Brown Transport Corp.

BROWN TRANSPORT CORP. Brown Transport Corp. and Orlando Adwaters Drivers Mutual Association and Orlando Adwaters. Cases 10-CA-11774 and 10-CB-2585 December 12, 1978 DECISION AND ORDER BY MEMBERS JENKINS. MURPHY. AND TRUESDALE On December 13, 1977, Administrative Law Judge Sidney J. Barban issued the attached Decision in this proceeding. Thereafter, General Counsel and Charg- ing Party filed exceptions and supporting briefs, Re- spondent Drivers Mutual Association (herein Re- spondent Association or the Association) filed cross-exceptions and a supporting brief, and Respon- dent Brown Transport Corp. (herein Respondent Company or the Company) filed cross-exceptions and a brief in support of its cross-exceptions, and in opposition to General Counsel's and Charging Party's exceptions, and in support of the Administra- tive Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge, for the reasons stated by him, that Respondent Compa- ny violated Section 8(a)(1) of the Act by coercively interrogating an employee concerning his union membership, threatening to close down the Com- pany's Atlanta terminal if employees selected Truck Drivers & Helpers of America, Local Union 728, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Teamsters), and making it plain that choosing the Teamsters as their bargaining represen- tative would be a futile act; and Section 8(a)(l). (2). and (3) of the Act by coercively inducing employee Orlando Adwaters to join Respondent Association and execute a checkoff authorization in its favor, aid- ing and assisting Respondent Association in the so- licitation of Adwaters' membership, and deducting Association dues from his pay. We further agree with the Administrative Law Judge that Respondent As- sociation, acting together with Respondent Compa- ny, coercively solicited Adwaters to join the Associa- tion and to execute a checkoff authorization in violation of Section 8(b)(1)(A) and (2) of the Act.' However, contrary to the Administrative Law Judge, we find, as fully set forth below, that Respon- dent Company violated Section 8(a)(3) and (1) of the Act when it discharged Orlando Adwaters on Febru- ary 5, 1976, and thereafter failed to reinstate him,2 and that Respondent Association violated Section 8(b)(i)(A) of the Act by its failure to represent Ad- waters fairly at a subsequent grievance hearing held on February 10, 1976. 3 The pertinent facts regarding Adwaters' discharge are as follows: 4 Orlando Adwaters was employed as a probationary employee 5 at the Company's Atlanta terminal in early July 1975. Shortly before the end of his probationary period, Foreman Smith, admittedly a supervisor within the meaning of the Act, ap- proached Adwaters while the latter was working, and asked him when his probationary period was up. Ad- waters replied that a few days remained. Smith then sent Adwaters to the Company's conference room to see Gaston Savage, a company employee who was president of the Association. Savage told Adwaters that the association is the union at the Company, the Association would represent Adwaters, Association dues of $1 per week would be deducted from his pay- check, and Adwaters would have to sign an authori- We do not find. however, that the record supports the Administrative Law Judge's conclusion that Respondent Company "has a practice" of coercing employees generally, at the end of their probationary penriod. to join Respondent Association. and that the Respondents were engaged in a joint, cooperative enterprise designed to assist the Association In securing members from among Respondent's employees." Accordingly. our finding of a violation regarding this issue is limited to the Respondents' actions in securing Adwaters' membership in the Association. Furthermore. in his recommended Order, the Administrative Law Judge included, inter alia, a requirement that Respondent Company cease and desist from providing the Association with company facilities "for the pur- pose of assisting Respondent Association to solicit employees to join the Respondent Association." Since such conduct was not alleged as a violation in the complaint nor otnerwise litigated. and the Administrative Law Judge made no explicit finding that by providing such facilities the Compans violated the Act. we have not included this requirement In our Order The General (Counsel alleges as a separate violation of Sec 8(aHl) that the (Compan) failed and refused to reinstate Adwaters because of his ag- gressive advocacy of black employment with the Company. In view of our disposition of the issues relating to the Company's discharge of, and failure to reinstate, Adiaters, we find it unnecessary to pass upon the General Counsel's and the Charging Parti's contentions that such a separate viola- tion should be found. 'W ith the exception of our findings that the Company's dishcarge of Adwaters violated Sec 8(a)(3) and (I ) of the Act and that the Association's failure to represent him violated Sec. 8(bx I XA). we agree with the Adminis- trative Law Judge that the complaint be dismissed insofar as it alleges viola- ions not found by him (ie., that Respondents entered into) and gave effect to certain allegedly' unlawful clauses in their collective-bargaining agree- ments and that Respondent Associtilion unlawfully caused or attempted to cause Respondent Company to discharge Adwaters) 4This summary is based on testllmony credited by the Administrative Laws Judge The probationary period Is 90 days. during which time an employee may be discharged without recourse. Pursuant to art 2 of the collective-bargain- ing agreement then In effect between the Respondents, representatives of the Company and the Association could Ineet prior to the end of that period to determine whether or not the emplovee would he placed on permanent status 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation to permit this deduction and to become a member of the Association. After Adwaters signed the authorization, he and Savage discussed where Adwaters could inspect the Company-Association collective-bargaining agreementP and Savage then sent Adwaters back to work.7 In late November, Adwaters, convinced that his working hours had been unjustly "cut," complained to management that white employees with less se- niority did not have their hours reduced. Foreman Beauchamp told Adwaters that if he were dissatis- fied, he should seek employment elsewhere. Adwa- ters discussed with other employees filing a grievance via the Association over this incident but was dis- suaded from doing so because the other employees told him that it would be futile to file a grievance and it might jeopardize his job. Adwaters thereafter be- gan to discuss with other employees the possibility of getting the Teamsters to represent them. In late De- cember 1975 and again in January 1976,8 Adwaters visited the Teamsters office. During this time he also continued to discuss with his fellow employees the desirability of representation by the Teamsters. During the first 2 weeks in January, Respondent Company's Supervisors Beck and Beauchamp held a series of unprecedented individual interviews with employees in the Company's conference room. I)ur- ing Adwaters' conference, Beck complimented Ad- waters on his good work and then, at the end of the discussion, said there was some "uneasiness" among the employees and asked Adwaters if he knew about it. Adwaters said he did not. Although Respondent Company contends that these employee conferences were held for the purpose of thanking the employees for their good work, the Administrative Law Judge concluded that, considering all the circumstances, it was more likely that the conferences were prompted by the employees' discussion of Teamsters represen- tation. In mid-January, shortly after the conference de- scribed above, Gerald Compton, then manager of the Atlanta facility, called Adwaters into his office and told him, inter alia, that he (Compton) had received information about Adwaters and the Teamsters, that Adwaters was causing problems by his attitude, and that, before he would let any organization, union. or court order change things in the Company, he would c Although the collective-bargaining agreement was not admitted into e'i dence. the Administrative L.aw Judge found on the state of the pleadings that it contained no union-securit; claulse 7 In view of the tenuousjob slatus of a probationary emplolee, we find. mI agreement with the Administrative L.aw Judge. that In the circumstances here Adwaters reasonably believed that the (ompans wanted him to join the Association, and that the (ompany and the Association acting together coercively solicited Adwaters' membership in the Association. s All dates hereinafter are 1976 unless otlhrwlse indicated shut the place down and everybody would be out of a job. Adwaters said, inter alia, that although he was not currently affiliated with the Teamsters, he had been in the past, and that he was now a member of SCLS (Southern Christian Leadership Conference). He also raised his concern about the lack of equal opportunity for black employees in the Company's hiring and promotion practices. On the evening of February 4, Adwaters called in sick and was told that he should bring in a doctor's certificate regarding his illness. On February 5, a payday, Adwaters went to the Company's terminal to pick up his check and was told by the clerk that Compton wanted to see him. In the ensuing meeting with Compton, at which Association Committeeman Grady Hindsman was also present, Compton told Adwaters that there had been a number of comp- laints about Adwaters' work, including, inter alia, poor attitude, lateness, improper job performance, and slowing down on the job. Adwaters replied that he had slowed up and would do no more than any- body else because he believed in "equal pay for equal work." As for his attitude, Adwaters stated that he was "not going to do any better." At this, Compton indicated that Adwaters was terminated and gave him his checks.9 Pursuant to the grievance provision of the Compa- ny-Association contract, Adwaters requested that a hearing be held regarding his discharge. On February 10 the hearing was held before a panel of three Asso- ciation representatives and two company representa- tives, including Company President Isaac Hemings. Respondent Association did not investigate Adwa- ters' complaint prior to the hearing, nor, during the hearing, did it assist him in presenting his case or speak on his behalf. Compton presented Respondent Company's reasons supporting the discharge, includ- ing Adwaters' alleged absenteeism, poor attitude, work slowdown, and misdirection of freight. Adwa- ters began his rebuttal by stating that, with regard to his attitude, all he had done was request information about black employees in relation to the Company's personnel practices. At that point he was cut off by Hemings, who stated, inter alia, that blacks had not gotten anywhere in the last 15 years, politicians and programs did not help, and Adwaters should have kept his mouth shut. Hemings also said he was sorry Althouglh there wls "sonic disputie as to whether (omnlpton then Went to gel ,Ada;lers' pa.checks, or handed them over the desk to Adwaters at this point'" the Administrative I aw Judge saw "no reason to pass upon" the issue (Compton testified that he told Adwaters. "I have no alternative but to !erlin.ate on , and if you will Wait right here I'II go get your check " Hinds- man testified that (Complon said "'Well. I gues': the best thing that I can do then is Just get our check" !le later stated that ('ompton's words were "I'll get our checks." Adwalers testified that, :fier indicating that Adwaters was disiissed, (Compton "gave nle rimi checks and I got up and got ready to cise ' 712 BROWN TRANSPORT CORP. Adwaters had taken it upon himself to become a troublemaker. At the end of Hemings' statement, an Association panel member stated that the parties were off the subject and that Adwaters should leave the room so the panel could vote on his grievance. When Adwa- ters was called back to the hearing, he was told that the panel had voted and that the discharge would stand. The Administrative Law Judge concluded that Ad- waters' discharge did not violate Section 8(a)(3) and (I) of the Act. In so concluding the Administrative Law Judge found that: (1) Adwaters' "alleged past derelictions" (the Company's asserted reasons for the discharge) were not critical to Compton's decision to terminate him; (2) the Company was hostile to Ad- waters because of his actions on behalf of the leam- sters and his criticism of the Company's minority hir- ing practices; and (3) the discharge followed closely upon Adwaters' espousal of these causes. These fac- tors, the Administrative Law Judge noted, indicated that Adwaters' discharge was related to his union ac- tivity. However, the Administrative Law Judge ap- parently credited Compton's testimony that he did not intend to discharge Adwaters on February 5, but only to counsel him, and that he decided to terminate Adwaters only after he displayed a truculent and in- subordinate attitude and refused to assure Compton that he would try to improve his work performance. Accordingly, the Administrative Law Judge conclud- ed that Adwaters' conduct towards Compton on February 5 gave the Company good cause for disci- pline, including discharge, and that Compton's as- serted reason for the discharge (i.e., Adwaters' con- duct and attitude during their discussion) was not a pretext. The Administrative Law Judge therefore rec- ommended dismissal of this allegation of the com- plaint. We cannot agree with the Administrative Law Judge that Adwaters' termination was based on his conduct at the February 5 meeting, for we find that a preponderance of the probative evidence establishes that the decision to discharge him was made prior to the meeting. In this regard Respondent Company submitted into evidence various payroll records per- taining to Adwaters. Among these exhibits were cop- ies of the weekly timecards on which employees' dai- ly hours are recorded. At the end of each workweek, the total of hours worked is entered on the card, which is signed by the employee, approved by his supervisor or the terminal manager, and sent to the payroll division for processing. The payroll division, which is located at the Company's general office at Elberton, Georgia, receives these cards at the begin- ning of the week following the week summarized on the timecard. Helen Tindall, the Company's payroll manager. testified that, in the ordinary course of events, em- ployees are paid with a "computer-type payroll check" 2 weeks later than the actual tilr. worked.'0 The computerized check, which is made out at the Company's general office in Elberton, is postdated to bear the date on which the employee is to receive it." If no decision to terminate Adwaters had beenr made prior to February 5, it appears, in light of Tindall's testimony set forth above, that a check cov- ering the week ending January 23 is the only pay- check Respondent C('ompany should have had pre- pared for Adwaters on that date. However, also in evidence are two "warrant" checks (numbered 17512 and 17513) filled out bv hand (rather than printed by computer), and both dated "2/4/76." These are, ac- cording to Tindall, the last two paychecks received by Adwaters. She further testified that these warrants were made out on February 4 at the terminal in At- lanta, rather than at the office in Elberton, and that warrant 17512 updated Adwaters' pa roll records through the period ending February 5. It is thus apparent that on February 4, the day before the conversation in Compton's office (alleg- edly as a result of which Adwaters was discharged), the Company had made out paychecks covering all wages due Adwaters as of February 5. The General Counsel contends, and we agree, that this evidence establishes that the decision to discharge Adwaters was made prior to the February 5 meeting, and that Compton's claim that the discharge was motivated solely by Adwaters' conduct and attitude during their meeting is pretextual.' 