduct in determining
whether a violation occurred as alleged in the second charge, in view
of the rule set forth in Larrance Tank Corporation.4 We find merit
3 The complaint of April 13 was withdrawn by the Regional Director.
4 94 NLRB 352 , where the Board, is dismissing the case because "bad faith " in bargain-
ing could be established only by going behind a settlement agreement which disposed of
previously filed charges of unlawful refusal to bargain , said, at p. 353:
It is the Board 's established practice not to consider as evidence of unfair labor
practices conduct of the Respondent antedating a settlement agreement , unless the
TOMPKINS MOTOR LINES, INC. 3
in the Respondent's exceptions insofar as they relate to the setting
aside of the settlement agreement and the findings of unfair labor
practices in Case No. 26-CA-1217. However, under the circumstances
of this case and for the reasons set forth below, we reject Respondent's
position with respect to reliance on the presettlement evidence in deter-
mining the merits of the allegations in Case No. 26-CA-1301.
1. It is well established that a settlement agreement may be set
aside where independent evidence of subsequent or continuing unfair
labor practices reveal a breach of the agreement. However, it is clear
in the instant case that at the very moment of executing the settlement
agreement the parties were aware of Spain's claim that he was being
denied driving work for discriminatory reasons. It is also clear that
at that time it was understood by all the parties that the Respondent
was not agreeing to restore Spain to driving, that this claim would
have to be the subject of a separate charge, and thus, in effect, that
the question of the validity of the "grounding" was reserved for later
disposition if a new charge were filed. There is no contention or
evidence that the Respondent engaged in any improper activity sub-
sequent to entering the settlement agreement other than the very
matter which was reserved at the time of the signing.' Under these
circumstances, we are unable to agree with the General Counsel that
the evidence shows that the Respondent entered the settlement agree-
ment in bad faith or that the agreement has been breached. On the
contrary, there is no indication that there has not been good-faith
compliance with the agreement to the extent it disposed of the existing
issues which were the subject of the charge in Case No. 26-CA-1217.
Accordingly, we shall dismiss the allegations of the complaint insofar
as they are based on the charge in Case No. 26-CA-1217 and shall
reinstate the settlement agreement in that case.
2. With respect to the propriety of relying on the Respondent's
presettlement conduct to determine whether or not a violation has
occurred as alleged in Case No. 26-CA-1301, we agree with the Trial
Examiner that the Larrance Tank cases is inapplicable. However,
in so finding, we rely solely on the fact that the parties clearly exempted
from the settlement and reserved for future determination the issue
concerning the "grounding" of Spain. In so doing, they implicitly
agreed that the consideration of the prior evidence was also reserved.
Respondent has failed to comply with the settlement agreement or has engaged in
independent unfair labor practices since the settlement . Moreover, in determining
whether such independent unfair labor practices have occurred after the settlement,
the Board will not appraise a Respondent ' s post settlement conduct in the light of its
conduct prior to the settlement.
5 While it would have been better practice for the General Counsel to have incorporated
within the one proceeding all known allegations of violations of the Act, this was not
done, and we find it appropriate in the instant case to honor the understanding of the
parties.
e Supra.
712-548-64-vol. 142-2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For, to construe the statements at that time as an understanding that
Spain's claim of existing discrimination could be raised as a separate
matter but that none of the existing relevant evidence could be con-
sidered is to render the reservation illusory and meaningless.? Ac-
cordingly, the Trial Examiner correctly held that it was proper to
consider evidence predating the settlement agreement in this case to
establish the Respondent's motive.
Consideration of that evidence, which is fully set forth in the Inter-
mediate Report, reveals that the Trial Examiner's conclusions that the
Respondent violated Section 8(a) (1) and (4) of the Act are fully
justified. We further agree that the Respondent has not established
its claim that it refused to employ Spain for intracity truckdriving
because of the accident in February. We therefore find that insofar
as Respondent "grounded" Spain on and after April 10, 1962, because
he had filed the grievance, Respondent violated Section 8 (a) (1) of the
Act, and insofar as it "grounded" him because he had filed the charge
with the Board in Case No. 26-CA-1217 Respondent violated Section
8 (a) (4) of the Act.'
