M. R. & R. Trucking Co.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1109 (N.L.R.B. 1975)

M. R. & R. TRUCKING COMPANY 1109
M. R. & R. Trucking Company and Fred Hughes.
Case 10-CA-10960
June 30, 1975
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 21, 1975, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, counsel for the General
Counsel filed exceptions and a supporting brief,
Respondent filed a reply brief and cross-exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
rulings, fmdings, and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.
It is well settled that an Administrative Law
Judge's credibility resolutions will not be disturbed
unless a clear preponderance of all the relevant
evidence shows us that such resolutions are incorrect.
With regard to the circumstances surrounding the
discharge of Fred Hughes, a known union adherent,
the Administrative Law Judge credited the testimony
of Respondent's witnesses, specifically discredited
the General Counsel's witnesses, and found that
Hughes was discharged for sleeping at a time when
he was being paid to work.
The credited evidence reveals that Hughes and
employee Robert Nall were employed by Respon-
dent as switchers which job consists of placing
trailers at the docks for loading purposes and seeing
that the outbound units are pulled away from the
docks and their doors sealed. On the morning of
October 1, 1974, Dock Supervisor Harold Smith
received information from employee Nall which
indhhcated to him that Hughes was sleeping on the
job. Following the conversation with Nall, Harold
Smith and Dock Supervisor Jack Ramsey, who had
both missed seeing Hughes on the dock where he
usually was at that time, began looking for him, while
at the same time carrying out their regular duties.
Harold Smith credibly testified that when they began
looking for him there were some tractors Hughes
"could have been moving." Smith also testified that
at night when the switchers are out of work they
1 Klate Holt Company, 161 NLRB 1606 (1966).
218 NLRB No. 169
come to the dock and "check with us." In fact,
employee Nall did just that. During this slack period,
the switchers are generally not assigned other duties
such as "stripping or stacking" because there is not
that much time involved. Harold Smith and Ramsey
eventually found Hughes sleeping in the cab of a
switching tractor. After both of them had called him,
Hughes woke up, looked at Ramsey, and admitted
that he had been caught sleeping. Shortly thereafter,
Hughes was discharged for sleeping on the job.
The Administrative Law Judge correctly concluded
that the evidence is insufficient to establish that
Hughes was discharged because of his union activi-
ties. The mere fact that Respondent was aware of
Hughes' union activities and might have welcomed
the opportunity to discharge him does not, in itself,
make the discharge discriminatory if Hughes would
have been discharged in any event.' It is undisputed
that Hughes was discovered sleeping at a time in
which he was being paid to work. Respondent had
previously discharged Sexton, the only other employ-
ee found sleeping on the job, thereby eliminating any
disparity of treatment directed towards Hughes for a
similar offense. Accordingly, we agree with the
Administrative Law Judge that the 8(a)(3) allegation
should be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, M. R. & R. Trucking
Company , Ellenwood , Georgia, its officers, agents,
successors , and assigns , shall take the action set forth
in the said recommended Order.
MEMBER FANNING, dissenting in part:
I would affirm the Administrative Law Judge's
finding that the Respondent violated Section 8(a)(1)
by interrogating employee Nall concerning the union
activities of employee Hughes and by soliciting Nall
to report on Hughes' union activities. I also agree
with my colleagues' affirmance of the Administrative
Law Judge's finding that Respondent did not violate
Section 8(a)(1) by allegedly threatening Hughes with
discharge for having filed a charge with the Equal
Employment Opportunity Commission. However,
contrary to my colleagues and the Administrative
Law Judge, I would find that Respondent violated
Section 8(a)(1) and (3) by discriminatorily discharg-
ing and denying reinstatement to Hughes because of
his union activities.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hughes, a known union activist,2 was discharged
on October 1, 1974, between 1 and 1:30 a.m. for
allegedly sleeping on the job. Hughes worked the
evening shift, 4:30 p.m. to 1 a.m., but was often
asked to work overtime, as was the case on the
morning of his discharge. Hughes, along with Nall,
was responsible for placing trailers at the dock for
loading purposes and seeing that the outbound
trailers were pulled away from the docks and their
doors sealed.
The evidence, as corroborated by Respondent's
Dock Supervisors Smith and Ramsey, clearly indi-
cates that, when Nall and Hughes were caught up
with their work, they sat around without contacting
their supervisors and waited until they were given
additional work assignments. Customarily, the dock
supervisors would contact either Nall or Hughes
through the use of a radio3 and assign them work
when it became available.
