Transport Co. of Texas

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 180 (N.L.R.B. 1969)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transport Company of Texas and Oil , Chemical and
Atomic Workers International Union , AFL-CIO.
Case 23-CA-3103
June 30, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 3, 1969, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. He also
found that Respondent had not engaged in certain
other alleged unfair labor practices and
recommended dismissal of these allegations of the
complaint. Thereafter, the Respondent filed certain
exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner 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 brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Transport Company of
Texas, Corpus Christi and Brownsville, Texas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified.'
'The Respondent contends in its brief that its Brownsville operation went
out of business and that there is no position to which Delgado could be
reinstated and that part of the Trial Examiner ' s Recommended Order is
now moot. Neither the General Counsel nor the Union has taken a
position on this matter Accordingly, we shall leave its resolution to the
compliance stage of the proceeding
'Add as the last paragraph of the notice the following
WE WILL notify Everado Delgado if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon a charge of
unfair labor practices filed by the Union on August 14,
1968, against Transport Company of Texas, herein called
Respondent or Company, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing dated October 8, 1968, in which he
alleged that Respondent had violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended,
herein called the Act. Respondent filed an answer, and a
hearing was held before me on November 20 and on
December 3, 4 and 5, 1968, in Brownsville, Texas, at
which all parties were represented. Subsequent to the
hearing, Respondent and General Counsel filed briefs
which have been carefully considered.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE COMPANY'S BUSINESS
Respondent, a Texas corporation, has its principal
office and place of business in Corpus Christi, Texas, and
another office and place of business in Brownsville , Texas,
where it is engaged in transporting oil in tank trucks from
the port of Brownsville, Texas, across the Mexican border
and return. During the 12-month period prior to the
issuance of the complaint, Respondent, in the course and
conduct of its business operations, received in excess of
$50,000 for the service of transporting oil from the port of
Brownsville across the Mexican border and return.'
Respondent concedes, 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
Oil Chemical and Atomic Workers International
Union, AFL-CIO, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting and the Issues
Respondent has two categories of employees working
for it at its Brownsville terminal, drivers and mechanics,
and on December 12, 1966, the Union was certified by the
Board as their exclusive representative for the purposes of
collective bargaining. After the certification, the Union
and the Company met for bargaining on a number of
occasions, the last meeting taking place on October 7,
1967, but the parties were unable to resolve their
differences and reach an agreement.
On May 1, 1968, the Union called a strike and 17 of
the 20 drivers in the unit participated, but the mechanics
and 3 drivers remained at work. The Company continued
to operate with three nonstriking drivers, and also used
the mechanics to operate the equipment. In addition, the
Company hired eight permanent replacements for the
striking drivers.
On May 3, 1968, the Union abandoned the strike and
applied for reinstatement of all strikers. Since
'Respondent performs this service for Pemex , an agency of the Mexican
government which owns the oil
177 NLRB No. 82
TRANSPORT COMPANY OF TEXAS 181
Respondent' s operations did not require more,
Respondent took back only four strikers at the time, but
did not discharge replacements . A few days later,
Respondent recalled two more strikers and subsequently,
as they were needed , recalled others.
Because of a reduction in Pemex ' s requirements,
Respondent laid off four drivers on July 15, 1968. None
of the replacements and none of the non-strikers were
affected by the layoff, but all four employees laid off were
employees who had participated in the May 1 strike and
had subsequently been recalled as business conditions
warranted . These four employees are the alleged
discriminatees , and the principal issue in the case is
whether or not they were discriminatorily selected for
layoff because they had engaged in the May I strike. In
considering this question it must be accepted that the four
strikers involved in this case had been legally replaced as
economic strikers during the earlier strike.'
B. The July 15, 1968, Layoff
1. Respondent' s explanation of the broad standards
used in selecting employees to be laid off
Eusebio Cuellar , Leonardo de la Garza , Everado
Delgado, and Roumaldo Guerra, the four drivers laid off
on July 15, allegedly for discriminatory reasons, had
participated in the May 1, 1968, strike .' Delgado was
immediately reinstated on May 4 with three other strikers,
but because of business requirements , Guerra ' s, Cuellar's,
and de la Garza ' s reinstatement was delayed , the latest
reinstatement date of the four being on June 27, 1968.
They were selected for layoff by Terminal Manager Brunk
with Vice President and General Manager Dodds'
concurrence and approval , and the Company 's explanation
for their selection is found in the testimony of Brunk and
Dodds, as well as in record statements of Respondent's
counsel.
As soon as the strike began on May 1, 1968, Brunk
telephoned Dodds in Corpus Christi and was instructed to
get in touch with driver applicants who had earlier
responded to newspaper employment advertisements when
Respondent expected a strike in October 1967. Brunk did
so, and by the end of the next day he had interviewed and
hired eight striker replacements . When the replacements
were hired , they were told that they did not have to
belong to the Union to work for Respondent and that
their jobs were not just for the duration of the strike but
were "permanent" as long as they did their work
properly.
On May 4, after the strike was abandoned,
replacements were retained, and Respondent , needing only
four additional drivers , reinstated Manuel Buentello,
'In an earlier case , Transport Company of Texas , Case 23-CA-3014,
decided October 25, 1968 , a Trial Examiner found that the strike was
economic . At this writing , the case is before the Board on General
Counsel' s exceptions.
