Grane Trucking Co.

Grane Trucking Company and Jerald E. Cardin. Cases 13 CA 16217 and 13 CA 16652 March 16, 1979 DECISION AND ORDER BY MEMBERS PENEhI .O, MURPHY, AND TRUESDAI.E On August 1, 1978, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in response to Respondent's exceptions and in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions' of the Administrative Law Judge, to modify his remedy," and to adopt his recommended Order, as modified below.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Grane ' Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent also excepts to the Administrative Law Judge's finding that Director of Personnel and Safety Robert Hirtz did not deny making the statement that he "would get employees] Harry Kinne and Jerry Cardin if it was the last thing he ever did." Contrary to the Administrative Law Judge, it is clear from the record that at the hearing Hirtz denied having made such statement. However, in view of the Administrative Law Judge's other credi- bility findings, and particularly his specific crediting of employee Ladd's testimony that Hirtz made the above statement, we agree that a violation of Sec. 8(aXI1) in this regard has been established. 2 We agree with the Administrative Law Judge's conclusions, for the spe- cific reasons set forth by him. that the Spielberg defense is not available to Respondent with respect to the issues concerning discriminatee Cardin. We therefore find it unnecessary to pass on the Administrative I.aw Judge's reliance on other unspecified reasons to support his conclusion. 3 In citing Florida Steel Corporatrion, 231 NLRB 651 11977), and Isis Plumbing & Heating Co.. 138 NLRB 716 (1962), the Administrative Law Judge inadvertently omitted any reference to the interest which is to be applied to the hackpay award. ' We find ment in Respondent's exception to that portion of the Adminis- trative Law Judge's recommended Order which provides that Cardin be fully reinstated in view of the fact that on February 24, 1977. following his sus- pension. he was fully reinstated to his previous position. We shall modify the Administrative l.aw Judge's recommended Order accordingly. GRANE TRUCKING COMPANY Trucking Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied. 1. Substitute the following for paragraph 2(a): "(a) Make Jerald E. Cardin whole for the loss of pay he suffered by reason of Respondent's discrimi- nation against him in accordance with the recommen- dations set forth in the section of this Decision enti- tled "The Remedv." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONA. LABOR REI.ATIONS BOARD An Agency of the United States Government Following a hearing in which we participated and of- fered evidence, the National Labor Relations Board has found that we violated the Act. We have been ordered to post his notice and to abide by what we say in this notice. WE WILL NOT suspend or discipline employees for engaging in union or other concerted activi- ties with other employees for their mutual aid and protection. WE WILL NOl issue and enforce invalid no- solicitation rules and WE WILL rescind and re- voke our present invalid no-solicitiation rule, known as Rule II, A and B. WE WlI.l. NOT warn employees that it is futile to file grievances or tell them that we will persist in our actions despite adverse grievance proce- dure findings and that grieving employees would leave Respondent. WE WILL NOT threaten employees with loss of employment or other reprisals if employees per- sist in filing grievances or assist the Union. WE WILL NOT incite employees to shun other employees by saying that certain employees "blew the whistle" to the Department of Trans- portation. WE WILL NOT in any other manner interfere with, restain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WILL make whole Jerald E. Cardin for the pay he lost as a result of our discrimination, with interest. All our employees are free to become or remain members of the Truck Drivers, Oil Drivers, Filling Station and Platform Workers' Union, Local No. 705, 241 NLRB No. 19 133 I)l ('lSIONS OF NA IONAI. LABOR RLA IONS B)ARI) an affiliate of the International Brotherhood o l' eam- sters, Chauffeurs, Warehousemen and Helpers of America GRANE TRI:(KINi (C)OlI'ANY DE(ISION SIAII-MEN1-I ( I (CASi JOIN M. DI)'IR, Administrative L.aw Judge: On FehrurL 16, 1977.' Jerald E. ('ardin, herein called ('ardin, filed a charge in ('ase 13 (CA 16217 alleging that (irane Trucking Company, herein called the ('ompany or Respondent, vio- lated Section 8(a)( ) and (3) of the i\ct hy suspending Car- din because he engaged in protected concerted activities in seeking to redress a grievance. On May 9 the Regiona.l I)i- rector issued a complaint which alleged that Respondent violated Section 8(a)(3) and (I) by its suspension of ('ardin because he engaged in union and protected concerted ac- tivities and violated Section 8(a)() by maintaining an overly broad no-solicitation rule and by threats and re- marks of' its supervisors. Respondent's timely answer admitted the service and commerce allegations, the status of Truck rivers, Oil l)rivers, Filling Station and latforim Workers' [Union, lo- cal No. 705. an affiliate of the Interllational Brotherhood of Teamsters, Chauffeurs, Warehousemen and I lelpers of America, herein called the