Pacific Intermountain Express Co.

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PACIFIC INTERMOUNTAIN ExPREss COMPANY and GLENN D. SANDERS? INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CIIAUFFERS, WARE- HOUSEMEN & HELPERS OF AMERICA, OVER-THE-ROAD AND CITY TRANSFER DRIVERS, HELPERS, DOCKMEN & WAREHOUSEMEN LOCAL No. 41, AFL and GLENN D. SANDERS. Cases Nos. 17-CA-612 and 17-CB-85. September 30,1951 Decision and Order On November 25, 1953, Trial Examiner Robert L. Piper issued his Intermediate Report finding, as is set forth more fully in the copy of the Intermediate Report attached hereto, that neither of the Re- spondents had engaged in the unfair labor practices respectively charged to them by the complaint. He recommended, accordingly, that the complaint be dismissed. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs and both Respondents filed briefs in support of the Intermediate Report, which included a statement of objections to a subsidiary finding of the Trial Examiner. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. These rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in the case and for the reasons hereafter set forth, finds merit in the exceptions filed by the proponents of the complaint. Accordingly, the Board hereby adopts only so much of the Trial Examiner's findings of fact as are consistent with the opinion set forth below, and rejects those conclusions of the Trial Examiner which go to the substantive unfair labor practice allegations of the complaint, as well as the recom- mended dismissal of the complaint which flowed from such con- clusions. A. Preliminary statement As appears from the Intermediate Report, the complaint herein seeks primarily to test : (1) Whether the Respondent Company 1 ef- fected the discharge of Glenn Sanders on January 13,1953, and threat- ened Paul Dunbar with discharge on the same date, for reasons pro- scribed by Section 8 (a) (1), (3), or (4) of the Act; and (2) if so, whether, within the meaning of Section 8 (b) (2), the Respondent Union 2 "caused" or "attempted to cause" such discharge action. Stated in broad terms, the theory upon which this complaint was primarily litigated was that the Company discharged Sanders and 1 Hereinafter referred to merely as the Company. 2 Hereinafter referred to merely as the Union. 110 NLRB No. 14. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 97 threatened to discharge Dunbar, following the exertion of union pres- sures on sympathetic company officials, because these two employees played a prominent role in a "dissident" 3 employee movement which the Union found objectionable. This dissident movement was directed towards obtaining, through clearly protected activities which included the invocation of Board procedures, a change in the administration of certain contractual "seniority" provisions having an adverse effect on the work assignments of the dissidents. As an additional complemen- tary theory, the General Counsel also set out to establish the Com- pany's independent animus against Sanders and others of the dissident employee group. This theory has as its basis the argument that the dissidents' activities sought to disrupt the harmonious relations be- tween the Company and the Union, and had included action involving the Respondents in a Board complaint proceeding seeking to impose upon them back pay and other financial liabilities.4 The Trial Examiner found certain essential elements of so much of the General Counsel's theory as goes to the portion of the com- plaint involving Sanders to be supported by the evidence. Thus, he found ample-and largely undisputed-record evidence of : (a) San- ders' prominent leadership of the dissident employee movement; (b) Sanders' prominent role in the invocation of both intraunion rights of appeal to the Union's International body and of Board proce- dures, as a means of obtaining a favorable resolution of the "senior- ity" and other disputes of interest to the dissidents; (c) the openly and sometimes violently expressed animosity of the union leaders towards Sanders because of the nature and extent of his activities ; and (d) the Company's knowledge of the basis of the dissidents' dis- pute with the Union, and of Sanders' prominent role in t; dissident movement. He found also that although the Company sought to jus- tify Sanders' discharge on the basis of his alleged violation of posted speed limits while operating a company truck, the evidence did not tend to establish the factual validity of the speed violations charged to Sanders. However, the Trial Examiner found the General Counsel's case to be lacking in the following elements equally essential to establish a chain of proof supporting the complaint, namely, evidence either that the Union had exerted pressures upon the Company to effect Sanders' removal, or that the Company was concerned in or affected by San- ders' dissident activities or was otherwise interested in resolving the dispute between Sanders and the Union in the latter's favor. Ap- parently, in light of his conclusion as to the existence of such eviden- 3 The term "dissidents" is used to refer to the group of employees-all of whom were members of the Union-who objected to the assignment of work on the basis of a "seniority" rating predicated on the date they became members of the Union. 4 See Paccfic Intermountain Express Company, 107 NLRB 837. 338207-55-vol 110-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiary gap, he found no significance in the fact that the Company's discharge of Sanders followed by a few hours both the close of the Board hearing on the unfair labor practice complaint against the Company and the Union based upon their administration of the con- tractual seniority provisions and other acts,' and the union attorney's threats to Sanders during a temporary recess of the hearing on that day.' In testing the Trial Examiner's conclusions we note that, but for his subsidiary determination that, generally, the testimony of San- ders was not credible, the General Counsel's 8 (a) (3 ) "case" against the Company, at the very least, would be clearly sustainable. For Sanders testified that, on a number of occasions, which closely coin- cided with certain of the more important steps taken by Sanders or promoted by him, in the interest of the dissidents' position, company supervisory agents variously attempted to discourage his activities and to persuade him to transfer to another company terminal; and told him among other things, that the Company was under great union pressures to effect his discharge. For the various reasons hereafter set forth, we feel that Sanders' testimony should be credited. How- ever, because we are reluctant to disturb a Trial Examiner's credi- bility findings, we sought first to test the validity of his conclusions on a basis least disruptive of such findings. We are satisfied that either of these two alternative approaches to the record warrants sus- taining the complaint. We shall discuss first our analysis of the facts and issues presented without resort to so much of Sanders' testimony as attributes to com- pany agents the attempts above noted to discourage his dissident activity. ; B. The additional evidentiary support for the complaint allegations In general agreement with the position of the General Counsel, we believe that the record and the findings made in the earlier Pacific Intermountain case (in which the same Respondents were parties) may properly serve as a frame of reference for our consideration of the problems specifically presented here.' In that earlier case, the Board found, among other things, that the Company encouraged 5 See footnote 4, supra. BThe Trial Examiner also found that the statements of the union attorney on that occasion were not attributable to the Union . For reasons hereafter indicated, we do not agree. 'r Pacific Intermountain Express Company, supra, footnote 4. In view of the identity of the parties and the record showing herein of the connection between the prior proceed- ing and the instant one , there can be no question of the propriety of our judicial notice of facts established in the prior case. That proceeding, initiated before the events here forming the subject of the complaint occurred , and still pending at the time of their occur- rence, was disposed of by the cited Board decision on a date following the Trial Examiner's disposition of the instant case. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 99 membership in the Union at the expense of rights guaranteed employ- ees by the Act by agreeing to be bound, in the exercise of managerial powers relating to the employees' work relationships, by union "sen- iority" determinations.' The evidence upon which this finding rested included a contract, originally executed in 1949 and effective until January 1952, and a contract executed in January 1952 and effective throughout the entire period of time here material. Under the ear- lier contract, the Company granted the Union unqualified power to make "seniority" determinations affecting, among other things, the order of employees' work assignments. Under the later contract, the Company expressly qualified the Union's power by a provision re- quiring it to make "seniority" determinations without regard to the employees' membership or nonmembership in the Union, and thus ostensibly reserved a right to deal with employee complaints over the very kind of union "seniority" determinations about which the dissi- dent employee group was here concerned. In view of this provision and the statutory obligations of the Company on the previously liti- gated "seniority" issues, we consider as highly material to the instant case evidence, more fully detailed below, that the Company failed to take any action to investigate or resolve the legitimate complaints of its employees against the discriminatory effects of the "seniority" determinations on their job interests. The Intermediate Report makes reference to a number of extraor- dinary occurrences which reasonably should have provoked a dis- interested or impartial company having an arm's length relationship to the union representing its employees, into some action on behalf of the dissidents, even if it were not wholly aware of its statutory obli- gations so to do. In addition, the record describes a number of in- stances, noted in part by the Trial Examiner, that the dissident employees directly requested or invoked the Company's assistance, and that the Company either specifically referred these requests to the Union or regarded them with apparent indifference. The more im- pressive of the instances we have reference to and the extent of Sanders' role therein, appear from the following resume of the dis- sidents' activities-most of which were known to the Company. Among other things, the record discloses that the dissidents' at- tempts to obtain a correction of the "seniority" situation began with a protest, lodged by Sanders in behalf of the dissidents with Company Supervisor Lester Baker,' in November 1951. This occurred shortly 8 Member Murdock did not participate in the earlier case, and has since, in Minneapolis Star and Tribune Company, 109 NLRB 727, dissented from the holding that such a clause is a per se violation of the Act contrary to the principle of the earlier Firestone Tire & Rubber Company, 93 NLRB 981. Accordingly, to the extent that the instant case may rely upon the finding of a per se violation in the earlier case, he dissociates himself from such reliance. 9 Baker had served as a union steward before his promotion to the supervisory ranks. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after the Union directed that driving assignments from the "extra board" would thereafter be predicated on union membership "seniority" rather than on "rotation" of runs. Baker stated that the Company had no "control" over the matter and referred Sanders to the Union. Thereafter, and on the same date, Sanders, together with a group of approximately 30 drivers, went to the union offices to pro- test. Speaking on behalf of the employee group, Sanders stated the complaint to Local Union President Hayes and to their assistant union business agent, Stanley Clevenger. When the group received no satis- faction from that source, Sanders prepared a petition form soliciting employee signatures protesting the "seniority" change and seeking a reversal of work assignment methods to the nondiscriminatory "rota- tion" basis. This petition, posted on the part of the company bulletin board assigned to union-employee use, was removed after a number of signatures had been placed thereon, and a note was left in its place, purportedly signed by Union Steward Sam Smith stating that the sponsor or sponsors of the petition could obtain the same by calling for it at the union hall. Thereafter, Sanders went again to see Supervisor Baker, requesting information from him relative to the "seniority" matter so that he could prepare an appeal to the International officers of the Union. In the course of this discussion, Baker indicated to Sanders that he was aware of the "petition" episode detailed above. The above events, occurring within the first few weeks after the adoption of the disputed "seniority" definition, were followed by a series of actions, initiated by Sanders, to obtain the intervention of the Union's International officials in the matters concerning the dissident group. In preparing and submitting the appeal to the International, Sanders prepared various papers,10 circulated protest and appeal forms among the employees soliciting their signatures and support, talked extensively to International officers, and, at the latter's request,, formulated a written plan for the orderly return of the extra board to a "rotation" basis, as well as for what the dissidents believed would be a more equitable "vacation" plan." On or about February 15, Sanders posted this "plan" on the same bulletin board on which the. prior petition referred to above had been posted, soliciting employee signatures supporting the same. It was removed within 2 to 21/2 hours, after posting. When Sanders heard of the removal of this petition, he phoned Supervisor Baker promptly and asked him if the Company had taken it down. Baker told him that although he had seen the petition,. neither he nor any other company agent had removed it. He advised 10 In many instances , copies of the appeals were sent by Sanders to the Company u Employee choices of vacation dates were apparently also affected by the "seniority" definitions adopted by the Union. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 101 Sanders, however, that Sam Smith (the union steward) had phoned Baker a "few minutes," earlier, to ask whether Baker had posted the plan, that when Baker told him that "the drivers" had posted it, Smith told Baker in effect that "this is union business," and that the Union had not authorized the posting. Sanders then placed a long-distance call to International Union Officer Thirion seeking authority to repost the petitions. Thirion told him he did not wish to grant such authority over tie phone because "something might precipitate a riot," and that he would be coming there himself shortly and to "let the matter ride." In the next few days, and about February 20, Sanders phoned one Hudson, an official of the Central States Drivers Council-the union body responsible for negotiating the disputed agreement in behalf of a number of local unions, including the Respondent Union. Sanders complained to Hudson of the failure of the Council to hand down an official interpretation of the "seniority" clauses. When Hudson re- plied that this seemed to involve a question of "local autonomy," Sanders remarked that he regarded "autonomy" as meaning some- thing other than "license to commit all kinds of outrages against the members." On February 22, Sanders went to the union hall to take up with Hayes and Clevenger further complaints respecting the handling of "seniority" rosters, and other matters. He spoke to Local Union President Hayes and to Assistant Union Business Agent Clevenger, and after a few minutes of discussion, Clevenger assaulted Sanders, and "beat him up" to such an extent that Sanders required hospitaliza- tion. The assault was reported in the newspapers and, admittedly, its occurrence came to Supervisor Baker's attention. Within the next 2 weeks, Sanders obtained the opportunity to speak with the Company's director of employee relations, Schaefer, who was in Kansas City attempting to settle a citywide strike of drivers and dockworkers called by the Union. In the course of an inquiry posed by Sanders as to whether the drivers should pay dues directly to the Union since, because of the strike, there were no wages from which the Company could make the customary checkoff of such dues, Sanders ad- vised Schaefer that the "seniority" grievance was pending before the Union's Central States Drivers Council and that if the latter failed to make a resolution of the matter favorable to these aggrieved em- ployees, the employees would take that and several other issues to the National Labor Relations Board. On April 14, 1952, after all the foregoing activities failed to result in a correction of the discriminatory seniority policy upon the basis of which the Company continued to assign work from the extra board, Sanders, on behalf of other employees immediately affected by this