'There is some question about the character or degree of Guerra's
involvement in the strike and about his request for reinstatement . Although
I find that Guerra actually did not work during the strike , although he
reported for work , and was in that sense a striker , regardless of his
motives, this is not of great importance because Respondent concededly
believed that he was and treated him as if he were a striker . Terminal
Manager Brunk said he knew that Guerra was on strike . Dispatcher
Cortinas knew that Guerra had gone home during the strike and did not
work during it, and Respondent 's counsel stated on a number of occasions
that Respondent dealt with all four discriminatees on the basis that they
were all strikers whether they actually were or not . See The Cooper
Thermometer Company, 154 NLRB 502, 504.
Rafael Martinez , Delgado , and Justo Castillo . Brunk said
that he made the decision as to which strikers to recall
and that he chose those who he thought were the best
drivers on strike and who would get along with the other
drivers and mechanics.4 Subsequently, as previously
indicated, four other strikers, including three of the
alleged discriminatees, were reinstated as business
conditions warranted.'
Brunk testified that he made the decision, with Dodds'
approval, as to which drivers would be laid off in the July
15 reduction in force. He said he "tried to lay them off in
the manner that they were hired in." In rehiring strikers,
he had recalled the "best four men first," and therefore,
when it was necessary to lay persons off, he let the last
four strikers recalled go with one exception, Delgado, who
had had an accident after the strike which influenced
Brunk ' s judgment in his case.
Laying Delgado aside , it was Brunk ' s testimony that in
planning the layoff he decided that all of the drivers,
including the non-strikers, replacements and returned
strikers were of equal ability. He then took into
consideration the fact that the replacements had been
promised permanent jobs so long as they met Company
requirements. Although the record is not crystal clear,
particularly because of Dodds' later testimony, the essence
of Brunk's testimony is that after deciding that all drivers
were relatively equal, and after considering that
replacements had been given a commitment, he then
looked only to returned strikers in selecting employees for
layoff and chose the last strikers reinstated as candidates
on the ground that since they were the last in they should
be the first out.'
The Company knew that a layoff was likely for some
time before it happened, and Brunk was in touch with
Dodds about it for guidance more than once. He testified
that he discussed with him the men he had picked for
layoff and the reasons for selecting them, but he added
that he "couldn't say exactly what was said" in their
discussion . He said he had no reason to discuss the
capabilities of employees who were not being laid off, that
the names of the four men actually laid off were the only
names he suggested to Dodds and he never thought about
laying off anyone else.
Dodds had been advised in June of 1968 by
Respondent' s customer, Pemex , that shipments might be
reduced shortly. He testified that Brunk telephoned him in
Corpus Christi on July 15 and told him that Pemex had
made its decision to cut Respondent ' s allocations. Dodds
then told Brunk to lay up four units and lay off four
drivers in accord with their previous plans, which he said
had been discussed earlier with Brunk and Respondent's
counsel. According to him, the decision as to which four
drivers should be laid off had been made 3 or 4 days
before Brunk telephoned him that the possible cut in
shipment was now definite.
Dodds described the basis for the Company's decision
as to which drivers should be laid off. He said that when
he learned that a reduction in force was inevitable, he
discussed the problem with Respondent ' s counsel on at
Nine strikers were never reinstated either because they had been
replaced or were never needed again
'Two replacements, Santos Garza and Robert Bates, quit on May 16
and June 21 , respectively, leaving vacancies for two strikers
'He said , for example that "he had to look to something else besides
their actual ability" because all drivers "were good workers , basically"
Also, he said he had to lay off "three of the last ones that were employed
after the strike ended," and so he "went to the drivers who engaged in the
strike to pick the three from , to lay off."
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least two occasions, and asked for guidelines to follow in
the reduction. Attorney Brown told him that the easiest
way out of the problem was to discharge the permanent
replacements, because, in that case, he would never get a
complaint from the Union. Attorney Brown went on to
add, however, that the Company had no duty to discharge
the replacements, but rather was obligated to retain the
best drivers, regardless of their Union affiliations. This
problem should be discussed with Brunk, Brown advised,
and Dodds said he and Brunk proceeded to discuss, by
telephone mostly, but once face to face, the selection of
the best drivers to be retained.
In his first conversation with Brunk, Dodds said he laid
down the general guidelines that counsel had given him,
and he instructed Brunk to select his best 12 drivers, and
when he had done that, Dodds would discuss the 4 men
that had to be terminated. A day or two later, in
Brownsville, Brunk gave Dodds the names of four men
that he had selected for layoff, and Dodds said he
examined Brunk "very carefully" on the basis for his
selection of each person. Delgado's driving record was
discussed, and the fact that he had been in two accidents
after the strike, and had not reported one of them, entered
into the decision to let him go. Dodds also recalled that
the driving records of some of the other drivers were
compared, including those to be retained as well as those
considered for layoff, but at the same time he was
"keeping in mind the guidelines as set out by our
attorney, Mr. Brown, that as a matter of law we did have
an obligation to the men we hired as replacements during
the strike." This was so, Dodds said, because the
Company had promised those men permanent positions,
and the strikers were not entitled to special consideration.
Brunk had a difficult time making up his mind as to
which were his best 12 drivers and which was the least
desirable 4. Dodds said, for with the exception of
Delgado, the ones selected were "as good drivers or
experienced drivers, well qualified drivers, as were" the 12
who were kept.
As in Brunk's case, it appears from Dodds' testimony
that although all drivers were equally qualified,
Respondent's commitment of permanency to replacements
was a factor relied on in the layoff as was the fact that the
four men laid off were the last strikers rehired, except
Delgado who was a special case. This is so even though
Dodds at times emphasized more than Brunk did the
selection of the "best 12" men for retention and
disavowed any intention to eliminate strikers as such.