Union, as a union, and the su- pervisory status of certain of' its personnel and that it had suspended ('ardin. Respondent denied that it had violated the Act in any manner and claimed the complaint under the Spielberg doctrine should be dismissed because a con- trary award had been made by a grievance body. Cardin filed the charge in ('ase 13 ('A 16652 on July 13. alleging violations of Section 8(a)( I) (3), and (4) by Re- spondent. A complaint wias issued by the Regional l)irector on August 26. alleging violations of Section 8(a)( I) in that Respondent had caused the ostracism o ('ardin by his el- low employees and an order consolidating the two cases was issued on August 26. Respondenit filed a timely answer to this latter complaint, again admitting the similar allega- tions admitted prior but denying that it had violated the Act in any manner. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally at the hearing held in ('hicago Illinois. on October 19. Briefs from Respondent and the General Counsel were re-- ceived and considered. The question to be answered is whether Respondent sus- pended Cardin in February and caused ostracism of him in May because Cardin was exercising his rights under the Act. I have concluded that such was the reason f'or Respon- dent's suspension and treatment of ('ardin and accordingly will find that Respondent violated Section 8(a)( ) and (3) of' the Act. On the entire record in this case, including the exhibits and testimony and various contradictions in testimotny, and nless specifically staled otherwise. the ecllts hereil look place dluring the latter part of 1976 and the tirsl halt ol 1977 on m5 evaluation of the reliability of the witnesses based on such eldence and their denmeanior I make the fllowing: IINI)IN(os ()l F.\( 1 1. ( ()MMI:R( IINIIN(iS ANDI) INI()N SI I IS (irane rucking (ornpan is an Illinois corporation with its principal place of' business in (Chicago where it is en- gaged in the transportation of freight. I)uring the past year, Respoindent received gross revenlues in excess of $50,000 for transporting goods and materials in intterstate commerce or from functioning as an essential link in the transportation of goods and materials in interstate commerce. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I finid that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. 11. iltI NFAIR ABOR I'RA( I(1 IS A. Background and Undisptl d FOclcT From the testimony, it appears that Respondent's princi- pal business is picking up piggyback trailers rom various railroad freight yards and delivering them to destinations in and around ('hicago, ncluding other railroad reight yards. The drivers employed are dispatched fronl the office and by radio in their tractors to va;rious locations in and aroiund the city of Chicago. 'I'he charge alleged that Respondent em- ployed approximately 160 persons. The business is apparently owned by the Grane brothers. Identified were Thomas G(rane vice president. and Fred Grane, operations manager. Under them were Robert lirtz, director of personnel and safety: Richard rnst, assistant safety director aid Michael '1' Ran. director of' dispatch operations. Respondent has had a contract with the Union for a number of xears. Under its contract, employees are to re- port fol work at 8 a.m. and are to receive overtime for any work perforsed after 5 p.m. Apparently in 1975 Respondent and the Union. despite some opposition fomrn the employees. reached n agreement to give a variance to Respondent to enable it to start opera- tions on a flexible time basis, and Respondent thereafter began instructing a number of its drivers to report or work at 10 a.m. These drivers received overtime after 5 p.m. The fact that the drivers who reported at 8 a.m. did not begin receiving overtime until after 5 p.m. became a source of dissatisfaction to them in that they were working I-1/2 to 2 hours longer hef'ore receiving overtime paly 'The Company said it wanted the flexibility of' a starting time at 10 a.m. because at a number of freight yards the piggyback trailers do not become available for unloading until 9:30 a.m. and it did not feel that the normal industrial starting time of 8 a.m. should apply to all of its operations. On November 19, 1976. Cardin and II other employees filed a grievance which alleged that Respondent had been guilty of harassisment. extortion, discrimination, anid intimi- dation in a number of' instances. I his grievance also sought 134 GRANE TRUCKING COMPANY discontinuation of the 10 a.m. start and payment of a com- pensating amount. The grievance meeting was held on De- cember 3 with representatives of the Company and the Union present as well as employees Jerald E. Cardin, Don Jarva, Harry L. Kinne, Vincent L.add, Steven L. Malenk. and Ardell Overman. The form on which were written the results of the grievance meeting was received in evidence and indicates that the substance of the grievance was up- held including the right of men to go to the director of personnel or the operations manager when they have com- plaints rather than going directly to Mike Ryan, whom, it was alleged, had intimidated the men. Certain warning let- ters were rescinded and the alleged practice of getting un- dated resignations from employees was discontinued, with the Company stating that it had never