Sharron Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1974

214 N.L.R.B. 8 (N.L.R.B. 1974)

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sharron Motor Lines , Inc. and William E. Beard.
Case 10-CA-10506
October 10, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 17, 1974, Administrative Law Judge Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, Respondent 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 Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Sharron Motor Lines, Inc., Birmingham,
Alabama, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc. 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on April 4
and 5, 1974, in Birmingham, Alabama, on the complaint of
the General Counsel issued on February 8, 1974,' and the
answer of Sharron Motor Lines, Inc, herein called the Re-
spondent or the Company. In issue are the questions
i The complaint is based on a charge filed by William E Beard on De-
cember 11, 1973, a copy of which was duly served on the Respondent by
registered mail on the same day
whether the Respondent, in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended,2 dis-
criminatorily discharged employee William E. Beard be-
cause of his protected union and other concerted activities;
and whether it violated Section 8(a)(1) of the Act by inter-
rogating Beard concerning the union activities and sympa-
thies of another employee. At the close of the hearing, the
parties waived oral argument but thereafter submitted
briefs in support of their respective positions
Upon the entire record,3 and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Alabama corporation with an office
and freight terminal in Birmingham, Alabama, is engaged
in the interstate transportation of freight by motor carrier.
It annually furnishes motor freight services valued in ex-
cess of $50,000 directly to customers located outside Ala-
bama.
The Respondent admits, and I find, that it is an employ-
er engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is conceded that Teamsters Local Union 612, affiliat-
ed with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction, Questions Presented
The Respondent operates six terminals in Alabama and
Mississippi, of which only the Birmingham terminal is in-
volved. In the course of its organizational campaign, the
Union on June 28, 1973,° filed with the Board a petition for
an election to represent the Respondent's Birmingham city
2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an employer
..to interfere with restrain, or coerce employees in the exercise of the rights
guaranteed in section 7 " Insofar as pertinent, Sec 7 provides that
"[e]mployees 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
Sec 8(a)(3), with certain qualifications not material herein, prohibits an
employer "by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
shp in any labor organization -
In his brief, the General Counsel moved to correct the transcript of
testimony by changing the word "lesson" on p 13, 13, to "election " No
objection to the proposed correction has been received For this reason and
the fact that the word "election" is indicated by the sense of Beard's testi-
mony and conforms with his subsequent testimony given under cross-exam-
ination (p 25, II 13-15), the motion is granted and the transcript is accord-
mply corrected
All dates refer to 1973 unless otherwise indicated
214 NLRB No. I
SHARRON MOTOR LINES
drivers and dockworkers, numbering some 16 employees
(Case 10-RC-9681). On July 23, the parties agreed to a
Stipulation for Certification Upon Consent Election, which
the Regional Director approved The scheduled election
was held on August 2, resulting in the Union's defeat by a
vote of approximately 12 to 2 On August 10, these results
were formally certified. There is no evidence that the
Union remained on the scene following its election defeat.
About 4 months later, the Respondent had a reduction
in force due to a seasonal slack in business. Together with
two other employees, William Eugene Beard, referred to in
the record as Gene Beard, was terminated on December 5
under the circumstances related below Beard, who had
been in the Company's employ since January 4 as a city
driver, had actively solicited union authorization cards
during the organizational drive and participated in the
election as the Union's observer It is the General
Counsel's position that the Respondent utilized the reduc-
tion in force as the occasion to get rid of a union supporter.
In any event, the General Counsel argues that, if not for
that reason, Beard's discharge was motivated by his other
protected concerted activity. The Respondent, on the other
hand, insists that Beard's termination was prompted solely
by legitimate business considerations. Also to be de-
termined is the lawfulness of the Respondent's admitted
interrogation of Beard concerning the union activities of
Mike Sharron, the nephew of the Respondent's president.
We turn to the evidence.
B. The Evidence
1. The reduction in force; the asserted
decision to terminate Beard
There is no question that in the middle of November, as
in prior years, the Respondent was experiencing a seasonal
slack in business,5 requiring a cutback in the number of
drivers and dockworkers in its employ. According to its
president, D. J. Sharron, when this became apparent he
assembled the employees 6 on the dock and informed them
that the Company was overstaffed. He further testified that
to meet this problem he told the employees that they had
the option of taking turns to be off until business improved
and thus avoid the termination of any employee ' or else
that he would be obliged to discharge some of them. Not
receiving any response to his proposition, Sharron testified
that he inquired whether any employee preferred resign-
ing 8 to being discharged. Evidently, no one accepted this
alternative either.
