Vernon Livestock Trucking Co.

National Labor Relations Board - Board Decisions

Sep 4, 1968

172 N.L.R.B. 1805 (N.L.R.B. 1968)

VERNON LIVESTOCK TRUCKING CO.
Vernon Livestock Trucking Co. and Line Drivers,
Local 224, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America . Case 21-CA-7719
September 4, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On June 3, 1968, Trial Examiner Henry S. Salim
issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had
not committed certain other unfair labor practices
and recommended that the complaint be dismissed
with respect thereto. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exception, briefs,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as herein
modified.
We agree with the Trial Examiner's conclusion
that the record does not establish that the Respon-
dent violated Section 8(a)(3) of the Act in connec-
tion with the termination of Billington's employ-
ment on August 8, 1967. Billington's truckdriving
derelictions of July 29, 1967, which necessitated a
major repair costing approximately $2,000, and his
conduct between July 31 and August 3, during
which period he failed to pick up a load of cattle
and the Respondent was unable to contact him,
gave the Respondent adequate cause to discharge
him on August 4. The Union was instrumental in
obtaining Billington's reinstatement thereafter, and
on August 8, as found by the Trial Examiner,
Billington accepted the Respondent's offer to pay
him $500 to quit his job. However, like the Trial
Examiner , we find that the Respondent's offer and
1805
inducements were not motivated by antiunion con-
siderations. Although we note the testimony, which
the General Counsel cites in his exceptions but
which was not mentioned by the Trial Examiner, in-
dicating that the Respondent's president may have
been displeased with Billington's filing of a
grievance with the Union, we conclude that the
General Counsel has failed to sustain his burden of
proof by a preponderance of the evidence that the
employee's recourse to the Union was a motivating
factor in his termination. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Vernon Livestock
Trucking Co., Los Angeles, California, its officers,
agents , successors, and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
' See American Poultry and Egg Company, 144 NLRB 650, 664-665 In
reaching our decision , we do not rely on those portions of the Trial Ex-
aminer 's discussion of the law or speculation concerning the acts which are
unnecessary to our determination
TRIAL EXAMINER 'S DECISION
HENRY S. SAHM, Trial Examiner: Upon a charge
filed on August 18, 1967, by Line Drivers, Local
224, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 21, issued a complaint,
dated September 28, 1967, against Vernon
Livestock Trucking Co., hereinafter referred to as
both the Company and the Respondent. The com-
plaint alleges the Respondent committed unfair
labor practices when it discriminatorily discharged
Floyd R. Billington because he engaged in "union
or other protected concerted activity ... or other
mutual aid or protection" in violation of Section
8(a)(3) of the Act. The complaint also charged
that Respondent's president and dispatcher both
unlawfully interrogated and threatened employees
in violation of Section 8(a)(1).
Respondent's answer avers that after Billington
was discharged for "incerating" a truck, abandon-
ing another truck, dishonestly claiming he was sick,
and failing to notify the Company he would be una-
ble to pick up a load of cattle he was rehired at the
insistence of the Union and thereafter worked until
he voluntarily quit his job. Moreover, states the
answer, after his discharge, neither Billington nor
the Union demanded his reinstatement until the
Union filed a charge with the Board.
172 NLRB No. 213
1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel's motion to correct the
transcript, filed on January 3, 1968, is hereby
granted in the absence of objections.
On December 5, 6, and 7, Trial Examiner Henry
S. Sahm held a hearing with respect to the issues at
Los Angeles, California. Upon the conclusion of
the taking of testimony, counsel for the parties filed
briefs on January 12, 1968, which have been fully
considered.
Upon the entire record in the case and from ob-
servation of the witnesses,' there are hereby made
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a California corporation employ-
ing approximately 23 men engaged in the interstate
transportating of cattle with its principal place of
business in Los Angeles, California. It annually
derives gross revenues in excess of $50,000 from
interstate transportation. The allegations of the
complaint as to the nature and extent of Respon-
dent's business, which is admitted by the answer,
are found to be facts, and, therefore, it is concluded
that Respondent is an employer engaged in com-
merce and in business affecting commerce.
II. The Labor Organization Involved
It is conceded and found that Line Drivers, Local
224, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, the Union named in the caption, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Testimony-8(a)(3)
Floyd Billington , the alleged discriminatee, was
employed by Respondent Company as an extra
driver from March 6, 1967, to August 8, 1967 2
The Company has had a collective- bargaining
agreement with the Union since October 1, 1957.
The then current agreement, which was due to ex-
pire on March 31, 1967, provided that all new em-
ployees shall join the Union 31 days after they com-
mence working for the Company .3 Billington Joined
the Union around April 21, 1967.
On Saturday, July 29, 1967, Billington, while
driving a company truck, called in from Indio,
California, to report to Respondent that the truck
had broken down. Subsequent examination of the
truck revealed that it had been driven without
water (although there were two heat indicators on
the tractors-a flashing warning light and a tem-
perature gauge), causing the motor to become
overheated, burning out five pistons of the engine,
spitting the head, and necessitating a major over-
haul of the motor in the amount of approximately
$2,000.
The next day, Sunday, July 30, Billington left the
company premises at 9 p.m. in an empty truck with
instructions to proceed to Maricopa, Arizona, pick
up a load of cattle in the morning, and return the
cattle to Los Angeles for slaughter. The normal
driving time to Phoenix is approximately 9 hours;
and to Maricopa, 30 miles beyond Phoenix, about
an hour. Billington arrived at Phoenix on July 3 1, at
approximately 6 a.m
On Monday, July 31, about noon, when L'Ecluse,
president of the Respondent Company, was at
lunch and Steele, the dispatcher, at home, Jim
Jones, the "washboy" at Respondent' s terminal,
received a telephone call from Phoenix, Arizona,
from Billington 's brother-in-law who stated, "he
had taken Mr. Billington to the hospital. He was
sick and he wouldn't be able to pick up his load."
It is uncontradicted that Billington 's instructions
from the Company were to notify both the place
where the cattle were to be picked up and also
Respondent in the event he was unable to load the
cattle at the regularly scheduled time of pickup.
The regular loading time is " in the morning."
Upon L'Ecluse's return from lunch, Jones gave
him the message . When Billington 's brother-in-law
telephoned, he had left no message as to where
Billington could be reached. L'Ecluse, not knowing
where he could be contacted, telephoned Billing-
ton's wife to ascertain if she knew where he could
be reached. She told L'Ecluse she had not heard
from her husband but gave him her brother- in-law's
address in Phoenix. She too was unable to contact
Billington or her brother- in-law on July 31.
