Almeida Bus Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1965

150 N.L.R.B. 1117 (N.L.R.B. 1965)

ALMEIDA BUS LINES, INC. 1117
or to refrain therefrom except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a) (3) of the Act.
YALE MANUFACTURING COMPANY, INC.,
Employer.
Dated------------------- By---------------------------------- --------
(Representative) ( Title)
NOTE.-We will notify the above-mentioned employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, 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, Boston
Five Cents Savings Bank Building, 24 School Street , Boston , Massachusetts , 02108,
Telephone No. 523-8100 , if they have any questions concerning this notice or compli-
ance with its provisions.
Almeida Bus Lines , Inc. and Antone ' O. Pontes and Gilbert
Jesus. Case- No. 1-CA-4634 (1-2). January 18, 1965
DECISION AND ORDER
On November 12, 1964, Trial Examiner Thomas A. Ricci issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent filed cross-
exceptions and a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Jenkins].
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 exceptions and cross-exceptions, the briefs,
and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendation of the Trial Examiner.'
[The Board dismissed the complaint.]
i In adopting the Trial Examiner 's conclusions and recommendation , we do not adopt
so much of his Decision as may appear to suggest that, in establishing whether conduct
within 6 months of the filing of the charge is Illegally motivated , Section 10(b) of the
Act forecloses giving controlling weight to evidence of motivation arising from facts
occurring outside the 6-month period.
150 NLRB No. 112.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Thomas A. Ricci at New Bedford , Massachusetts , on September 1 and 2 , 1964, on
complaint of the General Counsel against Almeida Bus Lines , Inc., herein called the
Respondent or the Company . The issue litigated was whether the Respondent had
violated Section 8(a)(3) and (4) of the Act by discharging Antone O. Pontes and
Gilbert Jesus . Briefs were filed after the close of the hearing by the Respondent and
the General Counsel. The General Counsel and the Respondent 's counsel also filed
motions to correct the transcript in a number of details ; each served copies of his
motion on the other . No objections were received to these motions and they are
hereby granted . The motion papers are hereby made part of the record as Trial
Examiner 's exhibits.'
" 'Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Almeida Bus Lines , Inc., is engaged in providing public transportation by bus and
maintains its principal place of business in the city of New Bedford, Massachusetts.
Its annual gross volume of business exceeds $250 ,000, and in the normal course of
its business the Company causes substantial quantities of gasoline, machine oil, vehi-
cles, and automotive parts to be purchased and transported in interstate commerce
through various States other than Massachusetts. The Respondent admitted, on the
record, that the Board "has jurisdiction" over the Company, and that its operations
fall within the Board's established standards for exercising its jurisdiction. - I find that
the Respondent is engaged in commerce within the meaning of the Act, and that it
will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Transit Union, AFL-CIO, herein called the Union, is a labor organ-
ization within the meaning of Section 2(5) of the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The issue
In October of 1961 Gilbert Jesus was an employee of the Respondent and suffered
,discrimination in employment-he was denied work assignments-because of his
union activities. In a resultant proceeding the Board found the Respondent's such
treatment of him at that time to have been a violation of Section 8 (a) (3) of the Act,
and its order to the Company to cease and desist from such practices, and to reinstate
Jesus with backpay, was enforced in the court of appeals.3 He testified for the Gov-
'ernment before a Trial Examiner in that proceeding on May 15, 1962.
Following his return to work in April 1963 Jesus again left the Company, this
time in October of that year, to accept employment as a police officer for the city
of New Bedford. Several times thereafter he sought to -be rehired, but the Respondent
did not accept him. The essential allegation of the complaint now is that the Com-
pany "discharged" him in the course of these last events, and that its reason was to
discriminate against him further, still because of his prounion sympathies, and espe-
cially because he had testified at the Board hearing in the earlier case, all in violation
of Section 8(a)(3) and (4) of the Act. The Respondent defends on the ground that
Jesus simply quit, and that in any event it has not been shown, by the preponderance
of the substantial evidence on the record as a-whole, that his eventual separation from
the Company was caused by any illegal motive.
i After the close of the General Counsel 's case -in-chief , the Trial Examiner granted a
motion by the Respondent to dismiss the complaint with respect to Pontes on the ground
that no prima facie case has been proven as to him. In his brief the General Counsel
stated that he takes no exception to this ruling
"This is the same labor organization previously called Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America, AFI CIO.
