Tompkins Motor Lines, Inc.

Tompkins Motor Lines, Inc. and A. J. Spain, Jr. Cases Nos. 26-CA-1317 and 26-CA-1301. April 16, 1963 DECISION AND ORDER On November 5, 1962, Trial Examiner David London 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 attached Inter mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report and the entire record in the case, including the excep- tions and briefs,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent they are con- sistent herewith. As more fully set forth in the Intermediate Report, A. J. Spain, Jr., was a casual or extra employee who had worked for the Respondent for a substantial amount of time loading and unloading cargo and doing intracity truckdriving in connection with Respondent's motor carrier operations. On November 11, 1961, Spain filed a grievance against the Respondent under the then current contract between Re- spondent and a Teamsters Local, which grievance was rejected by the grievance committee on January 16, 1962.' Respondent stopped call- ing Spain for employment from November 28, 1961, to and including January 23. Beginning January 24, Respondent again utilized Spain's services for both dock work and driving, but on April 10, it "grounded" him-i.e., continued to use him for dock work but not for driving-allegedly because he had an accident on February 22, while driving Respondent's truck. On February 1 Spain filed charges in Case No. 26-CA-1217 alleging that the Respondent had violated Section 8 (a) (1) of the Act by deny- i Because in our opinion the record , exceptions , and briefs adequately set forth the issues and positions of the parties, the Respondent 's request for oral argument is denied. 2 Unless otherwise specified , all relevant dates were in 19G2. 142 NLRB No. 2. fl 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing him employment between November 28, 1961, and January 23, be- cause he had filed the grievance. On April 13, the General Counsel issued a complaint in that case alleging the violations as specified in the charge. On May 21 the parties entered into a settlement agree- ment under which the Respondent, although not admitting the com- mission of the alleged unfair labor practices, agreed that it would not discriminate in the employment of casual employees because of the exercise of any statutory rights and would "not vary, alter or modify its past practices with regard to the employment of casual employees." 3 At the meeting at which this settlement agreement was reached, and immediately before it was signed, Spain asserted that Respondent had been refusing to hire him for driving since April 10 for unlawful reasons. It is undenied that the parties at that time agreed that should Spain feel he was being unlawfully discriminated against by the Respondent's failure to restore him to driving, this would have to be the subject of a separate charge against Respondent. On June 11 Spain filed the charge in Case No. 26-CA-1301, alleg- ing violation of Section 8(a) (1) and (4) in that the Respondent had "grounded" him because he had filed the grievance and the charge in Case No. 26-CA-1217. The Regional Director thereafter set aside the settlement agreement and on July 17 issued the consolidated com- plaint which is now before us. The Trial Examiner rejected the Respondent's defense that it had "grounded" Spain for cause; concluded that he could consider the Respondent's presettlement conduct in determining its motive; and found, based on evidence of such presettlement conduct, that the Respondent's refusal on and after April 10 to employ Spain for driving was unlawfully motivated and a violation of the Act as alleged in the complaint. He accordingly affirmed the Regional Director's order setting aside the settlement agreement in Case No. 26-CA-1217 and found further that the Respondent had violated Section 8(a) (1) by refusing to employ Spain from November 28, 1961, to January 23, 1962. The Respondent excepts to these findings, contending that its failure to assign Spain to truckdriving was not a resumption or continuation of the practices which were the subject of the settlement agreement, and, hence, the setting aside of the agreement was im- proper. Respondent argues further that the Trial Examiner was precluded from considering the presettlement conduct in determining whether a violation occurred as alleged in the second charge, in view of the rule set forth in Larrance Tank Corporation.4 We find merit 3 The complaint of April 13 was withdrawn by the Regional Director. 4 94 NLRB 352 , where the Board, is dismissing the case because "bad faith " in bargain- ing could be established only by going behind a settlement agreement which disposed of previously filed charges of unlawful refusal to bargain , said, at p. 353: It is the Board's established practice not to consider as evidence of unfair labor practices conduct of the Respondent antedating a settlement agreement , unless the TOMPKINS MOTOR LINES, INC. 3 in the Respondent's exceptions insofar as they relate to the setting aside of the settlement agreement and the findings of unfair labor practices in Case No. 26-CA-1217. However, under the circumstances of this case and for the reasons set forth below, we reject Respondent's position with respect to reliance on the presettlement evidence in deter- mining the merits of the allegations in Case No. 26-CA-1301. 