Complete Auto Transit, Inc.

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director for the Nineteenth Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Nineteenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended' Order, what steps the Respondent has taken to comply herewith. It is recommended that unless on or before 20 days from the date of the receipt of this Intermediate Report and Recommended Order, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage affiliation with United Plant Guards Amalgamated, Local No. 5, or any other labor organization, by discharging our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the 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, and to engage in collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by the National Labor Relations Act. WE WILL offer Peter Cochran immediate and full reinstatement to the posi- tion he formerly held, or its equivalent, without prejudice to seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. GENERAL PLANT PROTECTION CORPORATION, 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. Complete Auto Transit, Inc. and Neal Dugger and Robert W. Robinson. Cases Nos. 14-C%1-2350 and 14-CA-2350-2. Novem- ber 22, 1961 DECISION AND ORDER On March 7, 1961, Trial Examiner George J. Bott issued his Inter- mediate Report in the above-entitled proceeding, finding that Respond- ent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its. entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptiollu to the Intermediate- Report and a supporting brief, and the Respondent filed a reply brief." 1 The General Counsel filed a motion to strike Respondent's brief to the Trial Examiner- which the Respondent had refiled as part of its reply brief. The motion is hereby denied, 134 NLRB No. 59. COMPLETE AUTO TRANSIT, INC. 653 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations ,of the Trial Examiner.2 [The Board dismissed the complaint.] as Respondent was granted permission to file a reply brief, and its reply brief was timely filed 2 In finding that the Respondent did not violate the Act in discharging Robinson, we are not finding that Robinson , whose case has not , so far as appears , been finally deter- mined by the grievance panel, was or was not an instigator of the strike In his case, as well as in Dugger 's, we are merely adopting the findings of the Trial Examiner that Respondent was not shown to have condoned instigation of the strike or to have had an unlawful motive In taking the disciplinary action Nothing herein, however , is intended to prejudice or otherwise affect the disposition of Robinson 's case before the grievance panel INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges of unfair labor practices duly filed against Complete Auto Transit, Inc., herein called the Respondent or Company, the General Counsel of the National Labor Relations Board issued a consolidated complaint and notice of hearing dated September 16, 1960, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and ( 3) of the National Labor Relations Act, as amended. The answer of Respondent admitted certain allegations of the complaint but denied the commission of any unfair labor practices . Pursuant to notice, a hearing was held before the duly designated Trial Examiner at St . Louis, Missouri, on October 24 and 25, 1960 . The Respondent, General Counsel, the Charging Parties, and Local 624 were represented at the hearing and were afforded oppor- tunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs . Briefs were filed by Respondent and General Counsel which l have considered. Upon the entire record 1 in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Complete Auto Transit , Inc., is and has been at all times material herein, a Michigan corporation engaged in the trucking service business with a terminal in the city of St . Louis, Missouri. Respondent, in the course and conduct of its business during the year 1959 , received gross revenues for transportation services in excess of $29,000 ,000, more than $50,000 of which was earned for transporting goods and materials from the State of Missouri to points outside the State Respondent con - cedes, and I find, that Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 604, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ,2 is a labor organization within the meaning of Section 2(5) of the Act. 'General Counsel and Respondent filed motions to correct the record General Counsel agrees with all corrections suggested by Respondent and Respondent's motion is therefore granted Respondent agrees" cith General Counsel's suggested changes with certain e_xcep- tions and General Counsel has agreed with some of Respondent 's exceptions to his motion but insists that the words "No, not" should be inserted on page 78, line 4 I do not recall the witness making such a statement and I therefore deny General Counsel's motion In that respect 2 Sometimes herein referred to as Local 604 or the Union 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The setting and the issues The Company and Teamsters Local 604 were at all times material in this case parties to a valid labor agreement containing a detailed grievance procedure and a, broad no-strike clause. On June 1, 1960, a gathering or assemblage of Respondent's drivers which lasted for many hours took place and as a result Respondent's opera- tions were seriously curtailed. The Charging Parties, Dugger and Robinson, par- ticipated in the assemblage. Within a day operations were restored and all employees returned to work but Dugger and Robinson were subsequently fired.