L'Ecluse then telephone Lester Goekler, the
Company's Phoenix representative, and related to
him what had occurred and requested him to at-
tempt to locate Billington and the truck. L'Ecluse
told Goekler that Billington "was supposed to have
either been hurt or sick and was in the hospital or
the doctor's office, from the word that he had
heard." Goekler thereupon contacted all the
hospitals in Phoenix and when this proved unsuc-
cessful, he drove to the home of Billington's
brother- in-law in Phoenix, whose address Billing-
ton's wife had given L'Ecluse. When Goekler ar-
rived at the brother-in-law 's home about 2 p.m., he
was not there but Goekler was informed by his
daughter that Billington and her father had used
their next door neighbor's telephone to call the
Respondent Company and then they had left by au-
tomobile but that she did not know where they had
gone. As Goekler left the home and walked toward
' N L R B v Dixie Gas, Inc , 323 F 2d 433, 435-437 (C A 5)
2" Extra" drivers were assigned " runs" when there were an insufficient
number of regular drivers available to operate the trucks If and when they
obtained sufficient seniority, they were regularly assigned to better
established routes See para 20 , sec 1, G C Exh 5
' Article 3(b), p 5, G C Exh 4
VERNON LIVESTOCK TRUCKING CO.
his car, he found the company truck parked next to
and on the wrong side of the shoulder of the street,
near an auto wrecking yard, two houses away from
the home of Billington 's brother-in-law.4
Goekler immediately telephoned L'Ecluse who
told him to leave a note for Billington on the truck
windshield notifying him not to move the truck.
Goekler then returned to the home of Billington's
brother-in-law about 4 p.m. and was told by the
same girl he spoke to before that her father had not
returned home since Goekler last spoke to her.
The following day, Tuesday, August 1, Leah
Billington , the alleged discriminatee's wife, phoned
Phoenix in an effort to locate her husband. She
spoke to the next door neighbor of her brother-in-
law (as he did not have a telephone) and asked
them to call her brother-in-law or his wife to the
phone. The neighbor went next door and upon her
return informed Mrs. Billington that neither her
brother-in-law nor his wife were at home. After this
phone conversation, Mrs. Billington and L'Ecluse
spoke on the telephone about 1 p.m. and she told
him she had not yet heard from her husband. Dur-
ing this conversation, L'Ecluse told her that her
husband was fired. Two hours later, about 3 p.m.,
Billington telephoned his wife but she neither com-
municated this fact to L'Ecluse nor told him where
her husband could be reached in Phoenix. On
Thursday, August 3, 4 days after Billington had left
for Phoenix, he returned to Los Angeles by air-
plane.
On Friday, August 4, Billington went to the
Respondent Vernon Livestock Trucking Company
and spoke to Ed Steele, the dispatcher-5 Steele
notified Billington he was fired for leaving his truck
in Phoenix, not notifying the Company as soon as
he should have where he was, and not picking up
the cattle. Billington then requested, and Steele
gave him, his paycheck for the money which the
Respondent owed him.6
The same day, Friday, August 4, Billington called
the Union and spoke to MacDivot, a union official,
who advised him not to sign a voluntary quit slip if
the Company should demand it. It also was ar-
ranged that Yandell and Dyer, two of the union of-
ficials, would meet him at Respondent's terminal
the following Monday, August 7.
When they arrived there, Yandell and Dyer went
into L'Ecluse's office, but Billington remained out-
side. Yandell, the union official, asked the reason
for Billington's discharge. L'Ecluse replied it was
'See Resp Exh No I
S Steele is a member of the Union herein but when he became a super-
visor, the Union issued him a withdrawal card which means he had
withdrawn from membership in the Union in good standing but is entitled
to readmission upon complying with certain provisions
L'Ecluse had previously instructed Steele to tell Billington when he
showed up that he was fired because he had abandoned the truck , had not
notified the Company, and "left us in a very precarious position with a very
valuable customer "
r Article 12, p 4 (G C Exh. No 5), provides in pertinent part
The Employer shall not discharge nor suspend any employee without
just cause, but in respect to discharge or suspension shall give at
1807
because of his repeated serious derelictions of duty
in the past which culminated in his abandoning his
truck in Phoenix a week ago and his failure both to
pick up the cattle and notify the Company which
resulted in alienating his customer and causing the
Company financial loss. The union officials notified
L'Ecluse that he could not fire Billington because
this was not a dischargeable offense under the con-
tract (which had expired on March 31), as article
12 of the collective-bargaining agreement first
required that the Company give Billington "a warn-
ing notice."7 Yandell, secretary-treasurer of the
Union, then demanded that L'Ecluse rescind his
discharge of Billington, rehire him with full seniori-
ty, compensate him for all time lost, and reimburse
him for his air fare from Arizona. L'Ecluse acceded
to all the Union's demands. The union officials left
the office and told Billington, who was waiting out-
side L'Ecluse's office, what had transpired and that
he was rehired. Billington returned to work the
same day and was dispatched to Somis, California.
The following day, August 8, when Billington re-
ported for work after returning from his Somis trip,
he had a conversation with L'Ecluse in his office.
After some discussion, Billington signed a voluntary
quit slip or termination notice in consideration of
and upon receipt from L'Ecluse of $500 in cash
and a check for approximately $150 to cover his
plane fare from Phoenix to Los Angles, vacation
pay, holidays, and his run to Somis the previous
day. L'Ecluse immediately mailed to the Union the
quit slip which had been signed by Billington.
General Counsel's Exhibit 7.
The following day, August 9, Billington went to
the Union's offices and gave them a written state-
ment which counsel for the Union later mailed to
the Regional Offices of the Board This was fol-
lowed by the Union's attorney, 5 days later, on Au-
gust 14, drafting an unfair labor practice charge
which was received by the Regional Office on Au-
gust 18.8 The charge alleged Respondent violated
Section 8(a)(3) and (5) of the Act by discriminat-
ing against Billington and by refusing to bargain
with the Union.
Yandell, the union officer, testified that, sub-
sequent to the time the charge was filed, he told
L'Ecluse the Union would withdraw its pending un-
fair labor practice charge if L'Ecluse would agree
not to discriminate against its members. It was
stipulated that the Union never filed a grievance on
least one (1) warning notice of the complaint against such employee
to the employee in writing, and a copy of the same to the Local
Union affected, except that no warning notice need to be given to
an employee before he is discharged if the cause of such discharge
is dishonesty or drunkenness, or recklessness resulting in serious
accident while on duty, or the carrying of unauthorized passengers
Article 12 also provides for an appeal from the discharge and if no
decision is reached within 30 days the case shall then be taken up as
provided for in Article 8 of the Western States Area Master Freight
Agreement," which provides for a grievance procedure See G C
Exh 4, p 19
1 G C Exh 1(a)
1808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Billington 's behalf as provided in article 12 of the
contract, supra, page 4, footnote 7.
On August 22, the employees voted to retain arti-
cle 12 and to reject a company proposal which
would have repealed section 12 of the contract and
in its stead provide that in the event of disputes in-
volving the discharge or suspension of employees,
the controversy shall be decided by an arbitrator.'
On September 12, 1967, the Company and
Union, which had been holding negotiating sessions
since March 1967, executed a new 3-year collec-
tive -bargaining agreement . On September 28, the
General Counsel by the Regional Director issued a
complaint which came on for hearing on December
5, 1967.