5 The Respondent's president, D J Sharron, credibly testified without
contradiction, that the slowest period for truck lines is from November 15 to
the first part of the following March
6 Beard testified that he probably was on assignment at that time and that
therefore he did not attend that meeting
7 Sharron testified that it was his policy to terminate excess employees
rather than to lay them off temporarily because of the uncertainty of know-
ing when they would be needed again However, despite termination he
testified, he customarily recalls such employees for temporary part-time
work, if they are available
8 Sharron testified that he usually gives an employee the choice of resigna-
tion instead of discharge so as not to prejudice future employment, even
though no stigma attaches to a layoff for economic reasons
9
Sharron testified that after this meeting he decided to
terminate three or four employees but to leave it entirely to
their supervisor, Dock Foreman Jack B. Robbins, to make
the selection on the basis of the quality of their work per-
formance He further testified that on November 26 he
directed Robbins to submit to him a list of three or four
employees to be the first ones to be terminated on the basis
of job performance, without regard to seniority, in accor-
dance with a memo 9 he thereupon handed to Robbins
Sharron unequivocally denied discussing any individual
employee with Robbins, although he (Sharron) was person-
ally familiar with the work habits of the employees, includ-
ing Beard whom he had known for 18 or 20 years, and
although Robbins at this time had been in the
Respondent's employ for approximately 7 weeks only.
According to the testimony of Sharron and Robbins, the
latter, in compliance with Sharron's instructions, there-
upon prepared a list of 16 employees divided into three
groups with the employees in group I being the poorest
workers and the first ones recommended for termination.
In that group were listed in that order employees Beard,
Dickeson, Walker (also known as Kocomo), and Tyes.
Sharron testified that, while he did not dictate the selection
of these employees, he was in agreement with Robbins'
designation. However, Sharron decided to terminate
Beard, Dickeson, and Walker, but not Tyes, because the
three employees were on the first shift on which most of
the employees were employed while Tyes worked on an
early shift. When questioned why Tyes' Job was not offered
to Beard, an employee with greater seniority, Sharron testi-
fied that Beard had once declined an assignment on that
shift.
Concerning his selection of Beard for discharge,10 Rob-
bins testified that he relied on his personal observation of
Beard's work performance and habits, as-well as informa-
tion acquired from other drivers. Robbins, however, denied
that he had conferred with Company President Sharron or
other management officials in making his decision. Partic-
ularizing the basis for his decision, Robbins testified that
he had many complaints about Beard's use of profanity on
customers' premises and in the presence of women. Yet,
the only incident mentioned by Robbins had occurred at
Harris Warehouse in July, which was about 3 months be-
fore Robbins was employed by the Respondent. Beard
readily admitted that Harris' superintendent once told him
to control his language because the women in the office
could hear him. Beard testified that he thereupon ex-
pressed his regrets to the superintendent, explaining that he
did not realize that he could be heard by the women. Beard
further testified that he was not reprimanded by the Re-
' This memo, dated November 26 and signed by Sharron. read, as fol-
lows
Effective immediately, please arrange for lay-off of at least three
employees in your department due to slack of business
. In making this decision do not consider seniority or personalities but
merely the quality of work done Carefully evaluate all employees be-
fore making your final decision Thanks
15 Robbins also testified that he selected Dickeson for termination be-
cause he was an elderly man who had physical and medical problems. had
frequent absences, made many mistakes in his work, and was involved in
wrecks Walker, according to Robbins, was selected because he had a drink-
ing problem and lost much time from work on account of it
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent for this conduct and that, in fact, he returned to
the Harris Warehouse several times after this episode to
receive shipments. It also appears that the use of profanity
by drivers is not uncommon at this warehouse, as well as at
other customer locations and terminals.
