W. M. Chambers Truck Line, Inc

W. M. CHAMBERS TRUCK LINE, INC. 1081 W. M. Chambers Truck Line, Inc. and W. W. Pate. Case No. 10-CA-4578. August 17, 1961 DECISION AND ORDER On March 31, 1961, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, W. W. Chambers Truck Line, Inc., Birmingham, Alabama, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 612, or any other labor organization of its employees, by discharging or in any other manner discriminating in regard to their hire or tenure of employment or any terms or conditions of employment. 1 Pursuant to the provisions of Section 3 (,b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [Members Rodgers, Fanning, and Brown]. 2 We expressly disavow the Trial Examiner's comment, at footnote 4 of the Inter- mediate Report, respecting certain testimony given by Alvin Christie Christie , who had been called as an expert witness on behalf of the Respondent, testified that Pate, the Charging Party, was involved in several accidents which, in Christie ' s opinion, were "preventable." The Trial Examiner noted , however, that Christie reached this conclu- sion without having been apprised of all the facts , and admitting that additional informa- tion would be necessary to justify reaching the conclusion he reached Quoting Christie as saying , "we don't hold ourselves out, like the National Labor Counsel does, to be an authority on whether [an accident] is preventable or non preventable ," the Trial Examiner concludes (last sentence of footnote 4) : "Perhaps it is just as well he does not." Insofar as this comment may be construed as impugning the competency of Christie in the performance of his duties for the Interstate Commerce Commission, we do not adopt it, noting however that our disavowal does not affect the Trial Examiner's other conclusions or our concurrence therein. 132 NLRB No. 88. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 612, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer W. W. Pate immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discharge in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its terminal in Birmingham, Alabama, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth, Region, shall, after being duly signed by the Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices 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 said Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers Local W. M. CHAMBERS TRUCK LINE, INC. 1083 Union 612, or in any other labor organization of our employees, by discharging employees or in any other manner discriminate in regard to their hire or tenure of employment, or any term or con- dition of their employment. WE WILL offer to W. W. Pate immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to any seniority or other rights previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. W. M. CHAMBERS TRUCK LINE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Birmingham, Alabama, on January 4 and 5, 1961 , pursuant to due notice and with all parties being represented by counsel . The complaint, issued by the General Counsel of the National Labor Relations Board , herein called the General Counsel and the Board, on November 29, 1960, and based upon charges duly filed and served, alleged that Respondent had engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act by discriminating against its employee , W. W. Pate, because of his membership in and activities on behalf of the Union and because he engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection , and further engaging in various specified acts of interference, restraint, and coercion against its employees in connection with their union activities. In its duly filed answer Respondent denied the commission of any unfair labor practices. During the hearing Respondent offered evidence as to the number of accidents each driver had during the year 1960 in the Birmingham terminal up to the end of September. Before I closed the hearing I requested that Respondent augment this information with a report on the number of accidents attributed to each named driver from all of its terminals for the years 1957, 1958, 1959, and 1960 . Respondent submitted such information in a 34-page exhibit which I hereby receive in evidence as Trial Examiner's Exhibit No. 1. After the close of the hearing Respondent filed a motion to receive in evidence certified copies of complaints filed in -a tort action against Respondent and a high- way contractor in connection with an accident involving the Charging Party while driving Respondent's truck. Over the General Counsel's objection I hereby receive the exhibit as Respondent's Exhibit No. 14. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is, and has been at all times material herein , a Louisiana corporation maintaining terminals in various States, including a terminal at Birmingham, Ala- bama, where it is engaged in the transportation of bulk commodities as a ,motor common carrier. Respondent, during the 12 months preceding the issuance of the complaint, which is a representative period, derived a gross revenue in excess of $3,500,000 from the transportation of bulk commodities, of which more than $50,000 was received from the interstate transportation of such commodities. Respondent admits and I find that Respondent is, and all times material herein has been, engaged ,in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 612 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES W. W. Pate worked for Respondent as a ,truckdriver out of its Birmingham ter- minal i from January 8 through September 22, 1960, when, according to Respondent, he was discharged for "accident-proneness" and for having failed to make a timely report of an accident as required by Respondent's regulations.. Pate was second from the bottom on the dispatch sheet, i.e., in seniority. In July Pate became interested in the Union. Thereafter he signed a union author- ization card and attended two union meetings. The first meeting was at the union hall and the second was at a Birmingham restaurant at 7 p.m. on September 17, a