- General Counsel claims that Dugger and Robinson were discharged for engaging in protected union activity and, in the alternative, that if the activity was not pro- tected as being in violation of contract, then Respondent condoned the misconduct. Respondent, on the other hand, contends that the June 1, 1960, assemblage was a strike in violation of contract and that although it did not discharge mere participants as it had a right to do but restored them to employment, it discharged Dugger and' Robinson for instigating a wildcat strike in violation of contract. B. Respondent's business and method of operation Respondent is a contract motor carrier hauling automobiles exclusively for the. Chevrolet Division of General Motors and maintains a terminal in St. Louis, Mis- souri, which provides services for the Chevrolet assembly plant located there. Re- spondent owns a large storage lot adjacent to the Chevrolet plant where the great- bulk of cars handled by Respondent are delivered by Chevrolet to be picked up and; delivered by Respondent. Respondent is informed by Chevrolet which cars are to, be delivered to dealers in widely scattered areas of the country and Respondent's office makes up loads based on that information. The loads must be moved within a time specified by Chevrolet. After the loads are made up "on paper" Respondent's. drivers are called in groups of 10 to 20 and assigned to particular loads on a seniority basis. When a driver has been assigned a load he picks up his tractor-- trailer equipment at the Company's main terminal and proceeds to the storage lot- near the Chevrolet plant where he receives the cars, loads them, and proceeds to make delivery without return to the main terminal of the Company. In some- cases, a driver may be assigned several short trips at once, and thus may make sev- eral deliveries in 1 day without returning to the terminal between loads. Such is. the case of drivers who deliver several "piggyback" loads a day to railroads for shipment by rail. The Company competes for car-hauling business with other means of transporta- tion, such as railroads; and during the spring of 1960 had been advised that Chevro-- let would change its procedure and assign all its business to the Company. June 1, 1960, was established as the date for such change which would increase the Com- pany's business by about 30 percent. This information was given to the Company's- drivers and was common knowledge at the terminal. C. The Company's dispatching procedure Prior to June 1, 1960, Respondent normally moved from 1,000 to 1,300 cars a. day, at 4 to 5 cars a load, or 200 to 300 loads a day. Since some loads were short- haul "piggyback" loads to railroads and some drivers could handle several loads a day, about 100 drivers might be called or dispatched in 1 day. To handle this work the Company employed a pool of 499 drivers on a seniority list. On June 1, 1960,. which was a typical day, 300 of the drivers were unavailable for call or dispatch because they were already out on a trip, were out of hours under Interstate Com- merce Commission regulations, or their equipment was in for repair. Under existing terminal practice, drivers who were available for work were to. keep in touch with the telephone number designated by them to be called when they were due for a load. As the dispatcher was given a list of loads to be delivered, he would telephone the top 10 to 20 available drivers on the seniority list to come in. If a driver on the seniority list did not answer the dispatcher would proceed down the list, periodically recalling the passed name, until he had a sufficient number of drivers to handle the work. From time to time, drivers with seniority would come into the terminal without being called and they would be entitled to be dispatched with the others. For this reason and to avoid jamming the terminal with drivers who could not be immediately dispatched, the dispatchers usually worked with a group of about 10 to 20 drivers rather than caling at one time all the drivers that would be needed that day. Each driver would have 2 hours in which to report for work after being called. COMPLETE AUTO TRANSIT, INC. 655 D. The events of June 1, 1960 Melvin R. Hunt, branch manager of Respondent, reported to the terminal about 8:15 a.m. on June 1, 1960, and about an hour later saw a group of employees as- sembled at the corner adjacent to Respondent's terminal. Hunt talked to the group, which was made up of about 50 to 60 drivers, and was told by them that they were unhappy with the dispatching system and had other problems. Hunt told the drivers that on that day Respondent was taking over maximum Chevrolet production and a "work stoppage or slowdown was no way to satisfy the needs and demands of our shipper." He asked the men to come to work and reminded them that the collective- bargaining contract provided an orderly procedure for handling grievances. The Charging Parties, Dugger and Robinson, were aware of the employee gather- ing before Hunt. Robinson received a telephone call at home about 6 a.m. on June 1 from an unidentified caller who said "we" are going to have a meeting and asked