B. Contentions
The General Counsel does not allege the August
4 discharge was a violation; only the termination on
August 8. His theory is that Billington was con-
structively discharged on August 8 because
Respondent forced him to resign for the following
antiunion considerations: ( 1) his filing a grievance
with the Union; (2) his refusal to vote for the Com-
pany's arbitration proposal;" and (3) Respondent's
desire to circumvent the agreement it made with
the Union to reinstate Billington with full pay.
The Respondent contends Billington was fired
because he negligently burned up the motor of a
company truck, abandoned his truck in Phoenix;
dishonestly feigned sickness ; and failed to notify the
Respondent that he would be unable to pick up the
livestock which eventuated in an angry customer
and financial loss to the Respondent. Furthermore,
Respondent argues , Billington voluntarily quit when
he signed a "termination " paper on August 8, in
consideration of $500 paid him by Respondent,
knowing full well what he was doing.
C. Discussion
The issue here, then, is whether Billington , the al-
leged discriminatee, was terminated by Respon-
dent, as contended by the General Counsel, in
violation of Section 8(a)(3) of the Act because of
his "union or other protected concerted activity"
or, as claimed by the Respondent, "for cause"
within the meaning of Section 10(c) of the Act, and
whether, when he was later rehired at the Union's
insistence, he thereafter voluntarily quit. In deter-
mining this question , the burden of proof was on
the General Counsel to establish and sustain the al-
legations of his complaint by a preponderance of
the probative evidence, and, where a discriminatory
severance, as here, is charged, then he must
establish by a preponderance of the evidence that
such severance was discriminatory." The General
Counsel in order to prove a prima facie case must
show that the alleged discriminatee engaged in ac-
tivities protected by Section 7 of the Act; that the
Respondent knew he engaged in such conduct prior
to discharge, and that he was terminated as a result
of having engaged in such activities. Moreover, the
burden of proof rests not on the Respondent to
prove that the terminations were not in violation of
the Act but on the General Counsel to prove they
were illegal. Although proof of an affirmative
defense, as for example that the employee's
discharge was for cause, rests with the employer,
nevertheless, the burden is not on him to show the
absence of discrimination. The burden is rather on
the General Counsel to show its presence.12
Before considering the specific facts in this
proceeding, it might be well to discuss some ap-
plicable legal principles. Concerted activities are
combined action by employees, whether or not
unionized, to improve conditions of employment.
The basic policy of the Act is one of clothing with
affirmative protection those concerted activities of
employees which are encompassed in Section 7 of
the Act.13 Section 7 provides that the right of em-
ployees lawfully to engage in concerted activities
for the purpose of mutual aid is protected and any
proscribed or interdicted conduct by the employer
infringing on those rights is an unfair labor prac-
tice."
In determining whether a layoff, discharge, or
termination is for union activities or for cause, the
problem is to ascertain the employer's true, under-
lying motive.15 The fact that a lawful cause for
discharge is available is no defense where the em-
GC Exh 6
At another point in the General Counsel 's brief it is stated as follows
"by [Respondent ' s] desire to stop Billington from voting in the union
conducted election -
" Indiana Metal Products Co v N L R B , 202 F 2d 613, 616 (C A
7), N L R B v Deena Produc ts Co , 195 F 2d 330, 335 (C A 7), cert
denied 344 U S 827
1d N L R B v Clew eland Trust, 214 F 2d 95, 99 (C A 6), N L R B
v Drennon Food Products Co, 272 F 2d 23, 28 (C A 5)
" See N L R B v Schwartz , 146 F 2d 773, 774 (C A 5)
" The relevant provisions of the National Labor Relations Act, as
amended (61 Stat 136, 73 Stat 519, 29 U S C , SEC 151, et seq )
are as follows
RIGHTS OF EMPLOYEES
Sec 7 Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of 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)
UNFAIR LABOR PRACTICES
Sec 8(a) It shall be an unfair labor practice for an employer-
(I) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7,
s r r • r
(3) by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or
discourage membership in any labor organization . .
"N.L R B v. Jones & McLaughlin Steel Corp, 301 U S. 1, 45-60;
Radio Officers v N L R B, 347 U S 17, 43-44
VERNON LIVESTOCK TRUCKING CO. 1809
ployee is actually discharged because of his union
activities.16
It is the " true purpose " or "real motive " in hir-
ing or firing that constitutes the test. Some
conduct may by its very nature contain the im-
plications of the required intent ; the natural
foreseeable consequences of certain action
may warrant the inference . And see Republic
Aviation Corp. v. Labor Board , 324 U.S. 793.
The existence of discrimination may at times
be inferred by the Board , for "it is permissible
to draw on experience in factual inquiries."17
Since direct evidence of a purpose to violate the
Act is rarely obtainable , proof of motive usually en-
tails the weighing of conflicting inferences. The
task of weighing conflicting inferences is entrusted
to the trier of the facts. "The possibility of drawing
either of two inconsistent inferences from the
evidence [does] not prevent the [trier of the facts]
from drawing one of them ...."18 Usually in-
ferences may. be drawn of one fact from the
existence of another when in common experience
there is a "rational connection between the facts
proved and the ultimate facts presumed."10
However, it is equally clear that an employer may
discharge an employee for any cause or no cause as
long as the discharge is not motivated by activities
protected by Section 7 or proscribed by Section
8(a)(3) of the Act.20 Section 8(a)(3) of the Act is
not intended generally to interfere with the
freedom of an employer to hire and fire as he
pleases. He may discharge employees as he sees fit;
he may discharge them in the interest of efficiency
or from personal animosity or mere whim .21 The
fact that an employee is a union member affords
him no protection against a discharge for cause.
Moreover, the existence or assertion of a valid
reason for discharge does not necessarily indicate
that this reason constituted the real cause for
discharge nor does the existence of a valid cause
provide a defense unless it is the moving cause for
the discharge.22 Nor does failure of an employer in
an unfair labor practice proceeding to show proper
cause for a discharge relieve the General Counsel
from his burden of establishing that the discharge
was motivated by proscribed considerations. On the
other hand , the convincing or unconvincing
character of proffered reasons for a discharge is
also a significant factor in determining whether or
not the discharge was improperly motivated.23
Although discharge of an incompetent employee is
lawful , it may become discriminatory if other cir-
cumstances reasonably indicate that the employee's
protected activities weighed more heavily in the
decision to discharge than did dissatisfaction with
him.24 Motivation is, indeed , an elusive factor.
In the law of labor relations the term "dis-
crimination " most often refers to inequality of
treatment based on discriminatory employment
practices on the part of employers to discourage
employees ' organizational activities for collective-
bargaining purposes . The Board has held that the
fact that a valid cause for discharge exists does not
excuse a violation of the Act, if the evidence shows
that the employer's real reason was to discourage
union activities of the dischargee . But, an em-
ployer's antiunion dispostion , standing alone, does
not justify a finding of unlawful discrimination in
the face of evidence that an employee was
discharged for good cause.25
Then, too, in these types of cases, consideration
must be given to the proviso in Section 10(c) of the
Act, which forbids reinstatement of an employee
discharged "for cause ." The legislative history of
the Act reveals that when the meaning of the
phrase " for cause " was discussed in the Senate by
Senator Taft, he had the following to say with
respect to it:
It merely states the present rule. If a man is
discharged for cause , he cannot be reinstated.
