Alamo Express, Inc.

National Labor Relations Board - Board Decisions

Mar 13, 1968

170 N.L.R.B. 315 (N.L.R.B. 1968)

ALAMO EXPRESS, INC. 315
Alamo Express, Inc. and Alamo Cartage Company
and General Drivers, Warehousemen and Helpers
Local Union No . 968, General Drivers,
Warehousemen and Helpers Local Union No. 657,
and General Drivers, Warehousemen and Helpers
Local Union No . '940, affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Cases
23-CA-2262, 23-CA-2408, and 23-CA-2459
March 13, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 2, 1967, Trial Examiner Horace A.
Ruckel issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . He also found that the Respondent had not
engaged in certain other unfair labor practices al-
leged in the complaint and recommended that
those allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision together with
supporting briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial 'Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as herein modified.
1. Various Teamsters locals have repeatedly at-
tempted to organize Respondent' but, until the
1965 election, had been unsuccessful. On May 20,
1966, however, the Charging Parties herein, all
Teamsters locals,' received Board certification. We
concur with the Trial Examiner's finding that'' the
Respondent violated Section 8(a)(5) of the Act in
admittedly refusing to meet and bargain with the
Union as the certified bargaining representative of
its employees.
In defense of its admitted failure to bargain, the
Respondent argues that the Union has not
represented an uncoerced majority of its employees
in spite of the certification. Among other things,
the Respondent contends that Rogelio Gutierrez,
whom the Trial Examiner found to be a supervisor
within the meaning of the Act, exerted undue in-
fluence upon his subordinate employees in favor of
the Union unbeknown to the Respondent until after
such time as objections could have been taken to
the July 1965 election. The Trial Examiner, citing
Producers, Inc.' and Genesco, Inc.,' held that objec-
tions to the election could not be relitigated- in the
present case and thus did not consider on its merits
Respondent's contention that Gutierrez' prounion
activities constituted newly discovered evidence of
conduct which requires the setting aside of the
election. We have, however, considered this as-
serted defense to the alleged 8(a)(5) violation of
the Act, and find it to be without merit.
Unlike the Trial Examiner, we are not persuaded
that Rogelio Gutierrez, during his temporary ser-
vice as a dock foreman, was in fact a supervisor
within the meaning of the Act. It is conceded by the
General Counsel that certain of Respondent's regu-
lar dock foremen were supervisors. However, the
General Counsel contends, and we agree, that the
circumstances surrounding Gutierrez' assignment to
this position as well as he nature of the actual du-
ties he performed milit to against a finding that he
served in such supervisory capacity during the
period immediately prior to and after the election.
This longtime employee of the Respondent had in
the past filled in or assisted in the position of dock
foreman from time to time when vacancies oc-
curred because of vacations or otherwise. However,
he never accepted more than temporary status in
this position until such time as he would be
replaced by the regular or newly appointed
foreman. In the present instance , when the regular
dock foreman left, he agreed only to help "clean up
the dock," i.e., to see to it that the freight which
had been piling up, once again started to move; and
he agreed to act in this capacity only until such
time as his Employer could find someone 'to take
over fully the duties of dock foreman. -
' Emerging from these earlier organizing campaigns there is presently
pending before the Fifth Circuit the Board 's petition to have the Respon-
dent adjudged guilty of civil contempt. N L.R B. v. Alamo Express, Inc. and
Alamo Cartage, 395 F.2d 481 (C.A. 5). Board orders were enforced by the
Fifth Circuit against Respondent in 1959 ( 119 NLRB 6) and again in 1964
an order (not published in NLRB volumes) was enforced in Case 21,456
(unreported) on July 10, 1964) Each of those cases involved violations of
the Act similar to those involved in the present case. The pending petition
for civil contempt is based largely on the same violations of the Act alleged
in the present case, most of which occurred at or near the time of the July
28-29, 1965, election
z Hereinafter referred to as the "Union "
133 NLRB 701.
4 161 NLRB 1130
170 NLRB No. 26
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this regard he was not only reluctant to assume
the title of dock foreman, even on a temporary ba-
sis, but the record quite clearly establishes that he
did in fact refuse to act as a supervisor as that term
is defined in the Act. He, did, of course, see to it
that the freight moved through the terminal and,
after a few weeks, he did accept a 2-cent-per-hour
wage differential _ along with an extra supply of
gasoline because the job required him to use his
own car in certain instances. However, he absolute-
ly refused to take any kind of responsibility without
first checking with the terminal manager. He
specifically refused to hire, fire, or discipline any
employee. Admittedly, he informed the terminal
manager when there was a need for extra help in
the form of casual labor and, under the specific
requests of the terminal manager, he, or someone
else, would call or go to a nearby employment
agency and request the needed number of such
temporary laborers. Even when employees would
call in and ask permission to be late' for, or absent
from, work or when they would call in to report an
illness, he would first consult with the terminal
manager before acceding to any particular em-
ployee request. He never fired anyone, and he ab-
solutely refused to discipline any employee even
when he believed that an employee was improperly
conducting his work. Even then, and only on such a
rare occasion, might he mention the matter to the
terminal manager, but he himself would not engage
in any discipline of another employee.
Moreover, the direction that he did give his fel-
low employees was of the most routine nature, such
as dispatching them to make various pickups and
deliveries. 'Furthermore, Gutierrez himself spent
more than half of his working time, while classified
as dock foreman, in making pickups and deliveries,
just as he had done when he was a driver. Finally,
although Respondent admitted generally that its
dock foremen were supervisors within the meaning
of the Act, it apparently did not actually regard
Gutierrez as falling within this category. Thus, in
addition„ to its acquiescence in Gutierrez' unique
and highly individual acceptance of only limited
authority, as detailed above, Respondent included
Gutierrez' name on the voting list it prepared for
the election and permitted him to cast an unchal-
lenged ballot in the July 1965 election even though
he was classified as a dock foreman. Therefore, we
believe, and so find, that Gutierrez, exercising no
more authority than that of a leadman, was not a
supervisor, within the meaning of the Act during
this last period in which he was classified as a dock
foreman, commencing sometime in April 1965 and
ending on September 20 of that year when he was
discharged. Accordingly, we do not believe that the
union sympathies and alleged-prounion influence of
Gutierrez, who was not a supervisor, whether
discovered before or after the time objections could
have been filed to the 1965 election, in any way
mitigate against the validity of, the certification in
that election or constitute a sufficient defense in
the, present instance to the Employer's admitted
failure to bargain with the Union as the certified
representative of its employees. Furthermore, it is
clear that any influence Gutierrez might have had
on the other employees could in no way be con-
sidered as coercive because of his alleged super-
visory status, for management's antiunion message
was repeatedly made known to all employees,
There is therefore no warrant for inferring that any
employee was induced to support the Union
because he believed, as a result of Gutierrez' con-
duct, that his Employer encouraged him to do so.
For these reasons we sustain the conclusion of the
Trial Examiner that the Respondent violated Sec-
tion 8 (a)(5) of the Act.
2. We concur with the Trial Examiner that the
Section 8(a)(3) violation of the Act alleged as to
employee Gutierrez should be dismissed. Although
we have found that Gutierrez was not a supervisor
within the meaning of the Act, we do not believe
that the General Counsel has sustained his burden
of proof in establishing that this employee was dis-
criminatorily discharged. In its defense to the Sec-
tion 8(a)(5) allegation, the Respondent asserted
that it had no knowledge of Guitierrez' union sym-
pathies and activities until the complaint in the
present case was filed. Moreover, in his brief the
General Counsel concedes that there is no direct
evidence which would show company knowledge of
Gutierrez' union activities prior to that time. In
fact, the only evidence on the subject appearing in
the record would indicate that the Respondent had
no such knowledge. Both the testimony of Gutier-
rez and Terminal Manager Taylor establish that the
latter gave Gutierrez money just prior to the elec-
tion for the purpose of buying beer for the em-
ployees at the terminal. Gutierrez further testified
that he was instructed to attempt to influence the
men to vote against the Union when he bought the
beer. In any event, it strains credulity to accept the
idea that Respondent's terminal manager would at-
tempt to treat his employees to refreshments on the
eve of the election in order to influence their vote,
as asserted by the General Counsel, by deliberately
assigning a known union proponent to the task,
hence buying the men the beer and soliciting them
to vote against the Union. Accordingly, we do not
believe that the General Counsel has sustained his
burden of proof in establishing that Gutierrez'
discharge was discriminatory and motivated
ALAMO EXPRESS, INC. 317
because of his known union activities. Therefore,
we concur in the dismissal of the Section 8(a)(3)
violation of the Act alleged as to this employee.