Robinson to come. Robinson proceeded to the terminal and saw about 50 men as- sembled there but sat in his car for about 10 minutes without speaking to anyone until Hunt arrived. Hunt asked him what was going on but Robinson answered that he didn't know. Dugger was not available for work on June 1 because his equipment was down for repair. He denied prior knowledge of a "meeting" but stated he came to the terminal to drop off another driver. Dugger arrived about 8:30 a.m., observed the group of about 50 men and some of them told him they were dissatisfied and might have to strike. Dugger told the men that it "was against the law for a wildcat strike and against our collective bargaining agreement . and volunteered to call the union business representative for the men. Dugger, in his words, told the men "what should be done" and he made a number of telephone calls to union officials and stewards who had no prior knowledge of what was going on. Dugger told the union president, Jerry Turner, that the men wanted a meeting and also told him where the men would be meeting. Turner promised to come to the meeting. Dugger, after his telephone calls, returned to the terminal gate where Hunt was now talking to the men. Hunt, according to Dugger, had told the drivers about in- creased business from Chevrolet and Dugger told Hunt, "That is all well and fine but we can`t live on promises, we are not getting dispatched, we are losing revenue " Glenn Six, business agent of Local 624, was now on the scene and Dugger told him that there would be a meeting at Legion Hall. Branch Manager Hunt returned to his office, directed his dispatchers to continue- telephoning the drivers and to do everything they could to get the loads dispatched. These instructions were carried out and the entire panel of drivers was telephoned during the day. The dispatchers had begun their calls about 6 a.m. and some drivers had already been reached and dispatched. Other drivers, however, had accepted assignments but did not report and were in fact seen at the gate when Hunt talked with the men. After Hunt's return to the terminal, only two over-the-road loads went out for the rest of the day. Some drivers who were reached by telephone and said they would report did not actually do so. The number of cars shipped dropped from an average of over 1,000 to 339 cars and most of those were delivered by piggyback drivers and others who had begun work early in the morning before the gathering of drivers began. Chevrolet continued to deliver cars to Respondent and the number of cars on hand rose to only 268 short of capacity. The group of employees at the terminal gate adjourned to the Legion Hall, leav-, ing a few men at the gate. The meeting at the hall lasted until 2 a in. the following morning. During the morning of June 1, 1960, Hunt, who had returned to his office after talking with the men at the gate, received a telephone call from Dale Ferris, secretary-treasurer of the Union. Hunt described what was going on and Ferris told him that the Union did not call the meeting, knew nothing about it, and had nothing to do with it. Hunt reported the situation to company officials in Detroit and under - instructions sent two telegrams to the Union demanding to know the Union's part in what the Company considered a strike in violation of contract, and insisting upon an- immediate resumption of work. These telegrams were subsequently read by Dale Ferris to the membership 3 meeting at the Legion Hall but the employees did not return to work. When Dugger arrived at the Legion Hall none of the union officials were there Dugger told the men that they should have their grievances in writing and he helped them write them out. When the president of'the local arrived Dugger handed him the gavel and turned the meeting over to him. Some discussion was had about the labor agreement and it was decided to send a delegation to the union hall to search- 8 The labor agreement contained a union-shop clause. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a signed copy. Dugger explained that a signed copy "made all the difference in the world." 4 The assembled employees asked union officials to try to get management to talk to them and sent a committee of officers and stewards to arrange it. After about 8:30 p .m., the meeting at the Legion Hall consisted of an "old time hoe-down" in Dugger's words, the drivers having brought their musical instruments. Meanwhile, about 7 p .m., Kinsey, president of Respondent , and Carney Matheson, an attorney who handles Respondent's labor relations, arrived in St . Louis from Detroit and registered at a motel . Around 9 p .m. Matheson received a telephone call from Dale Ferris, official of the local , who said he had a committee of drivers who wanted to talk to company representatives. Ferris pointed out that "he had nothing to do with it . I was merely asked to bring these men to you.. " Matheson later met with the committee and Ferris at the motel and told them he would not meet with a "rump " group. He advised the committee that he considered their actions -a violation of contract and that he intended to get to the bottom of the strike and find out who "instigated" it. Mr. Matheson also told the group that he was sending out wires to all drivers requesting them to return to work or be dis- charged for their participation in the strike . The