The Youngstown Cartage Co.

THE YOUNGSTOWN CARTAGE COMPANY 305 Publisher to deliver the Sunday newspaper in only one section, but several car- riers have continued a past practice of delivering the Sunday paper in separate sections without any action being taken by the Publisher. The carrier can terminate his relationship with the Publisher with no notice, and the record indicates that the Publisher has a policy of giving 30 days' notice before terminating a relationship. In Lindsay Newspapers, Inc., 130 NLRB 680, the Board restated its "right to control" test for determining the status of an individual as an employee or an independent contractor: Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment; while, on the other hand, where control is reserved only as to the result sought, the relationship is that of an independent contractor. The Board has used this test many times in determining the status of newspaper carriers. See A. S. Abell' Company, 137 NLRB 238; Lindsay Newspapers, Inc., supra; and The Kansas City Star Company, 76 NLRB 384. The Board in deter- mining the status of the newspaper carriers in these cases has weighed each factor present in the cases against its right-to-control test. All the factors involved in those cases are present in the instant case. In those cases in which the Board found the carriers to be employees, they also found a considerable degree of discre- tion and control over the actual operation of the distribution procedure retained by the publisher. Here, the Publisher's only retention of control is in the area of the initial establishment of the relationship between itself and the carrier and in the determination of the contents of its delivered newspaper, and the frequency of its delivery. The method of delivery is established by the carrier, and all matters incident thereto with which the Publisher comes in contact are immediately relayed to the carrier without comment or recommendation. As the Petitioner seeks to represent only individuals who I find are independent contractors within the meaning of Section 2(3) of the Act, the petition must be dismissed. [The Regional Director dismissed the petition.] The Youngstown Cartage Company and Howard Smith and Peter Dohollow and Michael Boano and Eugene Theodore Local 377, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Howard Smith and Peter Dohollow. Cases Nos. 8-CA-2622, 8-CA-2837, 8-CA- 2979-1, 8-CA-93979-2, 8-CA-3092, 8-CB-5893, and 8-CB-628. March 10, 1964 DECISION AND ORDER On October 8,1963, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that Respondent Youngstown had engaged in and was engaging in certain unfair labor practices and recommending that it cease. and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent Youngstown and Respondent Local 377 had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal 146 NLRB No. 34. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to them. Thereafter, Respondent Youngstown, the Charging Par- ties, and the General Counsel filed exceptions and supporting briefs.' Pursuant to the provisions of Section 3(b) of the National Labor 'Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The 'Board has considered the entire record in these cases, including the Trial Examiner's Decision, the • exceptions, and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner subject to the additions and modifications made below. 1. We agree with the Trial Examiner that by threatening employees with reprisals for filing complaints against Youngstown with the Department of Justice, and for filing grievances under their contract and unfair labor practice charges before the Board, and for giving testimony in a proceeding against Youngstown's president under Section 302 of the Act, Respondent Youngstown interfered with, restrained, and coerced employees in the exercise of their statutory rights, thereby violating Section 8 (a) (1) of the Act. However, we are of the opinion that the record does not support the Trial Examiner's further findings that Respondent Youngstown violated Section 8(a) (1) by refusing to process employee Smith's grievance, and by the conduct of its vice president, William Wolff, Jr., in attempting to forcibly eject employees Boano and Theodore at the close of a grievance meeting. As to the alleged assault, the undisputed evidence simply shows that Wolff attempted to eject Theodore and Boano after their refusal to leave his office following a "heated grievance session." The Trial Examiner found that Wolff was justified in terminating the grievance meeting, but apparently premised his 8(a) (1) finding upon his fur- ther conclusion that the forcible ejection abridged the employees' right to present grievances. We,disagree.. There is no basis in the record for concluding that Wolff's conduct was motivated by any consideration other than the employees' refusal to leave his office, nor can it be said that the assaults were in furtherance of an anti- 1 The Charging Parties tiled a motion to dismiss Youngstown 's exceptions and brief as not having been filed in accordance with Section 102.46 (j) of the Board's Rules and Regu- lations, as amended , effective September 3, 1963, requiring any brief exceeding 20 pages to include a subject index with page references and an alphabetical table of cases and authorities cited. The Charging Parties also assert that Respondent has not presented its exceptions in a clear and concise manner. While the exceptions and brief are not in precise conformance with our requirements, they are in substantial compliance, and in the circumstances, including the absence of an allegation of prejudice to the Charging Parties, we deny the motion to dismiss. THE YOUNGSTOWN CARTAGE COMPANY 307' union design. "Accordingly, we do not adopt the Trial Examiner's 8 (a) (1) finding in this regard. As to Youngstown's -refusal to entertain the Smith grievance, the record shows that Smith, in January 1961, was redomiciled from Local 377, representing the Employer's drivers employed at Youngs- town, to Local 299, representing drivers working out of the Em- ployer's Detroit terminal. Smith voluntarily executed a transfer to, Local 299 and in April 1961 ceased paying dues