If he is discharged for union activity, he must
be reinstated . In every case it is a question of
fact for the Board to determine.26
It would appear , therefore, that if upon the "pre-
ponderance of the testimony taken ," the proof
creates an equipoise '21 or that if any essential ele-
ment necessary to make a finding of an unfair labor
practice is absent or left to surmise , speculation, or
conjecture, the trier of the facts is required by Sec-
tion 10(c) to dismiss the complaint.
It would seem , however, that in evaluating
whether an unfair labor practice has been com-
mitted, the legality of the employer' s conduct in
discharging an employee involves the problem of
accommodating the rights of employees under Sec-
tion 728 to engage in concerted activities with the
right clearly given an employer under Section 10(c)
to protect his business by discharging an employee
1'NLRB v Ace Comb Co, 342F2d841 (CA 8)
17 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v
NLRB, 365 U S 667,675
18 N L R B v Nevada Consolidated Copper Corp, 3 1 6 U S 105,
106
'''Toty US, 319 US 463,467
20 Magnolia Petroleum Co v N L R B , 200 F 2d 148, 149 (C A 5),
N L.R B v Solo Cup Co, 237 F 2d 521, 525-526 (C A 8)
21 N L R B v McGahey, 233 F 2d 406, 412, 413 (C A 5)
22 NLRB v C & J Camp, 216 F 2d 113, 115 (C A 5), NLRB v
Texas Independent Oil Co, 232 F 2d 447, 450 (C A 9)
2' NLRB v Ferguson, 257 F 2d 88, 92-93 (C A 5), NLRB. v
WTVJ, 268 F 2d 346, 348 (C A 5)
29 N L R B v Whiten Machine Works, 204 F 2d 883 (C A 1)
" Sixteenth Annual Report of the National Labor Relations Board,
pp 161-162, Seventeenth Annual Report of the National Labor Rela-
tions Board, pp 135-136
26 93 Congressional Record 6518
21 This is more than a theoretical possibility, as is shown by the
frequency with which juries in a court of law are unable to arrive at a
verdict In Scottish law, the jury will often decide that while the prose-
cution has not proven its case that the defendant is guilty , there is still
enough evidence to deny defendant the verdict of "not guilty " See
Eastern Coal Corporation v N L.R B , 1 76 F 2d 131, 136 (C A 4),
where the court said " the test is not satisfied by evidence .
which gives equal support to inconsistent inferences
" See fn 14
1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"for cause ."29 Section 8(a)(3) prohibits discrimina-
tion in regard to hire or tenure of employment or
any term or condition of employment to discourage
union membership . There must be both discrimina-
tion, because of protected activities , and a resulting
discouragement of union membership , as a viola-
tion of this section normally turns on the em-
ployer 's motivation . Sometimes a discharge tends to
discourage union membership even when the em-
ployer did not so intend but was motivated entirely
by valid business reasons bottomed upon efficiency
and discipline . The Supreme Court has stated that a
wide range of employer action has been left un-
scathed under Section 8(a)(3) where the action is
taken to serve legitimate business interests in some
significant fashion even though the act committed
may tend to discourage union membership. The
Supreme Court points out that such a construction
of Section 8(a)(3) is essential if due protection is to
be accorded the employer 's right to manage his
own business.30
Absent a situation where the facts are such that
an inference may be drawn ascribing both a proper
and an improper reason for discharge , either rule
would be inapplicable where the evidence is such
that there is no reasonable basis for inferring the
discharge was "for cause "; or conversely , where the
evidence clearly indicates serious employee
misconduct , inefficiency , or derelictions of duty.
These preliminary observations , then, are a
prelude to the most difficult question in these dis-
criminatory discharge cases: Whether the alleged
discriminatee was discharged by the employer, as
contended by the General Counsel, in violation of
Section 8 ( a)(3) of the Act because of his "union or
other protected concerted activity for the purposes
of collective bargaining or other mutual aid or pro-
tection ."31 or for valid cause as claimed by the Em-
ployer.
Cases involving discrimination with respect to
hire and tenure of employment because of union
activities are among the most difficult confronting a
Trial Examiner . In those cases which eventually go
to hearing the question of discrimination is usually
not obvious . Between cases of patent employer dis-
crimination and those where a worker obviously
has attempted to hide inefficiency or insubordina-
tion behind a charge of discrimination , the question
of guilt or innocence must be determined on the
circumstances and background peculiar to each
case . Striking a balance between the employer's
management prerogatives and his correlative
obligation not to so use his control over his em-
ployee 's job as a means of deterring him from en-
gaging in union activities , on the one hand , and the
inalienable right of the worker to exercise his legal
rights without fear that he will be subject to dis-
crimination , is the paramount consideration. In
such situations , determining where the preponde-
rance of the substantial evidence lies is , indeed, an
often difficult task in the ever present purpose of
attempting to create basic conditions and standards
of conduct under which sound collective bargaining
can grow as a method of industrial life.
Nor is the assertion of a defense binding on the
trier of the facts , nor is one required to accept a
resondent 's alleged lawful justification for a
discharge merely because it has been put forward
with supporting evidence.32 But rejection of a
defense , without more , is insufficient to sustain the
General Counsel 's burden of proof ; he must
establish his case by affirmative evidence.33
Furthermore , the trier of the facts is not found to
accept uncontradicted evidence , for questions of
credibility are not foreclosed by the absence of
contradictory testimony.34
The wisdom or the merits , or the justification, of
a discharge is not within the competency of the
Trial Examiner . As long as the actual reason
therefor is not discriminatory , the discharge must
be upheld as having been made for cause, re-
gardless of its soundness . 35 But this is not conclu-
sive . It may nevertheless be shown by the General
Counsel that, although cause existed for a
discharge , such cause was not in fact the reason
why an employee was discharged and that a dis-
criminatory motive generated the dismissal . 36 In this
connection , it is necessary to show only that "one
reason for the discharge is that the employee was
engaging in protected activity . It need not be the
only reason but it is sufficient if it is a substantial or
motivating reason , despite the fact that other
reasons may exist.37
It has long been established that for the purpose
of determining whether or not a discharge is dis-
criminatory ... it is necessary that the true , under-
lying reason for the discharge be established. That
is, the fact that a lawful cause for discharge is
available is no defense where the employee is ac-
tually discharged because of his union activities. A
fortiori , if the discharge is actually motivated by a
lawful reason , the fact that the employee is engaged
in union activities at the time will not tie the em-
ployer 's hands and prevent him from the exercise of
his business judgment to discharge an employee for
Southern Steamship Companv v N L R B, 316 U S 31
American Ship Building Co v N L R B, 380 U S 300, 311
The quoted language is excerpted from paragraph I I of the com-
plaint See also para 17 of the complaint
"NLRB v Texas Bolt Co, 313 F 2d 761, 763 (C A 5)
N L R B v Audio Industries , 313 F 2d 858, 863 (C A 7), Portable
Electric Tools v N L R B, 309 F 2d 423, 426 (C A 7)
'a N L R B v Howell Chevrolet, 204 F 2d 79, 86 (C A 9 ), affd on
other grounds 346 U S 482 See 7, Wigmore on Evidence, Sec
2034(3d ed )
45 N L R B v Prince Macaroni Co , 329 F 2d 803 , 809 (C A 1),
Fort Smith Broadcasting Co v N L R B. 341 F 2d 874 (C A. 8),
N L R B V United Parcel Service , 317 F 2d 912,914 (C A 1), Thurston
Motor Lines , 149 NLRB 1368 , Norfolk Tallow, 154 NLRB 1052, 1056,
strong precedent for this case
N L R B v Symons Mfg Co , F 2d 835, 838 (C A 7)
N L R B v Whiten Machine Works, 204 F 2d 883 , 885 (C A 1),
Wonder State Mfg Co v NL RB , 331 F 2d 737 , 738 (C A 6)
VERNON LIVESTOCK TRUCKING CO.