Shortly before Hughes' discharge and after all their
work was caught up, Nall came up to the dock and
"jokingly" told Smith that, since it looked like it was
going to be a while before getting through, he would
take a nap. Smith retorted that, if anybody took a
nap, it was going to be him. According to Smith, Nall
then "laughingly" stated that he was sorry to tell him
(Smith) that he had been beat to it. Interpreting this
statement as indicating that Hughes was somewhere
sleeping, Smith and Ramsey immediately com-
menced an all-out search for Hughes, although
admittedly there was no work for Hughes and Nall to
do at this time. Hughes, found in the switching
tractor with his head resting against the door, was
discharged for sleeping on the job.
Assuming arguendo that Hughes was asleep,
though he maintains that he was not, I find, contrary
to my colleagues, that Respondent used the sleeping
incident as a pretext for getting rid of Hughes, one of
the Union's principal adherents. Respondent's
knowledge of and concern about Hughes' union
activities is apparent inasmuch as Supervisor Smith
was found to have interrogated Nall concerning
Hughes' union activities and to have solicited Nall to
report to him on them. Furthermore, Respondent
was found by the Law Judge to have shown union
animus when its president, at an employee meeting
the night before the election, stated that if the union
contract was signed he would lay off 65 men.
The pretext for the discharge is evident in that
Respondent's supervisors commenced an all-out
search for Hughes at a time when admittedly there
was nothing for him to do. Customarily, Respondent
permitted Hughes and Nall to do nothing when their
work was caught up. Based on Respondent's unusual
concern for Hughes' whereabouts, coupled with its
union animus and knowledge of Hughes' widespread
union activities, I conclude that the preponderance
of the evidence demonstrates that Respondent
discriminatorily discharged Hughes in violation of
Section 8(a)(1) and (3).
The only other instance of an employee being
discharged for sleeping on the job involved employee
Sexton who had taken a 4-hour nap at a time when
he was supposed to have been working, that is,
driving his pickup route. Unlike Sexton, Hughes was
not supposed to be working at the time he was found
sleeping and he was customarily permitted to do
nothing when his work was caught up.4 Therefore, I
find that the Sexton discharge is inapposite as proof
that Hughes was not disparately treated.
2 Hughes' union activities included serving as an observer for the Union
in an election held on September 20, 1974, and soliciting employees to sign
union authorization cards Hughes' activity culminated in certification of
the Union on the day before Hughes' discharge. Respondent's dock
supervisors admitted that they knew prior to Hughes' termination that he
had been quite involved in the union 's organizing campaign.
3 Nall and Hughes alternated between themselves carrying the radio and
driving the switching tractor.
4 My colleagues emphasize that it is undisputed that the sleeping
occurred at a time when Hughes "was being paid to work ." However, it is
also undisputed that there was frequently no work to do at this time of the
night, and that, according to Dock Supervisor Smith, there was no work to
do at the time Hughes was missed.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Atlanta, Georgia, on December 11,
1974,1 pursuant to a charge filed on October 10 by Fred
Hughes, an individual, and a complaint issued on Novem-
ber 13.
The complaint alleged that M. R. & R. Trucking
Company (herein referred to as the Respondent) violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (herein referred to as the Act) by
threatening an employee with discharge for filing a charge
with the Equal Employment Opportunity Commission
concerning Respondent 's terms and conditions of employ-
ment ; interrogating an employee concerning the union
activities of another employee; soliciting an employee to
report upon the union activities of other employees; and by
discriminatorily discharging and refusing to reinstate Fred
Hughes because of his union or concerted activities.2
Respondent in its answer filed on November 15 denied
having violated the Act.
The issues involved are whether the Respondent violated
Section 8(a)(1) and (3) of the Act by unlawfully interrogat-
ing and soliciting employees concerning the union, and
threatening an employee for filing a charge with the Equal
Employment Opportunity Commission; and whether
Respondent discriminatorily discharged Fred Hughes and
i All dates referred to are in 1974 unless otherwise stated.
2 The General Counsel's theory with respect to the concerted activities is
that Hughes by filing a charge with the Equal Employment Opportunity
Commission on behalf of himself and other employees concerning wages,
hours, and working conditions was engaged in a protected concerted
activity.
M. R. & R. TRUCKING COMPANY
denied him reinstatement because of his union or protected
concerted activities.