policy, sought the advice of the Seventeenth Regional Office of the 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board and relayed this advice to the affected employees. This was followed by the filing of a number of individual charges-among which was that of Paul Dunbar-naming both the Company and the Union as Respondents and specifically attacking the "seniority" arrangement as discriminatory within the meaning of Section 8 (a) (3) and (1) of the Act, and the Union's causation of it as a violation of Section 8 (b) (2) and 8 (b) (1) (A). In the latter part of April 1952 (according to the testimony deemed credible by the, Trial Examiner) Sanders spoke to Driver-Supervisor Baker requesting that, when Baker met with other terminal managers, he investigate the possibility of Sanders' obtaining a transfer to one of the western terminals. According to Baker's testimony, Sanders requested the transfer because his wife was afraid he "might get killed or some- thing" if he remained in Kansas City. Because of the April 29 union action, described below, and for other reasons, however, Sanders later turned down a transfer offered by Baker sometime in early May. On April 29, 1952, the local union membership passed a resolution favoring the "seniority" definition Sanders was interested in obtain- ing, and in May 1952, the Union took steps returning the extra board to the nondiscriminatory "rotation" system of assigning "extra" runs so far as newly hired employees was concerned.12 In July 1952, the union majority canceled this prior action and reverted to the prior union membership "seniority" system. In August 1952, Sanders, Bradshaw, and Dunbar wrote letters to the Respondent Company, mailing copies thereof to the Company's executive vice president at their general offices in Oakland, California. In these letters the employees notified the Company that they would hold it accountable for all losses they suffered as a consequence of the change in the method of work assignments. Thus, in addition to seek- ing, through the Board's processes, a remedy for the discriminatory seniority policy adhered to by the Company and Union, several of the aggrieved employees endeavored to bring concerted pressure upon the Company, through notification of intent to enforce their claimed contract rights. In September 1952, as a result of a letter protesting conditions in the Kansas City terminal, written to the Company by Dunbar, two of the Company's officials, namely, Schaefer and Alamang, met with Dunbar and Sanders in Schaefer's room at the Town House Hotel in Kansas City, Kansas. It was admitted by the company agents that, in v The Board found in the first Pacific Intermountain decision, supra, footnote 4, that "although the union did adopt a new method of determining the seniority of transferees on April 21, 1952 [sic] it did not revise the seniority determinations previously made . . . but continued in effect the discriminatorily established seniority dates of all employees who had transferred to the Respondent Union before April 21, 1952." Dunbar was one of these employees. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 103 the course of the 1 to 11/2 hour discussion at this time, the question of seniority and the rotating work assignment policy was brought up." The picture with which we are thus presented is one in which the Com- pany referred to the union employee complaints on a matter falling within its managerial domain and deliberately accepted the discrimi- natory union "seniority" determinations in the face of knowledge that the Union not only failed and refused to deal fairly with the em- ployees' complaints, but had sought to coerce the employees into abandoning their efforts to enlist support for a correction of the situ- ation in their favor. We are satisfied, in these circumstances, that the Company's indifference to its employees' legitimate complaints, its reference of the same to the Union for ultimate disposition, and its ratification of the Union's treatment of same, evidences a company hostility towards the dissidents' activities and a predilection to act, with respect to such employees, in harmony with the Union's sugges- tions or desires. We come, then, to the events closely related in time to Sanders' dis- charge. The Board's complaint in the prior case issued on November 24, 1952. The immediate effect of such issuance was to serve the Com- pany with definite notice that as a result of its acceptance of the Union's dictates on the "seniority" issue and on other matters, it now ran the financial risk of a Board-directed back-pay and checkoff re- imbursement order, and the inconvenience of a Board-imposed pro- scription in its contractual relations with the Union. From the Union's point of view, the complaint served notice upon it of the financial risk of back-pay liability and of its loss of the use of its long- enjoyed "seniority" powers as a union-security device. In these cir- cumstances, of course, it is clear that, apart from other effects the ac- tivities of the dissidents may have had upon the day-to-day relation- ships of the Company, the Union, and the employees, such activities, culminating as they did, in the instigation of the Board proceedings, both seriously and. directly "affected" and "concerned" the Company and the Union and placed both in a mutually disadvantageous posi- tion. So far as the Union was concerned, moreover, there is evidence of other legal proceedings directly affecting its agent, Stanley Clevenger, predicated upon the latter's efforts to discourage Sanders. Thus, it appears that by the date of the Board complaint, Sanders had initi- ated both a criminal and civil proceeding in the State courts in an attempt to obtain redress for the assault Clevenger committed upon 11 The Trial Examiner made no findings with respect to the discussion of the "seniority" assignment with Schaefer. The General Counsel points out in the brief, however, that the seniority matter was in fact discussed , as Sanders stated. The significance is that the Company was thus specifically advised of the continuing efforts of Sanders and Dunbar to obtain a change of the system, and that the Company failed to take any action on the matter. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him in February. As a matter of coincidence, the criminal proceed- ing came to trial on December 18, during the course of litigation of the Board proceeding, and resulted in the State court's imposition of a $100 fine against Clevenger upon the latter's plea through his attor- ney, Cliff Langsdale, of "guilty" to common assault. The relevance here of the risks to which the pursuit by Sanders and other dissident employees of legal processes thus subjected the Com- pany and the Union is that, appraised in the background above de- scribed, they provide the sole record basis for rationalizing the threats directed to Sanders by Union Attorney Langsdale in the course of the Board hearing, and for the other serious events affecting Sanders' employment in which Baker and Lohrey participated on the evening following the close of the Board's hearing. For, so far as the record shows, neither Langsdale, who acted as the Union's attorney at such trial, nor Baker and Lohrey, the supervisory agents immediately re- sponsible for Sanders' removal, entertained any personal animus against Sanders for reasons outside the scope of this proceeding, and which might otherwise account for their treatment of Sanders on January 13, in the manner summarized below. As is set forth more fully in the Intermediate Report, the known sequence of the events of January 12 to 13 affecting Sanders, and finally culminating in his discharge, began with the extraordinary exchange during a temporary recess in the hearing, between Langs- dale on the one side, and the General Counsel's representative and Sanders on the other, in the presence of Dunbar and the company attorney.14 According to the testimony of a witness to the exchange whom we can regard as wholly disinterested namely, Mrs. Fassig (the General Counsel's representative) the exchange was provoked by a sarcastic remark of Langsdale to her concerning her reliance upon Sanders for information relative to evidentiary matter she wished to produce in the trial. Mrs. Fassig defended her position and that of Sanders by responding that Sanders. was an "employee and a member of the Union," that he thus "had every right to be present" and that she had "every right" to rely upon him for assist- ance. To this Langsdale replied, "He may be now, but how long will he be." At this point, when Sanders interjected with an inquiry as to whether Langsdale were threatening him, the two men engaged in a bitter verbal altercation during the course of which Langsdale told Sanders that if he (Langsdale) were "running the thing, Sanders would be thrown out in the alley." 14 Unlike the Trial Examiner , we believe that the Union is clearly chargeable with the threatening remarks of Langsdale , its attorney , on the occasion here in question , whether or not it specifically authorized or ratified the remarks For it is plain that Langsdale, in addressing Mrs Fassig and Sanders on this occasion , was clearly speaking in his role as the Union's attorney , that his remarks fell within the apparent scope of this authority as the Union's representative, and were consistent with, and in fact expressive of, the Union's previously displayed animus against Sanders PACIFIC INTERMOUNTAIN EXPRESS COMPANY 105 The hearing was concluded shortly after this exchange, and Sanders and Dunbar went to their respective residences. At about 6:30 on the evening the Board hearing closed, the com- pany dispatcher phoned Sanders and Dunbar, respectively, at their homes, and informed them they were scheduled for St. Louis runs. According to custom, when such a call was made, the driver was ex- pected to report 1 hour after the dispatcher's call, but the driver was allowed a maximum of 2 hours on request. Both reported to the terminal at about 8 p. m. At 7 p. m. Company Supervisors Lohrey and Baker left Kansas City for St. Louis together in Baker's private car. Both testified that the trip was for company business reasons unrelated to Sanders and Dunbar, and that, although they could have found out before departing that Sanders and Dunbar were driving company equipment to St. Louis on that evening, they did not do so and left completely unaware of the dispatch arrangements.15 As appears more fully in the Intermediate Report both Lohrey and Baker testified that about 1 or 2 a. m., en route to St. Louis, they observed the vehicles operated by Sanders and Dunbar on the road (without knowing who was driving them) and, as was customary supervisory practice, followed them to check the manner of their operation. Both testified that they observed Sanders driving 10 to 20 miles per hour in excess of posted speed limits at 3 different points on that route, that they observed Dunbar speeding at 2 different points. Upon arrival at St. Louis, Baker and Lohrey, both of whom claimed that they discovered for the first time that Sanders and Dun- bar were the drivers of the vehicles they had observed, waited for Sanders and Dunbar and summarily disciplined the two for speeding. As Dunbar had not been "warned" of a speeding violation within the previous 9 months, he was not discharged. Instead the Company issued to him a formal "warning" letter. Because Sanders had been formally "warned" of a speeding violation some 3 months before, he was summarily discharged, and sent back to Kansas City. Both Sanders and Dunbar maintained at the time of the Com- pany's accusation, and at all the relevant times, that they were not speeding on any of the occasions relied upon by the Company. As noted in the Intermediate Report, Sanders subsequently filed a for- mal grievance through union channels protesting the discharge, and raising the issue which was fully litigated here, namely the truth of the speeding accusation leveled at him. In handling the grievance, however, the Union assigned Clevenger, the man who had assaulted Sanders, to present Sanders' case. Because Sanders felt Clevenger 15 Both Lohrey and Baker had participated in the Board proceedings in which Sanders and Dunbar had figured. Both were also admittedly fully aware of Sanders' activities on the "seniority" matter. Moreover, as noted above, Baker had served as the Local Union's steward before he was promoted to supervisor. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not represent him fairly he "gave up," more or less, and failed to present himself at the grievance "trial," although he was entitled to appear and was so notified. The grievance panel sustained the Company's action following Clevenger's presentation of the Union's case on the basis of an acceptance of the truth of the facts presented by the Company as to Sanders' speeding excesses, and an argument that the punishment was disproportionate to the offense. This pres- entation by the Union occurred in the face of Sanders having ad- vised the union agents that his defense to the discharge rested on the alleged untruth of the speeding charge, and that the evidence he sought to adduce in corroboration of his claim consisted of the tachograph chart made on his vehicle on the night in question.16 The tachograph chart in question was an automatically marked record made by a Company-installed tachometer device with which Sanders' vehicle was equipped. This "tachograph" chart, adduced in evidence here," provided in our view, the only clear objective basis for testing which of the conflicting testimonial versions-each of which was given by interested parties-most accurately depicted what probably occurred. Careful examination of this chart in light of the explanatory material in the record as to the markings it con- tains,18 establishes plainly, as the Trial Examiner found, that the charge of Company Agents Baker and Lohrey that Sanders was "speeding" on January 13 was wholly false as to 2 of the 3 instances upon which they allegedly clocked Sanders' speed at a rate exceeding the posted limits. Although, as the Trial Examiner correctly notes, the tachograph markings in the third instance of alleged "speeding"- that involving Sanders' operation of the truck through the less than 1-mile zone of High Hill-are so minute that it is difficult to draw definitive conclusions from such markings alone, we are of the view that the objectively corroborated truth of Sanders' testimony as to his speed through Boonville and St. Charles warrants resolving in 16 This tachometer device In Dunbar's vehicle was not operating 17 Like the Trial Examiner , we find no merit in the joint objections of the Union and the Company to the Board's reliance upon the tachograph which was made by the tachom- eter device in Sanders ' vehicle on January 12-13. These objections , which do not chal- lenge the authenticity of the tachograph , are based upon alleged doubts as to whether the speed markings , made by a stylus which fluctuates sharply when gears are shifted, can accurately establish exactly at what speed the vehicle was being driven at a precise given location . In support of the contention that the parties did not regard such tachograph as reliable , union witnesses testified that, by tacit employer-union agreement, use of tachographs during grievance hearings had been discontinued during the past few years in situations involving alleged "speed " violations . Whether of not this is true, it could not affect the admissibility of tachographs in Board proceedings , nor operate to counteract the evidentiary value of such markings contained thereon as are clear, As noted above, we are satisfied from the record as a whole, that the Sanders tachograph of January 12-13, clearly establishes the rate of his speed in 2 of the 3 locations here in issue 11 This included documentary material prepared by the company manufacturing the device, written statements issued by the Company to its employees explaining the ways In which the device could be used to the employees ' benefit, and testimony by Sanders and others as to the operation of the tachometer. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 107 his favor all doubts as to the truth of his testimony regarding his operation of the truck through High Hill. We find, therefore, that Sanders was not in fact exceeding the posted speed limits in any 1 of the 3 instances the Company relied upon to justify his discharge. As Dunbar was following Sanders, and as his testimony is corrobo- rated in large part by Sanders' clearly credible testimony, we find that Dunbar was not in fact exceeding the speed limits on the two occasions the Company relied upon in issuing a warning letter to him. In view of the improbability that Baker and Lohrey could have con- currently committed a "good-faith" mistake five successive times in the course of an evening in their observation of the vehicles Sanders and Dunbar were operating, we are satisfied, also, that Baker and Lohrey were well aware that the speeding violation charges they attributed to Sanders and Dunbar had no foundation in fact.19 We are, of course, mindful of the fact that Baker and Lohrey both testified that they had no knowledge, until they arrived at St. Louis, that Sanders and Dunbar were the operators of the vehicles they had ob- served to be speeding. If this testimony be accepted as true, it does tend to negate the effect of inferences to be drawn from the evidence establishing that Dunbar and Sanders were not in fact speeding. However, in view of evidence showing that Baker and Lohrey did not commit "good-faith" mistakes in clocking the speed of the vehicles operated by Sanders and Dunbar, we are unable to accept at face value their disclaimers of specific knowledge as to who they were following. Once we discount the credibility of Baker's and Lohrey' s denials on these material points, every other record factor available is con- sistent with no premise other than that Baker and Lohrey deliberately fabricated the speeding charges against Sanders and Dunbar as part of a calculated design to effect the removal of one or both. Among other things, the record shows that Baker and/or Lohrey could have found out from company records officially available to them, precisely what drivers would be assigned to St. Louis "runs" that evening, ex- actly what numbers the company vehicles they would be driving would bear, and approximately what time the two men might be expected to leave. Indeed, the record further shows that, in his supervisory capacity, Baker could have arranged for both Sanders and Dunbar to be dispatched to St. Louis at a specific time that night, and could have easily discovered in advance of departure whether or not one or both were in fact going to actually take the "runs" assigned them. 10 Baker and Lohrey allegedly "clocked" Sanders ' speed at St. Charles, Boonville, and High Hill, and Dunbar's speed at St. Charles and Jonesburg . On examination by the General Counsel, both testified that the speedometer of their car had been checked for accuracy 4 days before, that it was registering 6 miles too fast, and that the 6 -mile allow- ance was made in clocking Sanders-Dunbar's speed. Moreover, both Baker and Lohrey allegedly followed several other vehicles that evening, to observe the employees ' manner of operation . They claimed they found no defaults in any but the ones here in question. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whether or not Baker's and/or Lohrey's St. Louis trip was taken for the precise purpose of following Sanders, or whether the two men intended to leave for St. Louis in any event, is not too material. For we are satisfied, on the basis of all the evidence, that Baker and Lohrey knew well that the vehicles they were following were those that Sanders and Dunbar were operating. One further aspect of the Company's "defense" should be noted. The Company contended, and the Trial Examiner agreed, that the Company's failure to discharge Dunbar on April 7, 1953, when he became involved in a serious accident while operating a company vehicle, indicated that the Company's issuance of a warning letter to Dunbar on January 14 could not have been discriminatorily mo- tivated. We do not so construe the Company's April 7 action. For we agree with the General Counsel's argument as to the effect of the undisputed evidence that the Company reimbursed Dunbar for the several days of time elapsing between the accident of April 7, 1953, and the next time he went out on a run. This evidence, we believe, warrants_a conclusion that Dunbar was not at fault in that accident and therefore was entitled to be reimbursed for loss of earnings re- sulting from being improperly grounded by Supervisor Fleming. Further, we cannot construe Dunbar's complete exoneration by the Company of any fault in the accident in which two people were killed, as further corroboration of his opinion that the Company was not trying to entrap Dunbar and looking for an excuse to fire him. The Company's action in discriminatorily issuing a warning letter falsely alleging speeding, is not incompatible with its subsequent action in completely exonerating and clearing Dunbar of any fault in a serious accident in which two people were killed, and for which the Company would have incurred a tremendous financial liability if Dunbar had been at fault. We find, therefore, that the Company's action in con- nection with the two subsequent accidents in which Dunbar was in- volved cannot properly be interpreted as probative evidence support- ing the Company's contentions on the issue of the purport of its January 14, 1953, warning letter. To conclude, we believe it reasonably inferable on the basis of all the foregoing circumstances, that the close interrelationship between the litigation of the dissidents' complaints against the Company and the Union before the Board, on the one hand, and the Company's dis- ciplinary action against Sanders and Dunbar, on the other, was not purely accidental. Indeed, we are unable to account for the Com- pany's extraordinary action on any basis other than that it reflected an action taken by the Company in light of its knowledge that the Union desired to rid its ranks of the dissidents, and more particularly its lead- ers, and of the mutual concern of the two Respondents with the detri- mental effect of the dissidents' activities (and especially their invoca- PACIFIC INTERMOUNTAIN EXPRESS COMPANY 109 tion of Board processes) upon their mutual financial and other inter- ests. We hold, accordingly, that the Company discharged Sanders, and took disciplinary action against Dunbar, in violation of Section 8 (a) (1), (3), and (4) of the Act because of their engagement in pro- tected concerted activities (including the invocation of Board proc- esses) which were objectionable to the Union and therefore of direct concern to the Company, thereby encouraging membership in and un- questioning loyalty to the policies of the Union, and discouraging the invocation of Board procedures.20 We find further, on the basis of the facts showing the dominant role played by the Union in matters relating to the Company's employer- employee relationships, Clevenger's assault on Sanders and Langs- dale's threats to him because of his role in the affairs of the dissidents, the time relationship between the Union's threats and the Company's "framing" of a discharge case against Sanders and Dunbar, and the Union's handling of Sanders' discharge grievance, that the Union caused or attempted to cause the Company to discharge Sanders and discipline Dunbar for their engagement in the activities the Union re- garded as objectionable, thereby violating Section 8 (b) (2) and 8 (b) (1) (A) of the Act. While we have reached the above conclusions supporting the com- plaint without resort to Sanders' testimony as to the statements made to him by company agents at various times before the discharge, we indicated initially that, unlike the Trial Examiner, we accepted Sanders' testimony regarding his conversations with company agents as credible. The difficulty we have in accepting the Trial Examiner's credibility resolutions in favor of the company witnesses on these matters stems, in part, from the following considerations. Among other things, there is an obvious inconsistency between the Trial Ex- aminer's finding that the testimonial version of Baker and Lohrev as to the operation by Sanders of the truck on January 12 at excessive speed was proven false by resort to evidence not subject to the pitfalls of human motivations-namely the tachograph chart-and his holding that, on all other instances material to the issues here, and not directly involving as serious an issue as the immediate basis for the Company's discharge action, Baker and Lohrey were telling the truth. Converse- ly, it seems highly probable in light of the nature of the Company's relationship to the Union that the statements attributed to company agents by Sanders were in fact made by them. Moreover, on review of the record, we have found that many of the reasons given by the Trial Examiner for finding Sanders' versions of his conversations with company agents to be untrue, were either unpersuasive or stemmed from an erroneous factual premise. 20 Cf. Roadway Express, Inc., 108 NLRB 874. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, as is set forth from the Intermediate Report, Sanders claimed that he first had a conversation with Baker on March 6, 1952, in which he spoke to Baker about the situation concerning the matters of inter- est to the dissidents, of his fears concerning possible union attempts to effect his removal, and of his desire that if such attempts were made, he would appreciate the Company's arrangement of a transfer for him to another terminal. Sanders further testified that on April 29,1952- a date preceding by a few days a pending meeting of terminal man- agers in Denver-Baker arranged for a private meeting with Sanders, and told him, among other things, that Sanders' fears of possible ex- ertion of union pressures to effect Sanders' removal were justified; that, accordingly, he suggested that Sanders would indeed be better off to transfer to another terminal; and that Sanders rejected the suggestion for the asserted reason that Sanders' group had won the fight about seniority through a unanimous vote of the local union members, and therefore he did not wish to risk his seniority by transferring. Baker testified that the first conversation he had with Sanders in which a transfer was mentioned was on April 29, at which time, according to Baker, Sanders stated that he sought a transfer because his wife "was afraid he might get killed or something," and Baker merely promised to explore the transfer possibilities. In crediting Baker's testimony, the Trial Examiner relied heavily upon the "discrepancy" between Sanders' reference to the "unanimous vote" of the Union in favor of the dissidents and the fact that "the con= versation he had with Baker occurred on the afternoon of April 29 before the meeting at which the extra board was returned to a rota- tion basis." The undisputed evidence shows, however, that the union meeting in question was conducted in 2 sessions-1 held on April 28, and the other on April 29-and that, the vote on the extra board rota- tion basis at both meetings was indeed unanimous. It is not unlikely, therefore, that Sanders did in fact tell Baker he would not now accept a transfer in view of the favorable reaction of the union members to the seniority position of the dissidents. Moreover, Baker's testimony that Sanders' request for a transfer was based on his wife's fear that "he might get killed or something," tends, in our view, to corroborate San- ders' dating of the first conversation with Baker referring to a transfer as March 6. For this was the first day Sanders attempted to report to work after the beating he suffered on February 23 21 at the hands of Union Agent Stanley Clevenger. It seems to us much more plausible that Sanders would have referred to his wife's fears that he "might get killed or something" on March 6-soon after he was assaulted- than that he would have mentioned such a matter on a date when it appeared that the dissidents would succeed in obtaining a union mem- n A citywide strike of the drivers and dockworkers in Kansas City, called by the Union, was begun on March 6. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 111 ber vote in favor of their position. Another reason for discrediting Sanders which the Trial Examiner notes is the fact that Sanders failed to mention to the union agents and to company officials other than Baker with whom he had further discussions on what effect a transfer would have on his seniority, that Baker had stated that the Union was exerting pressures upon the Company to effect his removal. The Trial Examiner felt that if Baker had made the statements Sanders attrib- uted to him, Sanders would not have hesitated to mention this to the union agents. Assuming, however, that the March 6 and April 29 conversations were in the form related by Sanders, Sanders' failure to say anything concerning Baker's statements is highly consistent with the remainder of his testimony to the effect that his conversation with Baker on the transfers was confidential in nature and that Baker had cautioned him that he would deny any mention of union pressures if Sanders were to repeat Baker's statements. Upon the clear preponderance of all the relevant evidence including the fact that, on the one occasion provided by the record where the truth or falsity of conflicts between material portions of Baker's and Lohrey's testimony and those of Sanders could be objectively tested'22 the former were proven false, we are persuaded that the Trial Ex- aminer's resolution of credibility was incorrect and that Sanders' ver- sions of his statements between himself and company agents on the subject of transferring were more believable, and should be credited.23 We find, upon*the basis of Sanders' testimony that, at various times here material, company agents sought unsuccessfully to persuade San- ders to transfer to another terminal, because of his prominent engage- ment in protected concerted activities deemed objectionable to the Union. The relevance of this evidence to the issues posed by the com- plaint and the support it furnishes theref or is obvious. THE REMEDY In view of the foregoing findings, and in order to effectuate the pol- icies of the Act, we shall issue the usual order directing each of the Respondents to cease and desist from the unfair labor practices re- spectively chargeable to each, and to jointly and severally make San- ders whole for loss of earnings suffered as a result of the Company's discharge action of January 13, in the manner set forth below. Fur- ther we shall require the Company to reinstate Sanders to the position he would have had but for the discrimination committed against him, or to one substantially equivalent thereto, and require the Union to notify Sanders and the Company, in writing, that it has no objection to Sanders' reinstatement by the Company. We shall also direct the 22 Viz, by reference to the tachograph chart. 0 Standard Dry Wall Products, 91 NLRB 544, 545, enfd. 188 F. 2d 362 (C. A. 3). 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company to remove from its official personnel records the warning letter dated January 14, 1953, addressed to Dunbar. The joint and several liability of the Respondents to make Sanders whole for any loss of earning suffered by reason of the discrimination against him shall date from the date of his discharge, shall exclude the period between the date of the Intermediate Report and the date of this Decision and Order, and shall terminate (a) in the Company's case, upon its offer of reinstatement of Sanders in accord with the provisions of our Order, and (b) in the Union's case, 5 days after it gives the Company and Sanders written notice that it has no objection to Sanders' reinstatement by the Company.14 In either case back pay shall be computed in a manner consistent with the Board's policy as set forth in F. W. Woolworth Company, 90 NLRB 289. Order Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National La- bor Relations Board hereby orders that : 1. The Respondent, Pacific Intermountain Express Company, its officers, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Discouraging its employees from invoking Board processes or from encouraging membership in the Respondent Union, or in any other labor organization of its employees, by discharging or threaten- ing to discharge them or by discriminating against them in any other manner in regard to their hire or tenure of employment or any term or condition of their employment, except to the extent permitted by Sec- tion 8 (a) (3) of the Act. (2) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act : (1) Offer Glenn D. Sanders immediate and full reinstatement to his former or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (2) Remove from its official personnel records all copies of the warning letter issued by it on January 14, 1953, to Paul Dunbar. (3) Upon request make available to the National Labor Relations Board or its agents, for examination and copying, all payroll rec- 24 See Local Union 595 , International Association of Bridge , Structural and Ornamental Iron Workers, AFL (R. Clinton Construction Company ), 109 NLRB 73. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 113 ords, social-security payment records, timecards, personnel records and reports, and all other records necessary to an analysis of the amount of back pay due in accordance with this Order. (c) Post at its terminal in Kansas City, Missouri, copies of the no- tice attached marked "Appendix A." 25 Copies of the notice, to be furnished by the Regional Director of the Seventeenth Region as the agent of the Board, shall be posted by the Respondent Company im- mediately upon their receipt, after being duly signed by an official rep- resentative of the Company. When posted, they shall remain posted for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to in- sure that these notices are not altered, defaced, or covered by any other material. (1) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order what steps it has taken to comply herewith. 