cause.38 Misconduct and dereliction of duties on
the employee's part cannot insulate him from a
legal discharge by the employer, and where a
proper motive for the discharge can as reasonably
be inferred as an improper motive, the discharge
should not be set aside ... where the more substan-
tial evidence supports the proper motive.39
D. Issues
It is the General Counsel's contention and
Billington 's testimony that when he left Los An-
geles on Sunday night, July 31, at 9 p.m. for
Phoenix and Maricopa to pick up the load of cattle
he ate something enroute which made him sick.
When he arrived in Phoenix, he went to his brother-
in-law's home, parked the truck, and went to
sleep in the home of some other person in Phoe-
nix, the street location of which Billington did
not know. He awoke at noon on August 1 and told
his brother-in-law to call the Respondent and in-
form them that he was sick and could not pick up
the cattle at Maricopa. After locating the truck but
not Billington , Respondent sent one of its drivers to
Phoenix to return the truck to Los Angeles. Billing-
ton returned to Los Angeles on August 3 and was
fired on August 4. On August 7, he was rehired at
the insistence of the union and the following day he
signed a quit slip in return for Respondent paying
him $500.
The General Counsel claims Billington was con-
structively discharged as he did not quit but was
forced to resign because:
(1) Respondent desired to stop him from vot-
ing on whether article 12 of the contract
should be changed:40
(2) Respondent 's resentment over Billington
going to the Union with a grievance; and
(3) Respondent wanted to circumvent the
agreement it made with the Union to reinstate
Billington with full pay.
Respondent claims Billington was discharged for
cause on August 4 and that he was rehired over its
objections on August 7 at the insistence of the
Union . However , argues Respondent , "good cause"
still existed on August 8, when he was terminated
by mutual agreement and, furthermore , Billington
fully and voluntarily assented to this by signing the
quit slip and accepting $500 in return for ac-
ceptance of his termination.
E. Conclusions
The testimony not only fails to substantiate the
charge of an 8(a )( 3) violation , but also no substan-
tial evidence was introduced by the General Coun-
sel to show that Billington 's termination had any
relationship to his alleged union or protected activi-
38 N L R B v Ace Comb Co, 342 F 2d 841, 847 (C A. 8)
39 N L R B v Ace Comb Co., supra, Fort Smith Broadcasting Co
v N L R B, 341 F 2d 874 (C A 8), N L R B v Fox Manufacturing
Co, 238 F 2d 211 (C A 5)
1811
ties . Moreover , the oddly self-contradictory and
negating dichotomous contentions in the General
Counsel 's brief fail to shed any light with respect to
his theory of this incident . The burden • of proof is
on the General Counsel to establish and sustain the
allegations of his complaint by a preponderance of
the probative and credible evidence , and, where it
is charged Billington was coerced into quitting, pur-
portedly in violation of Section 8(a)(3), this alleged
discrimination must be established by a prepond-
erance of the evidence. Therefore, it is found that
the foregoing facts and circumstances detailed
above and explicated below fail to expose by a pre-
ponderance of the probative and credible evidence
that Respondent 's President L'Ecluse 's purpose in
offering Billington $ 500 for quitting was either dis-
criminatorily or unlawfully motivated.41
Billington did not make a favorable impression.
His testimony was ambiguous , equivocal , and, in
many respects , incredible. He testified he had no
recollection about the trip on July 30, on which he
operated the truck without sufficient water result-
ing in $2 ,000 damage to the motor ; nor did he
know from where his brother -in-law telephoned the
Company at noon on August 1, 6 hours after he ar-
rived in Phoenix , to notify them he was unable to
pick up the cattle . At one point in the record, he
testified his brother -in-law had a telephone and at
another point he denied testifying to this. He finally
testified inconsistently that he did not know if he
did have a telephone . He did not know where the
house was located at which he stayed in Phoenix
when he was allegedly sick from August 1 to 3. This
strains one's credulity as obviously he was
acquainted with Phoenix since he lived there not
only in 1960 , but also from October 1966 to March
1967.
It should be noted at the outset that the com-
plaint does not allege that Billington 's discharge on
August 4 , 1967, was discriminatory because of his
Phoenix escapade or because he damaged a truck
by operating it without sufficient water. On the
contrary , it is explicitly recognized in the General
Counsel 's theory of this case that " cause " did exist
for Respondent discharging Billington on August 4,
but that , on August 8, he was discharged "because
he engaged in union or other protected concerted
activity for the purpose of collective bargaining or
other mutual aid or protection."42
It is not believed because of the testimony
detailed above and for the reasons explicated above
and below that the General Counsel has met the
burden of proving by a preponderance of the
evidence that the August 8 discharge was dis-
criminatory within the meaning of Section 8 ( a)(3),
in that it "discouraged union or other protected
concerted activities ." 43 On the contrary, the
testimony shows Billington 's discharge was "for
40 See p 4 , fn 7, supra , and last para., p. 5.
41 N L R B v United Brass Works , 287 F 2d 689 (C A 4)
42 See para I I of the complaint
43 See para 17 of the complaint
1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause " Corroborative of this finding of good cause
for Billington's discharge is the testimony of Yan-
dell, the union official, that immediately after he
demanded of L'Ecluse and obtained Billington's
reinstatement on August 7, he told Billington ". .
to do his job and keep his nose clean ." Dyer,
the other union official, also testified regarding the
Phoenix incident that there was a doubt whether
Billington had notified the Company as soon as he
should have that he would be unable to pick up the
cattle. Furthermore, Dyer admitted that Billington
should have phoned Respondent as soon as he
became ill. Implicit in both Yandell and Dyer's
testimony is the recognition that Billington was at
fault in the Phoenix incident.44
The General Counsel argues that Billington was
forced to quit his employment the day following
the Union's demand on August 7 that he be
rehired, when Respondent's president L'Ecluse
" threatened " him with onerous working conditions.