3. Having found in agreement with the Trial Examiner, that the
Respondent discriminated in regard to Spain's employment as a
casual or extra truckdriver employee, we also agree that a remedial
order substantially as recommended by the Trial Examiner is ap-
propriate. However, we find merit in Respondent's objection that
the Recommended Order and Appendix may be ambiguous in that
greater employment opportunities may be created for Spain than for
other casuals. Further, any backpay due Spain shall be limited to the
period beginning April 10, 1962 .' Accordingly, we shall modify the
Recommended Order in these respects.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Tompkins Mo-
tor Lines, Inc., its officers, agents, successors, and assigns shall :
1. Cease and, desist from :
(a) Refusing or failing to employ, discharging, or in any other
manner discriminating against its employees because they have filed a
7 The instant case is thus distinguishable from Larrance Tank and similar cases, none
of which were concerned with an agreement to leave a known issue for later disposition.
9 Because the statements relied on as evidence of the Respondent 's unlawful motive were
the subject of the settlement in Case No. 26-CA-1217, we rely on them only as background
evidence and make no findings of independent unfair labor practices based thereon. We
note that all of these statements except Horlacher's comments to Spain on November 13,
1961, occurred within the 6 months preceding the filing of the charge in Case No.
26-CA-1301.
6 Member Leedom, for the reasons set forth in his dissenting opinion in Isis Plumbing &
Heating Co., 138 NLRB 716, would not require the payment of interest on the backpay
award provided for herein.
TOMPKINS MOTOR LINES, INC. 5
grievance with respect to conditions or terms of employment, or filed
a charge under the Act.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed by Section
7 of the Act.
2. Take the following affirmative action necessary to effectuate the
policies of the Act :
(a) When work as a truckdriver for casual or extra employees is
available at its Nashville terminal, offer employment to A. J. Spain,
Jr., on a nondiscriminatory basis.
(b) Make A. J. Spain, Jr., whole for any loss of pay he may have
suffered because of the discrimination against him for the period and
in the manner set forth in the "Remedy" section of the Intermediate
Report as modified herein.
(c) Preserve,and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay and right
of reinstatement due under the terms of this Order.
(d) Post at its terminal at Nashville, Tennessee, copies of the at-
tached notice marked "Appendix." 10 Copies of said notice, to be fur-
nished by the Regional Director for the Twenty-sixth Region, shall,
after being duly signed by an authorized representative of Respondent,
be posted by it immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director for the Twenty-sixth Region,
in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges unfair labor practices based on the
charge in Case No. 26-CA-1217, and that the settlement agreement
in Case No. 26-CA-1217, be, and it hereby is, reinstated.
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
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, as amended, we hereby notify you that :
G DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to fail to employ , discharge , or in any other
manner discriminate . against our employees because they have
filed a grievance with respect to conditions or terms of employ-
ment, or have filed a charge under the National Labor Relations
Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guar-
anteed by Section 7 of the aforementioned Act.
WE WILL, when work as a truckdriver for casual or extra em-
ployees is available at our Nashville terminal , offer employment
to A. J. Spain, Jr., on a nondiscriminatory basis and make him
whole for any loss he may have suffered ,as a result of the dis-
crimination against him.
ToniPKINS MOTOR LINES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act, and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional
Office, 714 Falls Building, 22 North Front Street, Memphis, Tennes-
see, Telephone No. Jackson 7-5461, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The consolidated complaint herein , issued by the General Counsel of the National
Labor Relations Board on July 27, 1962, alleges that Respondent Tompkins Motor
Lines, Inc., has engaged in unfair labor practices proscribed by Section 8(a) (1)
and (4 ) of the National Labor Relations Act as amended (61 Stat. 136; 73 Stat. 519),
hereinafter called the Act.'
In substance , 'that complaint alleges that on or about November 13, 1961, and
March 21 , 1962, Respondent . threatened one of its employees with discharge or
other reprisal, and from November 28, 1961, to January 23, 1962, failed and refused
to give A . J. Spain , Jr., any employment, and that all of said conduct was occasioned
because Spain filed a grievance with respect to conditions of employment. It is
further alleged that on May 21, 1962, in disposition of the matters referred to
immediately above, Respondent and Spain entered into and executed a settlement
1 This complaint was based on a charge and an amended charge in Case No . 26-CA-1217,
filed by A . J. Spain, Jr., and served on Respondent on or about February 1, 1962, and on
February 7, 1962, respectively , and on a charge and amended charge in Case No . 26-CA-
1301 filed by Spain and served on Respondent on or about June 11 and July 26, 1962,
respectively.