1l indall referred to the 2-week lag time between the end of the work- week and the issuance of the computerized check covering that week as a "two-week hold back." H Thus. for example. a cop) of Adwaters' timecard for the week of Janu- ary 23. 1976, shows his total hours for the week to be 42 60 A copy of the computer printout entitled "Employee Earnings Report 01 23 76" shows. ,nteralila 42 64) of "Reg Hrs., 'a "Net" of 153.91, and "Check" No 183070 Accordingly, Adwaters' computerized check bearing the number 183070 is dated February 6, 1976, and is made out in the amount of $153.91 'Adwaters' timecard headed "Jan 30. 1976" shows a total of 40.70 hours worked during that week. His timecard headed "Feb. 6, 1976" shows a total of 25.55 hours and bears the handwritten message "Terminated 2 5 76." Similarly two computerized employee earnings reports, dated 2/5/76 and 2 6 76, show, respectively. regular hours of 40.70 and 25 55, and net pay of $154 27 and $96 53. the amounts on the warrant checks described above ~ The Company's brief, which purports to answer the General Counsel's exceptions. does not discuss this analysis. Rather, the Company merely as- serts that the Administrative L aw Juldge correctly concluded that Adwaters' discharge did not siolale the Act The Adminlstratise L aw Judge apparently credited (Compton's assertions that he had not decided ito terminate Adwaters prior to, the February 5 meeting. and that he did so because of Adwaters' unrepentant and insubor- dinate attitude at that meeting While it is the Bcoard's established policy not to overrule an Administrative Law Judge's credibility resolutions unless the clear preponderance of ill the reles.lnl esidence consinces us that the reso- lutions are incorrect (Standard Dri 14nal Productr. Inc. 91 NLRB 544 Continued 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Administrative Law Judge found: The record is persuasive that Respondent Company was, indeed, hostile to Adwaters both because he was a leading advocate of the Team- sters among the employees and, perhaps even more so, '1ecause of his militant criticism of the Company's minority hiring practices .... The timing of the discharge followed closely upon Adwaters' vigorous espousal of these causes. Most of the reasons offered to justify the dis- charge. are less than convincing. In light of all of the above, we find that, as alleged, Respondent Company violated Section 8(a)(l) and (3) of the Act when, motivated by Adwaters' activi- ties on behalf of the Teamsters, it discharged him on February 5 and thereafter refused to reinstate him. The General Counsel further contends that Re- spondent Association breached its duty of fair repre- sentation by failing to assist Adwaters in any way, either before or during the February 10 grievance hearing, and thus violated Section 8(b)( )(A). The Administrative Law Judge, finding that such a "theo- ry is not alleged in the complaint," refused to consid- er the issue. We agree with the General Counsel that such a violation is embraced by the complaint.' Fur- thermore, while Respondent Association scheduled Adwaters' grievance for hearing, it is undisputed that the Association neither contacted Adwaters nor in- vestigated his grievance prior to the hearing, and dur- ing the hearing did not assist Adwaters in presenting his case or speak in his behalf. Indeed, as the facts set forth above show, it called for a decision on the grievance before Adwaters had an opportunity to present his complete defense to the Company's (1950), enfd. 188 F.2d 362 (3d Cir. 1951)), it is clear from the records discussed above that a decision to terminate Adwaters had been made prior to the discussion in Compton's office, and we do not, therefore, place any reliance on this particular credibility resolution of the Administrative Law Judge. The relevant paragraphs of the complaint are as follows: 19. On or about February 5. 1976, Respondent Employer discharged and thereafter failed and refused to reinstate its employee Orlando Adwaters. 20. On or about February 5, 1976. Respondent Association caused or attempted to cause Respondent Employer to discharge its member Orlando Adwaters alleged in paragraph 19 above. 22. Respondent Association and Respondent Employer, on or about February 10, 1976, pursuant to Article 8 of the 1973 agreement . . . conducted a hearing on Adwaters' grievance and denied reinstatement of Adwaters. 28. The acts of Respondent Association alleged in paragraphs . 20 [andl 22 . .. constitute unfair labor practices affecting commerce within the meaning of Section 8(bX I)(A) and Section 2(6) and (7) of the Act. Clearly, the Association's behavior at the grievance hearing on February 10 is covered by these allegations, and particularly by para. 22. charges, and thereafter participated in deciding the grievance adversely to Adwaters. Thus, the Associa- tion served only as Adwaters' judge, and not as his advocate. Accordingly, it is clear that, far from according Adwaters the fair representation which it was obliged to provide, Respondent Association failed to repre- sent him at all. We find, therefore, that by its arbi- trary and unexplained failure to represent Adwaters during the grievance process, Respondent Associa- tion has restrained and coerced an employee in the exercise of rights guaranteed by Section 7, thereby violating Section 8(b)(1)(A) of the Act.'5 CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Association and Truck Drivers & Helpers of America Local Union 728, International Brotherhood of Teamsters, Chauffeurs and Ware- housemen of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Company, by coercively interro- gating an employee concerning his union member- ship, by threatening to close down the Company's Atlanta terminal if the employees selected the Team- sters as their bargaining representative, and by mak- ing it plain that the designation of the Teamsters as the employees' representative would be a futile act, engaged in unfair labor practices in violation of Sec- tion 8(a)(l) of the Act. 4. Respondent Company, by coercively inducing Orlando Adwaters to join Respondent Association and execute a checkoff authorization in its favor, by aiding and assisting Respondent Association in the solicitation of Orlando Adwaters to join the Associa- tion and execute a checkoff authorization, and by deducting dues from Orlando Adwaters' pay on be- half of the Association pursuant to such authoriza- tion, has engaged in unfair labor practices in viola- tion of Section 8(a)(1), (2), and (3) of the Act. 5. Respondent Company, by discharging and fail- ing and refusing to reinstate Orlando Adwaters be- cause of his union and protected concerted activities, engaged in unfair labor practices in violation of Sec- tion 8(a)(3) and (1) of the Act. 6. Respondent Association, by failing to fairly represent Orlando Adwaters during the grievance See. e.g.. Service Employees International Union, Local No. 579, AFL- (CI0 (Convacare of Decatur d b a Beverly Mano- Convalescen Center, et al.), 229 NLRB 692. 695. fn. 2 (1977): Truck Drivers, Oil Drivers and Filling Station and Platform Workers Local No 705, International Brorherhood of leamsters, Chauffeurs. Warehousemen and Helpers of America (Associated Transport, Inc}. 209 NI RB 292 (1974) 714 BROWN TRANSPORT CORP. hearing regarding Adwaters' discharge by Respon- dent Company, has restrained and coerced Adwaters in the exercise of rights guaranteed in Section 7 of the Act, and thereby violated Section 8(b)( )(A) of the Act. 7. Respondent Association. by acting together with Respondent Company to coercively solicit Or- lando Adwaters to join the Association and to exe- cute a checkoff authorization, engaged in unfair la- bor practices in violation of Section 8(b)(1)(A) and (2) of the Act. 8. The aforesaid unfair labor practices affect com- merce within the meaning of Sections 2(6) and (7) of the Act. THitF REMEI)Y Having found that Respondent Company has en- gaged in unfair labor practices in violation of Section 8(a)(1), (2), and (3) of the Act, and having further found that Respondent Association has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, we shall order Respon- dents to cease and desist therefrom and to take cer- tain affirmative action to effectuate the purposes of the Act. Specifically, as we have found that Respon- dent Company has unlawfully discharged and failed or refused to reinstate Orlando Adwaters, we shall order that Respondent Company offer Orlando Ad- waters immediate reinstatement to his former posi- tion or, if such job no longer exists, to a substantially equivalent position, without loss of seniority or other rights and privileges, discharging if necessary any re- placement hired. We shall further order that Respon- dent Company make Orlando Adwaters whole for any loss of earnings or other benefits he may have suffered as a result of the discrimination against him from the date of his discharge to the date of Respon- dent Company's offer of reinstatement, in accor- dance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with in- terest thereon to be computed in the manner pre- scribed in Florida Steel Corporation, 231 NLRB 651 (1977).16 Furthermore, as we have found that Re- spondent Company has deducted moneys from the pay of Orlando Adwaters pursuant to a checkoff au- thorization executed by him as a result of the coer- cive actions of the Company and the Association act- ing together, we shall order that the Company and the Association, jointly and severally, reimburse Ad- waters for the moneys deducted from his pay pur- suant to such checkoff authorization," with interest 1Ssee. generall. Isis Plumbing & Heating (ompaun, 138 NLRB 716 (19621. thereon to he computed in the manner prescribed in Florida Steel Corporation, supra, and Isis Plumbing and Heating Co., supra.'8 Finally, inasmuch as Re- spondent Company has engaged in unfair labor prac- tices which go to the very heart of the Act, we shall order that Respondent Company cease and desist from infringing in any other manner upon the rights guaranteed to its employees by Section 7 of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. The Respondent, Brown Transport Corp., At- lanta, Georgia, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Threatening to close down its operations, or part of its operations, or otherwise threatening em- ployees with loss of employment, or other reprisal. because of employee membership in or activities on behalf of Truck Drivers & Helpers of America Local Union 728, International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America. or any other labor organization. (b) Coercively interrogating its employees with re- spect to membership in or activities on behalf of the Teamsters, or any other labor organization. (c) Informing or otherwise leading its employees to believe that selecting the Teamsters, or any other labor organization, as their collective-bargaining rep- resentative would be a futile act. (d) Encouraging its employees to join or support Drivers Mutual Association, or any other labor orga- nization, by asking, directing, or otherwise inducing its employees to join, assist, or execute checkoff au- thorizations in favor of Respondent Association. (e) Deducting dues or other moneys from its em- ployees' wages on behalf of Respondent Association pursuant to checkoff authorizations which Respon- dent Company is informed, or otherwise has cause to know, were not freely and voluntarily executed by the employees signatory thereto. B1 See Baggett Industrial (onstructors Incororated. 219 NLRB 171 (1975L and cases cited therein. Is In accord with our usual practice. we shall require that the (Compan) post Ippropriate notices. herein Appendix A. Informing the employees that it will not henceforth engage in certain proscribed conduct. However. inas- much as there is no evidence that the Associati.n has a designated place of business where it could post appropriate notices. we shall require that the association mall signed copies of Appendl:x B to its members as well as to the ( ompan) for posting hb the Company at its Atlanta terminal. 