Gebhardt Chili Powder Co.

National Labor Relations Board - Board Decisions

Jun 18, 1958

120 N.L.R.B. 1502 (N.L.R.B. 1958)

1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gebhardt Chili Powder Company and General Drivers & Helpers
Local No. 657, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers. Case No.
39-CA-630. June 18,1958
DECISION AND ORDER
On August 14, 1957, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices , and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
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 Inter-
mediate Report, the Respondent's exceptions, and the entire record in
this case , and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the additions and modifica-
tions noted below.
1. The Trial Examiner found that Donley Hall was discharged by
the Respondent on February 4, 1957, in violation of Section 8 (a) (3)
and (1) of the Act. We agree.
We are persuaded that Hall was not discharged for insubordination
or because of any suspicion on the Respondent's part that Hall was
falsifying his expense accounts, as the Respondent claims. Rather we
conclude, as the Trial Examiner did, that the discharge of Hall was
unlawfully motivated. The critical facts compelling this conclusion
are as follows : The record is devoid of any evidence that Hall was
guilty of expense account padding, and the Respondent's claimed
suspicion to the contrary was never mentioned to Hall, nor was any
attempt made to verify it, before the discharge. The insubordination
attributed to Hall occurred on January 25, 1957. It consists of Hall's
conduct in connection with the replacement of 5 worn tires on his ve-
hicle for which Haby, the Respondent's assistant general manager,
had approved 4 replacements.'
The facts relating to this incident were brought to the attention of
Haby on January 28 or 29. Haby testified that "at that minute" he
made up his mind "that-that was all for Don Hall." But the Trial
Examiner discredits this testimony of Haby's, as do we. Haby did
not actually discharge Hall until February 4, 1957. On that day, the
Respondent received a letter from the Union in which the Union ad-
vised it that Hall and L. H. Broadway, 2 of Respondent's 3 over-the-
i The five tires replaced with recapped tires were marked for such replacement.
120 NLRB No. 190.
GEBHARDT CHILI POWDER COMPANY 1503
road drivers, had joined the Union. The Union also requested a meet-
ing to discuss recognition, and stated that a petition for an election
had been filed with the Board. Earlier that morning, a copy of the
Union's petition was handed Haby by the Respondent's president with
the words, "here is that petition from that son of a bitch Shafer."'
Almost directly following receipt of the Union's letter, Hall was dis-
charged, as more fully detailed in the Intermediate Report. There-
after, discussions took place between the Union and Respondent con-
cerning the holding of an election on the basis of the Union's petition.
However, no agreement was reached in this connection : one of the
differences between the parties was the applicable payroll eligibility
date, the Union desiring, contrary to Employer's position, a payroll
date prior to February 4, which would thus include Hall among the
eligible voters. On March 13, the Union withdrew its petition.
On the basis of all the foregoing, and the entire record, we con-
clude that the Respondent discharged Hall for the purpose of destroy-
ing the Union's majority. By this conduct, the Respondent violated
Section 8 (a) (3) and (1) of the Act .3
2. Like the Trial Examiner, we also find that the Respondent has
refused to bargain with the Union since February 4, 1957, in violation
of Section 8 (a) (5) of the Act.
The Union in fact represented 2 of the 3 over-the-road drivers
employed by the Respondent on February 4, before Hall's discharge.
The parties stipulated, and we find, that such drivers constitute a unit
appropriate for bargaining purposes.4 By letter received by Re-
spondent on February 4, the Union sought a meeting with the Re-
spondent for the purpose of gaining recognition as bargaining agent
of the over-the-road drivers. Shortly after the receipt of this letter,
the Respondent engaged in unlawful conduct aimed at destroying the
Union's majority, as found above. In the circumstances, it is plain
that this unlawful conduct of the Respondent constituted a refusal to
bargain within the meaning of Section 8 (a) (5) of the Act,' and
we so find.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Gebhardt Chili Powder
Company, San Antonio, Texas, its officers, agents, successors, and as-
signs, shall : -
2 Shafer was president and business manager of the Union
3 Special Wire Goods, Inc., 115 NLRB 67 • Tennessee-Carolina Transportation, Inc.,
108 NLRB 1369; Somerset Classics, Inc, etc., 90 NLRB 1676, enfd. 193 F. 2d 613 (C. A. 2).
4 Gluck Bros, Inc, 119 NLRB 1848
$Joy Silk Mills , Inc v N. L. R. B ., 185 F. 2d 732 ( C. A., D. C.), cert. denied 341
U S. 914; Special Wire Goods, Inc, supra; Tennessee-Carolina Transportation, Inc.,
supra , Falstaff Distributing Co, 104 NLRB 760; Somerset Classics, Inc, supra.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in General Drivers & Helpers Local
No. 657, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers, or in any other labor organi-
zation of its employees, by discharging them or by discriminating
against them in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment.
(b) Refusing to bargain collectively with General Drivers & Help-
ers Local 657, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers, as the exclusive repre-
sentative of all employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other terms and con-
ditions of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist General Drivers & Helpers Local 657, affiliated
with, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid and 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.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) .Upon request bargain collectively with General Drivers &
Helpers Local No. 657, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers, as the exclusive
representative of the employees in the appropriate unit with respect
to rates of pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Offer to Donley Hall immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges of employment, and make
him whole for any loss of pay suffered by reason of the discrimination
against him in the manner set forth in the Intermediate Report.
(c) Post at its plant in San Antonio, Texas, the notice attached
hereto, marked "Appendix."' Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
6In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words , "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
GEBHARDT CHILI POWDER COMPANY 1505
duly signed by the Respondent's representative, be posted immediately
upon receipt thereof, and maintained by it for sixty (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 such notices are not altered,
defaced, or covered by any other material.
(d) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze, compute, and determine
the amounts of back pay and other employment rights to which Donley
Hall may be entitled under this Order.
- (e) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in General Drivers &
Helpers Local No. 657, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers, or any other
labor organization of our employees, by discharging them or by
discriminating against them in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organ-
ization, to form, join, or assist General Drivers & Helpers Local
No. 657, affiliated with International Brotherhood of Teamsters,.
Chauffeurs, Warehousemen & Helpers, or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,,
or to refrain from any and all such activities, 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 in Section 8 (a) (3) of the Act.
483142-59-vol. 120-96
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain, upon request, with General Drivers & Helpers
Local No. 657, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers, as the exclusive rep-
resentative of our employees in the appropriate unit, with respect
to wages, hours, and other terms and conditions of employment,
and we will execute with said Union a written contract incor-
porating any agreement reached. The bargaining unit is :
All over-the-road truckdriver employees at our plant in
San Antonio, Texas, excluding office clerical employees, pro-
fessional employees, guards, and supervisors as defined in
the Act.
WE WILL offer to Donley Hall immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other employment rights and privi-
leges, and make him whole for any loss of pay he may have
suffered by reason of the discrimination against him.
All our employees are free to become and remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization.
GEBHARDT CHILI POWDER COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These proceedings , brought under Section 10 (b) of the National Labor Relations
Act (61 Stat . 136), herein called the Act, were initiated by the filing of a charge by
General Drivers & Helpers Local No. 657, affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers, AFL-CIO, dated February 14,
1957, and an amended charge dated April 12, 1957. Based upon these charges the
General Counsel of the National Labor Relations Board ( separately designated as
General Counsel and the Board ) issued a complaint against the Respondent, dated
May 2 , 1957, alleging that the Respondent had engaged in unfair labor practices
affecting commerce , in violation of Section 8 (a) (1) (3 ) and (5) of the National
Labor Relations Act. More specifically , the complaint alleged that the Respondent
did on or about February 4, 1957, discharge Donley Hall, an over -the-road driver,
employed at Respondent 's plants, and at all times thereafter failed and refused to
reinstate him for the reason that he joined or assisted Local 657 or engaged in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection , and on or about February 4, 6, and 7, 1957, and at all times thereafter,
Respondent did refuse and continues to refuse to bargain collectively with Local No.