The parties at the hearing were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses , to argue orally on the record, and to
submit briefs.
Upon the entire record in this case and from my
observation of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respon-
denl.,3 I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS, OF THE RESPONDENT
Respondent, a Florida corporation, has a terminal
located at Ellenwood, Georgia, where it is engaged in the
business of providing services in the interstate transporta-
tion of freight by truck. During 1973, a representative
period, Respondent in the course of its operations received
gross revenues in excess of $50,000 for the interstate
transportation of commodities.
Respondent admitted, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admitted, and I fmd, that the Teamsters
Local Union No. 728, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein referred to as the Union),
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a terminal located at Ellen
wood, Georgia, where it is engaged in the business of
providing services in the interstate transportation of freight
by truck. Among its supervisory personnel are Don Smith,
who is the assistant terminal manager, and dock supervi-
sors, Harold Smith, Jonas Smith,4 and Jack Ramsey.
According to Dock Supervisor Harold Smith the other two
dock supervisors and himself are employed on the evening
shifts and enjoy equal supervisory status, and according to
Assistant Terminal Manager Don Smith they work
together supervising the employees.
The hours of the evening shift were from 4:30 p.m. to I
a.nn.; however, the employees usually worked past 1 a.m.
Fred Hughes, the alleged discriminatee, and George Nall
were employed on the evening shirt as switcherss under the
supervision of Dock Supervisors Harold Smith, Jonas
Smith, and Ramsey. Their duties as switchers involved
placing trailers at the docks for loading purposes and
o` Respondent's contention, renewed in its brief, relating to the denial of
pretrial discovery, is rejected for those reasons previously given..
94 The Respondent admitted, and I find, that Harold Smith and Jonas
Smith are supervisors within the meaning of the Act.
Respondent operates three shifts.
seeing that the outbound units were pulled away from the
docks and their doors sealed. They worked together as a
team and utilized a switching tractor to switch the trailers
in the yard. Their instructions, although at times given in
person, were normally communicated to them by the dock
supervisors through the use of a radio. Nall and Hughes
alternated between themselves carrying the radio and
driving the switching tractor.
Both Hughes and Nall denied they had ever been
instructed to perform any other duties when they were
caught up with their own work but stated they spent their
time waiting in and around the tractors or in the yard for
further instructions and on occasions would go to the dock
to see what work had to be performed.
Although Assistant Terminal Manager Don Smith
testified he had instructed the supervisors that when the
switchers were caught up and had time they were to
perform work on the dock such as checking or loading
freight, both Dock Supervisors Harold Smith and Ramsey
acknowledged they had not instructed Nall or Hughes to
report to them when their work was caught up because
there was not time to assign them such duties. While Dock
Supervisor Harold Smith stated during the afternoons
when the drivers were coming in Nall and Hughes would
sit in the tractor waiting for instructions, both he and Dock
Supervisor Ramsey stated late at night Hughes and Nall
were usually on the dock. Assistant Terminal Manager
Smith acknowledged he had` observed them in the
afternoons waiting for the city drivers.
Hughes' union activities included serving as an observer
for the Union in an election held on September 20;
soliciting employees to sign union authorization cards; and
attending a union meeting shortly before the election.
Assistant Terminal Manager Smith and Dock Supervisors
Harold Smith and Ramsey admitted having knowledge of
Hughes' union activities prior to his termination. Both
Assistant Terminal Manager Smith and Dock Supervisor
Harold Smith stated they were aware Hughes had served as
a union observer in the election. Assistant Terminal
Manager Smith acknowledged Hughes' name had been
mentioned by other supervisors as being one of the leading
union adherents and Dock Supervisor Harold Smith stated
he had heard Hughes had been getting cards signed in the
yard and had been quite involved in the union organizing
campaign. Dock Supervisor Ramsey said he had heard
Hughes was passing out cards.?
Apart from union activities the parties stipulated on or
about May 22 Hughes had filed a complaint with the Equal
Employment Opportunity Commission alleging that the
Company discriminates against or had discriminated
against him and other employees similarly situated in
regard to hiring, application of seniority rules, and working
conditions, on the basis of race.