to Local 377. He was discharged in November 1961, and filed grievances with both locals. The record shows that prior to the discharge and after the transfer, Smith carried several loads originating in the Detroit area. Local 377, on presentation of Smith's grievance, was informed that the Employer would not discuss it because Local 299 was Smith's exclusive bargaining representative. The Board has-held that the Act imposes no obligation upon, and generally precludes, an employer from entertaining a grievance on behalf of an individual employed in -a bargaining unit other than that represented by the grieving union? In these circumstances, the burden was upon the General Counsel to establish by a preponder- ance of the evidence that Local 377 was and Local 299 was not Smith's statutory bargaining representative at the time of his discharge. As. the General Counsel has failed to sustain that burden, we do not adopt the Trial Examiner's 8(a) (1) finding based upon the Employ- er's refusal to entertain the Smith grievance. 2. The Trial Examiner also found that Respondent Youngstown violated Section 8 (a) (1) and (3) of the Act by discharging employees' Theodore and Boano. He predicated such finding upon evidence that the discharges were motivated by Respondent's resentment to- ward Boano and Theodore engendered by their conduct in filing com- plaints with the Department of Justice, their testimony before the grand jury and at the trial of William Wolff, Sr., under Section 302 of, the Act, and their filing of earlier grievances and charges 3 However, the Trial Examiner further found that the discharges of Boano and Theodore were violative of Section 8(a) (4) insofar as they were also motivated by Boano's and Theodore's having testified- at a trial under Section 302 of the Act, and by Theodore's having filed charges with the Board. In considering the 8 (a) (4) allegations, the Trial Examiner construed this section as prohibiting reprisals against employees for testifying at a trial under Section 302, but also ruled that such protection, does not extend to employee testimony, 2 Federal Telephone and Radio Company, etc ., 107 NLRB 649. 3 We agree with and adopt these findings except that we do not rely upon Theodore's and Boano's testimony at the trial of William Wolff, Sr., as evidence of discriminatory motivation , since there is no basis for finding that Theodore and Boano gave such testi- mony before their discharges. - 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before a grand jury which ultimately returns an indictment under Section 302. As we are satisfied that the unlawful discharges will be fully remedied by the portion of our Order based upon our adop- tion of the Trial Examiner's 8 (a) (1) and (3) findings and his 8 (a) (4) finding based upon Theodore's filing charges with the Board, we find it unnecessary to our decision to pass upon the Trial Examiner's con- clusions concerning the applicability of Section 8(a) (4) to proceed- ings arising under Section 302 of the Act, including testimony before a grand jury investigating possible violations of the latter provision. 3. We agree with the Trial Examiner, for the reasons set forth in his Decision, that employees Dohollow and Smith were discharged for cause, and not in violation of Section 8(a) (1), (3), and (4) as alleged in the complaint .4 4. We agree with the Trial Examiner that Local 377 did not violate Section 8(b) (1) (A) in processing employee Smith's grievance. The General Counsel excepts to this finding and contends that Local 377 breached the duty of fair representation by acquiescing in the Em- ployer's view that it was under no duty to entertain Local 377's griev- ' In finding that Dohollow's discharge was on lawful grounds the Trial Examiner re- solved the unfair labor practice issue on the merits , and did not consider the effect of an outstanding arbitration award which also sustained the Employer 's action in terminating this employee. In view of the Board's general policy of encouraging peaceful methods for resolving labor disputes through recognition of the results of arbitration , the Trial Examiner's failure to honor the award warrants further discussion . This award was rendered by a joint State committee under the terms of the grievance -arbitration provi- sions of the Teamsters' Over-The-Road Motor Freight Agreement. The committee was composed of equal employer and union representatives but had no impartial public mem- ber. In this connection, the Board has held that it will not reject an arbitration award solely on grounds that the arbitration panel did not include an impartial public arbitrator. Denver-Chicago Trucking Company, Inc., 132 NLRB 1416. However, the Board has also disregarded the award of such a tribunal because of special circumstances indicating that the arbitration proceedings failed to comport with the expected standards of impartiality. See Roadway Express, Inc , 145 NLRB 513. We are satisfied that such special circum- stances exist here. Prior to the discharge , Dohollow had been associated with a dissident movement seeking to establish a separate union of steel haulers. As a part of its cam- paign the steel haulers openly criticized the trucking operators, accusing them of various bad labor practices. Teamster opposition to this group was evidenced through threats of Teamster officials against Dohollow and other protagonists of the movement. In the cir- cumstances, including the absence of an impartial -public member on the committee and the fact that the record as a whole establishes that the entire arbitration panel may have been arrayed in common interest against Dohollow, strong doubt exists as to whether the arbitration proceeding comported with the standards of impartiality we expect to find. Accordingly we will not honor the award of the committee but will adopt the Trial Ex- aminer's findings on the merits that Youngstown did not violate the Act in discharging Dohollow. Member Fanning concurs in the result , but, in so doing, he relies upon the reasoning set forth in his separate concurrence in Roadway Express, Inc., supra. We note however that the Trial Examiner did give binding effect to an award of this