Vogt-Conant Co.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vogt-Conant Co. and Edward D. Kopack, Jr. and Edward D. Kopack, Sr. Cases 13-CA-17700 and 13-CA-17819 March 17, 1980 DECISION AND ORDER BY MEMBER JENKINS, PENELLO, AND TRUESDALE On July 13, 1979, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent violated Section 8(a)(3) and (1) of the Act by discharging employee Edward D. Kopack, Jr., because of his complaints about Respondent's elimi- nation of certain contractual overtime payments, and by discharging Edward D. Kopack, Sr., be- cause of his son's complaints. The Administrative Law Judge also found that Respondent violated Section 8(a)(1) of the Act by threatening to dis- charge Kopack Jr. if he continued to complain about the overtime matter. Respondent excepts to these findings. We adopt the finding that Respon- dent threatened Kopack Jr. in violation of Section 8(a)(1). However, for the reasons set forth below, we find merit in Respondent's exceptions to the un- lawful discharge findings. Kopack Jr.'s Discharge Respondent is engaged in industrial construction, maintenance, and repair at the premises of Inland Steel Co. in East Chicago, Indiana, and employs la- borers, ironworkers, and truckdrivers. The truck- drivers distribute materials to the jobsites, drive trucks utilized in the work, and transport other em- ployees between the parking areas and the various jobsites. Kopack Jr. worked as one of Respondent's truckdrivers for approximately 5 years prior to his discharge on June 7, 1978. The events which the General Counsel contends gave rise to Kopack Jr.'s discharge commenced 248 NLRB No. 27 during April 1978.1 At that time, Respondent eliminated certain overtime pay which drivers such as Kopack Jr. had been receiving for driving buses at the beginning and end of their work shifts. Charles Cowles, Respondent's superintendent, per- sonally informed Kopack Jr. of this change in policy, whereupon Kopack Jr. complained that the overtime was provided for in the collective-bar- gaining agreement between Respondent and the Union-Local 142, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. 2 Cowles explained that Inland Steel officials required Respondent to make the change, and that he (Cowles) had no choice but to comply with Inland Steel's instructions. At or about the same time, Respondent stopped paying Kopack Jr. the extra 25-cent-an-hour premi- um he had been receiving since 1976 as payment for certain additional duties. It appears that Kopack Jr. ceased performing these added duties as of 1977, but still continued to receive the premi- um pay. In a conversation later in April 1978, Kopack Jr. asked Cowles why Respondent had stopped paying him the premium. Cowles ex- plained that Graves, Respondent's vice president, had stopped granting the extra pay because he wanted to have all the crafts paid on a regular scale. During this conversation, Kopack Jr. reiter- ated his earlier complaint about the elimination of the overtime pay for truckdrivers. In response, Cowles again stated that he had to comply with Inland Steel's instructions. Cowles was in no way hostile toward Kopack Jr. during their conversa- tion. Shortly thereafter, Kopack Jr. spoke with Graves about the overtime matter as well as the loss of the premium pay. With respect to the former, Graves repeated Cowles' explanation. With respect to the latter, Graves agreed to discuss the matter with Cowles. Soon after this meeting, Re- spondent restored Kopack Jr.'s premium pay, al- though Kopack Jr. was not required to resume those additional duties that he had performed in 1976. At a union meeting in early May 1978, 1 month before Kopack Jr.'s discharge, Kopack Jr. raised his complaint about Respondent's elimination of the overtime pay for truckdrivers. At the meeting, Ted Tyrka, the Union's business agent, disagreed with Kopack Jr.'s position. I All dates herein are in 1978 unless otherwise indicated 2 It appears that Cowles and Kopack Jr had a longstanding relation- ship Kopack Jr. sas hired in 1971 as a result of Cowles' efforts At that time, Cowles contacted the Union and specifically requested that Kopack Jr. be referred Kopack Jr presiously had worked fr Cowles as a fore- man at another company. VOGT-CONANT CO. 501 A few days later, Kopack Jr. told Cowles about the union meeting, and held firm in his belief that truckdrivers were entitled to the overtime. During this conversation, Cowles did not express hostility toward Kopack Jr. despite Kopack Jr.'s persistence about the issue. Cowles simply stated that he wished to settle the matter and would invite Tyrka to the jobsite. 3 On May 15, Tyrka came to the jobsite and at- tended a meeting with Cowles and Kopack Jr. Tyrka repeated his support for Respondent's posi- tion in eliminating the overtime. Tyrka also com- plained that Kopack Jr. should not be receiving the premium pay, and told Kopack Jr. that he should quit if he did not like his job. Cowles responded that Respondent would continue to pay Kopack Jr. the additional 25 cents an hour. Unlike Tyrka, Cowles did not express hostility toward Kopack Jr. during the meeting. Immediately following this meeting, Kopack Jr. raised the overtime matter with Cowles again. As the Administrative Law Judge found, Cowles pa- tiently told Kopack Jr. to pursue the matter further if he wanted to, but that he (Cowles) could not consider restoring the overtime without something in writing showing that Respondent was obligaged to make the overtime payments and indicating that Respondent could get reimbursed by Inland Steel. Cowles never discouraged Kopack Jr. from pursu- ing the matter. Kopack Jr. testified that, at about the same time, May 15-17, he mentioned the over- time issue to Jim Chandler, his immediate supervi- sor and Respondent's assistant superintendent. Ac- cording to Kopack Jr., Chandler told him that Cowles and Tyrka would get rid of him if he did not "shut his mouth" about the overtime. Chandler did not recall this conversation, and denied making this threat.4 After mid-May, Kopack Jr. stopped pressing his disagreement about overtime. Neither Cowles nor Chandler raised the issue again, and Kopack Jr. worked the remainder of May without incident. From all appearances, the overtime matter was set- tled. 3 Cowles testified that at about this time Tyrka telephones him and dis- cussed the overtime matter. Tyrka specifically asked Cowles if Kopack Jr. was bothering him, and Cowles told him, "No." Cowles and Tyrka agreed that it might be helpful if Tyrka came to the jobsite to discuss the issue. 4 Relying primarily on demenor, the Administrative l.aw Judge cred- ited Kopack Jr over Chandler with respect to this conversation, al- though the Administrative l.a discredited much of Kopack Jr's other testimony, as noted infra. Based on this credibility resolution, the Admin- istrative Law Judge found that Respondent, by Chandler's remark, vio- lated Sec. 8(a)(l) of the Act. Mindful of the Administrative Law Judge's viesw of the witnesses' demeanor, we adopt the 8(a)(1) iolatiolln found. See, generally, N.L.R.B. . Gold Standard Enrerprises, Inc. et a. 07 F.2d 1208 (7th Cir 1979) Chandler testified that on June 1 he observed Kopack Jr. driving his truck on the Inland Steel premises at an excessive rate of speed. According to Chandler, as Kopack Jr. had committed numer- ous driving infractions during the previous months, he warned Kopack Jr. that any further driving in- fraction would result in discharge.5 Chandler further testified that on June 7 he again observed Kopack Jr. drive his truck at an excessive speed and also run two stop signs. In view of the previous warning, Chandler assertedly decided to discharge Kopack Jr. that day. Accordingly at the end of the shift, Kopack Jr. was summoned to Chandler's office, and Chandler handed Kopack Jr. his final paycheck, although Chandler provided no explanation for the discharge. Kopack Jr. then left the office without complaint and, while leaving the Inland Steel premises, saw Cowles and said good- bye. It appears that Cowles had no knowledge of the discharge at the time, but learned of it from Chandler soon afterwards. 