following telegram was composed by Matheson and sent to all drivers including the complainants, Dugger and Robinson: You are presently engaged in an unlawful work stoppage and strike in vio- lation of our collective bargaining agreement Automobile Carrier Truckaway Agreement, particularly Article 7 of said agreement. You are hereby ordered to report for work by 5 AM Thursday June 2 1960 to be scheduled for work or you will be discharged for your participation in the unlawful work stoppage. In the event you fail to appear this will serve as your notice of discharge. Complete Auto Transit Inc., M. R. Hunt Branch Mgr. The committee left the company representatives at the motel, returned to the Legion Hall, and reported to the drivers. The meeting of the drivers broke up about 2 a.m. on June 2, 1960, and the men reported for work. Dugger went with a group to the terminal and advised the assistant manager that the men were now ready to work. E. The discharge of Dugger and Robinson Dugger and Robinson returned to work with the rest of the drivers and the Com- pany began an immediate investigation to determine who was responsible for the strike About 125 drivers were interviewed by supervisors who made notes of the interviews which were then given to Branch Manager Hunt. The investigation dis- closed that Dugger and Robinson, as Hunt testified, "participated in the meeting that was held, up front talking to the men at the microphone, generally, leading the group." The investigation did not satisfy the Respondent that either the local union or any individual, including Dugger or Robinson, was responsible for the work stoppage, but revealed enough to cause the Company to believe that Dugger and Robinson, among others, had not only participated in the stoppage but also insti- gated it. As a result the Company filed grievances under the contract against the local and 20 individuals in order to fix responsibility for the instigation of the strike.5 On June 7, 1960, Respondent sent letters to Dugger and Robinson advising them of the filing of the grievance and stating in part that: The company has reason to believe that you as an individual were not only involved in the unlawful work stoppage, but you were one of a small group who instigated said unlawful strike and work stoppage. . . . The grievances were heard by a local panel pursuant to the labor contract and all except eight were dismissed by the panel for insufficient evidence. The other griev- ances were deadlocked at the local panel and appealed to the national level at Detroit where the grievance against Dugger was upheld on the ground that he was one of the "instigators" of the unlawful work stoppage. Robinson's case was post- poned at his request because of illness. Cases against other employees were dis- missed for lack of proof that they were "instigators" and the case against Local 604 was dismissed on the ground that it was not responsible for the stoppage . Robin- son's case was twice continued at his request and remains pending before the panel. After the determination against Dugger, the Company fired him and also discharged 4 Robinson , who was at the hall most of the time , participated in the discussion about the contract. 5 For a similar proceeding see University Ove, land Empress, Inc., 129 NLRB 82. COMPLETE AUTO TRANSIT, INC. 657 Robinson because it believed that its case against Robinson was as strong as its case against Dugger. The Company fired the two men for instigating the strike but not for their participation. F. Discussion and concluding findings 1. The nature of the "meeting" of employees on June 1 and 2 Prior to June 1, 1960 , Respondent normally moved over 1 ,000 cars a day. On June 1, in Manager Hunt's words, and the record supports his statement , Respon- dent's operations were "virtually paralyzed." Beginning on the morning of June 1 and ending in the early hours of June 2, company drivers gathered at a hall and discussed their grievances. General Counsel seems to suggest that there was no connection between the Company's paralysis on June 1 and the employee meeting on the same day but the suggestion carries its own refutation . The record shows no flood, fire, or other catastrophe which might impede transportation in St. Louis on June 1 and it would appear , therefore, that the "meeting" and disruption of operations speak clearly for themselves and their intimate connection is apparent. The meeting of employees was a concerted interruption of operations by employees and a strike within the meaning of the Act .6 Moreover, the record also shows persistent efforts by Respondent to keep its operations going by calling all its drivers; 7 that Hunt described the massing of men before the terminal as a strike without disavowal by the men; that he urged a return to work and a proper filing of grievances without success; that Dugger 's first words to the men on June 1 were that they did not want a "wildcat"; that union officers told the men that they might be in violation of their agreement; that the Company sent telegrams to the Union describing the situation as a strike in violation of contract which wires were read to the assembled employees without effect ; that Dugger admitted that the Com- pany could not have operated normaly on the day in question "with so many drivers away ." ; that Robinson, the other complainant, admitted he was willing to