6 The terms "switchers" and "hostlers" were used interchangeably by the
Respondent.
v Hughes testified on one occasion while they were coming out of the
break room Dock Supervisory Ramsey had looked at him and made some
remark about that was not 728. Ramsey stated although Hughes had turned
and looked at him, someone else had made the remark.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interrogations, Solicitations, and Threats
Engaged in by the Respondent
On or about June 21 during a discussion with Dock
Supervisor Harold Smith concerning a 3-day layoff Hughes
had been given for being off work, 8 Hughes stated he asked
Smith about putting on some more blacks9 whereupon
Smith's response was they couldn't chalige over night and
asked him whether he wanted to be a troublemaker or
something. When Hughes replied he just wanted to do
what was right Smith told him he wanted to get something
on him to fire him for. After Hughes commented he hoped
he made it stick Smith told him it would but it might take a
long time.
Dock Supervisor Harold Smith's version was he told
Hughes nobody was trying to run him off and the layoff
wasn't personal but was a disciplinary action and anybody
else would have gotten the same thing. Smith stated
Hughes said he thought he would have gotten fired for
having filed a charge with the EEQC. Smith, who
contended he did not know at the time Hughes had filed a
charge,10 assured him he would not be fired for anything
like that. Smith mentioned to Hughes if he had wanted to
fire him he could have done so a long time ago.11
Hughes on cross-examination further testified on one
occasion which he believed occurred during his first
meeting with Dock Supervisor Harold Smith that Smith
had asked him about passing out cards 12 'whereupon he
told Smith he didn't know what he was talking about and
that he had gotten the wrong man.13 Smith denied he had
talked to any employees about the union.
With respect to those conversations between Dock
Supervisor Harold Smith and Hughes I credit the testimo-
ny of Smith who I find was a more credible witness than
Hughes. Apart from my observation of the witnesses
Hughes' responses not only reflected uncertainty about his
own testimony but on occasions he contradicted his own
testimony. Therefore, I do not find as the complaint
alleged that Dock Supervisor Harold Smith threatened
Hughes with discharge for having filed a charge with the
Equal Employment Opportunity Commission.
George Nall -testified in August Dock Supervisor Jonas
Smith called him in the office and asked him if he would
like to tell him, anything about what Hughes had been
doing. When Nail who claimed he knew Hughes had filed
a charge, against the Company with the NAACP 14 asked
Smith if that was what he was referring to Smith told him
he had union cards which had been turned in by drivers
who said they had received them from Fred. Nall informed
Smith he was not aware of any union cards being passed
out and denied having seen any. Smith then told Nall he
didn't think he was involved with the union activities and
stated he could not understand why someone who had a
9 The layoff was not alleged , to have been discriminatory.
9 According to Smith the Company employed approximately 142 men, of
whom 9 men were black
10 The evidence did not establish when the Respondent was served with
a copy of the charge filed by Hughes with the Equal Employment
Opportunity Commission.
11 Smith's reference related to an incident which occurred prior to their
employment with the Respondent.
12 The, General Counsel did not allege Smith's questioning of Hughes
about passing out union cards to be unlawful
good job would want to try to bring the union in and try to
tell a man how to run his business for him. Nall further
stated during the conversation Smith told him if he heard
or saw anything he wished he would tell him about it.
Dock Supervisor Jonas Smith admitted telling Nall he
had heard cards were being passed out and asking him
whether he knew anything about it. Nall's response was he
wasn't sure and while -he had heard there had been some
cards -passed out he hadnyt seen any. Smith who denied
mentioning any names himself stated Nall told him he
didn't see a lot of men on the dock because he spent most
of his time in the yard, adding that he and Fred didn't have
that much to say to each other since Fred was on one
tractor and he was on another one and they didn't talk that
much. Smith stated he also told Nall if he had any
problems or if there was anything he could help him with
he would be more than happy to and if they had any
problems for them to get together and see if they could get
things straightened out themselves. Smith denied asking
Nall if he had seen any cards or if he knew there were any
cards being passed out.
I credit the testimony of Nall rather than Dock
Supervisor Jonas Smith and find that Smith coercively
interrogated Nall concerning the union activities of
Hughes and solicited Nall to report to him on the union
activities of other employees. Smith, as discussed supra,
had heard cards were being passed out and knew Nall and
Hughes worked together as a team which-is consistent with
Nall's version. Moreover, in addition to my observation of
the witnesses in discrediting Smith, his testimony was also
contradicted by Respondent's other witnesses at the time
Hughes was discharged, as discussed infra;
Nall further testified at a meeting of the employees held
on the dock on the Wednesday night preceding the
September 20 election, Respondent's President McKenzie
told the employees 15 what he thought about the Union and
how it would hurt the Company and made the statement if
the union contract was signed he would lay off 65 men.