2. The Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-the-Road and City Transfer Drivers, Helpers, Dockmen t- Warehousemen Local No. 41, AFL, its officers, representatives, agents, successors, and assigns, shall : (a) Cease and desist from : (1) Causing or attempting to cause the Respondent Company, its officers, agents, successors, or assigns, to discriminate against em- ployees in violation of Section 8 (a) (3) of the Act. (2) In any other manner restraining or coercing employees of the Respondent Company in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. (b) Take the following affirmative action which the Board finds will effectuate the policies of the Act: (1) Notify Glenn D. Sanders and the Company immediately in writing, that it has no objection to Sanders' reinstatement, without prejudice to his seniority or other rights and privileges. (2) Post at its business offices and meeting halls in Kansas City, Missouri, copies of the notice attached marked Appendix B." 26 Copies of the notice, to be furnished by the Regional Director of the Seventeenth Region as the agent of the Board, shall be posted by the =6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " 4° See footnote 25, supra. 338207-55-vol. 110-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union immediately upon their receipt, after being duly signed by an official representative of the Union. When posted', they shall be maintained by it for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Union to inure that these notices are not altered, defaced, or covered by any other material. (3) Mail signed copies of the notice attached to this Report marked "Appendix B" to the Regional Director of the Seventeenth Region, for posting, the Respondent Company willing, at the office and places of business of the Respondent Company, in the places where notices to employees are customarily posted. Copies of the notice to be fur- nished by the Regional Director of the Seventeenth Region as the agent of the Board, shall be returned forthwith to the Regional Di- rector after they have been signed by an official representative of the Union, for such posting. (4) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 5. The Respondents, Pacific Intermountain Express Company, its officers, agents, successors, and assigns, and International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-the-Road and City Transfer Drivers, Helpers, Dockmen _& Warehousemen Local No. 41, AFL, its officers, agents, successors, and assigns, shall jointly and severally, and in the manner set forth in the section of this Decision and Order entitled "The Remedy," make,whole Glenn D. Sanders for any loss of pay he may have suffered because of the discrimination against him. CHAIRii1AN FARMER took no part in the consideration of the above Decision and Order. Appendix A No'riCE To ALL EMPLOY EES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL rro'r discourage our employees from invoking Board processes, or encourage membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-the-Road and City Transfer Drivers, Helpers, Dockmen & Warehousemen Local No. 41, AFL, or in any other labor organization of our employees or by discharging or threat- ening to discharge all of them or discriminating against them in any other manner in regard to their hire or tenure of employment. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 115 or any term or condition of their employment, except to the ex- tent permitted by Section 8 (a) (3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organ- ization as a condition of employment as authorized by Section 8 ,(a) - (3) of the Act. WE WILL make Glenn 1). Sanders whole for any loss of pay lie, may have suffered by reason of the discrimination practices against him, and Will remove from our official personnel records,, relating to Pau] Dunbar, all copies of the warning letter issued to him January 14, 1953. All our employees are free to become, remain, or to refrain from becoming or remaining members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act. PACTFTC INTERMOUNTAIN EXPRESS COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date of post- ing, and must not be altered, defaced, or covered by any other material- Appendix B NOTICE To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREITOUSEMEN & HELPERS OF AMERICA, OVER- THE -ROAD AND CITY TRANSFER DRIVERS, HELPERS, DOCKMEN & WniiEITOISEMEN LOCAL No. 41, AFL Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, We hereby notify you that : WE WILL NOT cause or attempt to cause Pacific Intermountain Express Company, its officers, agents, successors, or assigns, to, discriminate against its employees within the meaning of Sec- tion 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees, of the above Company, its successors or assigns, in the exercise of `tlie nights guaranteed in Section 7 of the Act, except to the ex- tent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8 (a) (3) of the Act, as amended- 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make Glenn D. Sanders whole for any loss of pay suf- fered because of the discrimination practiced against him. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, OVER-THE-ROAD AND CITY TRANS- FER DRIVERS, HELPERS, DOCKMEN & WARE- HOUSEMEN, LOCAL No. 41, AFL, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date of post- ing, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Charges having been duly filed and served, a complaint and notice of hearing there- on having been issued and served by the General Counsel of the National Labor Relations Board, and answers having been duly filed by Pacific Intermountain Express Company (hereinafter called the Company) and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Over-the-Read and City Transfer Drivers, Helpers, Dockmen & Warehousemen, Local No. 41, AFL (hereinafter called the Union and the Company and the Union being hereinafter col- lectively called Respondents), a hearing involving allegations of unfair labor prac- tices in violation of Section 8 (a) (1), (3), and (4) and 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended (hereinafter called the Act), 61 Stat. 136, was held in Kansas City, Missouri, from May 18 to May 29, 1953, inclusive, before the duly designated Trial Examiner. In substance the complaint alleges and the answers deny that (1) the Company discharged Glenn D. Sanders, and the Union attempted to cause and did cause the Company to do so, because he engaged in concerted activities with other employees of the Company, including aid and assistance to the charging parties and the General Counsel in a previous unfair labor practice case involving Respondents, at which case Sanders was present for the purpose of testifying as a witness for the General Counsel, and (2) the Company threatened to discharge Paul Dunbar because he engaged in concerted activities with other employees of the Company, filed charges and gave testimony in the previous case involving Respondents, and for the further purpose of intimidating and discouraging him from testifying in the present case. At the hearing all parties were represented by counsel, were afforded full gpportu- nity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. Counsel waived argument. Briefs from the Company and from the Union have been received and considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The parties stipulated that the Company is a Nevada corporation which maintains its general offices in Oakland , California, and has terminals in California, Utah, Nevada, Idaho , Missouri, Colorado, and Illinois . The Company, operating as a motor freight carrier in the above -named and other States under the authority granted by the regulatory commissions of the various States and by the Interstate Commerce Commission, is engaged principally in the transportation of commodities in interstate and foreign commerce . It does an annual business in excess of $12,000,000. Its Kansas City, Missouri, terminal is the only one involved in the instant proceeding. The Company admits, and I find, that it is engaged in commerce within the meaning of the Act. PACIFIC INTERMOUNTAIN EXPRESS COMPANY 117 II. THE ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Chronology of events Briefly,-the issues are whether the Union caused the Company to discharge Sanders because of his concerted activities, including assisting the General Counsel in the presentation of a previous unfair labor practice case, whether the Company dis- charged Sanders because of such concerted activities, and whether the Company threatened to discharge Dunbar because of his concerted activities, because he filed charges, gave aid and assistance and testified in the previous case, or to intimidate him from testifying on behalf of Sanders in the present case. Sanders was hired by the Company as a driver in August 1951. As an interstate motor carrier, the Company maintained a number of regularly scheduled runs, which were bid for and assigned to its drivers upon the basis of seniority. In order to handle its other runs, the Company maintained an extra board of drivers who were not assigned to the regularly scheduled runs. Assignment of the other runs from this board was made upon a rotation or "first in, first out" basis for a number of years before Sanders was employed. Assignment was continued on that basis until Novem- ber 1951. Under the terms of the contract in effect in 1951, between the Company and the union as the result of collective bargaining, as well as the successor contract entered into in 1952, and in effect at the time of the hearing, the Union had com- plete control and determination of all questions of seniority. In November 1951, the Union decided to have the extra board work assigned on the basis of seniority rather than rotation, and it placed notice to that effect upon the bulletin board of the Company. Under the seniority and work assignment provisions of the contract, the Union was entitled to make that decision. At or about the same time the Union posted upon the same bulletin board a seniority roster of the em- ployees. The Union determined the seniority of some of the employees upon the basis of when they became members of the Union, or their transfers from other locals were completed, rather than upon the basis of the date of their employment by the Company. When the employees were notified of the decision to change the assignment of extra work from a rotation to a seniority basis, Sanders, Dunbar, and a number of other drivers began a series of concerted activities designed to change that decision of the Union and to have the extra board returned to a rotation basis. This same group was also actively opposed to the Union's deciding seniority upon the basis of the time of entrance into the Union rather than the time when employ- ment began. In addition to these complaints, this group had other complaints con- cerning certain monetary assessments made by the Union upon its members. The record contains voluminous evidence concerning the concerted activities engaged in by this group within the Union. It is unnecessary to review herein in detail these activities. Suffice it to say that they were both strenuous and protracted, and were well known by both the Union and the Company. Actually, because of the provi- sions of the contract, the concerted activities of the group led by Sanders and Dun- bar were all within the Union and designed to change some of its policies. However, because of the voluminous correspondence exchanged between Sanders and others of his group and the Company, the Company was aware of the group's concerted activities within the Union almost from their inception. Numerous petitions with the Union were filed, meetings were held, and many oral and written protests were made to both the Union and the Company over the change in the method of assigning the extra work and the seniority roster. The record amply demonstrates that at each step of these activities, the group made certain that its position was known by both the Union and the Company. The record establishes beyond doubt that certain officials of the Union were opposed to the concerted activities engaged in by this group, were in favor of the assignment of the extra work on the basis of seniority, and of deciding individual seniority upon the basis of the date of transfer into the Union rather than the date when employed. The record also reveals that there was a substantial number of union members in favor of the position of such officials of the Union, as well as the group which was opposed to it. Sanders was one of the leaders, if not the leader, of the group which was attempting to get the Union to return the assignment of extra work to a rotation basis and to have seniority fixed as of the time of employ- ment. The group led by Sanders, Dunbar, and a few others carried its protests both to the top of the Union and to the top of the Company The concerted activities con- tinued for months. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In February 1952, Sanders was assaulted at the union hall by Stanley Clevenger, the Union's business agent in charge of drivers employed by the Company. This was denied by Clevenger, but the record establishes that Clevenger through his attorney pleaded guilty in the State court to the charge of assault. It also shows that similar charges against Floyd R. Hayes, president of the Union, were dis- missed. Sometime in April 1952, Sanders discussed with the Regional Office of the General Counsel the charges and complaints which his group had against Respondents concerning the matters referred to above. On April 29, 1952, at a union meeting the members of the Union employed by the Company voted to return,, the extra board to a rotation basis. This was done early in May 1952 In July 1952, the extra board was changed to a seniority basis, again as a result of meetings and the vote of members of the Union employed by the Company. During August and September 1952, the group led by Sanders and Dunbar made further strenuous pro- tests to Respondents about the return of the extra board to a seniority basis. On September 29, 1952, a checker of the insurance company which covered the Company's operations advised the Company in a form report that he had observed Sanders exceeding the speed limit on the highway while driving one of the Company's vehicles. On October 6, 1952, the Company posted a notice on its bulletin board to its drivers that they should observe speed limits, as required in the drivers' hand- book of rules distributed to them by the Company, and all posted zones while driv- ing on their runs. At 1:30 a. m., October 31, 1952, Sanders, while driving his regu- lar run from Kansas City to St. Louis, was stopped by one of the Company's driver- foremen. The driver-foreman, C. F. Lohrey, stopped Sanders in Jonesburg, Missouri, a small town on U. S. Highway 40, the route followed by the Company's drivers from Kansas City to St. Louis. Lohrey told Sanders that he had been speeding through the posted zone of the village of High Hill, 5 miles west of Jonesburg, and that the Company was going to give him a warning letter for speeding. Such a letter of warning was given to Sanders, with a copy to the Union, a few days later. Under the terms of the contract between Respondents, discharges could not be made, except for certain specified serious offenses not including speeding, unless within the previous 9 months a warning letter had been given to the employee for the same offense. During December 1952 and January 1953, an unfair labor prac- tice hearing was held before Trial Examiner John Eadie of the Board concerning the charges filed by Dunbar and other employees against Respondents in regard to, inter alia, the assignment of extra work upon the basis of a seniority roster determined by the date of entrance into the Union rather than of employment. Dunbar and Sanders attended these hearings and Dunbar testified as a witness for the General Counsel. Sanders was there for that purpose but was not called. The last day of the previous hearing before Trial Examiner Eadie was January 12, 1953. During a recess at that hearing, an exchange occurred between Cliff Langsdale, attorney for the Union, and Sanders. This exchange was not on the record or in the presence of the Trial Examiner. Sanders was showing Mrs. Fassig, counsel for the General Counsel, a clause in the constitution of the Union when Langsdale asked her if Sanders were her associate counsel. According to some of the witnesses, Mrs. Fassig replied.that he was not but that he was an employee and a member of the Union and had every right to be present at the hearing. Langsdale thereupon stated, "He may be now, but how long will he be?" Sanders then asked Langsdale if he was threatening him and Langsdale said that he was not, but that if he was running the thing Sanders would be thrown out in the alley. There were further remarks exchanged between the two not relevant to this case. Langsdale in substance admitted making the above remarks but said that he had reference to Sanders' membership in the Union and that the word "employee" was never used. In other words, he contended that his reply to Sanders was in effect: "You may be a member of the Union now, but how long will you be," and his reference to being thrown out was to the Union and not to Sanders' employment. Beagle, counsel for the Company, also testified that the word "employee" was not used by anyone. That night Sanders took his regular run from Kansas City to St. Louis leaving Kansas City at 8 p. m ; Dunbar had the following run and left the Kansas City ter- minal about 8-30p. m. The same evening Lohrey, the driver-foreman of the St. Louis run, and Les Baker, the Company's district driver-supervisor, drove to St. Louis together in Baker's private car During the