same joint State committee in connection with wage claims resulting from the discrimina- tory discharges of Theodore and Boano. In giving effect to these awards, the Trial Examiner properly concluded that the record did not show that the proceedings were not fairly and equitably conducted. Unlike the situation in Dohollow 's case, there is-no basis for finding that employer and union representatives on the committee were arrayed in interest against Theodore or Boano. Accordingly, and, as we have stated that the mere absence of an impartial public member will not foreclose our giving effect to an award, we adopt the conclusion of the Trial Examiner that these awards fully settled the backpay entitlement of said employees for the period between the discharge and reinstatement. Denver-Chicago Trucking Company, Inc, supra. THE YOUNGSTOWN CARTAGE COMPANY 1 309 •ance on behalf of Smith. This position was taken by the Employer -under an assertion that Smith was a part of the bargaining unit represented by Local 299. We find no merit in the General Coun- sel's contention. In the circumstances, to establish a violation it was necessary for the General Counsel to show that Local 377 was under a duty to represent Smith. This he has failed to do. Accordingly, we adopt the Trial Examiner's conclusion that Local 377 did not -violate Section 8(b) (1) (A) in processing the Smith grievance. THE REMEDY Having found that Respondent Youngstown has engaged in un- fair labor practices in violation of Section 8(a) (1), (3), and (4) .of the Act, we shall order Respondent to cease and desist therefrom -and take certain affirmative action necessary to effectuate the policies .of the Act. We agree with the Trial Examiner that the usual remedial order of reinstatement and backpay is unnecessary in Boano's case because he was reinstated to a substantially equivalent position, and has re- ceived backpay fully compensating him for earnings lost between his unlawful discharge and reinstatement. We disagree with the Trial Examiner that Respondent failed to reinstate Theodore with full seniority after his unlawful discharge ,on November 16, 1962. The record shows that after Theodore's dis- charge he was reinstated pursuant to an informal settlement on December 8, 1962. Following the reinstatement and in March 1963 Theodore voluntarily sold his tractor-trailer and sought to transfer his owner-operator's seniority to the company-driver list. The Em- ployer denied this request and treated Theodore as a voluntary quit, taking the position that under the governing collective-bargaining agreement (the Steel Addendum) an owner-operator forfeits seniority by sale of equipment in operable condition. The Trial Examiner disagreed with Youngstown's interpretation of the contract,5 and -concluded that because of its refusal to recognize Theodore's seniority, the earlier reinstatement was not accompanied by full restoration of seniority 'and the unlawful discharge had not been fully remedied. The Trial Examiner therefore recommended that Theodore be rein- stated to such a position as was available for him on or after March 5, 1963, with backpay from the time such position becomes available. Contrary to the Trial Examiner we find that Theodore's reinstatement in December 1962 fully complied with Youngstown's statutory duty to restore the discriminates to his former position without loss of seniority. We are satisfied that the March incident was unrelated 5As we do not adopt the Trial Examiner's recommended order of reinstatement and backpay, we do not pass upon his finding that Youngstown improperly treated Theodore as forfeiting his seniority when the latter voluntarily sold his tractor-trailer. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the unlawful discharge, and a matter to be remedied, if discrimina- tory, as an independent unfair labor practice. Accordingly, we do not adopt the Trial Examiner's order of reinstatement and backpay. However, since the record discloses that Theodore has not in fact received the backpay due under an earlier arbitration award we shall order Youngstown, for the reasons, set forth in the Trial Examiner's Decision, to tender him the amounts due. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations-Board'hereby orders that the Respondent, The Youngstown Cartage Company, Youngstown, Ohio, its 'officers, agents, successors, and assigns, shall 1. Cease and desist from : (a) Threatening employees' with reprisals concerning their par- ticipation in concerted activities. - (b) Discharging employees because of their participation in pro- tected concerted activities. (c) Discharging employees because they file charges under the Act. (d) Discouraging membership in or activities on behalf of Local 377, or any other labor organization of its employees, by discharging any of its employees because of their union membership or activities or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section' 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclsure Act of 1959. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their, right to self-organization, to form, join, or assist said Local 377, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action : (a) Tender to Eugene Theodore the amount of the additional back- pay awarded to him in the grievance proceeding which followed his discharge on November 16,1962. THE YOUNGSTOWN CARTAGE COMPANY 311 (b) Post in its offices at Youngstown, Ohio, copies of the attached notice marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being signed by Respondent Youngstown's representative, be posted by said Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Rea- sonable steps shall be taken by'said Respondent to insure that said notices are hot altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Eighth Region, in writing, within 10 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent Youngstown and Respondent Local 377 engaged in conduct other than that found to be in violation of the Act herein, be, and it hereby is, dismissed. 