3 Almeuda Bus Lines, Inc., 140 NLRB 280 , enfd. in part 333 F . 2d 725 (C.A. 1).
ALMEIDA BUS LINES, INC. 1119
B. The facts'
The evidence presents a single but critical question of credibility between the testi-
mony of Jesus and Mrs. Cecelia Almeida, the overall manager of the Company; this
issue arises from their conflicting stories of what they told one another when Jesus
left the Company to join the police force, and again when he asked her to put him
back to work some months later and she refused. In all other respects there is-no
real question as to what the sequence of events was and what was said and done. • '
Gilbert Jesus first joined the Company in 1950 and quit in 1958. He returned in
1960 and early in 1961-he did not recall whether it was February or May-he again
quit, this time because he did not like working in the garage and- wanted bus-driving
assignments instead. He says he was out 3 or 4 months, and:came back again. In
October 1961 came the illegal separation, and in April 1963 the Company reinstated
him, following issuance of a Trial Examiner's Decision adverse to the Respondent.
In September 1963 Jesus decided to become a policeman and spoke of his desire to
both Mrs. Almeida and her son, John Almeida III, also a manager of the Company.
According to Jesus he asked John Almeida for a 5-month leave of absence, and was
referred to the mother; John testified Jesus asked only for 1 month' s leave. Jesus
testified that he asked Mrs. Almeida also for a leave of 5 months, that she consented,
that he then asked for part-time work while holding the police job, and that she agreed
to give him that only if it was available without taking work away from the regular
employees. According to Mrs. Almeida, Jesus told her he wanted to try the police
job, and that if he liked it it was his intention to keep it, but that if he did not care
for such work, he wished to return to the Respondent. She continued that she said
he could have 30 days' leave. She did recall he asked for part-time work and that
she agreed to give it to him if available. Mrs. Almeida flatly denied that Jesus asked
for a 5-month leave of absence or that she gave it to him; she also denied there was
any talk of Jesus giving 2 weeks' notice if he should choose to return.
On October 27 Jesus started to work as a policeman; for a month, up to the begin-
ning of December, he did from 4 to 8 hours of work weekly for the Respondent,
during what time he was free from the police job and when there were bus or oil
truck runs available for him. Jesus never worked again for the Respondent thereafter,
and at the time of the hearing, in September, was still on the police force.
Jesus spoke to John Almeida several times after December 1963 about leaving the
police and returning to the Respondent, but without results. His last request was to
Mrs. Almeida, on April 3, and, as I understand the contentions of the General Counsel,
it was during this conversation that the principal manager of the Company, by her
refusal to put him to work, "discharged" him because he had testified against the
Respondent 2 years earlier in the prior proceeding. Again the two witnesses contra-
dicted one another as to this terminal conversation. There is no explanation of why
the complaint, not amended at the hearing, specified that Jesus was discharged on
March 13.
According to Jesus he told Mrs. Almeida that he was giving her 2 weeks' notice
and wished to return, and that Mrs. Almeida answered: "For my part I won't take
you back because you cause me a lot of trouble. You fellows got up on the stand
and you lied . . . for my part I won't take you back but I will tell you, I will talk to
Mr. Waldron, and if he advises me to take you back I will take you back, and if not
I won't take you back." (Mr. Waldron is the Company's local counsel.) Jesus then
said, "I had taken a leave of absence with the understanding that I will give you a two
week notice," and she replied that the "leave of absence was only good for thirty days."
Before leaving, still according to Jesus, he offered to start as a new driver: "If you
think that I am a troublemaker, hire me back as a new driver and if you think for one
minute I am giving you trouble, lay me off ... ," but Mrs. Almeida then said the
Company had a new policy of not rehiring persons who had :once left its employ.
Mrs. Almeida's version of this conversation is that Jesus told her he wished'to
return as a full-time driver and that she replied he could not because the Company
had a policy that any employee who "either quit or got through" would not be taken
back. Asked if there had been any reference to a union, she said: " Mr. Jesus men-
tioned it, and I told him I didn't want to discuss it." She denied promising to talk
to Waldron about the matter. She also said there was no mention during the con-
versation about a 30-day leave of absence.
Jesus added that a week or so later he called Mrs. Almeida on the telephone to ask
what Waldron had advised and that Mrs. Almeida turned him down again . She could
not recall whether he did make such a call to her later.
In this contradictory testimony about the two conversations between Jesus and Mrs.
Almeida-the first in September and the second in April-two clear conflicts appear.
775-692-65-vol. 150-72
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One is whether there was agreement upon a 1- or 5-month leave of absense ; the other
is whether in April , when she refused to put the man to work, Mrs. Almeida used
language revealing a purpose to discriminate against him because of his testimony in
the old case against the Company. The more important question is the latter , for it is
clear that regardless of what promise may or may not have been made back in Sep-
tember , the Respondent did refuse to give work to Jesus in April. The discrimination
in employment , therefore , cannot be questioned . What really matters, then , is whether
there is good proof of the reason for the denial of employment.