1. It is well established that a settlement agreement may be set aside where independent evidence of subsequent or continuing unfair labor practices reveal a breach of the agreement. However, it is clear in the instant case that at the very moment of executing the settlement agreement the parties were aware of Spain's claim that he was being denied driving work for discriminatory reasons. It is also clear that at that time it was understood by all the parties that the Respondent was not agreeing to restore Spain to driving, that this claim would have to be the subject of a separate charge, and thus, in effect, that the question of the validity of the "grounding" was reserved for later disposition if a new charge were filed. There is no contention or evidence that the Respondent engaged in any improper activity sub- sequent to entering the settlement agreement other than the very matter which was reserved at the time of the signing.' Under these circumstances, we are unable to agree with the General Counsel that the evidence shows that the Respondent entered the settlement agree- ment in bad faith or that the agreement has been breached. On the contrary, there is no indication that there has not been good-faith compliance with the agreement to the extent it disposed of the existing issues which were the subject of the charge in Case No. 26-CA-1217. Accordingly, we shall dismiss the allegations of the complaint insofar as they are based on the charge in Case No. 26-CA-1217 and shall reinstate the settlement agreement in that case. 2. With respect to the propriety of relying on the Respondent's presettlement conduct to determine whether or not a violation has occurred as alleged in Case No. 26-CA-1301, we agree with the Trial Examiner that the Larrance Tank cases is inapplicable. However, in so finding, we rely solely on the fact that the parties clearly exempted from the settlement and reserved for future determination the issue concerning the "grounding" of Spain. In so doing, they implicitly agreed that the consideration of the prior evidence was also reserved. Respondent has failed to comply with the settlement agreement or has engaged in independent unfair labor practices since the settlement . Moreover, in determining whether such independent unfair labor practices have occurred after the settlement, the Board will not appraise a Respondent's post settlement conduct in the light of its conduct prior to the settlement. 5 While it would have been better practice for the General Counsel to have incorporated within the one proceeding all known allegations of violations of the Act, this was not done, and we find it appropriate in the instant case to honor the understanding of the parties. e Supra. 712-548-64-vol. 142-2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For, to construe the statements at that time as an understanding that Spain's claim of existing discrimination could be raised as a separate matter but that none of the existing relevant evidence could be con- sidered is to render the reservation illusory and meaningless.? Ac- cordingly, the Trial Examiner correctly held that it was proper to consider evidence predating the settlement agreement in this case to establish the Respondent's motive. Consideration of that evidence, which is fully set forth in the Inter- mediate Report, reveals that the Trial Examiner's conclusions that the Respondent violated Section 8(a) (1) and (4) of the Act are fully justified. We further agree that the Respondent has not established its claim that it refused to employ Spain for intracity truckdriving because of the accident in February. We therefore find that insofar as Respondent "grounded" Spain on and after April 10, 1962, because he had filed the grievance, Respondent violated Section 8 (a) (1) of the Act, and insofar as it "grounded" him because he had filed the charge with the Board in Case No. 26-CA-1217 Respondent violated Section 8 (a) (4) of the Act.' 3. Having found in agreement with the Trial Examiner, that the Respondent discriminated in regard to Spain's employment as a casual or extra truckdriver employee, we also agree that a remedial order substantially as recommended by the Trial Examiner is ap- propriate. However, we find merit in Respondent's objection that the Recommended Order and Appendix may be ambiguous in that greater employment opportunities may be created for Spain than for other casuals. Further, any backpay due Spain shall be limited to the period beginning April 10, 1962 .' Accordingly, we shall modify the Recommended Order in these respects. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Tompkins Mo- tor Lines, Inc., its officers, agents, successors, and assigns shall : 1. Cease and, desist from : (a) Refusing or failing to employ, discharging, or in any other manner discriminating against its employees because they have filed a 7 The instant case is thus distinguishable from Larrance Tank and similar cases, none of which were concerned with an agreement to leave a known issue for later disposition. 9 Because the statements relied on as evidence of the Respondent's unlawful motive were the subject of the settlement in Case No. 26-CA-1217, we rely on them only as background evidence and make no findings of independent unfair labor practices based thereon. We note that all of these statements except Horlacher's comments to Spain on November 13, 1961, occurred within the 6 months preceding the filing of the charge in Case No. 26-CA-1301. 6 Member Leedom, for the reasons set forth in his dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, would not require the payment of interest on the backpay award provided for herein. TOMPKINS MOTOR LINES, INC. 5 grievance with respect to conditions or terms of employment, or filed a charge under the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act : (a) When work as a truckdriver for casual or extra employees is available at its Nashville terminal, offer employment to A. J. Spain, Jr., on a nondiscriminatory basis. (b) Make A. J. Spain, Jr., whole for any loss of pay he may have suffered because of the discrimination against him for the period and in the manner set forth in the "Remedy" section of the Intermediate Report as modified herein. (c) Preserve,and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and right of reinstatement due under the terms of this Order. (d) Post at its terminal at Nashville, Tennessee, copies of the at- tached notice marked "Appendix." 