6In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order,"„ the words "A Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor -Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT discourage membership in Local 377, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by dis- charging employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT discharge or otherwise discriminate against em- ployees because of their participation in protected concerted ac- tivities or because they file charges or give testimony under the Act. WE WILL NOT threaten employees with reprisals concerning their participation in protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist said Local 377, International Brotherhood of Teamsters,', Chauffeurs, , Warehousemen and Helpers of America, or any other labor organization, to bargain 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collectively through representatives of their own choosing, or to, engage in other concerted activities for the purpose of, collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by,,;an agreement requiring membership in a labor organization as a condition of employment,,as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and,Disclosure Act of 1959. WE WILL: tender to Eugene Theodore the amount of the addi- tional backpay awarded to him in the grievance proceeding which followed his discharge. All our employees are free to become or remain or to refrain from becoming or remaining members of the above-named or any other labor organization. TIIE YOUNGSTOWN CARTAGE COMPANY, Employer. Dated---------------- ' By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the- date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,. Telephone No. Main 1-4465, if they have any question concerning this. notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE These consolidated proceedings, brought under Section 10 (b) of the National' Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), were heard before Trial Examiner George A. Downing at Youngstown, Ohio, on July 15 through 17, 1963 , pursuant to due notice . The complaint against Respondent Youngstown, which was issued on May 19, 1963, by the General Counsel of the National Labor Relations Board on charges dated November 14, 1961, June 18 and November 19, 1962, and March 15, 1963 , alleged in substance (as amended) that Respondent Youngstown engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (4) of the Act by various specified acts of interference , restraint, and coercion (i.e., interrogation, threats of reprisal, infliction of bodily injuries ), and by dis- charging Howard Smith on November 8, 1961 , Peter Dohollow on April 30, 1962, and Eugene Theodore and Michael Boano on November 16, 1962 , because Re- spondent believed they had engaged in certain concerted activities for their mutual aid or protection and/or because they filed grievances and/or because they filed' charges and/or gave testimony under the Act. The complaint against Respondent Local 377, which was based on charges dated' November 14, 1961 , and June 18, 1962, alleged in substance (as amended) that Respondent Union engaged in unfair labor practices proscribed by Section• 8(b) (1) (A ) by failing fairly and equally to represent employees of Youngstown in the unit for which Respondent Union was the bargaining representative and by refusing to process the grievances of Howard Smith and Peter Dohollow, for the THE YOUNGSTOWN CARTAGE COMPANY 313' reason that said employees were members of a dissident group who were opposing Youngstown's attempt to institute unilateral changes in terms and conditions of employment and Respondent Union's acquiescence therein. Respondents answered separately, denying all unfair labor practices with which they were respectively charged. They also made, during the course of the hearing, separate motions to dismiss, rulings on which were reserved and which are disposed of by the findings herein. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent Youngstown is an Ohio corporation which is engaged in the business of interstate transportation of freight and which owns and operates freight terminals in several States of the United States including Ohio. It derives gross revenues in excess of $50,000 annually from its interstate business operations. Youngstown is therefore engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Local 377, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. M. TIIE UNFAIR LABOR PRACTICES A. Introduction and issues Youngstown, a common carrier of motor freight, employs three types of drivers: (1) drivers of company equipment who, in the Youngstown area, were carried as employees of its affiliate, E & B Company; (2) owner-operators, who drive their own equipment under lease to Youngstown; and (3) employees who drive the equipment of fleet owners under lease to Youngstown. Howard Smith drove com- pany equipment for E & B Company; the other three Charging Parties were owner- operators. Youngstown deals with various Teamsters locals at its several terminals, including Local 377 at Youngstown, Ohio. Youngstown and Local 377 were parties to the Central States Area Over-the-Road Motor Freight Agreement (herein called the contract), whose term ran from February 1, 1961, to January 31, 1964. Whether they were also parties to and/or bound by the provisions of an Iron and Steel and Special Commodities Addendum (herein called the Addendum) was an issue be- tween them which was in sharp dispute and which was not finally resolved until March 1963, by the decision of the Joint Area Committee in Chicago 1 in a case filed by Youngstown against Local 377 and another local to require them to sign the Addendum. See section B, infra. The foregoing dispute touched off the conduct which forms the subject matter of the present proceeding. Numerous grievances were filed by the Charging Parties and by other members of Local 377 concerning Youngstown's application of the provisions of the Addendum and were adamantly resisted by Youngstown. Because of dissatisfaction with the local's failure to obtain results, there formed within the local an informal group of six employees 2 (including the Charging Parties) whose original and primary purpose was to obtain relief from Youngstown' s application of the Addendum, though they also later formed or joined with a political faction within the local and also participated to a limited extent in an abortive movement to form a separate organization of steelhaulers. Their initial move was to employ an attorney (DiBlasio, their counsel at the hearing) and to accompany him to Washington, D.C., in May 1961, where among other things they conferred with an official of the Department of Justice. As a result of that visit they were sum- moned and gave testimony before a Federal grand jury in Detroit in August 1961, and in late 1962 they testified again in Detroit at the trial of Youngstown's president, William F. Wolff, Sr., and Rolland B. McMaster, an official of Local 299 of Detroit, who were convicted under an indictment which the grand jury had returned under Section 186, Title 29, Section 2, Title 18, United States Code. 