Saturday night. At this meeting, which apparently involved only employees of Re- spondent and no union representatives, Pate acted as spokesman. There were 11 drivers of Respondent present. Taking charge with the comment, "Let's get the show on the road and get it over with," Pate pointed at each of those present and asked if he was for or against the Union. All of them indicated they were for ,the Union until he reached J. H. Payne. Payne indicated that he was neutral. Pate told him "Well, you can't be completely neutral, in this deal I figure you should lean one way or the other, either against it or for it." Payne then indicated that he would go along with the crowd. Another driver, Phillips, apparently indicated some doubt as to where he stood but concluded that he too would "go along with the drivers." Summarizing the matter Pate said, "That's it. Nine of us are for it and two are probably for it." At this point Payne and Phillips left the meeting. As they started out Pate said to them, "O.K. we can count on you." Phillips turned around and said, "Yeah." From this time until Pate's discharge on September 22 there were no further meetings held; but practically every day during the interim Pate talked to the drivers "trying to get them not to back out" of the Union. On September 22 Pate was told to take out his first load, come back, gas up, and wait for Kirkpatrick, the terminal manager. When Kirkpatrick arrived he asked Pate to come into the office and closed the door. "Well, Pate," said Kirkpatrick, "I am afraid I have some bad news for you on my part, but on your part it might be good news." He thereupon showed Pate the following letter: Mr. M. T. KIRKPATRICK, Terminal Manager, SEPTEMBER 20, 1960. W. M. Chambers Truck Line, Inc., Birmingham, Alabama. DEAR MAURICE: I have received a traffic accident report concerning W. W. Pate, which occurred on September 10, 1960, and apparently was not reported until the afternoon of September 12. I have reviewed W. W. Pate's record in accordance with Part 191.13, Para- graphs A B & C, and it is my opinion that his employment with this company should be terminated immediately. In the past six and one-half months he has been involved in four accidents, which indicates he is an accident prone individual, and is a menace to himself and the motoring public. He has been involved in the following accidents. 1 Respondent has five other terminals two of which, Kenner, Louisiana (referred to as the New Orleans terminal), and Memphis operate under union contracts W. M. CHAMBERS TRUCK LINE, INC. 1C85 February 18, Jack-knife --------------------------- $1, 235.00 June 3 , Injured left hand __________________________ 28.00 June 15, Head-on collision_________________________ 27.00 September 10, Side-swipe -------------------------- 100. 00 plus 1, 390.00 The total apparent physical damage cost for these four accidents is $1,390.00. However, as you know, these accidents could conceivably cost a lot more if they are subject to litigation. It is absolutely imperative that drivers report accidents immediately to their terminal. Approximately fifty hours of time elapsed before Mr. Pate bothered to report this accident. This is a violation of a long-standing rule of this company. Under the circumstances he should be discharged for failing to report an accident timely, and for accident proneness. This is both in his interest and the motoring public's interest. Very truly yours, (S) Dennis F. Blalock, DENNIS F. BLALOCK, Vice President-Safety d Personnel. DFB/k. E N Lennox. When Pate understood that he was being discharged he told Kirkpatrick that he knew that he was not being discharged for the accident he had had. Kirkpatrick said, "Well, what do you think you are being fired for?" Pate replied that his discharge was because of his "being leader of the Union." Pate went on to tell Kirkpatrick that he knew that Phillips and Payne had told Kirkpatrick that he was the spokesman for the Union at the Saturday night meeting; that he could tell by Kirkpatrick's actions that somebody had told hun what had gone on and that he knew it was Phillips and Payne "because they was the stooges that backed out." Kirk- patrick's reply was, "I didn't know you had a union. That is news to me." In his testimony Pate admitted having had four accidents during his employment with Respondent which he described as follows: (1) On February 18 on a highway about 9 miles north of Cullman, Alabama, on an icy road, just as he -was coming over the crest of a hill, he shifted from fourth to third gear and his tractor and trailer jack-knifed causing him to go into the ditch. There was $1,115 damage to the tractor and $50 damage to the trailer. (2) On June 1, while making a turn at some railroad tracks, he was looking back to see if his trailer was going to miss a telephone pole when the left front wheel of his tractor hit the railroad track spinning the steering wheel causing his hand to be severely bruised. There was no damage to the truck and he lost no time as a result of the bruise. Unlike the other three acci- dents, no report was made to the ICC on this incident. It was reported, however, to the Workmen's Compensation Unit of the Alabama Department of Industrial Relations on its official form. (3) In the middle of June, just after he had made a crossover from a one-way traffic lane on a divided highway to two-way traffic being directed on one lane because of construction on the other lane, he was hit by an oncoming car which had abruptly pulled out of its lane of traffic and hit him head on while he was proceeding in his proper lane. In this accident the driver of the other car suffered a broken arm and a broken leg. Pate was not hurt and the dam- age to Respondent's equipment was paid for by the other driver's insurance company. The other vehicle was a total loss. (4) On September 10 Pate was driving on a street behind a public transit bus. The bus stopped to pick up passengers pulling over toward the curb but not pulling entirely off the roadway. Instead of stopping, Pate pulled out to go around the bus just as an oncoming car