6 The Administrative Law Judge, in agreement with the General Counsel, found that the reason advanced by Respondent for Kopack Jr.'s dis- charge was a pretext, and was designed to conceal its desire to get rid of Kopack Jr. because of his protected complaints about the contractual over- time matter.7 Accordingly, the Administrative Law Judge found that Kopack Jr.'s discharge violated Section 8(a)(3) and (1) of the Act. We disagree. Rather, as fully explained below, we find that the circumstances relied on by the Administrative Law Judge are insufficient to support a finding of pre- text, and that the record as a whole does not con- tain sufficient evidence upon which to conclude 5 At the hearing, Kopack Jr. recalled a similar conversation with Chandler about his driving, although Kopack Jr. did not recall that Chandler gave him a final warning. However. while Kopack Jr. conced- ed that Chandler had admonished him and told him that a mechanic who worked for another contractor had been fired for speeding, Kopack Jr. denied that he was speeding on that date The Administrative l.aw Judge did not resolve the conflicts between Kopack Jr's and Chandlr's testi- mony concerning this June 1 conversation. Nevertheless, it is clear that on June Chandler spoke with Kopack Jr. about the latter's driving, aid that some reference was made to the effect that further incidents (of im- proper driving could lead to discharge 6 The record regarding portions of the termination meeting betweet Chandler and Kopack Jr. is unclear. Kopack Jr. testified that he asked Chandler if he was being laid off or fired, and that Chandler replied that he did not want to get into it. Chandler testified that Kopack Jr. sought no explanation, and that he (Chandler) offered none. Chandler believed that Kopack Jr. knew the basis for the discharge. While the Administra- tive Lasw Judge did not resolve this conflict in testimony, it is clear that the discharge meeting between Chandler and Kopack Jr was brief. It is further apparent that, whatever was said at the meeting, Kopack Jr did not press Chandler for an explanation or challenge Chandler about the decision to fire him Nor did Kopack Jr. ask to see Cowles or raise the matter to Cowles when he said goodby to him. ' In making this finding, the Administrative Law Judge concluded, without objection from Respondent, that Kopack Jr.'s complaints about the elimination of certain overtime pay for all the truckdrivers constitut- ed protected concerted activity We agree that these complaints were both concerted and protected VOGT-CONANT Co. 501 sol 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the discharge was based on Respondent's sup- posed hostility toward a complaining employee. As Respondent contends, Kopack Jr. was guilty of numerous incidents of improper and unsafe driv- ing on the Inland Steel premises during his period of employment. The Administrative Law Judge credited the testimony of Cowles, Chandler, and several employees, who testified that Kopack Jr. was known to drive busloads of employees at ex- cessive speeds, to take undesignated shortcuts, to go the wrong way down one-way streets, to start moving the bus before passengers were seated, and to attempt to beat trains across railroad tracks.8 The record also shows that, at various times, Kopack Jr. had received citations for improper driving from Inland Steel personnel, and that, at various times, workers, stewards, foremen, Cowles, and Chandler had spoken to Kopack Jr. and had urged him to improve his driving.9 However, he did not improve his driving. Rather, Kopack Jr.'s poor driving practices increased markedly during 1978. For instance, in January 1978, Dick Wis- newski, Inland Steel's assistant field force supervi- sor, telephoned both Cowles and Chandler, com- plaining that he had observed Kopack Jr. drive a busload of employees the wrong way down a one- way street. Wisnewski, who regulates the work of contractors such as Respondent on the Inland Steel premises and has authority to cancel the contracts, warned Cowles that, if his driver could not read, he better get one who could.'° Wisnewski gave a similar warning to Chandler. Both Cowles and Chandler verbally reprimanded Kopack Jr. about the incident. Again, in early February 1978, Cowles received a telephone call from an Inland Steel plant protec- tion officer who had observed Kopack Jr. speed- ing. The officer asked Cowles to do something to slow him down. Cowles reprimanded Kopack Jr. again, telling him that this problem was something "he could not run from." Cowles received similar complaints on February 23 and April 26, and, on 8 Kopack Jr. denied these reckless driving alleagtions. The Administra- tive Law Judge discredited the denials. 9 In 1976 alone, Kopack Jr. received three citations for unsafe driving from Inland Steel plant protection officers. On each of these occasions, an Inland Steel representative wrote to Cowles, informed him of Kopack Jr.'s infraction, and urged that Kopack Jr. be reprimanded In one letter particularly, an Inland Steel official wrote: Needless to say this [going through a stop sign] is avery dangerous practice and strictly against the Safety Traffic Regulations of Inland Steel Company. As instructed, Cowles reprimanded Kopack Jr., urging him to be more cautious, and warning him that pressure from Inland Steel could jeopar- dize his (Kopack Jr.'s) employment. '0 Wisnewski, obviously disturbed over the incident, recalled that, when he telephoned Cowles, "he chewed him out," and told him it was a terribly dangerous practice. each occasion, Cowles verbally reprimanded Kopack Jr. 1 Then, on May 9, Cowles and Chandler each re- ceived another telephone call about Kopack Jr.; this time the call was from Joe Ladd, one of Inland Steel's field force engineers. Cowles testified that Ladd demanded that Cowles come to the work area because Kopack Jr. was disobeying orders and almost caused an accident by his reckless handling of a truck. Ladd wanted another driver. Cowles testified that he went to the jobsite, attempted to pacify Ladd, and, once again, spoke with Kopack Jr. Cowles further testified that in a meeting with Chandler later that day, he told Chandler that "he had taken all the complaints about Kopack Jr. that he was going to" and would not spend any more time with it. Chandler was to handle any future problems. Chandler essentially corroborated Cowles' version of the events of May 9.12 Chandler further testified that he observed Kopack Jr. speeding on June 1 and gave him a final warning to drive properly. On June 7, he ob- served Kopack Jr. speeding and running 2 stop signs. As a result, he fired Kopack Jr. at the end of the shift. From the foregoing, it appears that Respondent has come forward with a legitimate explanation for Kopack Jr.'s termination. In this regard, Respon- dent has shown-and the Administrative Law Judge found-that Kopack Jr. had litle regard for Inland Steel's driving regulations and committed several driving infractions on Inland Steel's prem- ises during 1978. Nevertheless, as noted, the Ad- ministrative Law Judge concluded that Respondent was more or less indifferent about Kopack Jr.'s unsafe driving, and that its "sudden" concern was I Kopack Jr. denied that Cowles ever reprimanded him about the two driving incidents in February, and the one in April. The Administrative Law Judge discredited Kopack Jr.'s denials. In so doing, the Administra- tive Law Judge expressly credited Cowles' accounts of these incidents, which were supported by Cowles' calendar notes. 12 While the Administrative Law Judge acknowledged that Kopack Jr. was involved in a driving mishap on May 9, he downplayed the signifi- cance of this incident by citing alleged inconsistencies between Cowles' and Chandler's testimony and by drawing an adverse inference from Re- spondent's failure to call Ladd as a corroborating witness. We do not think the May 9 incident, occurring on the heels of 4 recent driving mis- haps involving Kopack Jr., can be so easily minimized. Cowles testified that Ladd complained about Kopack Jr.'s failure to obey orders and his reckless handling of a truck; Chandler testified that Ladd complained of Kopack Jr.'s recklessness and speeding. Rather than contradict Cowles, Chandler's testimony simply raises the possibility that Kopack Jr.'s "reck- lessness" on this occasion consisted of speeding. Clearly, the alleged in- consistency between Cowles and Chandler is trivial and cannot be held to impair the general consistency and reliability or their testimony with respect to this incident. Nor, under the circumstances of this case, do we draw an adverse inference against Respondent for failing to call Ladd as a corroborating witness. In this regard, we note that Ladd is an Inland Steel employee, and was not under Respondent's