'A national body composed of employer and union representatives. 'Though conveniently dubbed by the General Counsel at the hearing as the "Committee of `Six," the group had no name, was not a committee, and is not claimed to constitute a labor organization within the meaning of Section 2(5) of the Act. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Smith and Dohollow were discharged , respectively, on November 8, 1961, and April 30, 1962, which was after their appearance before the grand jury but before they testified at the trial. Theodore and Boano were discharged on November 16, 1962, immediately following a grievance meeting with Youngstown 's vice president, William F. Wolff, Jr., during which Boano was injured.' The issues on the discharges are whether they were made for the reasons alleged in the complaint (see supra) or for causes as assigned by Youngstown . Youngs- town also pleaded that the discharges were made the subject matter of grievances which were processed , heard, and settled under the grievance machinery of the contract. The issues in the case against Local 377 are whether it failed fairly and equally to represent employees in the unit and whether it refused to process the grievances of Howard Smith and Peter Dohollow for the reasons alleged in the complaint. Basic to those issues, as well as to the General Counsel's theory in his case against Youngs- town, is the evidence concerning the dispute on the Addendum and its ultimate resolution, with which we begin the summary of the evidence B. The issue on the Addendum The dispute concerning the applicability of the Addendum to the Respondent's operations arose from the conflicting interpretations by the parties of the following provision: This Addendum shall apply only to those employers who specifically signify their intention to be bound hereby by duly executing the same and whose affected employees have by majority vote accepted it, or by past practices in each company. The Union's view was that the Addendum would become effective only after majority vote of the employees , and beginning in February 1961 , it held a series of meetings in which its members voted consistently (and unanimously ) to reject the Addendum. Youngstown, on the other hand, took the position that the Addendum applied, and should be considered in effect , because of the past practices of the Company. Local 377 processed numerous grievances filed by its members concerning Youngs- town's application of the Addendum, maintaining consistently that the Addendum was not in effect because it was not ratified by the membership . No evidence was offered (other than suspicions voiced by some of the "committee") that the local was acquiescing in Youngstown's unilateral imposing of the provisions of the Adden- dum. To the contrary, Theodore admitted being present at a union meeting and participating in the sending of a telegram dated March 25, 1961, to President Hoffa of Teamsters' International , signed in the name of the executive board of the local. in which Hoffa was apprised of the membership's rejection of the Addendum and was requested to sanction a strike against Youngstown and some 29 other steel haulers. The telegram requested that, if strike sanction were denied , the Board be given the reasons, because its membership did not understand the local's per- sistence in considering and reconsidering the rejected Addendum. Hoffa replied by wire on March 28, informing the Board that if its members had properly rejected the Addendum, they were to be paid under the area agreement, and if they were not being paid under that agreement their remedy was to file a grievance, and he recommended that a grievance be filed promptly under the procedures provided in the area contract. Business Agent O'Niel testified that the local thereafter consistently resisted Youngstown's attempts to put the Addendum into effect and that until the decision of the Joint Area Committee in Chicago in March 1963 , his opinion was that the Addendum was not in effect until ratified by the membership. O'Niel appeared before the Joint Area Committee in Chicago concerning the matter which had originated in the form of a "case" brought by Youngstown to require Local 377 and another local to sign the Addendum. Previant, International counsel for Teamsters, also participated in the hearing before that committee, which upheld Youngstown's contention that under its past practices it operated within the confines of the Addendum, and he thereupon advised O'Niel that the Addendum was in effect: Still not agreeing, O'Niel later processed a grievance or objection on behalf of Glenn Poland . On his appeal at the State level at Columbus , the Joint Board ruled that the question was one for Chicago; and in June; the ruling from Chicago was that the facts presented did not warrant an -appeal and that the decision would stand. In the meantime, pursuant to Previant's advice, the local had signed the Addendum under date of May 4, 1963, effective to February 1, 1961. THE YOUNGSTOWN CARTAGE COMPANY 315 C. Evidence concerning the motive for the discharges The first concerted activity of the "committee" was, as stated in section A, their visit to Washington with their attorney in May 1961. They were discharged by Youngstown immediately upon their return for the reason that they had failed to report off duty as required by