Another reason Robbins claimed for recommending
Beard for termination was that he made mistakes. To sup-
port this assertion, Robbins testified to an episode in June,
about 3-1/2 months before Robbins entered the
Respondent's employ, when Beard inadvertently left be-
hind 19 cartons of paint on the dock of Indurall Coatings,
Inc., which was part of the freight shipment he was sup-
posed to pick up.i' However, the 19 cartons were recovered
the next day without any loss to the Respondent. Robbins
conceded that mistakes of this nature are not uncommon
among the drivers. Indeed, the Respondent has a depart-
ment under George Sexton, the freight claim agent, which
handles approximately 100 claims a month for overages,
shortages, and damages arising out of the Birmingham
terminal's activities. Moreover, Robbins admitted that he
had never discussed this Indurall incident with Beard.
A third incident to which Robbins testified as contribut-
ing to his decision to terminate Beard involved Beard's fail-
ure to obtain from Bowman Transportation Company a
notation of an exception on a bill of lading sufficient to
relieve the Respondent of liability for damaged goods re-
ceived by the Respondent on interchange for shipment to a
consignee. This incident occurred during the first week of
Robbins' employment and resulted in an argument be-
tween Beard and Sexton as to who was responsible for the
wording of the exception noted on the bill which Beard
had obtained from Bowman Transportation.12 Sexton sub-
sequently secured a corrected exception and no problem of
the Respondent's liability for the damaged goods ever de-
veloped. It also appears that Beard was not disciplined or
otherwise threatened with discharge by management for
his alleged delinquency.
As for Beard's other shortcomings which assertedly
prompted Robbins to select him for discharge, Robbins
testified that Beard was unable to get along with his fellow
employees about whom he had nothing good to say. When
asked under recross-examination to specify the respects in
which Beard was having trouble with the employees and
their identity, Robbins testified to uncomplimentary terms
in which Beard referred to an employee, Johnnie Stewart,
who was subsequently discharged on account of the large
number of mistakes he regularly made. Robbins also testi-
fied that he overheard Beard tell an employee that he was
going to whip employee Buddy Langley. Robbins conced-
ed that he was not aware of the cause of the friction be-
tween those two employees. Robbins also testified that
Beard did not have any use for a third employee, Jacob
Wright. On the other hand, it appears from Beard's testi-
mony that Langley was the only employee he disliked.
Finally, Robbins testified that he found fault with
Beard's standing around and talking while other employees
1' In the course of his testimony, Robbins stated that he heard that Beard
once left some cigarettes behind at the Harris Warehouse
12 In view of my ultimate determination, the testimonial conflict relating
to this subject need not be resolved
were preparing shipments of merchandise taken from the
pickup trucks. However, Robbins testified, he did not rep-
nmand Beard but simply asked him to help, as he had
done with respect to other employees when they failed to
participate in such work.
From a careful evaluation of all the evidence, I find the
Respondent's testimony concerning Beard's asserted -in-
adequacies grossly exaggerated It is clear that, whatever
they might have been, Beard's shortcomings were not pre-
viously regarded by the Respondent to be serious or excep-
tional enough to warrant a reprimand or discipline, much
less discharge. As I later find, I similarly doubt that these
shortcomings significantly contributed, if they did at all, to
his selection for termination in the subsequent economic
reduction in force.
2. Beard's discharge
On Tuesday morning, November 27, Sharron summoned
Beard to his office. According to Beard, the following tran-
spired: Sharron opened the conversation by telling Beard
that he could do both of them a favor by resigning In
reply, Beard stated that it was too close to Christmas for
him to quit at this time and requested Sharron to let him
work until after Christmas when they would discuss the
matter further. Sharron was amenable to the suggestion.
When Sharron commented that Beard could not get along
with the men, Beard disagreed conceding, however, that
Buddy Langley was the only one whom he disliked. Shar-
ron then remarked that he did not want Beard in the termi-
nal because he was unhappy working there. Beard denied
that he was unhappy in his job. This elicited Sharron's ob-
servation that the time was approaching for another elec-
tion and added that he did not want Beard there. Sharron
then proceeded to explain that 'the Company was over-
staffed and had to cut back on the number of employees.
Beard concurred that the Company had too many employ-
ees. Returning to the subject of the Union, Sharron re-
marked that the last time the Union appeared at the termi-
nal Beard "had him on the verge of selling the company."