10 Copies of said notice, to be fur- nished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices based on the charge in Case No. 26-CA-1217, and that the settlement agreement in Case No. 26-CA-1217, be, and it hereby is, reinstated. 10 In the event that this Order is enforced by a decree of a United States Court of Appeals, 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." 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 you that : G DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to fail to employ , discharge, or in any other manner discriminate . against our employees because they have filed a grievance with respect to conditions or terms of employ- ment, or have filed a charge under the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guar- anteed by Section 7 of the aforementioned Act. WE WILL, when work as a truckdriver for casual or extra em- ployees is available at our Nashville terminal , offer employment to A. J. Spain, Jr., on a nondiscriminatory basis and make him whole for any loss he may have suffered ,as a result of the dis- crimination against him. ToniPKINS MOTOR LINES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) NoTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Serv- ice Act, and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 714 Falls Building, 22 North Front Street, Memphis, Tennes- see, Telephone No. Jackson 7-5461, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE The consolidated complaint herein , issued by the General Counsel of the National Labor Relations Board on July 27, 1962, alleges that Respondent Tompkins Motor Lines, Inc., has engaged in unfair labor practices proscribed by Section 8(a) (1) and (4) of the National Labor Relations Act as amended (61 Stat. 136; 73 Stat. 519), hereinafter called the Act.' In substance, 'that complaint alleges that on or about November 13, 1961, and March 21 , 1962, Respondent . threatened one of its employees with discharge or other reprisal, and from November 28, 1961, to January 23, 1962, failed and refused to give A. J. Spain , Jr., any employment, and that all of said conduct was occasioned because Spain filed a grievance with respect to conditions of employment. It is further alleged that on May 21, 1962, in disposition of the matters referred to immediately above, Respondent and Spain entered into and executed a settlement 1 This complaint was based on a charge and an amended charge in Case No . 26-CA-1217, filed by A . J. Spain, Jr., and served on Respondent on or about February 1, 1962, and on February 7, 1962, respectively , and on a charge and amended charge in Case No. 26-CA- 1301 filed by Spain and served on Respondent on or about June 11 and July 26, 1962, respectively. TOMPKINS MOTOR LINES, INC. 7 agreement in Case No. 26-CA-1217, which agreement was approved by the Board's Regional Director on May 22, 1962. The consolidated complaint, however, further alleges that on and ever since April 10, 1962, Respondent has refused to give em- ployment to Spain as a truckdriver because he filed the grievance aforementioned and because he filed the charges against Respondent in Case No. 26-CA-1217. It is further alleged that by Respondent's refusal to employ Spain as a truckdriver, "Respondent failed to enter into and execute the [aforesaid ] settlement agreement in good faith" or to comply therewith, and that by reason thereof, the Regional Director, on July 17, 1962, set aside the aforementioned settlement agreement. Re- spondent, by its answer, denied the commission of any unfair labor practice and denied that it had failed to comply with the settlement agreement. Respondent admitted, however, that it had refused to employ Spain as a truckdriver since on or about April 10, 1962, but with reference thereto pleaded that it had "good, sufficient, and proper reasons for not employing [him] as a truckdriver." Pursuant to due notice, a hearing upon said consolidated complaint, and Respond- ent's answer thereto, was held before Trial Examiner David London at Nashville, Tennessee, on August 27 and 28, 1962. The General Counsel and Respondent were represented by counsel and were afforded full opportunity to be heard, to introduce relevant and competent evidence, to present oral argument , and to file briefs.2 Since the close of the hearing, briefs have been received from the General Counsel and Respondent and have been duly considered. Motions, on which ruling was reserved during the hearing are disposed of in accordance with the findings and conclusions of law that follow. Upon consideration of the entire record, the briefs of the parties, and upon my observation of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent Tompkins Motor Lines, Inc., is a Tennessee corporation with its principal office and place of business at Atlanta, Georgia, and a terminal in Nashville, Tennessee, at which locations it is engaged in the transportation of goods as a motor carrier. During the 12 months preceding the filing of the consolidated com- plaint herein, Respondent derived gross revenue in excess of $50,000 from the trans- portation of goods in interstate commerce . During the same period , Respondent derived gross revenue in excess of $50,000 from services performed