the contract, but they were reinstated within 2 days, following a grievance meeting at which they were represented by Local 377. There is no question that Youngstown became fully aware that the six drivers had made the trip together. Dohollow and Boano both testified to separate com- ments by William Wolff, Sr., concerning "the way to Washington," and Wolff not only made no denial, but testified that he had in fact been informed by someone in the Department of Justice that five or six of his drivers had been there and had filed complaints about the Company. Respondent also learned (through the ap- pearance at the office of the United States Marshal with subpenas) that some of the Charging Parties, as well as a large number of other employees, were being summonded to Detroit to testify before the grand jury in August 1961, and later to testify at the trial of William Wolff, Sr., in September 1962. Indeed, William Wolff, Jr., testified that he requested Steward Glenn Poland to furnish him a list of those who were going up to testify so that he would know where they were and where their equipment was. The General Counsel offered evidence that both William Wolff, Sr., and William Wolff, Jr., made threats and expressed animus concerning the aforesaid activities of the committee. Boano testified that during the course of the grievance meeting following the discharges in May 1961, William Wolff, Sr., charged them with hav- ing gone to Washington and made the threat, "I'll get you guys if it is the last thing I do." Howard Smith testified that, shortly after his appearance before the grand jury, William Wolff, Sr. (who had had a heart attack on February 20, 1961), asked him whether he always testified against sick people and whether he liked working at Youngstown. Smith testified further that William Wolff, Jr., commented, following his appearance before the grand jury, that "If anything happened to his dad that we would be sorry." Theodore testified that following his return from a grievance meeting before the Central States Committee in Chicago in September 1961, William Wolff, Sr., charged him with having gone without permission. Though Theodore explained that he had reported off to the dispatcher at Detroit, who had approved the trip, Wolff insisted that no one had the right to authorize the trip and threatened, "I am going to get you. I am going to fire you if it is the last thing I ever do." In January 1962, William Wolff, Sr., gave Theodore formal written notice that his owner-operator lease was being canceled because of his "several complaints" filed with the steward and "several N.L.R.B. actions filed against our company." Charges which followed that action were settled after the issuance of a complaint by the Board. Boano testified that in the month of October 1962, William Wolff, Jr., inquired what day he was to appear in Detroit and that in other conversations about testify- ing in Detroit, Wolff said in one of them that "If anything happens to his dad that we were going to pay." Boano testified further that in a grievance meeting on November 3, 1962, after William Wolff, Jr., rejected a grievance concerning one Nick Ambercini, Business Agent O'Niel asked permission to speak to William Wolff, Sr., about the matter. Wolff replied, "My dad can't help nobody at this time . . . Thanks to you guys." The Wolffs made no direct denials of the statements which were attributed to them. William Wolff, Sr., admitted having engaged in heated arguments with both Theodore and Boano, but he denied that either his anger or any threat to "get" them was related to their going to Washington, to their testimony against him, or to encouraging or discouraging membership in Local 377. When asked specifically whether he threatened to "get" Dohollow, Wolff answered, "That is a different question." He went on to explain that Theodore simply "antagonizes" him and that after he left the hospital (following his heart attack) he called Theodore a lot of "bad names" and threatened to "get" him, but testified that he was under sedation at the time and could not remember • what it was he was angry about. As for Boano, Wolff testified that he "doubted" that he told Boano he would "get him." He made no denial of Smith's testimony concerning the remark attributed to him following Smith's appearance before the grand jury. William Wolff, Jr., denied threatening any driver concerning testimony given before the grand jury or in the subsequent trial, but be apparently made no denial of the specific remarks attributed to him by Boano and Smith. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus under Respondent's evidence there was no denial that threats were made; the testimony was directed instead to denying that the threats were related to the concerted activities of the Charging Parties or to their testifying before the grand jury or at Wolff's trial. That claim was substantially weakened, however, by William Wolff, Sr.'s admission that he could not remember what he was enraged about at the time he berated Theodore and threatened to "get" him. Furthermore, Respondent furnished, in Theodore's discharge letter in January 1962, documentary evidence that its action then was unlawfully motivated. Under all the circum- stances, including the cumulative weight of the testimony of the General Counsel's witnesses to a number of separate but similar threats, I credit the latter, and I con- clude and find that the Wolffs made the statements which were attributed to them by Boano, Smith, and Theodore. D. The discharges 1. Howard Smith Howard Smith was discharged on November 8, 1961, following a complaint to Youngstown and the submission of a claim for damages in the sum of $500 by Sidella Steel Corporation, of Newark, New Jersey, to compensate for labor to recon- dition a load of steel which arrived in a wet and rusted condition due to Smith's failure to cover the load with tarpaulins during transit. The discharge letter informed Smith in part that company "policy" was that all loads were to be tarped; that in addition the bill of lading for the load in question showed that it was to be tarped; and that he was being immediately discharged for his gross negligence