657 as the exclusive representative of all employees who constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
The Respondent duly filed its answer denying the commission of the alleged
unfair labor practices on May 22, 1957 . Pursuant to notice , a hearing was conducted
at San Antonio, Texas, on June 4 and 5 , 1957, by the Trial Examiner, John C.
Fischer , duly designated by the Chief Trial Examiner. All parties were present and
were afforded full opportunity to be heard , to examine and cross -examine witnesses,
p GEBHARDT CHILI POWDER COMPANY 1507
to introduce evidence pertinent to the issues involved, to argue orally upon the
record, and to file written briefs and proposed findings and conclusions within a
fixed time from the close of the hearing. Concluding arguments were heard and
briefs were submitted by the parties involved.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
Respondent is and has been for several years past and at all times material herein,
a corporation duly organized under, and existing by virtue of, the laws of the State
of Texas, having its principal office and place of business at 1810 South Laredo
Street, San Antonio, Texas, and a Chili Powder Plant at 112 South Frio Street, in
the same city, herein referred to collectively as the Plants, and is now, and has been
at all times herein mentioned continuously engaged at said places of business in the
manufacture and sale of seasonings including chili powder, and various Mexican
foods. Respondent in the course and conduct of its business operations at the Plants,
during the past 12 months, which period is representative at all times material herein,
purchased chili peppers, beans, produce, seasonings, and other foods, materials, and
supplies valued in excess of $1,000,000 which were shipped in interstate commerce
to the above Plants from points outside the State of Texas. During the same period,
Respondent produced, manufactured, and sold chili powder, seasonings, and Mexican
foods valued in excess of $500,000 which were shipped in interstate commerce to
points outside the State of Texas.
It is found that Respondent's operations affect interstate commerce within the
meaning of Section 2 (6) and (7) of the Act. -
II. THE LABOR ORGANIZATION INVOLVED
General Drivers & Helpers Local No . 657, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers, AFL-CIO, is a labor
organization,admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
This case involves the discharge on February 4, 1957, of Donley Hall, an over-
the-road truckdriver employed by Respondent Gebhardt Chili Powder Company.
The respective contentions of the General Counsel and of Respondent Counsel are
succinctly set forth in briefs submitted to the Trial Examiner after they had had
access to the transcripts of the official record and had been granted by the Chief
Trial Examiner sufficient time to prepare these documents. For purposes of back-
ground and orientation the following excerpts from those briefs are set forth.
General Counsel Whittaker contends: Donley Hall was discriminatorily discharged
shortly before noon on February 4, 1957, after the Respondent received a copy of
the petition filed by Local 657, acknowledgment from Hall that he knew all about it
and a letter from the business agent of Local 657 announcing the application for
membership and authorization by Donley Hall. Respondent had been on notice
since January 31, 1957, that a petition had been filed. Respondent defends on the
basis that the discharge was made for cause earlier in the morning and at a time
prior to the receipt of a copy of the petition from the Board's office and the receipt
of the letter from Local 657.
As the cause of the discharge, General Counsel contends that the Respondent
advanced three pretexts. First, Respondent stated that on January-28, 1957, by its
assistant general manager, R. J. Haby, it was decided to discharge Hall on the basis
of a statement concerning the use of certain truck tires. Second, Haby stated that
he decided to discharge Hall on the basis of insubordination in that having been
authorized to use 4 recapped truck tires, he in fact used 5. Third, it is claimed that
Respondent was compelled to take the action it did on pretext 1 and pretext 2 on the
basis of an unassessable evaluation of certain unsubstantiated suspicions pertaining
to expense items incurred by Hall on his over-the-road trips and that Respondent
failed to establish factually that either pretext 1, 2, or 3 existed. He contends that
this defense is based upon its lack of either a complete investigation or summarily
jumping to conclusions resulting in the presentation of a labyrinth of inconsistencies
at the hearing. Further, he contends the entire posture of Respondent's defense is
compromised by its prior inconsistent conduct in similar or worse situations in which-
it displayed great leniency toward its drivers in the absence of their union activities.
It was also urged that the letter received on February 4, 1957, from Local 657
be considered a request to bargain. Secondly, it is urged that the oral request made
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on February 7, by Union Business Agent Shafer to Respondent's Attorney Clifton for
voluntary recognition or recognition on the basis of a cardcheck be considered as a
request to bargain. Further, on the basis of the Trial Examiner finding the discharge
of Hall to be discriminatory, Local 657 is presumed to have a continuing majority
from on or about January 8, 1957, to the present time. In view of Respondent's
refusing to recognize and bargain with Local 657 and insisting upon an election
after having destroyed the majority of the Union. General Counsel urges that the
Trial Examiner should find that Respondent has refused to bargain in good faith.
Respondent Counsel Contends
Respondent Counsel Clifton in part contends that the record discloses that Donley
Hall, one of the members of the unit above mentioned, was discharged by Respond-
ent's responsible officer sometime before 9 a. in. on February 4, 1957. The specific,
immediate cause of discharge was willful disobedience of direct, positive instructions
with reference to the use of certain tires, and insubordination. Counsel cited that for
several months prior to February 4, 1957, Respondent was having considerable
trouble with reference to irregularities occurring in its business. In November 1956,
a theft ring was uncovered and a foreman and some of the truckdrivers were found
to be stealing merchandise. Two employees were convicted of theft and are now
serving probationary sentences. That the over-the-road drivers had been investigated
and several irregularities in their operation were established. Specifically relating
to Donley Hall, particular complaint was being made of the alleged expenses in-
curred in loading and unloading charges at destination. That although direct evi-
dence of specific falsification, on the part of Donley Hall, of reports on loading and
unloading charges was not secured until after his discharge, suspicions which Re-
spondent considered well-founded, were occasioned by his expense statement of
January 16, 1957, wherein his loading charges were approximately $27, whereas he
had made the same load the week before at an expense of $7 or $8. Further, that
suspicion was aroused by the fact that although Donley Hall was required to secure
verification of his loading and unloading expense by a shipping clerk or checker at
destination, such verification furnished by Hall on January 8, 1957, and the verifica-
tion furnished as of January 16, 1957, disclosed that one John E. Hills had verified
such charges at Metropolitan Warehouse at Los Angeles, California, at the unloading
dock of Smart and Final Co. at San Bernardino, California, and also at two *other
stops in Los Angeles. Later investigation disclosed the fact that John E. Hills was
not authorized to verify such expense accounts, being neither a shipping clerk nor
checker, but a forklift operator at the warehouse of California Packing Company.
That, although Respondent did not assign the last-mentioned irregularities on the
part of Donley Hall, as the specific reason for his discharge on February 4, 1957, the
record clearly demonstrates that such suspicions and dissatisfaction with Hall's ex-
pense accounts were sufficient ground for such discharge and the record further dis-
closes that such suspicions and inferences were later established as facts by the results
of investigations made and being made prior to his discharge.
That the facts relating to the tire incident, the immediate cause of the discharge,
are established as follows: before leaving on his trip west immediately prior to dis-
charge, Donley Hall was instructed by Mr. Haby, as follows: "The truck was parked'
at the dock. We-looked over the tires and I told him alright, Don, we will replace-
four of them; we will match these two here that you tell me won't take a recap up on
the right-hand side of the trailer and leave them on and run them until they blow-
and we mark the four to be recapped." Hall does not dispute these instructions:
"He told me to pick up four tires and I had four left on there-good ones." Hall
further testified: "He told me to go see Mr. Costello, get some tires, four tires.'"