work only when the meeting was over; that employee Cope went to the terminal to get a load but saw the men at the gate and went to the meeting ; and that Dugger went to the terminal with a group of other drivers after 2 a.m. on June 2 when the meeting had broken up, and at that time advised the Company that the men were ready to work. I find on the basis of above, including the more detailed findings in subsections B, C, and D of this section III , that Respondent's employees engaged in a strike in violation of contract on June 1 and 2 , and that Dugger and Robinson participated in it. Since the strike was in violation of an existing agreement all employees who participated in it, including the complainants, engaged in unpro- tected activity and were subject to discharge by the Company.8 2. Condonation An employer who forgives employees' misconduct, such as picket line mis- conduct or strike in breach of contract, may not later assert such misconduct as a defense to charges of discrimination against them particularly if they have been restored to their jobs and operations have been resumed .9 Respondent's telegram to its drivers demanding their return to work by a certain time under penalty of discharge and the consequent resumption of normal operations was, as Respondent concedes in effect, a condonation of the strikers' participation in the strike. Re- 8 Title 5, section 501 ; Kaiser Aluminum if Chemical Corporation, 104 NLRB 873, 876-877, reversed on other grounds 217 F. 2d 366 (C.A. 9). 7 I do not consider the testimony of employees Hutchinson, Bruhn, and Cope about not being dispatched to be basically in conflict with Hunt's positive and direct account of Respondent's efforts to dispatch drivers and the effect of its failure. 8 N.L R.B v. Sands Manufacturing Go, 306 U.S. 332, 344; W. L. Mead, Inc, 113 NLRB 1040; whether or not Dugger and Robinson were required to be at work on June 1, 1960, is immaterial for they were active participants in the unprotected strike See United Electrical, Radio and Machine Workers of America, Local 1113 (Marathon Electric Manufacturing Corp.) v N L R B , 223 F. 2d 338 (C.A.D.C ) 8 N L.R.B. v. E. A. Laboratories, Inc., 188 F. 2d ,885 (C.A. 2) ; Plasti-Line, Incorporated and Harry Brooks, Ralph P. Brooks, and Bruce M Edwards, d/b/a Sign Fabricators, 123 NLRB 1471, reversed 278 F 2d 482 (C.A. 6) ; The Carey Salt Company, 70 NLRB 1099, Sam Wallwk, at at., d/b/a Watliek of Schwalm Corp. and Spring Mills Apparel, Inc., 95 NLRB 1262. 630849-62-vol 134-43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent admits that the wires were sent in a "forgive and forget" attitude and that no employee was fired for his participation in the strike or for failure to comply with the demand for his return. Dugger and Robinson returned to work with the other employees and were not discharged until after grievances were filed by the Company seeking a determination of responsibility for the strike. General Counsel contends that since Dugger and Robinson were sent the same telegrams as the other drivers, and subsequently returned to work with them, the Respondent condoned their misconduct making their later discharge discriminatory. The Respondent argues, on the other hand, that the doctrine of condonation has no application to the facts here because Dugger and Robinson were instigators of the strike and not mere participants and that the Company did not condone instigation but only participation. Condonation depends on the facts in each case and the General Counsel must prove it by the preponderance of the evidence.10 The Board has told us that condonation may not be lightly presumed." I do not think the record establishes that the Respondent intended to or did condone instigation of the strike as contrasted with mere participation. Mr. Carney Matheson • testified, and I have credited his testimony in the more detailed statement of fact set forth above, that when he met with a committee sent from the Legion Hall by the strikers, he told them that Respondent considered their actions a violation of contract and that he intended to get to the bottom of the matter and find out who "instigated" the strike. At the same time Matheson told the group that the Company was sending telegrams to the drivers ordering them to return to work or be discharged for their participation in the stoppage. The committee left the company officials and reported back to the drivers. At the time Matheson dictated the telegrams to the drivers he did not know who was responsible for the strike. I find his action in sending a wire to all strikers ordering their return not to be inconsistent with an intention to in- vestigate the matter further to determine who was responsible for instigating the strike The strike materially affected Respondent's operations, injured its business relationship with Chevrolet, and a similar -incident had happened before. It is easy to believe that under such circumstances Matheson, as the chief spokesman for the Company, intended to forgive mere strike participation only but to take steps to prevent a recurrence of similar interruptions of operations in the future.12 The Respondent's actions in causing an immediate investigation to be made and filing grievances under the contract against a group of individuals is also consistent with a determination not to forgive those actively responsible for the