resulting both in financial loss to the Company and the possibility of losing the account .3 Smith admitted his failure to tarp the load, that he hauled mainly tarped loads, and that only "very few" of his loads were not tarped. He denied knowing, how- ever, of any company requirement concerning the tarping of all loads and stated his understanding to be that the loads were to be tarped only if so specified on the bill of lading or if the shipper requested the tarping. Smith's testimony, considered as a whole and in the light of the fact that no other driver was called to support his alleged understanding of the tarping regula- tion, requires the rejection of his excuses for failing to tarp the load to Sidella Steel, particularly in the face of Rspondent's evidence that the bill of lading itself showed the load was to be tarped. I therefore conclude and find that Smith was in fact guilty of negligence as charged by Respondent and was responsible for the resultant damage to the load of steel, and that his conduct was such as to constitute grounds for discharge. Whether it was in fact the real cause or only a pretext, as contended by the General Counsel, is a question considered in section E, 2, infra. We turn now to the evidence concerning the handling of Smith's grievance, which forms the basis of further allegations against both Respondents. Smith's grievance Youngstown mailed a copy of Smith's discharge letter to Local 299 in Detroit and on November 27 wrote that Union directly (with copies to Smith and to Local 377), referring it to contract provisions that appeals were to be taken in 10 days and informing it that since no appeal had been taken, it felt that Smith did not wish to appeal and that he was being dropped from the seniority list Actually, Smith had discussed with Business Agent O'Niel his grievance con- cerning his discharge, and when O'Niel called William Wolff, Sr., about it on the tele- phone, O'Niel was informed that he could not process the grievance on Smith's behalf because Smith was a member of Local 299 (as a result of an alleged "redomiciling" in January 1961, later to be more fully adverted to). O'Niel thereupon advised Smith to file a grievance with that local, and Smith attempted to do so on a subse- quent trip to Detroit. However, when the steward informed Smith that he would not know what to do with a grievance, Smith "got mad" and tore up his written grievance without filing it, and he did not thereafter pursue the matter further with that local. Smith did, however, renew the matter orally with Local 377, discussing it again with O'Niel also went with Smith to Youngstown's office and, while Smith waited outside, O'Niel went in and talked with William Wolff, Jr., about reinstating Smith. $ Respondent also offered evidence that Smith had been guilty of earlier violations of company rules and regulations, including one earlier refusal to tarp a load , but the only violation assigned for the discharge concerned the shipment to Sidella Steel Company. THE YOUNGSTOWN CARTAGE COMPANY 317 ,O'Niel reported' back that Wolff would not reinstate him for fear that he would burn up a motor or ruin a truck. William Wolff, Jr., admitted that Respondent raised with O'Niel the • latter's right to represent a member of another local and that he refused to discuss Smith's grievance with O'Niel for that reason because he felt that under the contract O'Niel had no right to represent Smith. We turn now to the circumstances of the "redomiciling" and to Smith's efforts; following his discharge, to effect a retransfer to Local 377. Again there was no substantial conflict in the evidence that in January 1961, following "a little friendly persuasion" from William Wolff, Sr., Smith signed a formal transfer of his member- ship from Local 377 to Local 299. Wolff had informed Smith that any local other than 377 "would do," but that Local 299 was preferable, and assured Smith that he would hold his seniority with the Company. Being somewhat uncertain as to the exact status of his membership, Smith' paid dues directly to Local 377 for 2 months after the transfer in order to play safe and to guard against any possible "shuffling around" between the locals. Actually, Youngstown simply continued to checkoff Smith's dues as it had in the past but, following his transfer, it transmitted them to Local 299. William Wolff, Jr., explained Youngstown's interest in "redomiciling" drivers as follows: Respondent's policy was to assign drivers from the board on a first-in, first-out basis, but in January 1961 it was getting many complaints and grievances from drivers demanding assignments on the basis of seniority. Youngstown felt that the redomicihng of drivers into different terminals would tend to break up such demands. Furthermore, at that time there was an influx of drivers into Local 377 and the Youngstown area, and feeling that it had too many there, Youngstown took the matter before the grievance board and won out over the opposition of the local. Thereafter, it made up a list of the drivers and the areas in which the equipment was needed. Smith's name was on the list to be domiciled in Detroit, and he was requested to transfer to Local 299, along with some five or more other drivers. Though the General Counsel relied on a statement in William Wolff, Sr.'s affidavit to the Board that he never redomiciled a man, there were two statements elsewhere in the affidavit that the Company redomiciled no one after February 20, 1961 (the date of Wolff's heart attack), and Wolff also described therein his former practice of changing the authorization cards from Local 377 to other locals, and continued: I told the men in giving them the cards that they would be working out of the respective terminal in those cities. The Company would then forward the union dues to those locals. The General Counsel also cites testimony by Smith of statements made to him by President Higham of Local 377 in March 1961 to the effect that transfers were frozen and that no one could be transferred out of Local 377. Those statements, however, were made after Smith's transfer to Local 299, and they are reconcilable with William Wolff, Sr.'s affidavit that no one