On Monday, January 28, 1957, Mr. Haby, Hall's immediate superior, learned
that Hall had violated instructions with reference to replacing tires; that he had
secured 5 recaps rather than 4 and that Hall had stated a short time previously that
if he was required to use old tires he would let the air out of them, run them and
cause them to blow out. At that minute Haby decided that Hall was to be discharged.
This occurred on January 28, 1957, 1 week before the actual discharge.
Counsel argued that Respondent was very anxious to cause old tires to be used
until they were completely worn out. "We were accumulating a large number of
those old tires in my opinion and in the opinion of those whom I checked filling sta-
tions, truckers, etc., they had a lot of mileage left in them yet." New tires cost ap-
proximately $150 each and it was imperative that the old tires be completely worn
out before being replaced by new tires or recaps. These violations by Hall of his
positive instructions with reference to the use of old tires was not of minor importance;
he was not discharged on frivolous grounds.
GEBHARDT CHILI POWDER COMPANY 1509
Credibility Found Controlling
The disposition of the allegations in the complaint depends almost entirely on the
credence placed upon the version of the particular witnesses, Donley Hall, Lloyd H.
Broadway, Rufus J. Haby, and Frank Costello. The testimony of Raymond C.
Shafer, the union official, bears on the question of the Company's alleged refusal to
bargain. The "silent witnesses," that is the documentary evidences, bear upon the
versions as recited by the testifiers upon the witness stand.
Background-Employees' Situation
Donley Hall was first employed as a truckdriver by the Company in 1949, although
he had worked for Respondent prior to discharge on February 4, on three separate
occasions-the last employment starting January 1955. Driver L. H. Broadway had
only worked over-the-road since October 1956, but had been a substitute driver for 3
months in 1955. Both drivers had been former members of the Teamsters Union
but had allowed their memberships to lapse by reason of nonpayment of dues.
Management was aware of these facts. Frank Earnest made the other member of the
Company's over-the-road-unit, and he drove points east to Atlanta, etc., while Hall
and Broadway drove west to San Francisco, Los Angeles, and other California points.
They transported the Company's consigned products to distributors on outbound
trips and returned with required ingredients for manufacture or loaded with garden
produce when possible. During the spring of 1956, the Company changed from
"the 25 miles per hour allowance to a straight over-the-road mileage," installed
measuring devices called "road-o-meters" on the trucks, made up a schedule showing
so many miles to make a round trip and eliminated the $30 bonus paid for making a
return trip with produce. Prior to this change the drivers had been receiving 80
cents per hour for the first 40 hours and time-and-a-half for all over 40 hours-
resulting in a cut of $16 on the San Francisco run and $7 on the Los Angeles run.
According to Hall: "then is when we first talked of going union." However, Hall
and Broadway did not join the Union until the first week in January 1957, and Earnest
never did join. On January 30, Teamsters agent, Shafer, filed a petition as collec-
tive-bargaining representative of the drivers unit. The manner in which the Com-
pany first gained knowledge on Thursday, January 31, that the Union demanded
recognition is shown by stipulations entered into between counsel as follows:
By Mr. Clifton: It is stipulated that at some time during the afternoon of
January 31, 1957, Mr. Burst, who has been identified in this record (as NLRB
Field Examiner) called George G. Clifton, attorney for Gebhardt Chili Powder
Company, and advised Clifton that he had attempted to get in touch with Mr.
Lambert, president and general manager of Gebhardt Chili Powder Company,
but was advised in Mr. Lambert's office that Mr. Lambert was ill and could not
see him, or take any calls, and realizing that Clifton represented the Company
he delivered by telephone the message that he had received a petition in person
from Mr. Shafer on behalf of the Teamsters Union asking for an election for
the purpose of determining representation of some employees of Gebhardt Chili
Powder Company. That Burst advised Clifton that the unit claimed consisted
of the over-the-road truck drivers of the Company. Burst further advised
Clifton that he was returning to Houston that afternoon or evening and that
copies would be mailed the Company and Clifton the following day, Friday,
February 1, 1957, which was done. Immediately following the telephone com-
munication with Mr. Burst, Clifton called Mr. Lambert's secretary at his office
and requested her if Mr. Lambert's health permitted to advise him to call Mr.
Clifton with reference to a business matter. Later that afternoon, at approxi-
mately 5 o'clock on January 31, 1957, Mr. Lambert called Mr Clifton from his,
Lambert's home, and Mr. Clifton advised him of his telephone conversation with
Mr. Burst earlier that afternoon. Mr. Clifton did not see or have any com-
munication with Mr. Lambert or Mr. Haby following the telephone conversation
on January 31, until approximately noon, February 4, when he was called by
Mr. Haby advising him that he had received a copy of the petition filed, and
Mr. Haby requesting a conference. Clifton advised Haby that he was leaving
that afternoon for Houston and would not return until Wednesday, and that he
would meet with him Wednesday upon his return from Houston.
Manager Haby Confers With President Hall
As will be adverted to later herein, Manager Haby visited President Lambert at
7 p. in. that same day (Thursday, January 31) at Lambert's home and had a con-
versation with Mr. Lambert who was convalescing from a recent operation. In an
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affidavit given to T. L. Whittaker, Haby stated, among other things: "Soon after
speaking with him on this visit, he mentioned the fact that `we have got some of our
old driver trouble cropping up on us. You have got to get rid of that crook, Don
Hall. He is stealing.' " Haby further stated in the affidavit "I do not recall Mr.
Lambert discussing a conversation he had had with Mr. Clifton earlier that evening
with reference to our over-the-road drivers being organized by the Teamsters Union
and I do not recall his using the word `petition' at any time during our short conver-
sation on the subject." (It appeared that an incident arose during their conference
which Haby stated "prevented our discussing business or Company matters any fur-
ther." This disturbing incident arose by reason of one of Mr. Lambert's servants
attempting a suicide.) Haby stated further in his affidavit "the following morning
Mr. Lambert did come down to South Laredo Street plant for a few minutes. I don't
recall any discussion with him that morning relating to union organization, his dis-
cussion with Mr. Clifton the previous afternoon by telephone, or mentioning the
word `petition.' " This affidavit executed the 4th day of April 1957, appears as
General Counsel's Exhibit No. 11. (Emphasis supplied.)
Background Continued-The Company Situation
Mr. R. J. Haby had supervision over the Company's road drivers but discussed all
matters relative to the general operation of the business with President Lambert.
As previously indicated, during the fall of 1956, a theft ring was uncovered, wherein
one of the foremen, Willie Jett, and some of the city drivers were found to be stealing
merchandise out of the plant and selling it locally. Two men were given prison
sentences. As a result of these irregularities, all employees were placed under
investigation. In July, prior to uncovering the theft ring, Haby made a trip to
California in order to check the loading and unloading charges which the over-the-
road drivers were submitting in their expense sheets. At that time the Company did
not require any receipts from the drivers. It appeared that the highly organized
Teamsters Union had agreements with the warehouses that "their local people would
have to do the unloading" in certain California cities, and it made other requirements.