There is no evidence that between August 7, when
L'Ecluse rehired Billington , and August 8, when he
resigned , that Respondent began to harrass Billing-
ton, as the General Counsel contends, and treated
him so intolerably because of antiunion considera-
tions that he was forced to quit. It is unrebutted
that the $2,000 damage to the truck on July 30 was
due to his neglect and that he was at fault in the
Phoenix incident. There is no probative evidence
that Billington 's quitting on August 8 was involun-
tary. He accepted the $500 consciously and volun-
tarily; he had his Union behind him which was
powerful support when it is considered negotiations
for a new contract were in progress and it is not too
unreasonable to assume that L'Ecluse did not want
to provoke the Union at such a crucial time, as
evidenced by his rehiring Billington when the
Union peremptorily demanded he do so.
In the abstract, it might be reasoned that
L'Ecluse had more than ample reason not to be in-
timidated by the Union's demand that Billington
must be rehired ( as it is clear there were valid
reasons for firing him), yet, realistically, L'Ecluse
had no other alternative but to submit to the
Union 's uncompromising demand . This disinclina-
tion of L'Ecluse to antagonize the union officials
was probably due to a painful awareness that he
must avoid precipitating a cleavage between the
Union and himself. He was in the dilemma of know-
ing he was not only in the midst of negotiating a
new contract but also avoiding a strike, which did
eventuate , and vividly realizing, at the same time,
that he would have to continue to deal with the
Union in the years to come and that his trucking
business ' future well being was to a considerable
extent dependent on his not antagonizing the
Union, in order that it would be favorably disposed
toward his small company. These subjective con-
siderations, which the cold record fails to capture,
" McCoy, the union steward, who was called as a witness by the
General Counsel, disparaged Billington's conduct as a truckdriver
See pp 15 and 16
pervade this proceeding and constitute the intangi-
ble imponderables which belie the General Coun-
sel's recondite and transcendent theory of this case.
L'Ecluse's testimony is credited that Billington
was not coerced when he accepted the $500. The
motivating and proximate cause of his accepting
the $500 was not fear but Billington 's desire and
need for money. McCoy, the union steward,
credibly testified that on August 8, the same day
the General Counsel claims Billington was forced to
quit, Billington told L'Ecluse in his office, "that he
was going to stay there [at his job] at least until he
could get all of his bills paid; that he had gone in
debt since working over there, and he wasn't going
to quit...." It was then that L'Ecluse told Billing-
ton he was not getting along well and asked him
how much he would take to quit his job. When
Billington agreed to resign in return for $500,
L'Ecluse paid him the money and the transaction
was completed. This was a voluntary quit with no
misrepresentations, coercion, or threats.
Billington testified on cross -examination that
when he accepted the $500 from L'Ecluse it was
understood by him that the money was being paid
under an agreement for him to quit his job. It is not
too unreasonable to infer that implicit in this
answer was the recognition by Billington that if he
were fired, he would not receive $500, but if he
quit he would. It is found, accordingly, that he
voluntarily quit in return for a consideration of
$500 which he has never returned to the Company.
Lending support to this finding that Billington was
not coerced into signing the quit notice on August
8 is his own testimony that MacDivot, a union offi-
cial, on August 4 reassured him of the Union's sup-
port and advised him not to sign a quit slip.45
Moreover, this money might be considered
liquidated compensation in return for Billington's
resigning rather than waiting for the outcome of
lengthy and uncertain litigation by his accepting
prompt payment of $500, and thus removing him-
self from the labor market of Respondent. As a
compliance matter , it would appear Billington has
waived any claim to backpay and reinstatement.46
Furthermore, to foist Billington on Respondent by
ordering his reinstatement and backpay , in addition
to the $500 he kept, would be inequitable and con-
trary to the purposes and policies of the Act when
it is considered that Billington was not discharged
for engaging in any activities protected by the Act.
Finally, the remedy requested by the General
Counsel, under these circumstances, might be con-
sidered punitive, if it can be shown that it "is a
patent attempt to achieve ends other than those
which and fairly be said to effectuate the policies of
the Act."47
The General Counsel contends that Billington
was discharged; first, because he was a staunch sup-
porter of the Union; second, L'Ecluse feared that
` See sec 111, A, supra
'fi See Deena Artwald, lac , 112 NLRB 371, 378
" Virginia Electric & Power Co v N L R B , 319 U S 533, 540
VERNON LIVESTOCK TRUCKING CO.
he would support the Union in Respondent's
dispute with respect to eliminating article 12 from
the contract ; 48 and third , L'Ecluse was incensed
because Billington had filed a grievance with the
Union . There is a lack of credible testimony that
Respondent 's termination of Billington was
motivated by union animus or discriminatory in-
tent . Militating against such a finding is the irrefuta-
ble fact that Billington did not join the Union until
April and was neither an active nor an articulate
union adherent.
Moreover , McCoy , the shop steward , a fervent
union proponent who was the General Counsel's
witness and who testified honestly , frankly, and
fairly, stated that he told Billington in L'Ecluse's of-
fice on August 8 that he was at fault : " I felt that he
was wrong towards the rest of the drivers and
everything ." On cross-examination, McCoy
testified that he told Billington in L'Ecluse's
presence that he was " 100 percent wrong " because
"he shouldn 't leave a man 's truck in Arizona like
that without notifying the company . . under those
conditions . From what I heard , such as the pills and
all this, he was in the wrong ."49 McCoy testified
also that he "had no use for Billington" and that he
told him in L'Ecluse's presence on August 8 that
working conditions were fine and that the drivers
were doing well financially.
L'Ecluse denied he was antiunion or that he
discharged Billington because of any reasons
proscribed by Section 8(a)(3) of the Act. There is
no evidence that the Company and Union ' s relation-
ship has been anything other than harmonious in
the past . It is uncontradicted that Respondent has
had a collective-bargaining agreement since 1957
with Local 224 , the Union herein . This contract
provides that all employees must be union mem-
bers . L'Ecluse was formerly a union official. He
categorically stated that no one could successfully
accuse him of being antiunion. "I'm anti Teamsters
Union ," he testified , " because their history
throughout the last few years has been nothing but
convicted heads...." He had a right to voice this
opinion under Section 8(c) of the Act . Further-
more , there is no evidence that L'Ecluse has had
any proclivity for discriminating against his em-
ployees for engaging in union activity.
There are indications in this record from which it
is not too unreasonable to infer that some of the
proposals made and actions taken by the litigants in
this proceeding may have been motivated by con-
siderations other than those averred in the com-
plaint . It has long been established that the Act is to
be administered in the public interest . It is doubtful
whether the public interest was the motivating
reason for the drafting of the charge on August 14.
It is not too unreasonable to infer that when Billing-
48 See fn 7 , p 4, supra
44 Bdlmgton , on cross-examination , admitted McCoy had told him on
August 8 that he was "100 % wrong in his conduct "
5o " the administrative agency has an affirmative duty to seek
out and develop whatever facts are required to enable it to formulate
1813
ton was discharged 6 days before the charge was
filed , this was grasped on as a tempting opportunity
to file a charge and thus bring pressure to bear to
effectuate the execution of a contract . When it is
considered that the contract had expired 4 months
before ; that negotiations were at a standstill; and
L'Ecluse was adamantly opposed to executing a
new contract until the Union would agree to a revi-
sion of article 12, it is not too unreasonable to as-
sume this was a motivating consideration . 50 Confir-
mation of this inference is the testimony of
L'Ecluse that in order to persuade him to sign the
contract , Yandell , the union official , on two occa-
sions offered to withdraw the charge the Union had
filed with the Board 's Regional Office on Billing-
ton's behalf if L'Ecluse would agree to sign the
Union 's proposed contract.