control. Moreover, Kopack Jr.'s denial of the May 9 incident similarly stands uncorroborat- ed. Yet, the Administrative Law Judge drew no adverse inference from this lack of corroboration despite the fact that he discredited Kopack Jr. in his denials of the other driving incidents discussed above. VOGT-CONANT CO. 503 pretext to fire Kopack Jr. because of his complaints about the overtime matter. The record does not support this conclusion. Rather, the record demonstrates that Respon- dent, through Cowles and Chandler, constantly warned Kopack Jr. about his unsafe driving. Cowles particularly warned him that Inland Steel took this matter seriously, and that future infrac- tions could jeopardize his employment. We note, in this regard, that it was not in Respondent's interest to tolerate Kopack Jr.'s misconduct when it began to anger those Inland Steel representatives who had authority to cancel Respondent's contract with Inland Steel. The Administrative Law Judge also failed to consider record testimony that Respon- dent has in the past discharged other employees for similar misconduct. Under these circumstances, we cannot infer, as did the Administrative Law Judge, that Respondent did not view Kopack Jr.'s unsafe driving practices-and his unwillingness to im- prove-as a serious offense. While, as the Adminis- trative Law Judge noted, Cowles' manner of repri- manding Kopack Jr. may have been restrained, this restraint is more likely explained by Cowles' long and apparently friendly relationship with Kopack Jr., and the fact that he regarded Kopack Jr. as a hard working employee, rather than any indiffer- ence towards Kopack Jr.'s poor driving or the problems it created with the Inland Steel person- nel. Furthermore, while we recognize that, prior to 1978, Respondent tolerated Kopack Jr.'s poor driv- ing practices to the extent that he was not harshly disciplined or discharged for such misconduct, he was cited for an unusually high number of infrac- tions in 1978, two of which involved Cowles in confrontations with Inland Steel personnel. Thus, even though Respondent "tolerated" Kopack Jr.'s unsafe driving for a time, this did not mean that Kopack Jr. had a license to continue violating company rules and to ignore warnings.' 3 Clearly, as the number of incidents increased in the face of repeated warnings, Respondent was entitled to change its attitude. Cowles apparently did so fol- lowing the May 9 incident.4 Accordingly, unlike the Administrative Law Judge, we cannot say that 11 In this connection, the record does not support the Administrative Law Judge's finding that Respondent urged its drivers to exceed speed limits in certain circumstances. The only evidence on this point consists of Kopack Jr.'s testimony that on one occasion Chandler told him to "hurry up and get the men off the job so we don't have to pay them overtime." Even assuming the truthfulness of Kopack Jr.'s testimony, this isolated and ambiguous remark attributed to Chandler in no way suggests that Respondent condoned or tacitly encouraged its drivers to exceed posted speed limits. " There is no basis for inferring that Cowles' changed attitude was in any way influenced by Kopak Jr.'s complaints about the overtime. As noted infra, even after the May 9 incident. Cowles continued to be recep- tive to Kopack Jr.'s complaints concerning overtime, and never showed hostility or sought to deter him in his efforts in this regard. the asserted reason for Kopack Jr.'s discharge is one which Respondent seized upon, without justifi- cation, in order to rid itself of a complaining em- ployee. 5 Other factors also support our conclusion. In this regard, there is nothing in the record to show that Respondent harbored animus generally toward em- ployees for filing grievances or complaining about their employment conditions. Consistent with this, Cowles never expressed any hostility toward Kopack Jr. during their many conversations about the overtime, and never discouraged Kopack Jr. in his efforts. That Respondent was not seriously con- cerned with Kopack Jr.'s complaints is also shown by its restoration of Kopack Jr.'s premium pay after he complained about losing it. Equally signifi- cant is Cowles' attitude at a meeting in mid-May when he ignored the union business agent's display of hostility toward Kopack Jr., and refused the business agent's request to revoke Kopack Jr.'s pre- mium pay. Even after this meeting, Kopack Jr. raised the overtime issue to Cowles again, and Cowles remained patient. He simply informed Kopack Jr. that he could do nothing about the overtime without something in writing which would enable Respondent to get reimbursement from Inland Steel. The foregoing is hardly indicative of an employ- er harboring animus toward an employee for his '5 Nor can we conclude, as did the Administrative Las Judge, that Chandler's testimony concerning the cause of Kopack Jr.'s discharge was not credible. Without commenting on demeanor, the Administrative Law Judge discredited Chandler's testimony on this matter essentially because he inferred from certain circumstances that Respondent was not suffi- ciently concerned with Kopack Jr.'s unsafe driving to discharge him for that reason. As noted above, we view these circumstances differently They support Respondent's contention, and they support Chandler's testi- mony. It is also worth noting that Chandler's account of the final events leading up to the discharge is only refuted by Kopack Jr While the Board has long adopted the view that dis'rediting part of a witness' testi- mony does not necessarily require discrediting that witness' entire testi- mony, we cannot help but notice that in the instant case the Administra- tive Law Judge discredited all of Kopack Jr.'s denials of the unsafe driv- ing allegations. Under these circumstances, we view Kopack Jr.'s denials of the alleged dnving incidents on June 1 and June 7 no differently. In addition, in rejecting the Administrative Law Judge's pretext find- ings, we are mindful that Chandler did not give Kopack Jr an explana- tion for the discharge. However, although perhaps suspicious, this cir- cumstance, in the context of this case, is not a sufficient basis for dis- counting Respondent's proferred reason, particularly since the seriousness of the misconduct-unsafe and often reckless driving by a truckdriver- speaks for itself Moreover, the suspicion we might otherwise draw from the absence of an explanation is somewhat blunted by Kopack Jr.'s sur- prising acceptance of the unexplained discharge without question (see fn 6, supra), given his propenity to complain to Cowles whenever he felt he had been treated unfairly Also, contrary to the Administrative Law Judge, we draw no adverse inference against Respondent for Cowles' noninvolvement min Kopack Jr's discharge. It appears from the record that Chandler was Kopack Jr 's supervisor, and, as Respondent's assistant superintendent., had full au- thority to discharge employees Furthermore, following the May 9 inci- dent in which Cowles was summoned to the worksitc, it appears that Cowles grew frustrated with Kopack Jr's repeated misconduct and re- fused to spend any more time handling complaints about himn Instead. he left the matter to Chandler VOGT-CONANT Co. 503 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD persistent complaints. Moreover, we note that Kopack Jr. ceased his protests in mid-May, and gave Respondent no further cause for concern. Kopack Jr. was not discharged until some 3 weeks later. Quite simply, during the 3 weeks preceding Kopack Jr.'s discharge, the overtime matter seem- ingly had become a dead issue, and Respondent at no time appeared concerned, let alone preoccupied, with it. Finally, although Chandler told Kopack Jr. on May 17, that Cowles and Tyrka (the Union's busi- ness agent) would get rid of Kopack Jr. if he did not "shut his mouth" about the overtime issue,' 6 this is the only evidence of animus in the record. Such a statement may raise some suspicion about Respondent's motive, but we cannot ignore the equally probative evidence that Respondent bore no animus against complaning employees generally, showed nothing but patience during many conver- sations with Kopack Jr. about the overtime issue, and, in the midst of this sequence of events, re- stored Kopack Jr.'s premium pay after he had com- plained about losing it. Moreover, Kopack Jr. ceased pursuing the overtime matter after May 17, seemingly removing his complaints as a thorn in Respondent's