done so. The one area left open was the 10 a.m. starting time. According to testimony, this question was to be resolved by union coun- sel. B. The Evens of Januan and February Vincent Ladd, who was terminated by Respondent in January 1977 and is presently working elsewhere, testified that in early January as he was going to the dispatch office he passed the office of Robert Hirtz and overheard Hirtz tell somebody else in Hirtz' office that he would get Harr Kinne and Jerry Cardin if it was the last thing he ever did. Hirtz testified that he did not remember making any such statement. He stated that at another time in a grievance meeting Cardin accused him of being out to get Cardin and that he denied it. He further stated that he was not out to get Cardin or any other driver. Hirtz' testimony is not a denial that he made the state- ment to which Ladd testified. On January 26 Ardell Overman hit a viaduct with his trailer and was terminated at that time. Michael Ryan drove Overman back to the terminal. Overman testified that Ryan told him he was sorry that he had gotten fired, that he did not want to fire Overman, but that Fred Grane wanted to get rid of him. Ryan said that he was shocked to see Overman's name on the grievance filed with the Union, that he had always liked Overman, and that it had made him look bad with all the complaints against him. Overman said that they were on different sides of the fence. Rvan said that the guys were trying to do him damage but rather did him good, that when the company people returned they con- gratulated him on the job he was doing. Ryan added that all the things the guys filed against the Company had not been changed, that the guys were going to lose anyway. then added that now there were only five of them left. When Overman asked what that meant, Ryan said well. you are terminated. When asked whether he made any statement about there being only five employees left now, Ryan said he did not remember that particular statement. Ryan said he talked to Overman about a number of problems that Overman had, including his car breaking down and being frustrated about other things, including Overman's wife leaving him. He stated that Overman said he guessed he had gotten fired because he was one of the six guys at the hearing to which Ryan said he replied, "'1 don't really know. I was surprised you were there, if that's the reason you're being fired. I didn't fire you." Harry 1L. Kinne testified that on January 27 he had a conversation with Ryan in which Rvan said "You know, you guys went down to the union and beefed and said, 'Mike this and Mike that.' and it didn't do a bit of good. As a matter of fact they come back and congratulated and told me what a good job I do." Kinne asked if that meant that it was Grane policy to have dissension among the men and morale down. Ryan answered that he guessed so. Ryan testified that he recalled talking to Kinne on that day but did not recall anything being mentioned about the grievance. As to both these conversations, Ryan's testimony does not amount to a denial and, in Overman's case, is almost confirmation. In response to Respondent's discharge of Parker and Overman, some of the employees apparently engaged in harassment of the dispatcher's office by frequently request- ing routing for routes they already knew. One of the em- ployees accused of such harassment was Donald Jarva. On January 28 he was asked to report to Fred Grane's office, and Union Steward Dwayne Capp went with him. Grane told Jarva that he was going to fire him for harassing the dispatcher. When asked what he meant, Grane said Jarva was asking for a routing he already knew. Jarva said he needed his memory refreshed because there had been a lot of accidents with viaducts. Union Steward Capp talked to Grane outside the office, came back in a few minutes and then he and Jarva went to a second office where Fred Grane was. Grane said "Why don't you quit hanging around with them other guys. Why don't you act nice like you can. You know you guys are going to lose." Jarva said he did not know what Grane was talking about. Grane said he could not take him back because of what he had done on the radio. Jarva said he would file a grievance and get his job back. Grane said he would take him back if he would sign a statement admitting that he had been harassing the dispatcher. Jarva said he would not do so. Grane said he was going to have to let Jarva go. Jarva asked Capp whether he went to the union hall to file a grievance or what. Grane broke in and said "I'll take you back but if you ever talk to the union about me or the company when they come down here, I'm going to burn you." Jarva was then reinstated. Overman and Parker were reinstated too. In early February, Cardin filed a grievance concerning the 10 o'clock starting time, and a grievance meeting was set for February II. According to Cardin, Fred Grane and Robert Hirtz represented the Company while Union Agent Peter Janopulos and another union agent and Cardin were present. Cardin felt the Union did not want to process the grievance, became very upset with the way Janopulos was conducting it, got angry. and left the meeting. Janopulos followed him out into the hall where Kinne and Overman were waiting. According to Cardin, Janopulos told him not to be so