Transport Co. of Texas

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