During the meeting when Hughes mentioned they were
bringing in men who were below him on seniority to drive
during the day and asked McKenzie about it, McKenzie
informed Hughes he didn't know anything about that but
he would make him happy. According to Nall, at the end
of the meeting when they were giving away boxes of
groceries and asked for someone to draw the names,
Terminal Manager Tony Lifsey told them to let Fred draw
the first name out of the box. Although Hughes testified he
was not questioned concerning this meeting or the
statements allegedly made. Respondent neither denied
such meeting was held nor gave its version of what
transpired. I credit Nall's undenied testimony concerning
this meeting.
13 An affidavit given by Hughes to the Board agent during the
investigation contained the statement , "No supervisor has ever mentioned
anything about the union to me."
14 There was no evidence Hughes had actually filed a charge with the
NAACP against the Company.
15 Those statements made at the meeting were not alleged to be a
violation of the Act but offered only for the purpose of showing union
animus on the part of the Respondent and knowledge of Hughes' union
activities.
M. R. & R. TRUCKING COMPANY 1113
C. Events Leading up to and Hughes' Termination
Hughes, who had been employed by the Respondent for
about a year, was terminated on the morning of October 1.
That morning Nall was carrying the radio and Hughes was
driving the switching tractor. According to their testimo-
nies Nall had been on the dock and Hughes was sitting in
the switching,tractor16 when they received instructions
through Nall to move an empty trailer into the slot to be
vacated by a tractor and trailer operated by Earl Upton.
After hooking up.the empty trailer to the switching tractor
and returning to the slot Upton was vacating, Nall testified
he helped Upton hook up and shut his trailer doors. Nall
could not remember whether Hughes helped him with
Upton's truck or stayed in the switching tractor. Hughes'
recollection was it seemed he had helped Nall and Upton
close the door and that they might have said a few words
but lie couldn't remember.
Earl Upton, who is self-employed and leases tractors to
the Respondent in addition to driving himself, testified that
although Nall had helped him on that occasion he denied
having seen Hughes. Hughes and Nall stated after Upton
had left and the enipty trailer was backed into the slot,
Hughes pursuant to Nall's inquiry had informed him it was
about 1:10 a.m. Nall then returned to the dock to get a list
of trailers to finish up and Hughes drove the switching
tractor into the yard ahd parked. Hughes stated he
believed he parked the switching tractor around door 42
beside the front of a trailer about 50 feet from the dock,
although he could not remember which way he had parked.
Hughes acknowledged from his position he could not see
up on the dock.
According to Nall it was not until around 1:25 a.m. or
1:30 a.m. before he was called to move another trailer and
when he returned to the yard Hughes was not in the
switching tractor and he was subsequently informed by
Dock Supervisor Jonas Smith that Hughes had gone home.
Nall[ did not learn until the following day Hughes had been
terminated.
Both Upton and Dock Supervisor Jonas Smith who were
chatting on the dock 17 prior to Upton moving his tractor
and trailer stated the switching tractor which they observed
on that occasion with the empty trailer was the switching
tractor without its doors,18 whereas, Nall and Hughes
contended they were using the switching tractor with the
doors which they normally drove to move, that trailer.
However, none of the Respondent's witnesses testified they
actually saw Nall or Hughes driving the switching tractor
without the doors on that occasion.
Dock Supervisor Harold Smith testified about 12:30 a.m.
to 12:45 a.m. Nall came up on the dock and told him that
since it looked like it was going to be a while before getting
through, he thought he would take a nap. He informed
Nall if anybody took a nap it was going to be him.
Although Smith stated he felt up to that point Nall was
joking as Nall started to leave, Nall turned around,
18 Hughes stated he thought just prior to 1:05 a.m. he had been on the
dock for 7 or 8 minutes.
17 Dock Supervisor Jonas Smith placed the conversation with Upton as
occurring between 12:45 a.m. and 1 a.m. and Upton stated it was about I
a.m. when he moved his tractor and trailer to the other side of the terminal.
18 Nall testified the switcher on the night shift, Pete Reese, used the
laughed, and commented he was sorry to tell him but he
had been beat to it.
Nall couldn't remember exactly what he had said but
admitted having a conversation with Smith about taking a
nap and making a remark about someone had beat him to
it. Nall placed the conversation as occurring about 12 a.m.
or 12:30 a.m.