from the rear tried to go around Pate. The passenger's car "skimmed the right front fender" on the truck bumper. The only damage to the truck was a little white paint on the bumper. The police invesigated all of the accidents except the one involving the bruised hand. No charges were ever filed against Pate as a result of these investigations. Pate reported all of these accidents to Respondent within the time required in its regulations,2 except the last one. As for the last accident, according to Pate's undenied and credited testimony, it happened on Saturday at 6.45 in the morning. The shop did not open until 7 and the office until 8 o'clock. When he got in to the 2 Article 1, section 1, of Respondent 's drivers' manual reads • "There shall be no miss understanding the following will be grounds for dismissal-failure to report all accidents immediately at the end of each run and a written report within 48 hours at the end of each run." At another place in the manual it provides : "All accidents without exception, must be reported to the Safety Department upon the completion of the run." 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terminal at noon after completing- his run he started to call Kirkpatrick from the shop. Shaddix, the shop foreman, told-him that Kirkpatrick was out 3 So he asked Shaddix (who was the only official there at the time) to report the accident for him and went home. On the following Monday Pate himself reported it to Kirkpatrick. There was no discussion of it at the time other than that Kirkpatrick told him that they would make out a report on it at a convenient time. On the following Wednes- day Pate called Kirkpatrick and asked if the latter was ready to take his statement about the wreck. Kirkpatrick said, "Yeah, come on up. In a little bit, come on up." So, between the two of them the report was filled out as were written reports on all accidents. On May 26 Pate had received a written warning from Respondent as follows: "For the past few days your charts indicate that you have been running from 3 to 5 miles per hour in excess of the speed limit. This practice should be discontinued immediately." This was signed by Kirkpatrick and was on a multiple choice form apparently used for the purpose of calling to the attention of drivers, items which failed to comply with the Motor Carrier Safety Regulations of the Inter- state Commerce Commission. There was a great deal of testimony as to whether the above accidents were "pre- ventable" or "nonpreventable" or "chargeable" or "non-chargeable." In this con- nection Respondent's safety director, Blalock, characterized all four accidents as having been preventable. The district supervisor for the Motor Carrier Division of the ICC, Alvin Christie, testified that in his opinion all of the accidents except the head-on collision of June 15 were of a preventable type.4 Significantly Kirkpatrick, in his reports on both the jack-knife and the head-on ,accidents made after his visiting the scene of those accidents, indicated that in his opinion there was little or nothing that Pate could have done to have prevented either one. Kirkpatrick did not testify. Blalock testified that on reviewing Pate's record he came to the conclusion that Pate was "accident-prone." In making such a decision fault or preventability is not controlling, according to Blalock. This was corroborated by Christie in his testi- mony when he was asked whether the ICC analyzed accidents on the basis of being chargeable or nonchargeable, preventable or nonpreventable that "we don't analyze accidents for that purpose, we do in our own mind when we make an investigation but to get back to whether an accident is chargeable or nonchargeable and a number of accidents a driver has had-a driver with four accidents in a year's time whether it is chargeable or nonchargeable is immaterial to us, that is too many accidents for that particular driver." 5 According to Blalock's further testimony, in 1954 Respond- ent "had been severely criticized" regarding violations of ICC safety regulations and was warned at that time "that future violations could conceivably result in revoca- tion proceedings." Additional criticism by the ICC against Respondent occurred in 1955. In many cases the ICC investigator "felt" that Respondent kept drivers with too many accidents.° sThe undenied and credited testimony of Respondent's dispatcher, William Srofe, shows that Kirkpatrick was out of town on this occasion. Christie was asked this hypothetical question : Assume a tractor-trailer driver driving a petroleum loaded vehicle in icy, snowy weather in February approached the crown of a hill in fourth gear and then when reaching the crown of the hill shifted his gears from fourth down to third gear, and thereafter the tractor and trailer skidded and the trailer jack-knifed going off the road. Would you feel that that was a preventable or nonpreventable accident? In answering, Christie indicated that he "would like to know something about the grade of the hill-(and)-whether or not the road was generally covered with ice" as those things would be factors in judging the preventability or nonpreventability of the acci- dent. Nevertheless (without the aid of such information or any other information) he testified that the fact that Pate shifted from fourth gear to third gear would indicate to him that it was a preventable accident explaining with the bald non sequitur that "there is always a danger of jack-knifing when your brakes are tending to slow the vehicle down." Later, Christie testified that although the ICC personnel was interested in whether its carriers' accidents were chargeable or nonchargeable "we don't hold our- selves out, like the National Labor Counsel does, to be an authority on whether one is preventable or nonpreventable." Perhaps it is just as well he does not. 5 Christie further testified that he considered a driver with three accidents a year "to be an accident-prone driver." He also was of the opinion that an average of one acci- dent a year.