course of the night they observed and -checked trucks, as was their usual custom, of the Company driving on the highway. According to them, they observed Sanders exceeding the speed limit in three towns having posted speed zones, namely, Boonville, High Hill, and St. Charles, and Dun- bar speeding through Jonesburg and St. Charles, all towns on U. S. Highway 40 be- tween Kansas City and St. Louis They did not know at the time that the trucks they observed were driven by Sanders and Dunbar, but they made the usual notation of PACIFIC INTERMOUNTAIN EXPRESS COMPANY 119 the equipment numbers, and later met both Sanders and Dunbar at the St. Louis terminal early on the morning of January 13. When they did so, Lohrey advised Baker that Lohrey had recently given Sanders a warning letter for speeding through High Hill, one of the places they had observed Sanders exceeding the speed limit that night, and thereupon Baker advised Sanders that he was fired. Because Dunbar had no warning letter outstanding within the past 9 months, they advised him that he would be issued a warning letter for speeding. It was sent to him a few days later. Sanders and Dunbar both testified that they had not been speeding at the times and places stated by Baker and Lohrey. On January 14 Sanders filed the charge with the General Counsel alleging that the Company had discriminatorily discharged him. On January 26, 1953, Sanders attended a grievance meeting arranged at the office of the Company by the Union under the terms of the contract. Sanders came to the meeting with an attorney and a court reporter. The Company refused to proceed with the matter in the presence of an attorney and a court reporter on the grounds that it was not rep- resented by counsel and that such proceedings were never a matter of record ac- cording to custom and the contract in existence . Because Sanders insisted upon the use of the court reporter and his right to be represented by counsel, the grievance hearing was not held. On February 5, 1953, again pursuant to the provisions of the contract, Sanders' grievance was presented to the Joint State Committee, a panel composed of representatives of the various empolyers and unions who were parties to the contract. This was the second or appeal stage after an original processing of the grievance at the employer level. Sanders was represented at this hearing by the Union through Clevenger, the business agent who had the employees of the Com- pany under his jurisdiction. Although Sanders was given an opportunity to do so, he did not appear at this hearing. The Joint State Committee was made up of a panel of 6 persons , 3 representing the employers and 3 representing the unions. By a vote of 4 to 2 the Company's discharge of Sanders was upheld. On February 6, 1953, Sanders filed the charge with the General Counsel alleging that the Union caused the Company to discharge him because of his concerted activities, as previ- ously set forth herein. In April 1953, Dunbar had an accident in which he ran his truck off the highway and into a ditch. The Company issued Dunbar another warn- ing letter for operating his truck negligently and too fast under the conditions exist- ing at the time. No action was taken by the Company with respect to its then out- standing warning letter against Dunbar. B. The alleged causing by the Union of Sanders' discharge because of his concerted activities As previously found, Sanders was the leader of a group within the Union engaged in positive and prolonged concerted activities designed to change the policies of the Union with respect to the assignment of extra work and the method of establishing a seniority roster. Although counsel for the Union contends to the contrary, there can be no doubt from the record considered as a whole that certain officials of the Union and a substantial segment of its membership were opposed to the objectives of Sanders and his group. There also can be no doubt that both the Union and the Company were aware of these concerted activities almost from their inception. They began in November of 1951, shortly after the seniority roster was posted and the method of assigning the extra work was changed to a seniority basis, culminated in the hearings before Trial Examiner Eadie in December 1952 and January 1953, and were terminated, at least as far as Sanders was concerned, by his discharge on the morning of January 3, 1953. However, there is not a scintilla of evidence in the record that the Union ever caused or attempted to cause the Company to discharge Sanders because of his concerted activities. Apparently, the General Counsel's theory is that the opposition of the Union to Sanders' concerted ac- tivities should be equated with an attempt to cause or a causing of his discharge for that reason. Although Sanders testified that several officials of the Company at dif- ferent times told him that the Union was bringing pressure on the Company to discharge or get rid of Sanders because of his concerted activities within the Union, this would not, even if credited, establish that the Union caused or attempted to cause the Company to discharge Sanders. Such evidence would not be admissible to prove the truth of the matter asserted therein. It would be hearsay if offered to establish that the Union told or asked the Company to discharge Sanders. Every official of the Union denied bringing any pressure to bear upon the Company to discharge Sanders. Because of the nature of the case involving joint Respondents, each sepa- rately charged with unfair labor practices, the testimony concerning admissions by officials of the Company was admissible to prove that the Company, through its 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD officials, made such statements, but if offered to prove that officials of the Union made such statements, it would clearly have been hearsay and not admissible. Coun- sel for the Union repeatedly objected to the admission of such testimony, as against the Union, on the grounds that it was hearsay and not admissible. His objection, if the testimony had been offered for that purpose, would have been well taken. As I pointed out to him at the hearing, the testimony was received as proof of ad- missions by the Company and not as proof of statements made or action taken by the Union, concerning which it would be inadmissible as hearsay Sanders at no point testified that any officials of the Union told him that they were attempting to cause the Company to discharge him In any event, I do not credit Sanders" version of these conversations and credit the denials made by the various officials of the Company, which testimony will be considered at length hereinafter in connection with the proof and case against the Company. In addition to the fact that certain officials and part of the membership of the Union were opposed to Sanders' concerted activities within the Union, the General Counsel apparently relies upon three other incidents as proof that the Union caused or attempted to cause the Company to discharge Sanders. These are the assault upon Sanders on February 22, 1952, the manner in which Sanders' grievance concerning his discharge was handled by the Union at the company level on January 26 and at the appeal level before the Joint State Committee on February 5, 1953, and the exchange of words between Sanders and Langsdale at the hearing on January 12, 1953. As previously found, Sanders testified that Hayes and Clevenger assaulted him at the union hall on February 22, 1952, after a discussion concerning the con- certed activities in which Sanders had been engaging. Both Hayes and Clevenger denied the assault. However, the record establishes that Clevenger, through his attorney, pleaded guilty in the State court to the charge. I find that the evidence establishes that Clevenger did assault Sanders. It is unnecessary to determine whether or not Hayes was a participant therein The fact that Clevenger assaulted Sanders because of differences arising between them, even if they concerned Sanders' course of action in connection with his concerted activities, does not in and of itself establish that the Union caused or attempted to cause the Company to fire Sanders. With respect to the grievance procedures followed pursuant to the contract after Sanders was discharged, the facts are as follows Sanders on January 14, filed a charge with the General Counsel alleging that the Company had discriminatorily discharged him. It was not until after the final hearing before the Joint State Com- mittee, when Sanders' grievance was ruled against, that Sanders filed any charge alleging that the Union caused the Company to discharge him Shortly after his discharge, Sanders requested the Union to process his discharge as a grievance under the contract, which the Union proceeded to do. The contract set forth the manner in which such grievances were to be handled, and provided for an investigation at the. company level of the facts. It provided further that if the matter was not amicably disposed of at that level the party with the grievance would be entitled to a hearing before the Joint State Committee. Sanders was given an opportunity to present his grievance at the company level, and his grievance was presented to the Joint State Committee by the Union at a hear- ing, at which Sanders was given an opportunity to be present and testify but did not attend. Sanders, in a letter of January 13, 1953, the Company's Exhibit No. 4, asked the Union to proceed against the Company under the contract but made no complaint against the Union concerning his discharge. On January 26, the meeting with an official of the Company, the business agent of the Union, and Sanders was to be held. This meeting had been arranged with the Company by the Union pursuant to Sanders' request. Roy Williams, a business agent of the Union, sent into the area after Sanders' trouble with the Union concerning his concerted activities arose, and in whom Sanders apparently had more confidence than he had in Hayes and Cleven- ger, testified that he intended to attend the meeting on January 26 with the Com- pany's manager concerning Sanders' discharge, but because of the press of other matters was unable to do so and sent Clevenger, the business agent, to represent the Union. It was undisputed in the record that the usual procedure on grievances was followed with respect to Sanders' discharge The officials of the Union testified credibly that it was the usual practice for either the steward or the business agent under whose jurisdiction the employee worked to represent the employee at grievance hearings at the company level. It was also undisputed that such company level hearings were on an informal basis, where the parties presented their grievances, and where frequently the Company and the Union were able to dispose of the matter amicably. For these reasons, and because of the nature of such meetings, in which both sides frequently made statements and claims which they would prefer not to be a matter of record, the parties had never had reporters at such informal grievance PACIFIC INTERMOUNTAIN EXPRESS COMPANY 121 discussions nor made them a matter of record. In fact, the custom had always been to the contrary and it was so testified without dispute. Apparently, the General Counsel's theory is that the Union's manner of handling the grievance at the com- pany level and at the Joint State Committee level is further proof that the Union caused the Company to discharge Sanders Clevenger appeared on January 26 at the Company's offices to represent Sanders. Clevenger, of course, was the business agent whom it has been found assaulted Sanders the previous year. However, Clevenger was an agent who would in the normal course of events present the grievance for the Union. In any event, Sanders appeared at the meeting in the office of the Company's manager, Donald Klein, accompanied by his brother, an attorney, and by a court reporter. Sanders and his brother insisted both that Sanders had the right to appear by attorney and that the grievance meeting with the Company be made a matter of record. The Company refused to proceed on that basis and stated its reasons. The record does not reveal that the Union objected to the'manner and type of hearing demanded by Sanders, although it is established that the Union was in agreement with the Company that it was contrary to custom and established practice either to have such meetings a matter of record or the parties represented by counsel. Because Sanders refused to proceed with the meeting without it being made a matter of record and without an attorney, the position of the parties resulted in a stalemate and the meeting was not held. Pursuant to the provisions of the contract, the grievance was scheduled for hearing before the Joint State Committee on February 5 because it had not been disposed of at the company level. On February 4, Sanders discussed his grievance with Williams. Williams explained to Sanders why both the Union and the Com- pany took the position that the grievance meetings at the company level could not be a matter of record and that their grievance procedure was proper and had been upheld by the courts. Sanders claimed that on that occasion he protested to Williams the manner in which the Union was processing his case. Williams denied this and I credit his testimony. He said that Sanders and he discussed the merits of Sanders' case and the evidence that Sanders had available to establish that he was not speed- ing. Williams told Sanders that he thought that Sanders had a pretty good defense and might prevail at the hearing. Williams advised Sanders that he had a right to appear at the Joint State Committee hearing but that the matter of his being rep- resented by an attorney would be up to the committee . Williams admitted that Sanders protested to him about Clevenger representing him, and stated that he told Sanders that Clevenger was O. K., that Williams had had no complaints concerning Clevenger, and that it was the usual procedure for the business agent to represent the employee in such grievance matters. There is nothing in this discussion between Williams and Sanders which tends to establish that the Union was attempting to cause or caused the Company to discharge Sanders because of his concerted activity. Sanders testified that in a letter of February 2, 1953, which he wrote to the Union, in evidence as the Union's Exhibit No. 3, he claimed that the Union was not properly processing his grievance, but this testimony is not borne out by the exhibit, which contains no such claim. The hearing before the Joint State Committee was held on February 5 as scheduled. It was the last hearing on the agenda and as a result was heard in the afternoon after lunch. Sanders was present at the hearing place during the morning and was advised that his hearing would be held that afternoon. He told Williams that he was going to go home. Williams advised him to leave a telephone number where he could be called in time to return and appear at his hearing Clevenger called Sanders shortly before his case came up and advised him to come to the hearing but Sanders refused to do so. Clevenger presented the case for Sanders on behalf of the Union to the six-man panel. Sanders had never advised the Union either that he contended that the warning letter of October 31 was unfounded in fact, the position he took at the instant hearing, or that he had a witness, Dunbar, who was able to testify that Sanders had not been speeding on the night of his discharge. It is undisputed in the record that certain evidence which Sanders had available and which was in- troduced in the instant hearing was not admissible before the Joint State Committee. Actually, the Union, in the absence of Sanders and any other witness for him, was unable to dispute the facts advanced by the Company, and devoted itself to an argument that discharge was too severe a penalty for the offense, particularly in view of the fact that the speeding occurred in the early hours of the morning when there was little or no traffic. Hayes, the president of the Union, was a member of the panel which heard the grievance. He and one other union member of the panel voted in favor of Sanders. The three employer members and the other union member voted Jo sustain the discharge. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As previously found, a discharge could not be made under the terms of the con- tract unless a warning letter had previously been issued. It was undisputed in the record that when employees received warning letters which they felt were unjustified, they called this to the attention of the Union in order to protect themselves for the future. It was also undisputed that Sanders, although he testified at the instant hear- ing that he was not speeding on the occasion when he received the warning letter, never protested this warning letter to the Union. Consequently, at the hearing be- fore the Joint State Committee, the Union was unaware of Sanders' position with respect to the warning letter. It is undisputed in the record that the regular and usual procedure with respect to Sanders' grievance was followed. The facts with respect to the exchange of words between Sanders and Langsdale, during the recess at the previous hearing on January 12, 1953, have already been found above in the "Chronology of events" section. It is undisputed that the ex- change occurred off the record. It is also undisputed in this record that Langsdale, although attorney for the Union, had no authority to make any statements for the Union that could affect the tenure of employment or membership in the Union of any of its members, and further had no voice or vote in questions of membership in the Union unless his opinion as counsel was specifically requested. The General Counsel's own witnesses testified that Langsdale said that if he was running this thing he would throw Sanders out. Langsdale's very words, according to the General Counsel's witnesses, admitted that he had no authority to take such action. The only dispute in the testimony over the incident was whether the word "employee" was used by Mrs. Fassig. Langsdale and Beagle both denied that it was. In any event, I do not consider the incident as proof that the Union attempted to cause or caused the Company to fire Sanders. Acrimonious remarks exchanged between a party and counsel for an adversary in off-the-record repartee during a recess can not, in my opinion, under any theory of law constitute admissions by an authorized agent on behalf of his principal. The hearing was in recess and the Examiner was not present. The evidentiary doctrine apparently relied upon by the General Counsel is clearly inapplicable under the circumstances here. All of the officials of the Union testified that they had never atttempted to cause, suggested, or in any other way caused the Company to discharge Sanders for any reason. All of the officials of the Company testified that nobody from the Union had ever suggested, requested, or in any other manner attempted to cause or caused them to discharge Sanders because of his con- certed activities or for any other reason. In the Salt River Valley case,' the Board, upon proof considerably stronger than in this case, found that the union did not, cause or attempt to cause the discharge of the employee in that case. There, as here, the employee was engaged in concerted activities strongly opposed by the union. There the union's executive committee chairman threatened the employee with dis- charge for his concerted activity and also advised the employer that the union was opposed to the employee's concerted activity. Nevertheless, the Board found that there was no evidence that the union actually caused or attempted to cause the em- ployer to discharge the employee, in the absence of any direct proof thereof. In the instant case, there is no evidence that the Union ever threatened to cause Sanders' dis- charge or ever in any way communicated to the Company its displeasure with or disapproval of Sanders' concerted activities. A preponderance of the credible evi- dence in the entire record convinces me, and I find, that the Union did not cause or attempt to cause the Company to discharge Sanders because of his concerted activities. C. The alleged discharge of Sanders by the Company because of his concerted activities, including aid and assistance to the General Counsel in the previous case As previously found, on the morning of January 13, 1953, in St. Louis, Sanders was discharged for driving his equipment in excess of the posted speed limits in the towns of Boonville, High Hill, and St. Charles, Missouri. Sanders had previously been given a warning letter for exceeding the posted limit in High Hill on the morning of October 31, 1952. On the evening of January 12, Sanders left the Kansas City terminal at 8 p. in., Dunbar left with his equipment at 8:30 p. in., and caught up with Sanders at their first rest stop east of Kansas City. Thereafter, they traveled along U. S. High- way 40 to St. Louis more or less together, with a distance of from 1 to 2 miles between their trucks. At each rest stop they joined each other. For the last 15 or 20 miles of the trip, Dunbar followed Sanders at a distance of approximately 100 yards. Lohrey and Baker left Kansas City in Baker's car on a business trip to the St. Louis terminal about 7 p. in. on the evening of January 12. During the course of the trip, they checked a number of the Company's trucks, both eastbound and 1 Salt River Valley Water Users Association , an Arizona Corporation, 99 NLRB 849 PACIFIC INTERMOUNTAIN EXPRESS COMPANY 123 westbound, as was their custom and normal procedure . Both Baker, as district driver-supervisor, and Lohrey, as driver-foreman, had the responsibility of checking the Company's drivers on the highway whenever the opportunity occurred. During the course of that night, they observed the equipment driven by Sanders and Dunbar several times. They both testified that until they saw Sanders and Dunbar in St. Louis, they did not know who was driving the trucks. Their usual practice while checking was to make a notation of the equipment number and any violations of the Company's driving rules they observed, which practice they fol- lovc'eii• that night. They first observed Sanders at a highway junction west of Boon- ville and followed the truck driven 'by him into Boonville. Boonville has 3 posted speed zones within its city limits, the first being 40, the second 30, and the third 20 miles per hour. According to Lohrey and Baker, Sanders entered the 3.0-mile per hour zone at 40 miles per hour and did not slacken his speed until he was compelled to do so by a sharp turn in the road at the beginning of the 20-mile per hour zone. They did not follow him any further through Boonville. They both clocked him at 40 miles an hour through the entire 30-mile per hour zone. This was at 11: 30 p. m. The next time they saw Sanders was lust west of High Hill, Missouri. High Hill has a posted speed zone of 35 miles per hour. They followed Sanders into High Hill and he continued to drive at 50 miles per hour through more than half of the posted speed zone. Baker and Lohrey had seen Dunbar's truck about a mile behind Sanders when they met Sanders west of High Hill. After following Sanders about halfway through High Hill they pulled off the highway and waited for Dunbar. They followed Dunbar into Jonesburg, 5 miles east of High Hill. The posted speed zone there is 35 miles per hour. Dunbar entered this zone at 50 miles per hour and con- tinued running at that speed through about two-thirds of the posted zone until he caught up with an automobile transport carrier which was running slower, and because he was unable to pass it, he reduced his speed to that of the carrier. The next time Lohrey and Baker observed Sanders and Dunbar was on the high- way near St. Peters, a few miles west of St. Charles. An auto transport carrier headed in the opposite direction was stalled along the highway, and Sanders stopped to give the driver a lift into the nearest town to obtain help. Baker and Lohrey observed Sanders as he was pulling away from the stop he had made to pick up the stranded driver, and at that time Dunbar had pulled up just behind Sanders. Sanders and Dunbar continued along the highway into St. Charles with Dunbar following about 5 or 6 hundred feet behind Sanders. The posted speed zone in St. Charles is 25 miles per hour. Both Sanders and Dunbar entered that speed zone running at 45 miles per hour and continued to do so for nearly 2 blocks, when they were com- pelled to slow down at a curve, at which point Sanders brought his truck to a stop at an adjacent cafe in order to discharge the auto carrier driver. Dunbar brought his truck to a stop immediately behind Sanders. According to Baker and Lohrey, Sanders and Dunbar did not reduce their speed in the 25-mile per hour zone until just before they made that stop. Baker and Lohrey saw Sanders at High Hill at 2:05 a. m. and saw Sanders and Dunbar at St. Charles at 3:30 a. m. on January 13. Both trucks proceeded from St. Charles to the St. Louis terminal followed by Baker and Lohrey. When the trucks arrived at the terminal, Baker and Lohrey learned who was-driving the equipment. They had discussed what action they should take with respect to the speeding violations they had observed, and had decided to issue warn- ing letters to the drivers of the equipment. when they learned that Sanders was one of the drivers, Lohrey informed Baker that he had issued a warning letter to Sanders on October 31 for speeding through High Hill, one of the towns they had observed him speeding through that night. Thereupon, Baker decided to fire Sanders because of his repeated violations of the Company's rules concerning speeding and because, under the terms of the contract, a warning letter for the same violation had been given to him within the 9-month period. They advised Sanders that he was fired and why. They also told Dunbar that he would be issued a warning letter for his viola- tions. Sanders testified that he had not been speeding at the places claimed, although Baker and Lohrey testified that at the time Sanders did not deny that he had been speeding but contended that it made no difference because of the late hour and lack of pedestrian and vehicle traffic. Dunbar also denied speeding in either town as claimed by the Company. The Company's tractors are equipped with a mechanical device known as a tacho- graph, which is run by a clock started at the time the trip begins. This device con- tains a waxed disc in the nature of a chart which mechanically records the elapsed time, distance traveled, and speed of the vehicle. The drivers insert the charts into the device and start the clock at the time they leave the terminal The tachographs are so constructed that they operate automatically and cannot be altered by the driver while in operation. Sanders, on the morning of his discharge, told Baker that he still had the tachograph chart from the night in October when he was accused of 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speeding through High Hill and later received a warning letter. The Company's drivers were'supposed to turn in these charts upon returning to the Kansas City terminal, but Sanders had kept this chart, in an attempt to corroborate his claim that he was not speeding as contended in the warning letter although he had not up to then made any such claim to either the Company or the Union. Baker asked him for that chart as well as the chart for the trip of January 13. Sanders refused to turn over the charts to Baker, contending that they would be evidence of the fact that Sanders had not been speeding and that he was going to keep them for that reason.. He sub- sequently had photostatic enlargements of them made and thereafter re- ned the original charts to the Company. Both the photostatic enlargements and the original charts were received in evidence. Baker purchased a bus ticket to Kansas City for Sanders and he subsequently returned there. The following day a warning letter was issued to Dunbar and a discharge letter to Sanders. Both Sanders and Dunbar denied that they were speeding on the night of January 13 at any of the locations claimed by the Company. Sanders identified and explained the tachograph charts from his truck for both the night of January 13, 1953, and that of October 31, 1952. Each of these tachograph charts contains three separate graphs recorded thereon by needles, or styluses, as they were called in the record. The outermost graph records the miles traveled by the equipment from the time the trip begins until it ends. The center graph records the speed of the truck at various times and places. By correlating the center graph to the outer graph, the speed at any given point can be approximately determined by computing the miles traveled from the starting point. The innermost graph records time elapsed and periods when the equipment is standing still or stopped. Sanders contended that the chart for the night of October 31 established that he was not speeding while going through High Hill. While the charts record the speed of the truck at all times, because the amount of space thereon for a limited number of feet becomes so minute, it is impossible to ascertain definitely the exact speed of the truck at any specific point or within a dis- tance of less than approximately one-half mile On the graph where the speed is recorded, the amount of space which represents the passage of one-half mile on the outer graph is less than one-sixteenth of an inch. It is, of course, possible to ascer- tain the speed of the truck over a distance of a mile or more provided there are not substantial variations in its speed during that stretch. However, to conclude that the speed of the truck was a certain number of miles per hour at any specific point, or even within 1,000 feet of any specific point, is impossible because of the minute space represented on the chart by that many feet. All of the witnesses for the Com- pany, and Sanders himself, testified that it was not possible to determine the speed of the truck within 1,000 feet of any given point. Actually, from an examination of the charts, it is difficult to determine the speed within several thousand feet of any given point. By computing the miles traveled from the terminal in Kansas City or any other definitely established point, it is possible to locate on the outer graph within a few thousand feet particular towns or places such as those involved in this case. It is necessary, of course, to allow a margin of error on both sides of the space on the graph representing a particular town. If the equipment never exceeded a cer- tain speed during that space, including the margin for error on either side, it could be concluded that the equipment never exceeded that speed while passing through a particular town. However, the speed stylus fluctuates substantially on the chart and it is not always possible to make such a determination. Sanders claimed that the chart for the trip of October 31 established that he was not speeding through High Hill. This chart was received in evidence as General Counsel's Exhibit No. 20. By computing the miles from Kansas City to High Hill on the outer graph it is possible to approximate, as described above, the space occupied by High Hill on the chart. The undisputed evidence established that the posted zone in High Hill was approximately 1 mile. An examination of the chart in the light of the explanation of it given by Sanders does not substantiate his contention that it establishes that he was not driving in excess of 35 miles per hour through High Hill on October 31. The speed stylus in the space which was calculated by Sanders to represent High Hill on the chart fluctuates from approximately 25 miles per hour to almost 60 miles per hour. While Sanders explained that some of the high peaks of the speed stylus fluctuation were caused by the shifting of gears of the 2-axle 10-speed tractor he was driving, it is not possible definitely to conclude from the chart of October 31 at what speed Sanders progressed through High Hill. The chart for the trip of January 13, 1953, when Sanders was discharged, does tend to corroborate his contentions with respect to two of the locations where the Company claimed he was exceeding the speed limit. Using the same method of calculation it is possible, within a matter of a few thousand feet, to determine on the chart the location of Boonville, where Sanders was claimed to have gone through PACIFIC INTERMOUNTAIN EXPRESS COMPANY 125 a 30-mile zone at 40 miles per hour. Actually the chart indicates that Sanders did not exceed 30 miles per hour for a space which more than exceeds the posted limits of $oonville. The next place where Sanders was alleged to have speeded that night was High Hill, and here again the chart does not corroborate Sanders. Con- trary to his contention, it is not possible to tell in the space designated on the chart as representing High Hill whether or not Sanders stayed under the speed limit of 35 miles per hour for the posted zone. With respect to St. Charles, the chart tends to corroborate Sanders' statement. The speed stylus in the space represented by St. Charles, allowing a few thousand feet for a margin of error on either side, in- dicates that Sanders at no time exceeded 30 miles an hour, and frequently was well below- that, while progressing through the posted speed zone of St. Charles. The Company contended that he was driving 45 miles per hour through the first block and a half or 2 blocks of the St. Charles speed zone before he stopped at the far end of the curve to discharge the auto transport driver. Since the space involved was only about 1,000 feet or less, it is difficult to determine exactly whether Sanders had reduced his speed to 30 miles per hour or less at that point. It is possible to conclude from the chart that he had not. However, the chart indicates that he was below 30 miles per hour for a space in excess of the posted speed zone in St. Charles, and the evidence indicates that there was nothing to prevent an increase of speed after leaving the city limits. Sanders denied that he had exceeded the speed limit in any of the posted zones either January 13 or October 31. With respect to the alleged speeding in St. Charles on the night of January 31, Dunbar corroborated Sanders because at that point Dunbar was traveling directly behind Sanders at the same speed. Dunbar was also accused of speeding in the same area in St. Charles and denied that either he or Sanders was exceeding the speed limit at that point. Baker- and Lohrey both testified at length and in detail concerning their checking of the equipment driven by Sanders and Dunbar on