Sharron then inquired whether his nephew, Mike Sharron,
who worked at this terminal, had helped Beard solicit
union cards. When Beard answered in the negative, Shar-
ron stated that he.had heard otherwise Beard thereupon
retorted that Sharron had heard wrong but added the com-
ment that Mike was in favor of the Union until the Union
secured cards when Mike backed out without helping at
all. Apparently on this note the conversation ended.
On Friday, November 30, the end of the workweek,
Dickeson and Walker were terminated. The following
Wednesday, December 5, Beard's timecard was pulled
from the rack and he was again summoned to Sharron's
office. This is Beard's account of this meeting. Declaring
that he had given Beard a chance to remain at the terminal,
Sharron accused him of not keeping his mouth shut. In
answer to Beard's inquiry what he had done, Sharron stat-
ed that he told Dickeson to go to the Labor Board to com-
plain about his layoff Beard replied that Dickeson asked
him for his opinion and that he told Dickeson "if I was in
his shoes, I would go down to the Labor Board and see
what they could do about it." Sharron thereupon declared
SHARRON MOTOR LINES
that it was Beard's "fault" and he was "fired" and directed
him to pick up his check any time after lunch. Sharron also
told Beard that he was thus giving him "a chance to go see
Sam Webb" (evidently intending a named union official)
or the Labor Board. Beard replied that "Sam" could not do
him any good as the Union had lost the election. In the
course of this conversation, Sharron also remarked that he
had nothing against Beard's work, which was satisfactory.
Sharron did not specifically contradict Beard's testimo-
ny concerning their first conversation on November 27.
Nor did he specifically deny the details of the discharge
conversation on December 5 as related by Beard, although
he gave the following version: 13 In the week after the ter-
mination of Dickeson and Walker, probably the first week
in December, Sharron told Beard that he had to lay off
somebody else and that Beard was the one and offered him
the option to resign.14 On this occasion, Sharron informed
Beard that the layoff was necessitated by economic reasons
and that he was one of those designated by Robbins to be
cut off.15 Beard declined to resign with the result that Shar-
ron told him he was discharged and that his final check
would be ready after lunch.
On direct examination, Sharron admitted that he asked
Beard questions about his nephew, Mike Sharron, some-
time between July and Beard's termination. Under cross-
examination, Sharron was equally uncertain about the date
except that he thought it was "some time after the election"
(which was held on August 2), on which occasion he told
Beard that he had heard that Mike had accompanied
Beard to the employees' homes to get cards signed and that
he (Sharron) wanted Beard to tell him the truth whether or
not Mike did it. After specifically denying that the conver-
sation regarding his nephew occurred on December 4 or 5,
Sharron was shown an affidavit he had executed for his
attorney in which he stated that the inquiry was made in
the discharge conversation on December 4. Under further
examination, Sharron thereupon conceded that it was very
possible and that he was not denying that the questioning
of Beard occurred on December 4. He, however, also testi-
fied that he had asked Beard the same question about his
nephew before December 4 but that Beard refused to an-
swer him at that time. Moreover, Sharron explained at the
hearing that it was important for him to have the informa-
tion concerning his nephew because "when you are work-
ing relatives, you are in an embarrassing position to start
with."
I find Beard's account of his two conversations with
Sharron thoroughly reliable and persuasive. His recollec-
tion of the details of these conversations impressed me as
being much better than Sharron's and not imagined. Ac-
cordingly, I credit Beard's testimony related above.
13 Although Sharron was not clear on dates, his testimony apparently
relates to his final discharge conversation with Beard
14 Admittedly, neither Dickeson nor Walker was given the option to re-
sign at the time of their termination
5 Sharron testified that at first he tried to keep Beard on the job and to
lay off only two employees but later realized he had to make a further
reduction in force
16 N L R B v Solo Cup Company. 237 F 2d 521, 525 (C A 8. 1956)
3. Subsequent offer of part-time work
Il
After Christmas, Dock Foreman Robbins telephoned
Beard and offered him temporary work for that day.