TOMPKINS MOTOR LINES, INC. 7
agreement in Case No. 26-CA-1217, which agreement was approved by the Board's
Regional Director on May 22, 1962. The consolidated complaint, however, further
alleges that on and ever since April 10, 1962, Respondent has refused to give em-
ployment to Spain as a truckdriver because he filed the grievance aforementioned and
because he filed the charges against Respondent in Case No. 26-CA-1217. It is
further alleged that by Respondent's refusal to employ Spain as a truckdriver,
"Respondent failed to enter into and execute the [aforesaid ] settlement agreement in
good faith" or to comply therewith, and that by reason thereof, the Regional
Director, on July 17, 1962, set aside the aforementioned settlement agreement. Re-
spondent, by its answer, denied the commission of any unfair labor practice and
denied that it had failed to comply with the settlement agreement. Respondent
admitted, however, that it had refused to employ Spain as a truckdriver since on or
about April 10, 1962, but with reference thereto pleaded that it had "good, sufficient,
and proper reasons for not employing [him] as a truckdriver."
Pursuant to due notice, a hearing upon said consolidated complaint, and Respond-
ent's answer thereto, was held before Trial Examiner David London at Nashville,
Tennessee, on August 27 and 28, 1962. The General Counsel and Respondent were
represented by counsel and were afforded full opportunity to be heard, to introduce
relevant and competent evidence , to present oral argument , and to file briefs.2
Since the close of the hearing, briefs have been received from the General Counsel
and Respondent and have been duly considered. Motions, on which ruling was
reserved during the hearing are disposed of in accordance with the findings and
conclusions of law that follow.
Upon consideration of the entire record, the briefs of the parties, and upon my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Tompkins Motor Lines, Inc., is a Tennessee corporation with its
principal office and place of business at Atlanta, Georgia, and a terminal in Nashville,
Tennessee, at which locations it is engaged in the transportation of goods as a
motor carrier. During the 12 months preceding the filing of the consolidated com-
plaint herein , Respondent derived gross revenue in excess of $50,000 from the trans-
portation of goods in interstate commerce . During the same period , Respondent
derived gross revenue in excess of $50,000 from services performed for employers
engaged in interstate commerce . Respondent admits, and I find , that it has been
at all times material herein an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union No. 327, affili-
ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein referred to as the Union, is and has been at all times
material herein , a labor organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The sequence of events
A. J. Spain, Jr., the Charging Party herein, was employed by Respondent at its
Nashville, Tennessee, terminal in June 1959, as a casual or extra employee. In that
status, whenever his services were required, he served as a city pickup and delivery
driver, and/or as a dockworker. As a casual employee, Spain was engaged only
when there was more work at that terminal than could be handled by eight regular
employees. Under its contract with the Union, however, when casual employees
worked a specified number of hours during a 30-day period, Respondent was required
to "put on an additional regular employee."
On November 11, 1961, Spain filed a grievance with the Union claiming that,
having worked the requisite number of hours as a casual during the preceding month,
Respondent was required to put him on as an additional regular employee. The
grievance was heard by a Tri-State Grievance Committee on November 28, 1961,
and January 16, 1962, at which latter time the grievance was denied.
sA posthearing stipulation concerning General Counsel 's Exhibits Nos . 4(a) to 4(i) In-
elusive is hereby approved and, together with said exhibits , are hereby made a part of the
record herein.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 1, 1962, Spain filed a charge against Respondent , Case No. 26-
CA-1217, which charge was amended on February 7, 1962, alleging discrimination
in not working him after November 28, 1961, because he had filed the aforementioned
grievance against Respondent . The complaint based on the charge in that case,
issued on April 13, 1962, alleged that in violation of Section 8(a)(1) of the Act,
Respondent had threatened "its employee" with discharge or other reprisal because he
filed a grievance with respect to conditions of employment , and that from on or about
November 28, 1961, to on or about January 23, 1962, Respondent had failed and
refused to give Spain any employment, i.e., neither as a driver nor as a dockworker,
because he filed the grievance described above.
On May 21, 1962 , the date on which the hearing on said complaint was to com-
mence, Respondent and Spain entered into a settlement agreement by the terms of
which Respondent agreed, inter alia, to make Spain whole by paying him the sum
of $325. It was further agreed that Respondent would "not discriminate with regard
to the employment of casual employees because of the exercise of any rights guar-
anteed by [ the Act], and-[would] not vary , alter, or modify its past practice with
regard to the employment of casual employees ." The settlement was approved by
the Regional Director on May 22, 1962, and Spain was paid the $325.