Upon his return, Haby specifically instructed all the drivers that they would have to
get the person whom they paid for unloading to sign for the number of hours and
the amount received and "this slip was then to be verified by the shipping clerk who
checked the load off." Haby testified that President Lambert on a number of oc-
casions came to him and said: "Haby, those drivers are stealing you blind. They
are padding their expense accounts. I have definite proof that they are." (Presum-
ably, Lambert had in mind all of Haby's drivers, although he may have had in mind
only inventory shortages.) As indicated, road-o-meters were subsequently installed
on the trucks, but a trip schedule had been worked out in the meanwhile which al-
lowed from 100 to possibly 200 miles more than the actual speedometer mileage so
as to cover the distance drivers might have to go out of their way to load produce at
certain principal terminal points. Haby stated : "I questioned any time an expense
account looked out of order, I would question it, and, of course, get a statement
from them, which they said, `well, I had to do this and I had to do that,' but each
time when they checked in, and those things looked out of order, I would question
them." The first instance of Haby encountering any so-called "padding" of expense
accounts by either of his two west coast drivers, Broadway and Hall, was the first
week in January 1957. The Company continued its policy of investigating opera=
ating expenses up to the time of the hearing as is evidenced by confidential com-
munications between.Haby, his brokers, and California Packing Corporation. (See,
for example, Respondent's original exhibits 1 and 2-being a letter by Appfel
Brokerage Company and a telegram from California Packing concerning "helpers"
hired.)
Broadway Is Charged With Padding
The first instance of Haby encountering any so -called "padding" of expense ac-
counts by either of his two west coast drivers (Hall and Broadway) arose the first
week in January 1957. The situation is illustrated by the following excerpts of
testimony:
Q. (By Respondent Counsel Clifton.) State exactly what you encountered
with reference to reports filed by any of your west coast drivers relating to
mileage reports.-A. Well, I actually didn't check the mileage reports. They
turned them in to the payroll department. But about the first week in January
Mrs. Warden, who prepares the payroll, came to me with Mr. Broadway's
envelope and she says "Should I pay Broadway to Sacramento"? I said "Sacra-
mento? He didn 't go to Sacramento." She said "Well, that is what he shows on
the envelope ." So I said "Well, get the envelope, let me look at it." So she went
GEBHARDT CHILI POWDER COMPANY 1511
and brought the envelope. I looked at it and he showed that he brought a load
of produce from Catalini Produce Terminal here, so I called Mr. Frank Catalini
and I said "Frank, why did you send Broadway all the way to Sacramento
to load"? He says "I didn't load him to Sacramento. I loaded him to Bakers-
field." So I said "Well, he's showed on his report that he went to Sacramento."
He said, "No, he loaded in Bakersfield." So I told Mrs. Warden, "You pay
him for San Antonio, Los Angeles, Bakersfield." And then when the two
drivers came in, I kept this envelope on my desk and I said to Broadway, I said
"What is the idea of turning in for Sacramento when you only went to
Bakersfield"? Well, he said something about these little things a little off the
road mileages. I told him "Well, that's accounted for in the extra mileage that
you get on every trip. Wherever you go you get from a hundred to two hundred
miles extra. And that is taken care of here." So he said, Well, what-says,
well, he says "I guess you will have to fire me." I said "No, I am not going
to fire you this time I will give you another chance." But immediately then
I well, in the meantime I had called White Motor Company and asked them
if there was any way of controlling the mileage and they recommended this
road-o-meter. So I arranged and told both of those drivers at that time, that
is, Broadway and Don Hall, that I was going to have those road-o-meters put
on and to take their trucks over to White Motor Company and have them
put on, and as soon as Frank got in I would have one put on him, and from
there on the mileage would be paid for on the basis of the road-o-meter. That
was the first week in January.
Broadway's version was substantially the same. Under examination by General
Counsel Whittaker the following testimony was adduced:
Q. (By General Counsel Whittaker.) Now, Mr. Hall testified about Mr.
Lambert not paying you for some claimed mileage to Sacramento.-A. No,
they didn't pay me for it. I didn't go to Sacramento.
Q. Well, what was the conversation you had with Mr. Lambert about?-A. I
didn't-it was Mr. Haby I talked with.
Q. I mean Mr. Haby excuse me.-A. Well, he asked me why I wrote it
down there and I told him I had been driving a lot of miles I hadn't been
getting paid for, but if I had a dismissal coming for that I would gladly take
it and walk off, and he says, "No, I am not going to fire you," says, "If Mr.
Lambert knew he probably would." [Emphasis supplied.]
Q. Was it before the road-o-meters went on?-A. Yes, sir, that was what
brought on putting on those meters.
Respondent Counsel Clifton interrogated Broadway with reference to this padding
on cross-examination.
Q. (By Counsel Clifton.) On -or about the first of the year, while you were
being paid on a mileage basis at the rate of 41/2 cents a mile, you padded your
mileage record from Los Angeles to Sacramento, didn't you?-A. I wrote it
down there.
Q. And signed it and turned it in and collected the money for it, didn't you?-
A. I didn't collect the money for it.
Q. You didn't?-A. No, sir.
Q. What happened to it?-A. Mr. Haby told me that the lady brought it in
there to him and he told her to pay me to Bakersfield.
Q. You didn't go to Sacramento?-A. No, sir.
Q. You just attempted to collect the money for it?-A. I was just trying to
get paid for some of the miles that I had been taking that I hadn't been getting
paid for.
Q. Why weren't you getting paid for the miles you were making?-A. Be-
cause this man we haul produce for runs you all over the country. And Mr.
Haby calls him and asks him asks where we went and he don't tell him every
place we go: Sometimes you run around three or four hundred miles further
picking up a load.
Q. Mr. Haby told you he was not going to discharge you for that?-
A. That's right.
Q. But if this, that if Mr. Lambert found it out, you probably would be dis-
charged? Is that right?-A. He said if Mr. Lambert knew it he would probably
fire me right there.
Q. Then they immediately put the road-o-meters on, didn't they?-A. Yes,
sir. [Emphasis supplied.]
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Broadway 's padding his mileage record , coming on top of the theft ring un-
covered in November, brought suspicion upon Hall's labor charges for loading and
unloading on his last three trips. In his brief to the Trial Examiner, Respondent
Counsel Clifton contended that "although Respondent did not assign any irregu-
larities on the part of Donley Hall, as the specific reason for his discharge on Febru-
ary 4, 1957, the record clearly demonstrates that such suspicions and dissatisfaction
with Hall's expense accounts were sufficient grounds for such discharge and the
record further discloses that such suspicions and inferences were later established as
facts by the results of investigations made and being made prior to his discharge."
(With this the Trial Examiner is not in accord.)
It will be recalled that Respondent became suspicious at the expense account
statement of January 16, 1957, when Hall 's loading charges were approximately $27,
whereas he had made the same load the week before at an expense of $7 or $8.
Further suspicion was aroused because Hall was required to secure vertification of
his loading and unloading expense by a shipping clerk or checker at destination.
(Investigation disclosed the fact that one John E. Hills, a forklift operator at Cal-Pac
was the signatory .) Haby's testimony in this connection was as follows:
Q. (By Counsel Clifton). Now, during the month of January were you
continuing your investigation of the expenses of loading and unloading incurred
by your drivers on-the west coast?-A. Yes, I was.
Q. Specifically referring to the week of January 20, 1957, what action did
you take with reference to such investigation?-A. When Don Hall came back
from California and turned in that loading charge of $27 and something, I
believe that was around the 16th of January, whereas he had made the same
load the week before and only turned in $7 or $8, well, I was suspicious of it,
and I called Mr. Mory Appfel.
Q.- Now, who is he?-A. Mr. Mory Appfel is A local food broker repre-
senting the California Packing Company.
Q. Were you shipping to California Packing Company or shipping to-
A. We were purchasing from California Packing Company.
Q. Very well.-A. Tomato puree. And I met Mory, and he said "Well, I am
pretty busy, but I will meet you out at the Quick Lunch." So that morning,
which would be January 28, I went in, I told him, I says "Mory, did you think
that Vic," Mr. Vic Nelson is general manager of the Prince Division of the
California Packing Company, I said "Do you think that Vic would probably
give us any information as to whether or not our drivers are hiring help when
they load down in Los Angeles?" He said "Well, I feel like he would." Well, I
said , "Mory, I don't know just what reaction California Packing would take
if I was to get hold of him but I would appreciate if you would write Vic and
see if you could find out something on the matter." So he addressed a letter
under date of January 29, to Mr. V. L. Nelson, California Packing Company,
which T would like to read-1
Q. Did Mr. Appfel advise you that he had written the letter?-A. Yes, I
talked to him and asked him if he had gotten a letter off to Vic and he said
he had. I called him by telephone and he said he had.