-was more than normal or permissible but later hedged this with the testi- mony that this was his own personal "rule of thumb." 0 Section 191.13 of the revised safety regulations of the Interstate Commerce Commission entitled "drivers record," provides .that carriers . . , shall in the employment and use of drivers from time to time thereafter and W. M. CHAMBERS TRUCK LINE, INC. 1087 In 1960 in its Birmingham terminal Respondent had had 17 accidents? Of these Pate had been involved in four with the next highest number of three accidents being attributable to a driver by the name of Cobb. Blalock testified that he has on several occasions discharged drivers for "accident-proneness." As an example Blalock cited the discharge of one Buckalew. Dowdon, the then terminal manager, was of the opinion that Buckalew should be discharged and Blalock concurred in the opinion and the man was discharged . On that occasion Blalock did not write a letter of dismissal, explaining that he does not usually write such a letter "where a terminal manager feels he is capable of handling it himself." 8 According to Blalock, Buckalew was terminated on May 7, 1956 , after having had three accidents in a period of 7 months. Although Blalock was a vice president of Respondent and its safety and personnel' director, he testified that he had no duties regarding labor relations except for the handling of grievances regarding safety or where safety matters come up in col- lective bargaining at which time Blalock is consulted . Except for such a situation Blalock never participates in collective bargaining and had nothing to do with the representation case involving Respondent herein. He also denied any knowledge regarding Pate's union activity although he admitted learning about the union cam- paign at the Birmingham terminal as early as September 1 or sooner. William Srofe, Respondent's dispatcher at the Birmingham terminal , testified credibly regarding five long-distance telephone conversations he overheard between Kirkpatrick and officials of the Respondent at its home office just outside New 'Orleans as follows: 9 1. On September 6 or 7 Kirkpatrick called Lennox , executive vice president of Respondent, and told him there were only four employees "still strong for the union," naming Harris, Erwin, Smith, and Pate 2. On September 12 or 13 Kirkpatrick called Lennox. They discussed Pate's accident of September 10 and discussed discharging Pate at that time. But Kirk- patrick told Lennox it might not be wise at that particular time to discharge Pate because there was a union campaign going on, and it might cause some of the pro- company drivers to vote for the Union. 3. On September 14 or 15 Kirkpatrick called Lennox telling him that the drivers were having a meeting at the New York Cafe in Birmingham on Saturday and that two of the drivers, Phillips and Payne, would report to him Sunday morning what went on at the meeting. 4. On September 19 or 20 Kirkpatrick called Paul Knight (whom he identified as terminal manager at Tuscaloosa and a vice president of Respondent ), and told continuing drivers in their service will give due consideration to the following factors where they exist: (a) Violations of laws and regulations governing the operation of motor vehicles of which the driver is guilty, especially as to those violations which tend to estab- lish a disregard for regulatory requirements for public safety. (b) The driver's accident record insofar as it tends to establish a lack of concern for or indifference to his own or the public's safety. (c) Violation of criminal laws of which the driver is guilty , especially with respect to those offensives which tend to demonstrate his unfitness in the public interest to be a driver of a motor vehicle in interstate or foreign commerce. Motor carriers shall maintain and preserve as a part of each driver's personnel record a summary of all the drivers actual offensives which are within the purview of this section. In addition to the periodic review of the drivers contemplated by this regulation motor carriers shall specifically review each individual record of accident when involved in serious accident to the end that reckless or accident prone drivers may not continue to drive vehicles as a hazard to the public safety. 7 The number of accidents in the Birmingham terminal in 1960 had increased more than 100 percent over each of the 2 preceding years; in 1958 there were 8 accidents and in 1959 there were 7. ° According to Respondent's testimony Kirkpatrick had been hired for the job of terminal manager right out of college. He had less than GO days' training under the prior man- ager and was "going through some in-service training " For this reason both Blalock and Executive Vice President Edward N Lennox made frequent checks with him. ° Srofe worked in the room adjoining Kirkpatrick's office. The partition between the rooms was of sheetrock construction with a plywood door. Even with the door closed, Srofe testified, he could hear a conversation if he made "an effort." He admitted lie heard only parts of the conversations he was interested in-namely those pertaining to the Union 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him that he had found out who one of the leaders of the Union was and that "he was close to the bottom of the dispatch sheet." Knight did not testify. 5. On about the same date but after his call to Knight, Kirkpatrick again called Lennox. This time he told Lennox "that Erwin and Pate had had a little bit too much to drink at the drivers' meeting the Saturday night before and Mr. Pate took charge of the meeting, he went around to each driver individually and (asked) him if he was going to vote for the Union or against the Union. Kirkpatrick also told Lennox `that they may better go ahead . . . with the Pate deal and that was talked (about) in another conversation.' " In his testimony Lennox admitted instructing Kirkpatrick to make "frequent and periodic reports" on the union campaign. In most of these telephone conversations about the Union "other business matters-operation matters" were also discussed, but apparently there were some calls that involved only the Union. 