side. 7 On balance, therefore, we cannot say that the General Counsel has proven by a clear preponderance of the evidence that Kopack Jr.'s discharge was unlawfully motivated by Re- spondent's hostility toward a complaining employ- ee, rather than its lawful concern about improper driving on the Inland Steel premises. Accordingly, we shall dismiss this allegation of the complaint. Kopack Sr's Discharge Kopack Sr., like his son, was a truckdriver for Respondent. The complaint alleged that Respon- dent unlawfully discharged Kopack Sr. on June 6 as part of its reprisal against Kopack Jr. because of the latter's complaints about the overtime matter.1 8 The Administrative Law Judge, having found that Kopack Jr. was in fact discharged in reprisal for his protested complaints, agreed with the General Counsel, and found that Kopack Sr. was dis- charged for the same reason. However, as we have found the evidence insufficient to conclude that ' See fn.4, supra. i7 Contrary to the Administrative Law Judge's suggestion, the hostil- ity which the union business agent displayed toward Kopack Jr. in mid- May is not relevant in this case. While the Administrative Law Judge may believe, as he suggested, that the truth about Kopack Jr.'s discharge involves the Union in some conspiracy with Respondent, the complaint is not predicated on such a theory, and the evidence, as presented, does not support it. In fact, we note that, in Case 13-CB-7953, Kopack Jr filed a charge against the Union alleging that the Union violated Sec. 8(b)(1)(A) and (2) of the Act by inducing Respondent to discharge him, but the charge was withdrawn. i' It is conceded that Kopack Sr. was not involved with the overtime matter or with his son's complaints about it. Respondent unlawfully retaliated against Kopack Jr. because of his complaints about the overtime, we necessarily reach the same conclusion with re- spect to Kopack Sr. Accordingly, we shall dismiss this allegation of the complaint as well. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Vogt-Conant Co., East Chicago, Indiana, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge for complaining that the collective-bargaining agree- ment governing the terms and conditions of their employment has been breached. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their 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) Post at its East Chicago, Indiana, place of business copies of the attached notice marked "Ap- pendix."19 Copies of said notice, on forms pro- vided by the Regional Director for Region 13, after being duly signed by Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States COurt of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELIATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with discharge for complaining that the collective- bargaining agreement governing the terms and VOGT-CONANT CO. 505 conditions of their employment has been breached. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of their right to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Na- tional Labor Relations Act, as amended. These activities include the right to self-organization, the right to form, join, or assist labor organiza- tions, to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. VOGT-CONANT CO. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charge in Case 13-CA-17700 was filed on June 8, 1978, by Edward D. Kopack, Jr. The charge in Case 13-CA- 17819 was filed on July 11, 1978, by Edward D. Kopack, Sr. On July 21, 1978, the consolidated complaint issued alleging that Vogt-Conant Co, hereinafter referred to as Respondent, threatened to discharge or otherwise disci- pline Edward D. Kopack, Jr., because of his union and/ or protected concerted activities, and that Respondent discharged Edward D. Kopack, Sr., and Edward D. Kopack, Jr., on June 6 and 7, 1978, respectively, because of the union and/or protected concerted activities of Edward D. Kopack, Jr. In its answer, Respondent denies the commission of any unfair labor practices. A hearing was held before me in Hammond, Indiana, on November 27 and 28, 1978. At the conclusion of the hearing, counsel for the General Counsel argued orally on the record, and the parties were given leave to file briefs, which have been received from counsel for the General Counsel and Respondent.' Upon the entire record in this case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is engaged in industrial construction, maintenance, and repair at the premises of Inland Steel Company in East Chicago, Indiana. Respondent annually derives revenue in excess of $500,000 from said oper- ations, and purchases and receives at its East Chicago fa- cility goods and materials valued in excess of $50,000 di- rectly from points located outside the State of Indiana. 2 I Counsel for the General Counsel has also filed a motion to correct the transcript. As the corrections requested appear warranted, the motion is granted, and is received into evidence as G.C. Exh. 7. 2 The complaint alleges, and Respondent admits, that it purchased and received goods and materials valued in excess of 50,000 directly from find that Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended, and that it will effectuate the policies of the Act to assert jurisdic- tion herein. 1I. THE LABOR ORGANIZATION INVOLVED Local 142, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, her- einafter referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Respondent employs laborers, ironworkers, other tradesmen, and truckdrivers, two of whom are involved in the issue herein. The tradesmen work at various sites within the Inland Steel premises, which are extensive, on repair and construction of plant facilities. The truck- drivers distribute materials to the jobsites, drive trucks utilized in the work, and transport tradesmen between Respondent's parking areas and jobsites. Respondent's workload and manpower needs vary depending on Inland Steel's needs, and the number of shifts and shift hours vary with the workload. At the times material herein, the drivers were super- vised by Respondent's superintendent, Charles Cowles, and assistant superintendent, Jimmy Chandler. The driv- ers were represented by the Union, which had a collec- tive-bargaining agreement with Respondent. In 1973, Edward D. Kopack, Jr., started to work as a truckdriver for Respondent. In 1976, he was made truck- driver foreman or coordinator and given additional duties. Respondent raised his pay to 25 cents an hour above the union scale. After about a year, he stopped performing the additional duties and resumed regular truckdriver work, but continued to receive the additional pay. In August 1977, Respondent hired Edward Kopack, Sr., father of Edward Kopack, Jr., also as a truckdriver. On June 6, 1978, Assistant Superintendent Chandler laid off Kopack Sr. after an incident which Respondent contends demonstrated his inability to handle a semi- trailer satisfactorily. On the following day, June 7, Chan- dler terminated Kopack Jr., according to Chandler, be- cause he had observed Kopack Jr. running stop signs and speeding after he and Superintendent Cowels had warned him on a number of occasions about his driving. The General Counsel contends that the reasons given for laying off Kopack Sr. and terminating Kopack Jr. were pretexts, and that both were discharged because Kopack Jr. had complained about Respondent's change in practice with respect to overtime payments to drivers who drove buses transporting Respondent's tradesmen to and from jobsites at the beginning and end of their shifts. points located outside the State of Illinois. Inasmuch as the answer con- cedes jurisdiction, it appears that the parties intended to allege and admit receipt of goods and materials from points located outside the State of Indiana. VOGT-CONANT Co. 505 506 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD B. Kopack Jr.'s Complaints About His Pay Respondent's contract with the Union provided that "drivers who haul men to and from jobsites shall be guaranteed one-half hour overtime at the beginning of the workday and one-half hour overtime at the end of the workday for the transportation of men." During the spring of 1978, Respondent's drivers were working con- secutive 12-hour shifts and were being paid overtime pay for driving buses at the beginning and end of their shifts. In April, Respondent stopped paying the drivers for more than 12 hours on a shift, apparently because there were drivers