Q. Then what did you do with reference to the matter?-A. Well, I allowed
time enough to elapse for Mr . Nelson to receive the letter then I called him
by telephone.
Q. Yes, sir.-A. And asked him if he would have Los Angeles check our
drivers at the time they loaded. They were both loading tomato puree at this
time, and to see how much help was furnished, and furnish me a report.
Q. Yes, sir.-A. And he did, he wired me the day they loaded, he sent
me a wire, telling me just what had gone on.
Counsel Clifton drew the Trial Examiner 's attention to the fact that the telegram
was dated and received during the noon hour of February 1, 1957.
Assigned Causes for Hall's Discharge
The specific assigned causes for Hall's immediate discharge by Haby on February
4, 1957, were willful disobedience of instruction with reference to the use of tires
and insubordination . Haby testified that he arrived at his decision to discharge Hall
on Monday , January 28th , upon discovering that Hall had obtained from the garage
5 new recapped tires, rather than the 4 allowed , had placed 4 tires on his truck and
1 This letter is Respondent Counsel 's official Exhibit No 1 and it, together with tele-
gram from California Packing Company to Mr. Baby , Respondent's official Exhibit No. 2,
appear as appendixes in this record.
GEBHARDT CHILI POWDER COMPANY 1513
carried 1 as a spare, instead of matching up and mounting a couple of worn tires as
instructed. Haby also testified that he was told that Hall had stated a short time
previously that if he were required to use old tires he would let the air out of them,
run them and cause them to blow out.
Cogent Testimony
Haby testified in this connection:
Q. (By Counsel Clifton.) Now, Mr. Haby, referring specifically to the tires
on the trailer attached to the tractor Mr. Hall operated during the month of
January, had you had a discussion with Don Hall with reference to the condition
of the tires on that trailer during the early part of January as testified to by
Mr. Hall yesterday? I'd distinguish that discussion from a discussion had with
him during the week of the 21st, of that week, do you recall an earlier dis-
cussion with him?-A. Yes. Don
Q. First approximately, as you recall, when was that discussion had? Just
about what week?-A. Well I would say Don come in, had some complaint
about tires almost every time he come into the office.
Q. Yes, sir. Now, with reference to the date, though, of this earlier discus-
sion, was it 2 or 3 weeks earlier?-A. Well, early in January or probably the
last week in December we put four new tires on the drive wheels of the tractor.
Q. Yes, sir.-A. And at that time he wanted to put some tires on the trailer.
We always use recaps on the trailer. He wanted to put some new recaps on
the trailer, and my observation of the tires was that they were not ready to
be pulled off yet.
Q. Now, those tires are very expensive?-A. They cost approximately $150
each. A new tire is approximately $150, and depending on the type of recap,
it's usually about $50 to recap them, but you are using your original carsass
when you recap.
Q. Now, Mr. Haby, in that discussion did Don request new recaps on the
trailer?-A. Yes, he wanted to take the tires that were on the trailer off and
replace them with new recaps.
Q. Did you instruct him to do that?-A. I told him to make a couple of more
trips.
Q. Yes, sir. Which he did?-A. That's right.
Q. Then there was a later discussion during the week of January 20 or 21
with reference to the tires on that trailer?-A. Well, when he checked in after
the January 15 trip, which would have been January 23 or 24, he asked me to
look at his tires again.
Q. Did you do so9-A. I did. I got up and went out. The truck was parked
at the dock. We looked over the tires and I told him, "alright, Don, we will
replace four of them; we will match these two here that you tell me won't take
a recap up on the right-hand side of the trailer and leave them on and run
them until they blow." And we marked four to be recapped. And I was going
to-I told him to take it over to Goodrich and get the tires from Frank (Cos-
tello) and take them over to Goodrich and have them change them.
Q. Did you mark the tires to be matched and left on the trailer?-A. Yes.
Don put the mark on the tires to be matched.
Q. Now, that accounts for six of the tires.-A. Yes.
Q. Six of the eight tires are accounted for in your testimony. What was to
be done with the remaining two tires?-A. There was nothing to be done with
them. They were in condition to continue operating running.
Q. Was the position of the trailer identified when the two tires that were to
be matched and left on the right-hand side, was the position, front or rear,
identified, in that conversation9-A. My recollection is that they were to be
placed on the right -hand side of the trailer, paired together.
Q. Did Don Hall demur to that or was there any discussion with reference
to those specific tires?-A. Don demurred or objected to running those tires
that were going bad. A tire that just showed any little defect he wanted to
take off. He was always that way.
Q. Now, what was the condition of those particular two tires with reference
to whether or not they could be economically recapped?-A. After they get
breaks in the carcass, why, they don't take-that is, the recapping companies
wouldn't recap them because they will blow out . They won't stand it any more.
Q. Well, were the two specific tires under discussion incapable of being
recapped?-A. That was my observation, that they had been checked by
Goodrich and were of such a nature that they wouldn't take a recap.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Then you were requested in effect to discard those two tires, is that
correct?-A. That's right, he wanted to take them off and discard them.
Q. You gave him definite instructions contrary to his wishes in that mat-
ter?-A. That's right.
Q. You instructed him to proceed in the preparation for his next trip with
those instructions with reference to the tires?-A. That's right, yes.
Haby Discovers Hall Used Five Tires
It appears that the tires are kept in the old company office on South Frio Street
and Frank Costello is in charge of them. Costello issues the tires to the drivers as
they request them. Haby testified to a conversation the week of the last trip taken
by Hall probably the 28th or 29th of January. This conversation was had with
Costello and Haby's version was as follows:
A. While I was over there on Monday, we were going over the various things
over there and he [Costello] says, he said to me, "Don put on five recaps."
I said, "No, Frank, there's four." I said, "I told him to put on four." He said,
"No, be put on five." He said, "he come here and he got five. I will get the
book and show you." So he got the book and showed me and I said, "Well,
I'll be darned, I specifically told him to put on four tires and to make those
other two up."
Q. (By Counsel Clifton.) What was your purpose in requiring Don Hall
to continue to use those old tires?-A. We were accumulating a number of
those old tires in my opinion and in the opinion of those with whom I had
checked, filling stations and truckers, etc., that they had a lot of mileage left
in them yet.
Q. You wanted to get that mileage?-A. I wanted to get that mileage.
Q. Yes, sir. Very well. You learned that he had not followed your in-
structions with reference to replacement of tires. Was there anything else said
about tires with Costello at that time? Were these tires discussed?-A. In our
conversation he told me that he had overheard Don say that if I made him use
those tires that he would let the air out of them and cause them to blow out,
and at that minute when he told me that is when I made up my mind that that
was all of Don Hall. (The Trial Examiner does not believe this.)
Q. You mean at that moment you decided that if he made such a statement
you were going to discharge him?-A. I made up my mind to discharge him
at that time, yes, sir.
Hall's Version of Tire Incident
Hall testified with reference to the tire incident, describing that the tractor had
6 tires on the ground, 2 in front and 4 on the drive shaft and that the trailer had 8
tires on the ground. He also stated that it was the custom to carry a spare. He said
he first spoke to Mr. Haby about having some tires changed that were wearing out
about the 7th of January.