Examples of his position, which is spread over many pages
of the record, are, in addition to what has already been
set forth, the following:
The Company had "made a commitment to these
replacement drivers," he said, and since the returning
strikers were reemployed in direct order of their
desirability, the ones reemployed last were "the least
desirable of those that went on strike." He did state that
his instructions to Brunk "were not to keep the permanent
people and just get rid of the returning strikers," but he
conceded that at least three of the men laid off were
"basically equal" to the drivers retained, and he added
that he was acting on instructions of counsel that
Respondent was not obligated to discharge replacements
first, because they had "equal rights, if not preferential
rights, over other drivers, providing they were of equal
desirability."
Having a corp of equally competent drivers in its
employ, Respondent had to decide which ones to let go,
and Dodds said that in doing this "Brunk examined his
own conscience. He also took into consideration, `Well,
who did we hire last? Who was the last driver we called
back to work?' Meaning that he was the least desirable of
those that were called back to work." He added that
"there was less obligation, moral obligation, on our part,
on the Company's part, to keep these men that we had
hired last." He pointed out, as an example, that striker de
la Garza, had been hired (reinstated) on June 26 and
therefore had been working just 2 or 3 weeks. This factor
was weighed against Respondent's commitment to the
replacements, Dodds said, but he added that Respondent
did not consider de la Garza or the other strikers who
were recalled to be "new employees." At another point in
the record, Dodds answered, in response to a question
about the "equality" of the men laid off in relation to the
men retained, that they "were equal basically . . . except
as I testified earlier, that these three were the last three
hired of the returning strikers, which meant that they were
the least desirable of the returning strikers."
Under examination by Respondent's counsel, Dodds
repeated that he had told Brunk to "select the best twelve
men to remain on the work force," but he also repeated
that Brunk had advised him that there were no "duds" on
the work force prior to the layoff. He advised Brunk that
he should not show preferential treatment to returning
strikers, but he also advised him that he had no obligation
to discharge replacements first, and "that as a matter of
fact indications were that possibly they should receive
preferential treatment."'
2. The evidence with respect to any specific criteria
used in selecting employees for layoff
It is difficult to define any specific criteria, either
objective or subjective, which Respondent claims to have
used in picking the "best" drivers for retention and the
"worst" for layoff because Brunk's and Dodds' testimony
is not always clear. Moreover, if any measurements of
driver desirability were utilized in coming to a conclusion
that all drivers were "equal," as both Brunk and Dodds
said they were, it is not always clear whether they claim
that any comparisons of relative worth were made by
them at all of all drivers without regard to their
participation in the strike.
It must be repeated that Brunk testified that he decided
which strikers to recall after the strike and he recalled the
ones he thought were the "best" drivers first. " Best"
included ability to get along with other employees, he
said. Brunk stated that accident records were considered,
but he qualified this to add that this was not given much
consideration by him because he had not been terminal
manager for long, and the records were in Corpus Christi,
in any case, and not at his disposal. From a negative point
of view, he stated that the employee's record for
absenteeism or tardiness did not enter into his judgment in
deciding who to recall first, and neither did their driving
records, experience generally, or length of service with
Respondent. He repeated, however, that the employees'
"general work attitude" was an element considered.
Brunk hired the eight replacements during the strike
with Dodd's approval, but how carefully the records , skills
'Apparently Respondent ' s counsel, as indicated, agreed that, everything
else being equal, Respondent' s commitment to replacements caused
Respondent to look only to rehired strikers in selecting persons for layoff,
because, in discussing the choice of Delgado for layoff, even though he had
been one of the first rehired , he stated that Delgado's accident was a
"factor considered in trying to decide which of these last seven people,
eight people, all strikers , should be selected for inclusions in the layoff."
TRANSPORT COMPANY OF TEXAS 183
or attitudes of these replacements were reviewed is unclear
from his testimony, and he conceded that their
recruitment was a hurried thing.' He also said that it was
the "policy" of the Company to check applicants' driving
records before they are hired.
When it became necessary to lay off four drivers on
July 15, Brunk had 17 drivers employed, including a few
nonstrikers, 6 replacements, and 8 reinstated strikers.
Brunk selected four employees for layoff. He was unable
to check company records of all drivers, for these records
are kept in Corpus Christi. Aside from an undeveloped
point he made about the four selected being the four who
were the "worst" in "getting along with others," his only
criteria, as I have indicated earlier, seems to have been
that the four let go were the last of the strikers reinstated
and so must have been the "worst" of the reinstated
group. Other than that, his view was that there were no
"duds" among the staff and all drivers were "equal" in
ability.
Dodds, as set forth in greater detail above, after
consulting Respondent's counsel, laid down "general
guidelines" for Brunk's guidance, telling him to select the
"best" 12 drivers for retention and promising to discuss
the remainder with him when he saw him. Although he
said he examined Brunk carefully later on the four he
chose for layoff, it is difficult to say from his testimony
what he examined Brunk on, and impossible to say what
factors, other than participation in the strike by strikers
and commitments made to replacements were
determinative. At one point, Dodds stated that the driving
records of all men were considered and discussed, but
later he said that the records of only some of the men
retained were discussed. In any event, whatever was
discussed and however it was determined who should be
retained and who should go, he agreed with Brunk that,
on July 15, Respondent "had a good bunch of men,"
including the strikers who had been reinstated, working
for it and so they were relatively equal in "desirability" in
the Company's eyes.'