for employers engaged in interstate commerce . Respondent admits, and I find , that it has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union No. 327, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union, is and has been at all times material herein, a labor organization within the meaning of Section 2 ( 5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The sequence of events A. J. Spain, Jr., the Charging Party herein, was employed by Respondent at its Nashville, Tennessee, terminal in June 1959, as a casual or extra employee. In that status, whenever his services were required, he served as a city pickup and delivery driver, and/or as a dockworker. As a casual employee, Spain was engaged only when there was more work at that terminal than could be handled by eight regular employees. Under its contract with the Union, however, when casual employees worked a specified number of hours during a 30-day period, Respondent was required to "put on an additional regular employee." On November 11, 1961, Spain filed a grievance with the Union claiming that, having worked the requisite number of hours as a casual during the preceding month, Respondent was required to put him on as an additional regular employee. The grievance was heard by a Tri-State Grievance Committee on November 28, 1961, and January 16, 1962, at which latter time the grievance was denied. sA posthearing stipulation concerning General Counsel 's Exhibits Nos . 4(a) to 4(i) In- elusive is hereby approved and, together with said exhibits , are hereby made a part of the record herein. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 1, 1962, Spain filed a charge against Respondent , Case No. 26- CA-1217, which charge was amended on February 7, 1962, alleging discrimination in not working him after November 28, 1961, because he had filed the aforementioned grievance against Respondent . The complaint based on the charge in that case, issued on April 13, 1962, alleged that in violation of Section 8(a)(1) of the Act, Respondent had threatened "its employee" with discharge or other reprisal because he filed a grievance with respect to conditions of employment, and that from on or about November 28, 1961, to on or about January 23, 1962, Respondent had failed and refused to give Spain any employment, i.e., neither as a driver nor as a dockworker, because he filed the grievance described above. On May 21, 1962 , the date on which the hearing on said complaint was to com- mence, Respondent and Spain entered into a settlement agreement by the terms of which Respondent agreed, inter alia, to make Spain whole by paying him the sum of $325. It was further agreed that Respondent would "not discriminate with regard to the employment of casual employees because of the exercise of any rights guar- anteed by [the Act], and-[would] not vary, alter, or modify its past practice with regard to the employment of casual employees ." The settlement was approved by the Regional Director on May 22, 1962, and Spain was paid the $325. In the meantime, on February 22, 1962, Spain, while driving a truck for Respond- ent, was involved in an accident with one Clifford , concerning which more will be said later, and for which, Respondent claims , Spain was permanently "grounded" as a truckdriver on the following April 10. Respondent and Spain were sued for damages in a local court by Clifford charging that Spain's negligence had caused that accident and damage to Clifford's car. The trial of that case took place on May 2, 1962 , and was dismissed at the close of the plaintiff 's case. On June 11 , 1962, Spain filed the charge in Case No. 26-CA-1301 , amended on July 26, 1962, charging that on and since April 10, 1962, when he was grounded, Respondent had discriminated against him because he had filed the grievance afore- mentioned and the charge in Case No . 26-CA-1217 . On July 17, 1962 , the Board's Regional Director advised Respondent that because it appeared to him that Respond- ent had not complied with the provisions of the settlement agreement in Case No. 26-CA-1217 aforementioned, he was setting that agreement aside and issuing the consolidated complaint , summarized in "Statement of the Case ," supra. 1. The Issues Three issues are posed by the pleadings herein: (1) Did Respondent threaten Spain with discharge or other reprisals because he filed a grievance with respect to conditions of employment? (2) did Respondent discriminate against Spain by deny- ing him work either as a driver or as a dockworker from November 28, 1961, to January 24, 1962, because he had filed a grievance against Respondent ? and (3) did Respondent discriminate against Spain by grounding him on April 10, 1962, and not allowing him to drive a truck thereafter because he filed a grievance and a charge against Respondent? It is the contention of Respondent that consideration of the first two issues is fore- closed by the settlement agreement approved by the Regional Director on May 22, 1962, and that the latter's set-aside order of July 17, 1962, was an arbitrary and illegal act. With respect to the third issue , Respondent's contention is that it grounded Spain , not for the reasons alleged in the consolidated complaint , but be- cause it had "good, sufficient , and proper reasons for not employing [him] as a truckdriver." Contrary to Respondent's contention with respect to the first two issues above men- tioned it is well settled that independent or continuing violations of the Act constitute a breach of a settlement agreement and justify the Regional Director in setting aside that agreement and proceeding with the consolidated complaint which covers unlawful conduct occurring both before and