Q. (By Counsel Whittaker.) What did you say and what did he say?-A.
I told him I had some tires that were getting slick, in bad shape. He suggested
that we go out and look at the tires. On the way out to look at the tires
Mr. Broadway and Mr. Frank Costello were standing on the dock. My trailer
was backed up at the dock at the time, and he told Mr. Frank Costello, who
takes care of the tires, recapped tires, that I had some bad tires, that I was
going to have to change some tires, and he turned to me and he said "Do you
want to change these tires today or do you want to run them a while longer?"
And I says "It doesn't matter to me, whichever you suggest." He said "Let's
go ahead and make a couple of trips on them, more trips, and then we will
pull them off." So that is the way we left them.
Q. Well did you then again approach him on the tire situation?-A. Yes,
sir, I did. I made a trip and came in and told him that I had a flat on one of
the old slick tires, and then I turned around and made another trip and I had
two flats at one time at Sanderson on the slick tires. I managed to get one
of them up in shape to run on, put my spare on, and went to Yuma, Arizona,
and Broadway was at Yuma and I borrowed a tire from Broadway, came in on
those. [Emphasis supplied.]
Q. And when you came in did you then speak to Mr. Haby again about
recapping?-A. Yes, I did. When I checked in that morning I told him I was
having lots of tire trouble, two flats at a time on those slick tires. "Well," he
said, "well, we will pull them off."
GEBHARDT CHILI POWDER COMPANY 1515
Q. When was this, now?-A. That was about the 25th, I think.
Q. And where were you at the time you spoke to him?-A. We were in
his office again.
Q. Well, what was said on this occasion?-A. I told him that I had two
flats on them slick tires at one time at Sanderson . He said "Well, we will pull
them off. I will go out and look at those tires with you and we will check
them over and get some -more , better tires." So he started in to tell me how
to match them, which ones to have capped and I asked him to wait and let
me get a piece of chalk and mark them like he wanted them . He had me mark
some of them to match up and some to cap.
Q. Do you recall how you were supposed to mark them , match them up?-A.
I just taken a chalk and marked a straight line on the tire that I wanted to
match with another one. And the ones to bQ capped I wrote "C-A-P" on
them . The ones that was any doubt about I didn't write anything . [ Emphasis
supplied.]
Q. Well, now, on the left side of the trailer what were you to do with those
tires?-A. Leave the two on the front axle as was.
Q. Were they matched up pretty well?-A. Yes, sir, good shape.
Q. What about the two on the aft rear axle?-A . Rear or right? Right or
left?
Q. Left.-A . They were the two slick tires that I had on there.
Q. Were they to come off?-A. To be capped if they would take a cap.
Q. Now, coming to the right side of the tandem trailer , of the right fore
rear axle, what about those tires?-A. Well, there was a good tire on the rear
axle and a good one on the front axle. I was to match them up and put them
together.
Q. Well, what did Mr. Haby say to you while you were marking those
tires?-A. Well, I don 't exactly recall what he said to me. He told me to go
see Mr. Costello, get me some tires, four tires.
Q. Had you actually marked five tires for recaps?-A. I don't know whether
I marked five for recap or not . There was two on there that there was a
doubt about as to whether they would take a cap or not.
Q. Are you speaking of a slick tire?-A. Yes, sir, two slick tires, that I had
had trouble on that and we didn't know whether they were broke down on
the inside or not.
Q. Well, did you point out to Mr . Haby that there were five tires in question
instead of four?-A. No, I didn't.
Q. Why didn't you?-A. I didn't even notice how many tires there was.
Q. Well, did you go over to the South Frio plant to see Mr. Costello?-
A. I did.
Q. What happened over there?-A. I told him Mr. Haby told me to pick
up four tires, put on that trailer . We went upstairs and they were locked up
in a room; picked out four tires , paired them up in size, rolled them down the
stairs-taken them down on the elevator. We got to checking them through
them . One had a big boot in it. Mr. Costello carried it back upstairs and
picked up another one and brought it down. And I called B. F. Goodrich on
Leon Street at that time . told them I had some tires to change, and he
told me he couldn 't get to them that afternoon , all the boys that were changing
tires were out. So I left the tires inside the warehouse , downstairs , parked the
truck, and went home . Got up early the next morning , went down, drove the
truck around the block to their place B F. Goodrich . Leo Rodriguez sent a
man around to pick up the four tires, and I left the truck with them. Mr.
Broadway come by, picked me up and we drove on. I told him how-
showed him how I wanted them changed, and we drove off , stayed until about
11 o'clock.
Q. Did you come back then?-A. Yes, we did.
Q. Well, had they changed the tires?-A. They had changed the four on
the ground that I showed him where I wanted them.
Q. What about the spare?-A. The spare tire, Leo Rodriguez called my
attention to the spare tire and said "It's marked cap; what should I do about
its" I said "The only thing I know for you to do is to get one and put it
on there." He said "OK" he would send someone around, send one of the
boys around to the Powder Plant and pick up another tire . [Emphasis supplied.]
Hall stated that he and Broadway did not wait while this change was made as
the mechanics had his tractor tire off the right rear wheel of the tractor inspecting
the tube which he had bought to replace the one blown out on a previous trip.
It was an Atlas tube that he had put in the tire on the road and about which Mr.
1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haby subsequently questioned him as' to whether he had spent money on an Atlas
tube. He characterized this as an incident of Mr. Haby checking up on him. Hall
stated that he and Broadway returned to pick up the tractor about 12 o'clock.
Q. (By Mr. Whittaker.) Had they fixed the trailer up by this time?-A. The
trailer was completed when I got there the first time at 11 o'clock and they
had gone and picked up the spare tire and put it on the wheel and put it back
in the rack.
Q. Did you speak to Mr. Haby about loading up?-A. Well, not then. I
already had orders to take the trailer to Southwest Wheel and Rim and have
some grease seals checked that was leaking that they recently put on, and I
finished over there about 10 minutes past 4:00, I guess when I got through
over there. I called Mr. Haby over the telephone and asked him if he still
wanted me to load. He said "Yes, bring the truck on over." I taken it over
and backed it up to the dock and-
Q. Well, did you see Mr. Haby over there at the warehouse while the truck
was being loaded?-A. I seen him before they started loading it. Broadway
arid I was talking to Carl Williams, the shipping clerk, in his little office inside
the dock, warehouse. Mr. Haby came out of his office through the warehouse
and came in where we were. And he told me that, Broadway and I-he asked
me first if I had the truck all fixed up, ready to go. I told him I had had
all the tires changed, the grease seals repaired, had everything except the
Prestone I was to pick up over from Mr. Costello. He had ordered it sometime
during the day. Then I called from there to Mr. Costello to see if he had the
Prestone. He said he did, to come over and pick it up. . . . We went out to
get in the truck, into his (Broadway) car, to get my Prestone. Mr. Haby walked
out of the warehouse like he was on his way home, walked out beside the
trailer. We drove off and he was looking at the tires on the right hand side
of the trailer when we drove off, walking around it, looking at it.
Q. Did you say anything to Broadway about it?-A. I did.
Q..What did you say?-A. I told him Mr. Haby was looking my tires over.
[Emphasis supplied.]
The Trial Examiner accepts Hall's version "in haec verbae" and finds no dis-
obedience or insubordination-and finds Haby's version to have been a pretext for
Hall's discharge.
Hall's Alleged Threat To Blow the Tires Out
Haby stated that immediately upon Yearning that Hall had violated his instructions
with reference to the replacing of the tires on January 28, 1957, he was informed by
Costello that Hall had been overheard saying that if he were required to use old
tires he would let the air out of them, and let them blow out. Haby stated that
it was at this time that he made the decision to discharge Hall, that is January 28.