3. We concur with the Trial Examiner's conclu-
sion that employee Rafael Perez was discriminatori-
ly discharged by the Respondent in violation of
Section 8(a)(3) and (1) of the Act. In addition to
those matters detailed by the Trial Examiner in this
regard, we note the following:
Until Perez' prounion convictions were suddenly
and unmistakably made known to the Respondent
about the time of the July 28-29 election in 1965,
the Respondent persistently encouraged him to as-
sume -management responsibilities. Perez had
served as a sales representative in Laredo and as a
terminal manager both at Hebbronville and at Fal-
furrias. Each time, however, and at his own request,
he was permitted to return to the San Antonio ter-
minal as a pickup and delivery driver. It is clear
that Perez, in spite of his refusal to accept manage-
ment responsibilities, was in fact a trusted and effi-
cient employee. However, in June 1965 he joined
the Union and thereafter solicited some 15 union
membership applications from the employees at the
San Antonio terminal and attempted to solicit still
others at the Laredo and Falfurrias stations. Just
prior to the July 28-29 election and in response to
the coercive antiunion statements made to him and
employee Davis by Dock Foreman Brown, Perez
made his own prounion views well known not only
to Brown but to Night Shift Foreman Parr as well.
A few days after the publication of the tally of bal-
lots cast in the election, on August 8, Perez was
discharged, ostensibly for being involved in a minor
accident which damaged the roof of a trailer he was
hauling, the details of which are thoroughly docu-
mented by the Trial Examiner. Although not men-
tioned by the Trial Examiner, it is clear that
Respondent, engaged as it was in the cartage busi-
ness , was not unuse to the occupational hazards of
both minor and serious accidents involving its trac-
tors and trailers. Perez, of course, had been in-
volved in a previous minor accident which at the
time appeared to have been a routine event and of
no special concern to management. In fact, he was
offered the position of terminal manager of the Fal-
furrias station subsequent to that accident. Further-
more, employee Davis testified that in December
1964 alone he was involved in three separate and
serious driving accidents, at least two of which in-
volved damage to vehicles other than those owned
by Respondent. Employee Davis, of course, was not
discharged at that time and, in fact, continued to
work for the Respondent for a year or more
thereafter. Thus, against this background of a
strongly exhibited union animus, the sudden
discharge of an efficient, trusted, and longtime em-
ployee, occurring shortly after Respondent had
become aware of his aggressive prounion activities
and allegedly for negligence in a driving mishap,
taken together with the well-established Respon-
dent attitude of being so inured not only to minor
but to serious traffic accidents as a regular part of
doing business in the trucking industry that it did
not exact penalties against its drivers so involved,
compels us to conclude; as did the Trial Examiner,
that the Respondent discharged Perez solely
because of his deep involvement in union matters in
violation of Section 8(a)(3) and (1) of the Act.
4. We concur, in general, with the Trial Ex-
aminer's findings and conclusions of independent
Section 8(a)(1) violations of the Act. We note ini-
tially, however, that the Trial Examiner, in referring
back to his discussion and findings respecting the
discharges of employees Perez and Fonteno, stated,
perhaps inadvertently, that he had found that the
Respondent had illegally interrogated these two
employees. The fact of the matter is that although
these employees were the subjects of threatening or
coercive statements, they- were not interrogated.
Prior to Perez' discharge, both he and employee
Davis were informed by Supervisor Brown that if
the Union "took over," Alamo President Walker
"would sell the rights to Central Freight Lines
because she couldn't operate on the basis of union
wages." Earlier in his decision, the Trial Examiner
correctly found this to be a coercive statement.
Similarly, in making his findings regarding the dis-
criminatory discharge of Fonteno, the Trial Ex-
aminer detailed the coercive statements made to
this employee. During the period of the ' election,
Fonteno was repeatedly referred to as a "union
lover" by his supervisors during the regular course
of the working day and in the presence of other em-
ployees. Again, for the reasons stated by the Trial
Examiner, the Section 8(a)(1) fording is justified.
In addition to the Section 8(a)(1) violations
emerging from the conduct of Supervisor Aldrete
specified by the Trial Examiner, it should also- be
noted that in his own testimony Aldrete admitted
telling his subordinates that if the Union won the
election the Company would have to reduce the
number of employees in the same manner as did
one of its competitors which reduced its staff from
some 1,200 to 400 employees after it was
unionized. We find this admitted statement to be
coercive and a violation of Section 8(a)(l) of the
Act.
Finally, inasmuch as the Trial Examiner has given
examples of the kinds of conduct perpetrated by
the Respondent which were violative of Section
8(a)(1) of the Act without being exhaustive and
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without resolving credibility issues or making
findings on a great number of similar violations al-
leged by the General Counsel, we deem it unneces-
sary at this time to remand, because the effect of
such further findings would undoubtedly be cumu-
lative.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Alamo Express, Inc.
and Alamo Cartage Company of San Antonio, Tex-
as, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified.
1. Delete from paragraph 1(d) of the Trial Ex-
aminer's Recommended Order the following
phrase: "except to the extent that such right may be
affected by an agreement authorized by Section
8(a)(3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of
1959."
2. Delete from paragraph 2(e) of the Trial Ex-
aminer 's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided...."
3. Delete from the second indented paragraph of
the notice the phrase "or grant."
4. Delete from the third indented paragraph of
the notice: "except to the extent that such right
may be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of
the Act."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HORACE A. RUCKEL, Trial Examiner: This case
comes before me upon complaints of unfair labor
practices issued respectively on April 6, June 28,
and September 15, 1966, by the General Counsel
of the National Labor Relations Board, through the
Board's Regional Director for Region 23 (Houston,
Texas), against Alamo Express, Inc., and Alamo
Cartage Company, herein called jointly the Respon-
dent, or Alamo, based upon charges filed by Local
Unions Nos. 968, 657, and 940, General Drivers,
Warehousemen and Helpers of America, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union.
The complaint (as consolidated for the purposes
of hearing) alleges in substance that Respondent
(1) from about May 23, 1966, has failed and
refused to bargain collectively with the Union as
the certified bargaining agent of its employees; (2)
between August 6 and October 26, 1965,
discharged five employees; and on June 28, 1966,
two others, because of their union activity; and (3)
on various dates engaged in other acts of inter-
ference, restraint, and coercion. These activities of
Respondent are alleged to constitute unfair labor
practices within the meaning of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act,
29 U.S.C. Section 154, herein called the Act.
Respondent has filed an answer denying the com-
mission of any unfair labor practices.
Pursuant to notice I conducted a hearing on vari-
ous dates between October 4, 1966, and January
13, 1967, at San Antonio, Houston, Brownsville,
Galveston, and Laredo, Texas, at which the parties
were represented by counsel. At the conclusion of
the hearing the parties waived oral argument. Sub-
sequently, the General Counsel and the Respondent
filed timely briefs.
Upon the entire record in the case, and from miy
observation of the witnesses, I make the following;
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Alamo Express, Inc., is a Texas cor-
poration having its principal office and place of
business at San Antonio, Texas, and operating ter-
minals in San Antonio, Laredo, Brownsville, and
other cities in Texas , and is engaged in intrastate
transportation of freight by motor vehicle within
that State, under licenses issued by Interstate Com-
merce Commission and the Railroad Commission
of Texas. Alamo Cartage Company is a Texas cor-
poration with its principal office and place of busi-
ness in San Antonio, Texas, and operating from ter-
minals located in San Antonio, Laredo,
Brownsville , and other cities in Texas, where it is
engaged in pickup and delivery of local freight
under authority granted to Alamo Express.