The testimony of Respondent's witnesses is somewhat
more precise in respect to the reason for layoff in
Delgado's case. Brunk testified that he considered an
accident in which Delgado had been involved after he was
reinstated as "one strike against him" when he chose him
for layoff. Delgado was one of the four drivers
immediately reinstated after the strike was called off, and,
in that sense, was one of the "best" drivers among the
strikers, but his accident after the strike weighed against
him. It is a fact that Delgado was in an accident with
Company equipment on June 27, 1968, that he was cited
by the Brownsville, Texas, police department for following
too closely and having defective brakes, that Respondent's
insurance carrier investigated the accident and admitted
liability. It is also true that after this accident Dodds
wrote a letter to Delgado, which he received on the day he
was laid off, stating that no disciplinary action would be
taken against him, but any future accident would weigh
'He could not remember whether he spoke with Hernandez about his
record , but he said to the best of his knowledge he did not, and he
conceded that in that respect he was not sure of anything , because "the
way the thing happened , it happened so fast , we did the best we could "
'Respondent ' s brief states that accident records, except in Delgado's
case , were "not even a factor considered in the selection for layoff, except
in the sense that accident records were considered individually in Corpus
Christi as each accident occurred , and it was decided at the time of the
layoff that no driver had such a bad accident record as to cause his
discharge or to cause his selection for layoff and that "other factors should
control."
very heavily against him in making a determination about
his employment. Dodds said he wrote this letter because
he felt that Delgado was at fault, but, since there was no
one injured and property damage was not "too heavy," no
disciplinary action should be taken. According to Dodds,
Delgado's accident was discussed with Brunk when it
came time for the layoff and the accident affected his
decision in that case. It also appears from Dodds'
testimony that Delgado had hit a post at one time and
failed to report it to the Company. This was an additional
factor which entered into his and Brunk's decision to let
Delgado go in the layoff. Brunk testified that he had no
personal knowledge of Delgado's June 27 accident and he
never saw the accident report. He also had little
knowledge of the post hitting incident, for he said he was
on vacation at the time. It is also clear from the testimony
of both Brunk and Dodds that Delgado's driving habits or
record, if it was a factor in his layoff, was not compared
with the driving record of replacements, but only with that
of strikers who had been reinstated."
3. The evidence with respect to the driving records
of a number of Respondent's drivers employed on
July 15, 1968
Although Respondent takes the position that accident
records were not a factor considered in selection for
layoff, except in Delgado's case, because all drivers were
considered to be equally desirable from management's
point of view, nevertheless the background and records of
drivers retained and drivers laid off may be of some
significance in determining why Respondent chose only
reinstated strikers for layoff.
Delgado never had an accident before the strike, and
the other alleged discriminatees, de la Garza, Cuellar, and
Guerra, never were involved in driving accidents with
Respondent's equipment, either before or after the strike.
Santiago Gutierrez, Gilberto Leal, and Jesus Munoz
were drivers who did not participate in the strike. It
appears from Gutierrez' personnel file that he was
involved in an accident with a company truck in October
1965 in which there was total damage to the power unit
and the trailer. Guiterrez was not given a police citation,
however, and the file shows that the other party to the
accident, one of Respondent's competitors, admitted
liability and paid the full claim . Munoz' file contains a
written warning from Dodds, dated February 19, 1968,
stating that the Company had received two complaints
about his driving from a resident of Brownsville and that
Brunk had also observed him driving in an unsatisfactory
manner . If this happened again , the writer concluded,
disciplinary action would be taken. The file also shows a
minor accident in Munoz' case in April 1967; about which
he was given a warning by Dodds. Leal's file contains an
accident report regarding an accident on July 9, 1968,
describing a total loss of an automobile owned by the
other party to the accident. Leal received no police
citation , however, but the other party did. It also appears
from the file that Dodds sent Leal a memorandum on
August 14, 1968, telling him that he had been observed on
several occasions not exercising proper driving habits and
that Brunk had spoken to him more than once about this.
Dodds was unable to say that all of Leal's failings had
occurred after July 15, 1968.
Respondent's records also show that some of the
replacements had been involved in accidents. Felix Reyes
"See Brown ' s statement, fn 7, supra.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was involved in a minor accident involving a hose at the
customer ' s loading station on June 28, 1968. Reyes
admitted fault.
Replacement Eustaquio Guerra's file shows an accident
on June 28, 1968, involving his truck and a private car.
Guerra's file also showed that he worked for Respondent
in the past and was terminated in 1963 because he was
involved in a wreck . The records state that there was a
strong ordor of alcohol in his case, and he was not
considered eligible for rehire . Guerra had also been in a
minor accident with company equipment in August 1962.
Santiago Hernandez was hired as a replacement during
the strike, and Respondent sent questionnaires to his past
employers . He was employed by another company from
October 1967 to February 1968, and that employer
advised Respondent that he had failed to report for work.
Hernandez had had no accidents, but his employer did not
consider him a safe and efficient operator of tractor-type
equipment, and stated that it would not rehire him.
Another employer, for which Hernandez worked for a
number of years, advised Respondent that he had been
involved in accidents , that he was not considered reliable
and that it would not rehire him.
Replacement Edelmiro Garza' s personnel file shows
that a year before he was employed by Respondent he was
involved in a motor vehicle accident and was charged with
failure to keep a proper lookout. Upon inquiry of his
former employer, Respondent was advised that he had
been terminated because the Company had checked his
driving record and found it unsatisfactory. Not wishing to
chance an accident, he was released.
Alberto Flores, a replacement , had no accidents
between the time he was hired on May 2 and July 15,
when the layoff occurred, but his former employer
reported to Respondent when it checked Flores that he
had been involved in more than one accident , that he was
not considered a safe operator , that he had a record of
drinking on duty and that he was not considered honest
and reliable . Flores' former employer said it would not
rehire him. Respondent also checked Flores' record with
the Texas Department of Motor Vehicles after he was
hired and found that he had been cited for violations and
had been involved in accidents.