19See N I..R B s Entuitile [¢ rt~ ( o, 120 F2d 532, 536 (4th (ir 19 41i 715 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Discharging, failing to reinstate, or otherwise discriminating against its employees because of their activities on behalf of the Teamsters, or any other labor organization. (g) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Orlando Adwaters immediate and full reinstatement to his former position or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, discharging if necessary any replace- ment hired, and make Orlando Adwaters whole for any loss of earnings suffered by him as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Jointly and severally, with Respondent Associ- ation, reimburse Orlando Adwaters for moneys de- ducted from his wages pursuant to the checkoff au- thorization which Adwaters executed in favor of Respondent Association, as provided in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of money due under the terms of this Order. (d) Post at its place of business in Atlanta, Geor- gia, copies of the attached notice marked "Appendix A." 20 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent Company's authorized repre- sentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent Company to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in paragraph A, 2,(d), above, as soon as they are forwarded by the Regional Direc- tor, copies of the Respondent Association's attached notice marked "Appendix B." (f) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply herewith. B. The Respondent, Drivers Mutual Association, Atlanta, Georgia, its officers, agents, and representa- tives shall: 1. Cease and desist from: (a) Coercively soliciting employees of Respondent Brown Transport Corp. to join Respondent Associa- tion or to execute checkoff authorizations in favor of it. (b) Seeking or accepting aid or assistance from Respondent Company in soliciting the latter's em- ployees to join Respondent Association or to execute checkoff authorizations in favor of it. (c) Restraining or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act by failing or refusing to represent any employee in a bargaining unit represented by the Association. (d) In any like or related manner restraining or coercing employees in the exercise of rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which will effectuate the purposes of the Act: (a) Jointly and severally, with Respondent Com- pany, reimburse Orlando Adwaters for the moneys deducted from his pay pursuant to the checkoff au- thorization which Adwaters executed in favor of Re- spondent Association, as provided in the section of this Decision entitled "The Remedy." (b) Mail or deliver personally to each employee in the bargaining unit represented by Respondent Asso- ciation at the Atlanta terminal of Respondent Com- pany a copy of the attached notice marked "Appen- dix B." on forms provided by the Regional Director for Region 10, immediately upon receipt thereof, and after being signed by a duly authorized representa- tive of Respondent Association. Such notices shall not be altered or defaced. (c) Mail to the Regional Director for Region 10 signed copies of the attached notice marked "Appen- dix B" for posting by Respondent Company at its premises at Atlanta, Georgia, in places where notices to employees are customarily posted. Copies of the notice, on forms provided by the Regional Director for Region 10, shall, after being duly signed by an authorized representative of the Respondent Associ- ation, be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent Association has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be. and it hereby is, dismissed as to alleged violations of the Act not found herein. 20 In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 716 BROWN TRANSPORT CORP. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all these things. WE WILL NOT threaten to close down our oper- ations or threaten employees with loss of em- ployment, or any other reprisal, because of em- ployee membership in or activities on behalf of Truck Drivers & Helpers of America, Local Union 728, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other union. WE WILL NOT coercively interrogate employees with respect to membership in or activities on behalf of the Teamsters, or any other union. WE WILL NOT discriminate against our employ- ees by discharging them or failing to reinstate them because of their activities on behalf of the Teamsters, or any other union. WE WILL NOT inform employees, or otherwise lead employees to believe, that selecting the Teamsters, or any other union, as their bargain- ing representative would be a futile act. WE WILL NOT ask, direct, or induce employees to join, assist, or sign checkoff authorizations in favor of Drivers Mutual Association, except pursuant to a lawful union-security clause in a valid bargaining contract. WE WILL NOT deduct dues or other moneys from employees' pay pursuant to checkoff au- thorizations for Drivers Mutual Association, where we have been informed or otherwise have cause to know that the authorizations were not freely and voluntarily signed by the employees involved. WE WILL NOT in any other manner interfere with, restrain, or coerce any employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Orlando Adwaters immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights or privileges, discharging if necessary any replacement hired. WE WIL L make Orlando Adwaters whole for any loss of earnings or other benefits he suffered as a result ot the discrimination against him, together with interest. WE WILL, jointly and severally with Drivers Mutual Association, reimburse Orlando Adwa- ters for moneys deducted from his pay pursuant to the checkoff authorization which he signed in favor of the association, with interest. BROWN TRANSPORT CORP. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT coercively solicit employees of Brown Transport Corp. to join the Drivers Mu- tual Association, or to sign checkoff authoriza- tions for the Association. WE WILt NOT seek or accept aid or assistance from Brown Transport Corp. in soliciting em- ployees to join the Association or to sign check- off authorizations for the Association. WE WIILL NOT fail or refuse to fairly represent any employee in a bargaining unit represented by us. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed under Section 7 of the Na- tional Labor Relations Act. WE WILL. jointly and severally with Brown Transport Corp., reimburse Orlando Adwaters for the moneys deducted from his pay pursuant to the checkoff authorizations he signed in favor of the association. DRIVERS MUTUAL ASSO(KIATION 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This mat- ter was heard at Atlanta, Georgia, on March 15, 16, 17, 30, and 31 and April 1, 1977, upon a consolidated complaint issued on December 3, 1976, based upon a charge filed in Case 10-CA-11774 on February 10, 1976, and a charge filed in Case I0-CB-2585 on June 9, 1976. The complaint alleges that (I) Brown Transport Corp.' (herein Respon- dent Company or the Company) (a) interrogated employ- ees concerning membership in and activities and desires for the Teamsters Union,2 threatened to close its terminal if the employees selected the Teamsters to represent them, and threatened employees that it would be futile for them to select the Teamsters to represent them, all in violation of Section 8(a)(1) of the Act; (b) was and is a party to a collective-bargaining agreement with Drivers Mutual Asso- ciation (herein Respondent Association or the Association) containing certain provisions, not including a union-securi- ty clause, which it has continued in effect and enforced, in violation of Section 8(a)(1), (2), and (3) of the Act; (c) required Orlando Adwaters (herein Adwaters) as a condi- tion of employment to join Respondent Association and to execute a dues-checkoff authorization in its favor, in viola- tion of Section 8(a)(l), (2), and (3) of the Act; and dis- charged Adwaters and refused to reinstate him after a hearing on Adwaters' grievance, held in accordance with certain provisions of the bargaining agreement referred to above, all in violation of Section 8(a)( 1), (2), and (3) of the Act; and that (2) Respondent Association (a) by being party to collective-bargaining contracts with Respondent Company containing provisions referred to above, and by giving effect to and enforcing such contract provisions; and (b) by requiring Adwaters as a condition of employ- ment to join Respondent Association and execute a dues- checkoff authorization in its favor; and (c) by causing Re- spondent Company to discharge Adwaters; and (d) by its conduct of a hearing on Adwaters' grievance pursuant to which he was denied reinstatement, violated Section 8(b)(1)(A) and (2) of the Act. Respondent Company and Respondent Association filed answers which denied the unfair labor practices al- leged. Upon the entire record in this case, from observation of the witnesses and their demeanor, and after consideration of the briefs filed by the General Counsel, Respondent Company, Respondent Association, and the Charging Par- ty, I make the following: 'The Company's and the association's names appear as amended 2 Truck Drivers & Helpers of America Local Union 728. International Brotherhood of Teamsters, and Southern Conference of Teamsters. affilial- ed with the International Brotherhood of Teamslers. Chauffeurs. Ware- housemen & Helpers of America therein the [eamsters or the Teamsters Union). FINDINGS AND CONCLUSIONS 1. JURISDICTION It is admitted that Respondent Company, a Georgia cor- poration engaged in interstate transportation of freight, having its principal office at Elberton, Georgia, and a ter- minal at Atlanta, Georgia, derived $50,000 in a recent an- nual period directly from its interstate operations. It is admitted that Respondent Association and the Teamsters Union are labor organizations within the mean- ing of the Act. 11. THE FACTS A. Credibilily The resolution of the issues in this case has been made more than ordinarily difficult by my lack of confidence in the reliability of the testimony given by most of the wit- nesses relied upon by both the General Counsel and the Respondents, based upon my observation of their de- meanor and analysis of the record. Thus to a large extent, the resolution of the issues concerning the discharge of Ad- waters depends upon resolution of the conflicts between the testimony of Adwaters and the testimony of Gerald Compton, then terminal manager of Respondent Com- pany's Atlanta operation, who discharged Adwaters. How- ever, Adwaters has such a deep-seated antagonism toward the Company as to distort his remembrance of critical events.? Compton, on the other hand, no longer employed by the Company, convinced me that he has something less than a clear recollection of critical events discussed hereinafter. In particular, Compton's recollection of times, dates, and the sequence of events, often important, leaves much to be de- sired. This was also true of other Respondent witnesses. The following findings in this decision are based upon my assessment of the weight of the evidence on the basis of the whole record and the probabilities inherent in the situa- tions involved. To the extent that the testimony of any witness is not consistent with the findings made, such testi- mony is not credited. Respondent Company complains because General Counsel was not compelled to obtain and produce a state- ment given by Adwaters to the Equal Employment Oppor- tunity Commission (EEOC), contending that a statement in the hands of any Government agency should be deemed in the possession of General Counsel within the meaning of the Board's Rules, Sec. 102.118(b)(1). So far as I have been able to determine, the Board's decisions indicate that this rule requires the General Counsel to produce only docu- ments within his physical possession. Counsel has not re- ferred me to Board precedent to the contrary. In addition, E.g. Adwaters insists that in the fall of 1975 the Company discriminated against him in relation to which einployee, with less seniority by changing his reporting time. thus causing him to lose 5 or more hours of work and pay each week Whether white employees were favored over Adwaters in report- ing time was not litigated. hut the timecards ond pay roll records In evidence shov, clearl. as disc ussed herlreinafter, that Adwaters' weekly hours and pay were not reduced, and he is mistaken iI this 718 BROWN TRANSPORT CORP. it seems clear that Congress intended that statements given to EEOC not be made public prior to proceedings within that agency. See, e.g., H. Kessler & Co. v. Equal Employ- ment Opportunity Commission, 472 F.2d 1147 (5th Cir. 1972). Assuming that Respondent Company would other- wise be entitled to see such a statement for the purpose of attacking credibility on cross-examination-an issue upon which I do not pass-the specific public policy set forth in that legislation would militate against my requiring Gener- al Counsel to obtain and produce such a statement from the EEOC. However, I have considered in assessing Adwa- ters' credibility that he did claim to EEOC that he was terminated because of his complaints that Respondent Company did not hire or promote blacks in various operat- ing, clerical, and management-related positions. I do not consider that this is inconsistent, on the facts of this case, with his contention here that he was also terminated be- cause of his activities on behalf of the Teamsters Union. B. The Bargaining Contracts Respondent Company and Respondent Association were parties to a collective-bargaining agreement executed on May 2, 1973, effective through April 30, 1976, and to a succeeding agreement executed on May 3, 1976, effective from May 1, 1976, through April 30, 1979. Each of these contains similar provisions which the General Counsel contends violate the Act. Pertinent parts of the 1976-79 agreement, as quoted in the complaint, are set forth below: Article 2 of the 1976 agreement: "Any person em- ployed shall be employed on a ninety-day trial basis, during which time he may be discharged without re- course. Prior to the end of the ninety-day trial period, a joint meeting shall be held by the company represen- tative(s) and the Association member or committee, at which time the employee will either be approved or rejected as agreed to between the Company and the Union. When approved for employment, the employ- ee will be put on the seniority list and seniority date will be retroactive to the date of employment." 4 Article 7 of the 1976 agreement: "LEA VE OF AB- SENCE. Any employee desiring a leave of absence from his employment shall secure written permission from both the Union and the Company. .... Permis- sion for extension must be secured from both the Union and the Company. .... Failing to comply with this provision shall result in the complete loss of se- niority rights for the employee involved .... " Article 8 of the 1976 agreemetn: "GRIEVANCE PROCEDURES. A joint meeting by the parties to this contract shall agree to a Board to be composed of three committee members selected by the Union and two Company officials appointed by the Company to act as a Board in hearing grievances processed under this agreement.... The said Association, the Com- pany, and the employee will be allowed to give any 4 The 1973-76 agreement provided for a meeting between the Compan) and the Association Committee "at which lime the man will either be ap- proved for employment or rejected by a majorit 3 vote." and all testimony. The employee may bring forth any and all witnesses to substantiate his claim. It is further provided that all parties to this Agreement hereby agree that the decisions of the Board on all matters covered under this Agreement shall be final and bind- ing. .. ." The complaint alleges and the answers of both Respon- dents admit that at all times material Respondents have given effect to and have enforced the contract clauses set forth. Notwithstanding this, Terminal Manager Gerald Compton testified that he was unaware that Respondent Association played any part in determining whether proba- tionary employees should be retained. Company President Isaac Hemings, at one point, asserted that at the end of the probationary penod the Association does have a right to vote on the retention of the probationer. The complaint al, o alleges that the 1973-76 contract did not contain a union security clause. This is admitted by the Company, but denied by the Association allegedly for "want of sufficient information." The contracts were not offered in evidence. From the state of the pleadings, I would find that there was no union-security clause in the 1973 agreement. In the absence of any explanation for its asserted lack of information about its own contract, I do not consider the Association's answer to this allegation of the complaint to be a sufficient denial. C. Adwaters' Employment Adwaters was employed by Terminal Manager Compton as a worker on the Company's dock to unload freight from trucks (referred to as "breaking") on the shift coming to work at midnight. This shift, which was normally sched- uled for 8 hours, would in fact work until released by su- pervision the next morning. Adwaters' first full day of work was July 6, 1975. 