Although Smith interpreted Nail's remark as referring to
Hughes being asleep Nall at the hearing contended he had
only been joking on that occasion and did not have any
knowledge of anyone being asleep and believed at the time
the remark was made he remembered seeing Hughes on the
dock.
Following Nall's comment Dock Supervisor Harold
Smith, and Dock Supervisor Ramsey who both stated they
had missed seeing Hughes on the dock with Nall, testified
they began looking for Hughes 19 and after about 15 to 20
minutes during which time they also continued their other
duties, Smith spotted the switching tractor parked at a right
angle in front of some trailers around- door 36. Neither
Smith nor Ramsey, whose views were blocked by the
parked 'trailers, could see into the cab of the switching
tractor from the dock. However, upon going to the
switching tractor together they observed Hughes in the cab
asleep. 'After both of them had called him, Hughes woke
up, loclked at Ramsey, and commented he had caught him
dozing. Smith then told Hughes he could not see how they
could pay him $6.73 an hour for sleeping on the' job.
According to Smith this occurred between 1 a.m. and 1:15
a.m
Hughes' version was while he was waiting inside the
parked switching tractor he took his coat off, put it beneath
his head and laid his head back against the door. When
Dock Supervisors Harold Smith and Ramsey came into the
yard and were about 30 feet away Smith called him. Upon
answering Smith told him they weren't paying him $6.73 an
hour to sleep on the job. Hughes' response was if he was
sleeping he was on overtime. While Hughes at one point
stated they had asked him if he was sleeping he then said
he didn't think they had asked him specifically.
Under cross-examination, Hughes denied either seeing
or hearing Smith or Ramsey come up between the trailers
towards the switching tractor. Hughes claimed at the
hearing he had only been in the parked switching tractor 4
or 5 minutes and denied he had been asleep.
Contrary to Hughes' denial I credit the testimonies of
both Dock Supervisors Harold Smith and Ramsey, Who I
find were credible witnesses, and find on that occasion
they found Hughes asleep in the switching tractor and he
admitted he had been caught dozing. This finding is further
supported by Nall's comment to Dock Supervisor Harold
Smith, for which nb other logical explanation was offered,
that someone had beaten him to taking a nap and the fact
the cab of the switching tractor was parked in a manner
concealed from the dock. In addition to having previously
discredited Hughes, his testimony as to this conversation
switching tractor without its doors.
19 While Dock Supervisor Harold Smith stated when he had first missed
seeing Hughes he didn't have anything he needed him to do, he claimed
when they began looking for Hughes there were some traders Hughes could
have been moving
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not only conflicting but at no time did he specifically
deny to Dock Supervisors Harold Smith or Ramsey that he
had been asleep. To the extent Nall's testimony about this
incident conflicts with this finding it is hereby discredited.
When Nall was first questioned about Hughes' discharge
by Assistant Terminal Manager Smith, as discussed inf a,
he professed no knowledge about Hughes' discharge and
only after Nall could have reasonably anticipated his
remark to Dock Supervisor Harold Smith about someone
napping could have precipitated Hughes' discharge did he
report to Assistant Terminal Manager Smith the approxi-
mate time they had finished parking the trailer. Under
these circumstances I am persuaded the reconstruction of
those preceding events by Nall became distorted, and I do
not find his testimony concerning those events credible.
Hughes was then taken to the office by Dock Supervisors
Harold Smith and Ramsey where they were joined by
Dock Supervisor Jonas Smith, who was informed of the
incident by Ramsey.
Hughes' version of the discharge conversation was when
one of the supervisors asked about job security Jonas
Smith mentioned he was one of the main ones that had
been stabbing them in the back. Hughes stated when
Harold Smith asked him what he thought he should do he
mentioned it had always been the common policy to give a
man three letters before being dismussed?° Harold Smith
responded by shaking his head and laughing. Upon asking
Smith whether he was fired Smith told him he was and to
hit the clock and get off the premises. According to Hughes
during the conversation Ramsey mentioned he came out to
get him for at least 15 minutes. Hughes stated he clocked
out at 1:21 a.m.21
Dock Supervisor Harold Smith's version was upon
informing Hughes he didn't see how they could pay him to
sleep on the job Hughes persisted in telling them it was
okay to take a nap when they got caught up.