1° In at least three or four conversations when he asked how the 'situation looked, Kirkpatrick would tell him "that he felt that so many men might be sympathetic with the Com- pany's view and so many men might be sympathetic with the Union's view. . He also admitted that Kirkpatrick may have mentioned specific names although he denied any recollection of who may have been named. When Lennox was asked if he had had a conversation with Kirkpatrick in which Pate's past accidents were discussed, he replied, "Yes. The purpose of the call was primarily a discussion of an operational problem." He then testified: In the course of the conversation he mentioned to me that he had a driver who had been involved in a number of accidents, the last of which had not been properly reported and he asked me what action should be taken. I acquainted him with the policy he knew existed, all the matters would automatically be referred to the Director of Safety for conclusions and he commented that he would hesitate at that time to invoke any disciplinary action on any employee for fear that it might have some effect on the outcome of the feeling toward the company in the forth coming representation election. I immediately ex- plained to him in some detail that I would transfer this call to Mr. Blalock and consideration of the case would be given without any grievance to any individual's activities in behalf of or against the labor union involved. At that point I immedi- ately had the switchboard operator, I am not sure of the exact mechanics of it, but Mr. Blalock did take the call at that moment and assumed the control of handling this particular incident he mentioned. This call took place the Monday or Tuesday after Pate's September 10 accident. A subsequent call was described by Lennox as follows: Mr. Kirkpatrick called me sometime after midweek of that week and told me that he had been informed or advised that several employees were attempting to arrange a meeting of all employees at some cafe reasonably adjacent to the place of business and that each of these individuals apparently was sympathetic with the Company's view in the representation matter and did I have any instructions to give him relative to the-to such a meeting . I told him none, but he certainly should not make himself present at any such meeting and if there were any developments made known to him about the meeting I wanted him to report these developments to me. The following week, Kirkpatrick again called. About it Lennox testified: there were several other operational matters discussed in this conversation but he related to me that the meeting he had discussed with me during the prior week had apparently evolved into a drinking bout and he knew of no develop- ments of any importance. That was the end, of the discussion about the meeting. He asked me if there had been any decision reached relative to the Pate matter and I advised him it was being handled by Mr. Blalock and if he had not al- ready received the decision then Kirkpatrick in turn would be advised of any decision that he might make. According to Lennox's further testimony, he did not participate in the decision to discharge Pate and he had no further conversation with Blalock about the matter after he had transferred, to Blalock, Kirkpatrick's call of the week before. In ex- plaining Blalock's authority over Pate's discharge Lennox testified: 10 As Lennox put it, other business than the Union was discussed "in almost every case." W. M. CHAMBERS TRUCK LINE, INC. 1089 . a policy was made that the Director of Safety would make all decisions as relate to selection and training of drivers, negotiations for insurance, any disciplinary action necessary in order to place (Respondent) in full compliance with the regulations and that his decisions would not be subject to review, either by the proprietor or myself. This policy has been continuous since the proprietorship was incorporated on January 1st, 1957 and the matter of super- vision of safety including those responsibilities I have just enumerated have re- mained just as I have described them, not subject to review by any other party. His decisions, his disciplinary actions, discharge or suspensions that might be involved are final. They have never been, either by myself or by the pro- prietor or any other officer or Board member of the corporation, have never been counter-manded or superseded. Lennox also testified that although he had discussed the union campaign with other officials of the Company, he had "intentionally" left Blalock "in the dark about it." This he did to diligently "pursue the matter of adequate safety" and to guard against "any activity which may in any way indicate that some other con- sideration should creep into safety decisions." ii As to the actual details leading up to and culminating in Pate's discharge Blalock testified as follows: Kirkpatrick's call about Pate's September 10 accident was turned over to him through the switchboard "probably through Mr. Lennox." This was "about mid- week following the accident." Kirkpatrick told him "that Mr. Pate had been in- volved in another accident" and asked what should be done. Blalock "asked him if he had the report prepared ." and upon learning that he did not, told Kirkpatrick to get it in as soon as possible. Although he expected the report that week he did not receive it until the following Monday. After reading it and analyzing Pate's entire file Blalock came "to the conclusion that it was necessary to terminate his employment because he was accident-prone and was involved in too many acci- dents and Chambers Truck Line was a carrier subject to criticism by the Interstate Commerce Commission . . . " Accordingly Blalock "deemed it necessary to termi- nate him" which he did via the September 20 letter to Kirkpatrick. Blalock was not aware'of any participation by Pate in the Union. He also implied that neither Lennox nor Kirkpatrick had "anything to do with the decision to terminate Mr. Pate." i2 Conclusions As has been indicated, Respondent's defense