In the meantime , on February 22, 1962, Spain , while driving a truck for Respond-
ent, was involved in an accident with one Clifford , concerning which more will be
said later, and for which, Respondent claims , Spain was permanently "grounded"
as a truckdriver on the following April 10. Respondent and Spain were sued for
damages in a local court by Clifford charging that Spain 's negligence had caused
that accident and damage to Clifford 's car. The trial of that case took place on
May 2, 1962 , and was dismissed at the close of the plaintiff 's case.
On June 11 , 1962 , Spain filed the charge in Case No. 26-CA-1301 , amended on
July 26, 1962, charging that on and since April 10, 1962, when he was grounded,
Respondent had discriminated against him because he had filed the grievance afore-
mentioned and the charge in Case No . 26-CA-1217 . On July 17, 1962 , the Board's
Regional Director advised Respondent that because it appeared to him that Respond-
ent had not complied with the provisions of the settlement agreement in Case No.
26-CA-1217 aforementioned , he was setting that agreement aside and issuing the
consolidated complaint , summarized in "Statement of the Case ," supra.
1. The Issues
Three issues are posed by the pleadings herein: (1) Did Respondent threaten
Spain with discharge or other reprisals because he filed a grievance with respect to
conditions of employment? ( 2) did Respondent discriminate against Spain by deny-
ing him work either as a driver or as a dockworker from November 28, 1961, to
January 24 , 1962 , because he had filed a grievance against Respondent ? and (3) did
Respondent discriminate against Spain by grounding him on April 10, 1962, and not
allowing him to drive a truck thereafter because he filed a grievance and a charge
against Respondent?
It is the contention of Respondent that consideration of the first two issues is fore-
closed by the settlement agreement approved by the Regional Director on May 22,
1962, and that the latter's set -aside order of July 17, 1962 , was an arbitrary and
illegal act. With respect to the third issue , Respondent 's contention is that it
grounded Spain , not for the reasons alleged in the consolidated complaint , but be-
cause it had "good, sufficient , and proper reasons for not employing [him] as a
truckdriver."
Contrary to Respondent 's contention with respect to the first two issues above men-
tioned it is well settled that independent or continuing violations of the Act constitute
a breach of a settlement agreement and justify the Regional Director in setting aside
that agreement and proceeding with the consolidated complaint which covers unlawful
conduct occurring both before and after the execution of the settlement agreement.
Wallace Corporation v. N.L.R .B., 323 U.S. 248, 253-255; International Brotherhood
of Teamsters , etc., Local 554 (Clark Bros . Transfer Co . and Coffey 's Transfer Co.,
AFL-CIO ) v. N.L.R .B., 262 F. 2d 456 , 459-461 ( C.A.D.C .), enfd. 116 NLRB 1891;
Bowmar Instrument Corporation , 124 NLRB 1. However , findings of unfair labor
practices pertaining to presettlement conduct can properly be made only where there
is evidence of substantial unlawful conduct following the settlement , "or unless the
alleged unfair labor practices have been continued in such a way that it seems neces-
sary to the Board to go behind its agreement in order to effectuate the policies of
the Act." Wooster Brass Company, 80 NLRB 1633. Our first critical problem is,
therefore , to determine whether or not Respondent violated the Act by continuing
to keep Spain grounded on and after April 10, 1962, for the reasons alleged in the
TOMPKINS MOTOR LINES, INC. 9
consolidated complaint . Unless that question is answered in the affirmative, that
complaint must be dismissed.
Before considering that issue, however , note should be taken of Respondent's con-
tention that because it continued , after April 10, 1962, to give Spain casual em-
ployment as a dockworker, and because the hourly rate of pay of casual drivers and
casual dockworkers was the same , Spain has suffered no detriment or discrimination.
The record , however , negates that contention , and establishes that at least two
casual drivers, Thomas A. Ford, Jr., and James C. Townsend, worked more hours
and earned substantially more than Spain did as a dockworker during the 2-month
period after he was grounded, from April 10 to June 10, 1962, viz:
Ford----------------------------------------- $930.76 32 days
Townsend------------------------------------- 602.45 21 days
Spain----------------------------------------- 463.80 20 days
In light of that record, it can hardly be said, as Respondent does in its brief, that
work on the dock was more desirable than driving a truck, and that Respondent
"favored, rather than discriminated against Spain," when it grounded him.