Dock Superintendent Ramsey testified when Dock
Supervisor Jonas Smith asked Hughes what he would do if
things were reversed Hughes first said he would lay them
off for 3 days but then stated he didn't believe he would do
anything to them. According to Ramsey Dock Supervisor
Harold Smith then told Hughes he was going to have to let
him go and to pick up his card and get off the premises.
Dock Supervisor Jonas Smith's version was after he had
informed Hughes he could not sleep on the job upon
asking Hughes what he would do if the situation was
reversed Hughes first said he would probably give a man a
3-day layoff but then stated he didn't believe he would and
thought he would overlook it the first time. Jonas Smith
stated Harold Smith then said he was going to let Hughes
go and told him he didn't need him any longer. Jonas
Smith further stated there were several questions about
Hughes being asleep and' Hughes was informed they
couldn't pay him that amount of money for sleeping on the
job. Hughes denied anything was said about it being a
company policy to give a man three warning letters.
However, contrary to the testimonies of both Dock
Supervisors Harold Smith and Ramsey, Jonas Smith
testified that Hughes had admitted in their presence during
the conversation that he had dozed off.
Both Harold Smith and Jonas Smith stated as Hughes
was leaving he made the comment he hoped they could
make it stick.
Having previously discredited the testimonies of both
Hughes and Dock Supervisor Jonas Smith I discredit their
versions of the discharge conversation and credit those
versions of Dock Supervisors Harold Smith and Ramsey,
who I have previously credited.
Later that day, when Assistant Terminal Manager Don
Smith who was investigating Hughes' discharge questioned
Nall about whether he knew anything concerning Hughes'
discharge, Nall informed him he had just found out about
it and did not know what had happened. Nall, pursuant to
Smith's inquiry, denied his remark to Dock Supervisor
Harold Smith had referred to Hughes.22 Nall stated he
informed Assistant Terminal Manager Smith the best he
could remember Hughes was on the dock when he said it.
However, the following day Nall for the first time
informed Assistant Terminal Manager Don Smith that at
the time he and Hughes had moved the trailer that night
Hughes had told him it was 1:10 a.m. Smith testified Nall
also told him the number of the trailer and the door.
Although the Respondent did not have any posted rules
concerning sleeping on the job, according to Assistant
Terminal Manager Don Smith and Respondent's records
on August 13, 1973, a city driver named. William Sexton
was terminated for taking a 4-hour nap on the job while
supposedly running his pickup route. According to Smith
that was the first time Sexton had been caught sleeping.
Hughes denied the supervisors had ever seen him asleep
and Nall denied he had ever slept in the tractor or
observed other employees sleeping on the job.
D. Analysis and Conclusions
The General Counsel asserted contrary to the Respon-
dent's denial that the Respondent violated Section 8(a)(1)
and (3) of the Act by unlawfully interrogating and
soliciting employees concerning the Union; threatening an
employee for filing a charge with the Equal Employment
Opportunity Commission; and by discriminatorily dis-
charging and denying reinstatement to Fred Hughes
because of his union or concerted activities.
Section 8(a)(l) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part:
"It shall be an unfair labor practice for an employer .. .
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 organi-
zation . . .
Based upon my findings supra, Respondent's Dock
Supervisor Jonas Smith coercively interrogated Nall
concerning the union activities of Hughes and solicited
Nall to report to him on the union activities of other
employees. The interrogation of employees concerning the
20 There was no evidence offered to show such a policy actually existed. 22 Nall also stated the day after Hughes was discharged he informed
21 Assistant Terminal Manager Smith stated Hughes' timecard which both Dock Supervisors Harold Smith and Jack Ramsey that his remark
was not offered as evidence showed he punched out at 1 : 36 a.m. about a nap did not refer to Hughes.
M. R. & R. TRUCKING COMPANY 1115
union activities of other employees and soliciting them to
report upon the union activities of fellow employees
violates Section 8(a)(1) of the Act. See Sew-Magic, Inc., 184
NLRB 924 (1970). Therefore, I hereby find such conduct
interfered with, restrained, and coerced Nall in the exercise
of his rights guaranteed in Section 7 of the Act and thereby
violated Section 8(a)(1) of the Act.
The remaining issue is whether Hughes was discrimina-
torily terminated and denied reinstatement. While the
General Counsel contended Hughes was discriminatorily
discharged for engaging in union activities or, in the
alternative, because of his protected concerted activities,
the Respondent's position was he was terminated for cause
for sleeping on the job.