When, in response to Beard's inquiry, Robbins informed
him that it was not an offer of regular employment, Beard
declined the job for the stated reason that he had already
committed himself to work for Bowman Transportation
Company that morning. However, Beard made it clear to
Robbins that he was ready to return to his formerjob with
the Company if offered. Although Sharron testified that he
had instructed Robbins to call Beard whenever extra work
was available, this was the only time Beard heard from the
Respondent.
Admittedly, Dickeson, one of the other two employees
who were terminated before Beard, has been working on a
part-time basis for the Respondent since the middle of De-
cember. On several of these occasions, Dickeson worked a
full 40-hour week. Walker, the other terminated employee,
also worked part-time for the Respondent until he re-
signed. Moreover, there is testimony by Robbins that a
month before the hearing in this case he hired two employ-
ees who were then serving a 90-day trial period.
C. Concluding Findings
1. With respect to Beard's discharge
The question whether an employee was illegally termi-
nated because of his protected union or other concerted
activities is not susceptible of easy determination as it
largely involves an inquiry into an employer's state of
mind. In resolving this question, therefore, all the facts and
circumstances surrounding the separation must be careful-
ly evaluated with due recognition being accorded to the
settled principle that an employer may terminate an em-
ployee for any reason, good, bad, or indifferent, provided
the employee's union or other concerted activities do not
enter into the decision. To be sure, it is equally well settled
that the existence of a "justifiable ground for dismissal is
no defense if it is a pretext and not the moving cause." 16
From a careful review of the evidence, I find that, while
a reduction in force at the Birmingham terminal was neces-
sitated by legitimate business considerations, the Respon-
dent utilized this occasion to discharge Beard because of
his protected union and other concerted activities, as the
General Counsel contends, and not because of his unsatis-
factory work performance and other deficiencies, as the
Respondent urges. At the outset, there can be no doubt
that the Respondent was aware of Beard's involvement in
the Union's organizational campaign culminating in the
Board-conducted representation election on August 2,
1973. Not only did Beard act as the Union's election ob-
server but, as shown, above, Company President Sharron
admittedly questioned him concerning the assistance
Sharron's nephew gave Beard in soliciting employees to
sign union cards.
That Beard's known union and concerted activities en-
tered into the Respondent's discharge decision is plainly
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manifested in Sharron's remarks to Beard on November 27
and December 5 when Sharron notified him of his termina-
tion. In the first conversation, Sharron told Beard that he
did not want him to be around, noting that the time for
another election was approaching 17 and that when the
Union last appeared at the terminal Beard "had him on the
verge of selling the company." On the same occasion, Shar-
ron questioned Beard whether Sharron's nephew, an em-
ployee, had assisted him in soliciting employees to sign
cards. Moreover, as if to avoid liability for Beard's termi-
nation, Sharron at this time also offered Beard the alterna-
tive of resigning. This was not an option personally given
to employees Dickeson and Walker when they were in-
formed of their separation as a result of the reduction in
force. With respect to the December 5 episode, when Shar-
ron precipitately discharged Beard in the middle of the
workweek, Sharron bluntly stated that it was for the reason
that Beard had advised Dickeson to complain to the Labor
Board about his (Dickeson's) termination. It is not without
significance that, in firing Beard, Sharron cynically in-
formed Beard that he was also thereby giving him a chance
to confer with a named union official, as well as the Labor
Board.
Further supporting an inference of unlawful discrimina-
tion underlying Beard's discharge is the unconvincing na-
ture of the reason advanced by the Respondent for its se-
lection. As indicated above, whatever errors Beard had
made or shortcomings he possessed, they were not excep-
tional or substantially different from those made or pos-
sessed by other drivers. Indeed, it is quite clear that the
Respondent never considered these deficiencies serious
enough to warrant a reprimand or other discipline, much
less a warning that he risked discharge if his work perfor-
mance and habits did not improve. Moreover, the Indurall
and Bowman incidents upon which Dock Foreman Rob-
bins purportedly relied, in part, in selecting Beard for dis-
charge did not even result in any loss sustained by the
Respondent. In short, it is a fair assumption that the reason
why the Respondent did not discipline or warn Beard be-
fore his discharge is that it did not honestly believe that
Beard was the inadequate and unsatisfactory employee he
was depicted to be at the hearing. In fact, betraying the
pretextual nature of the Respondent's asserted reason for
the discharge is Sharron's admission to Beard upon his ter-
mination that his work perfomance was satisfactory.