5 During the periods relevant to this matter, the supervision over the midnight shift, besides Compton who worked only during the day, were Royce Beck, the night terminal manager, who reported to Comp- ton; Sonny Beauchamp, night dock foreman, who reported to Beck: 6 and M. E. Smith, warehouse foreman, reporting to Beauchamp. About July 20, Compton called all the employees on the midnight shift together to complain about production. As a result of discussion to the effect that employees coming in at midnight were getting in the way of employees finishing work on the preceding shift, Adwaters and some other pro- bationary emplo)ees were told to come in at I a.m. instead of midnight. This schedule continued until the end of Ad- waters' 90-day probationary period, which I find occurred about October 6.7 There is no dispute that Adwaters was considered a very good employee during his probationary period. All dares hereinafter are In 1975. except for references to- JantiarN and Fehruars. which are ill 1976 Speliing of Beauchamp's name is taken from the parties' briefs. In the record it is conslslenl\ "Beacharme I-his is the date that Ad'.laters statle the Conmpans set as the end of h., prohationars period the payroll records show that he received a sac: increase as of that time lIhe actual 90-day calendar period would h3.: expired a fev. da's earlier 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Adwaters Joins the Association A few days before the end of Adwaters' probationary period, Foreman Smith approached him at work, queried him concerning the approaching end of his probation, and told Adwaters to go up to the company conference room to see Gaston Savage, an employee of the Company who was president of Respondent Association. When Adwaters ar- rived at the conference room, Savage introduced himself and advised Adwaters that Respondent Association was the union at Respondent Company and that it would rep- resent Adwaters. Savage told Adwaters that the Associa- tion dues would be $1 a week, which would be taken out of his paycheck, but that he had to sign an authorization first to become a member of the Respondent Association and to permit his dues to be taken out of his pay.8 Adwaters signed the authorization and thereafter asked for a copy of the Association's contract. Savage said he did not have one at the time, but that one was posted in Compton's office. He then sent Adwaters back to work. This entire incident occurred on company time. None of the above is disputed. Smith admits that, in- deed, he had sent other employees on other similar occa- sions to see Savage during working hours. Smith was rather evasive and confused when questioned as to the purposes of these activities. I have no doubt that he knew the pur- pose of the visit to Savage. It is not rational to believe that this practice would be permitted, as here testified, without management knowing the purpose for which the Associa- tion was calling employees away from work. It is particu- larly noted that there is no claim that this practice was sanctioned by or was in accordance with the bargaining agreement between the Company and the Association. Smith does deny, however, that he specifically told Adwa- ters to join the Respondent Association, as Adwaters testi- fied. I am inclined to credit Smith as to this. I believe that in this instance Adwaters was articulating his under- standing of the total situation: that Smith, by sending him to see Savage in these circumstances, approved of what Savage was doing, and desired Adwaters to comply with Savage's request. E. Adwaters' Post-Probationary Problems Just before the end of his probationary period, about October 1, Adwaters injured his arm at work. He accuses the nighttime supervision of being insensitive to his injury, working him through the night after his injury, and not sending him to see a doctor. (They say he did not report the injury to them.) The company timekeeper sent Adwa- ters to a doctor who advised Adwaters to take off from work until October 7, and told him that his arm would give him trouble for some months thereafter. Adwaters testified that the injury in fact did thereafter affect his work perfor- mance. He did present a doctor's certificate to manage- ment for his absence from work. Beginning about this time (or even earlier by some of sGrady Hindsman, then committeeman of the Association. testified that Ii was known among the employees that the Association would only repre- seot employees who were members. Compton's estimates), according to Respondent Com- pany's witnesses, they began to note, and to complain to Adwaters and to one another about, Adwaters' poor job performance and work habits, asserting that he was fre- quently absent and continuously late, was slowing down in his work, and was misdirecting freight. These asserted der- elictions will be considered hereinafter. Adwaters, on his part, asserted that he had received only one criticism about his work during his employment, from Foreman Smith, as set forth below. F. Changes in Adwaters' Work On or about October 24, when Adwaters was employed unloading (breaking) freight, Foreman Smith complained to Adwaters that his production was "down." When as- sured by Smith that his production was not the worst on the dock, Adwaters responded that he wanted to keep his production "equal with any other employee's, you know, because I believe in equal pay for equal work." Adwaters in his testimony attributed his lowered production to his recent on-the-job injury, and states that this was the only criticism of his work by the Company. Smith's testimony concerning this occasion was basically consistent with the above. He recalled that Adwaters' re- sponse was that he would try to do better. However, Smith said that Adwaters did not give him any reason for his decline in production. Smith states that he did not on this or any other occasion recommend that Adwaters be dis- charged. Some time after Smith spoke to Adwaters, about Octo- ber 24, Adwaters was transferred to another job. There is some dispute as to when this occurred, to what job Adwa- ters was moved, and why the transfer was made. Adwaters states that 3 days after October 24, he was transferred from unloading trucks to "pulling the line;" i.e., pulling freight which had been unloaded along part of the perimeter of the warehouse and placing the freight in front of various warehouse doors where it was to be stored. He says that Smith told him that the move was made to afford another employee an opportunity to learn how to unload freight. Smith, on the other hand, asserts that Adwaters was transferred from unloading (breaking) trucks to the job of a stacker (loading freight) "because of the mistakes he had made, and I needed a stacker, and I wanted to give him a chance at stacking." The record does not identify "the mis- takes" to which Smith referred, nor does it appear that they were called to Adwaters' attention (unless Smith is using this term to identify his assertion that Adwaters' produc- tion had fallen off). Adwaters had previously been rated very highly as a breaker. Smith states that later Adwaters was transferred to the job of pulling the line because of "some mistake in stacking out," described as misleading freight. The company pro- duced two memos (Co. Exhs. 83 and 84) dated in Decem- ber 1975 and January 1976 in support of its position that Adwaters misdirected or damaged freight as a stacker. A difficulty here is that Foreman Smith also testified categor- ically that Adwaters "was on the line from November or the last of October until he was discharged" (and thus not 720 BROWN TRANSPORT CORP, regularly employed as a "stacker" in December and Janu- ary).9 Upon consideration of the whole record, I credit Adwa- ters' testimony as to the circumstances of his transfer from the job of breaking freight to pulling the line in October, as set forth above. G. Changes in Adwaters' Reporting Time From July 20 until the end of his probationary period, Adwaters was scheduled to report at I a.m. At the end of that period, for a short time, he was changed to a midnight reporting time. He was again changed back to reporting at I a.m. about a month after October 27. He became quite upset about this. He contends that no other employee's hours "were cut," and disagrees that the later starting time was necessitated because freight was "light," as the Com- pany asserted. He complained to management that white employees with less seniority did not have their hours "cut." Dock Foreman Beauchamp told Adwaters that if he was dissatisfied, he should seek employment elsewhere.l° Adwaters insists that his hours of work were reduced, particularly in November, by 5 to 7 hours per week as a result of Beauchamp's direction that he report to work at I a.m., stating that he sometimes had to come in on Sunday during this period to make up the time lost. (In his pretrail affidavit, Adwaters states he was cut back to "33 to 35 hours per week.") The timecards and payroll records in evidence do not bear out his contention. From the first week in November 1975 onward (excluding the week in which Adwaters was fired), he was paid for less than 40 hours during only 4 separate weeks, the weeks ending De- cember 19 and 26 and January 9 and 16. During the weeks ending December 19 and 26 and January 9, however, Ad- waters was absent I or more days." Adwaters worked more than 5 days in a week after late November on only two occasions: the weeks ending January 9 and 23. In the last 13 weeks Adwaters worked, he was paid for 41 or more hours in 6 of those weeks. On these records, it seems clear that Adwaters is mistaken in believing his hours were re- duced. As he testified, supervision permitted him to start work frequently during this period before I a.m. when he arrived at the dock early, and he was not sent home until the work was done in the morning. t: 9 At another place, inter alia, Smith said Atwaters was breaking (unload- ing) freight "until around the first of October, I would imagine." and that he thereafter stacked (loaded) freight for "a month or two, approximately" (again indicating that Adwaters was not loading freight after November). Smith also indicated that Adwaters might have incidentally stacked freight while assigned to pulling the line. Adwaters denied ever being assigned to theijob of a stacker. Beauchamp testified that he offered to show Adwalers the senionty list so that he could see that the assignment was in order of seniority, but that Adwaters rejected the offer. This was denied by Adwaters The resolution of this conflict is not necessary to the decision in this case. " Although Foreman Smith identified a memo to Terminal Manager Beck dated January 16, 1976, in which he stated that Adwaters had called in at 3 a.m. to say he would not be at work that night, Adwaters' timecard shows that he did work that day, starting apparently at 9:03 a.m. 2 With respect to certain timecards, Adwaters questioned whether the signatures thereon were his own. I am satisfied that the disputed signatures are his. However. upon examination of the original cards dunng the hear- ing, it was my opinion that it was not unreasonable that he should question the signatures. H. Adwaters' Union Activities Adwaters did not seek assistance from Respondent asso- ciation concerning his grievance at being assigned in No- vember to come in to work at I a.m. because other employ- ees told him that it would be useless and might jeopardize his employment. He began discussing with employees on his own shift and other shifts the advisability of seeking representation by the Teamsters. When he found that there was widespread interest in the Teamsters among the em- ployees, Adwaters visited the Teamsters hall and spoke to an agent there in late December, and again in January, when he spoke to another agent. His efforts met with some degree of reluctance-perhaps caution--on behalf of the Teamsters agents, probably because of a bad experience the Teamsters had had with Respondent Company in the past. Adwaters was not given authorization cards to be executed by the employees, but he kept company employ- ees advised of his contacts with the Teamsters and advan- tages to be gained from Teamsters representation. I. The January Conferences (a) During the first 2 weeks of January 1976, Supervis- ors Beck and Beauchamp began calling employees on the midnight shift into a conference room, one by one, to talk to them. The asserted purpose for doing this was to thank those who had done a good job the previous year and to discuss the deficiencies of others (testified to be about 10 percent). This procedure had never been done before. There is no explanation as to a particular reason for doing it at this time. Adwaters was summoned into conference with Beck during this period, shortly after he had made his first trip to the Teamsters hall and had relayed to the employees the information he had gained. At this conference, Adwaters testified, he was told that he was a good worker, that he was doing a good job, and that the Company wanted to keep good men, such as he was. However, at the end of the conversation, Beck said that there was some "uneasiness" among the employees and asked if Adwaters knew any- thing about it. Adwaters demed any knowledge of this, which apparently terminated the conference. Beck related the conference as follows: "I mentioned the fact that he had slowed down a lot on his work, it was noticeable, and I believe I-the question I asked him, if I remember right, was, 'If you'll be honest about it . . .I believe that you'll have to admit that you've slowed down on your work,' and he said, 'Yeah,' he had. And I said, 'Well, can you tell me why you have slowed down on your work?' And he told