With respect to the protected concerted activities theory
the Board has held that concerted activities engaged in by
employees against an employer's alleged racially discrimi-
natory hiring practices are protected under Section 8(a)(1)
of the Act. See Tanner Motor Livery, Ltd, 148 NLRB 1402
(1964), remanded on other grounds 349 F.2d I (C.A. 9,
1965), original decision affirmed, 166 NLRB 551 (1967),
remanded 419 F.2d 216 (C.A. 9, 1969); Mason and Hanger-
Silas Mason Co., Inc., The Rust Engineering Company, a
joint venture d/b/a Mason-Rust 179 NLRB 434 (1969),
enforcement denied 449 F.2d 425 (C.A. 8, 1971). Also,
filing charges of discrimination against an employer
because of working conditions with the Fair Employment
Practice Commission, which would be analogous to filing a
charge with the Equal Employment Opportunity Commis-
sion, has been held to be protected under the Act. Advance
Carbon Products, Inc., 198 NLRB 741 (1972), enfd. 489
F.2d 732 (C.A. 9, 1974).
However, in the instant case, assuming arguendo Hughes
was engaged in. a protected concerted activity by filing a
charge with the Equal Employment Opportunity Commis-
sion, having discredited his testimony that he was threat-
ened with discharge for inquiring about hiring more blacks,
and absent any other evidence, I do not find the evidence
sufficient to prove Hughes' discharge occurring more than
4 months after he had filed such a charge was in any way
related to his having filed the charge.
Upon considering whether Hughes was discharged
because of his union activities, if an employee's discharge is
motivated by antiunion design such discharge is violative
of the Act even though the employee has performed
misdeeds which would warrant his dismissal. Frosty Morn
Meats, Inc. v. N.L.R.B., 296 F.2d 617, 620 (C.A. 5, 1961).
The evidence here not only established Hughes had been
an active union adherent but Respondent was admittedly
aware of his union activities. Moreover, Respondent's
union animus was clearly established through Dock
Supervisor Jonas Smith's unlawfully interrogation and
solicitation of Nall, including questions about Hughes'
union activities as well as President McKenzie's speech to
the employees. Although I have considered these factors
inasmuch as I have found Hughes was caught sleeping on
the job which was the reason given for discharging him and
by discrediting Hughes' version of the discharge conversa-
tion, I am persuaded and find the evidence is insufficient to
prove Hughes was discharged because of union activities.
Further evidence to support this finding is the fact the only
other employee found asleep on the job was also
terminated, thereby eliminating any disparity of treatment
directed towards Hughes for a similar offense.
Accordingly, I find that the General Counsel has failed
to prove by a preponderance of the evidence as in his
burden that Hughes was discriminatorily discharged and
denied reinstatement as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of the Respondent
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. M. R. & R. Trucking Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Teamsters Local Union No. 728, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating an employee concerning
the union activities of another employee and by soliciting
an employee to report to the Respondent on the union
activities of other employees, Respondent has interfered
with, restrained, and coerced its employees in the exercise
of their rights guaranteed in Section 7 of the Act, and has
engaged in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. Respondent did not violate Section 8(a)(3) and (1) of
the Act by discriminatorily discharging and refusing to
reinstate Fred Hughes, as alleged.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1) of the Act I shall recommend that it cease
and desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 23
Respondent, M. R. & R. Trucking Company, Ellenwood,
Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employ-
ees by coercively interrogating them concerning the union
activities of other employees and by soliciting their
employees to report to the Respondent on the union
activities of other employees.
(b) 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 the
Teamsters Local Union No. 728, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing or to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section
7 of the National Labor Relations Act, as amended, or to
refrain from any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business located at Ellenwood,
Georgia, copies of the notice attached hereto marked
"Appendix." 24 Copies of said notices on forms provided
by the Regional Director for Region 10, shall, after being
duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Respondent shall take
reasonable steps to insure that said notices are not altered,
defaced or covered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ordered that the complaint be and hereby
is dismissed insofar as it alleged unfair labor practices not
specifically found herein.
23 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 findings,
conclusions , and recommended Order herein shall, as provided 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.
24 In the event the Board 's Order is enforced by a Judgment of the
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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
concerning the union activities of other employees.
WE WILL NOT solicit our employees to report to us
upon the union activities of other employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights to self-organization, to form, join or
assist the Teamsters Local Union No. 728, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
or any other labor organization to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection
or to refrain from any or all such activities.
M. R. & R. TRUCKING
COMPANY