on duty around-the-clock.3 When Cowles informed Kopack Jr. that Inland Steel had complained about payment of bus time, and that it was being stopped, Kopack Jr. argued that bus time was provided for in the contract. Cowles responded that he was going to have to do what Inland Steel required. Thereafter, Kopack Jr. was paid only 12 hours' pay per shift, wheth- er or not he drove buses. At or about the same time, Respondent also stopped paying Kopack Jr. the 25-cent hourly premium which he had received since 1976. A few days after Cowles first told Kopack Jr. about the bus time, Kopack Jr. told Cowles that he still be- lieved he was right about the bus time because it was in his contract, and Cowles again said he would have to go along with Inland Steel on the matter. At that time, Kopack Jr. asked Cowles why the 25-cent hourly premi- um had been taken away from him, and Cowles told him that Respondent's vice president, Graves, had stopped it because he wanted to have all of the crafts paid on a reg- ular wage scale.4 Thereafter, Kopack Jr. asked Graves if he had taken the premium pay away from him, and Graves replied that he had, but would talk to Cowles about it. Kopack Jr. also complained to Graves about the loss of bus time and said that he did not think it was right because it was provided for in the contract. Graves told Kopack Jr. that he would have to go along with his supervision, and Kopack Jr. said that he would go to the next union meeting to raise the matter. Shortly thereafter, Respon- dent restored Kopack Jr.'s 25-cent hourly premium, but not payment of bus time. In May, Kopack Jr. attended a union meeting where he complained about loss of bus time and contended that payment was required by the contract. Union Business Agent Tyrka disagreed and gave an explanation which Kopack Jr. did not accept. 3 Neither the nature of the change in pay practice nor the reasons for it are entirely clear, but it is clear from the testimony of Respondent's timekeeper, Bono, that there was a change which restricted payment to drivers to 12 hours per shift even if drivers claimed additional pay for driving buses. Bono's testimony also establishes that, at the time of the hearing, the policy had again changed to permit 12-1/2 hours' pay per shift to drivers. To the extent that Cowles' testimony is inconsistent with Bono's, I have credited Bono. 4 Kopack Jr. testified that he spoke to Cowles about both matters at this time. Cowles testified that he believed the matter of the 25-cent hourly premium arose earlier in the year, and his calendar notations give some support to his version. I find that the timing of the complaint is not critical, as there is no dispute that Kopack Jr.'s premium pay was re- stored. A few days later, Kopack Jr. again told Cowles that he still believed he was right about the payment of the bus time and told Cowles what Tyrka had said at the union meeting. Cowles told him that he wanted to get the matter settled and would ask the business agent to come to the jobsite. At or about the same time, Kopack Jr. also complained to Chandler about the loss of bus time. In mid-May, Union Business Agent Tyrka met with Cowles and Kopack Jr. in Cowles' office. Tyrka said that he was there to settle the bus time issue and again supported Respondent's position, repeating the explana- tion he had given at the union meeting. During the course of the meeting, Tyrka questioned Kopack Jr.'s 25- cent hourly premium pay, asserted that it was over union scale, and said that Respondent did not have to pay it. Tyrka told Kopack Jr. that, if he did not like his job, he should quit. Kopack Jr. asked Tyrka if he would put him to work th next day if he quit, and Tyrka did not answer. Kopack Jr. then asked Cowles if he was going to take the 25-cent hourly premium away from him, and Cowles replied that he would continue to pay it. Following the meeting, Kopack Jr. sought to file a grievance through the Union, but the Union would not process it, and no grievance was filed. After the meeting, Kopack Jr. told Cowles again that he still thought he was right, and Cowles replied that Kopack Jr. could pursue the matter if he wanted to, but that he would have to give Cowles something in writing showing that Respondent was obligated to pay the bus time so that Respondent could get reimbursed by Inland Steel. 5 C. Alleged Threats of Reprisal A day or 2 after the May 15 meeting, Kopack Jr. told Chandler that he still believed that he was right about the bus time. Chandler told him that he should shut his mouth, and that, if he did not, Cowles and Tyrka were going to get rid of him.6 Kopack Sr. testified to conversations in April and May with Cowles, Chandler, timekeeper Bono, and Office Manager Stabler in which he was told that, if his son did not stop his complaints about the bus pay, he would be "hit in the ass with a couple of checks." I have not cred- ited this testimony because it attributes the same idiom- atic expression, of dubious significance, to four different speakers, and rather clearly represents Kopack Sr.'s words, rather than words used by the alleged speaker. Moreover, in an affidavit given in connection with a charge filed against the Union, Kopack Sr. gave a differ- 5 Cowles so testified without contradiction. Cowles also testified that he told Kopack Jr. that, if he won his point, "bless your heart." Al- though I am skeptical of this detail, it was not contradicted. 6 Kopack Jr. so testified. Chandler testified that he did not believe that Kopack Jr. complained to him about bus time again after May 15, and he denied that he ever told Kopack Jr. to keep his mouth shut or that Tyrka and Cowles would get rid of him if he did not. While I have discredited some of Kopack Jr.'s testimony, I have credited him in this regard. Kopack Jr. clearly was not satisfied with the answer he was given at the May 15 meeting, did not drop the matter, and was not likely to have kept silent about it. Tyrka's hostility to Kopack Jr. is independently estab- lished on the record, and Chandler's testimony was deficient in a number of respects and impressed me as lacking in candor, as set forth below. VOGT-CONANT CO. 507 ent version of Chandler's alleged threat, which failed to incorporate the quoted expression and made no mention of the complaints about the bus pay. D. The Layoff of Kopack Sr. on June 6 Kopack Sr. had about 25 years' experience as a driver. During his employment, he was not assigned to any par- ticular truck and drove winch trucks, dump trucks, pickup trucks, and semi-tractors, sometimes driving more than one truck in the course of a single day. He drove a semi-tractor about 25 percent of the time. At the outset of his employment, Kopack Sr. was laid off for short period and was recalled several times. For the most part, he worked steadily for Respondent after September 1977. 7 During the course of his employment by Respondent, Kopack Sr. was never warned or repri- manded by Respondent about his driving. On Monday, June 5, 1978, Chandler assigned Kopack Sr. to drive a semi-tractor pulling a flatbed trailer to pick up a large ring at one of a building on the Inland Steel premises, to haul it approximately 200 feet to the rear of the building, and to back the trailer into position for un- loading by an Inland Steel plant crane. On the following morning, June 6, he was assigned to transport another similar ring in the same fashion. The trailer was 12 feet wide and the load 2 feet wider. As there was almost no clearance at the rear of the space into which the load had to be backed, Kopack Sr. could not see where he was going, and had to rely on oral instructions from the ironworkers behind the trailer who were guiding him. While he was backing the load into position, Respon- dent's ironworker foreman, Coffey, came to the side of the tractor, and, in a state of some anger, shouted instructions at Kopack Sr. After a period of time, Kopack Sr. succeeded in positioning the load. 8 That afternoon close to quitting time, Coffey told Chandler that he would rather have a truckdriver other than Kopack Sr. drive for him in the future.9 When Kopack Sr. went to Respondent's office at quit- ting time, Chandler called him in to his office, gave him 7 Although Kopack Sr. initially denied that he had been laid off by Respondent before June 6, it is apparent that his denial was based on his understanding of what was meant by a layoff, as his subsequent testimony makes clear. 