me, he said, 'Well maybe its because I'm intimidated by other people' I said, 'Who are these other people and what sort of intimidation have they got. or what's the force they're holding over you, you know, to cause you to slow down on your job?,' which I never did get an answer . . . I explained, you know, that we had counseled with him, the dock foreman, the section foreman had counseled with him in trying to find out what his prob- lem was, and that if his work did not pick up to be satisfac- 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tory then he would have to be dismissed, and that's what I told him at this time." 13 Beck identified a memo which he stated he wrote at the time, and thereafter amended, con- cerning this conference, stating as follows (amendments in brackets): "1/14/7[61 . . . I talked to Orlando tonight about his work. Orlando is not doing the job he was doing when he started with Brown Transport. He was a very good worker, but has slowed down to the point that can't be tolerated on this dock. Orlando admits this [his slow- down] himself. He was told what is expected of him if he wants to stay with Brown Transport." Moreover, both Beck and Beauchamp insist that they spoke to Adwaters together on this occasion. Two circum- stances have convinced me that they are mistaken in this. First, I was particularly impressed with the quality of Ad- waters' denial that both were there. Secondly, I would have expected Beck's memo summarizing this conference to in- dicate Beauchamp's participation, if he were there. Instead the memo indicates only a meeting between Beck and Ad- waters, as the latter asserts.14 I have nevertheless carefully considered Beauchamp's testimony as to this incident as reflecting management's present contention as to what occurred at this meeting. Toward the end of his testimony. Beauchamp was asked to state in his own words what occurred at the meeting. He testified, "To the best of my knowledge we called Mr. Ad- waters to the conference room and explained to him that we were not satisfied with his work performance, we would like to see him pick up his work performance, and that at that time he explained back to us that he was doing all he was going to do. .... And then the statement was put to him by Mr. Beck about his slowing down, and he in turn said that he did slow down, he intentionally slowed down, and furthermore, he had intentions of not picking up." Beauchamp testified that he could not specifically recall anything further about that conference.' 5 I do not credit Beauchamp's testimony concerning Ad- waters' asserted defiance and insubordination at this con- ference. If the situation were as Beauchamp stated it, I cannot believe-even with the Company's stated interest in keeping trained employees by "counseling with them"-that Adwaters would have been retained for a month thereafter, as he was. To the extent that the versions 3lThereafter. in response to leading and suggestive questions. Beck as- serted that Adwaters "said he had slowed down." This was clearly an inter- pretation of the above, for emphasis, and I have considered it as such. Adwaters denied that Beck said that it appeared to him that Adwaters was deliberately slowing down (and by implication denied that he agreed with that statement), and also denied that Beck said that if Adwaters did not improve his performance. he would be dismissed. 4 have noted, on close examination of Adwaters' testimony, that. while he insists only Beck was at the meeting, at one point Adwaters testified that at this meeting he was told by the supervisor that "him and Royce Beck had noticed some uneasiness among the employees . . ." indicating someone other than Beck was there. I have concluded that this was a meaningless slip of the tongue. 15 Previously, in response to a leading question, Beauchamp stated that at this meeting, he (or possibly Beck) also discussed Adwaters' attendance at work, to which he says Adwaters responded "that he was deliberately slow- ing down and that he just was not going to do any better even in his atten- dance." Beauchamp could not recall any discussion at the meeting of Adwa- ters' mishandling freight, although he says he knew about it prior to that meeting. differ, I credit Adwaters; otherwise I credit Beck, except in response to leading questions. I also have doubts concern- ing the "counseling" Beck asserts had been given Adwa- ters. I further believe that the probabilities are, as Adwa- ters testified, that Beck did ask him about "uneasiness" among the employees. Adwaters was then engaged in an effort to interest the employees in affiliating with the Teamsters, with some success. The one-to-one meetings with employees in the Company's conference room I infer were prompted by that activity. They occurred proximate to Adwaters' Teamsters activity. Such meetings had never been held before. No persuasive reason for holding such meetings at that time appears. Assuming that the Company wished to talk to employees whose work was considered substandard, it is clear that this was a small minority. It does not seem reasonable that Beck and Beauchamp called all of the others from their work-during a busy period of the year-over the course of 10 days, just to thank them for their performance, as the Company contends. (b) About the same time as the above, Adwaters states that he also had a meeting with Compton in the latter's office. Adwaters testified that after being told by Beau- champ that Compton wished to see him, he went to Compton's office. He states that this incident occurred about 2 weeks after New Year's and after he had explained to the employees the advantages of the Teamsters over Re- spondent Association. He says that the following occurred: Compton asked him what his problem was, what he was beefing about. Adwaters said he had no problem. Compton said he was causing problems by his attitude, and that he had "received information about me and the Teamsters." Compton asked if Adwaters was a member of the Team- sters. Adwaters said he was not; he had been affiliated with the Teamsters in the past, he said, but was now "a member of SCLS, Southern Leadership Conference." Compton re- plied, according to Adwaters, "I don't care what organiza- tion you're with, I want to make one thing clear, that no organization, no union, no court order would change the things in this company.... Before I would let any of those things happen, [I] would . . . close the doors, shut the place down, then . . . everybody would be out of a job." Compton asked if that was what Adwaters wanted, to which the latter replied that would be up to Compton, not Adwaters. Compton then said that he had been up against the Teamsters before "and I have won." 16 Adwaters states that he told Compton, "It's no equal opportunity with the Company.... It should be more blacks with the Company, there should be blacks in man- agement, there should be blacks in security, there should be blacks in clerical, there should be blacks in the rating, there should be a black timekeeper, there should be blacks upstairs, there should be blacks in long haul . . ." to which, he states, Compton replied that during his tenure with the Company he had hired blacks, where the Compa- ny had none before, had promoted one to supervision and would probably promote more, and was contemplating hir- 16 Compton states that he was aware of a former occasion when Respon- dent Company had sued the Teamsters and had beaten them, but that he was not there at the time. Adwaters was told about this by one of the Teamsters agents during his visit to the union hall. 722 BROWN TRANSPORT CORP. ing more in the near future. Adwaters says that he agreed with this and the meeting terminated. Compton, on his part, denied having any conversation with Adwaters in January, stating that he talked to Adwa- ters only when he hired him and when he discharged Ad- waters. Compton specifically denied, or denied recalling the substance of, the matters Adwaters testified to in this conversation, particularly that he knew of Adwaters' Teamsters activity; that he interrogated Adwaters or any employee about the Teamsters, or make threats concerning employee Teamsters activities, or indicated that such activ- ity would be futile; or that he told Adwaters that he had hired more blacks, was going to hire more blacks, or would put more blacks in supervision. Beauchamp denied that he had sent Adwaters to Compton's office on this occasion.17 I have previously expressed my doubts about the testi- mony of all of these witnesses. In this instance, I have de- cided that Adwaters should be credited. I do not believe that he made this meeting up out of whole cloth. His sensi- tivity about the Company's employment and treatment of blacks at this meeting is consistent witn the record as a whole, and, from my observation of Adwaters, believable. On the other hand, Compton admitted the passage of time and his absence from the Company may have dulled his memory of some events, that among "hundreds and hun- dreds of problems, I cannot recall every conversation I have with every individual," and, at another place, that it was possible that he had a conversation with Adwaters that he did not recall at the time of the hearing. For the reasons stated, I find that the meeting occurred, about the time testified to by Adwaters, and in substance as he asserted. J. Asserted Surveillance After Adwaters' meeting with Compton in mid-January, Adwaters made his second visit to the Teamsters hall in response to employee questions about Teamsters cards, As previously noted, Adwaters was not successful in obtaining authorization cards. He asserts that shortly thereafter he noted that Beck, Beauchamp, and another management employee, Fred House, were watching him more closely than they had previously. Beck and Beauchamp deny this. K. Adwaters' Termination During the evening of February 4, Adwaters called in to the Company to report that he had a stomach virus and would not be in. He was told that a doctor's certificate would be required and Adwaters agreed to bring one in. In the early afternoon on February 5, a payday, Adwa- ters went to the company terminal, as was the custom, to get his pay. The clerk told Adwaters that Compton wished to see him in Compton's office. Present at the meeting were Comotn, Grady Hindsman, an Association committee- man, and Adwaters. 7 At one point, Compton testified that he did, in fact. tell Beauchamp to tell Adwaters to come to Compton's office In January 1976 Compton had spoken with Hindsman previously about problems Compton asserted the Company had with Adwaters. Compton stated that It Compton testified that he brought Adwaters into his of- fice on this occasion to speak to him about reports Comp- ton had received concerning Adwaters' work and his work habits. (These alleged delinquencies and reports to Comp- ton are discussed hereinafter.) Notwithstanding these re- ports, Compton asserted at several places during his testi- mony that it was not his intention to discharge Adwaters when he brought Adwaters into his office, but that he deic- ded to do so because of Adwaters' conduct during the course of the meeting. According to Compton,' 9 he opened the meeting by ad- vising Adwaters that he [Compton] "had some complaints about your work, let's see if we can find out what your problem is," that there were reports "that he was misdirect- ing freight," that "he had been late several times," that the supervisors "had moved him, they had done several things to try to get him to do his job." Compton says that he then asked if Adwaters nad been talked to by his supervisors "about these problems," and that Adwaters replied, "Yes." At this point, Compton says, he told Adwaters that reports from Smith, Beck, and Beauchamp all stated that Adwaters had "been slowing down and you've admitted that you've slowed down." Compton says that when asked, Adwaters denied that he had "been late this many times." At about this point, Compton states, he asked Adwaters if he was absent the previous evening and asked if Adwa- ters had called in. According to Compton, Adwaters re- plied that he had called in and told supervision that he was sick, and also, in response to their request that he bring in a doctor's certificate, that he considered this a stupid rule. Compton asserted that he then asked Adwaters if he had in fact been sick the previous night, to which, he says, Adwa- ters replied that he had not been sick but stayed away from work for personal reasons. Compton says he advised Ad- waters that he should have told Night Terminal Manager Beck the truth and that Beck would have excused him for the evening. At this point, Compton testified, "I said, 'Have you been slowing down on the job?' [Adwaters} said, 'I'm not work- ing no harder than anybody else or no faster.' I said, 'Well, I see some complaints here where they say you have been. Do you intend to do any better?,' and he said, 'No.' He said, 'I'm doing the best I can and that's all I'm going to do.' " According to Compton, he then reverted to the problem of Adwaters having been late "several times." After elicit- ing from Adwaters the information that he did not have car problems or any personal problems that caused him to be late, Compton says he asked Adwaters "why can't you get here on time," to which, he states, there was no answer. In conclusion, Compton testified, "[SJo I said, 'Now, look, I have been asked on several occasions by [Bea- champ], by Beck and by Smith to talk to you because they're getting down on you, they want me to terminate you on account of your poor performance and your atti- tude,' and I said. 'Are you going to try to do any better? was his custom to bring in an Association committeeman when he intended to s.ak to an employee about his work In this account I have attempted to foll ,) Compton's testimony about this meeting beginning on p. 82 of the transcript and continuing to the end of the meeting 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Can I go to these people and tell them I've talked with you now and that you're going to be here on time and that you're going to do your job? Can I go and tell them that we've discussed this?' [Adwaters] says, 'I'm not going to do any better, 'm doing all I can do, and you can do what you want to about my job.' " Compton asserts that he then told Adwaters that since it was apparent that Adwaters' attitude was not going to change, and he showed no will- ingness to do any better, Compton had no alternative but to terminate him.20 Thereafter, Compton says, Hindsman offered to repre- sent Adwaters, to which Adwaters replied that Hindsman was "nothing but a token." 