after the execution of the settlement agreement. Wallace Corporation v. N.L.R .B., 323 U.S. 248, 253-255; International Brotherhood of Teamsters, etc., Local 554 (Clark Bros . Transfer Co . and Coffey's Transfer Co., AFL-CIO ) v. N.L.R .B., 262 F. 2d 456, 459-461 (C.A.D.C.), enfd. 116 NLRB 1891; Bowmar Instrument Corporation , 124 NLRB 1. However, findings of unfair labor practices pertaining to presettlement conduct can properly be made only where there is evidence of substantial unlawful conduct following the settlement , "or unless the alleged unfair labor practices have been continued in such a way that it seems neces- sary to the Board to go behind its agreement in order to effectuate the policies of the Act." Wooster Brass Company, 80 NLRB 1633. Our first critical problem is, therefore, to determine whether or not Respondent violated the Act by continuing to keep Spain grounded on and after April 10, 1962, for the reasons alleged in the TOMPKINS MOTOR LINES, INC. 9 consolidated complaint . Unless that question is answered in the affirmative, that complaint must be dismissed. Before considering that issue, however , note should be taken of Respondent's con- tention that because it continued , after April 10, 1962, to give Spain casual em- ployment as a dockworker, and because the hourly rate of pay of casual drivers and casual dockworkers was the same, Spain has suffered no detriment or discrimination. The record, however, negates that contention, and establishes that at least two casual drivers, Thomas A. Ford, Jr., and James C. Townsend, worked more hours and earned substantially more than Spain did as a dockworker during the 2-month period after he was grounded, from April 10 to June 10, 1962, viz: Ford----------------------------------------- $930.76 32 days Townsend------------------------------------- 602.45 21 days Spain----------------------------------------- 463.80 20 days In light of that record, it can hardly be said, as Respondent does in its brief, that work on the dock was more desirable than driving a truck, and that Respondent "favored, rather than discriminated against Spain," when it grounded him. 2. The grounding of Spain Turning now to the reasons assigned by Respondent for denying Spain work as a driver on and after April 10, 1962, the record establishes that about 5 p.m. on Feb- ruary 22, 1962, he was driving one of Respondent's trucks north on a three-lane street in downtown Nashville. He was driving in the center lane, having been directed there earlier by a patrolman. His speed was approximately 5 to 10 miles an hour, as he was then traveling, in low gear, up a "real steep grade , one of the steepest hills in downtown Nashville." As he approached the point where the accident later oc- curred, he noticed a car, other than the Clifford automobile, stalled in the right lane near the exit from a parking lot. He therefore steered his truck slightly to the left, so that the left front wheel of his truck was in the southbound lane "about the width of a truck tire across the line." If he had gone over further into the southbound lane, he "would have hit the oncoming traffic." At that moment, Clifford, driving his car in a northerly direction in the curb lane on Spain's right, swerved out to his left in order to pass and avoid striking the stalled car, thereby striking the front bumper and the right front fender of Spain's truck. The police were notified and an officer , who came to the scene of the accident , conducted an investigation and filed an accident report showing an estimated damage of $20 to the truck. The damage to Clifford's automobile was estimated by his attorney to be $174, but no claim for personal injury was made. As previously indicated, the civil suit brought by Clifford to recover damages from Spain and Respondent arising from this accident was summarily dismissed by the court at the close of the plaintiff's case. Though Respondent at the hearing, characterized Spain's driving at the time of the accident as grossly negligent, a "bully- ing and a wanton sort of driving, bullying his way through," and assigned this as the principal reason for grounding him, he was allowed to continue as a driver until April10, 1962. The only other accident that befell Spain during the course of his employment by Respondent occurred in Respondent's terminal yard in August 1959 . On that oc- casion, Spain, in following directions of a fellow employee , manipulated his tractor in such a manner that he "cracked the dolly wheel and the window on the truck." He received no reprimand for that incident. It is upon these two incidents that Respondent relies as justification for denying Spain employment as a truckdriver on and after April 10, 1962. It contends how- ever, that its conduct with reference thereto should be appraised in light of the report and order by a Hearing Examiner of the Interstate Commerce Commission issued on December 23, 1960, in connection with Respondent's application for au- thority to expand its service. That report recommended grant of the requested authority but cautioned against repetition of previous violations of ICC regulations by Respondent, practically all of which involved recordkeeping requirements and the use of faulty equipment. Having given that report and its claimed impact upon Respondent full consideration , I nevertheless find that Spain's alleged negligent driv- ing was not the true reason for grounding him on April 10. S. A. Harrison, Respondent's vice president with headquarters in Atlanta, and the man who made the decision to ground Spain, testified that the only persons at the Nashville terminal with whom he talked concerning that decision were E. W. Horlacher