belligerent and to get a petition up and get it signed by the employees. Originally, Janopulos said to have 100 guys sign it and he would take it up with the Union's gen- eral counsel. Cardin stated that when Janopulos told him to get up a petition, he told Janopulos that was not his job, for Janopulos to get it. He denied that Janopulos told him whether to get it on his own time or company time and said 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Janopulos did not instruct him regarding time. Later, Jano- pulos said Cardin should get at least six or seven people to sign it and he would take some action on it. Kinne and Overman stated that when Cardin came out of the meeting, Janopulos followed him and told Cardin not to be such a hothead, to get a petition up, get it signed and bring it back to them and they would take some action on it. When Cardin asked how many names he needed, Jano- pulos said he did not care, to get him six or seven. Robert Hirtz testified that in the grievance meeting on February 11 the filing of a petition was discussed and that Janopulos told Cardin that if he wanted to file a petition, he could do so and he would show him how to do it but that he would not authorize the giving of the petition to drivers on company time, that Cardin could do it on his own time. Cardin testified that he wanted the problem resolved by doing away with the 10 a.m. start and further by paying a sum of approximately $3,000 to each of the men who had been working at the starting time of 8 a.m. Cardin con- tended that they had been discriminated against since they were not paid for overtime until they had worked 8 hours and passed the 5 p.m. overtime starting time. He argued that those who started work at 10 a.m. and worked 6 or 6- 1/2 hours until the 5 p.m. overtime commencement had received that much more and that to be fair about it, Re- spondent should pay those who had worked the 8 a.m. starting time this differential. Fred Grane testified on direct examination that there was no resolution of the 10 a.m. start and that Cardin wanted all employees to work 8 hours before receiving overtime and he agreed with Cardin that this was a good idea and he was for such a change but the Union was against it. He stated that in the meeting Cardin asked how to change it and Janopulos told him that a petition could be signed and would have to go before the Union's board of governors. Grane's testimony is not clear in certain respects but he indicated that the petition was to be gotten together by employees on their own time and that he volunteered to help Cardin get up such a petition. He further stated that Janopulos made it clear that he was not authorizing such a petition as a union activity and told Cardin to write it to the board of governors and that Cardin was to do it on his own time and that under no event was it to be done on company time. During cross-examination Grane was asked whether or not it was Cardin's position that the men who had started at 8 o'clock were being cheated out of overtime and that the company owed each of them some $3,000, and Grane said that he had heard such a figure and that it was possible. Cardin prepared a petition.' In addition to Cardin, there 2 The body of the petition is as follows: We, the undersigned, are employees of Grane Trucking Company, and members in good standing in local 705, .B. of T. This petition is being signed at the request of Mr. Peter Janopulos, agent of local 705 I.B. of T. We do not want, and never did want a shift starting at 10:00 A.M. It was not voted in by the majority of the employees of Grane Trucking Company, nor did it put more drivers back to work as it was reputed to do. We have been discriminated against in our wages by having to work about 1-1/2 hours more to receive the same pay as the 10 o'clock men. This was supposed to be 'a temporary thing,' but after two years, the regular drivers have lost over 3,000.00 and Grane Trucking has not rehired all of the men originally laid off. The situation can be corrected are some 38 other signatures on the petition which is dated February 14. It was circulated to the men on February 14 and 15 by Cardin who said he circulated the petition on the morning of the 14th in the coffee shop before beginning work and had a number of drivers sign it at that time. He circulated it in the terminal both before and after punching in and at other times on February 14 and 15. Around 5:20 p.m. on February 15, Cardin was in his tractor at the B & O Railroad piggyback yard and saw employee Parker approaching him in another tractor. He signaled Parker to a stop, left his tractor and went to Parker, told him about the petition, and secured Parker's signature and was back in his tractor in a bit over I minute. Parker and Cardin were looking for trailers to pick up in the B & O piggyback yard. Cardin found his trailer and moved it to the checkout point. At that time Richard Ernst approached and asked if he just had Parker sign the peti- tion. Cardin admitted it and Ernst suspended him, saying he was not to move the truck and he would drive Cardin back to the terminal. He told Ernst he could not suspend him for this because he was told to do it by the Union. Ernst replied that he was told by Fred Grane to suspend him and he was doing so. Cardin remembered no