The Supreme Court has held that the Board
"may decline to be imposed upon or to submit its
process to abuse " - it may "properly withhold or
dismiss its own complaint if it should appear that
the charge is so related " to questionable conduct.51
In Hollywood Ranch Market , 52 the Board held that
its processes had been abused and, therefore, it
would act in the public interest by dismissing a
complaint alleging that employers discriminatorily
discharged employees at the insistence of a union,
where the charging parties did not invoke the
processes of the Board to secure a remedy for
violations of the Act but merely did so to assist
their union in a scheme to force the employers to
replace members of the contracting union with
members of their union . The Board held this to be a
"palpable abuse of the Board 's machinery."
It will be recalled , however , that L 'Ecluse had
been opposed , since the beginning of negotiations
in March , to the Union 's steadfast insistence that
article 12 be retained in the new contract . In return
for its deletion and the substitution of the company
proposal for an arbitration procedure, L'Ecluse
agreed to " offer [Yandell ] more money than he
wanted ," in order for the Company "to get out of
the grievance machinery [ article 121 ." It was
agreed by Yandell and accepted by L'Ecluse to set-
tle the matter by submitting the dispute to a vote of
the Respondent 's drivers on August 22, which they
rejected . A charge alleging violations of Section
8(a)(3) and ( 5) was drafted by the Union on Au-
gust 14, filed on August 18, and on September 12,
the Company and Union executed a new 3-year
contract . Two weeks later , on September 28, the
complaint issued.
The General Counsel also alleges in his brief that,
when L'Ecluse received Billington 's resignation in
return for payment of $ 500, this was a violation of
Section 8 ( a)(1) of the Act in that the Union was
not consulted. This allegation was neither alleged in
its 'legislative' role [and] to take action in the public interest " 27
Federal Bar Journal 385 (1967), John W Macy , Jr, the AIA, and the
Hearing Examiner
'' N L R B v Indiana & Michigan Electric Co, 318 U S 9, 18-19
52 93 NLRB 1147 , 1153-54
1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint, litigated, nor stated at the hearing to
be the General Counsel's theory of the case. It is
well settled that matters not alleged in a complaint
may not be held to constitute an independent viola-
tion of the Act.53 As the court stated in H. E.
Fletcher, supra.
. . The complaint, much like a pleading be-
fore a court, is designed to notify the adverse
party of the claims that are to be adjudicated
so that he may prepare his case, and to set a
standard of relevance which shall govern the
proceedings at the hearing." Where the Board
improperly makes its finding on a charge not
contained in the complaint, and the record dis-
closes that the basis of this finding has not
been litigated at the hearing, such finding is
not entitled to enforcement [citations
omitted].
To hold the Respondent liable for this unlitigated
allegation where it was never charged with such an
offense would be a violation of its constitutional
guarantee of due process. Justice Brandeis in defin-
ing due process stated:
. . that no finding shall be made except upon
due notice and opportunity to be heard; that
the procedure at the hearing shall be consistent
with the essentials of a fair trial . .54
Furthermore, it is clear from the evidence
presented and the record of the hearing that the
Respondent did not understand the issue nor was
he afforded full opportunity to justify his conduct
as innocent rather than discriminatory.55 It would
be unfair to consider this unaverred allegation as
Respondent did not have full opportunity to fully
litigate the issue, the facts, or the law relevant to
the alleged violation.
Another aspect of this situation is exemplified by
N.L.R.B. v. Tennsco Corp., 339 F.2d 396 (C.A. 6),
where the court held that a respondent cannot be
found guilty of an unfair labor practice of which he
had no fair notice and which was not encompassed
by the complaint. The court stated that the respon-
dent must be apprised of the issues and "the
Government's theory of the case" as "The right of
a [respondent] to know the issues in an adjudicatory
proceeding adheres to a proceeding in which it is
a right and not a matter of grace."
Moreover, the Supreme Court has held that an
employer may bargain directly with his employees
with respect to those aspects of the employment
relationship which are not covered by a collective-
bargaining agreement, provided it is neither incon-
sistent with the collective agreement nor intended
to interfere with employees' rights under the Act.56
L'Ecluse offering and Billington accepting the $4500
was not inconsistent with the collective agreement.
It was not necessary for Respondent to have
discussed Billington 's voluntary quit with the Union
as the Board has held that there is no violation
when the unilateral action, even though it is a man-
datory subject of bargaining, occurred following the
expiration of the contract. 57 By analogy to the case
at bar, since the discharge of Billington occurred
after the expiration of the contract here, it is
likewise no violation. In the absence of a collective-
bargaining agreement, an employer, absent dis-
crimination , has the right to discharge an employee
at any time for any cause satisfactory to the em-
ployer. Under the circumstances here presented,
Respondent not only has such a right but valid
cause for implementing it.
There is meager evidence to support the allega-
tions of the complaint . Billington repeatedly
showed himself to be an incompetent employee and
his discharge rested on legal and bona fide grounds,
which conclusion is sustained by a preponderance
of the evidence detailed above. If discrimination
can be inferred from Billington's mere union mem-
bership, that inference disapears when evidence
supports the more reasonable finding that valid
cause motivated the Respondent's discharge and ul-
timate termination of Billington when he voluntari-
ly accepted $500 for resigning. 58 It is believed that
the evidence elicited by the General Counsel as to
his 8(a)(3) allegation is not substantial, when
viewed in the light that the record in its entirety
furnishes, including the evidence opposed to his
view . Billington quit because he knew he was
wrong, as he was told so by the union steward, and
because he wanted the $500, and not because he
was "forced to quit in the face of discriminatory
treatment calculated to make [his] job unbeara-
ble."59 There is no evidence to support the allega-
tion that the circumstances on August 8 constituted
discrimination or was discriminatorily motivated.
The evidence here is devoid of any credible dis-
criminatory reason for Respondent's discharging
Billington . There is no basis in the record for con-
cluding that Billington was discharged for
proscribed reasons. L'Ecluse is credited that his
reasons for discharging Billington were because of
his being an incompetent driver and not for anti-
union considerations.60 The discharge based on
legitimate and substantial business justifications
constituted a lawful exercise of managerial right
and prerogative. The Supreme Court, in one of the
v, The Columbus Show Case Co, I I I NLRB 206, 207, 1 F Sales
Co, 82 NLRB 137, 138, fn. 6; N L R B v. H E Fletcher Co , 298 F 2d
594, 600 (C A I) Engineers & Fabricators, Inc v N L R B , 376 F 2d
482, 485 (C A 5) See N L R B v Johnson, 322 F 2d 216, 219 (C A 6)
v, St Joseph Stock Yardv v U S, 298 U S 38, 73 See Allied Dis-
tributing Corp v N L R B, 297 F 2d 679 (C A 10)
'v See N L R B v Mackay Radio & Telegraph Co, 304 U S 333,
349-350
'" J I Case v N L R B, 321 U S 332, 339-341 Cf Douds v Local
1250, 173 F 2d 764 (C A 2)
Bethlehem Steel Co, 136 NLRB 1500
N L R B v Stafford, 206 F.2d 19, 23 (C A 8)
se N.L R.B. v. Saxe-Glassman Shoe Corp , 201 F 2d238,243 (C A 1).