here is that Pate was discharged be- cause of failure "to report on accident timely, and for accident proneness." Re- spondent contends that "of paramount importance in considering Respondent's motivation in the discharge of Pate is-the absence of evidence showing antiunion animus upon the part of respondent." Respondent points out that . Great weight has been given by the Board to evidence of an employer's hostility to unionization, particularly to evidence of interrogation, threats and other conduct proscribed by the Act, in determining whether the employer's asserted reason for discharge was the real cause or merely a pretext. Vigorous opposition to union organization, particularly where such opposition resulted in interference, restraint and coercion of employees, has caused the Board to discount asserted reasons for discharge. The converse is also true. Absence of strong hostility to unionization, indifference, or mild opposition unaccompanied by acts of interference, restraint or coercion has led the Board and the Courts to conclude that the General Counsel had failed to sustain the burden of proof (which he always has in these "cause versus pretext" cases) and to find that, the discharge in question was not discriminatory... . There is no doubt that the more aggravated an employer's illegal interference with the employee's Section 8(a)(1) rights becomes the more likely it is that he "This statement would seem to indicate that on the whole Respondent may not have been above letting the union activity of its employees play a part in its measure of discipline of them Apparently Blalock's isolation against information about the union campaign at Birmingham was not 100 percent effective as evidenced by his admission that he had knowledge of it as early as September 1. 12 When asked if Lennox or Kirkpatrick had anything to do with the decision to dis- charge Pate he answered, "The recommendation to terminate a driver is mine solely. There has never been any necessity to do it any other way." Elsewhere he testified that in most cases terminal managers will consult with him about discharges and if they recommend dismissal he never disagrees with them. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may violate other sections of the Act. But such anti-8(a)(1) conduct on the part of an employer is not a condition precedent to the finding of other violations on his part including violations of the important 8(a)(3) section of the Act. The Cross Company, 119 NLRB 699; Jaxton Manufacturing Corporation, 130 NLRB 465; Broward Marine, Inc., 112 NLRB 1443. Here, while there is no independent 8(a)(1) conduct on the part of Respondent, there is plenty of evidence to dispel any indication of indifference on its part to the Union's campaign. Indeed, Lennox's attempt in his testimony to create the im- pression of being offhand and casual about the information he was getting concern- ing the Union is quite inconsistent with his directions to Kirkpatrick for "frequent and periodic reports." Moreover, with Phillips and Payne keeping Respondent in- formed in detail about the union activities of their fellow employees there would be little need for Respondent to engage in such conduct as illegal interrogation of the employees. Obviously, to what extent the presence or the lack of independent 8(a)(1) conduct will affect the disposition of an 8(a)(3) matter depends on the facts of the alleged discrimination. . The facts here, I believe, do not support Respondent's position. For instance, as to the alleged failure to make a timely report on his September 10 accident, while it is true that the written report was not made until September 14, some 48 hours later than required by its regulations, it is apparent from the undenied and credited evidence that Pate followed the accepted practice 13 and did everything that could have been expected of him in reporting the accident and that if there was any negli- gence in the matter it was more that of Kirkpatrick. As for Pate's accidents, although Blalock refused to attach any importance to the cost of accidents or their preventability or nonpreventability in appraising the rec- ords of individual drivers, and insisted that regardless of legal liability or prevent- ability the number of accidents a driver had was the sole key to a determination of whether or not he was accident-prone, Blalock went to some lengths to show that all of the four accidents Pate was charged with were preventable-at least by a professional driver.14 Yet the preponderance of Respondent's own testimony contra- dicts Respondent's contention that the head-on collision, by far the most serious accident, was preventable by Pate.15 And it seems to me that the second most seri- ous one (the jack-knife matter) must also be called nonpreventable on the basis of Respondent's own evidence. The report of Kirkpatrick, who was at the scene, out- weighs Blalock's second guessing; 16 and Christie's failure to get the additional in- formation he wanted and would obviously have needed to make an intelligent appraisal would disqualify his opinion if it had not already been disqualified on other grounds. As for the hand-bruising incident, the General Counsel apparently contends this was an industrial accident and not one coming within the purview of the ICC. I agree. Obviously, Respondent so viewed it at the time itself since it was not reported to the ICC as were the other accidents but instead was reported to Workmen's Compensation Unit of the State of Alabama. In summary, of the three accidents that might conceivably have caused Respond- ent difficulty by way of censure from the ICC 17 only one, by Respondent's own 18 According to the undenled and credited testimony of Dispatcher Srofe, in the absence of Terminal Manager Kirkpatrick drivers would report any accidents to Srofe and in his absence to the Shop Foreman Shaddix. He cited as an example an occasion when driver C. L Harris knocked a hole in his tank at the Southeast Terminal (where the drivers loaded out both Pure and American oil) on a Saturday morning and reported it to Srofe who reported it to Kirkpatrick the following Monday. Harris was not discharged. 