2. The grounding of Spain
Turning now to the reasons assigned by Respondent for denying Spain work as a
driver on and after April 10, 1962, the record establishes that about 5 p.m. on Feb-
ruary 22, 1962, he was driving one of Respondent's trucks north on a three-lane
street in downtown Nashville. He was driving in the center lane, having been directed
there earlier by a patrolman. His speed was approximately 5 to 10 miles an hour,
as he was then traveling , in low gear , up a "real steep grade , one of the steepest hills
in downtown Nashville." As he approached the point where the accident later oc-
curred, he noticed a car, other than the Clifford automobile, stalled in the right lane
near the exit from a parking lot. He therefore steered his truck slightly to the left,
so that the left front wheel of his truck was in the southbound lane "about the width
of a truck tire across the line." If he had gone over further into the southbound
lane, he "would have hit the oncoming traffic."
At that moment, Clifford, driving his car in a northerly direction in the curb lane
on Spain 's right, swerved out to his left in order to pass and avoid striking the stalled
car, thereby striking the front bumper and the right front fender of Spain's truck. The
police were notified and an officer , who came to the scene of the accident , conducted
an investigation and filed an accident report showing an estimated damage of $20
to the truck. The damage to Clifford's automobile was estimated by his attorney to
be $174, but no claim for personal injury was made.
As previously indicated, the civil suit brought by Clifford to recover damages
from Spain and Respondent arising from this accident was summarily dismissed by
the court at the close of the plaintiff's case. Though Respondent at the hearing,
characterized Spain's driving at the time of the accident as grossly negligent, a "bully-
ing and a wanton sort of driving, bullying his way through," and assigned this as the
principal reason for grounding him, he was allowed to continue as a driver until
April10, 1962.
The only other accident that befell Spain during the course of his employment by
Respondent occurred in Respondent's terminal yard in August 1959 . On that oc-
casion, Spain , in following directions of a fellow employee , manipulated his tractor
in such a manner that he "cracked the dolly wheel and the window on the truck."
He received no reprimand for that incident.
It is upon these two incidents that Respondent relies as justification for denying
Spain employment as a truckdriver on and after April 10, 1962. It contends how-
ever, that its conduct with reference thereto should be appraised in light of the
report and order by a Hearing Examiner of the Interstate Commerce Commission
issued on December 23, 1960, in connection with Respondent's application for au-
thority to expand its service. That report recommended grant of the requested
authority but cautioned against repetition of previous violations of ICC regulations
by Respondent, practically all of which involved recordkeeping requirements and
the use of faulty equipment. Having given that report and its claimed impact upon
Respondent full consideration , I nevertheless find that Spain's alleged negligent driv-
ing was not the true reason for grounding him on April 10.
S. A. Harrison, Respondent's vice president with headquarters in Atlanta, and the
man who made the decision to ground Spain, testified that the only persons at the
Nashville terminal with whom he talked concerning that decision were E. W.
Horlacher and W. E. Lafayette, respectively, manager and assistant manager at that
terminal . He did not question or discuss the matter with Spain. Harrison had
turned over to Crawford & Co., an insurance adjustment and investigation agency,
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the claim of Clifford arising out of the accident on February 22. On March 31, 1962,
10 days before Spain was grounded, that agency wrote Harrison advising him that
the photostatic copy of the Nashville city police report concerning the accident, which
it enclosed in that letter, indicated that it was Clifford who sideswiped Spain's truck.
Indeed, that police report, amplified by a diagram, specifically reports and indicates
that Clifford "in trying to get around the [stalled car] came over into the lane of
traffic that [Spain] was traveling in and sideswiped Spain's truck." In a sworn
statement given to a Board agent on July 2, 1962, Harrison stated that he "decided
that (Respondent] would not continue to use Spain as a driver ... after he received
the police report and the Crawford report . [in which the latter] stated that the
chances of [Respondent] having no liability for this accident were good."
In light of all the foregoing, I find that the accident of February 22 was not caused
by Spain's negligence, that Respondent had no reasonable ground to believe that
it was so caused, and that it seized on that incident as a pretext to deprive Spain
of employment as a driver.