particular conversation on the way back to the terminal and did not recall being told to see Fred Grane. He turned in his bills and paperwork and left. Ernst testified that he was instructed to go to the piggy- back yard by Fred Grane who said he had received knowl- edge that Cardin was "stealing time" and that he went out to the yard to watch. He said that when he got there he heard over the radio that Cardin was looking for a trailer and he observed Cardin moving his tractor to find the trailer. He saw Cardin stop his tractor when Parker ap- proached in his tractor, saw Cardin leave, talk to Parker, and return to his tractor. After Cardin left, Ernst stopped Parker and asked what had taken place and was told that Cardin had stopped him and asked him to sign a petition and he had done so. He found Cardin at the checkout office and suspended him per Fred Grane's instructions. When he arrived back at the terminal he instructed Cardin to go up- stairs and see Grane and when he went into the terminal, Cardin was working on his bills and he assumed Cardin was going to straighten those out and then see Grane. He went to Grane's office and told him Cardin was downstairs, and Grane followed him downstairs but by that time Cardin had left the property. Grane testified that a couple of employees told him Car- din had stopped them and asked them to sign a petition and that they did not want to be accused of "stealing time." Grane said that if Cardin was doing this during the day while the men were in the regular performance of company work, it was a violation of company rules and was in viola- tion of the agreement he had with Janopulos. Grane never indicated what that agreement was. Because of this infor- mation, he sent Ernst to the B & O Railroad yard to see what Cardin was doing, with instructions that if he saw Cardin stopping drivers from performing their work, he was to suspend Cardin and have him come to the office to see by paying us our lost wages and terminating the 10 o'clock start. We feel it behooves local 705 I.B. of T. to take immediate action on this matter! 136 GRANE TRUCKING COMPANY him. He said that Cardin did not come to see him and within a day or so he called Janopulos concerning the mat- ter and asked Janopulos whether he had instructed Cardin not to use company time to circulate the petition, and Jano- pulos agreed that was what he had done. He said he dis- cussed the situation with Janopulos, and Janopulos advised him to have Cardin come to the office during the next week and discuss it, that what Cardin had done was to walk off the job. Janopulos advised that Grane have a good conver- sation with Cardin and put him back to work. He added that Janopulos advised him if Cardin did not come back to work within a week, to send a telegram telling him that he had a week's suspension. Grane said he sent such a tele- gram on February 22. After getting written confirmation of the telegram, Cardin reported back to work on February 24, but filed a grievance concerning the suspension. Janopu- los did not testify. It was stipulated that among Respondent's written rules, the only ones which deal with solicitation are the following: DRIVERS ARE NOT TO DISCUSS GRANE BUSINESS WltlI CUSTOMERS OR ANY OTHER PERSONS. DRIVERS ARE NOT TO CONDUCT ANY PERSONAL BUSI- NESS OR ENGAGE IN ANY OTHER ACTIVITY WHILE "ON THE CLOCK," LUNCH HOUR AND COFFEE BREAKS IN- CLUDED. When asked for his definition of personal time, Grane testified that he meant before or after company hours, or before punching in in the morning, and after punching out at night. Later, in the contradiction of Respondent's rule and his prior testimony, Grane stated that there could be personal time during the lunch hour. On February 16, Cardin filed a grievance which alleged that he had been told by the Union to get a petition to- gether and he was in the process of doing this when he was suspended. The grievance claimed that he was harassed and wanted to be put back on his job and compensated for the time lost. According to the record of the grievance, Janopu- los stated at the grievance proceeding that Cardin was rein- stated without compensation on February 23 and was claiming compensation for the period of February 16 through February 23, with the exception of February 19. C. Events From March Through May Cardin testified that he did not hear when the hearing was to be held on his grievance and, on May 10, called the Union and spoke to a clerical who told him the hearing was scheduled for the next day. He told her he was sick and the doctor had told him to stay in bed, that he had not been notified of the hearing and could not be there and wanted the hearing postponed. She told him it would not be neces- sary for him to be there since the Union would be repre- senting him. He told her that there were things he wanted to say at the hearing and to put in his own evidence. She told him if he felt that way, she would talk to somebody else and they would put it off until the following meeting. He heard nothing further concerning the hearing until 2 weeks later when he called the Union and found that the hearing had not been postponed and was told his grievance was denied. The minutes of the grievance hearing concerning Cardin state that Cardin was not present but had called saying he could not