strike.13 I find that under all the circumstances General Counsel has not established by a pre- ponderance of the evidence that Respondent condoned the actions of those who instigated the strike of June 1.14 3. Respondent's belief that Dugger and Robinson instigated the strike After the drivers returned to work the Respondent conducted an immediate investigation to determine responsibility for the walkout. Hunt conceded that his investigation did not satisfy him as to who instigated the strike but testified credibly that the investigation revealed enough to cause the Respondent to suspect that Dugger and Robinson not only participated in but instigated the strike. Shortly thereafter Respondent advised the two complainants that Respondent had reason to believe that they were part of a group that instigated the strike and filed grievances under the contract to determine that issue. Not until the Detroit panel had determined that Dugger was one of the instigators and after Robinson's case had twice been postponed did Respondent discharge them. Dugger told a company supervisor who investigated the strike essentially the same story about his activities on June 1 and 2 as he gave in the instant hearing. Robinson refused to answer questions at the local panel hearing because his answers might "incriminate" him. Leaving aside for the moment the question of whether Dugger and Robinson actu- ally instigated the strike, I find that Respondent had a good-faith belief at the time of their discharge that they played more than a passive role in the unprotected strike and actively instigated it. In making such finding, I rely on Hunt's testi- mony to that effect; the fact that he conducted an investigation, interviewing about 10 Merck and Company, Inc, 110 NLRB 67, 70 " Kohler Co, 128 NLRB 1062 12 See Softexture Ya2ns, Inc, 128 NLRB 764 12 See Stockham Pipe F2ttings Co, 84 NLRB 629 1' See Bechtel Corporation 127 NLRB 891 COMPLETE AUTO TRANSIT, INC. 659 125 drivers, including Dugger and Robinson; the fact that the Company did not act precipitately in the circumstances but reasonably and carefully by filing griev- ances under the contract; the fact that in Dugger's case at least, the panel agreed with Respondent that Dugger was one of the instigators of the strike; 15 on Dugger's testimony in the hearing in this case which showed he played a very active role in the strike and his statement that he told the Company during its investigation essentially what he testified to at the instant hearing; on Hunt's statement, which I credit, that the Company considered its case against Robinson as strong as its case against Dugger. In addition, of special significance in evaluating Respondent's good faith, is the absence of any evidence or implication in the record that Re- spondent had any improper motive in its treatment of Dugger and Robinson, or was motivated by anything other than a desire to fairly fix responsibility for an unwarranted and expensive interruption of operations. An employer's good-faith belief that an employee has engaged in misconduct is immaterial if the activity in which the employee was engaged and for which he was discharged was activity protected by the Act.'6 In Rubin Bros. Footwear, Inc.,17 the Board in modifying an earlier rule said: We are now of the opinion that the honest belief of the Employer that striking employees have engaged in misconduct provides an adequate defense to a charge of discrimination unless it affirmatively appears that such misconduct did not in fact occur. We thus hold that once such an honest belief is established the General Counsel must go forward with evidence to prove that the employees did not in fact engage in such misconduct. I have found that Respondent entertained an honest belief when it discharged Dugger and Robinson that they had instigated the strike. At first glance, however, it might appear that if General Counsel established that the complainants had not in fact instigated the strike then Respondent's belief would be no defense. An analysis of the Board's Rubin Bros. decision and other cases where an employer's honest belief has been vitiated by evidence that the misconduct did not occur, however, reveals that the activity in which the employee was engaged was protected activity. In such cases it is felt unfair to allow employees' rights to engage in conduct protected by the Act to depend on their employer's state of mind. In Salt River Valley Association, supra, the court said: That the Association may have acted in good faith, believing itself justified in discharging Sturdivant is not material where the activity for which he was dis- charged was an activity protected by the Act. In Cusano, supra, it also appeared that the employee involved was engaged in pro- tected activity and the court concluded that if the conduct giving rise to the employ- er's mistaken belief is itself protected activity then the employer's erroneous observa- tion cannot justify the discharge. In Industrial Cotton Mills, supra, in a similar situa- tion the court reasoned that: It is true that where the denial of reinstatement results from the employer's reasonable and sincere mistake, there is no evil intention behind the harm suf- fered by the employee. While the employer's attitude may not be censurable, the employee too is free of blame. As between the victim of the mistake and the person who made the mistake, it seems just that the perpetrator bear the onus of his own error rather than that the burden should be shifted to the employee who cannot guard against it. In the case at bar Dugger and Robinson participated in a strike in violation of contract, an unprotected activity. While engaged in that unprotected activity, and as a result of it, Respondent was led to believe that the employees had engaged in 111 do not consider the panel's finding as binding on the Board, but rely on it as evidence of Respondent's good faith Cf Spielberq Manufacturing Company, 112 NLRB 1080 See also discussion of problem under a similar contract by Trial Examiner Lindner in University Overland Express, Inc, 129 NLRB 82. 