Hall flatly denied making such a statement and told Haby over the telephone in the
conversation of the morning of February 4, at which time Haby finally discharged
him "I also told him the man that had told him that I said I would let the air out
of the tires was a lying son of a bitch." (It appears that Hall and Costello were
not on friendly terms. As a matter of fact, the record indicates that Hall believed
Costello to be dishonest himself and would not trust him.) Costello testified that
he did not pay any attention to such talk as he had overheard with reference to
Hall's blowing the tires out, saying that that was just truckdriver talk. It is a fact,
however, that the first one to mention running the tires until they blew out was
Haby himself who allegedly gave instructions to Hall to drive them until they did
blow. It is not clear to the Trial Examiner whether Costello overheard this con-
versation or not. Suffice to say, no witnesses were produced to substantiate Costello's
damaging statement in this connection. Hall testified on the stand, and very sin-
cerely, that he stated to Haby that if he made such a statement as was charged to
him that he "hoped he was struck paralyzed and his children were paralyzed." Haby
rebuked Hall in this connection and said he should not take such an oath as that.
The Trial Examiner accepts Hall's version entirely in this matter. [Emphasis
supplied.]
The Charge of Hall's Falsification of Reports on Loading and Unloading
The charge of falsification on part of Hall of his reports on loading and unloading
constitutes the most serious charge against Hall. A great portion of the testimony
in the case involves this situation. The facts are simple to relate, but are confused
GEBHARDT CHILI POWDER COMPANY 1517
and diffused in the record until untangled-at which time the truth becomes evident.
Three simple trips are involved. They were the last three trips that Hall made.
The first trip was made on January 8 or 9, to California. He returned from this
trip and presented a bill for loading charges of $8.70. There was no question
of this bill. The next situation involved a trip on January 16, out to the west coast.
His labor charge had run $26.10. (See General Counsel's Exhibit No. 10-A.)
And on his last trip of January 25, Hall did not turn in any expense. This was
because he and Broadway had used the same helper at a total cost of $8.70. And
for the unloading expenses the Company had paid that bill. (See General Counsel's
Exhibit No. 10-C.)
As an example of the situation which confronted Hall and Broadway with refer-
ence to loading and unloading, the following testimony will set forth Hall's
situation.
Q. (By Mr. Whittaker.) Now, have you ever, after this new arrangement
was made for you to be paid by the mile and not by the loading, and were
not to be paid for loading and unloading, did you on any occasion do your
own loading out in California?-A. Yes, I have.
Q. 'Do you know when that was?-A. Well, it was during-there was one
time I had to unload it during a heat wave in Los Angeles last summer. No
one would help unload it, didn't want to work. It was too hot. I unloaded it,
another truckdriver and myself.
Q. And did you ask Mr. Haby to pay you?-A. Yes, I did.
Q. What did he say?-A. He said no, he wasn't going to pay me.
Q. What had he said before that about paying you?-A. He told me he
would rather pay me for unloading it than to pay those men out there.
Q. Speaking of this time when Broadway helped you to unload, was it
pretty hot work?-A. Yes, it was, very hot.
Q. What is the physical condition which Broadway was in at the end of
that time?-A. Well, he had toilet paper stuffed up his nose on both sides
trying to stop the blood. He had blood all over the front of him. His nose was
bleeding. We were hurrying trying to get home before quitting time.
Q. Now, have you ever volunteered to unload any of Broadway's or any
other driver's trucks?-A. Yes, I have helped Broadway unload small amounts,
small shipments, going to warehouses.
Q. How much time did you put in?-A. Oh, I wouldn't say over 30 or 40
minutes.
Q. Did you get paid for that?-A. No, I didn't.
In compliance with the interstate commerce rule that a driver had to get 8 hours
rest out of 24, and also in accordance with the prevailing union practices, under
Respondent Company policy, any driver had the right to employ help for loading
and unloading at the west coast terminals. On Hall's second trip out to the west
coast on January 16, he turned in a labor charge of $26.10. (See General Counsel's
Exhibit No. 10-A.) Hall arrived early in the morning on this trip at 9 o'clock and
he was 26th in line to unload so he "called a man at his house, tried to get hold of
him to bring somebody with him at noon . I figured it would be noon by the
time I got up to the dock. I did not call the [union] hall at the time to get men
because their time goes on the same whether they're sitting or working. I asked
this man to bring somebody with him. So he called me back and told me that he
could not come, about 11:45 and I called the union hall and they said they did
not have anybody to send out there. I backed the truck up to the dock and started
unloading it myself. I think they broke for lunch at 11:30. We went up to the
front, the cafeteria, to eat, and a truckdriver and his helper was up there, and I
asked them if they all ate at the same table-I asked them if they would help
unload the truck, the trailer. They say `how much you pay ?' I said `I will pay
the same as the union scale, 4-hour minimum , because I have got to get out of here
tonight.' He said `OK.' They loaded it on the flats and I shoved it to the backend.
We got through approximately 3 o'clock. In the meantime , they were still back,
hadn't got up to unload. I called Commercial Service in Los Angeles, asked them
to call for Mr. L. H. Broadway. They called him, got him on the phone, and I
asked him if he would go to Smart & Final Company, California Packing Corpora-
tion , and help me load the truck, trailer. He said sure , he would come out and
help me. I drove from there to California Packing Company, got over there about
5 or 10 minutes after 3:00. Broadway and I started loading the trailer and they
waited until after quitting time, held the gate open for us to get out." [Emphasis
supplied.]
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And you say you paid Broadway?-A. I paid Broadway right there.
Q. Do you remember whose name you turned that in under9-A. No, I
didn 't remember any names.
The General Counsel's Exhibit No. 10-A shows that Hall paid Hollis Hylton for
4 hours or $8.70 and James Roy Smith for 8 hours or $17.40. Broadway testified
that Hall paid him $8.70 and Broadway was never asked , to return this money
by Haby.
It appears that prior to this time Hall had received a speeding ticket for $17 and
he requested Haby to pay the ticket but Haby refused to pay all or part of it. Haby
was suspicious of this charge of $26.10 because Hall's previous trip had been in
the amount of $8 70 (no doubt figuring that it included the speeding fine). As a
result, Haby instituted an investigation and found that the verification furnished,
as of January 16 , disclosed that John E. Hills had verified Hall's charges at the
Metropolitan Warehouse at Los Angeles at the unloading dock of Smart & Final
at San Francisco, and also at two other stops in Los Angeles. The investigation dis-
closed that John E. Hills was not authorized to verify such expense accounts, being
neither a shipping clerk nor a checker, but a fork-lift operator at the warehouse
of California Packing Company.2
General Counsel's brief recites "and his [Hall's ] last trip on January 25, he had
not turned in any expense . This was because Broadway and he had used the same
helper, at a cost of $8 .70 [General Counsel's Exhibit No. 10-C] which was the
minimum for any man called out whether he worked 15 minutes or 4 hours. The
arrangement was for Hall to pay Broadway one-half of this expense which was.
$4.35 and for Broadway to pay the other half and to turn in his ticket for the 4
hours minimum and later reimburse Hall. It is uncontradicted that when Broadway
was repaid on the morning of February 4, and before Haby's talk with Hall, Broad-
way turned around and gave Hall the $4.35 which he had coming under their
arrangement . Haby admitted that he had not questioned or investigated Broadway's
expense item for labor totaling $17 . 40 on this trip."
Haby's Intention To Fire-If
On February 1, Haby had received a telegram from California Packing Corporation
(heretofore referred to) stating that the Los Angeles warehouse "advises that two
of your drivers had picked up two truck loads of tomato puree on Tuesday of this-
week. Trucks loaded by drivers with one helper. Time consumed approximately 2
hours. No one signed in the receipt indicating help used in loading."
In this connection Haby testified : "With the possession of that telegram it was
my intention that when Broadway and Don Hall checked in on Monday , if they
turned in expenses for loading and unloading other than that one man 's that's.
mentioned there, that they was both going to get fired."