3. Proof of Motive
In that state of the record, search must be made elsewhere to ascertain Respond-
ent's true motive for grounding Spain and keeping him grounded. In making that
search, however, Respondent, relying on Larrance Tank Corporation, 94 NLRB 352,
contends that by reason of the broad rule laid down in that case I am not permitted
to "appraise the Respondent's post-settlement conduct in the light of its conduct prior
to the settlement." Though this broad rule has merit, and was undoubtedly pro-
mulgated to give meaning to the Board's settlement procedures, like all general rules,
it has its exceptions. And, because it is a broad rule, it should not be followed blindly
by a mechanical application of rigid a priori rules. Instead, caution should be
exercised that it is invoked only to induce proper administration of the Act and
not to frustrate its underlying purposes.
The rule certainly cannot be literally applied. Thus, let it be assumed that a
charge and complaint alleging that an employer threatened an employee with dis-
charge for joining a union and subsequently discharged him, and that this case is
settled by an agreement to reinstate and make him whole. Let it further be assumed
that without any further intervening illegal threat, or other illegal conduct by the
employer, the same employee is discharged within a day or two thereafter. If
another charge and complaint are then filed charging that the second discharge was
for union activities, could it be successfully contended that the General Counsel is
estopped or precluded from establishing and relying on the employer's earlier threat
to discharge that same employee in order to establish, in the only possible way, a
motive for the second discharge. It seems to me that to pose the question, is to
answer it.3 A negative answer thereto would result in a dismissal of the second
proceeding and would give every employer who agreed to such a prior settlement
carte blanche to violate the Act, and absolution from liability thereunder.
The rule in Larrance Tank is a mere procedural rule like other procedural rules
invoked by the Board. The situation here is analogous to those situations where
evidence of events occurring more than 6 months before the filing of a charge is
relevant and necessary to give meaning to a consideration of the conduct within
the 6-month period specified in Section 10(b) of the Act.4
There is, however, another reason why the Larrance Tank case is distinguishable
and has no application here. There, the charges in the first proceeding, as well as
those in the second, were both based on violations of Section 8(a)(5) of the Act.
Here, however, the case which was settled, Case No. 26-CA-1217, involved only
allegations of threats of discharge and refusal to give any employment to Spain
because he had filed a grievance, conduct which is violative only of Section 8(a) (1)
of the Act. The consolidated complaint herein, however, charges Respondent addi-
tionally with violations of Section 8(a) (4) of the Act by the refusal to give him
employment as a truckdriver because he had filed the charge in the earlier case.
The charge in Case No. 26-CA-1301 had not yet been filed at the time of the
settlement, and was, of course, never settled. Indeed, it was specifically understood
and agreed by all.parties on May 22, at the very moment that the earlier case was
settled, that Spain's claim that be had been denied employment as a truckdriver
would be the subject of a subsequent charge.
3 That is not to say, however, that the employer would be deprived of an opportunity to
defeat the second action by showing that the employee was discharged the second time for
legal cause arising after the settlement.
4 Textile Machine Works, Inc., 96 NLRB 1333, 1350, 1351 ; 105 NLRP 618, enfd. 214
F. 2d 929 (C.A. 2) ; Sharpies Chemicals, Inc., 100 NLRB 20, 30, enfd. 209 F. 2d 645
(C.A. 6) ; F.T.C. v. Cement Institute, 333 U.S. 683, 705.
TOMPKINS MOTOR LINES, INC. 11
Thus, Respondent's own counsel testified that immediately before accord was
reached on the settlement agreement on May 22, he told the representative of the
General Counsel, Spain and his attorney, that he "wanted it fully understood that
if there was any charge to come out of [Respondent's grounding of Spain], or any
feeling that there was any discrimination, that would have to be dealt with in the
hereafter." He further testified that the General Counsel's representative then agreed
and stated "that would have to be the matter of a separate charge" and, turning to
Spain said: "Mr. Spain, you understand that if you feel like they continue to not
let you drive and you feel like you are discriminated against, you would have to
bring a fresh and separate charge." Respondent's counsel further testified that "it
was on that basis that [they] entered into that settlement." Against this background,
I cannot view the settlement agreement as disposing of allegations of discrimination
not alleged and for which it makes no provision. Tulsa Boiler and Machinery Com-
pany, 23 NLRB 846, 851.