4. Alleged threats to strikers because of their union
activities
The complaint alleged that Respondent made certain
threats to returning strikers in violation of Section 8(a)(1)
of the Act, and the evidence on this point is also relied on
by General Counsel in support of his contention that
Respondent' s selection of strikers for layoff was
discriminatorily motivated.
Rogmaldo Guerra , one of the alleged discriminatees
who had been reinstated after the strike , was telephoned
and told to report for work by Roberto Cortinas,
Respondent's dispatcher , who General Counsel claims, but
Respondent denies is a supervisor ." Guerra was confused
about the date he reported for duty, but it appears to have
been on May 7 or 8. He testified that , when he reported,
Cortinas and Brunk appeared , and Brunk made certain
statements to him . According to Guerra, Brunk said that
there would be new rules governing drivers and that "if
any drivers have any accidents , traffic tickets or anything,
he is going to be fired ." Guerra also said that Brunk told
him that employees who "stuck" with the Company would
have "a job as long as we want," but those who belong to
the Union "have no rights" and they are "only
troublemakers." Guerra amplified this last statement to
add that Brunk said "first, if we belong the Union we
have no rights , we might lose our jobs."
Brunk denied that he told any employee or striker that
he would lose his job if he continued to engage in union
activities . He also said he had no knowledge of Cortinas
telling any employee that Respondent ' s rules would be
strictly enforced after the strike."
Cortinas was present when Brunk spoke with Guerra
when he returned to work after the strike . He testified
that Brunk told the employee that there was an opening if
he wished to work . Guerra indicated that he did, and
Brunk told him that he did not have to belong to the
Union to work for Respondent , and also explained that
some of the drivers who had gone on strike had been
permanently replaced . Brunk also advised the employee
not to get into any discussion or arguments with
replacements or with employees who worked for
Respondent' s customer . Cortinas denied that Brunk stated
that Guerra had no rights if he belonged to a union, that
unions were troublemakers and that the employee might
lose his job. Cortinas denied that he or Brunk said
anything about company rules being strictly enforced
because of the strike , and he added that, in fact, the rules
have not been more strictly enforced or changed at all.
I credit Brunk ' s general denial and Cortinas ' specific
denials of the coercive remarks attributed to Brunk by
Guerra. First of all, Guerra's memory was not good. This
was apparent from his first statements as a witness in
which he fixed his recall to work as weeks after he
actually was called back , and also from my observation of
him. Second , his testimony was somewhat confused and,
in my opinion , exaggerated in part . As indicated earlier,
in his direct examination, he seemed to add , almost as an
afterthought , Brunk 's alleged statement about losing his
job. This impression is reinforced by his subsequent
omission of that part of the threat when he was asked to
report his testimony . On further examination , he insisted
that Brunk had made such a threat , but it does not appear
in the statement he gave the Board agent in the
investigation of this case . I find that Brunk did not
threaten employees with loss of employment if they
continued their union activities, as the complaint alleged. I
also find that neither Brunk nor Cortinas threatened
employees with stricter enforcement of Respondent's work
rules because they had engaged in a strike."
Leonardo de la Garza , alleged discriminatee, was
reinstated on June 27, 1968, when one of the replacements
quit . Brunk was ill or on vacation at the time , and de la
Garza was interviewed by Cortinas before he was
reinstated . According to de la Garza, Cortinas told him
"There is a substantial amount of testimony about Cortmas' status
scattered throughout the record , but I find it unnecessary to resolve the
issue, since I find that Cortinas did not make the threat attributed to him
by employee de la Garza.
"The complaint alleged that Cortmas , not Brunk , made the threat about
stricter enforcement of work rules, but, as set out above , Guerra testified
that it was Brunk . Brunk was examined on these points by Respondent's
counsel after Brunk was called by General Counsel for cross-examination
under Rule 43(b). Apparently , counsel wanted to excuse Brunk and not
have to recall him again later At the end of Respondent's case,
Respondent's counsel, in view of Guerra 's testimony about Brunk, asked to
take Brunk 's deposition because he was ill . It appeared that Brunk would
not be sufficiently recovered to be able to be interrogated for at least a
week, and I denied Respondent's request. Respondent's counsel now
advises me in his brief that Brunk died after the hearing in this matter.
"Guerra conceded that Brunk did not connect the change in work rules
to the Union or the stoke in so many words . This was an impression he
got from Brunk 's remarks.
TRANSPORT COMPANY OF TEXAS
that he now had his job back, that he did not have "to
belong to any union in ; order to have, a job, with the
Company" and that, if he continued to belong to a union,
he "could lose (his) job permanently." There was also
some discussion about not getting into arguments with
new drivers or the mechanics. Cortinas denied that he told
de la Garza that if he continued to belong to the Union he
could lose his job or that he said anything to him about
the Union at all, except that de la Garza did not have to
belong to the Union to work for Respondent. Although it
appeared to me at the time that de la Garza was
attempting to faithfully recall Cortinas' words, I do not
have enough confidence in his recollection to credit his
testimony against Cortinas' denial. It appears from de la
Garza's testimony at another point in his examination that
Cortinas told him that he would lose his job "definitely"
if he remained a member of the Union. Previously he had
used the word "permanently," but then he maintained that
"definitely" or "definitively" was the word. De la Garza
cannot speak or understand English and his testimony was
translated by an interpreter. Although I am confident that
the translation was faithful, de la Garza did not come
through with conviction or precision. It also appears that
he did not recall everything that was said in the
conversation. Despite a doubt that Cortinas, too, did not
recall all that was said when he spoke with de la Garza,
his denial of threats was convincing." I find that the
evidence will not support a finding that Cortinas
threatened de la Garza with loss of employment if he
continued his union activities."