Alamo Express employs all the over-the-road
drivers and dock employees utilized in Respon-
dent's common carrier motor transportation opera-
tion. Alamo Cartage employs all local pickup and
delivery drivers utilized in Respondent's common
carrier transportation operations. The two compa-
nies are affiliated businesses with common officers,
ownership, directors, and operations, and constitute
a single, intergrated business enterprise, and said
directors and officers formulate ' and administer a
common labor policy for the enterprise.
' Subsequent to the close of the hearing the Respondent moved the Trial
Examiner to reopen the record to receive Resp Exh 22 in evidence. The
General Counsel having been served with a copy of this motion, and having
entered no objection , Respondent's motion is granted and the exhibit is
received
ALAMO EXPRESS, INC.
During the 12 months preceding the issuance of
the complaint, Respondent's gross revenues were in
excess of $500,000 and of this amount an excess of
$100,000 was received for interchanging and inter-
lining freight that was destined for or shipped from
points outside the State of Texas. The complaint al-
leges and Respondent's answer admits, that
Respondent is engaged in commerce within the
meaning of the Act.
[I. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting em-
ployees of Respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. The Refusal To Bargain
The appropriate unit and the Union 's certification
therein ; the refusal to bargain
Pursuant to an agreement of the parties , an elec-
tion by secret ballot was conducted on July 28 and
29, 1965, among the employees in the following
agreed-upon appropriate unit : All over-the-road
drivers, city pickup and delivery men, dockmen,
helpers, checkers , and mechanics at all the Respon-
dent 's terminals ; excluding office clerical em-
ployees, guards , watchmen , salesmen , solicitors,
and supervisors as defined in the Act. At the con-
clusion of the election , a tally of ballots showed
that of about 424 eligible voters , 202 cast ballots
for and 198 cast ballots against the Union. There
were 3 void ballots and 21 challenged ballots. On
August 5 the Union filed objections to the election,
and a hearing was held on the challenged ballots
and objections before a Hearing Officer on various
dates in October and November 1965. Thereafter,
on February 9, 1966, the Hearing Officer issued his
Report and Recommendations to which the
Respondent filed exceptions with respect to 14
challenges , and the Union filed exceptions related
to certain recommendations.
On May 5, 1966, the Board orded that the chal-
lenges to the ballots of certain named individuals be
overruled and that the ballots be opened and
counted. As a result of the counting of these ballots
the Union received a majority of the votes cast and
it was issued a Certification of Representation on
May 20.
On the same day it was certified, the Union wrote
Respondent requesting a meeting to negotiate a
collective-bargaining contract . The Respondent did
not reply, and has not replied , to the Union 's letter
because, its counsel states , "The company does not
recognize the Union as the representative of its em-
ployees," and again , "Of course , my whole defense
' producers, Inc., 133 NLRB 701,704 See also Genesco, Inc , 161 NLRB
1130
3 Certainly it cannot be contended that he represented the Respondent's
319
is based upon the fact that the challenged ballots
that were uncounted should be counted and I con-
tinually contest the majority of the Union."
The Board has, however, settled the matter of
counting, or not counting, certain of the challenged
ballots in a manner unfavorable to Respondent, and
this decision is binding upon me in the case at bar.
The Board has said:'
It is the policy of the Board not to allow a
party to relitigate in a complaint proceeding
such as this one, the legal effect of matters
which the party has already litigated and the
Board has decided in a prior representation
proceeding.
Respondent also contends that R.ogelio Gutier-
rez, employed at its Harlingen terminal as dock
foreman, was a supervisor within the meaning of
the Act, and that he "organized and- exerted in-
fluence in behalf of the Union prior to the election
(a fact which came to Respondent's attention
sometime later) to such an extent that the result of
the election would undoubtedly be influenced."
Respondent, in its brief, points out that the Union
won certification by a margin of only four votes.
The supervisory duties of Gutierrez are
hereinafter discussed in connection with his
discharge. I find him at the relevant time to have
been a supervisor within the meaning of the Act. It
does not follow, however, that because he belonged
to the Union, as he did, it must be supposed that,
by reason of his supervisory capacity, he influenced
employees under his direction, four or five in
number, to vote for the Union who would not have
done so otherwise.' But however this may be, ob-
jections pertaining to the election, including the
eligibility of voters, were decided and, as previously
stated, cannot be relitigated here.
Respondent, in refusing, admittedly, to meet and
bargain with the Union as the certified bargaining
representative of its employees, has violated Sec-
tion 8(a)(5) of the Act.
B. The Discharges
1. The San Antonio terminal
Rafael Perez
Perez was first employed by Respondent in 198
and worked continuously until his discharge on Au-
gust 8, 1965. When he first came to work he drove
a pickup and delivery truck in San Antonio. In Sep-
tember 1961, Respondent made him a sales
representative in Laredo, where he worked for 7 or
8 months, and then, at his request, he resumed
pickup and delivery driving in San Antonio. Shortly
thereafter Respondent transferred him to Hebbron-
ville as terminal manager. He was later returned to
viewpoint since Respondent's officers made it abundantly clear by
speeches and letters to the employees, posters attached to its trucks, and by
other means, that it was unalterably opposed to the Union
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Antonio at an increase in wages. In July 1965,
he was offered the opportunity of transferring to
Falfurrias as terminal manager. He agreed to try it
for 3 months. Again, at his request, he was trans-
ferred back to San Antonio to his previous job as a
pickup and delivery driver. It is clear from the
record that -Perez was a trusted and efficient em-
ployee.4
Perez joined the Union in June 1965, and voted
in the election of July 28-29. He obtained member-
ship applications of about 15 employees at the San
Antonio terminal and solicited still others at
Laredo. One day shortly thereafter, when Perez
went into the office of William Brown, daytime
dock foreman, Brown, who was engaged in conver-
sation with employee Joseph Davis, asked Davis if
he knew if the Union "took over" Alamo, Respon-
dent's president, Walker, "would sell the rights to
Central Freight Lines because she couldn't operate
on the basis of union wages." At this point Perez in-
tervened to say to Brown that the unionization of
Respondent would be -beneficial to the Company
because higher wages, shorter hours, and other
benefits would make the employees "satisfied and
result in increased efficiency." Brown testified that
he did not have any conversation with Perez or
Davis about the Union. Davis' testimony was that
Brown said on this occasion that Respondent
"could not afford to go Union," and asked what the
employees were going to do about it. He did not re-
call whether Brown said Respondent would sell its
business. I did not find Brown to be a convincing
witness and I find he made, in substance, the state-
ments attributed to him by Perez, corroborated in
part by Davis.
During the preelection period Perez also
discussed the benefits of the Union with Ray Parr,
night dock foreman, advancing the same reasons he
had to Brown, but Parr made no rejoinder. It is
clear that Respondent knew of Perez' activity in the
Union. I find that Brown's statement to Perez and
Davis that Walker would "sell the rights" in
Respondent to Central Freight Lines if the Union
organized Respondent's business constituted coer-
cion within the meaning of the Act.
On August 8, 1965, a week after the publication
of the tally of ballots cast in the election, Respon-
dent discharged Perez under the following circum-
stances. On the previous day, August 7, while en-
gaged in his regular work of interchanging freight
between Respondent's terminal and that °of Central
Freight Lines, the loaded trailer which he was haul-
ing with a GMC tractor from Central to Alamo
scraped the ceiling of an underpass on Commerce
Street, damaging the roof of the trailer and costing
about $200 to repair. Perez reported the damage at
once to Charles Bailey, terminal manager, and
Brown, suggesting that they look at the trailer. In-
a Respondent's brief states "During the last two or three years prior to
his termination, Respondent had attempted to encourage Perez in manage-
stead, both of them told him to make out an ac-
cident report on the usual form, which he did.