8 The evidence is in sharp conflict as to the amount of time it took Kopack Sr to hack the load into position. According to Kopack Sr. the entire process took approximately 10 minutes, and certainly less than an hour. He testified that there was a long delay thereafter before the trailer was unloaded because an Inland Steel plant crane was unavailable to unload it. Ron Guardo, an Inland Steel employee who worked in the area and is Kopack Sr.'s son-in-law, testified to corroborate Kopack Sr. as to when he finished backing the load into position and the duration of his wait for the trailer to be unloaded. Coffey testified that, on both June 5 and 6, it took Kopack Sr. approximately 2 hours to back the semi-trac- tor into position, although he was present on June 6 to observe Kopack Sr. for only an hour. Although there were other employees of Respon- dent present, no other witnesses were called to corroborate Coffey. Kopack Sr.'s testimony as to Coffey's presence and anger persuade me that the positioning of the truck was not as rapid as Kopack Sr. testified or free of problems. On the other hand. I am also persuaded that Coffey's uncorroborated testimony contains substantial exaggeration as to the time required h Kopack Sr to position the load. I find that it took Kopack Sr. longer than 10 minutes and long enough to provoke Coffey's ire, but substantially less than 2 hours to position the load 9 According to Chandler. Coffey also told him that the truck was not needed anymore, but Coffey did not so testify his pay, and told him that he had to lay him off because he had no work for him. Kopack Sr. asked Chandler how his work had been, and Chandler replied merely that it had been very good. O Chandler testified that he laid off Kopack Sr. after re- ceiving Coffey's call because of "lack of work for that truck that day," and that many times a quick decision had to be made at the last minute to lay off drivers. He testified that it was not his intention to prevent Kopack Sr. from working for Respondent again, but that he did not want him to drive the semi-tractor anymore. On cross-examination by counsel for the General Counsel, Chandler testified as follows: Q. Did you mention to Mr. Kopack, Sr. about his inability to handle the semi? A. No, ma'am, I did not. Q. Is there a reason why you did not? A. Not any particular reason. Q. That had something to do with the reason why he was [laid off]? A. No, ma'am, not necessarily. Well, in a way it would have been too. Q. When could it be? A. I don't want to say. Q. Did that complaint about Mr. Edward Kopack, Sr.'s handling the equipment have any- thing to do with his layoff? A. Mr. Kopack would have got laid off had he not complained to anyone. Q. On June 6th? A. When he got laid off, he did not complain to me any- JUDGE DAVIDSON: When you say he, who do you mean? Q. (By Miss Newman) Coffey? A. Yes. Q. So, that Coffey's complaint about the way Eddie, Sr.'s driving had nothing to do with his layoff on June 6th? A. That's hard to say without putting me on the spot. Q. You are on the spot. That's called the witness stand. A. I know. I want to be honest about it. Q. Please tell me whether or not Coffey's com- plaint had anything to do with your decision to lay off? A. It would have a certain bearing on it. I would have to say, yes. Chandler testified further that, until Coffey called him, he had no knowledge as to whether the particular truck Kopack Sr. was driving would be needed after Coffey finished with it. He testified that Inland Steel told him nothing that afternoon to indicate a change in the need for drivers, and that Coffey's call was the only call he received that afternoon relating to the need for drivers. 'o Kopack Sr. and Chandler both testified that Chandler told Kopack Sr that he was laid off for lack of work and said nothing about Kopack Sr.'s inability to handle the semi-tractor Chandler did not contradict Kopack Sr.s further testimony as to his question about his work and Chandler's reply VOOT-CONANT CO. 507 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before that afternoon, Chandler had been informed by Inland Steel that a new job was coming up to start around June 7 or 8. On June 5, the day before Kopack Sr. was laid off, Kerr, a new driver, was hired and started to work. Kerr's principal duty was to drive a truck carrying drinking water to various jobsites. Kerr also drove other trucks, but not the semi-tractor. On July 26, another driver, Stratton, was employed, and drove for Respon- dent thereafter. E. The Discharge of Kopack Jr. on June 7 The next afternoon, June 7, Kopack Jr. was called to Respondent's office close to quitting time. When he ar- rived there, Chandler handed him his pay. Kopack Jr. asked if he was being fired or laid off, Chandler replied that he did not want to get into it. t As Kopack Jr. left the premises, he saw Cowles, shook hands with him, and said goodbye. According to Cowles, he had no knowl- edge of Kopack Jr.'s termination until then and did not learn that Chandler had discharged him until half an hour later when Chandler told him he had fired Kopack Jr. According to Chandler and Cowles, Chandler did not tell Cowles the reason for the discharge, and Cowles did not ask. Chandler testified that he discharged Kopack Jr. on June 7 "for safety violations, driving the truck too fast, and failure to follow orders," after having observed Kopack Jr. speeding and running two stop signs earlier that day. Throughout Kopack Jr.'s employment, he drove buses transporting men to and from jobsites. From the start of his employment, employees complained that he drove the buses recklessly and engaged in safety violations such as driving 30 to 40 miles an hour in 20-mile-an-hour zones, taking undesignated shortcuts, going the wrong way on one-way streets, running stop signs, trying to beat trains across railroad crossings, passing other vehi- cles on narrow streets, starting buses before all passen- gers were seated or before all exiting passengers had cleared the bus, and, in one instance, causing a passenger to fall because of an abrupt start. Employees also com- plained that Kopack Jr. made disrespectful and demean- ing remarks to laborers who rode on the buses. Employ- ee passengers complained about these things directly to Kopack Jr. and to their foremen, who it turn passed on the complaints to Chandler or his predecessor. Chandler talked to Kopack Jr. about them during the 3-year period he was assistant superintendent, but never threat- ened to discipline Kopack Jr. if the complaints contin- ued. 2 However, Chandler also conveyed to Kopack Jr. I Although the testimony of Chandler and Kopack Jr. differs in minor detail as to this conversation, there is no dispute that Chandler did not tell Kopack Jr whether he was laid off or discharged, and did not give him any reason for his termination. In this connection, it is noted that, while Cowles testified that there was no difference between layoff and discharge as far as Respondent was concerned, Chandler, who discharged Kopack Jr, testified otherwise. 2 I have credited the testimony of several job foremen and stewards as well as Chandler's to this effect. I have not credited Kopack Jr's denial that he engaged in any of the practices attributed to him, that pas- sengers complained to him about them, or that Chandler spoke to him about them However, the continuation of these complaints over a long that Respondent was concerned that its employees be transported from the jobsites to their cars in time to avoid liability for overtime payments, even when it was necessary to exceed posted speed limits. In the summer of 1976, Kopack Jr. had an argument with a job foreman, the result of which Chandler told him that he was discharged for not following the fore- man's orders. However, Kopack Jr. pleaded for an op- portunity to be heard, and, after telling Chandler his ver- sion of the incident, Chandler rescinded the discharge. In October 1976, an Inland Steel representative wrote Respondent that Kopack Jr. had been observed going through a stop sign. Cowles reprimanded Kopack Jr. at the time and so informed Inland Steel.' 