Another factor which persuades me that Beard's dis-
charge was discriminatorily motivated is the studied effort
on Sharron's part to avoid even the appearance that he
might have dictated or participated in the selection of the
candidates for termination. It is difficult for me to believe
that Sharron, who was familiar with the employees' per-
formance , particularly that of Beard whom he had known
for 18 or 20 years, would not offer his opinion, at least, to
Robbins to guide him in his appraisal of the employees to
be designated for discharge. As shown above, Robbins had
been in the Respondent's employ less than 2 months at this
time and professedly relied upon the information he se-
cured from the drivers in making his selection. Moreover,
17 In view of the 1-year rule between elections (Sec 9(c)(3) ). Sharron's
apprehension conceivably might have been premature
what is perhaps more incomprehensible is Sharron's al-
leged instruction to Robbins to ignore seniority in de-
termining the employees to be terminated . Admittedly,
Beard had more service with Respondent than a number of
employees While it is true that an employer , not bound by
a collective -bargaining agreement to observe seniority in a
layoff, may ignore length of service if he so desires , it, nev-
ertheless , is not normal for him to disregard completely this
factor and the experience and reliability which length of
service normally connotes . In fact , the importance of se-
niority becomes more apparent where , as at the
Respondent 's terminal , a turnover problem exists. Thus,
Sharron testified that "[w]e have more [of a turnover] than
we want" and attributed this problem to the "type of peo-
ple that we have to deal with . They j ust don 't stay any-
where long."
Also suggesting that Beard was discharged for impermis-
sible reasons is the fact that he was offered temporary part-
time employment by Robbins after such work was made
available to Dickeson and Walker . From the reasons given
by Robbins at the hearing for the discharge of the latter
two employees , their work performance and habits were by
far less desirable than Beard 's. Obviously, it was not these
qualities which prompted the Respondent to prefer Dicke-
son and Walker over Beard for temporary part-time em-
ployment Moreover , no convincing explanation was pre-
sented why Beard was not offered temporary employment
subsequent to the only time Robbins had offered him a
day's work and Beard informed him that he had already
committed himself to work for Bowman Transportation
that morning. Nor, for that matter , was the Respondent's
employment prior to the hearing of at least two new em-
ployees without first recalling Beard explained . All facts
being considered , it was undoubtedly the Respondent's
displeasure with Beard's union and other concerted activi-
ties which accounts for the treatment accorded to him.
The Respondent argues, in effect , that no inference of
discrimination could be drawn in view of the fact that 4
months had elapsed since the Union's defeat before it dis-
charged Beard in a reduction in force and in view of the
absence of a past anti-union history. While these consider-
ations might militate against a finding of discrimination
under other circumstances , they do not preclude such a
finding here in light of the record evidence 18
In sum , I find that Beard's discharge was on account of
his union sympathies and activities and that his purported
unsatisfactory work performance and habits were but a
pretext to hide its true motivation. Such conduct clearly
constitutes discrimination in employment to discourage
union membership and the exercise of employee rights in
violation of Section 8(a)(3) and ( 1) of the Act In any event,
I find that the Respondent 's abrupt termination of Beard
on December 5 for advising employee Dickeson to go to
the Board to complain about his (Dickeson ' s) discharge
independently violated Section 8(a)(1) of the Act. Beard's
conduct , designed as it was to seek vindication of statutory
rights to which he believed Dickeson was entitled, was a
form of concerted activity for mutual aid and protection
18 For the same reason . I accord no weight to Company President
Sharron'\ self-serving denial of union animosity or to the fact that he was
once a union member for 15 or 18 years
SHARRON MOTOR LINES
which the Act safeguards.19 Finally, even were it assumed
that Beard's purported deficiencies to some extent entered
into the Respondent's decision to terminate him, I find that
his protected union and other concerted activities were a
substantial cause of his discharge and that therefore the
same statutory provisions were violated.20
2. With respect to interrogation
It is admitted that Company President Sharron ques-
tioned Beard whether Sharron's nephew, Mike Sharron,
had helped him in soliciting employees to sign union cards.