On the following morning when Perez -reported-
to work Bailey called him to his office and
discharged him, stating that about a year previ-
ously, in 1964, he had had a similar accident at the
same underpass which had cost a similar amount of
money to repair in Respondent's own shop. Perez
offered to pay the cost of the repair rather than lose
his job, but Bailey stated that it was against Respon-
dent's policy to permit employees to pay for
damage to equipment.
Brown testified as follows concerning the use of
the city's several underpasses:
Q. Now, going back two years have you is-
sued or do you issue any instructions to your
six wheel drivers or trailer drivers in reference
to how to haul those trailers around and where
to go?
A. Yeah, we tell them -all to watch un-
derpasses with these tall trailers, unless they
can go under don't go under them, unless they
know they can clear them.
Q. And are these instructions you, yourself,
have issued to these drivers?
A. Yes sir, every day-every time one
go[es] out. -
*
Q. Now, I mentioned the name of a Mr.
Ralph Perez to you. Have you issued these
instructions to Mr. Perez?
A. Yeah, I have.
*
Q. Do you have cause to issue the instruc-
tions you just testified to to'them-
A. Yes, if its a tall trailer, you know what I
mean, of course all of them are, tall now, but I
tell them to watch all underpasses with this tall
equipment, you know, some of them might not
clear all of them.
It does not appear from the above testimony that
Brown ever specifically instructed Perez, or his em-
ployees, not to use the Commerce Street underpass,
but only to watch all the underpasses, including the
Commerce underpass,- and not to go under them
unless they know they can clear them. The record
shows that the "tall trailers" used by Respondent
are 13 feet 6 inches in height, and that the Com-
merce underpass is 14 feet high, thus giving a
clearance of 6 inches.
On cross-examination, however, Brown enlarged
his testimony on direct examination and stated that
he told all the drivers, including Perez, not to use
the Commerce underpass, which he amended to
"not to drive no tall-trailers under the underpass,"
ment positions Each time Perez preferred to returned to driving " I find
this to be an accurate appraisal
ALAMO EXPRESS, INC.
but that "you can use your own judgement when
you are driving if an underpass is high enough."
The credited testimony of Perez is that almost
daily during the 6 months prior to his discharge he
drove Central trailers and Alamo trailers back and
forth through the Commerce Street underpass. On
the day before his discharge he pulled a loaded
trailer from the Central dock to the- Alamo dock
through the Commerce underpass with an Interna-
tional tractor. -There the trailer was unloaded and
he returned to the Central dock pulling the empty
trailer with a GMC tractor.5 Ordinarily this would
give him sufficient clearance. On this occasion,
however, the pavement on the right lane of the un
derpass, as he returned, was being repaired and he
was detoured by one of the workmen over to the
other lane. Whether as the result of this changing of
lanes, or for some other reason, the top of the
trailer scraped the roof of the underpass.
CONCLUSIONS
Although Brown's testimony is not without its
contradictions, I am of the opinion, and I find, that
his instructions to his drivers, including Perez, were
substantially what he testified to on direct examina-
tion. The drivers were not to go through un-
derpasses unless they could be cleared. But I find
incredible his assertion that he issues these instruc-
tions "every day every time one goes out." Brown's
instructions were no more than cautionary, and left
the decision to the discretion of the driver. This
conclusion is reinforced by Perez' credible
testimony that he used the Commerce Street un-
derpass regularly in his work of transferring ship-
ments back and forth between Respondent's ter-
minal and Central Freight Lines terminal. I think it
improbable that he could have done so without the
knowledge of the dock foreman. Moreover, when
Perez reported to Brown that his trailer had been
damaged, ,Brown expressed no particular concern.
Hel admitted that he did not inspect the trailer until
some time later but merely told Perez to fill out 'a
report form.
It is conceded that Respondent had _tong con-
sidered Perez a responsible, reliable employee with
management potentialities. When he joined the
Union he -attempted to convince Brown that it
would be to the best interests of Respondent to
recognize it as the bargaining agent of the em-
ployees. I find that his alleged violation of instruc-
tions concerning the use of the Commerce Street
underpass was a pretext only, and that the real
reason for his discharge was his union interest and
activity.
321
2. The Harlingen terminal
Rogelio Gutierrez
This employee was hired in September 1946 as a
truckdriver's helper. He shortly became a pickup
and delivery driver, which he remained until about
April 1965 when he was promoted to dock
foreman. He was discharged on September 20, 5
months later. The first question presented is
whether as dock foreman he was a supervisor
within the meaning of the Act. If so, he is outside
the protection of the Act and it will not be necessa-
ry to consider the merits of his discharge.
In April 1965, Lee- Mores, dock foreman, quit
and Ingram, terminal manager, asked Gutierrez,
who had been already performing some of Mores'
duties, to take his place. According to Gutierrez,
Ingram put this as requesting a favor and for the
purpose of clearing the _ dock of accumulated
freight. At the end of 3 weeks Gutierrez reported to
Ingram that the dock was clear, a fact which In-
gram could not help knowing if it were true, and
suggested that Respondent get another dock
foreman because he did not want the job. Ingram,
however, asked him to continue as dock foreman
until another was found, and Gutierrez acquiesced.
In July, when Ingram was succeeded as terminal
manager by Everett Taylor, Gutierrez had a similar
conversation with him. But he continued as dock
foreman until September 20, 5 months after he as-
sumed the job, when he was discharged.
The General Counsel contends that Gutierrez
was not a supervisory employee because he had ac-
cepted the job of dock foreman reluci antly, or only
until a substitute was found, and also that he did
not actually exercise such authority as to make him
a supervisor within the meaning of the Act. The
record does not indicate that the ' duties performed
by Gutierrez differed in any respect from those of
Mores, whose place he took. Mores, concededly,
was a supervisor within the meaning of the Act, and
the complaint attributes to him and to four other
dock foremen certain coercive statements to em-
ployees for which Respondent is, said by the com-
plaint to be responsible because of the supervisory
nature of their work. Guiterrez 'admitted that as
dock foreman he had six drivers under his
direction, and that among other duties he hired
extra employees when needed . I find that Guiterrez
at the time of his discharge, assertedly for a finan-
cial irregularity , was a supervisory employee and
was not within the protection of Section 8(a)(3) of
the Act. The complaint should be dismissed as to
him.
' Perez' further credited testimony was that he could get a loaded Cen - be that an unloaded trailer sits several inches higher than a loaded trailer,
tral trailer through the Commerce underpass with an International tractor and a trailer loaded or unloaded sits somewhat higher when attached to an
or an unloaded Central trailer pulled by a GMC tractor , but not an un- International tractor than it does when attached toa GMC tractor.
loaded Central trailer with an International tractor The reason was said to
350-999 0 - 71 - 22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jose Cavazos him -that his station wagon had been seen at a meet-
ing across the river in Neuvo Laredo a night or so
previously , asked him if it was a union meeting, and
for the names of other employees present, saying
that they would all be discharged when he found out
who they were. Martinez told him that he knew
nothing about any such meeting. Aldrete's
testimony is that the wife of an employee had
telephoned him to ask if the Company was going to
have a roast across the river. He told her that he
knew nothing about a roast, and went out on the
dock and asked the first driver he came to, who was
Martinez, if he knew anything about it. Martinez
said he did not , at the same time manifesting em-
brassment, according to Aldrete, who did not pur-
sue the subject further.
I credit Aldrete's version of his conversation with
Martinez for the following reasons. In the first place
there is no evidence that there was any meeting or
"roast," of any kind , union or otherwise . Martinez,
according to his own testimony, knew nothing of it.
Moreover, Aldrete testified that he did not know at
the time that there was a union campaign in
progress, and did not find out until he received a
copy of a-notice furnished by the Board's Regional
Office for posting at the Laredo terminal. He could
not recall how long before the election it was. It
"could have been" a month. Martinez testified that
his conversation with Aldrete was about a week be-
fore the election. If this was the case, it must have
been after the notice was received by Aldrete, and
thus he did know that the Union was organizing
when he spoke with Martinez.