14 In its evidence Respondent classified over-the-road truckdrivers as professionals and indicated that as such they were charged with a higher responsibility than an average driver. One of these responsibilities was to be able to engage in "defensive" driving whereby they would anticipate possible actions on the part of other drivers and thus be able to avoid potential trouble normally not foreseen by the average driver. 15 Respondent points to potential liability of about $100,000 in connection with this accident by way of the lawsuit filed against it and the road contractor in this matter. On its face and in view of the fact that the other driver's insurance company paid Respondent for the damage to its truck there is no substance to Respondent's contention. 19 While Respondent would dismiss Kirkpatrick's opinion as inexperienced, the evidence as to Blalock's background for his job could hardly be called monumental 14 Whether the ICC is as strict in its appraisal of drivers' records as Christie claimed in part of his testimony (which was substantially contradicted elsewhere in his testi- mony) it is certain that the carriers regulated by the ICC have ultimate responsibility to that agency for their safety records. In its evidence Respondent made it clear that its action regarding Pate was required by the ICC regulations. Thus, Blalock testified that W. M. CHAMBERS TRUCK LINE, INC. 1091 version, was preventable. Thus it appears that Respondent's appraisal of the quality of Pate's driving vis-a-vis his accident record was about as strained as its attitude. regarding the report of his last accident and in my opinion leads to the conclusion that Respondent has raised these matters as pretexts to mask its real motive-an antiunion one. Now, let us turn to Respondent's other premise-that in any event, regardless of chargeability, liability or preventability a driver who has four accidents in a year's time is an accident-prone driver.18 Here is Respondent's record in part at some of its other terminals: In 1958 R. Smith, employed at the Memphis terminal, had four accidents in less than 21/2 months and was not terminated. J. Peavy, employed in the New Orleans terminal (Kenner, Louisiana), had five accidents in less than a year's time and was not terminated. W. Johnson, employed in the New Orleans terminal, had four accidents in a little over 8 months and was not terminated. C. Watkins, employed at the New Orleans terminal, had four accidents in less than a year's time and was not terminated. J. Gray, employed in the Memphis terminal, had four accidents in less than 10 months and was not terminated. If cost, liability, chargeability, and preventability play no part in determining accident-proneness as Blalock testified, but only numbers count, it appears that there has been a great deal of disparity between the treatment of Pate and other drivers. Obviously, there must have been something quite special about Pate's case. The only thing special about Pate reflected on the record was his activity and leadership in the Union. Moreover, if it was the rate at which accidents occurred that was significant to Respondent let us see what Respondents experience has been in that respect. B. Lepard, employed at the Memphis terminal, had three accidents in less than a month and was not terminated. H. Madere, employed in the New Orleans terminal, had three accidents in a little over 4 months and was not terminated. J. McSpadden, employed at the Tuscaloosa terminal, had three accidents in less than 31h months and was not terminated. J. Sheffield, employed in the Memphis terminal, had three accidents in less than 6 months and was not terminated. In addition to the foregoing there are several other of Respondent's drivers who had three accidents in a period of 7 months to a year's time who were not terminated. I point to these only to show that apparently Respondent was not as much concerned about the ICC's adverse appraisal of its drivers' records as it would have me believe particularly in view of Christie's testimony that three accidents a year indicate accident-proneness. On the basis of the foregoing evidence, I am convinced and find that Respondent discharged Pate, not for the reasons it states, but because of his leadership in the Union, thereby discouraging membership in the Union and discriminating against him in violation of Section 8(a) (3) and (1) of the Act. In reaching this conclusion I am here also swayed by these additional factors: 1. The fact that Blalock usually does not effectuate a discharge by means of a letter "where a terminal manager feels he is capable of handling it himself." In this connection it would appear that Kirkpatrick certainly must have felt capable. He did not hesitate to advise the executive vice president how to proceed regarding Pate's employment. 2. The timing of the discharge with Kirkpatrick's information to Vice President Knight that he had found out who one of the leaders of the Union was and that he was close to the bottom of the dispatch sheet; and Kirkpatrick's information to Lennox on the same day about Pate's taking charge of the union meeting. Hunter Engineering Co., 104 NLRB 1016; Wiese Plow Welding Co., 123 NLRB 616. 3. Kirkpatrick's failure to deny Pate's accusation that he was being discharged for being the leader of the Union, particularly in view of Kirkpatrick's false statement he told Kirkpatrick that if Pate "had had too many accidents within the scope of the Motor Carrier Safety Regulations . . . that would call for his discharge" In this con- nection it is interesting to note that the Bureau of Motor Carriers Safety Compliance Report from among other things has these questions : "Does the carrier rate each accident as to chargeability? If so how is chargeability determined?" 38 Christie clearly took this position (and went even further saying that three accidents a year showed accident-proneness ) and Blalock certainly implied it both in his action on Pate and his threat to discharge Cobb if he increased his count from three to four. 014913-62-vol. 132-70 . 