Indeed , it is not clear in the record as a whole whether the theory of the General
Counsel is to claim that Jesus never lost his employee status until April. The com-
plaint says he was discharged "on March 13th ." Yet when the Company ceased giving
him part-time work in December , there was no charge made of illegal termination
then . The realities are that at best Jesus can be viewed as an employee who left to
try another job and was promised reemployment in the future . In the light of the
real issue of the complaint , it is of little moment whether or not he was promised
reemployment , for the breaking of such a promise , even assuming it was made, would
be no different from outright rejection of an initial employment application , if in fact
the motive was illegal.
There was mention of the Union in April , for Mrs. Almeida conceded as much.
How the subject came up, however , and who first spoke of it, is more reliably revealed
in Jesus' affidavit to a Board agent dated June 18, 1964, than in his testimony. At the
hearing he said flatly that Mrs. Almeida's first response to his request for a job was
to say she would not give it to him because he had lied on the witness stand, an
unquestionable reference to his participation in the earlier proceeding . In his affidavit
Jesus recalled the critical conversation as follows:
In March , in my presence at the garage Robert Tavares, a full-time driver gave
a month's notice . I told Almeida III (who was present when Tavares gave the
notice ) that I would take Tavares ' run. He said I had to speak to his mother.
I went to see Mrs. Almeida at her home and I told her I wanted to come back
and that I wanted to give a 2-week notice . She said that the leave of absence
was only good for 30 days . She said "For my part I wouldn't hire you back, but
I will speak to Mr. Waldron and whatever he says I will- do." I said I was
willing to come back as a new driver and start at the bottom. She said she would
call. I hadn 't heard anything so about 11/2 weeks later I called her up . She said
that she was sorry but Mr . Waldron had advised her not to take me back-
because they made a policy that once a driver leaves he couldn 't come back. I
said that I didn 't give her any trouble outside of the union . She said that we all
lied on the stand . I never have spoken to her since.
That Jesus ' recollection was faulty at the hearing is strongly indicated by substan-
tial variances between his testimony and the affidavit. From the stand he positively
related a March 10 incident of having been present in the office when a driver, Tavares,
gave notice because he was going into the Army . Jesus said he promptly asked John
Almeida for the job , and was told to see the mother . Before he could do this, Tavares
changed plans and it became known he was not leaving . Jesus said he simply "let it
go at that ." From all of this he went on to describe the April request for reinstate-
ment as a completely separate incident . In his affidavit , instead, there is no mention
of any April incident or conversation at all. There Jesus states that the only conversa-
tion he had with Mrs. Almeida was part of his attempt to replace Tavares in March.
In fact his original statement closes with the positive insistence that the only wrong
done him was the refusal to give him a job in March.
More important , according to the affidavit, it was he, and not Mrs. Almeida, who
first mentioned the Union at all in their conversation , and this not during their face-
to-face interview as he said on the witness stand, but a week later when he telephoned
with the hope she had changed her mind . His first story , therefore , comports with
Mrs. Almeida 's oral testimony generally about a 30-day instead of a 5 -month leave
arrangement . And of course it also corroborates Mrs. Almeida 's testimony at the
hearing that it was Jesus who mentioned the Union and not she. In these circum-
stances, I cannot credit Jesus' testimony putting such damaging words into Mrs.
Almeida's mouth at the critical moment when she is alleged to have virtually admitted
the very illegal objective which goes to the heart of the complaint.
C. Analysis , additional findings , and conclusions
The record failing to reflect any significant evidence that Mrs. Almeida admitted
an illegal purpose in either March or April , all that remains of the final conversation
between Jesus and management is that he asked for work and was refused . The ques-
tion therefore becomes whether the General Counsel has proved , on the record as a
ALMEIDA BUS LINES, INC. 1121
whole, that Jesus was separated from his job against his will because of his union
activity or his testimony in 1962. At this point the General Counsel's argument really
is that because the Respondent punished Jesus to curb his union activities long ago
it must be assumed any subsequent denial of work was based on the same animus.
Suspicion apart, the conclusion is doubly difficult in this case because what evidence
of illegal motive there may be long antedates the events and is essentially foreclosed
by the limitations provisions of Section 10(b) of the statute.
To start with, it is a serious question whether the Respondent discharged Jesus at all.
He spoke of telling the managers he intended only to "try" to be a policeman; that it
was only a temporary position he was accepting. Inconsistently, however, he also
admitted his intention at the start was to remain at it permanently if he liked it, to
make a career there. The assertion in the General Counsel's brief that Jesus' appoint-
ment in October was a probationary one, subject to qualifying examination 5 months
later, is not supported by the record .4 And of course he never left the job. Moreover,
he made no complaint when his requests for continued part-time work were ignored
starting in December. According to his testimony, he not only "let it go" when his
application for a regular job was turned down in March, but he had made a like
request a month earlier. He testified that in January he spoke to John Almeida:
"I told him that I was ready to come back to work and I wanted to give him my 2
weeks' notice " Almeida told him there were no runs, and Jesus "let it go at that."