I was not impressed, however, with the ability of
Martinez to remember dates. As will be seen later,
he was mistaken as to the important, perhaps deci-
sive, matter of the interval between an accident
which precipitated his discharge, and the discharge
itself. He testified it was 2 weeks. In fact it was 2
days.
Finally, I think it improbable that Aldrete should
attempt to find out whether Martinez and other em-
ployees had attended a union meeting, and at the
same time threaten him with discharge if he was
told. This was hardly calculated to elicit the infor-
mation Martinez said was sought.
On September 20, Martinez loaded on his truck
three crates of auto parts , consisting mostly of
gears, for delivery to a local concern. The value of
the entire shipment was approximately $ 6,000; that
of the largest crate over $5,000. It weighed over a
ton. The loading necessitated the use of rollers
under the large crate , and when it was finished
Martinez drove away without removing them. Con-
sequently, while driving through the streets of
Laredo, the crate rolled off the back of the truck
and was smashed , scattering gears on the pavement.
This employee came to work in October 1964 as
a city pickup and delivery driver. His immediate su-
pervisor was Lee Mores, dock foreman. He joined
the Union and voted in the election of July 28-29,
1965. But the General Counsel's brief
acknowledges that Respondent had no "direct
knowledge" of his membership, nor do I find any
"indirect" knowledge . He was inactive as far as the
record reveals. When he reported to work on Sep-
tember 18 his timecard was missing from the rack
and Terminal Manager Taylor told him that he was
discharged for stealing. About a week before this
he had been called to the office and asked by
Respondent's auditor, one Hamilton, about a
delivery to Rollins Machine, for which he collected
the sum of $5.75. It is the custom for the drivers
when a shipment is paid for, to receipt for it on the
original delivery sheet and turn the money over to
the cashier along with the duplicate delivery sheet.
Cavazos admitted that Rollins Machine had paid
him this amount in cash, and insisted that he had
given it to Consuelo Vasquez, the cashier, by leav-,
ing it on her desk while she was at lunch . Vasquez
testified that she found no such money on her desk
upon her return and no delivery sheet. Unless the
driver's copy of the delivery sheet is returned at the
end of the day to the cashier, she has no means of
knowing what a driver has collected until the audi-
tor goes over the books several weeks, or even
months , later . There is no evidence as to what
became of the delivery sheet in this instance. As to
the money, Cavazos paid Hamilton the sum in
question, at the same time protesting his innocence.
Taylor, a week later, after asking Cavozos for an
explanation , and after some investigation of the
matter, discharged him.
I do not find Cavazos' account of this incident
convincing . His story , if credited , pertains only to
the $5 .75, and in no way accounts for the absence
of the copy of"the delivery sheet. He testified this
was the only time he had ever collected money
without returning with the receipted copy. There is
testimony that other drivers had previously been
discharged for not accounting for money received,
and none that any such driver had not been
discharged . Under the circumstances I do not find
that the General Counsel has met his burden of
establishing his case by a prepondence of the credi-
ble evidence. I shall recommend that the complaint
be dismissed as to Cavazos.
3. The Laredo terminal
Jose Martinez
This employee came to work in February 1961 as Aldrete, who was coming out of a nearby restau-
a truckdriver. About a week before the July elec- rant, witnessed the accident. He called the police
tion, Terminal Manager Aldrete called him to his who roped off the street, and summoned another
office where, according to Martinez, Aldrete told truck from the terminal. The gears were picked up
ALAMO EXPRESS , INC. 323
piece by piece and taken back to Respondent's
dock. They were recrated and delivered to the con-
signee on the following day, undamaged. On the
next day, September 22, Respondent discharged
Martinez6 for negligence.'
No evidence was adduced that any other driver
had ever disregarded the rule in question, requiring
the removal of rollers from under crates after load-
ing, and that Respondent in discharging Martinez
treated him disparately. Martinez' last act of union
activity so far as the record shows was his voting in
the election more than 2 months previously. His
conversation with Aldrete, discussed above, even if
it occurred, was a week before that. I find that
Respondent discharged Martinez for legitimate
business reasons and not for his interest in the
Union.
4. The Galveston terminal
A. J. Fonteno
Lamar McGinnis, terminal manager, hired Fon-
teno in 1962 as a truckdriver. At the time of his
discharge in October 1965 he was second in
seniority among the eight drivers at Galveston. He
joined the Union and served as an observer in the
July 1965 election. Before and after the election
McGinnis and L. G. Cornet, dock foreman, repri-
manded Fonteno on two or more occasions for
misdeliveries of merchandise and ridiculed his
membership in the Union. The General Counsel
contends that these misdeliveries did not in fact oc-
cur, and that a campaign of harrassment of Fonteno
was being mounted. Hence, according to Fonteno's
testimony, on various occasions when a truck from
a unionized company pulled up at Respondent's
dock McGinnis would call out to Fonteno "There
goes your union lover, Fonteno," and on one such
occasion a fellow driver, Paul Leslie pointed to
Fonteno in McGinnis' presence, said "I know one
man [who is going to] vote for the Union."
McGinnis denied Fonteno's testimony that he
referred to him as a "union lover." I was not im-
pressed with McGinnis- as a witness. Moreover, Ju-
lius Brazil, a driver with the longest period of
seniority, called as a Respondent witness, cor-
roborated, Fonteno's testimony. ' On several occa-
sions, according to Brazil, he had heard Fonteno
and drivers from other companies referred to by
McGinnis as "union lover," and their trucks as
"Fonteno's trailers."
Shortly following the election, Cornet told Fon-
teno that J. C. Penney Company had complained
that he had left a delivery which did not belong to
them. When Fonteno went to Penney's he was told
in the receiving room that no such complaint had
been made. On several occasions. McGinnis
charged Fonteno with not calling in after he had
made a delivery in another city, as was the rule,
when in fact he had called in and reported to Cor-
net.
On the afternoon of October 26, 1965, while on
his way back to the terminal after completing his
deliveries, Fonteno stopped by the office. of the De-
partment of Agriculture on the seventh floor of the
post office, to see if there were any cotton samples
to pick up, parking his truck in front of the build-
ing. His testimony is that he took the freight eleva-
tor to the seventh floor where he inquired at the
room where the samples were kept if there were
any for shipment that day, and was told to wait
while a check was made. Within 10 minutes or so
he was informed that there were none, whereupon
he went down the elevator and out to his truck.
Parked near the building, in McGinnis' car, he saw
Leslie who, as found above, had originally
identified Fonteno to McGinnis as ,a union sup-
porter.
The testimony of McGinnis is that as he was
passing the Post Office he saw one of Respondent's
bob-tail trucks parked there and went up to the
seventh floor to look for the driver as well as to see
if there were any cotton samples. He was told there
were none and that no Alamo driver had been
there. He then went back to the terminal where he
found that the driver of the bob-tail was Fonteno,
and he delegated Leslie to take his car and go to
the post office to see how long Fonteno remained
there. Leslie's testimony is that he was parked at
the post office 2 or 3 minutes when Fonteno came
"around the side of the post office," and got in his
truck. Both men arrived back at the terminal al-
most simultaneously.
McGinnis said nothing to Fonteno at that time
about his presence at the post,office, and instead
told him that some one from Sykes Brothers had
called to say that Fonteno had left a wrong box
there. Fonteno, on McGinnis' orders, went to Sykes
where the employee who had signed Respondent's
freight bill that morning told him that he had not
called Respondent's terminal. Nevertheless, the two
of them checked the freight in question and found
no mistake in delivery. When Fonteno reported this
to McGinnis, McGinnis told him that it seemed to
him that Fonteno did not want to do anything that
he was told to do, and then accused him of calling
at the post office when he was not supposed to do
so, and being off the job for an hour or more. Fon-
teno replied that he was supposed to check regu-
larly for cotton samples and denied that he had
been off the job, and accused McGinnis himself of
Though the General Counsel's brief contends that Respondent did not
discharge Martinez until 2 weeks after the accident, there is nothing in the
record to support this other than Martinez' own testimony that the accident
was "about 2 weeks" before his discharge. Resp Exh. 17 is the bill ofload-
ing covering the shipment . It shows that it was stamped and approved 'for
delivery on September 20, and delivered September 21.