attend because he was ill. The minutes state that since it was a wage claim, on advice of counsel the griev- ance board heard the case. The grievance was read, noting that Cardin wished to be compensated for the time. It was stated in the minutes that Cardin had filed a grievance on the suspension and it was through the intervention of the Union that he was put back to work, after the grievant went to the Labor Board before coming to the Union. The min- utes note that Cardin had stopped drivers on the street to have them sign a petition. The Company observed it, fired him, but he was now reinstated and claiming lost wages. Nothing more was stated and, on a motion, the claim was denied. Cardin testified that in May the employees heard rumors that a Department of Transportation inspector had come to Grane Trucking and gotten some records to check out the drivers' logs. An employee named Bartlett approached Car- din and asked if Cardin had been the one to call DOT and cause the problem for Grane. He denied it. Another driver asked Cardin if he had sent a letter to the Department of Transportation and again Cardin denied it. Employee Michelli told Cardin that he had talked to Mike Ryan the previous night and Ryan was telling everybody that it was Cardin who blew the whistle on Grane with the Depart- ment of Transportation. Michelli said that Ryan asked him what was wrong with Cardin, why he was different, and again said that he was the one who had blown the whistle. Cardin denied it to Michelli and went to the dispatch office and asked Ryan why he had told Michelli that he was the one who called DOT. Ryan denied it. Cardin said that Michelli was standing outside by the clock and he would bring him in and he could tell Michelli to his face that he was lying. Ryan told him not to bring him in, that he did not want an argument with Michelli. Ryan said they did not need trouble from the DOT and they would find out who had caused it and would get him. Michelli testified that he had a conversation with Ryan concerning the Department of Transportation and asked Ryan who had called DOT, and that Ryan said it was prob- ably Cardin. Since Michelli had some log irregularities, he was concerned and asked Cardin about it. He stated he was angry with Cardin and did not speak to him in the same manner as he had done previously. Cardin noted that a number of the drivers refused to speak to him after this event. Ryan was asked if he recalled the testimony of Cardin and Michelli and indicated he had. He said that he did not recall any conversation with Michelli although he had talked to him on numerous occasions. He said that as far as making any accusations, he would have to say no, that he could not do so and did not make any accusation that Car- din was the one who had turned the Company in to DOT. He stated that Cardin did come into the office and ask if he had been spreading rumors that it was Cardin who had called DOT. Ryan said that he had not made such a statement to anybody and not to Michelli and told Cardin to bring Michelli up and he would confront him, and Cardin turned around and walked out. 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. A nalsis and Conclusions Respondent argues that the Board should defier to the finding of the bilateral arbitration board's decision regard- ing Cardin. Respondent argues that the minutes of the meeting show that Cardin was adequately represented and that the issue of whether he was properly disciplined for "stealing time" was decided against him. The facts, however, demonstrate the opposite. They show that Cardin was not represented by the Union adequately in such a proceeding, that Cardin had expressly requested a postponement of the proceeding until he could he there to present his own evidence, and although being assured that such would take place, the Union nevertheless pursued the grievance without him being present. Similarly, the testi- mony of Fred Grane that there was an implicit understand- ing between him and Union Agent Janopulos that Janopu- los would approve a week's suspension of Cardin because of Cardin's action in getting the petition signed, further dem- onstrates that Cardin could not have been adequately rep- resented at the proceeding. For these and other reasons the Spielberg defense is not available to Respondent here. It is clear on its face that Respondent's rules concerning solicitation are overly broad and unlawful in that Respon- dent forbids any actions after the employees have punched in and until they have punched out, and specifically in- cludes in the prohibition the employees' lunchtime and breaktimes. Fred Grane adhered to this definition in defin- ing personal time, until later in his testimony he excepted lunchtime. There is no question but what Cardin was soliciting sig- natures on this petition, both during his own time and dur- ing company time. Respondent has sought to escape its own rule by changing the violation from soliciting to "stealing time" despite the fact that Cardin was disciplined for violat- ing "company rules" by his actions. It is clear under Board law that where an employee is disciplined under an invalid rule, the discipline itself is in- valid, and the employee must be reinstated and made whole. Respondent in this case is attempting to circumvent Board law