January 13 and stated that Sanders and Dunbar were. speeding at the times and places heretofore indicated. Lohrey also, testified that Sanders was speeding on the trip of October 31, which resulted in the warning letter, and claimed that Sanders admitted at the time that he was speeding, but contended that it made no difference because of the late hour and the fact that nobody was out. Sanders denied that he was speeding on October 31 and denied admitting to Lohrey that he had been speeding. Dunbar also denied that he was speeding through Jonesburg on the night of January 13. Absent the evidence of the tachograph chart for January 13, it would be Sanders' word, corroborated by Dunbar with respect to St. Charles, against the word of Lohrey and Baker. However, the evidence of the chart tips the scales in favor of Sanders. As previously found, the chart of January 13 indicates that Sanders, was not speeding while going through Boonville and St. Charles, as claimed by the Company. The charts do not substantiate his claim that he was not speeding through High Hill on either October 31 or January 13, but on the other hand, it is not possible to conclude from the charts that he was speeding at either time. Because of the nature of the charts, as previously explained, it is not possible to determine-from them whether he was speeding in the small space represented thereon by High Hill. Although the charts tend to establish that Sanders was not speeding on January 13 upon at least two of the occasions claimed by the Company, this does not dispose of the basic issues The burden of proof is not upon the Company to establish that it fired Sanders for good cause, but rather is upon the General Counsel to establish that Sanders was fired because of his concerted activities, as alleged in the com- plaint. Of course the failure of the Company to establish its defense as the true cause for Sanders' discharge raises considerable doubt concerning what the real cause might be. The failure to establish that speeding was the real cause for Sanders' discharge would in the more typical discriminatory discharge case lead to a conclusion that the reason advanced by the Company was not the true one, and if other facts and circumstances were present, give rise to an inference that Sanders had been fired for discriminatory reasons. Why this conclusion cannot be reached in this case is explained more fully hereinafter. It has previously been found that the Union did not cause or attempt to cause the Company to discharge Sanders because of his concerted activities Nevertheless, it goes without saying that the Company, even in the absence of any pressure from the Union to do so, might well have discharged Sanders because of his concerted activi- ties, including his aid and assistance to the charging parties and the General Counsel in the prosecution of the previous case. The burden of proving this was of course upon the General Counsel. The evidence offered in support of this allegation was confined chiefly to the testimony of Sanders and Dunbar concerning various conversa- tions which they had with officials of the Company. One of the incidents relied upon 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the General Counsel in support of this allegation concerned conversations between Sanders and officials of the Company with respect to transferring him to some other terminal of the Company. Sanders testified that around March 6, 1952, he talked to Baker about the situation with respect to Sanders' concerted activities in the Union, and asked Baker to let Sanders know if the Union brought any pressure to bear on the Company to get rid of him, and that if such occurred, Sanders would like to transfer to another terminal in order to prevent being discharged. According to Sanders, Baker told him at the time that there had been nothing like that so far. Sanders then testified that on April 29, he had another talk with Baker while riding with him in his car. Sanders said that Baker reminded him of their conversation of March 6 and then admitted that there actually had been then and since a lot of pressure brought on the Company by the Union to get rid of Sanders, and that it would be best if he transferred to some other terminal. Baker said that he had talked to Floyd Wicker, the Company's systemwide director of driving, and that,&(nders could be transferred to some terminal out west. Baker told Sanders that under the contract the Union could do anything and the Company could not afford any more strikes. Sanders claimed that on that occasion he refused the transfer because, as he told Baker, Sanders' group had won the fight about the extra board work by a unanimous vote and he did not want to transfer and thus lose his seniority. Baker said all right, but if there was another strike they would all get fired. According to Sanders, Baker said that he would not tell Sanders who in the Union put the pressure on the Company to get rid of him and also that Baker would deny the converation under oath. Baker denied all of the above-conversations concerning union pressure to fire Sanders or the Company trying to compel him to transfer, and testified that the conversations about transfer were initiated by Sanders and that he requested the transfer. According to Baker, he had several conversations with Sanders at different times about the transfer. Baker said that the first conversation occurred on April 29, which Sanders claimed was the second and last conversation about transferring. Baker said that Sanders merely asked him if it would be possible to transfer to-one of the western terminals, particularly Los Angeles. Baker told Sanders he knew of no reason why Sanders could not transfer, and that Baker was going to a meeting of the Company in Denver in a few days and would inquire of the western managers and other company officials concerning such a possibility. According to Baker, he did inquire at the meeting in Denver about the possibility of Sanders transferring. This was corroborated by Wicker, who was present at the Denver meeting and testi- fied that Baker made inquiries of the possibility of a driver transferring to a western terminal. Baker testified that the western managers told him that they would let him know whenever they had an opening, and that when he returned to Kansas City he so advised Sanders. Baker said that Sanders then said that he had changed his mind and did not want to transfer. Except for that part of the conversation concerning the transfer admitted by Baker, Baker denied all of the statements attributed to him by Sanders. According to Baker, later in the summer, Sanders again approached him about a transfer and Baker reminded him that he had told Baker that he had changed his mind and didn't want a transfer. Baker again told Sanders that Baker would see what he could do about it. Baker talked to Klein, the Company's Kansas City man- ager, about it. Later Klein informed Baker that he had talked to Schaefer concerning an opening in the Salt Lake City terminal, and that when one occurred Baker would be notified so that Sanders could transfer. Baker told Sanders about that. Baker claimed that this was in August and was the time when he and Sanders discussed the transfer in Baker's car. Baker said that Sanders again refused the transfer, claiming that he did not want to give up his seniority in Kansas City and start out in another city at the bottom of the board. Baker impressed me as an honest and credible witness. There are several discrepancies in Sanders' version of the conversations he° had with the company officials and the Union concerning the transfer, which will be considered hereinafter and which cast doubt upon his version of the conversations and lend support to the conclusion that Baker's testimony was true and correct. About 4 or 5 days after the conversation of April 29 with Baker concerning the transfer, according to Sanders he discussed the matter of his transfer with Williams, the business agent of the Union, sent in after Sanders' troubles with the Union began and in whom Sanders had considerably more confidence than he did in Hayes and Clevenger. According to Sanders, he did not tell Williams that the Union was bring- ing pressure to bear to cause the transfer. Yet Sanders testified that Baker had told him that just a few days before. Sanders' version of his conversation with Williams was to the effect that the Company was making the transfer and that Sanders wanted to know from Williams what effect it would have upon Sanders' seniority within the Union, and what if anything the Union was going to do about it. If Baker, as PACIFIC INTERMOUNTAIN EXPRESS COMPANY 127 Sanders testified, had just told him that the transfer was being brought about by pres- sure from the Union to get rid of Sanders, Sanders' testimony concerning his con- versation with Williams is subject to conjecture. According to Sanders, he made no claim in his conversation with Williams that the Union was causing the transfer, and apparently placed all of the blame for the proposal upon the Company. Williams testified at some length concerning this conversation with Sanders and stated that Sanders never mentioned to him that the Union was bringing pressure to bear on the Company to get rid of Sanders. Sanders testified that he told Williams that the Company was attempting to compel him to transfer, that Williams said that he knew it, because Schaefer had called him from California about it, and that Williams had told Schaefer that it was up to the Company and not up to the Union. Both Williams and Schaefer denied ever talking to each other over the long-distance telephone con- cerning any transfers. Williams denied that Sanders had said that the Company was causing his transfer, and also denied stating that Williams knew it or that he had ever discussed it with anyone. According to Williams, Sanders wanted to learn what effect the transfer would have upon his seniority and Williams advised him that he would lose his seniority and would no longer be a member of Local 41. Williams impressed me as a reliable witness, and I credit his version of that conversation. Sanders' own version of that conversation casts doubt upon his version of the conversation ,with Baker which occurred only 4 or 5 days before. If, as Sanders claims, Baker had told him that the Union was bringing great pressure upon the Company to get rid of Sanders, and for that reason the Company was proposing to transfer him to another terminal, it seems extremely unlikely that Sanders, in dis- cussing this situation with Williams, would have blamed the transfer proposal upon the Company and made no mention of the fact that the Union was causing it. Baker's and Williams' versions of the occurrence are much more logical: namely, that Sanders was asking for a transfer for reasons of his own; that Baker agreed to see what he could do about it; and that Sanders consulted Williams in order to deter- mine what effect such a transfer would have upon Sanders' union membership and seniority. Another statement made by Sanders concerning his conversation with Baker on- April 29 contains a discrepancy from the admitted facts and tends to cor- roborate Baker's version of the conversation. According to Sanders, he told Baker that although he had previously asked Baker to let him know if any pressure was brought to bear because he might in that event want to transfer, he had now changed his mind about transferring because his group had won the fight over the extra board by a unanimous vote. Yet Sanders testified that the conversation he had with Baker occurred on the afternoon of April 29 before the meeting at which the extra board was returned to a rotation basis by a unanimous vote. In September 1952, the subject of transfer came up in a conversation between Sanders and Schaefer. They both testified that they discussed Sanders' transfer at that time and that Schaefer said that he knew of no reason why Sanders could not transfer to Los Angeles but that Schaefer would check into the matter. Schaefer said that he told Sanders that it was much easier to get on the Cedar City run than on the Los Angeles run. Sanders said that when he talked to Schaefer about it he told Schaefer that he had refused a transfer before when Baker was going to force Sanders to transfer. According to Schaefer, they merely discussed the possibilities of trans- fer and no mention was made by Sanders of either the Union or the Company com- pelling him to transfer. Additional evidence which tends to support the Company's version of the conversations concerning the transfer is General Counsel's Exhibit No. 15, a letter dated November 15, 1952, from Sanders to the Company requesting a ,transfer to Los Angeles. In this letter Sanders stated that he had talked to Schaefer and Baker about transferring and that Schaefer had said that he knew of no reason why Sanders could not. Sanders in that letter also stated that when he talked to Baker about the transfer he, Sanders, could not make up his mind because he was reluctant to give up his seniority and incur the expense of moving, and because at that time his group was winning the fight within the Union. This letter, written by Sanders after the occasions when, according to his testimony, the Union and the Company were trying to compel his transfer, certainly does not tend to corroborate his version of those conversations. This is particularly true in view of the fact that numerous other letters written by Sanders and received in evidence establish beyond doubt that he had no hesitancy in calling to the attention of the Company and the Union conduct which he considered wrong. For the reasons heretofore stated, I credit the testimony of Schaefer, Baker, and Williams concerning the conversations had with Sanders about his transfer. Another incident relied upon by the General Counsel and Sanders concerned a conversation with P. W. Tuckerman, the Company's Kansas City dispatcher. This occurred during July 1952, shortly after the extra board had again been changed- to a seniority basis. Sanders testified that Tuckerman told him that Clevenger had 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered the change of the extra board back to a seniority basis, that the men were lucky to have two runs into St. Louis because the Union was trying to keep Sanders and Dunbar from getting a run, and that Sanders had no idea of the pressure that the Union was putting on the Company about them. Tuckerman denied this con- versation and said that Sanders had only asked him if he had heard that there would be only two runs to St. Louis, and that Tuckerman had replied that he had not so heard. Both Hayes and Schaefer testified, and it was not disputed, that at the time referred to by Sanders, Hayes was negotiating with the Company in an attempt to get it to increase the number of runs to St. Louis from 8 to 10. In the face of this undisputed fact, Sanders' version of his conversation with Tuckerman does not appear to be plausible, and I credit Tuckerman's testimony As pointed out in the excellent brief submitted by counsel for the Company, in all of the various conversations between officials of the Company and Sanders and Dunbar, Sanders and Dunbar seem to have initiated the subject or suggestion that the Union was bringing pressure to bear upon the Company to get rid of Sanders and Dunbar A careful analysis of the entire record leads me to that conclusion. Sanders further testified that on or about August 15, 1952, he talked to Lohrey in a restaurant on the highway and Lohrey complained about the Union's taking away his seniority and told Sanders that it was wrong for Hayes to try to get Sanders fired This was denied by Lohrey whom I credit. All of the officials of the Company testi- fied, and Sanders himself admitted, that every time he spoke to the Company about his concerted activities and the trouble he was having within the Union, they advised him that it was an internal union matter which he would have to straighten out within the Union. Under the contract entered into as the result of collective bargain- ing between the Company and the Union, the Union was given exclusive control over questions of seniority. Irrespective of the merits of the dispute on the seniority question, there can be do doubt that it is established in the record that the Company . took the position that it was a union matter in which the Company was not involved. There is also no question in the record but that Sanders was one of the leaders of the concerted activity designed to change the Union's policy on seniority and that he assisted the charging parties and the General Counsel in the preparation and presenta- tion of the previous case, although he did not file the charges or testify at the hear- ings. There is not a single iota of evidence in the record to establish that the Com- pany discharged Sanders because of his aid and assistance in the preparation and presentation of the previous case, other than the bare facts that he did so aid and was subsequently discharged. As previously stated, the burden of proof was on the General Counsel to establish that Sanders was fired by the Company because of his concerted activities, including his aid in the previous case. It has been found that the reason advanced by the Company for discharging Sanders, namely his alleged speeding on the trip of January 13, is not substantiated by the