Alamo Express, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 410 (N.L.R.B. 1973)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alamo Express , Inc. and Alamo Cartage Company and
General Drivers , Warehousemen & Helpers Local
Nos. 657 and 988, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men & Helpers of America . Case 23-CA-4007
April 30, 1973
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On December 7, 1972, Administrative Law Judge
Lowell Goerlich issued the attached Supplemental
Decision in this proceeding. Thereafter, the Respon-
dent filed exceptions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the
Administrative Law Judge's rulings at the hearing
but, for the reasons set forth below, has decided to
dismiss the allegation of the complaint relating to
Floyd Coleman, Jr.
We are unable to conclude, as did the Administra-
tive Law Judge, that the evidence preponderates in
favor of a finding that Respondent discharged Cole-
man because of his union activities. The issue before
us is one of credibility. Whether or not an 8(a)(3)
violation is found depends primarily on whose version
of the events surrounding Coleman's discharge, and
the reasons offered by Respondent therefor, is cred-
ited, Coleman's or Crawford's. The Administrative
Law Judge, after considering the testimony of both
men, credited Coleman. However, there appears in
the record the uncontroverted testimony of
Respondent's Vice President Stephens, not at all con-
sidered by the Administrative Law Judge in his Deci-
sion , that Coleman was discharged because he
negligently caused over $500 worth of damage to his
tractor-trailer. In light of that testimony, we can con-
clude only that the General Counsel has failed to
establish that Coleman's discharge violated Section
8(a)(3) of the Act and we shall dismiss that allegation
of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the allegation of the
complaint concerning the discharge of Floyd Cole-
man, Jr., herein be, and it hereby is, dismissed.
SUPPLEMENTAL DECISION
LOWELL GOERLICH , Administrative Law Judge : In the ini-
tial decision in this matter it was held that the allegations
in the Respondent 's answer admitting that it had discharged
employee Floyd Coleman but "would show that Floyd
Coleman has been offered full reinstatement , and Respon-
dent has and does offer to make Coleman whole for any loss
under the Board procedures " rendered the matter moot,
except for the computation of backpay, and foreclosed a
consideration of a defense to the General Counsel's allega-
tions that Coleman was discriminatorily discharged . In dis-
agreement , the Board has remanded the case "for the
purpose of making findings of fact and conclusions of law
as to whether or not Floyd Coleman was discharged by
Respondent in violation of Section 8(a)(l) and (3) of the
Act."
SUPPLEMENTAL FINDINGS OF FACT,
CONCLUSIONS, AND REASONS THEREFOR
As set forth in the initial decision , Operations Manager
Clyde Crawford first instructed Dock Foreman Badgett to
keep Coleman, a truckdriver, on the dock for 3 days. Later
Crawford told Coleman, "that he couldn't use [him] any
more because [he] didn't call in , call the accident in," at
which time Badgett voiced his surprise by stating , "Well, I'll
be damned you tell me to put the man on the dock for three
days and now you have fired him." I To apply the extreme
penalty of discharge to an otherwise satisfactory employee
for such a slight infraction (the lapse of 30 minutes in the
reporting of an accident which caused no damage to proper-
ty of others) 2 seems overly harsh, arbitrary, difficult to
explain , and suggestive of pretext. The chance of such an
interpretation no doubt explains the reason that the Re-
spondent now takes the "position as to why Coleman was
discharged is not that he failed to call in immediately, fol-
lowing the accident , but that he was discharged because of
the damage he caused to the trailer." 3 If the latter reason
was the cause of his discharge it was not communicated to
Coleman . Thus the inference obtains that the latter reason
was an afterthought concocted by the Respondent to aug-
ment its defense . The fact that the Respondent abandoned
the reason expressed to Coleman and offered another rea-
son as a defense to its action depicts the pretextuous nature
of Coleman 's discharge . " . . . an unfavorable inference
may be drawn against the company for its inability to settle
upon an explanation for the discharge . This failure `in itself
lends support to the theory that [Coleman's] union support
was the real explanation ."' N.L.R.B . v. Teknor-Apex Co.,
1 Crawford claimed that he told Coleman that he was firing him "because
he tore up a trader " Crawford is discredited in this regard and Coleman's
version of the incident is credited. Coleman appeared as an honest forthright
witness
2 One of the Respondent's rules which required the reporting of an acci-
dent immediately applied only to accidents "with another vehicle or involv-
ing any damage to property of others " Coleman 's accident was neither with
another vehicle not did it involved damage to property of others
7 See Respondent 's brief to the Trial Examiner, p 4.
203 NLRB No. 76
ALAMO EXPRESS , INC. 411
468 F.2d 692 (C.A. 1, 1972). Thus it is concluded and found
that the "real motive" 4 for the Respondent's discharge of
Coleman was to discourage membership in a labor organi-
zation and to interfere with the rights of employees "to
self-organization and to form, join, or assist labor organiza-
tions." This conclusion is buttressed by the fact that, during
the period in which the discharge of Coleman had occurred,
the Respondent engaged in a series of unfair labor practices
aimed at frustrating the collective-bargaining aspirations of
its employees. It granted wage increases without discussion
or bargaining with the Union; it refused to furnish informa-
tion needed by the Union for proper performance of its
function; it told employees that it would never sign a con-
tract, that employees would not get wage raises because of
the Union, and that there would be no vacations because of
the Union; it discriminatorily refused to reinstate three re-
turning strikers, employees Walker, Thornton, and Jenkins,
in January 1971, after the cessation of the stnke; and it
discriminated against returned strikers by giving them less
hours until the charge was filed in this case on June 21, 1971.