By reason of all the foregoing , I conclude that Respondent 's conduct preceding
the settlement may be considered by me to determine whether its postsettlement
refusal to employ Spain as a driver was discriminatory and violative of the Act. I
further conclude that if it is so determined and found, it is then incumbent upon me
to recognize the Regional Director 's set-aside order as a valid order , and to make
findings pertaining to Respondent 's presettlement conduct.
As previously found, Spain, on November 11, 1961, while employed by Respond-
ent as a casual or extra, filed a grievance with the Union claiming that under the
Union's contract with Respondent he was entitled to employment as a regular,
guaranteeing him 40 hours a week. The grievance was served on Horlacher, Re-
spondent's terminal manager, on November 13, by A. B. Huff, the Union's shop
steward. On the same day, Horlacher, after acknowledging that he had received
the grievance , told Spain that if the grievance was sustained , he would "get less
work" than he had been getting, and that if he lost it, he "would never work another
day" for Respondent. Huff, employed by Respondent for 14 years, testified, without
contradiction, that when he handed Spain's grievance to Horlacher on November 13,
the latter told him that he "would close the place down before he would put on
another" regular employee.
Huff, and A. C. Sloan, the Union' s business agent , both testified, credibly, that
prior to the hearing the Tri-State Committee, when they were checking Respondent's
records to ascertain whether Spain was entitled to work as a regular , Sloan asked
Horlacher whether he would not "work Spain until the hearing came up, one way
or the other," and that Horlacher declined to commit himself, adding that he was
"still pretty mad over the situation."
George Stewart, employed, as a regular driver, testified that about the middle of
December 1961, he "missed [ Spain] off of the dock," and asked Lafayette what had
happened to him. According to Stewart, whose testimony I credit, Lafayette replied
that all he could tell him was that "Spain just messed himself up." Lafayette was
not questioned by Respondent's counsel directly whether he made the statement
attributed to him by Stewart. However, when asked whether he had "made
statement to anybody . threatening [ Spain ] or declaring [ he wasn 't] going to
use him, or anything to that effect," Lafayette testified as follows:
A. No statements. There might have been some talk. If somebody asked me
a question , I might have given them a quick answer just to pass it off, to get rid
of it.
Q. Did you ever have any conversation about him with any of the employees
or Sloan or any of them out there?
A. I have never talked to Sloan, I don't believe.
Spain filed his charge in Case No. 26-CA-1217 on February 1, 1962. Shortly
thereafter, when Lafayette called him to work one day, he asked Spain "when all
this mess was going to stop." Spain asked what mess, and Lafayette replied: "All
of this mess of the Labor Board, and . . . if you don't stop all of this mess and
get the Labor Board off of us, I am not going to call you no more." Lafayette did
not deny the foregoing accusation and, when questioned about it, testified that after
receiving a registered letter from the Board he asked Spain "how much longer this
crap was going on, [and] told him if he didn't cut out all of that crap, [he] was
going to quit calling him."
It is undisputed that Spain did not work for Respondent from November 28, 1961,
to January 24, 1962. He testified that he called in to ask for work for 2 or 3 weeks
after the first grievance hearing on November 28, and that he stopped calling there-
after because Respondent continued to tell him they did not need him, and because
he had been told by Stewart that Lafayette had informed him that Spain had
"messed tip" and would never work there any more.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harrison, whose headquarters were in Atlanta, testified that the reason Spain was
not used during this period was that Spain had quit calling in for work after
November 28, 1961.5 Horlacher first testified that in the following December and
January, he "would get calls off and on" from Spain asking for work, but a moment
or two later testified he "never got any" call from Spain. Lafayette testified that
Spain did not call for work during the period in question, and that he did not call
Spain.
Lafayette testified that when Respondent needed a man, they did not "wait around"
for one of the casuals to call, but instead either he, or Horlacher, "pick[ed] up the
phone and call fed] them at home." 6 And, though Lafayette "felt" that Spain
`wanted to work" in December 1961 and "tried to get on" with Respondent, he never
called Spain when Respondent was in need of a casual employee.
All the foregoing findings unhesitatingly convince me, and I find, that from the
time Spain's grievance was served on Horlacher on November 13, 1961, Respondent
was determined to punish him therefor, and that it did so by denying him em-
ployment from November 28, 1961, to January 24, 1962. It offered no credible
evidence or reason for its failure to do so.