and W. E. Lafayette, respectively, manager and assistant manager at that terminal . He did not question or discuss the matter with Spain. Harrison had turned over to Crawford & Co., an insurance adjustment and investigation agency, 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the claim of Clifford arising out of the accident on February 22. On March 31, 1962, 10 days before Spain was grounded, that agency wrote Harrison advising him that the photostatic copy of the Nashville city police report concerning the accident, which it enclosed in that letter, indicated that it was Clifford who sideswiped Spain's truck. Indeed, that police report, amplified by a diagram, specifically reports and indicates that Clifford "in trying to get around the [stalled car] came over into the lane of traffic that [Spain] was traveling in and sideswiped Spain's truck." In a sworn statement given to a Board agent on July 2, 1962, Harrison stated that he "decided that (Respondent] would not continue to use Spain as a driver ... after he received the police report and the Crawford report . [in which the latter] stated that the chances of [Respondent] having no liability for this accident were good." In light of all the foregoing, I find that the accident of February 22 was not caused by Spain's negligence, that Respondent had no reasonable ground to believe that it was so caused, and that it seized on that incident as a pretext to deprive Spain of employment as a driver. 3. Proof of Motive In that state of the record, search must be made elsewhere to ascertain Respond- ent's true motive for grounding Spain and keeping him grounded. In making that search, however, Respondent, relying on Larrance Tank Corporation, 94 NLRB 352, contends that by reason of the broad rule laid down in that case I am not permitted to "appraise the Respondent's post-settlement conduct in the light of its conduct prior to the settlement." Though this broad rule has merit, and was undoubtedly pro- mulgated to give meaning to the Board's settlement procedures, like all general rules, it has its exceptions. And, because it is a broad rule, it should not be followed blindly by a mechanical application of rigid a priori rules. Instead, caution should be exercised that it is invoked only to induce proper administration of the Act and not to frustrate its underlying purposes. The rule certainly cannot be literally applied. Thus, let it be assumed that a charge and complaint alleging that an employer threatened an employee with dis- charge for joining a union and subsequently discharged him, and that this case is settled by an agreement to reinstate and make him whole. Let it further be assumed that without any further intervening illegal threat, or other illegal conduct by the employer, the same employee is discharged within a day or two thereafter. If another charge and complaint are then filed charging that the second discharge was for union activities, could it be successfully contended that the General Counsel is estopped or precluded from establishing and relying on the employer's earlier threat to discharge that same employee in order to establish, in the only possible way, a motive for the second discharge. It seems to me that to pose the question, is to answer it.3 A negative answer thereto would result in a dismissal of the second proceeding and would give every employer who agreed to such a prior settlement carte blanche to violate the Act, and absolution from liability thereunder. The rule in Larrance Tank is a mere procedural rule like other procedural rules invoked by the Board. The situation here is analogous to those situations where evidence of events occurring more than 6 months before the filing of a charge is relevant and necessary to give meaning to a consideration of the conduct within the 6-month period specified in Section 10(b) of the Act.4 There is, however, another reason why the Larrance Tank case is distinguishable and has no application here. There, the charges in the first proceeding, as well as those in the second, were both based on violations of Section 8(a)(5) of the Act. Here, however, the case which was settled, Case No. 26-CA-1217, involved only allegations of threats of discharge and refusal to give any employment to Spain because he had filed a grievance, conduct which is violative only of Section 8(a) (1) of the Act. The consolidated complaint herein, however, charges Respondent addi- tionally with violations of Section 8(a) (4) of the Act by the refusal to give him employment as a truckdriver because he had filed the charge in the earlier case. The charge in Case No. 26-CA-1301 had not yet been filed at the time of the settlement, and was, of course, never settled. Indeed, it was specifically understood and agreed by all.parties on May 22, at the very moment that the earlier case was settled, that Spain's claim that be had been denied employment as a truckdriver would be the subject of a subsequent charge. 3 That is not to say, however, that the employer would be deprived of an opportunity to defeat the second action by showing that the employee was discharged the second time for legal cause arising after the settlement. 