As Mike Sharron was a rank-and-file employee of the Re-
spondent and as there is no evidence that he enjoyed a
special status in his fob which allied his interests with those
of management, I find that the interrogation amounted to
an infringement of employee statutory rights violative of
Section 8(a)(1) of the Act.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and to take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that the Respondent unlawfully dis-
charged employee Beard because of his protected union
and other concerted activities. To remedy this unfair labor
practice, it is recommended that the Respondent offer
Beard immediate and full reinstatement to his former job
or, if that fob no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earn-
ings he may have suffered by reason of his unlawful dis-
charge by payment to him of a sum of money equal to that
which he normally would have earned from the date of his
discharge to the date of the offer of reinstatement, less his
net earnings during the said period. Backpay shall be com-
puted with interest on a quarterly basis in the manner pre-
scribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). To facilitate the computation, as well as
to clarify the named employee's right to reinstatement, the
Respondent shall make available to the Board, upon re-
quest, payroll and other records necessary and appropriate
for such purposes. The posting of a notice is also recom-
mended.
In view of the nature of the discharge for engaging in
protected union and other concerted activities which "goes
to the very heart of the Act," 21 there exists the danger of
the commission by the Respondent of other unfair labor
practices proscribed by the Act. Accordingly, I recommend
that the Respondent be ordered to cease and desist from in
19 Ertel Manufacturing Corporation, 200 NLRB 525 (1972)
20 See , for example, J P Stevens & Co, Inc v N L R B, 380 F 2d 292.
300 (C A 2, 1967), cert denied 389 U S 1005 (1967), N L R B v Jamestown
Sterling Corp, 211 F 2d 725, 726 (C A 2, 1954)
21 N L R B v Entwistle Manufacturing Company, 120 F 2d 531536 (C A
4, 1941)
13
any other manner infringing upon the rights guaranteed
employees in Section 7 of the Act.22
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of
employment of William E. Beard to discourage member-
ship in, and activities on behalf of, the Union, the Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act.
4. By discharging Beard for engaging in protected con-
certed activities for mutual aid and protection, the Respon-
dent engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
5. By interrogating Beard whether employee Mike Shar-
ron assisted him in soliciting employees to sign union
cards, the Respondent interfered with, restrained, and
coerced employees in the exercise of their statUory rights
within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) 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, as amended, I hereby issue the following recommend-
ed-
ORDER 23
The Respondent, Sharron Motor Lines, Inc., Birming-
ham, Alabama, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in Teamsters Local
Union 612, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization, by discharging
or laying off employees or in any other manner discrimi-
nating against them in regard to their hire or tenure of
employment or any term of condition of employment.
(b) Discharging employees or otherwise disciplining
them for engaging in concerted activities for mutual aid or
protection guaranteed them in Section 7 of the Act
(c) Coercively interrogating employees concerning the
union activities of their fellow employees.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization,
22 N L R B v Express Publishing Company. 312 U S 426. 433 (1941)
231n the event no exceptions are filed as provided by Sec 10246 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 it'.
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer William E. Beard immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of his unlawful discharge, in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful in analyzing the amount of backpay due and
the right to reinstatement and employment under the terms
of this recommended Order.
(c) Post at its terminal in Birmingham, Alabama, the
attached notice marked "Appendix." 4 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 10, after being duly signed by the Respondent's au-
thonzed representative, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter in conspicuous places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
24 In the event that this 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative they
choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of those activities.
WE WILL NOT discharge or lay off any employee or
otherwise discriminate against him because of his
membership in, or activities on behalf of, Teamsters
Local Union 612, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization.
WE WILL NOT discharge any employee or otherwise
discipline him for engaging in concerted activities for
mutual aid or protection guaranteed employees in Sec-
tion 7 of the Act.
WE WILL NOT coercively interrogate our employees
concerning the union activities of their fellow employ-
ees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist the above-named Union or any other
labor organization, to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities.
WE WILL offer William E. Beard immediate and full
reinstatement to his former job or, if that job no lon-
ger exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of earnings
suffered by reason of his unlawful discharge.
All of our employees are free to become, remain, or re-
frain from becoming or remaining members of any labor
organization.
SHARRON MOTOR LINES, INC.