3 On November 15, 1976, an Inland Steel plant protection officer gave Kopack Jr. a ticket for driving 45 miles an hour in a 20- mile-an-hour zone, and Cowles again reprimanded Kopack Jr. On March 14, 1977, an Inland Steel plant protection officer gave Kopack Jr. another ticket for passing a bus while it was stopped for passengers to board or get off. Cowles again reprimanded Kopack Jr.'4 In January 1978, Inland Steel's assistant field force su- pervisor, Wisnewski, t observed Kopack Jr. driving a bus at excessive speed in the wrong direction on a one- way steeet on Inland Steel property. Wisnewski called Chandler and told him that, if he could not control his men, Wisnewski would. Wisnewski then called Cowles and told him that it was a terribly dangerous practice, and that, if his drivers could not read, he had better get new drivers. 6 Cowles and Chandler told Kopack Jr. of Wisnewski's complaint and that they expected him to act accordingly. Kopack Jr. tried to justify what he had done on the ground that the one-way signs had been changed recent- ly, and said that he had made a mistake and that it prob- ably would not happen again. 1 7 About a month later, Inland Steel plant protection offi- cer Snow telephoned Cowles to tell him he had observed Kopack Jr. speeding, and asked Cowles if he could do period of time, the absence of any effective disciplinary action against Kopack Jr., Respondent's reward of Kopack Jr. with premium pay, and its concern that employees be transported to their cars as quickly as pos- sible lead to the conclusion that the complaints were not treated seriously by Chandler or Kopack Jr. 1I Although Kopack Jr. denied that Cowles spoke to him about this incident, I have credited Cowles. whose testimony in this regard is cor- roborated by correspondence. " Although there is some difference between Cowles and Kopack Jr.'s testimony as to the content of the reprimand, even under Cowles' ver- sion, he did not threaten that Respondent would discipline Kopack Jr., but warned him only that, if Inland Steel became tired or "hardnosed," Kopack Jr. might have to bear the consequences. I5 Field force supervisors regulate the work of contractors on the Inland Steel premises. '6 Wisnewski did not testify, but the parties stipulated as to what he would have testified. In addition to the above, it was stipulated that he would have testified that he had observed Kopack Jr. and Respondent's foremen speeding on Inland Steel premises on other occasions before Jan- uary 1978, that he had talked to Cowles or Chandler about it, and that it was his normal practice to inform contractors orally about safety infrac- tions. 17 Although Cowles testified that Wisnewski told him he had come to his final warning to him, Wisnewski's stipulated testimony does not cor- roborate Cowles to that effect, and there is no testimony that Kopack Jr. was told that he was being given a final warning. VOGT-CONANT CO. 509 something to slow him down. Cowles later told Kopack Jr. that he had been observed speeding, and that it was something "that he couldn't run from."' 8 On February 23, Inland Steel plant protection officer Bell told Cowles that Kopack Jr. had been speeding and had run a stop sign. When Cowles mentioned the report to Kopack Jr., he said that he had seen Bell, but he thought he had come to a complete stop and changed gears. 9 On April 26, Officer Snow reported to Cowles that he had seen Kopack Jr. speeding. Cowles mentioned the report to Kopack Jr. and told him that he was going to have to slow down. On May 9, one of Inland Steel's field force engineers, Joe Ladd, made a further complaint to Cowles about Kopack Jr. as a result of which Cowles spoke to Kopack Jr. again.20 There is no evidence that on any of these occasions Cowles threatened that Respondent would discharge or otherwise discipline Kopack Jr. if he received further re- ports of driving infractions. However, according to Cowles and Chandler, on May 9, Cowles told Chandler that he had taken all the complaints about Kopack Jr. that he was going to, that he was spending too much of his time taking care of people that were getting into trouble, and that he was going to stop it. According to them, Cowles told Chandler to do what he had to do to get the matter cleared up. Thereafter, Respondent received no further complaints about Kopack Jr. However, according to Chandler, around June 1, he observed Kopack Jr. speeding on a back road on the Inland Steel premises. He testified that he spoke to Kopack Jr. at the time and told him it was the last time that he would talk to him about his speed- ing violations, that he had talked enough, that the next time he would be fired. Kopack Jr. conceded that Chandler spoke to him about speeding in June shortly before his discharge, but gave a different version. He testified that Chandler's father, who worked on the winch trucks as a helper to Kopack Jr., was present when Chandler told him that a mechanic who worked for another contractor had been fired for speeding. According to Kopack Jr., he respond- ed that the contractor in question did not have a steady mechanic at Inland Steel, but worked outside in the yard. He testified that he also said that he had not been speeding, and that Chandler could ask his father. He tes- tified that Chandler asked his father, and his father said nothing, ending the incident. Finally, Chandler testified that, on June 7, at or about 12:30 p.m., from a distance of 200 to 300 feet, he ob- served Kopack Jr. speeding in the winch truck and pass- ing two stop signs without stopping. According to Chan- IN Cowles so testified, and Respondent offered his calendar notes to corroborate him as to receipt of the call. Kopack Jr. denied that Cowles talked to him at this time about a speeding report from Snow. I credit Cowles that he received such a report and mentioned it to Kopack Jr. id I have again credited Cowles that he received such a report. 2o According to Cowles, the complaint concerned Kopack Jr.'s care- lessness with the winch truck and not obeying instructions. According to Chandler, Ladd complained that Kopack Jr. was speeding. The conflict in their testimony and the absence of testimony by Ladd leaves doubt as to the nature and seriousness of the complaint. dler, this incident was the "straw that broke the camel's back" and caused him to decide to discharged Kopack Jr. that day. Kopack Jr. denied that the incident oc- curred. F. Concluding Findings As the findings above indicate, the testimony in this case raised may issues of credibility. Deficiencies in the testimony on both sides give reason to believe that the truth often lies somewhere between the competing ver- sions. I have discredited the testimony of Kopack Sr. as to threats allegedly made to him by various management representatives, and have also discreditied most of Kopack Jr.'s denials relating to his work record. However, the testimony of Respondent's witnesses shows signs of exaggeration as well as more substantial defects. The testimony of the foremen and stewards as to Kopack Jr.'s driving habits over a period of years ap- peared to be exaggerated as to frequency and egregious- ness, and, in any event, from the fact that Respondent gave Kopack Jr. additional duties and pay and continued his increased pay after the additional duties ended, it is apparent that Cowles and Chandler never regarded these complaints as a serious impediment to Kopack Jr.'s con- tinued employment or value as an employee. Further, while Respondent brought forward a number of witnesses to attest to Kopack Jr.'s driving habits over the term of his employment, when it came to more criti- cal issues, such as the complaints from plant protection officers and Inland Steel engineers in 1978 and Kopack Sr.'s handling of his truck on June 6, Respondent did not call up Officers Snow or Bell, engineer Ladd, or the em- ployees present at the jobsite on June 6. Thus, in critical areas where independent corroboration was possible, Re- spondent relied solely on the testimony of Coffey, Cowles and Chandler, all supervisors identified with its interests in the outcome of this case. Moreover, conflicts between Cowles and Chandler as to the complaint by Inland Steel's engineer, Ladd, which allegedly led to Cowles' withdrawal from any attempt to protect Kopack Jr., and the conflict in their testimony as to the distinc- tion drawn by Respondent between layoff and discharge, raise a substantial question as to their credibility at criti- cal junctures. When one assesses their testimony as to the terminations of both Kopacks in the light of this back- ground, the conclusion is compelled that they cannot be credited. In the case of Kopack Sr., whatever cause for dissatis- faction he may have given, I am persuaded that such dis- satisfaction was not the cause of his layoff. It is undisput- ed that Chandler told him