Vernon Livestock Trucking Co., 1805 (1968)

VERNON LIVESTOCK TRUCKING CO.

Vernon Livestock Trucking Co. and Line Drivers,

Local 224, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21-CA-7719

September 4, 1968 DECISION AND ORDER

BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING

AND BROWN

On June 3, 1968, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not committed certain other unfair labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a threemember 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 exception, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as herein modified.

We agree with the Trial Examiner's conclusion that the record does not establish that the Respondent violated Section 8(a)(3) of the Act in connection with the termination of Billington's employment on August 8, 1967. Billington's truckdriving derelictions of July 29, 1967, which necessitated a major repair costing approximately $2,000, and his conduct between July 31 and August 3, during which period he failed to pick up a load of cattle and the Respondent was unable to contact him, gave the Respondent adequate cause to discharge him on August 4. The Union was instrumental in obtaining Billington's reinstatement thereafter, and on August 8, as found by the Trial Examiner,

Billington accepted the Respondent's offer to pay him $500 to quit his job. However, like the Trial Examiner, we find that the Respondent's offer and 1805 inducements were not motivated by antiunion considerations. Although we note the testimony, which the General Counsel cites in his exceptions but which was not mentioned by the Trial Examiner, indicating that the Respondent's president may have been displeased with Billington's filing of a grievance with the Union, we conclude that the General Counsel has failed to sustain his burden of proof by a preponderance of the evidence that the employee's recourse to the Union was a motivating factor in his termination. I ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Vernon Livestock Trucking Co., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

' See American Poultry and Egg Company, 144 NLRB 650, 664-665 In reaching our decision , we do not rely on those portions of the Trial Examiner's discussion of the law or speculation concerning the acts which are unnecessary to our determination TRIAL EXAMINER 'S DECISION HENRY S. SAHM, Trial Examiner: Upon a charge filed on August 18, 1967, by Line Drivers, Local 224, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint, dated September 28, 1967, against Vernon Livestock Trucking Co., hereinafter referred to as both the Company and the Respondent. The complaint alleges the Respondent committed unfair labor practices when it discriminatorily discharged Floyd R. Billington because he engaged in 'union or other protected concerted activity ... or other mutual aid or protection' in violation of Section 8(a)(3) of the Act. The complaint also charged that Respondent's president and dispatcher both unlawfully interrogated and threatened employees in violation of Section 8(a)(1).

Respondent's answer avers that after Billington was discharged for 'incerating' a truck, abandoning another truck, dishonestly claiming he was sick, and failing to notify the Company he would be unable to pick up a load of cattle he was rehired at the insistence of the Union and thereafter worked until he voluntarily quit his job. Moreover, states the answer, after his discharge, neither Billington nor the Union demanded his reinstatement until the Union filed a charge with the Board.

172 NLRB No. 213

The General Counsel's motion to correct the transcript, filed on January 3, 1968, is hereby granted in the absence of objections.

On December 5, 6, and 7, Trial Examiner Henry S. Sahm held a hearing with respect to the issues at Los Angeles, California. Upon the conclusion of the taking of testimony, counsel for the parties filed briefs on January 12, 1968, which have been fully considered.

Upon the entire record in the case and from observation of the witnesses,' there are hereby made the following:

FINDINGS OF FACT

1. JURISDICTIONAL FINDINGS Respondent is a California corporation employing approximately 23 men engaged in the interstate transportating of cattle with its principal place of business in Los Angeles, California. It annually derives gross revenues in excess of $50,000 from interstate transportation. The allegations of the complaint as to the nature and extent of Respondent's business, which is admitted by the answer, are found to be facts, and, therefore, it is concluded that Respondent is an employer engaged in commerce and in business affecting commerce.

   2. The Labor Organization Involved It is conceded and found that Line Drivers, Local 224, International Brotherhood of Teamsters,

      Chauffeurs, Warehousemen and Helpers of America, the Union named in the caption, is a labor organization within the meaning of Section 2(5) of the Act.

   3. THE ALLEGED UNFAIR LABOR PRACTICES A. The Testimony-8(a)(3) Floyd Billington , the alleged discriminatee, was employed by Respondent Company as an extra driver from March 6, 1967, to August 8, 1967 2

      The Company has had a collective- bargaining agreement with the Union since October 1, 1957.

      The then current agreement, which was due to expire on March 31, 1967, provided that all new employees shall join the Union 31 days after they commence working for the Company .3 Billington Joined the Union around April 21, 1967.

      On Saturday, July 29, 1967, Billington, while driving a company truck, called in from Indio,

      California, to report to Respondent that the truck had broken down. Subsequent examination of the truck revealed that it had been driven without water (although there were two heat indicators on the tractors-a flashing warning light and a temperature gauge), causing the motor to become overheated, burning out five pistons of the engine, spitting the head, and necessitating a major overhaul of the motor in the amount of approximately $2,000.

      The next day, Sunday, July 30, Billington left the company premises at 9 p.m. in an empty truck with instructions to proceed to Maricopa, Arizona, pick up a load of cattle in the morning, and return the cattle to Los Angeles for slaughter. The normal driving time to Phoenix is approximately 9 hours;

      and to Maricopa, 30 miles beyond Phoenix, about an hour. Billington arrived at Phoenix on July 3 1, at approximately 6 a.m On Monday, July 31, about noon, when L'Ecluse, president of the Respondent Company, was at lunch and Steele, the dispatcher, at home, Jim Jones, the 'washboy' at Respondent' s terminal, received a telephone call from Phoenix, Arizona, from Billington 's brother-in-law who stated, 'he had taken Mr. Billington to the hospital. He was sick and he wouldn't be able to pick up his load.' It is uncontradicted that Billington 's instructions from the Company were to notify both the place where the cattle were to be picked up and also Respondent in the event he was unable to load the cattle at the regularly scheduled time of pickup.

      The regular loading time is ' in the morning.' Upon L'Ecluse's return from lunch, Jones gave him the message . When Billington 's brother-in-law telephoned, he had left no message as to where Billington could be reached. L'Ecluse, not knowing where he could be contacted, telephoned Billington's wife to ascertain if she knew where he could be reached. She told L'Ecluse she had not heard from her husband but gave him her brother-in-law's address in Phoenix. She too was unable to contact Billington or her brother-in-law on July 31.

      L'Ecluse then telephone Lester Goekler, the Company's Phoenix representative, and related to him what had occurred and requested him to attempt to locate Billington and the truck. L'Ecluse told Goekler that Billington 'was supposed to have either been hurt or sick and was in the hospital or the doctor's office, from the word that he had heard.' Goekler thereupon contacted all the hospitals in Phoenix and when this proved unsuccessful, he drove to the home of Billington's brother-in-law in Phoenix, whose address Billington's wife had given L'Ecluse. When Goekler arrived at the brother-in-law 's home about 2 p.m., he was not there but Goekler was informed by his daughter that Billington and her father had used their next door neighbor's telephone to call the Respondent Company and then they had left by automobile but that she did not know where they had gone. As Goekler left the home and walked toward ' N L R B v Dixie Gas, Inc ,...