10 N.L R B v. Industrial Cotton Mills (Division of J. P Stevens Co ), 208 F 2d 87 (C A. 4) ; N L R B. v. Salt River Valley Water Users' Association, 206 F 2d 325, 329 (C A. 9) , Cusano d/b/a American Shuffleboard Co. v N.L R B , 190 F. 2d 898, 902-903 (C A. 3) 17 99 NLRB 610 , reversed 203 F 2d 486 (CA 5) 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other unprotected acts. It cannot be said in such circumstances that the employees ,are free of blame or that they could not guard against the situation by taking no part in the very activity which was unprotected from the beginning . Neither do I see .how shifting the burden of Respondent 's mistaken behet to employees, while they ,are engaged in unprotected activities , discourages or interferes with their basic rights under the Act. If anything, such a shifting of risk might very well discourage im- proper activities and encourage the orderly procedure of collective bargaining.18 As I read the cases, since Dugger and Robinson were not engaged in protected activities Respondent's good-faith belief that they had engaged in other improper acts is an -adequate defense to a complaint of discrimination regardless of the soundness of Respondent's belief.19 If, on the other hand , Respondent's honest but mistaken belief that the employees had instigated the strike is not a defense, I do not think that General Counsel has established by a preponderance of the evidence that Dugger and Robinson had nothing to do with instigating or provoking the other employees into remaining away from work. I think this is very clear in Dugger's case, and so find, but closer in Robinson's. Both employees actively participated for many hours in a gathering of employees which I have found to be a strike in violation of contract . Dugger's role, however, seems to have been greater than Robinson's. Dugger, as set forth in greater detail earlier in this report , called the union repre- sentative on the morning of June 1, 1960 , told the men "what should be done"; informed the union officials where the meeting would be held; argued with Hunt in the presence of the other drivers that the men could not live on promises ; helped the drivers prepare grievances at the Legion Hall; turned the gavel over to a union official at the hall; and returned to the terminal at 2 a.m., June 2, with a group of other drivers and advised the Company they were ready to work. Robinson, on the other hand, testified, as set forth above, that he got a mysterious telephone call from an unidentified driver early on the morning of June 1, to the effect that there was going to be a special meeting. He drove to the terminal and, although he observed a large gathering of drivers , he sat in his car. Later he told Hunt that he did not know what was going on. Robinson was in and out of the meeting at the hall all day and took some part in a demand that a signed copy of the labor agreement be obtained. After the meeting concluded Robinson went back to work. Robinson did not deny that he was, as Hunt testified , at the microphone at the Legion Hall or was a "leader" in the assemblage. I am not satisfied that he made a complete disclosure of his activities during the strike or was generally a candid wit- ness. His testimony was vague and uncertain in spots. I do not believe that he did not know who called him on the morning of June 1 to advise him that there was going to be a meeting, or that he could not recall the name of the employee who sat with him in his car while he watched the gathering of drivers at the terminal . Robinson was also vague about what was done and said at the Legion Hall but I do not think his memory was as poor as he portrayed it. On the basis of the entire record, I find that General Counsel has not established Robinson 's nonparticipation in provoking or instigating the strike of June 1. CONCLUSIONS OF LAW 1. Complete Auto Transit , Inc., St. Louis, Missouri, is engaged in, and during all times material was engaged in, commerce within the meaning of Section Z(6) and (7) of the Act. 2. Local 604, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent did not discriminate against Dugger and Robinson in violation of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication.] 11 Because the conduct complained of may appear unfair does not make it discriminatory Underwood Machinery Company, 74 NLRB 641, 646 . An adequate grievance machinery and arbitration is a device for handling such matters 19 See Underwood Machinery Company , supra ; National Grinding Wheel Company, Inc, 75 NLRB 905 , 907-908; J. W Woodruff, d/b/a Atlanta Broadcasting Company, 79 NLRB 626; Kallaher ct Mee, Inc, 87 NLRB 410