As late as January 27, 1972, it discriminatorily discharged
employee Jenkins. The Respondent has advanced no cogent
reasons why the discharge of Coleman does not fall within
this pattern of misconduct; none is found. Furthermore,
when a Respondent has already discriminated against re-
turning strikers and several months later discharges a re-
turned striker, there is a strong inference that it acted in
gratification of its union animus. This inference is more
pronounced, when, as here, the employer is guilty of equivo-
cation and the cause of discharge does not withstand scruti-
ny. Accordingly, it is found that by the discharge of Floyd
Coleman on May 27, 1971, the Respondent violated Section
8(a)(3) and (1) of the Act.
SUPPLEMENTAL CONCLUSIONS OF LAW
By unlawfully discharging Floyd Coleman on May 27,
1971, the Respondent engaged in unfair labor practices
within the meaning of Section 8 (a)(3) and (1) of the Act.
SUPPLEMENTAL RECOMMENDED REMEDY
It having been found that the Respondent unlawfully
discharged Floyd Coleman, it is recommended in accor-
dance with Board policy 5 that the Respondent offer Floyd
Coleman immediate and full reinstatement to his former
position or, if such position no longer exists, to a substan-
tially equivalent position (if he does not now hold such a
position), without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings
he may have suffered as a result of the discrimination
against him by payment to him of a sum of money equal to
the amount he would have earned from the date of his
discriminatory discharge to the date of an offer of reinstate-
ment, less net earnings during said period to be computed
on a quarterly basis in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289, and including
° r . the 'real motive' of the employer in an alleged Section 8(a)(3)
violation is decisive " N L R B v Brown Food Stores, 380 U S 278, 287
5 See Rushton Company, 158 NLRB 1730, 1740
interest at the rate of 6 percent per annum in the manner
set forth in Isis Plumbing & Heating Co, 138 NLRB 716.
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record, and pursuant
to Section 10(c) of the Act, it is recommended that the
Board issue the following recommended:6
SUPPLEMENTAL ORDER
The Respondent, Alamo Express, Inc. and Alamo Car-
tage Company, San Antonio, Laredo, and Houston, Texas,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from discouraging membership in the
General Drivers, Warehousemen & Helpers Local Unions
Nos. 657 and 988, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, by discriminato-
rily discharging any of its employees or discriminating in
any other manner with respect to their hire or tenure of
employment or any term or condition of employment.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Offer Floyd Coleman immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position (if he does not
now hold such a position with the Respondent), without
prejudice to his semority or other rights and privileges, dis-
charging, if necessary, any employee hired to replace him,
and make him whole for any loss of pay that he may have
suffered by reason of the Respondent's discrimination
against him in accordance with the recommendations set
forth in the section of this Decision entitled "Supplemental
Recommended Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Supplemental Order.
(c) Post at its Houston, San Antonio, and Laredo, Texas,
terminals copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Directot for Region 23, after being duly signed by
the Respondent's representative, shall be-posted by it imme-
diately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 23, in writ-
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the supple-
mental findings , conclusions, and recommended Order herein shall , as pro-
vided in Sec 102 48 of the Rules and Regulations , be adopted by the Board
and become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
r In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, within 20 days from the date of this Supplemental Or- union activities or for the purpose of discouraging
der, what steps Respondent has taken to comply herewith . membership in a labor organization.
APPENDIX
NOTICE To EMPLOYEES
POSTED By ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties were permitted to introduce
testimony and other evidence it has been decided that we
violated the National Labor Relations Act, as amended,
and among other things discharged employee Floyd Cole-
man in order to discourage membership in the Union.
If Floyd Coleman does not hold with us the same
position from which he was discharged , we will give
him back his job or, if it no longer exists, a substantially
equivalent job.
WE WILL restore his seniority and pay him the back-
pay he lost because we discharged him.
WE WILL NOT discharge employees for engaging in
Dated By
ALAMO EXPRESS. INC AND ALA-
MO CARTAGE COME NY
(Employer)
(Representative) (Title)
We will notify immediately Floyd Coleman , if presently
serving in the Armed Forces of the United States, of the
right to full reinstatement , upon application after discharge
From the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and Service
Act.
This is an official notice and must not be defaced by
anyone.
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 . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , Dallas-Brazos Building, 1125 Bra-
zos Street , Houston , Texas 77002, Telephone 713-226-4296.