by calling the solicitation engaged in by (ardin "stealing time." To bolster its position, Respondent intro- duced its records which showed that Respondent had given discipline to employees who had been "stealing time." However, Respondent's documents show that all that was involved was employees not reporting when they were going for lunch, using a few minutes of company time for personal time or things of that nature, and the only disci- pline exacted by Respondent was the issuance of a warning letter. Respondent did not show that at any time an em- ployee had ever been fired or suspended for "stealing time." I credit Cardin, Kinne, and Overman in their description of what happened at the union hall in regard to Janopulos's instructions to Cardin concerning getting up a petition. I do not believe and specifically do not credit the testimony of Grane and Hirtz that the discussion concerning getting up a petition took place during the meeting in their presence and that Janopulos was specific in his instructions as to how, when, and where Cardin was to get up the petition. This testimony is too pat and too well tailored to the situation. In reaching this credibility resolution, I have specifically considered Grane's testimony where he sought to align him- self with Cardin in regard to the overtime situation. In iso- lation, Grane's testimony would indicate that Cardin and he were seeking to do away with any overtime payments before an employee worked 8 hours. It was only during his cross-examination that Grane admitted that he had heard something about a $3,000 payment to each of the employ- ees who started work at 8 a.m. and therefore did not receive overtime until after 8 hours' work. The brunt of Cardin's grievance along with the other em- ployees regarding the 10 o'clock starting time was that they should receive overtime payment after working 6 hours in the same manner as those who started at 10 o'clock. Clearly, Grane was not acquiescing in this request. Grane was a voluble witness who sought to give false impressions, and I do not credit his testimony where it conflicts with Cardin and the other employees who testified for General Counsel. From the testimony set forth above, it is clear despite Grane's testimony that Respondent had a great deal of ani- mus against the employees who filed the original grievance, attended the grievance meeting, and persisted in the second grievance. The undenied testimony of Overman and Kinne indicates clearly that Respondent was on a collision course with its employees and sought to rid itself of those employ- ees who were causing it problems in regard to the flexible time, or 10 o'clock start, where it could do so without caus- ing itself too much grief with the Union. Ryan did not deny the testimony of Overman and Kinne. The language of the grievance meeting minutes regarding Cardin's suspension is particularly interesting. As was noted supra, most of the testimony alleging viola- tions of Section 8(a)(1) was not denied, and I credit the General Counsel witnesses that such statements were made. Hirtz did not deny Ladd's testimony that he had overheard Hirtz say he would get Kinne and Cardin if it was the last thing he did. Hirtz only testified that he did not remember making any such statement and inferentially sought to put a gloss on his lack of remembrance by saying that he actu- ally was not out to get any of the drivers. This is an evasion of a denial. and I do not believe it and I credit Ladd's testimony. The testimony of Michelli and Cardin in regard to what Ryan said in accusing Cardin of blowing the whistle to DOT on the Company is more credible than Ryan's denial. Michelli, who is still an employee and under Ryan, testified specifically that this came from Ryan and admitted that he did not thereafter like or bother to talk to Cardin. I have no reason to doubt Michelli. I credit Michelli and Cardin that this event took place as they testified and do not credit Ryan's denial. Accordingly, I find that Respondent has committed vio- lations of Section 8(a)(l) by the various statements of Ryan, Hirtz, and Fred Grane set forth above and by the promul- gation, maintenance, and enforcement of an unlawful no- solicitation rule, and further find that Respondent violated Section 8(a)(1) and (3) of the Act by its suspension without pay of Cardin, and will make appropriate recommenda- tions to remedy these violations. 138 GRANE RUCKIN(i (COMPANY 111. TI I I FFE(I Of tHE UNFAIR I.AB()R PRA( UII(S UPO()N (()OMI-R( The activities of Respondent set forth in section 11 and therein found to constitute unfaiir labor practices in viola- tion of Section 8(a)( I ) and (3) of the Act. occurring in con- nection with Respondent's business operations as set foirth above in section I, have a close. intimate. and substantial relationship to trade. traffic, nd comimerce among the se - eral States and tend to lead to labor disputes burdeningi and obstructing commerce and the free flow of commerce. IV. fill RI MHIL)D Having tound that Respondent engaged in the unllfair la- bor practices set forth above, I recommend that it cease and desist therefrolrl and take certain affirmlative action de- signed to effectuate the policies of the Act as follows: laving found that Respondent suspended Jerald . ('ar- din on February 15, 1977, and