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lo Page that he was not aware of the union campaign at the time . See Cabinets Inc., etc., 130 NLRB 1378. 4. The inconsistency of Lennox's discussing the union campaign with other officials of the Company but intentionally leaving Blalock in the dark about it, and Blalock's admission that he had heard about it as early as September 1. In its brief Respondent points out regarding Srofe's testimony that Kirkpatrick told Lennox he was afraid that to discharge Pate would be to turn procompany drivers to the Union: Viewed in a light most favorable to General Counsel the testimony tends to show only that Pate's discharge was contemplated or decided upon because of the character of his driving, but the decision deferred or reversed because of union consideration. It' seems to be General Counsel's further theory that, by in- ference from other of Srofe's testimony, that the following week respondent again reversed its position as to the discharge of Pate because of his activities at a meeting in the New York Restaurant. This theory falls of its own weight. If, as General Counsel seems to contend, a decision to discharge Pate for reasons aside and apart from union considerations was reversed because of the possible effect upon the voting of other employees and then reinstated despite the effect it might have, simple logic requires a conclusion that union considerations had nothing to do with the ultimate discharge. Contrary to Respondent's contention, the logic in this matter, I believe, is on the side of the General Counsel. What happened to have caused Kirkpatrick to change his mind about the effect on the union campaign of a discharge of Pate? Certainly nothing regarding his work or driving record. Presumably then (the election still in the offing), Kirkpatrick's original analysis should still have been valid. But there was a change on Pate's part. From just another driver who favored the Union, Pate became its leader. In this light it conceivably was worth the gamble to chance antagonizing an employee or two by discharging Pate in order to eliminate a force that might be much more damaging to Respondent's cause. Respondent offered in evidence at the hearing as Respondent's Exhibit No. 6 for identification what purports to be a certification from the Driver License Division of the State of Alabama of information taken from the file of the charging party as follows: ,1-31-53 Convicted speeding, Shelby county, $13.50. 4-4-54 Involved in accident. 4-21-54 Suspended for failure to report above accident. 5-6-54 Reinstated, accident reported. 4-17-54 Convicted leaving scene of accident, Coosa county, $102.00. 5-17-54 Revoked and placed under Safety Responsibility law. 6-9-54 Revocation withdrawn, license reinstated. 1-4-60 Convicted speeding, Autauga county, $7.00. 2-18-60 Involved in accident. 7-12-60 Convicted speeding, Jefferson county, $15.00. 8-20-60 Convicted speeding, state of Tennessee. This information was unknown to Respondent at the time of Pate's discharge, having been gotten by Respondent's counsel in preparation of his case for hearing. It was offered to show that "the information confirms Blalock's judgment made at the time of the discharge that Pate is an unsafe driver who should not be retained on, Respondent's payroll." It was also offered for its bearing on the remedy herein. Respondent con- tends that "It is inconceivable that Respondent should be requited to place such' an individual behind the wheel of a truck hauling inflammable petroleum products over the public highways." I did not rule on the offer of Respondent's Exhibit No. 6 at the hearing being in doubt as to whether the foundation for its receipt in evidence had been adequately laid. I have no desire to quibble about technicalities and not questioning the authen- ticity of the document will accept it for what it is worth. And having given it due consideration, I am of the opinion that there is nothing in Pate's record as reflected in the exhibit that should bar his reinstatement particularly since the major matters all occurred over 6 years prior to his discharge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. REMINGTON RAND DIVISION OF SPERRY RAND CORP. 1093 V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged W. W. Pate, I recommend that Respondent offer him immediate and full reinstatement without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suf- fered by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date to the date of Respondent's offer of reinstate- ment, less net earnings during said period. The backpay provided for herein shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. I also recommend that Respondent, upon reasonable request, make available to the Board and its agents, all payroll and other records pertinent to an analysis of the amount due as backpay. Since the discriminatory discharge found herein goes "to the very heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4)), and indicates a purpose to defeat the self-organization of its employees, I am convinced that the unfair labor practice committed is related to other unfair labor practices proscribed and that the danger of their commission in the future is to be anticipated from Re- spondent's conduct in the past. Accordingly, in order to make effective the inter- dependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in any manner infringing upon the right of employees guaranteed by the Act. May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376, 386-392. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of W. W. Pate, thereby dis- couraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Remington Rand Division of Sperry Rand Corporation, Peti- tioner and Office Employees International Union, Local 212, AFL-CIO. Case No. 3-ISM-227. August 17, 1961 DECISION, ORDER, AND. CLARIFICATION OF CERTIFICATION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Hymen Dishner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 132 NLRB No. 92.