"See sec 111, E, supra
VERNON LIVESTOCK TRUCKING CO. 1815
first Board complaint cases it decided, stated:6'
The Act does not interfere with the normal
exercise of the right of the employer to select
its employees or to discharge them. The em-
ployer may not, under cover of that right,
intimidate or coerce its employees with
respect to their self-organization and represen-
tation, and, on the other hand, the Board is
not entitled to make its authority a pretext
for interference with the right of discharge
when that right is exercised for other reasons
than such intimidation and coercion.
It is found, therefore, that the General Counsel
has failed to sustain his burden of proving by a pre-
ponderance of the evidence that Respondent
discharged Billington in violation of Section
8(a)(3) of the Act. Accordingly, it shall be recom-
mended that the 8(a)(3) allegation in the com-
plaint be dismissed.62
F. Alleged Violations of Section 8(a)(1)
The complaint avers that L'Ecluse, the Respon-
dent's president, and Steele, its dispatcher, a super-
visor within the meaning of Section 2(1 1) of the
Act, interrogated and threatened employees. In
determining whether an employer's connduct
amounts to interference, restraint, or coercion
within the meaning of Section 8(a)(1), the test is
not the employer's intent or motive, but whether
the conduct is reasonably calculated or tends to in-
terfere with the free exercise of the rights guaran-
teed by the Act.63
It is found that Respondent violated Section
8(a)(1) when:
(1) Steele told Jack Wingfield, a driver em-
ployed by Respondent, at a time subsequent to
April 1967, that the Company "would find a way to
get even" with the employees if they did not vote to
rescind article 12 of the contract, the grievance
procedure then in effect for the discharge or
suspension of truckdrivers. The fact that Wingfield
was neither fearful nor apprehensive of his rights is
immaterial as the test whether an employee is in-
timidated is not an objective one but rather subjec-
tive from the standpoint of employees.64
(2) After the vote on August 22, 1967, in which
the employees rejected the Company's arbitration
proposal, L'Ecluse interrogated employee James
Latta as to how he had voted. Latta credibly
testified that when he replied he had voted against
the Company, because Steele would fire him the
"first chance he got," L'Ecluse said: "Why don't
you quit?" Latta answered that he liked working
for the Company.65
(3) L'Ecluse violated Section 8(a)(1) when he
threatened Autrey, an employee , on March 6,
1967, "Remember the way you vote means whether
you keep your job or not. 1166
Separate findings as to other instances of alleged
specific violations of Section 8(a)(1) are not made
as some are embraced within those found above
and others , if found , merely would be accumulative
adverse findings which do not add to the obliga-
tions of the order which independently must issue.
The same kind of restraining order will issue
whether predicated on one or more violations of
the same type so that no good purpose would be
served by considering each incident separately with
a view of determining whether it constitutes a viola-
tion . 67 Inasmuch as evidence of interrogation and
threats violative of Section 8(a)(1) have already
been found , and because further findings of such
conduct, if such there are, would be cumulative in
nature , it is not deemed necessary to consider the
legality of these additional threats and interrogation
incidents , if any.
THE REMEDY
Having found that the Respondent has engaged
in the unfair labor practices set forth above, it shall
be recommended that it cease and desist therefrom
and take certain affirmative action designed to ef-
fectuate the policies of the Act. In view of the
limited nature of the unfair labor practices found
herein, it is recommended that a narrow cease-and-
desist order should issue.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in a busi-
ness affecting commerce within the meaning of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(3) of
the Act.
4. By interfering with, restraining, and coercing
its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, as set forth above, the
Respondent has engaged in and is engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
6i N L R B v Jones & Laughlin Steel Corp, 301 U S 1, 45-46
62 See True Temper Corp, 127 NLRB 839, 843, 844, and Harvey
Aluminum, Inc, 156 NLRB 1353, 1364
61 Time-O-Matic, Inc v N L R B, 264 F 2d 96,99 (C A 7), N L R B
v Illinois Tool Works, 153 F 2d 811, 814 (C A 7), Russell-Newman
Mfg Co, Inc, 153 NLRB 1312, 1315, Neco Electrical Products
Corp, 124 NLRB 481, 482.
64 See N L R B v Thompson Products, 130 F 2d 363, 368 (C A 6)
Cf NLRB v Link-Belt Co, 311 U S 584
65 Latta, on cross-examination, testified he voted without fear and
as his conscience dictated See fn 63, supra
66 Ct Struknes Construction Co, 165 NLRB 1062, Ldlicton Imple-
ment Co., 171 NLRB No. 19, N L.R.B. v Roberts Brothers, 225 F 2d
58 (C A. 9)
61 American Newspaper Publishers Assn v N L R B, 193 F 2d 782,
806 (C A 7), cert denied 344 U S 812
1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , Vernon Livestock
Trucking Co., a corporation, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating coercively its employees with
respect to how they will vote or did vote in elec-
tions regarding union matters,
(b) Threatening reprisals against employees if
they do not vote as the Respondent desires;
(c) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of their rights to self-organization , to form,
join, or assist Line Drivers, Local 224, Inter-
national Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, or any
other labor organization , to bargain collectively
through representatives of their own choosing or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection , or to refrain from any or all such activities.
2. Take the following affirmative action:
(a) Post at its offices and terminal in Los An-
geles , California, copies of the attached notice
marked "Appendix." 68 Copies of said notice, on
forms provided by the Regional Director for Region
21, after being duly signed by Respondent's
representative , shall be posted by Respondent im-
mediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in con-
spicuous 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.
(b) Notify the Regional Director for Region 21,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.69
It is recommended that the complaint be
dismissed insofar as it alleges that Floyd R. Billing-
ton was discharged in violation of Section 8(a)(3)
and (1) of the Act
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended , we hereby
notify our employees that.
WE WILL NOT interrogate our employees
coercively concerning how they voted in union
matters.
WE WILL NOT threaten to take reprisals
against employees as to how they voted or will
vote in elections regarding union matters.
WE WILL NOT in any like manner interfere
with , restrain , or coerce our employees in the
exercise of their right to self-organization, to
form labor organizations , to join Line Drivers,
Local 224 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing , or to en-
gage in other concerted activities for the pur-
pose of collective bargaining or other mutual
aid or protection , or to refrain from any or all
such activities.
VERNON LIVESTOCK
TRUCKING CO.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board's Regional
Office , Eastern Columbia Building , 849 South
Broadway , Los Angeles , California 90014,
Telephone 688-5229
'' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice
In the further event that the Board ' s Order is enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order " shall be substituted for
the words "a Decision and Order "
61 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 21, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to Comply herewith
172 NLRB No 213