proof offered by the Company. I am not satisfied from a preponderance of the evidence that Sanders' alleged speeding upon the occasions heretofore discussed was the real reason for his discharge by the Company. However, that does not trans- fer the burden of proof from the General Counsel. The situation here is somewhat different from that encountered in the typical discriminatory discharge for union activities or membership. In the usual situation other evidence is found in the record which leads to the conclusion that the respondent is strongly opposed to union activi- ties and membership, and, frequently, that the respondent has engaged in interference, restraint, and coercion of activities protected by Section 7 of the Act. With such a background and a finding that the reason advanced by the respondent for the dis- charge of the alleged discriminatee is not the real reason, it is logical and proper to infer, in view of the proof establishing the respondent's antagonism towards union membership and activities, that the real reason and motivation behind the discharge was the employee's union activities or membership. Here we have no such proof. There is no evidence that the Company was opposed in any way to the union or concerted activities of its employees, and in fact the record establishes that the Com- pany has had amicable relationships and negotiations with the Union and its em- ployees over a period of years. There is no background or independent proof in the record to establish any bias upon the part of the Company against union or concerted activities or membership This distinguishes the case substantially from the usual situation referred to above. Even assuming that the reason advanced by the Company for discharging Sanders was not a valid and substantial reason as demon- strated by the evidence, we are left with a record which does not establish any reason for Sanders' discharge, and from which, in the absence of any proof that the Company was opposed to union or concerted activities or had engaged in conduct violative of Section 8 (a) (1) of the Act, it is impossible to draw an inference that the real reason for Sanders' discharge was his concerted activities. To do so would be mere speculation, and would not be supported by substantial evidence on the entire record PACIFIC INTERMOUNTAIN EXPRESS COMPANY 129 considered as a whole. To conclude that the reason advanced by the Company for the discharge was not well founded and therefore the Company must have discharged Sanders-because of his concerted activities is to put the cart before the horse. It is not the burden or responsibility of the Company to establish why it fired Sanders, rather it is the burden of the General Counsel to establish that he was fired because of his concerted activities. It is true that in the usual case direct proof is not available of the reason for a discharge. When the reason advanced by a re- spondent proves to be unfounded and merely a subterfuge, then proof, which es- tablishes that the respondent is opposed to union or concerted activities or has engaged in conduct which interferes with, restrains, and coerces employees in the exercise of their right to engage in concerted activities, makes it proper to conclude that the real reason for the discharge was such concerted activities. Here, in the absence of any proof that the Union caused or attempted to cause the discharge, we are left with a record which establishes that Sanders engaged in a protracted series of concerted activities, that the Company was aware of these activities, that the Company was not opposed to such activities nor to concerted activities generally, and that the reason advanced by the Company for the discharge is not well founded. Upon such a record, it would be pure speculation and guesswork to draw an in- ference that the Company discharged Sanders because of his concerted activities. Referring again to the Salt River Valley case,2 where facts somewhat similar to the present case were considered by the Board, and the Board found that the union had not caused the employee's discharge, even though it had advised the employer of its disapproval of the employee's activities and had threatened him with discharge, the Board there found that the employer had discharged the employee because of his concerted activities. However, while the employee's concerted activities there were also opposed to the policy of the union and designed to effect changes in it, the distinguishing feature between that case and the present one is that the concerted activities -there were also strongly opposed by the employer and concededly were the reason for the employee's discharge. The employer contended that the activities were not protected concerted activities , while admitting that it had discharged the employee for engaging in them. Both in that case and in the earlier Nu-Car Car- riers, Inc., case,3 the Board had determined that concerted activities within a union designed to change its policies were nevertheless concerted activities within the meaning of Section 7 of the Act and entitled to its protection. In the Salt River Valley case the employee's concerted activities directly affected the employer eco- nomically, even though they were concerted activities designed to change a union policy and opposed by the union. In the instant case, there is no evidence that the activities of Sanders and his fellow employees in any way affected or concerned the Company, so as to motivate it to discharge him for such activities. As Sanders admitted and the record reveals, the Company took the position throughout that the concerted activities designed to change the Union's seniority policy were of no concern to the Company and were of concern solely to the Union. Economically and` practically the policies advocated by Sanders would have had no effect upon the Company. Admittedly, all of the Company's driver-employees were well quali- fied to perform their jobs, and it made no difference to the Company which par- ticular driver took any particular run, or in what order the runs were assigned to the drivers, as long as qualified drivers were available to do the work. The changes in policy advocated by Sanders and his fellow employees would have made no dif- ference to the Company in this respect. Contrary to the situation in the Salt River Valley case, there is no proof in this record to establish that Sanders' concerted activities were the cause, or even a reason, for the Company discharging him. It might perhaps be argued that because the Union was a strong and militant group, and the Company was aware of the concerted activities and the Union's opposition thereto, the Company might have discharged Sanders, even though his union ac- tivities were of no direct concern to the Company but because they were opposed by the Union, in order to cement relations with the union officials. To conclude that the Company discharged Sanders merely to curry favor with the Union, in the absence of any evidence of opposition to the concerted activities and of proof that the concerted activities in any way concerned or affected the Company, would be at best mere speculation. A preponderance of the reliable evidence in the record considered as a whole convinces me, and I find, that the General Counsel has failed to sustain the burden 2 Salt River Valley Water Users Association, an Arizona Corporation, supra. 9 Nu-Car Carriers, Inc., 88 NLRB 75, enfd 189 F 2d 756 (C A. 3). 338207 -55-vol 110-10 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of proof to establish that the Company discharged Sanders because of his concerted activities. D. The alleged threat by the Company to discharge Dunbar because of his concerted activities and because he filed charges and testified in the previous case against the Company and the Union The complaint alleged that the Company threatened to discharge Dunbar be- cause of his concerted activities engaged in with Sanders and other employees, be- cause Dunbar had filed charges and testified against the Company and the Union in the previous case, and for the further purpose of intimidating and discouraging him from testifying on behalf of Sanders in the present case. Dunbar was one of the active leaders with Sanders in the concerted activities designed to change the policies of the Union on seniority and the assigning of extra work , and was among the persons who filed charges resulting in the former hearing at which he testified as a witness for the General Counsel. As in the case of Sanders, because of the many communications between Sanders, Dunbar, the Company, and the Union, there can be no doubt but that the Company was well aware of Dunbar's role in the dispute going on within the Union. Sanders testified that during one of his con- versations with Baker, Baker complained to him about the many letters of com- plaint written to the Company by the employees about the dispute with the Union, the threats of suit against the Company by the employees, the filing of charges with the Board against the Company, and contended that the drivers were putting the Company in the middle and that something would be done about it. Baker denied ever having made any such statement to Sanders, and I credit Baker. Dunbar, as previously found, was following Sanders along the highway on January 13, was accused of speeding through Jonesburg and St. Charles by Baker and Lohrey, and was given a warning letter for such speeding the following day. Dunbar denied that he violated any speed limits that night. The tachograph device on his; truck was not working, so there is no tachograph chart in evidence concerning his trip. Even assuming that Dunbar was not speeding on January 13, there is no evidence in the record that the Company gave him a warning letter for speeding because of his concerted activities, because he had filed charges and testified in the previous case, or to discourage him from testifying in the present case. With respect to the latter, Sanders had not filed his charges in the instant case at the time Dunbar's warning letter was issued. On the occasion of Sanders' discharge in St. Louis, Dun- bar accused Baker of laying for them, and told Baker that he might as well dis- charge Dunbar then as later. It was undisputed that Baker denied this, and ad- vised Dunbar that as long as he did his job correctly he would not be discharged. During February 1953, the Company received an insurance checker's report ad- vising it that Dunbar had been observed driving his truck at 57 miles per hour and passing another vehicle in a no-passing zone while approaching a blind curve in the road. The Company's speed limit on the open highway was 50 miles per hour. Baker left word for Dunbar to see him about this report but it was not until some- time in March that Dunbar got around to seeing Baker about it. This was, of course, some time after Sanders' discharge and after he had filed his charges with the Board against the Company and the Union. In the conversation which ensued, Dunbar accused Baker of trying to trap him through the insurance company's check- ers and to fire him. Baker replied that he did not know what Dunbar was talking about. Dunbar testified that Baker told him that Baker knew some of the union men were giving him a rough time, and that if the trouble that he and Sanders had stirred up with the Union and the Board would die down, Dunbar could continue to work as long as he did the job. Dunbar also said that Baker then told him that it would not do him any good to appear as a witness for Sanders at his hearing, but as long as the trouble was stirred up Baker was going to wash his hands of it. Dunbar said that Baker told him that Baker did not like a remark which Dunbar had made at Sanders' unemployment compensation hearing, when Sanders had asked Dunbar if he could lay off and testify for him, and Dunbar had replied that he would just as soon do so because it was the season when blizzards occurred and the drivers got fired for having wrecks. Baker denied all of the above statement's attributed to him by Dunbar except that concerning the unemployment compensa- tion hearing. Baker admitted having a conversation with Dunbar about his un= favorable insurance checker report. Baker admitted that with respect to the inci- dent at the unemployment compensation hearing, he told Dunbar that he did not like Dunbar's statement made, in public, in response to Sanders' inquiry if Dunbar could lay off for the next hearing, that he would just as soon do so because the drivers got fired for having wrecks during the blizzard season. Baker said that he PACIFIC INTERMOUNTAIN EXPRESS COMPANY 131 had told Dunbar that he did not like the statement made because it reflected upon Baker, the other supervisors, and the Company. He testified that he explained to Dunbar that the Company had to operate in all kinds of weather and it was neces- sary for the drivers to do their jobs. Again, as in other incidents, it is apparent from Dunbar's testimony that he originated the subject of the Company trying .to get rid of him. I credit Baker's version of the conversation. On April 7, 1953, Dunbar was involved in an accident in which his truck left the road and ran into a ditch. An investigation of the facts of that accident led the Company to conclude that Dunbar was guilty of carelessness and recklessness and ,of driving at excessive speed under the circumstances. The Company issued a warn- •:ing letter under the contract to Dunbar on April 10, 1953. Dunbar admitted the facts as alleged by the Company but contended that he was not negligent under the cir- cumstances and was not driving too fast. An analysis of the facts leads me to believe that Dunbar 'was operating his vehicle at an excessive speed under the circumstances there prevailing. In any event, the Company merely issued a warning letter to him. As previously found, the contract provided that an employee could not be discharged for an offense, with certain exceptions, unless a warning letter for the same or similar offense had been issued within the preceding 9 months. Dunbar had been given a warning letter for speeding on January 13, 1953. The Company concluded that Dunbar was driving at an excessive rate of speed under the circumstances in the accident of April 7, 1953. Under the terms of the contract, it seems apparent that if it had chosen to do so, the Company could have discharged Dunbar on that occa- sion. If, as the General Counsel and Dunbar contend, the Company was out to get him because of his concerted activities and because he filed charges and testified, in the previous case, it is difficult to understand why, when an opportunity within the terms of the contract arose, it did not carry out its plan. Actually, I believe the evidence establishes that the Company was giving Dunbar every opportunity to do his job and was not attempting to cause his discharge because of his concerted activities. In connection with the accident of April 7, the Company sent one of its driver- foremen;-Milton Fleming, to investigate the circumstances. He arrived at the place where the truck was in the ditch and had an extended conversation with Dunbar concerning the accident. Dunbar testified that Fleming on that occasion told him to quit his job because of the trouble with the Union that he and Sanders had stirred up. Fleming denied ever having made any such statement to Dunbar. Fleming testified that in the course of his conversation on that occasion with Dunbar, Dunbar complained bitterly about various supervisors of the Company and other employees, and that Fleming then told him that if he felt so strongly about the Company's supervisors it was bound to affect his driving, and it would be better if he quit before he had a bad crackup. On that occasion Fleming sent Dunbar back to Kansas City via another company truck, and subsequently issued the warning letter to Dunbar. Although Dunbar contended that Fleming had fired him at the time, Fleming denied this and stated that he only told Dunbar that he was going to issue a warning letter, which in fact he did . It is undisputed that the Company reimbursed Dunbar for the several days' time elapsing between the accident and the next time he went out on a run. I credit Fleming's version of the conversation with Dunbar. Further corrobora- tion of the fact that the Company was not trying to entrap Dunbar and looking for an excuse to fire him is furnished by the fact that shortly after the accident of April 7, 1953, Dunbar was involved in another serious accident in which two people were killed . After investigation , Dunbar was completely exonerated and cleared by the Company of any fault and was so advised by Baker. Dunbar was still driving for the Company at the time of the hearing. A preponderance of the credible evidence in the entire record convinces me, and I find, that the Company did not threaten to discharge Dunbar because of his con- certed activities, because he filed charges and gave testimony in the previous case, or in order to intimidate and discourage him from testifying in the instant case. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Company has not engaged in any unfair labor practices in violation of Section 8 (a) (1), (3), or (4) of the Act. 4. The Union has not engaged in any unfair labor practices in violation of Section 8 (b) (1) (A) or (2) of the Act. [Recommendations omitted from publication.]