Q. (By Counsel Clifton. ) You then realized that you did not have direct
positive evidence of overcharging for loading and unloading for that week,
is that correct9-A. That's right . The evidence that I had received the week
before there , in other words their checking in corroborated with evidence
that I had received.
Q. (Further question by Counsel Clifton. ) Well, now, on February 4, 1957,
at the time you discharged Hall, did you have anything on him whatsoever
concerning padding his expense account?-A. I had, in.my mind , I had plenty,
but to sit down and prove it, well , that was something else, but the information,
reports, that we had in, was sufficient to satisfy me that he man was bad in
every report that come in, someway or another..
Q. And you fired him on the very date he didn 't furnish that report?-A. I
fired him specifically for disobedience or insubordination , not doing what he
was told.
Q. And at the time that you made that decision now on February 4, to fire
him-A. I made the decision several days earlier.
Q. But at the time whenever you made it, say, from January , I believe, 28,
was the date you had picked out, though through February 4, when you informed
Don that he was discharged , any padding of expense accounts that you had'
:Afield examiner of the NLRB obtained an affidavit from John E Hills to the effect
tht the signature appearing on the photostat was his own In' making the verification
"I only verified the amount of time the driver, Don Hall, spent at our plant ." He stated?
that they did not verify the identity of. the swampers or loaders , the number of hours they
worked or the amount they are paid.
GEBHARDT CHILI POWDER COMPANY 1519
suspicion of did not enter into that decision , is that correct?-A . They were
not made part of the discussion at the time he was fired . They were definitely
part of the reason for him being discharged but they were not made part of
the discussion.
Q. Then he was fired for suspicion , partly?-A. He was fired for not changing
the tires like he was told and for making the statement that he would not run
the tires that were bad that wouldn 't take recapping.
Q. Then he was not fired because of any suspicion about his expense accounts.
Is that your testimony?-A. That was not part of the discussion at the time
he was fired.
Q. And then it was not part of your decision , either?-A. The immediate
decision to fire him because he refused to change tires like he was told.
In Conclusion
The decision in this case depends entirely upon the credibility resolutions of
the stories told under oath by the four principal witnesses i. e., Manager Haby and
Costello for the Respondent opposed to Donley Hall and Broadway . The Trial
Examiner , after carefully observing their respective demeanors on the stand , intently
listening to their testimonies, analyzing the record and studying the official exhibits,
came to the conclusion that both Hall and Broadway told the truth honestly and
forthrightly ; while Mr. Haby was an untrustworthy witness whose asserted reasons
for discharging Hall were fabricated for the purpose of covering up his discrimina-
tory discharge of Hall in order to break the Teamster Union's majority . ( Costello
was not an effective witness and was unfriendly to Hall. ) One of the significant
factors in the Trial Examiner 's mind was Haby 's testimony , illustrated by his affidavit
to the NLRB official , in which he stated that he discussed with President Lambert
at Lambert 's home the Company's trouble and quoted Lambert : "We have got
some of our old driver trouble cropping up on us. You have to get rid of that
crook, Don Hall . He is stealing." In the same breath he did not recall Lambert
discussing a conversation he had had with Judge Clifton , Respondent 's attorney,
earlier ( 5 p. m.) that evening with reference to the over -the-road drivers being
organized by the Teamsters Union and having filed a "petition ." At that moment,
the Trial Examiner doubted Haby's veracity in this instance and became convinced
of Haby's testimonial unreliability upon reading the record and exhibits as a
whole. Lambert's subsequent conference with Haby at the plant and delivery on
March 4 to Haby, in Hall's presence , of the Union 's petition and Hall 's discharge
3 or 4 hours later clearly demonstrated Lambert's and Haby's desire to defeat the
Union and get rid of its instigator Hall-which Respondent did. (President Lambert
was not called to testify ) The fact that the Company had a union agreement in
its food processing operation was carefully weighed, but some unions are more
palatable to employers than others .. It is the Trial Examiner 's conclusion that
Respondent did not want their drivers to be represented by the Teamsters. This
is evident in point of time of Hall's discharge-vitiating the union majority. The
Company's harassment with local pilferage and stealing of inventory with the result-
ant investigations and convictions were duly considered.
On the other hand, the over-the -road drivers' situation was considered. They
had been subjected to change in their established method of payment for trips made
which had resulted in a decrease in their earnings and the Company had tightened
up on them. They were definitely disgruntled and they looked to the Union for
representation in collective bargaining and adjusting grievances . (Haby charac-
terized Hall's attitude as being noncooperative .) The evidence does not establish
and the Trial Examiner does not believe that Hall stated that he would run the tires
under-pressured until they blew out. He just didn 't impress me as being that kind
of a man . And Hall apparently had gotten along satisfactorily to Haby on three
periods of employment-until the Teamsters issue was introduced . Hall's explana-
tion of putting on four tires and mounting a recap on his spare rim, under the situa-
tion is an entirely reasonable act-and was doubtless observed by Haby upon his
inspection . Accordingly , the charge of insubordination was a pretext used by Haby
in effecting Hall's discharge . Also, Hall 's 3 last trips were fair to the Company,
although sharing the $4.35 loading costs with Broadway was not strictly within
the new regulation as to loading . (This questionable practice did not enter into
Hall's discharge.)
The Board said in Houston Cartage Company ( 2 NLRB 1000 ), "Experience has
shown this Board that there is no field of employment where employers can so
easily find means to cloak their real motives as in employment of bus or truck drivers." -
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent by discharging Donley Hall has discriminated in regard to hire
and tenure of employment to discourage membership in a labor organization; and
by such discharge has interfered with, restrained , and coerced its employees in the
exercise of the rights of self-organization , to form, join , or assist labor organizaf, ons,
to bargain collectively through representatives of their own choosing , and to engage
in concerted activities for the purposes of collective bargaining and other mutual
aid and assistance ; and by destroying the union majority has failed to bargain in
good faith.3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities and conduct of the Respondent, Gebhardt Chili Powder Company,
as set forth in section 111, above, occurring in connection with the operations described
in section II, above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent engaged in and is engaging in conduct and
activities (1) interfering with, restraining, and coercing their employees in the
exercise of the rights guaranteed in Section 7 of the Act; (2) unlawfully discrimina-
torily discharging Donley Hall in efforts to destroy the majority status of the duly
authorized bargaining representative of their employees in the appropriate unit;
and (3) discriminating in regard to the hire and tenure of employment of their
employees to discourage membership in a labor organization, and (4) refusing to
bargain collectively in good faith with the duly authorized representative of their
employees with respect to wages, hours, and other terms and conditions of employ-
ment, I shall recommend that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 657, General Drivers & Helpers, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers, AFL-CIO, is a labor
union within the meaning of Section 2 (5) of the Act.
2. All over-the-road truckdrivers, employees of the Respondent at their plant
in San Antonio, Texas, excluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of Section 9 (b) of the Act.
3. General Drivers & Helpers Local No. 657, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers, AFL-CIO, has been at
all times material here, the exclusive representative of all employees in aforesaid
appropriate unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By discriminatorily discharging Donley Hall and otherwise interfering with
the formation and administration of a union labor organization in efforts to destroy
the majority status of Local 657 as the bargaining representative of employees in
the aforesaid appropriate unit, the Respondent engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. By discriminating in regard to the hire and tenure of employment of its em-
ployee, Donley Hall, the Respondent engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) of the Act.
6. By refusing on and after February 4, 1957, to bargain in good faith with the
above-named Union as the exclusive representative of employees in the appropriate
unit, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
3 The instance of alleged interrogation by Haby of Hall earlier in the year at San
Francisco does not under the circumstances fall within the category of prohibited interro-
gation and is dismissed.