With so many requests for reemployment and successive offers of 2 weeks' notice
ignored, all without Jesus complaining, with the pleadings and Jesus' affidavit insisting
he was discharged in March and the oral testimony adding an April discrimination,
the contention, if it is the contention of the General Counsel, that Jesus was still an
employee in the spring has not been proved by persuasive evidence. A fair appraisal
of his status at the end is rather that of a former employee seeking to be rehired. As
stated above, it does not really matter whether he had been promised anything at all.
He was not hired. And the inquiry here is not why was he not hired, but whether
the real reason was in fact an illegal one.
Mrs. Almeida said her sole basis for rejecting Jesus was to carry out a company
rule, first established after a recent strike, never to rehire a former employee. As
an affirmative defense advanced by the Respondent this explanation of the manager's
decision has not been proved. Antone Sousa, a management representative called by
the Respondent, testified the rule is a broad one: "It applies to anyone that worked
for the Company." Mrs. Almeida named several employees she said had quit or been
discharged, and were later refused reemployment. The record also shows, however,
that others who had left were returned to work. Millette, formerly a busdriver, who
left in 1960, was taken on as an oil-truck driver in 1963 and 1964. Sylvia, a longtime
driver, retired in January of 1964; he returned in the summer as a busdriver when
more men are needed. More revealing, Mrs. Almeida herself testified unequivocally,
and in total inconsistency with her generalization, that she regularly rehires for the
summer months, drivers who have worked the previous season. The Respondent
would except some of these cases on the ground that the men were "needed," or that
Sylvia had been promised limited work even after his retirement. But Jesus' applica-
tion also came in the spring, when concededly the demand for employees increases.
In any event, it is clear that there is no absolute rule against reemployment, and that
whatever the true reason for not rehiring Jesus it was not the one stated by Mrs.
Almeida.
The record as a whole does not support the complaint allegation as to Gilbert Jesus.
Apart from the fact that the Respondent discriminated against him illegally back in
1961, there is no evidence whatever tending to show illegal motivation in this record.
He seems to have been on good terms with these people after his reinstatement. The
manager was not obligated to agree to any period of leave, even 30 days, when he
wanted the chance to change jobs. The very agreement with his request for part-
time work was a courtesy which tends to belie any antagonistic attitude. He was
friendly with the manager. "I used to go down for coffee with John and hang around
the garage." And he did quit of his own accord.
If illegal treatment of Jesus in 1964 is to be found in this case, it can only be on
the basis of the illegal conduct of the Respondent in 1961; that old evidence would
have to be the "independent and controlling evidence" determining the case.5 That
element of the General Counsel's proof now is more than mere "background evidence";
4 Jesus' total testimony indicates that it was not the public authorities which made his
appointment conditional, but himself: "I agreed to take that job for 5 months tem-
porarily and try it but with the understanding that I could return if I didn't like
the job."
6 See News Printing Co. Inc., 116 NLRB 210.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is the sole foundation supporting the essential element of union animus without
which the complaint must fall. Even assuming that the events of 1964 present an
ambiguous situation which requires a look backward to give a rational explanation to
Mrs. Almeida's conduct, the old activities are too remote in time to be persuasive
now.6
Accordingly, I shall recommend dismissal of the complaint in its entirety.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions, it is recommended that
the complaint herein be dismissed in its entirety.
° Compare Inland Seas Boat Co., 131 NLRB 706.
Lansing Automakers Federal Credit Union and Local 393, Office
Employees International Union , AFL-CIO, Petitioner. Case
No. 7-RC-6327. January 18, 1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Irene Piccone. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
1. The Employer, a Federal credit union operating under a charter
from, and the supervision of, the Bureau of Federal Credit Unions
of the Department of Health, Education, and Welfare, is a private
nonprofit corporation engaged in the extension of consumer credit
to employees of the Oldsmobile Division of General Motors Corpora-
tion in Lansing, Michigan, to whom its membership is restricted by
charter.
As of the end of 1963, the Employer had 10,093 active depositors
and total deposits amounting to approximately $8,757,000. Its total
outstanding investments or loans amounted to $7,836,000. During
1963 it loaned approximately $11 million to individual members and
approximately $300,000 to other Michigan credit unions. In the
same year, it deposited $550,000 in California savings and loan asso-
ciations and invested $150,000 in 90-day U.S. Treasury bills. Its
profits during 1963 were derived as follows : $827,000 from loans to
individual members, $17,150 from loans to Michigan credit unions,
and $24,500 from loans to California savings and loan associations.
Its total income during 1963 amounted to $869,000. The parties have
deferred to the Board in the matter of the assertion of jurisdiction
in this case.
Plainly, legal jurisdiction over the Employer exists. However, the
Board has not asserted its jurisdiction to the legal limit but has, in
150 NLRB No. 105.