21 Although expressed in different terms, and varying in some details, Hindsman's testimony concerning this meet- ing confirms Compton's testimony in substance. Hindsman recalled that Compton referred to the "pretty high stack of complaints they had on lAdwatersi," mentioned that Ad- waters had "a lot of absentee [sic] on here and you didn't come to work ... and [Compton] said, 'You've slowed up on your work,' or something like that, and . . . Adwaters said, 'Well, I'll tell you, . . . I believe in equal work for equal pay,' he said, 'Yeah, I slowed up . . . I ain't going to do no more than anybody else out there.' And [Compton] said, 'Well, that's a bad attitude. You made me a good man at one time when you came to work, . . . I could depend on you, he said, 'but now . . . I'm getting a lot of comp- laints on you....' " Hindsman recalled that Adwaters re- ferred to the fact that he used to do more work than the other workers on the dock, but that he was "not going to do any more than the rest of the fellows out there," and when Compton said that was a bad attitude, Adwaters said he was "not going to do any better." At this point Hinds- man states that Compton said the best thing he could do was "just get your check." When reminded of it. Hindsman recalled that there was a discussion at this meeting concerning Adwaters' failure to come in to work the preceding evening. By and large, Hindsman's recollection of this tracked Compton's version, although Hindsman gave slightly varying testimony as to whether Adwaters explained or did not explain the person- al reasons which assertedly kept him from coming to work. Adwaters describes this meeting briefly. He states that when he came into Compton's office, the latter had Adwa- ters' record displayed on the table, that Compton stated that he had reports from Foreman Smith "that you've been out seven days,22 your attitude, and that you've misdirected freight," and that Compton said he had requests from Smith, Beck and Beauchamp to dismiss Adwaters. At this point Adwaters says that Compton gave him his checks. As he was leaving, according to Adwaters, Hindsman said he 20 There is some dispute as to whether (Compton then went to get Adwa- ters' paychecks. or handed them o)ver the desk to Adwaters at this point I have considered the point In determining credihblit) findings. bult see no reason to pass on it here 21 In the course of explaitning Hindsman's argument thai Adsaters should let Hindsman represent him, C'ompton first said that Ilindsnman stated that "he figured he had as much power around there as anyhbxod else." ('ompton later denied that Hindsman said this, or that he had previoul, so testified. Ilindsman also dented that he said he had any power. :2 In another place, Adwaters added "no dtctors' excuse" was "sorry," to which Adwaters replied that Hindsman was "no representation," and that Respondent Association was of no value. Adwaters denied that there was a discussion of a slowdown on the job, or that Adwaters told Compton on this occasion that he had no intention of working any hard- er than he had previously, asserting that he "didn't say anything in that meeting." Adwaters denied that he admit- ted that he had not been sick the night before though he had called in sick, or that he had discussed family matters which allegedly caused him not to come in the previous evening, or that he had said on the previous evening that the Company's rule requiring doctor's certificates was "stu- pid." He also denied calling Hindsman a "token." The following resolutions of these credibility conflicts represent primarily my reactions to the testimony at the hearing, in light of considerable analysis of the record: I was impressed with Hindsman's original testimony con- cerning what Compton and Adwaters said at this meeting, given without the aid of leading or suggestive questions. In particular, I note that Hindsman's reference to Adwaters' use of the phrase "equal pay for equal work"-made be- fore Adwaters testified, and not used by Compton in his testimony-tracks the language that Adwaters says he used in talking to Foreman Smith about the same subject, as previously noted. There is no indication that Hindsman was aware of that earlier discussion between Adwaters and Smith. I do not believe it credible that Adwaters said noth- ing at this meeting-as he says-in face of accusations which he now labels as untrue. On the other hand, I do not believe that Hindsman was called into the meeting by chance because he just hap- pened by, as Hindsman and Compton suggest. Nor do I believe that Compton just happened to see Adwaters that morning and called him in, as Compton says. Further, the testimony concerning the extensive discussion of Adwaters' absence the previous night and his asserted admission that he had lied about his reason for not coming in struck a false note at the time, and after much study it still does. So far as I can determine, Compton does not claim that this item figured prominently, or at all, in the decision to dis- charge Adwaters. In any event, for the reasons stated, I credit Hindsman, and Compton to the extent consistent with Hindsman's tes- timony, with respect to the substance of the conversation among Compton, Adwaters, and Hindsman at this meet- ing, except for the alleged exchange between Adwaters and Compton concerning Adwaters' absence from work the previous night.23 L. The Hearing At Adwaters' request, the association advised the Com- pany that a hearing should be held on Adwaters' discharge, in accordance with the provisions of Article 8 of the cur- rent agreement. The hearing was held on February 10. The Association did not investigate Adwaters' complaint or contact Adwaters before the heanng. It did not assist him :' The dispute oser whether Adwaters called tlindsman a "token" is a matter of little significance to this case. Chances are that Adwaters' disdain for Hlindsman and the U;non he represented would be interpreted by Ilindsma;n as implying such an epithet. 724 BROWN TRANSPORT CORP. in presenting his case or speak in his behalf at the meeting. The panel heanng Adwaters' complaint over his dis- charge consisted. in accordance with the provisions of the agreement, of three representatives from Respondent Asso- ciation and two representatives of Respondent Company. including Isaac C. Hemings, president of the Company. Compton, who presented the case against Adwaters on this occasion, was not asked to testify as to what the parties said at this hearing. The only witnesses who testified con- cerning this event were Adwaters, Hemings, and, to a limit- ed extent, Hindsman. Hemings clearly had something less than a clear memory of the details of the meeting. 24 In the circumstances, I credit Adwaters' account that at the hear- ing Compton had stated, in support of his discharge of Adwaters, that Adwaters had been out of work for 7 days without a doctor's excuse, that he had a bad attitude, had admitted cutting his work down, and had misdirected freight. Adwaters, in response, had stated that he could not have misdirected freight because his job was pulling the line, not loading freight; and as to his attitude, all he had done was request "information about blacks [in respect to Respondent Company's operationsl." 25 At this point Ad- waters had been cut off by Hemings. In Adwaters' words, "He started talking about blacks and whites, and he stated blacks had not gotten anywhere in the last fifteen years, he stated that politicians did not help, he stated that the pro- grams did not work, he also said that people like me could not make it with a company like them since I did not know where I got my information from, that I had a lack of misunderstanding [sic], that I should have kept my mouth shut, that I had no business inquiring about management or union activities, and that he was sorry that I took it upon myself to become a troublemaker." At this point one of the panel members from the association had suggested that the parties were "getting off the subject" and that Ad- waters should step out of the room so that the panel could take a vote on Adwaters' grievance. Hemings' testimony makes clear that the issue of black employment with the Company and Adwaters' involve- ment in the issue was a focal point of discussion between himself and Adwaters at the hearing. According to his ver- sion, Adwaters was more militant, hostile, and crude in his expression, and he [Hemings] was more tolerant and pater- nal in his reply than Adwaters' version would suggest. Hemings specifically denied that there were remarks to the effect that blacks had not progressed in the last 15 years, and he stated with respect to the allegations of the com- plaint that Adwaters was discharged because of his support of the Teamsters Union, "It never came up." 24 For example. Hemings vacillated about and contradicted himself on the people who were present and participated in the proceeding. Among other things. Hemings asserted that Compton at the hearing had accused Adwaters, among other delinquencies, of not coming in "when called." and had said that "he was not where he was supposed to be loading that specific freight at that specific time." However, Compton in extensive testimony on his reasons for firing Adwaters did not make such accusations. In fact, Compton testified that he noted on Adwaters' file-which had been dis- cussed with Hemings before the hearing-only the following as reasons for the discharge: "I believe I said it was misdirecting freight. absenteeism or tardiness." "That's all I sent [Hemings] is why [Adwaters was terminated]" 25 Adwaters' testimony was curtailed at this point. The matter in brackets is inferred from his testimony and the record as a whole. As to one point in which Hemings specifically denied Adwaters' testimony-Adwaters' reference to the Team- sters Union-I credit Hemings Adwaters' contention that Hemings threw in a reference to the Union during criticism of Adwaters' black militancy did not and does not now ring true to me. I otherwise credit Adwaters as set forth above. 2 Upon being called back to the hearing, Adwaters was informed that the hearing panel had voted that his dis- charge should stand. It should be noted at this point that according to compa- ny witnesses, in large numbers of discharge cases, the hear- ing panel has in the past overruled the original discharge and reinstated the employee. Hemings estimated that this occurred in 60--70 percent of the cases. Compton estimated that in a recent period he participated in 50-100 grievance committee meetings, of which 25 percent involved dis- charges. of which 5t0 percent were reinstated by the hearing panel-which indicates reinstatement of 6-13 employees. Hindsman estimated reinstatement of 15 employees in a recent period. No details as to these cases were iurnished, but from Compton's testimony I would infer that these were normally cases in which the employee agreed he had done wrong and promised to do better in the future. M. Alleged Reasons for Adwaters' Termination 1. Absenteeism and tardiness Company supervisors assert that immediately upon the end of Adwaters' probationary period they had occasion to criticize his work habits and performance. Thus Foreman Smith states that on October 17 he "talked with [Adwaters] about bein~ out of work and continuous [sic] late coming to work." However, Adwaters' timecards in evidence show that his only absences from work near to October 17 were on October 2. 3., and 6, because of his job-related injury, for which he presented a doctor's certificate; and prior to that Adwaters was absent only one day during his employment. Determining whether Adwaters had been tardy during the period before October 17 is a more difficult task. The extremely poor quality of the timecard copies submitted by Respondent makes it impossible to ascertain many of these times with accuracy.2 I have attempted to analyze these cards, but the task has been difficult. Assuming that Adwa- ters' starting time was I a.m. until at least October 7, it 26 A memorandum summanzing the events of the hearing, made by a representative of the Company, was received in evidence without objection. The author of the memo did not testify. The memo is a compressed. incom- plete summary. largely expressed in terms of opinion and interpretation. Hemings testified that it was accurate "as far as it goes." Because of the nature of the document and my doubts as to the accuracy of its details. I have given it no weight This and certain other criticisms of Adwaters are contained In written memos from a performance file that company witnesses also testified has been lost. There is no explanation as to how these memos critical of Adwa- ters survived. : I can only assume that Respondent Company's counsel did not exam- ine these copies before they were submitted to the reporter. It should be emphasized that where permission has been granted to substitute copies for original exhibits, the submission of legible copies is a personal responsibility of counsel 7?5 DECISIONS OF NATIONAL LABOR RELATIONS BOARD) would appear that during the month previous to October 17 Adwaters was late to work on only one occasion, Sep- tember 26. Assuming that Adwaters' reporting time was changed back to 12 midnight on or about October 7, as seems to be the case, Adwaters was tardy on at least four occasions prior to October 17.29 Following October 17, the timecards show Adwaters ab- sent from work on October 29. December 16 and 23, and January 6, 7. and 8. Adwaters testified that he was not absent from work except for illness. However, he identified only three such occasions: the time of his injury and the time he was ill in January, for both of which he presented doctor's certificates, and the absence on February 4, for which he intended to submit a certificate. Assuming that Adwaters was again scheduled to come to work at I a.m. about the end of November,30 it appears that Adwaters was tardy by more than 5 minutes on at least 12 occasions from October 17 to the end of November and four times from then until he was terminated. Foreman Smith estimated that Adwaters had been late coming to work 20 to 25 times during his employment (without distinction between the time before and after Ad- waters' probationary period). Smith states that he talked to Adwaters 10-15 times about tardiness and absenteeism. Smith also asserted that when he spoke to Adwaters about being late, he "always" wrote a file memo on the occur- rence, but elsewhere denied that he did so. Only two such memos were produced, one of which, dated October 17, has been referred to. A second memo, dated December 19, states that Smith "talked to [Adwaters] about being late to work several times in the past month." However, from the end of November until December 19, the timecards indi- cate that Adwaters punched in later than I a.m. on only one occasion, December 5. What triggered this asserted reprimand on December 19 does not appear. 