4 Textile Machine Works, Inc., 96 NLRB 1333, 1350, 1351 ; 105 NLRP 618, enfd. 214 F. 2d 929 (C.A. 2) ; Sharpies Chemicals, Inc., 100 NLRB 20, 30, enfd. 209 F. 2d 645 (C.A. 6) ; F.T.C. v. Cement Institute, 333 U.S. 683, 705. TOMPKINS MOTOR LINES, INC. 11 Thus, Respondent's own counsel testified that immediately before accord was reached on the settlement agreement on May 22, he told the representative of the General Counsel, Spain and his attorney, that he "wanted it fully understood that if there was any charge to come out of [Respondent's grounding of Spain], or any feeling that there was any discrimination, that would have to be dealt with in the hereafter." He further testified that the General Counsel's representative then agreed and stated "that would have to be the matter of a separate charge" and, turning to Spain said: "Mr. Spain, you understand that if you feel like they continue to not let you drive and you feel like you are discriminated against, you would have to bring a fresh and separate charge." Respondent's counsel further testified that "it was on that basis that [they] entered into that settlement." Against this background, I cannot view the settlement agreement as disposing of allegations of discrimination not alleged and for which it makes no provision. Tulsa Boiler and Machinery Com- pany, 23 NLRB 846, 851. By reason of all the foregoing, I conclude that Respondent's conduct preceding the settlement may be considered by me to determine whether its postsettlement refusal to employ Spain as a driver was discriminatory and violative of the Act. I further conclude that if it is so determined and found, it is then incumbent upon me to recognize the Regional Director 's set-aside order as a valid order, and to make findings pertaining to Respondent 's presettlement conduct. As previously found, Spain, on November 11, 1961, while employed by Respond- ent as a casual or extra, filed a grievance with the Union claiming that under the Union's contract with Respondent he was entitled to employment as a regular, guaranteeing him 40 hours a week. The grievance was served on Horlacher, Re- spondent's terminal manager, on November 13, by A. B. Huff, the Union's shop steward. On the same day, Horlacher, after acknowledging that he had received the grievance , told Spain that if the grievance was sustained , he would "get less work" than he had been getting, and that if he lost it, he "would never work another day" for Respondent. Huff, employed by Respondent for 14 years, testified, without contradiction, that when he handed Spain's grievance to Horlacher on November 13, the latter told him that he "would close the place down before he would put on another" regular employee. Huff, and A. C. Sloan, the Union' s business agent, both testified, credibly, that prior to the hearing the Tri-State Committee, when they were checking Respondent's records to ascertain whether Spain was entitled to work as a regular , Sloan asked Horlacher whether he would not "work Spain until the hearing came up, one way or the other," and that Horlacher declined to commit himself, adding that he was "still pretty mad over the situation." George Stewart, employed, as a regular driver, testified that about the middle of December 1961, he "missed [Spain] off of the dock," and asked Lafayette what had happened to him. According to Stewart, whose testimony I credit, Lafayette replied that all he could tell him was that "Spain just messed himself up." Lafayette was not questioned by Respondent's counsel directly whether he made the statement attributed to him by Stewart. However, when asked whether he had "made statement to anybody . threatening [ Spain ] or declaring [he wasn't] going to use him, or anything to that effect," Lafayette testified as follows: A. No statements. There might have been some talk. If somebody asked me a question, I might have given them a quick answer just to pass it off, to get rid of it. Q. Did you ever have any conversation about him with any of the employees or Sloan or any of them out there? A. I have never talked to Sloan, I don't believe. Spain filed his charge in Case No. 26-CA-1217 on February 1, 1962. Shortly thereafter, when Lafayette called him to work one day, he asked Spain "when all this mess was going to stop." Spain asked what mess, and Lafayette replied: "All of this mess of the Labor Board, and . . . if you don't stop all of this mess and get the Labor Board off of us, I am not going to call you no more." Lafayette did not deny the foregoing accusation and, when questioned about it, testified that after receiving a registered letter from the Board he asked Spain "how much longer this crap was going on, [and] told him if he didn't cut out all of that crap, [he] was going to quit calling him." It is undisputed that Spain did not work for Respondent from November 28, 1961, to January 24, 1962. He testified that he called in to ask for work for 2 or 3 weeks after the first grievance hearing on November 28, and that he stopped calling there- after because Respondent continued to tell him they did not need him, and because he had been told by Stewart that Lafayette had informed him that Spain had "messed tip" and would never work there any more. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harrison, whose headquarters were in Atlanta, testified that the reason Spain was not used during this period was that Spain had quit calling in for work after November 28, 1961.5 Horlacher first testified that in the following December and January, he "would get calls off and on" from Spain asking for work, but a moment or two later testified he "never got any" call from Spain. Lafayette testified that Spain did not call for work during the period in question, and that he did not call Spain. Lafayette testified that when Respondent needed a man, they did not "wait around" for one of the casuals to call, but instead either he, or Horlacher, "pick[ed] up the phone and call fed] them at home." 6 And, though Lafayette "felt" that Spain `wanted to work" in December 1961 and "tried to get on" with Respondent, he never called Spain when Respondent was in need of a casual employee. All the foregoing findings unhesitatingly