' Aldrete testified that in his opinion Martinez' helper, who was standing
in the body of the truck, could easily have been swept out of the truck by
the crate and injured, and that he was powerless to stop its motion I do not
consider this far fetched.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not having been at the post office. The argument
became heated and McGinnis fired Fonteno, asser-
tedly because he -felt that Fonteno had in effect
called him a liar.'
Conclusions
- Although McGinnis testified that he discharged
Fonteno because he felt- Fonteno had accused him
of lying, although the short and ugly word was not
used, this is so closely tied up with the question of
Fonteno's presence at the ' Post Office, and _the
justification for it, that I find it necessary to discuss
the whole event.
In the first place, I accept it as true that Fonteno
did stop at the post office. Leslie admitted that
when he first saw Fonteno he was coming around
the side of the building, He conceded that he could
have come out the front door, which was out of his
range of vision. Furthermore, no other explanation
was offered to account for the presence of Respon-
dent's bob-tail truck at the post office other than
that advanced by Fonteno that he was checking to
see if any cotton samples were ready to be picked
up.
The question of whether Fonteno, although
present at the post office, went up to the Depart-
ment of Agriculture as he testified, is another
matter. As related, McGinnis' testimony is that
upon seeing the company truck he himself went up
to the office on the seventh floor and inquired of
James Taylor and Clyde Carr, in charge of the cot-
ton samples, if Respondent's driver, not naming
him, had been there and they replied that he had
not, and that there were no samples to pick up.
This was corroborated to some extent by both
Taylor and Carr, who testified that "about a year"
previously McGinnis had been to their office and
asked if they had seen an Alamo driver there and
they said they had not. McGinnis did not name the
driver, and in any event they did not know any
Alamo driver by name.'
Both Taylor and Carr testified that of the two
carriers who handled the samples, Alamo and Cen-
tral Freight Lines, only Central drivers would stop
at the office without first being called on the
telephone. On cross-examination Carr contradicted
himself as to this practice:
0. Did he [McGinnis] come last year, Mr.
Carr, and ask you other questions?
A. Yes, he had been by and he came in to
visit and he asked me if, we had shipments
going out that day, or something like that, or
how we were doing, as far as I know that is all
that he has ever asked.
Q. Did he come by and ask you if you had a
shipment going out?
A. Yes.
Q. How often would he do that?
A. Whenever he would come by to see Mr.
Smith,1° or if he was in the building, come to
see if there was anything going out-.
Taylor, too, on cross-examination admitted that
McGinnis would drop in and talk with Smith and
ask Taylor if there were any cotton samples to be
shipped.
McGinnis' further testimony is consistent with
Fonteno's testimony that he stopped daily for cot-
ton samples. October was one of the busiest months
of the year when it came to cotton samples, and
picking them up at the post office was an almost
daily occurrence:
Q. How frequently do you in the course of
your duties as terminal manager handle cotton
samples?
A. We have cotton samples every day.
Q. When does [the cotton shipping season]
usually come?
A. -We have the season whenever they
pick cotton down here in the. Valley and West
Texas-and we run three or four heavy months
and then it drops off.
Q. And it usually starts sometime in the late
summer or early fall?
A. Yes, sir.
Q. And that is what was happening in Gal-
veston in 1965 when Mr. Fonteno was your
employee?
A. Right.
Q. And you say the Company picks up cot-
ton samples approximately every day during
that season?
A. Yes.tt
In view of the above evidence which shows that
almost daily in October 1965 Respondent received
large shipments of cotton samples and could count
on this as a regular thing for 4 months, I think it
most probable, and I find, that Fonteno had stand-
ing instructions, as he testified, to stop by the post
office every afternoon between 2 o'clock and 4
o'clock to pick up the cotton samples. That there
were none on October 26 was an exception. I credit
his testimony on this point rather than that of Mc-
Ginnis. As to the .testimony of Taylor and Carr, I
find it of little value as corroborating McGinnis'
testimony that he asked for but could not find Fon-
teno, as neither Taylor nor Carr, as they stated,
knew Fonteno by name. McGinnis mentioned no
name, and neither could recall when it was that
McGinnis inquired for an Alamo driver except that
' This was his testimony on direct examination:
Q. Now would you tell us why you terminated or discharged Fon-
teno?
A -Well I will terminate anybody that will call me a liar.-you can
get by with almost anything with me, but just don't call me a liar and
that I was not there-.
9 In addition to Alamo drivers, drivers from other companies pick up
samples
10 C. M. Smith, the supervisor of Taylor and Carr.
11 McGinnis further stated that during the fall and winter the Respondent
"will run anywhere, I think from a hundred to a hundred and fifty sacks of
cotton samples a night [ i.e, afternoon ], sometimes more."
ALAMO EXPRESS, INC.
it was "about a year ago." Their reliability as wit-
nesses is further impaired by their testimony that
Alamo never called for shipments unless it first
called on the telephone, for both subsequently con-
ceded that it was not unusual for McGinnis himself
to drop by to "see if there was anything going out,"
specifically mentioning cotton samples, according
to Carr. I think it probable that both Taylor and
Can had in mind periods of the year other than the
4 busy months in the late fall and early winter,
when Alamo picked up cotton samples only when
being called. I do not credit their testimony as it
pertains to October 1965.12
So much for the question of whether on October
26 Fonteno called for cotton samples in line of
duty. I fund that he did. There remains the question
of whether Fonteno spent the 1 hour. at the post of-
fice, or elsewhere;, which McGinnis accused him of
spending. McGinnis, according to his own account,
when he saw Respondent's truck at the post office;
went immediately to the seventh floor to be told
that no Alamo driver had been there. The hour or
more that he spent looking for Fonteno he accounts
for by saying that he sat in his car on the street
waiting for him. This, he says, was for about 45
minutes. I think it grossly exaggerated.
So far as the immediate cause which Respondent
advances for Fonteno's discharge-that he called
McGinnis, his supervisor, a liar-this amounted to
no more than Fonteno's heatedly expressed disbe-
lief that McGinnis had gone up to the Department
of Agriculture. Under the circumstances I do not
find ,Fonteno's conduct to amount to insubordina-
tion. As is amply demonstrated by the record,
Respondent was hostile to the Union and knew of
Fonteno's part in it by reason both of his role as an
observer at the election, and Leslie's having
pointed him out in McGinnis' presence as an active
union adherent. Thereafter, McGinnis repeatedly
ridiculed him as a "union lover" and on at least
two occasions, one of them just prior to his
discharge, falsely charged him with misdelivering
freight. This hostility culminated in his discharge.
5. The Houston terminal
Willie Rodney and Jodie Jefferson
Rodney and Jefferson were employed as pickup
and delivery drivers at the time of their discharge
on July 28, 1966. They were both known to be
union adherents and Rodney had been designated
as an alternate union observer at the election a year
previously. The facts surrounding the discharges
are not in dispute and are as follows:
On the afternoon of his discharge Rodney was in-
structed by Daily, day dock foreman, to make a
12 It will be recalled that according to Fonteno , he went to the shipping
room and asked at the door if there were any samples and was told by some
employee that he would check He was gone 10 minutes and returned to
325
pickup at the premises of Southwestern Pipe Com-
pany in Houston. When he arrived there he saw a
group of pickets and ascertained that. they were on
strike against Southwestern. The striking union was
not the union involved in this case . Rodney called
Daily and told him that the Southwestern em-
ployees were on strike . Dailey switched the call to
Henry Walker, Respondent's - vice president in
charge of operations, and Rodney told him that
South-western was on strike and that he did not
want to cross the picket line. Walker said the strike
had nothing to do with Respondent, to which Rod-
ney replied that he was the one who would have to
cross the picket line. Walker told him: "If a man
can't cross a picket line I can 't use him." When
Rodney asked if that meant he was fired Walker
said that it did. Upon arrival at the terminal
Walker, in a renewal of the conversation, told Rod-
ney that it was the Company's policy to require its
employees to cross picket lines , and confirmed his
discharge.