did not thereafter offer him full and immediate reinstatement, I recommend that Re- spondent offer him immediate and full reinstatement to his former position or, if such position has been abolished or changed in Respondent's operations, then to any substan- tiall} similar position, without prejudice to his seniorit or other rights and privileges, and that Respondent make him whole for any loss of pay he may have suffered b reason of Respondent's discriminator suspension hby payment to him of a sum equal to that which he would have normally re- ceived as wages from Februar' 1 until February 24, 1977, less an, net earnings for the interim. Backpa is to he com- puted on a quarterly basis in the manner prescribed in F. W. t4ooliwortli ('ornpane, 90 NLRB 289 (1950), atnd Flor- ida Steel (Corporation 231 N.RB 651 (1977). I further rec- ommend that Respondent make available to the Board, upon request, payroll and other records in order to facilitate checking the amounts of backpas due and other rights he may be entitled to receive. Having further found that Respondent's no-solicitation rule is invalid and that in enforcing such rule Respondent implicitly warned its employees, it is recommended that Re- spondent rescind its rule prohibiting solicitation and so no- tify its employees. '()N('I.C SIONS OF I.A", 1. Respondent is an employer 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. Respondent violated Section 8(a )( 1 I and (3) tf the Act by its discriminatory suspension of Jerald FI. ('ardin be- cause he engaged in union aid concerted activities with other emplo ees for the purpose of mutual aid and protec- tion. 4. Respondent violated Section 8(a)1 ) of the Act bh: (a) Promulgating and enforcing aininvalid no-solici ttion rule. lb) Warning employees of the fuiilitx of filing grievances by stating that Respondent would persist in its actions de- I See. generally. I 1 Plumhing .&t lHaitg (., 138 N RB 71 (192) spite adverse grievance determinations and that the griev- ing employees would lease Respondent. (c) Threatening loss of emploNnlent or other reprisals if employees persisted in tiling grievances or assisting the [ nion. (d) Inciting emploees to shun a fellow emplosee by stat- ing that the employee had "''lown the w histle'' on the ('Conm- panm and eniployces to the l)epartment of I ransportation. :ponl the foregoing tindilgs of flect. conclusions of law, and the entire record, and pursuant to Section l()(c) of' the Act. I hereh issue the following recon mended: ()ORI)IR The Respondent, Crane Irucking (<onpan of ('hicago, Illinois. its officers. agents, successors, and assigns, shall: . ('ease and desist ronl: (a) Discriminatoril suspending emplorees because the engage in union or other concerted activities with other em- ploees fr their mutual aid ant protection. (b) Promulgating and enforcing an inva;lid no-solicita- tion rule. (c) Warning emplo\ ees of the ftbtilits of tiling grievances bh stating that Respondent would persist in its actions de- spite adverse grievance determinations and that the griev- ing employees ould leave Respondent. (d) Threatening loss of emplo ment or other reprisals if emplo\ees persisted in filing griexances or assisting the l nion. (el Inciling emploees to shun111111 fellow emploec hy stat- ing that the emplosce had "blown the whistle" on the ('om- pan} and emplo ees to the [)epartment of I ransportation. (f) In the same or anl other manner interfering with. restraining, or coercing emiploNees in the exercise of' the rights guaranteed them ulnder Section 7 tofi the Act. 2. ake the folloaling affirmlative action which is neces- sart to effectuate the policies of the Act: (atl ull reinstate and make Jerald . ('ardin hole for the loss of paN he suffered h reason of Respondent's dis- crinlilnation against him in accordance with the recommen- dations set forth in the section of this I)ecision entitled "The Remeds." (h) Re, oke and rscind Its no-solicitation rule and so no- tit) its emplow.es. (C) ost at its ('hicago. Illinois. terminal and office copies of the attached notice marked "Appendix.' " ('opies of said notices on frms provided h the Regional I)irector tfr Re- gion 13 shall, ater htinig dtul signed hN an authorized rep- 'In he cC¢ n cption are liled a. pre,\ided h Set 102 46) of the Rules and Reguilaio o the National I iabor Relation, Board. the indirgs, conclulin , a nd R.nlniientded (hrder herein hall. as prorided in Set It02 4X ,I the Rule, and HReg li ills, he adopted h Ihhe 1B-oard and hecoz le its lindings. CoTctlhins, Md Order, ad all lehlecttons thereto hal he tee i] t,ilu ', d Il all pl rpoces tn he eeiti that thi O()rder it enlored h . dglCl rit I a t itied States (ourt lt Appeal, thie .rds i ll tie lot tce redidlitg PT oed h Order of the Nnhlol i ab,, r Relation Board" hali re.ad "Posi ted Purualnl to a Judgment II the t nited State ( ourt otl \pp'ca tI ntbrL1nLg .r (Order t he Naorial [,lhor Relauin, B.oard1 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentative of Respondent, be posted by Respondent imme- diately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places. includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered. defaced, or covered by any other material. (d) Notify the Regional Director for Region 13. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 140