convince me, and I find, that from the time Spain's grievance was served on Horlacher on November 13, 1961, Respondent was determined to punish him therefor, and that it did so by denying him em- ployment from November 28, 1961, to January 24, 1962. It offered no credible evidence or reason for its failure to do so. Of the casuals employed by Respondent during the entire year 1961, only three were employed for any substantial number of days. And, though Spain was denied employment after November 28 of that year, he earned more money and worked more days in those 11 months than any other casual employed during that entire year, as appears by the following computation taken from Respondent's own records: Spain --------------------------------------------------- $4,186.20 Ford --------------------------------------------------- 3,820.65 Townsend ----------------------------------------------- 1,185.34 Indeed, in October 1961, the month before he filed his grievance, Spain worked 20 days. But, in the period November 11, 1961, to January 29, 1962, a period of 21/2 months, Respondent employed Spain only 9 days, while it gave casual employ- ment to Ford and Townsend on 43 and 16 days, respectively. The disparity in the days worked by Spain and Ford in the period just described takes on greater significance when compared to the number of days worked by these two men in December 1960 and January 1961. During the latter period, Ford worked 24 days and Spain 22. Having rejected the reasons assigned by Respondent for grounding Spain on April 10, 1962, I find and conclude that Respondent's motive for that action was foreshadowed and disclosed by Horlacher's threat to Spain on November 13, 1961, that if he lost the grievance he would never work another day for Respondent, and by Lafayette's threat to Spain, after the charge in Case No. 26-CA-1217 was filed, that unless he "got the Labor Board off" of Respondent he would never be called to work again. Accordingly, I further find that Spain was grounded on and after April 10, 1962, because he had filed that grievance and charge, and conclude that by doing so Respondent violated Section 8(a)(4) and 8(a)(1) of the Act. 4. The violations involved in the settlement By reason of the findings entered immediately above, it follows that additional findings must now be made with respect to the allegations found in the complaint in 26-CA-1217, the case which the parties sought to settle on May 21, 1962, and which allegations, because that settlement was thereafter set aside, were repeated in the consolidated complaint before me. Accordingly, I find that by the threats of Horlacher and Lafayette aforementioned, and by denying Spain employment from November 28, 1961, to January 24, 1962, because he filed his grievance, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1) thereof. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: s Harrison also testified that the seasonal fall-off in dry goods shipments "could have had" something to do with the reasons Spain was not used during this period. This claim, however, has apparently been abandoned because no mention thereof is made in Respondent's brief. G ,Casual employees Townsend, Ford, as well as Spain, all testified, credibly, that Re- spondent notified them to come to work at least 50 percent of the time they were em- ployed by calling them at their respective homes. SIX ROBBLEES' INC. 13 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By threatening A. J. Spain, Jr., with refusal of employment because he filed a grievance with respect to conditions of employment, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By refusing to employ A. J. Spain, Jr., from November 28, 1961 , to January 24, 1962, for having filed the grievance aforementioned , Respondent has engaged in un- fair labor practices within the meaning of Section 8(a) (1) of the Act. 5. By refusing to give A. J. Spain, Jr., employment as a truckdriver on and after April 10, 1962, because he filed the grievance aforementioned and the charge in Case No. 26-CA-1217, Respondent violated Section 8(a)(1) and 8(a)(4) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices it is recommended that Respondent be ordered to cease and desist therefrom , and to take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has illegally denied Spain employment , it is recom- mended that Respondent be required , when work for casual or extra employees is available at its Nashville terminal , to offer such employment to Spain , including employment as a truckdriver . It is further recommended that Respondent be re- quired to make Spain whole for any loss of pay he may have suffered because of the failure to employ him in any capacity between November 28, 1961, and January 24, 1962, and for Respondent's refusal to employ him as a truckdriver on and after April 10, 1962; the exact amount thereof to be determined in compliance proceedings . In arriving at the total amount of backpay to which Spain may be entitled, there shall be deducted therefrom the sum of $325 paid to him on or about May 21, 1962. Backpay shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall bear interest as prescribed in Isis Plumbing & Heating Co ., 138 NLRB 716. [Recommended Order omitted from publication.] Six Robblees' Inc. and Retail Clerks Union, No. 367, Retail Clerks International Association, AFL-CIO. Case No. 19-CA-2470. April 16, 1963 DECISION AND ORDER On January 15,1963, Trial Examiner Eugene K. Kennedy 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 attached Intermedi- ate Report. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 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 Inter- 142 NLRB No. 3.