Respondent then assigned Jefferson to pick up
the merchandise at Southwestern, without mention-
ing the picket line or Rodney's having refused to
cross it . When Jefferson saw the picket line he was
told that another driver from Alamo had just previ-
ously refused to cross it. Jefferson also refused to
cross it and phoned the terminal and reported to
Taylor, night dock foreman. Jefferson told him that
he could not cross the picket line. Taylor said he
must and that one man had already been
discharged for refusing to do so. At the terminal,
Jefferson repeated to Crawford, terminal manager,
that he was sorry but that he could not cross the
picket line. Crawford told him, as Dailey had Rod-
ney, that "as long as you work for Alamo you have
to cross the picket line," and discharged him. A few
days later when he called for his paycheck, Walker
acknowledged that he had never had any com-
plaints as to his work, but that if he worked for
Alamo he would have to cross any and all picket
lines . That was company policy,
Conclusions
The General Counsel relies on Overnight Trans-
portation Company (154 NLRB 1271) as stating the
law covering employees discharged for refusing to
cross picket lines at other places of employment;
while Respondent relies on Redwing Carriers, Inc.
(137 NLRB 1545). Both cases affirm that refusal to
cross a picket line is protected concerted activity,
but each seeks to balance this right against the em-
ployer's opposing right to replace employees so
refusing, to preserve the efficient operation of his
business. In Redwing, the Board pointed out, the
eight discharged drivers were permanently assigned
say there were none I think it unlikely that this person was either Taylor or
Carr, since either one of them would have known the situation without
checking This would account for their not having seen any Alamo driver
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to certain projects of the employer's customer, and
it upheld their discharge as lawful, pointing out that
it became necessary to reassign other employees
from their regular jobs and to hire new men to do
their work, The Board also pointed out that this oc-
curred in a context totally devoid of union animus.
In Overnight, the company's pickup men were not
assigned to regular routes. They received pickup as-
signments by radio continually during the course of
the day, and adjustments in the assignment of
trucks, the Board observed, would seem common-
place.13- There was no showing that the -refusal of a
driver to cross a -picket line rendered him incapable
of performing his job, or that it disrupted the em-
ployer's business.
Clearly, the facts in the instant case correspond
more closely with those in Overnight than with
those in Redwing. It has already appeared, and the
record further reflects, that the Respondent was
hostile to the Union, discharged three drivers
because of their activity on its behalf, and on vari-
ous occasions, by various officers and supervisors at
all the terminals, made known their determination
not to deal with it. Furthermore, as in Overnight
and in contrast with Redwing, Rodney and Jeffer-
son had no permanent assignments but picked up
and delivered merchandise as the occasion arose. It
required no revision of Respondent's method of
operations to dispatch Jefferson in place of Rodney
as it did another driver in place of Jefferson.
Granted that this may have been an inconvenience,
I find it short of overcoming the employees' coun-
tervailing right of concerted, collective activity.
Finally, in Overnight the Board observed that the
employer, in terminating the driver, "equated the
employee's refusal to cross the picket line with an
act of insubordination, showing little or no regard
for the countervailing employee rights that were ex-
amiined and balanced in Redwing." In the case at
bar, Respondent showed no regard at all for these
"countervailing rights," and adopted and declared,
for the benefit of all and sundry, a policy which
there was no room for the legal test adopted by the
Board, and which required the discharge of all em-
ployees who refused to cross a picket line, in ad-
vance of all specific confrontation of opposing
rights, and automatically excludes from the con-
;sideration of the employer those' facts and circum-
stances by which the Board distinguishes cases of
the Overnight type from those more resembling
Redwing.
I conclude and find that Respondent by discharg-
ing Rodney and Jefferson violated the Act.
13 The record does not reveal whether any of Respondent's trucks are
equipped with radio. The practice is, however, for the driver to call the ter-
minal for further instructions after completing his assigned pickups and
deliveries
C. Other Alleged Acts of Interference, Restraint, and
Coercion
1. The speeches of Respondent's officers; the party
at Matamoros
As has been found above in connection with the
discharge of Perez and Fonteno, supervisors of
Respondent interrogated them concerning their
union activities. Other alleged individual interroga-
tions and threats by foremen are hereinafter
discussed. First, however, it should be understood
that these activities of supervisors, took place
against the background of a systematic antiunion
campaign by Respondent's officers including Mrs.
J. Lee Walker, Respondent's president, Henry
Walker, vice president, and L. W. Stephens, vice
president in charge of operations. A prominent fea-
ture of this campaign was a tour of all Respondent's
terminals involved in this case, where they ad-
dressed the assembled employees. In general, Pre-
sident Walker led off with a set speech, seconded at
one or two terminals by Vice President Walker or
Stephens who sat on the platform with her. She
spoke in English, and since most employees un-
derstood that language imperfectly, if at all, her re-
marks were translated by bilingual supervisors. She
recounted the history of Respondent from its
beginning under the management of her deceased
husband, her struggle to keep it a going concern,
and particularly a lengthly lawsuit with a competing
trucking company, the recent and successful con-
clusion of which would perhaps make it possible
before too long to give something in the way of a
raise in wages. She would not, however, sign a con-
tract which would bankrupt Respondent. She cited
another company which did sign a contract with the
Union. This company had lost business as a result,
and now had about half the number of employees it
previously had. She denied saying, as several wit-
nesses testified, that she would close down Respon-
dent's operations, or sell the Company or her in-
terest in it. She asked the employees to "Vote No
For Alamo," which came to be Respondent's
slogan.
Assuming, as I must , that Walker's remarks, and
those of other officers, who on occasion spoke in
the same vein, were accurately translated to the
employees, I conclude14 that they were not coer-
cive. Walker invariably concluded her set speech
with an equally set prayer, respectfully listened to
by the Mexican-American drivers, which she re-
peated from memory on the witness stand. It con-
tained no reference to Respondent's troubles with
" As did the Hearing Officer in a Report On Objections to the election of
July 28-29, 1965.
ALAMO EXPRESS, INC. 327
the Union, unless her request that "God support us
all the day long of this troubled life," be considered
such. This appeal was not accompanied by any
threat of reprisal or promise of benefit to the ad-
dressee.
At Brownsville, contemporaneously with the ap-
pearance of Respondent's officials and Walker's
speech and concluding prayer, and in an at-
mosphere somewhat less sacrosanct, Dock
Foreman Malino and Terminal Manager Ramarez
invited the 12 drivers to a party across the border
in Matamoros, and 9 of them went. The party in-
cluded drinks, followed by supper, followed by
drinks, followed by a visit to "Boys Town," a
misnomer for the prostitute quarter in Matamoros.
The affair ended at 2 or 3 in the morning, Terminal
Manager Ramarez picking up the checks along the
way. There is no evidence in the record that
Ramarez mentioned the forthcoming election dur-
ing the evening.
Respondent offers no explanation for the giving
of this party a few days before the election. It ap-
pears from the record that no such affair was ever
previously held. The most that was elucidated from
Ramarez was that occasionally when the soft drink
machine showed enough profit Respondent "may
open it" for a "get-together" of some sort. But his
further testimony is that there was only one "party"
since he had been terminal manager, and that was a
barbecue on the Company's dock at a subsequent
time.45 i-Iis further testimony is that the expenses of
the expedition to Matamoros were met by $60 from
the soft drink fund and about $30 or more, which
he himself advanced. He did not state whether it
was refunded him by Respondent.
It is evident that the Matamoros party was spon-
sored by Respondent and paid for by it directly or
from funds in its possession. Since it was without
precedent, and occurred contemporaneously with
the exhortations of Respondent's officers to "Vote
No For Alamo" in the pending election, there can
be little question but that the employees connected
the two events as it was calculated that they should,
and that they would conclude that if the Union was
defeated similar "goodies" might come their way in
the future."
him to "Vote No For Alamo," but stated that he
could not recall saying anything else. Alvarado did
not testify to the point. I credit Velasquez' version
of the conversation.