C. Analysis and Conclusions
When Respondent reinstated Delgado, Guerra, Cuellar,
and de la Garza as its business increased on vacancies
occurred after the strike was called off, it was doing no
more than the law required even if these men had been
properly replaced during an economic strike." This is so
because strikers remain employees if they have not
secured substantially equivalent employment and their
"basic right to jobs cannot depend upon job availability"
at the very moment the strike is concluded for this would
make the right to reinstatement depend on "technicalities
relating to the application."" If, after the conclusion of
the strike, Respondent had refused to reinstate the four
alleged discriminatees when business improved or
vacancies occurred, it would have committed an unfair
labor practice because the effect of its conduct would have
been to discourage employees from exercising their rights
to organize and strike guaranteed by the Act." In The
Laidlaw Corporation," the Board made it clear that
strikers are entitled to "full reinstatement to fill positions
left by the departure of permanent replacements,"
including the restoration of all seniority rights that they
had at the time of the strike. Stated in another way,
reinstated economic strikers who were once replaced, but
recalled when vacancies occur or other business conditions
warrant it, are not to be treated as newly hired employees
"He said he did not caution de la Garza about discussions with
permanent replacements or mechanics or customer 's employees , but I think
he did for this type of discussion occurred when other strikers were
reinstated , as appears from Cuellar' s testimony , which Cortinas confirmed
"The complaint alleged that Cortinas told employees that Terminal
Manager Brunk had made this threat De Is Garza testified that he
understood Cortmas' remarks as not his own but as relaying Brunk's
instructions only, because "everything he tells us Brunk tells him ." This is
an additional bit of imprecision adding uncertainty to de la Garza's
testimony
185
but must be treated "uniformly with non-strikers with
respect to whatever benefits accrue to the latter from the
existence of the employment relationship."'"
Respondent did not require strikers who were being
reinstated to file new employment applications, submit to
physical examinations or take driving tests, and in that
respect it might have appeared at the time of
reinstatement that they were being "fully" reinstated, but
whether they were in fact being restored to the same
status they occupied before the strike could not actually
be determined until a real test of that status would occur.
This first happened when it was necessary to reduce the
staff on July 15, and I am convinced that the evidence
demonstrates that when the issue arose strikers were not
accorded the same advantages that non-strikers and
replacements derived from their employment, but were
considered as more vulnerable. In my opinion, the record
in the case cannot be read in any other way than as an
exposition of the different standard by which the strikers
and non-strikers and replacements were judged in the
layoff. Strikers were placed in an inferior position and
treated differently than they would have been if they had
not interrupted their employment by a strike. In
evaluating replacements, Respondent added to their worth
the commitment it had made to them of permanent
employment, but when it measured strikers it made no
allowance for their prior employment, but for all practical
purposes considered them as employees newly hired. Thus
handicapped, reinstated strikers were seriously
disadvantaged in the competition for jobs. The favorable
allowance which replacements were afforded gave them a
better chance to survive a cut and made it more likely
that reinstated strikers would be caught in the reduction in
force. Strikers were classified apart from all other
employees and compared only with each other when
employees were being considered for layoff. By these
disparate techniques, Respondent tipped the scales against
the reinstated strikers for they were not appraised solely
on merit and without regard to their strike activity. Under
Respondent's formulae they would have had to have been
superior to other employees to have survived in the
reduction in force. This is evident from the testimony
which has been set forth above.
Looking at the testimony in the light most favorable to
Respondent, all drivers employed on July 15 were on the
same level of competence, efficiency and ability. If this
were true, then the only characteristic that distinguished
the laid-off employees from those retained was their
participation in the strike. This becomes more apparent
from Respondent's emphasis on its commitment to
replacements and its stress on its selection of reinstated
strikers for layoff on the basis of the order in which they
had been reinstated, its point being that since the alleged
discriminatees were called back to work after four other
strikers had been reinstated, and because strikers were
being reinstated in accord with the degree of their
"desirability" (competency), the discriminatees ranked
lower than those reinstated ahead of them, and this
resulted in their layoff. Thus, the only objective standard
used, or suggested as having been used , in determining
who should be laid off -onceit had been determined that
"N.L.R B v Fleetwood Trailer Co, 389 U.S. 75; The Laidlaw
Corporation, 171 NLRB No. 175.
"N.L.R B. v. Fleetwood Trailer Co., supra
"N L R B v. Fleetwood Trailer Co., supra
"Supra, fn. 16.
"Great Dane Trailers. Inc., 150 NLRB 438, enfd. 388 U S. 26.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all drivers were "equal"-was the order in which strikers
had been reinstated.
Respondent was not required to give preference to
strikers or place non-strikers and replacements in a
subordinate position when deciding who to retain, and in
choosing among "equals" it could have given controlling
weight to many factors unrelated to concerted activity, but
instead it chose to put equals into two different pools and
draw only from the one marked "striker ." This kind of
discrimination is illegal discrimination under the cases, for
the reinstated strikers were classified on the basis of their
protected strike activity and treated differently and less
favorably than they would have been if they had not
interrupted their employment by engaging ' in the strike.