that he was laid off for lack of work, said nothing to him critical of his work perfor- mance, and answered affirmatively when Kopack Sr. asked if his work had been good. In his testimony, quoted above, Chandler equivocated and displayed obvi- ous discomfort when pressed to explain the relationship between the incident and the layoff. That testimony alone strongly indicates that Chandler did not give the true story of Kopack Sr.'s termination, and certainly not the whole story. VOGT-CONANT Co. 509 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, there is no corroboration for Chandler's claim that there was a lack of work which made it necessary to make a quick decision to lay off a driver late in the after- noon. To the contrary, the evidence shows that only the day before Respondent had added a truckdriver who drove steadily thereafter without driving the semi-trac- tor, and that Chandler anticipated increased work. More- over, despite Chandler's claim that Kopack Sr. was only laid off, and despite Respondent's past practice of recall- ing him from prior layoffs, when Respondent needed an- other driver in July, Respondent did not recall him. These considerations, coupled with the claimed coinci- dence that Kopack Jr. was terminated on the following day, convince me that the reasons advanced for Kopack Sr.'s layoff were not those stated by Chandler, and that, in fact, Respondent has no intention of reemploying Kopack Sr. and in effect discharged him. In the case of Kopack Jr., I have concluded that his denials that employees criticized his bus driving and su- pervision spoke to him about it from time to time cannot be credited. However, even from Chandler's and Cowles' testimony, it is clear that, before May 1978, Kopack Jr. was never warned that he would be dis- charged if complaints continued. I conclude that Respon- dent's criticisms were mild and pro forma, and that Re- spondent, by its instructions to Kopack Jr. and the driv- ing practices of its foremen, tacitly encouraged speeding in its own economic interest. That Respondent was not seriously concerned about Kopack Jr.'s driving is con- firmed by its continuation of Kopack Jr.'s premium pay after his extra duties ended, and its restoration and con- tinuation of the premium pay after he complained about losing it. Respondent's history of toleration of Kopack Jr.'s driving leads me to conclude further that Cowles' and Chandler's uncorroborated testimony as to alleged infractions after January 1978, and Chandler's June ob- servations, must be heavily discounted. Although it may have been Wisnewski's practice to make oral complaints, plant protection officers gave tickets to drivers and had given them to Kopack Jr. in the past. The fact that Snow and Bell telephoned and chose not to write tickets suggests that the subject of their calls was not considered to serious by them or Cowles. In the case of Ladd, the conflict in testimony between Cowles and Chandler leaves in doubt what the complaint was, if any. Finally, I cannot credit Chandler's testimony as to the final events leading up to Kopack Jr.'s discharge. After retaining Kopack Jr. despite continuing complaints from Inland Steel personnel and Respondent's employees, Chandler allegedly reacted first with a threat of dis- charge and then discharge based on his own observations and no outside complaints. Apart from the lack of cor- roboration of Chandler's final observation, it is undisput- ed that Chandler gave Kopack Jr. no reason for his ter- mination, and declined to respond when Kopack Jr. questioned him about it, in sharp contrast to Chandler's claims of having reprimanded Kopack Jr. on many previ- ous occasions for his driving infractions. The history of lenient and favored treatment of Kopack Jr., the lack of any corroboration that the al- leged "final straw" occurred, the sudden elimination of any role for Cowles, who had participated in all prior discussions of Kopack Jr., the alleged lack of knowledge by Cowles of the discharge and its cause even after the event, the failure to give Kopack Jr. any reason for his discharge, and the timing of Kopack Jr.'s termination in relations to his father's alleged layoff all persuade me that Chandler's testimony as to the cause of Kopack Jr.'s discharge is not credible, and that he was discharged for some other cause. Having concluded that the reasons advanced for the terminations were not true, I infer that the true reason was one which Respondent seeks to conceal, and the evi- dence in the record indicates that reason was Kopack Jr.'s persistence in pursuing his claim that Respondent's discontinuation of bus time payments to him violated the contract. To be sure, there is no evidence that Respon- dent had personal animus against Kopack Jr. before he started to pursue the bus time grievance, and even re- stored his premium pay at or about the time he raised the bus time issue. But that action came before Kopack Jr. displayed his persistence in pursuing the matter and before Union Business Agent Tyrka, in the presence of Cowles and Chandler, expressed outright hostility to Kopack Jr. and suggested that he quit. Even under the versions of Chandler and Cowles, it was virtually con- temporaneous with Tyrka's visit to Cowles' office that Cowles' and Chandler's attitude toward Kopack Jr. and treatment of him changed. There is reason in this case to believe that what emerged at the hearing was less than the complete story, particularly as to what passed be- tween Respondent and the Union after May 15. But there is enough to conclude that the discharge of Kopack Jr. resulted from a change in Respondent's atti- tude toward him as a result of his continued protests that discontinuation of bus time payments violated the collec- tive-bargaining agreement. As Kopack Jr.'s claim of con- tract violation was clearly not frivolous, 21 his protected concerted and union activity, and his termination violat- ed Section 8(a)(1) and (3) of the Act.22 In addition, given the timing of Kopack Sr.'s discharge and the pre- textual nature of the reasons given for it, I find that his discharge was for the same reason as Kopack Jr.'s and also violated Section 8(a)(1) and (3) of the Act.23 Final- ly, I find that Chandler's threat to Kopack Jr. that he would be discharged if he did not drop his protest violat- ed Section 8(a)(1) of the Act. v. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. 21 Contrary to Cowles' testimony, I have found that Respondent changed its policy with respect to bus time payments at the time Kopack Jr.'s protests began. The fact that Respondent had previously made such payments to him for the work he continued to perform alone establishes that his attempt to restore such payments were not frivolous. Moreover, the fact, as Bono testified, that Respondent later again changed its policy and resumed payment of bus time to those on consecutive 12-hour shifts indicates that Kopack Jr. may well have been right in his protest. 22 Interboro Contractors, Inc.. 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). 23 Jorgensen's Inn, 227 NLRB 1500, 1515 (1977). - -------- ------- VOGT-CONANT CO. 511 As I have found that Respondent unlawfully dis- charged Edward Kopack, Jr., I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges. I shall further recommend that Respondent be ordered to make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to each of them the amount they normally would have earned from June 6 and 7, 1978, respective- ly, until the date of Respondent's offers of reinstatement, less net earnings, to which shall be added interest, to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 651 (1977).24 Upon the basis of the above findings of fact and the entire record in this case, I make the following: 24 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Vogt-Conant Co. is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 142, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening an employee with discharge for con- tinuing to pursue his claim that the collective-bargaining agreement governing the terms and conditions of his em- ployment had been breached, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the Act. 4. By discharging Edward Kopack, Sr., and Edward Kopack, Jr., because Edward Kopack, Jr., complained that the collective-bargaining agreement governing the terms and conditions of his employment had been breached, Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] VOGT-CONANT Co. 511