At a group meeting of the employees about the
same time Aldrete, according to VeIasquez, said
that if the Company won the election they could
expect a raise in wages sooner than if the Union
won. Aldrete did not specifically deny making this
remark, and I credit Velasquez.
At the Galveston `terminal 2 or 3 weeks before
the election, according to the testimony of Mar-
selino Diaz, Terminal Manager Ramarez, who spon-
soring of the expedition across the border has been
described above, asked Diaz what the employees
were all talking about everytime they got off work.
Diaz avoided a direct answer, whereupon Ramarez
said that he thought Leon, another driver, was a
leader of the Union, and asked Diaz for his opinion.
Diaz said he did not know. Ramarez denied the
substance of Diaz' testimony. I found Diaz a credi-
ble witness and that Ramarez made the interroga-
tions attributed to him.
By interrogating employees as to their own union
membership and that of fellow employees, and as to
how they were going to vote in the election, by pre-
dicting earlier wage increases if the Union lost the
election as above related, and by similar statements
in connection with the previously discussed
discharges of employees, Respondent interfered
with, restrained, and coerced employees in the ex-
ercise of their rights under Section 7 of the Act in
violation of Section 8(a)(1) 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 Respon-
dent's operations described in section I, above, _
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof.
2. Additional interference, restraint, and coercion
Felix Velasquez testified that a day or so before
the election Aldrete, terminal manager at Laredo,
called him to his office where, in the presence of
Alvarado, dock foreman, he told Velasquez that he
knew he had signed a unon card and, although that
was not too important, he did want to know how
Velasquez was going to vote. Aldrete admitted hav-
ing this conversation with VeIasquez' and asking
15 His testimony on this was as follows.
Q And have you had a barbeque at the dock since that time?
A. Me had one over there but I don't remember the date of it .. .
Q. Prior to the July, 1965 election and the dinner over across the
V. THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act, I shall recommend that
it cease and desist therefrom and take certain affir-
mative action which will effectuate the policies of
the Act.
Because Respondent discriminatorily discharged
employees Raphael Perez, A. J. Fonteno, Willie
Rodney and Jodie Jefferson, it will be recom-
way had you had other parties before that for the men?
A No, not ..we have had two parties and that is about it
's See U-Tell Corporation, 150 NLRB 1534
328 DECISIONS OF NATIONAL
mended that the Respondent offer them immediate
and full reinstatement to their former or substan-
tially equivalent, positions, without prejudice to
their seniority or other rights or privileges. It will be
recommended that the Respondent make each
whole for any loss of earnings he may have suffered
as a result of the discrimination against him by pay-
ment of a sum of money equal to that which he nor-
mally would have earned as wages from the date of
discharge to the date of the Respondent's offer of
reinstatement, less net earnings , if any, during this
period. The backpay shall be computed on a quar-
terly basis as prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, approved in
N.L.R.B. v. Seven-up Bottling Company of Miami,
344 U.S. 344, and shall include interest at 6 per-
cent per annum as provided by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716, approved
in Phillip Carey Manufacturing Company v.
N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. de-
nied 379 U. S. 888.
By failing and refusing to recognize and meet
with representatives of the Union when requested,
Respondent failed to perform its duty to bargain in
good faith as required by the Act. It will therefore
be recommended that, upon request by the Union,
Respondent meet and bargain collectively with it in
respect to the terms of a collective-bargaining con-
tract and, if an agreement is reached, to sign it.
Because the Respondent by its conduct violated
fundamental employee rights guaranteed by Section
7 of the Act, and because there appears from this
conduct a disposition to commit other unfair labor
practices , it will be recommended that the Respon-
dent cease and desist from in any manner infringing
upon the rights guaranteed employees by Section 7
of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532 (C.A. 4, 1941).
Upon the basis of the foregoing facts and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2) of the Act and is engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By interfering with , restraining, and coercing
employees in the exercise of their rights under Sec-
tion 7 of the Act, and by discriminatorily discharg-
ing four of them, 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.
These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
3. All over-the-road drivers, city pickup and
delivery men, dockmen, helpers, checkers, and
mechanics at all Respondent's terminals, excluding
office clerical employees, guards, watchmen,
LABOR RELATIONS BOARD
salesmen, solicitors, and supervisors as defined in
the Act, constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of
Section 9 (b) of the Act.
4. The Union has been at all times on and after
May 20, 1966, the certified, exclusive, representa-
tive of all the employees in the aforesaid ap-
propriate unit for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing at all times on and after May 20,
1966, to meet with and bargain in good faith with
the Union as the exclusive representative of its em-
ployees in the aforestated appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
6. 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 the entire record in this
case, it is recommended that Respondent, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities
on behalf of the Union, or any other labor organiza-
tion of its employees, by discharging any employee,
or in any other manner discriminating in regard to
hire or tenure of employment, or any term or con-
dition of employment.
(b) Refusing to bargain with the Union as the
exclusive representative of its employees in the ap-
propriate unit with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment.
(c) Interrogating its employees concerning their
union activity or threatening them with reprisals
because of such activity, or promises of benefits if
they abstain therefrom.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of their right to self-organization, to form, join,
or assist labor organizations, including the above-
named labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or mutual aid or protection,
or to refrain from any or all such activities except
to the extent that such right may be affected by an
agreement authorized by Section 8(a)(3) of the
Act, as modified by the Labor Management Re-
porting and Disclosure Act of 1959. -
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to Raphael Perez, A. J. Fonteno, Willie
Rodney, and Jodie Jefferson immediate and full
reinstatement to their former or substantially
equivalent positions without prejudice to their
ALAMO EXPRESS , INC. 329
seniority and other rights and privileges.
(b) Make whole Raphael Perez, A.- J. Fonteno,
Willie Rodney, and Jodie Jefferson for any loss of
pay they may have suffered by reason of the dis-
crimination against them by payment to them of a
sum of money equal to the amount they normally
would have earned as wages from the date of their
discharge to the date of Respondent's offer of rein-
statement, in the manner set forth in the section en-
titled "The Remedy."
(c) Upon request bargain collectively with the
aforesaid Union as the exclusive representative of
the employees in the appropriate unit and embody
any understanding reached in a signed contract.
(d) Preserve and, upon request , make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(e) Post at all of its terminals in Texas copies of
the attached notice marked "Appendix."17 Copies
of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Recommended Order what steps Respondent has
taken to comply herewith."'
11 In the event that this Recommended Order is 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 is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order." -
18 In the event that this Recommended Order is 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 Respondent
has taken to comply herewith."
Helpers of America, or any other labor or-
ganization by discharging any of our employees
or discriminating in- any other manner - in
respect to their hire or tenure of employment,
or any term or condition of employment.
WE WILL NOT coercively interrogate,
threaten , or promise or grant benefits to em-
ployees in connection with union membership
and support.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to
form labor organizations , to join or assist the
above labor organization or any other labor or-
ganization , to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or
all such activities , except to the extent that
such right may be affected by an agreement
requiring membership in a labor organization
as a condition of employment , as authorized in
Section 8 (a)(3) of the Act.
WE WILL offer to Raphael Perez, A. J. Fon-
teno, Willie Rodney, and Jodie Jefferson im-
mediate and full reinstatement to their former
or substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss
of pay suffered as a result of the discrimination
against them.
WE WILL recognize and bargain collectively
with the Union as the exclusive bargaining
representative of the employees in the follow-
ing described bargaining unit:
All over-the-road drivers, city pickup
and delivery men, dockmen, helpers,
checkers, and mechanics at all of our
Texas terminals, excluding office and cler-
ical employees, guards, watchmen,
salesmen , solicitors , and supervisors,
and if an understanding is reached we will sign a
contract with the Union.
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in
General Drivers, Warehousemen and Helpers
Local Union, Local Unions Nos. 968, 657, and
940, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Dated By
ALAMO EXPRESS, INC.
ALAMO CARTAGE CO.
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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
228-0611.