Reinstated strikers were not treated uniformly with
non-strikers and replacements because their continued
employment was not determined by the same criteria. The
difference in treatment was substantial for it resulted in
substantially increasing the strikers chances of being laid
off. By setting up two classes of "equal" employees
separated on the basis of whether they had commitments
of employment or had been recently rehired after a strike,
Respondent divided its employees on the basis of invidious
considerations . By establishing such illegal dual standards
with its resultant selection of the alleged discriminatees for
layoff, Respondent violated Section 8(a)(1) and (3) of the
Act.
It has been assumed to here that Respondent did
consider all drivers as being on the same level of
competence, but the evidence really points the other way,
and I find that Respondent actually did not view all its
drivers as "equally desirable" in regard to driving ability.
On the other hand , the record supports a finding that the
reinstated strikers who were laid off on July 15 were
superior at least to some of the drivers retained, and this
supports the finding that Respondent relied more on the
strike activity of the persons laid off than it did on any
nondiscriminatory consideration."
First of all, returning to Respondent's explanation of
how it chose replaced strikers for reinstatement, Brunk
and Dodds testified that the " best" drivers were taken
back first . However , only eight strikers were taken back
and eight or nine were never reinstated. The
discriminatees, therefore, were by Respondent's own
definition better than eight other strikers who Respondent
had kept in its regular employ before the strike. If the
reinstated strikers were among the "best" of the total
complement of strikers, its a fair inference , which I draw,
that they were presumptively better than the replacements
who Brunk "hurriedly" hired within 48 hours.
Second , the driving records of some of the employees
retained , which have been set out above, lend additional
support to such an inference . Guerra, Cuellar and de la
Garza never had an accident and had good driving
records . Delgado had one accident costing slightly over
$500 and also hit a post . On the other hand , nonstrikers
had had accidents, even if minor , and certain replacements
had been involved in accidents and were not considered
safe and efficient drivers by their former employers.
Respondent's own policy with respect to discharging for
accidents is a rather severe one . Wisely recognizing the
importance of highway safety from numerous points of
view," it insists on uncontrolled discretion in discharging
""f all drivers were equal , as Respondent contends , then the fact that the
only 4 out of 17 drivers picked for layoff were all strikers and that 9
nonstrikers and replacements were not affected is mathematically some
evidence that strike activity was an element involved in the decision.
employees involved in accidents whether they are actually
at fault or whether or not it had been so determined. The
comparative records of those retained and those laid off
viewed in the light of this policy indicate that the strikers,
despite their relatively good records , were preferred for
layoff over replacements who had been promised
employment.
Third, despite what the files might have revealed about
safety, no real comparison of the driving habits or
potential of strikers was made against the replacements.
Brunk made no comparisons because he had no records,
and Dodds was vague about any comparisons he had
made . The only determination they admit making is that
no driver was a "dud," that is, eligible for immediate
discharge because of his record , but this is not the same as
saying that, in selecting employees for temporary layoff,
the most desirable from a safety point of view were
retained . I conclude, therefore, that the driving records of
employees evidences that Respondent gave preferred
treatment to nonstrikers and replacements as a class when
it chose employees for layoff.
Respondent contends that the record in the case will
not support a finding that its action in laying off the
discriminatees was motivated by antiunion considerations.
I have found that Respondent did not make certain
statements allegedly violative of the Act which might have
shown motivation in regard to the discriminatees , but this
is not controlling , for it is also established , as the Board
noted in Laidlaw Corporation, that "certain employer
conduct, standing alone , is so inherently destructive of
employee rights that evidence of specific motivation is not
needed."" In Laidlaw Corporation, the Board, relying on
the principles set forth in Fleetwood Trailer Co.,"
N.L.R.B. v. Great Dane Trailer," and N.L.R.B. v. Erie
Resistor Corporation,2' held with respect to one of the
strikers (Massey) involved in that case , that his right to
reinstatement did not expire when his original application
was made , and when his position again became vacant, he
was "entitled to full reinstatement unless there were
legitimate and substantial business justifications for the
failure to offer complete reinstatement." It appeared in
that case that Massey had been offered employment as a
new employee or "as an employee with less than rights
accorded by full reinstatement (such as denial of
seniority)" and this, the Board held, "could only penalize
Massey for engaging in concerted activity, was inherently
destructive of employee interests, and thus was
unresponsive to the requirements of the statute . . ."
Since, in the circumstances of the case, there was no valid
reason why the striker should not have been offered
"complete reinstatement" the Board held that the
Respondent' s failure to do so was a violation of Section
8(a)(l) and (3) of the Act.
In Fleetwood Trailer Co.," there was no need to prove
antiunion motivation, the Court held, when an employer
failed to hire strikers when new jobs were subsequently
established. In Great Dane Trailers," proof of antiunion
motivation again did not appear when an employer
refused to pay strikers vacation benefits while at the same
"See N.L R B v . Big Three Industrial Gas & Equipment Company. 405
F.2d 1140 (C.A. 5).
"171 NLRB No. 175.
"389 U .S. 375, 378
"388 U .S. 26, 34
"373 U.S. 221, 231
"Supra.
"Supra.
TRANSPORT COMPANY OF TEXAS
time announcing that it intended to pay benefits to
non-strikers, but the Court held that the act was
"discrimination in its simplest form" "which was capable
of discouraging membership in a labor organization within
the meaning of the statute." The Court noted that "The
act of paying accrued benefits to one group of employees
while announcing the extinction of the same benefits for
another group, who are distinguishable only by their
participation in protected concerted activity, surely may
have a discouraging effect on either present or future
concerted activity." The Court viewed the employer's
conduct as "having a potential for adverse effect on
employee rights" without deciding its degree, and, in the
absence of any evidence of proper business justification for
the conduct, sustained the Board's finding of a violation.