Of the casuals employed by Respondent during the entire year 1961, only three
were employed for any substantial number of days. And, though Spain was denied
employment after November 28 of that year, he earned more money and worked
more days in those 11 months than any other casual employed during that entire year,
as appears by the following computation taken from Respondent's own records:
Spain --------------------------------------------------- $4,186.20
Ford --------------------------------------------------- 3,820.65
Townsend ----------------------------------------------- 1,185.34
Indeed, in October 1961, the month before he filed his grievance, Spain worked
20 days. But, in the period November 11, 1961, to January 29, 1962, a period of
21/2 months, Respondent employed Spain only 9 days, while it gave casual employ-
ment to Ford and Townsend on 43 and 16 days, respectively. The disparity in
the days worked by Spain and Ford in the period just described takes on greater
significance when compared to the number of days worked by these two men in
December 1960 and January 1961. During the latter period, Ford worked 24 days
and Spain 22.
Having rejected the reasons assigned by Respondent for grounding Spain on
April 10, 1962, I find and conclude that Respondent's motive for that action was
foreshadowed and disclosed by Horlacher's threat to Spain on November 13, 1961,
that if he lost the grievance he would never work another day for Respondent, and by
Lafayette's threat to Spain, after the charge in Case No. 26-CA-1217 was filed, that
unless he "got the Labor Board off" of Respondent he would never be called to work
again. Accordingly, I further find that Spain was grounded on and after April 10,
1962, because he had filed that grievance and charge, and conclude that by doing
so Respondent violated Section 8(a)(4) and 8(a)(1) of the Act.
4. The violations involved in the settlement
By reason of the findings entered immediately above, it follows that additional
findings must now be made with respect to the allegations found in the complaint in
26-CA-1217, the case which the parties sought to settle on May 21, 1962, and which
allegations, because that settlement was thereafter set aside, were repeated in the
consolidated complaint before me. Accordingly, I find that by the threats of
Horlacher and Lafayette aforementioned, and by denying Spain employment from
November 28, 1961, to January 24, 1962, because he filed his grievance, Respondent
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1) thereof.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
s Harrison also testified that the seasonal fall-off in dry goods shipments "could have
had" something to do with the reasons Spain was not used during this period. This
claim, however, has apparently been abandoned because no mention thereof is made in
Respondent's brief.
G ,Casual employees Townsend, Ford, as well as Spain, all testified, credibly, that Re-
spondent notified them to come to work at least 50 percent of the time they were em-
ployed by calling them at their respective homes.
SIX ROBBLEES' INC. 13
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. By threatening A. J. Spain , Jr., with refusal of employment because he filed
a grievance with respect to conditions of employment, Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By refusing to employ A. J. Spain, Jr., from November 28, 1961 , to January 24,
1962 , for having filed the grievance aforementioned , Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a) (1) of the Act.
5. By refusing to give A. J. Spain , Jr., employment as a truckdriver on and after
April 10, 1962, because he filed the grievance aforementioned and the charge in
Case No. 26-CA-1217, Respondent violated Section 8(a)(1) and 8(a)(4) of the
Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2 (6) and (7) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices it is
recommended that Respondent be ordered to cease and desist therefrom , and to take
certain affirmative action designed to effectuate the policies of the Act. It having
been found that Respondent has illegally denied Spain employment , it is recom-
mended that Respondent be required , when work for casual or extra employees is
available at its Nashville terminal , to offer such employment to Spain , including
employment as a truckdriver . It is further recommended that Respondent be re-
quired to make Spain whole for any loss of pay he may have suffered because of
the failure to employ him in any capacity between November 28, 1961, and
January 24, 1962, and for Respondent 's refusal to employ him as a truckdriver on
and after April 10, 1962; the exact amount thereof to be determined in compliance
proceedings . In arriving at the total amount of backpay to which Spain may be
entitled , there shall be deducted therefrom the sum of $325 paid to him on or about
May 21, 1962. Backpay shall be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest as
prescribed in Isis Plumbing & Heating Co ., 138 NLRB 716.
[Recommended Order omitted from publication.]
Six Robblees' Inc. and Retail Clerks Union, No. 367, Retail Clerks
International Association , AFL-CIO. Case No. 19-CA-2470.
April 16, 1963
DECISION AND ORDER
On January 15,1963, Trial Examiner Eugene K. Kennedy issued his
Intermediate Report in the above-entitled proceeding, 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 Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and supporting brief.
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 McCulloch and Members Rodgers and Fanning].
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 Inter-
142 NLRB No. 3.