2. Decline in production unloading freight On or about October 24, when Adwaters was employed unloading trucks, Foreman Smith complained to Adwaters that his production was "down." When assured by Smith that his production was not the worst on the dock, Adwa- ters responded that he wanted to keep his production "equal with any other employee's, you know, because I believe in equal pay for equal work." Adwaters in his testi- mony attributed his lowered production to his recent on- the-job injury and states that this was the only criticism of his work by Respondent Company. Smith's testimony concerning this occasion was basically consistent with the above. He recalled that Adwaters' re- sponse was that he would try to do better.' However, Smith said that Adwaters did not give him any reason for his decline in production. Smith states that he did not on this or any other occasion recommend that Adwaters be 29 It is impossible to ascertain precise clock-in times for the week of Octo- ber 10 from the timecards. The times that remain on the copy in the record are consistent with Adwaters' clocking in at midnight each night. 3o Adwaters testified that this change was made about a month after Oc- tober 27. "t Similarly, when Smith spoke to Adwaters about being tardy. Smith says that Adwaters replied that he would try to get in on time. discharged. Respondent Company produced a memo dat- ed November 7, signed by Smith, which apparently refers to the above incident. It is very difficult on the record in this case to determine exactly what Adwaters was doing, or was not doing, that assertedly gave Respondent so much concern. Smith was no more accurate than the above testimony indicates. Beauchamp stated that he could not be specific about Ad- waters' failure to perform. Night Terminal Manager Beck, who would seem the least likely of the three to have made personal observation of Adwaters' performance, asserts, "Well, it was noticeable that he was slowing down in his work, that he was not doing it, the work that he was when he first came there." The record does indicate that Adwaters was performing less efficiently after the on-the-job injury to his arm, but the evidence does not persuade me that he deliberately did less work than before, or that he admittcd slowing down on the job deliberately, as Respondent contends. Certainly Adwaters' discussion in October with Foreman Smith would not indicate an intention to slow down in his work. Whether his actual production continued to decline cannot be measured on this record. 3. Performance at "pulling the line" Smith states that at times Adwaters' performance in pull- ing the line was good, at other times he was not quick to take freight off the line. He says he talked to Adwaters about this "at least six or eight times." According to Smith, Adwaters responded that he did not think he could per- form the job of line pulling as well as it should be per- formed. However, when Adwaters asked to be returned to the job of breaking freight-where he had previously per- formed well for about 3 months-Smith refused. Accord- ing to Smith, he told Adwaters that "I didn't need to move him at that time"; according to Adwaters, Smith said that he wanted Adwaters to stay on the line because he was doing a "damn good job." I infer that Smith's comment on this occasion, while perhaps not so fulsome as Adwaters asserts, was closer to Adwaters' version. It is clear that Adwaters' performance was not so deficient as to cause Smith to want to get rid of him, or to impel Smith to trans- fer him to another job. Indeed, Foreman Smith used Ad- waters to train other employees on pulling the line and commended him for the "good job" he did training other employees on the job. The record shows two memos, dated January 15 (Co. Exh. 85) and February 2 (Co. Exh. 86), criticizing Adwa- ters' handling of the line, causing some damage to freight. 4. Mishandling freight In addition to the memos referred to immediately above, Respondent Company submitted four memoranda, dated December 2 (Co. Exh. 79), December 4 (Co. Exh. 80), De- cember 10 (Co. Exh. 81), and December 16 (Co. Exh. 82), which assertedly show that Adwaters mishandled freight as a "breaker." However, the record seems clear that Adwa- ters was not employed as a breaker at that time and there is no evidence that he was used occasionally as a breaker 726 BROWN TRANSPORT CORP. after being assigned to pulling the line. The Company also submitted two memos, dated December 19 (Co. Exh. 83) and January 2 (Co. Exh. 85). which assertedly show that Adwaters mishandled freight as a stacker. As has been not- ed, it is possible that Adwaters was occasionally used as a stacker during that period. What seems most significant about these memos, how- ever, is that there is no indication among them that Adwa- ters "misdirected freight" as contended by Compton as a reason for his discharge. 5. Reports to Compton Among the most confusing elements of this matter are the questions of when Compton received critical reports from the nighttime supervisors about Adwaters, who made them, and what their content was. It would unnecessarily prolong this Decision to discuss at length all of the evi- dence. Based on the entire record, I am convinced, and find, that Compton received no criticism of Adwaters and no request from nighttime supervision to take any action with Adwaters until after Adwaters' activities on behalf of the Teamsters and after Beck and Beauchamp had held meetings with each of the night shift employees in early January. According to Compton's testimony, the first com- plaint he received about Adwaters was made by Beau- champ about 6 months after Adwaters had been employed. In the course of this complaint, Compton says that Beau- champ told him that "he and the terminal manager, Royce Beck had had [Adwaters] up in the conference room and they had counseled with him...." The only such meeting with Adwaters shown by the record is the conference in early January. Compton's conference with Adwaters in mid-January occurred almost immediately thereafter. Later in his testimony, Compton indicated that he had re- ceived complaints about Adwaters for sometime prior to January. 32 Oddly, Compton seems to recall that in his first conver- sation with Beauchamp, the only complaint was about Ad- waters' tardiness. During the second conversation, Comp- ton asserts Beauchamp said of Adwaters, "Well, he's late, he's misdirecting freight, his attitude is wrong, when I talk to him, he doesn't respond, he tells me, 'I'm doing the best I can, and I'm not going to do any better,' and this type of attitude," that Beauchamp insisted that Compton speak to Adwaters and try to get Adwaters to correct these deficien- cies, and that he (Compton) said he would do so. From all of this I infer that while there may have been reports of minor problems with Adwaters prior to January, the first significant complaint about him and the first real request for corrective action occurred after the January meeting between Beck and Adwaters. Testimony of com- pany witnesses which indicates the contrary is not credited. 3 As an example of the difficulty of following Compton's testimony Compton states that a week after the first complaint from Beauchamp- which, as found could only have occurred in January---he had a second meeting with Beauchamp at which the latter said that "we're going to have to move [Adwatersl from breaking trailers Itol another job." However. Ad- waters was moved from breaking trailers in the preceding October. i11 ANALYSIS AND CONCLUSIONS A. Alleged Interference With, and Restraint and Coercion of Employees As found above, Terminal Manager Compton in a mid- Januarv conference with Adwaters questioned him about his membership in the Teamsters Union, threatened that the Company's terminal would be closed if the Teamsters were successful in becoming the representative of the em- ployees, and made plain that it would be futile for the employees to select the Teamsters as their representative. By these acts, Respondent violated Section 8(a)(1) of the Act. Although the parties presented testimony as to whether the Company engaged in surveillance of Adwaters by watching him more closely at work after he began his activ- ities on behalf of the Teamsters, this was not alleged in the complaint and is not argued in General Counsel's brief to constitute a violation of the Act. In any event, the evidence indicates Adwaters' generalized, subjective reaction to un- specified instances of supervision of his work by his own supervisors. On the record in this case no finding on this issue is required. B. Alleged Company Assistance to and Support of the Association 1. The contract clauses General Counsel contends that by granting certain pro- visions in bargaining agreements with the Association, the Company has delegated to the Association such control over the employment and discharge of employees and over their conditions of employment as to necessarily encourage membership in the Association in violation of the Act. It is further contended that the enforcement of these provisions violates the Act. There is no evidence that these bargaining agreements contain valid union-security clauses. In essence the clauses under attack provide (a) that at the end of an employee's 90-day probationary period the Company and the Association will mutually decide wheth- er the employee will be retained as a permanent employee, (b) that the Association must approve any leave of ab- sence granted to an employee, and (c) that the panel which hears and decides employee grievances at the final step of the grievance procedure shall be composed of three repre- sentatives of the Association (necessarily employees of the Company) and two members of the Company's manage- ment (frequently including the president of the Company). The decision of this panel is stated to be final and binding on the parties. The General Counsel pointe out that, in theory, the As- sociation could change or establish any condition of em- ployment by such control of the grievance procedure. However, there is no evidence that the Association has in fact changed or established any condition of employment in this manner. There is some evidence that the panel has in a number of cases reversed discharges of employees and ordered them reinstated. However, it cannot be determined on the basis of this record what the circumstances of these 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cases were. There is some indication that the employees thus reinstated admitted their fault and promised to do better. Although the answers to the complaint admit that the clauses under consideration here have been effectuated and enforced, there is no evidence of the circumstances or the manner of their enforcement. Terminal Manager Compton, who seems to be intimately involved with the hire, retention, and discharge of employees, testified that the Association played no part that he was aware of in the retention of probationers at the end of their probationary period, while Company President Hemings asserted that the Association did have a vote and provided an input on the issue of retention of a probationer. In any event, there is no evidence that the Association tried to prevent, or was successful in preventing, the retention of any probationer as a permanent employee with the Company. Similarly, there is no evidence that the Association actu- ally discriminated against any employee by preventing the grant of a leave of absence or any extension thereof. Indeed, there is little or no evidence that the employees were aware of the clauses here attacked. It appears that some years ago they may have been read at a meeting of the Association. It is not shown that any member of the Association has a copy of the bargaining agreements, though it seems that a copy is posted in the manager's office. Contrary to General Counsel's contention, I find that these disputed clauses do not per se violate the Act. Obvi- ously not all contract clauses which encourage membership in and support of a union violate the Act. Indeed, it could be argued that an employer encourages membership in a union by any concession in a contract (or by agreeing to the contract itself) insofar as that concession affords the union status, prestige, or participation in making or admin- istering working conditions. More is needed. The contract clause under attack, to be invalid per se, must be clearly repugnant to the statute on its face, or so obviously at variance with the proper purposes of the union as a bar- gaining representative as to be clearly unjustified. See, e.g., Local 357, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America [Los-Angeles- Seattle Motor Express] v. N.L.R.B., 365 U.S. 677 (1961); cf. Dairylea Cooperative Inc., 219 NLRB 656 (1975); Bricklay- ers Local No. 7, Bricklayers, Masons and Plasterers' Interna- tional Union of America, AFL-CIO (Masonry Builders, Inc.), 224 NLRB 206 (1976); International Association of Machinists and Aerospace Workers, San Francisco Lodge No. 68, AFL-CIO (West Winds, Inc.), 205 NLRB 132 (1973). Thus, in Teamsters Local 357, the Court made clear that though a closed shop was illegal per se, because repug- nant to the statute, provision for a hiring hall was not on its face invalid though it may encourage membership in a union, for a hiring hall may be operated in a completely legal manner. The test of the provision under attack, in such case, is how the provision is enforced. In the present case, I find nothing arbitrary, invidious, or unfair in the provisions attacked. The Association, in rep- resenting all of the employees, has a legitimate interest in the determination of the employment status of probation- ers. It is not shown that this was abused. Similarly, with respect to the disputed leave of absence clause, the Associ- ation could be "legitimately concerned about protecting the relative seniority and job security of unit employees who remained on the job during a fellow employee's pro- tracted leave of absence for personal business reasons," particularly where it it not shown that the Association took any coercive action against an employee in pursuance of such contract provision. See Bricklayers Local No. 7, supra at 207. The provision of the bargaining agreements which grants the Association three votes to the Company's two votes in the last step of the grievance proceeding is abnormal. The evidence is that on some occasions the grievance panel has indeed reversed employee discharges, indicating perhaps the exercise of power that the contracts have given to the Association in this respect. Nevertheless, in the majority of such cases the evidence indicates that the panel has con- firmed the Company's actions. I can find no abuse of pow- er or authority derived from this provision on this record. Indeed, contrary to the implications of General Counsel's argument, it would be more natural to infer that the three employees of the Company on the panel, to the extent that they continue dependent on the Company for their liveli- hood, would not be truly independent in their actions and in casting their votes would probably be quite sensitive to the views of the two company representatives. The fact that on some occasions the panel has reversed some actions of supervision does not necessarily indicate the contrary, in the absence of any showing of the circumstances bearing on those votes. On the basis of the above and the record as a whole I find that Respondent Company and Respondent Associa- tion did not violate the Act by agreeing to the contract provisions here being attacked or by the manner or means by which those provisions were effectuated or enforced. It will therefore be recommended that these allegations of the complaint be dismissed. 