In Erie Resistor Corp," the Court concluded that the
Board was entitled to view an employer's grant of
superseniority to strike replacements and to strikers who
abandoned the strike as so destructive of employee rights
that it carried its "own indicia of intent" and which "is
barred by the Act unless saved from illegality by an
overriding business purpose justifying the invasion of
union rights."
I can see no real difference between Respondent's
treatment of the former strikers chosen for layoff in this
ease and the employer' s grant of superseniority to
replacements in Erie Resistor Corp., or treating striker
Massey as a new employee, as the employer did in
Laidlaw Corporation. Although Respondent has no
seniority plan as such, length of service is a consideration
which is normally considered by employers in making
determinations about employee tenure.'° The effect of
Respondent' s action in treating reinstated strikers as a
class of employees first considered for layoff, even if
everything else were equal, as Respondent contends, was
to treat them as if they had never worked for Respondent
before and to take away from them a status that they
would have retained if they had not gone on strike,
because it is obvious that, if they had not, they would
have been considered and weighed on their own merits
with other employees in the event of a layoff. Strikers
were not given the "full and complete" reinstatement due
them because they were placed in a subordinate class
distinguished only by the exercise of their statutory rights.
Such conduct is inherently destructive of employee rights,
and Respondent has shown no business justification for
selecting the former strikers for layoff, because, as stated
many times, it concedes that they were as "desirable"
from management's point of view as any employee
retained.
I conclude that by laying off Cuellar, de la Garza,
Delgado, and Guerra Respondent violated Section 8(a)(1)
and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations set
forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
11373 U.S. at 231.
30Although Respondent insists on retaining uncontrolled discretion in
discharge cases based on accidents , Dodds stated that in evaluating the
entire situation and making a decision as to whether to discharge a driver
who had been involved in an accident years of service was an item that
might be considered.
187
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it
cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that Respondent discriminatorily laid
off Eusebio Cuellar, Leonardo de la Garza, Everado
Delgado and Rumaldo Guerra. Cuellar and de la Garza
were recalled after the layoff and were working at the
time of the hearing. Guerra was also offered
reemployment, but turned it down. Accordingly,
Respondent will not be required to again offer them
immediate and full reinstatement to their former
positions. It will be recommended, however, that
Respondent offer Delgado immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
suffered by reason of the discrimination to the date of
reinstatement. Respondent shall also make Cuellar, de la
Garza and Guerra whole for any loss of pay they suffered
by reason of the discrimination against them by payment
to them of sums of money they would have earned as
wages from the dates of discrimination against them to
the dates of reinstatement, in de la Garza and Cuellar's
cases, and the date of refusal of reinstatement in Guerra's.
In all cases , losses of wages shall be reduced by net
earnings in accordance with the formula prescribed in F.
W. Woolworth Company, 90 NLRB 289, and interest on
such sums shall run and be computed in accordance with
the formula prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716.
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 engaged in commerce within the
meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By laying off Eusebio Cuellar, Leonardo de la
Garza, Everado Delgado, and Roumaldo Guerra, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
4. Respondent did not engage in independent violations
of Section 8(a)(1) of the Act by threatening employees
with reprisals because of their union activities, as alleged
in the complaint.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that Transport Company of Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in the Union or in any
other labor organization , by laying off or refusing to
reinstate employees , or in any other manner
discriminating against them in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) In any other like or related manner interfering with,
restraining , or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Everado Delgado immediate and full
reinstatement to his former or 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 as set forth in the section
of this Decision entitled "The Remedy ." Restore any
rights and privileges, including seniority rights , Cuellar, de
la Garza, and Guerra may have had prior to their layoff
and make them whole for any loss of earnings as set forth
in the section entitled "The Remedy."
(b) Preserve and, upon request , make available to the
Board and its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary in determining the amount due as
backpay.
(c) Notify Everado Delgado if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge
from the Armed Forces.
(d) Post at its terminal in Brownsville , Texas, copies of
the attached notice marked "Appendix ."" Copies of said
notice, on forms to be provided by the Regional Director
for Region 23, shall , after being duly signed by an
authorized representative of Respondent , be posted by it
immediately upon receipt thereof, and be maintained by it
for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(e) Notify the Regional Director for Region 23, in
writing , within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
therewith.':
IT IS FURTHER RECOMMENDED that the allegations of the
complaint that Respondent violated Section 8 (a)(1) of the
Act by threatening employees with reprisals because of
their union activities be dismissed.
"In the event this Recommended Order be adopted by the Board the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order be enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director in
writing within 10 days from the date of this Order what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act we hereby notify our employees that:
WE WILL NOT discourage membership in or activities
on behalf of Oil, Chemical and Atomic Workers
International Union , AFL-CIO, or any other labor
organization by treating employees who engaged in a
strike and were reinstated as new employees, or by
failing to offer said employees full and complete
reinstatement to their former positions, or by
discriminating against them in any other manner with
respect to their hire , tenure or any term or condition of
employment.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of rights guaranteed in Section 7 of the Act.
WE WILL make Eusebio Cuellar , Leonardo de la
Garza , Everado Delgado , and Roumaldo Guerra whole
for any loss of earnings they may have suffered as a
result of the discrimination against them . Cuellar and
de la Garza have previously been reinstated, and
Guerra has turned down an offer of reinstatement, but
all the rights and privileges they enjoyed before the
strike are being restored to them . We will also offer
Delgado immediate and full reinstatement to his former
position without prejudice to his seniority or other
rights and priviliges.
TRANSPORT COMPANY OF
Ti X AS
(Employer)
Dated By
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board' s Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 713-228-4296.