2. Solicitation of Adwaters to join the Association Respondent Company has a practice of summoning an employee from work toward the end of the employee's pro- bationary period and directing him to meet with an officer of the Association on company property for the purposes of having the employee make an application to join the Association and to execute a dues deduction authorization. In the present case Adwaters was instructed by company supervision to meet with the president of the Association in the company conference room on working time. There is no question on this record that the Company and the Asso- ciation were engaged in a joint, cooperative enterprise de- signed to assist the Association in securing members from among Respondent's employees, even though there is no union-security clause in the bargaining agreements which they have negotiated. As has been found, Adwaters was justified in the circumstances in understanding that the Company desired him to execute the forms which were tendered to him by the president of the Association on this occasion, and that he was thus coerced and restrained to execute, and did execute, an application for membership in the Association and a dues-checkoff authorization. 728 BROWN TRANSPORT CORP. General Counsel's complaint also alleges (par. 18) that the Company deducted dues from Adwaters' wages on be- half of the Association pursuant to the checkoff authoriza- tion Adwaters signed for the Association. The answer of the Associat.on and the original answer of the Company admitted this allegation. Although the record contains an amended answer from the Comapny denying the allega- tions of paragraph 18, Respondent Company's brief clearly assumes the accuracy of the allegation.33 I find that the Company in fact deducted such dues from Adwaters' pay pursuant to the authorization which he had executed for the Association. On the basis of the above I find that Adwaters was coerced by the Company and the Association, acting to- gether, to make application to join the Association and to execute a dues-checkoff authorization, pursuant to which the Company deducted dues on behalf of the Association. It is therefore found that Respondent Company interfered with, restrained, and coerced employees in violation of Section 8(aX1) of the Act, contributed aid and support to the Association in violation of Section 8(aX2) of the Act, and encouraged membership in the Association by dis- criminating against employees in their hire, tenure, or con- ditions of employment in violation of Section 8(a)(3) of the Act. It is further found that Respondent Association by its acts and conduct set forth violated Section 8(bXIXA) and (2) of the Act.34 C. Discharge of Adwaters Adwaters was the initiator of and the leading force in the effort to organize the Company's employees in support of the Teamsters. This was known to the Company. Company supervision on Adwaters' shift responded to this effort by holding personal conferences with each employee on that shift during which supervision probed the employees about the "uneasiness" assertedly existing among them. Further, Terminal Manager Compton thereafter called Adwaters into a meeting at which Compton questioned Adwaters' adherence to the Teamsters and threatened the employees with a shutdown of the terminal if the Teamsters were suc- cessful, as well as indicating that such union organization would be futile. At this meeting, Adwaters, injecting anoth- er element into the discussion berated the Company for not hiring or promoting sufficient numbers of blacks in various categories.35 33 In discussing the allegations of par. 17 and 18 of the complaint (at p. 24 of its brief) the Company argues only "that there is not one iota of evidence that the [Association] informed Adwaters that he was required, as a condi- tion of employment, to join the [Associationl and execute a dues check-off authorization as alleged in paragraph 17 of the complaint. Therefore. since the allegation in paragraph 18 is premised on the allegation in paragraph 17. it is unsubstantial and should be dismissed." It is not asserted that, in any event, the Company was not deducting such dues from Adwaters' pay pur- suant to the authorization which he signed. 4 Respondent Company introduced into evidence a list of employees elh- gible to join the Association "who have elected not to have dues check-off" This has been fully considered. However. the fact that a number of employ- ees, for reasons not shown, have resisted pressure to sign dues-checkoff authorizations for the Association. or for some reason have not been re- quested to do so, does not counteract the fact that such improper pressures were exerted in this case, as found hereinabove. Within a month thereafter, Adwaters was discharged by Compton at a meeting on February 5. Respondent Compa- ny argued at length a number of reasons-based on Adwa- ters' asserted conduct before February 5-as justifying Ad- waters' discharge: that he was tardy, absent from work, misdirected freight, mishandled freight, had a bad attitude and deliberately slowed down in his work. By and large, these asserted reasons for terminating Adwaters were far from convincing. Indeed, the company witnesses seemed to be seizing on whatever faults could be found and by inter- pretation and some overstatement seeking, after the fact, to justify the actions taken. However, it is not necessary to spend much time or ef- fort on these alleged faults assertedly occurring before February 5, for Compton's testimony makes clear that these alleged past derelictions on Adwaters' part were not critical to Compton's decision to terminate him. Thus Compton testified on several occasions that-though aware of the criticisms of Adwaters set forth above-he did not intend to discharge Adwaters on February 5, but only to "counsel" with him; he decided to terminate Adwaters only after Adwaters, with a display of truculence and in- subordination, refused to assure Compton that he would try to do better in the future and indicated that he would not change his work habits and performance.3 6 Compton specifically stated that this was the reason he discharged Adwaters. The record is persuasive that Respondent Company was, indeed, hostile to Adwaters both because he was a leading advocate of the Teamsters among the employees and, per- haps even more so, because of his militant criticism of the Company's minority hiring practices (as especially evi- denced by Company President Hemings' remarks at the grievance hearing on Compton's discharge). The timing of the discharge followed closely upon Adwaters' vigorous es- pousal of these causes. Most of the reasons offered tojusti- fy the discharge, as I have noted, are less than convincing. These factors are indeed indicative that Adwaters' dis- charge was related to his union activities.37 However, Adwaters, by his conduct toward Compton at the meeting on February 5, gave good cause for discipline, and Compton asserts that he discharged Adwaters for that reason alone. I am not convinced that Compton's asserted reason for the action taken was a pretext. To put it another way, on this record, I am not satisfied that if Adwaters had not been engaged in union activities Compton would have , Adwaters had previously complained to supervision on his shift that he was being discriminated against, in relation to white employees, in the sche- duling of his work hours. 6I have noted that this seemed to evidence a change in attitude on Ad- waters' part Four months previously, when Foreman Smith approached Adwaters about similar problems. Adwaters exhibited a cooperative attitude and promised to do better. Significantly. Smith never recommended Adwa- ters' discharge. In the intervening 4 months, however, Adwaters became convinced that the Company was discriminating against him because he was black. and. as he forcibly told Manager Compton. was not affording blacks fair employment opportunities These matters undoubtedly contrinb- uted to Adwalers' change In attitude I do not pass upon whether Adwaters' militant espousal of better em- ployment opportunities for blacks might constitute protected concerted ac- tlvmiies under the Act Cf Tanner .Motr iviery. Lid 166 NLRB 551 (1967) General Counsel did not specifically allege this theory or give notice of it until substantially into Respondents' delense I do not consider that Re- spondents were timely made aware that they must meet this issue. 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retained him notwithstanding such conduct. For that rea- son I find that Respondent Company, by discharging Ad- waters on February 5, did not violate the Act and shall recommend that such allegation of the complaint be dis- missed. The General Counsel, however, additionally alleges that Respondents also violated the Act by their action at the February 10 grievance hearing in denying Adwaters rein- statement to his job. The events at that hearing are con- vincing, in the final analysis, that the Company's refusal to retain Adwaters in its employ at that point was based on his militant advocacy of fair employment of blacks with the Company. So far as the record shows, this was the chief matter occupying the attention of the Company President Hemings at that hearing. Indeed, Hemings gives no indica- tion that Compton's chief reason for discharging Adwa- ters-that he was uncooperative and insubordinate in the February 5 meeting-was discussed at all.38 In sum, the record convinces me that Hemings' statements at the hear- ing voiced the Company's attitude toward Adwaters at the very highest level, and but for that specific hostility toward Adwaters' advocacy of black employment Hemings would have agreed to his reinstatement. 9 However, as previously noted, I do not believe that this issue is properly before me. It will therefore be recommended that, insofar as the com- plaint alleges that the Company's refusal to reinstate Ad- waters as a result of the February 10 hearing violated the Act, those allegations be dismissed. It follows therefore that those allegations asserting that Respondent Association violated the Act by causing the Company to discharge Adwaters on February 5 and to re- fuse to reinstate him on February 10 should be dismissed and I will so recommend. General Counsel at various places in his brief argues also that Respondent Association breached its duty of fair rep- resentation to Adwaters.4 However, since that theory is not alleged in the complaint, I have not separately consid- ered it as a violation of the Act in this matter. CONCLUSIONS OF LAW 1. Respondent Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 38 Hemings stated that Compton merely criticized Adwaters' "tardiness and not producing at work and general things of that nature." As has been noted, at other places Hemings recalls Compton criticizing Adwaters for faults that Compton in his testimony does not assert. 39 I cannot conceive that the Association representatives would have vot- ed against reinstatement if the company president had been agreeable t) reinstating him. 40 E.g. (p. 54 of G.C. br.), asserting that "Respondent association clearly breached its duty of fair representation to Adwaters by failing to represent him fully and fairly in the processing of his grievance and causing the Re- spondent Employer to discharge [him]. . . [it] further violated its duty of fair representation, and the Act, by other conduct as outlined in the com- plaint. ... 2. Respondent Association and the Teamsters Union are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent Company, by coercively interrogating an employee concerning his union membership, by threaten- ing to close down the Company's Atlanta terminal if the employees selected the Teamsters as their bargaining repre- sentative, and by making plain that the designation of the Teamsters as the employees' representative would be a fu- tile act, engaged in unfair labor practices in violation of Section 8(a)(l) of the Act. 4. Respondent Company, by coercively inducing em- ployees to join the Association and execute checkoff au- thorizations in its favor, by aiding and assisting Respon- dent Association in the solicitation of employees to join the Association and to execute checkoff authorizations in its favor, and by deducting dues from the pay of employees on behalf of the Association pursuant to such authoriza- tions, engaged in unfair labor practices in violation of Sec- tion 8(a)(l), (2), and (3) of the Act. 5. Respondent Association, by acting together with Re- spondent Company to coercively solicit employees to join the Association and to execute checkoff authorizations in favor of the Association, engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent Company and Respondent Association have each violated the Act, it will be recommended that each be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent Company has deducted moneys from the pay of Orlando Adwaters pursuant to a checkoff authorization which he executed as a result of the coercive actions of Respondent Company and Respondent Association acting together, it will be recommended that the Company and the Association, jointly and severally, reimburse Adwaters for the moneys deducted from his pay pursuant to such checkoff authorization, see Baggert Indus- trial Constructors Incorporated, 219 NLRB 171 (1975), and cases cited therein, with interest thereon to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).4' I do not find that the facts of this case require an order disestablishing the Respondent Association, or directing the Company to cease recognizing the Association, or cease giving effect to the bargaining agreement with the Association, as General Counsel suggests. See, e.g., Lykes Brothers Inc. of Georgia, 128 NLRB 606 (1960). [Recommended Order omitted from publication.] 41 See. generally. Isis Plumbing and Heating Co.. 138 NLRB 716 (1962). 730