was redomiciied after February 20, 1961. Indeed, Smith admitted on cross-examination that he believed at the time of his discharge that he was a member of Local 299. Despite his transfer to Local 299, Smith attended and participated in meetings held by Local 377 after his transfer, including some of those at which the member- ship voted on the Addendum. He also acted as spokesman for company drivers in March 1961, in a meeting with company officials and officers of Local 377, without his attendance being questioned by either the Company or the Union. Finally, there was evidence that following Youngstown's refusal'to recognize Local 377 as Smith's representative, O'Niel called Local 299 two or three times in an attempt to effect Smith's transfer back to Local 377. Nothing was accomplished at that time, but in July 1962, Business Agent Angelo of Local 377 arranged for Smith's transfer from Local 299, but that local imposed a condition that Smith pay back dues for 6 months, a demand which Smith was financially unable to meet. Finally,,in June 1963, getting word that Angelo could get him back into local 377, Smith went to the local's office, discussed the matter with O'Niel, who reinstated him as a new member upon payment of $8.50, of which $2.50 served as initiation fee to the International. The normal initiation fee was $50. 2. Peter Dohollow In June 1961 , the committee of six made plans to hold a picnic at which the employees would be informed of what they had done in Washington. Dohollow volunteered to obtain the names and addresses of all employees so that invitations could be mailed, and he later requested an office girl to write up for him a list of 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD names and addresses . She suggested instead that Dohollow buy post cards or envelopes and that she would run them through the Company's addressograph machine, but she finally agreed to undertake the entire chore . She later gave Dohollow two separate bundles of envelopes, and he paid her $5 for her services. Dohollow testified that there were some 200 to 300 of the envelopes and that he gave them to Glenn Poland without looking at them , but he admitted on cross- examination that he knew the envelopes had been run through the addressograph machine and that when he later looked at them he saw that some of them were imprinted with Youngstown's name and address. Though the picnic plans did not mature, Poland kept the envelopes until April 1962, when some of them were used for mailing out to Youngstown drivers notices of a meeting to be held of April 29 (see attached Appendix A) concerning a "rebel" movement being led by one Pace, in which at least some of the committee (Boano, Poland, and Dohollow ) had become interested. William Wolff, Jr., learned of the use of the company stationery on a trip to Wooster, Ohio, investigated the matter on his return to the office , and learned that it was Dohollow who had procured the envelopes . He discharged Dohollow and terminated his lease by letter of April 3 , assigning the following reasons: You acted against this company by dishonestly securing envelopes with com- pany mimeographed addresses and sending anticompany and union propaganda to employees and leaseholders of this company. This dishonesty resulted in serious problems, much embarrassment for the officers • of the Youngstown Cartage Co., and fleet owners calling this office and threatening to quit because of the so-called letter that was enclosed in our envelopes. Dohollow was informed that he was being discharged under article 10 of the contract, which required no warning notice where a discharge was made for dishonesty. Doh'ollow's grievance There was scant evidence that Local 377 failed properly to process Dohollow's grievance concerning his discharge . Dohollow himself testified that Business Agent Angelo presented his case first in a meeting with the Company and later before the Joint Board at Columbus, and that Angelo's presentations were vigorous and appar- ently genuine and in good faith. Indeed, Dohollow testified he was satisfied that Angelo was doing the best he could and was making a genuine effort to get Dohol- low reinstated and that (Dohollow) did not feel that the Union could have done anything beyond what it did do concerning the handling of his grievance. Ignoring that absolution, the General Counsel relies in part on Dohollow's testi- mony that following the Columbus hearing (which upheld the discharge ) he over- heard a conversation between William Pressler (president of the Ohio Teamsters area ) and Angelo in which Pressler told Angelo that if he did not "pull some union cards out the local," Pressler would pull Angelo 's card, and that Pressler then turned and pointed at Dohollow and said , "He is not done with me yet." What- ever the implications of those statements , it is plain that Local 377 is not charge- able with them . Indeed they would indicate that Angelo (and Local 377) may have incurred Pressler's displeasure by the vigorous and sincere handling of a grievance on behalf of one who was suspected (through the mailing of the notices) of involvement in the Pace movement. , The evidence concerning the latter and concerning certain political action and maneuvering within Local 377 is also of some relevance. In February 1962, Boano was the movant at a union membership meeting of a successful motion to remove O'Niel as business agent and to replace him with Angelo. In April, Boano, Poland, and Dohollow attended some of the meetings which Pace conducted , whose primary purpose was the forming of a brokers or steel haulers association within Teamsters if possible . (See attached Appendix A.) Indeed Dohollow testified that the group was not a dissident group, was not opposed to Local -377, but was to the contrary in favor of maintaining membership in that local and having it continue as the representative of the group. It was apparent, however, that Teamsters (and Local 377) viewed Pace's activities as constituting a rebel movement . Thus Boano testified that O 'Niel later referred to his attending a rebel meeting and- told him, "You guys are in trouble," and that, "They are going to pull your cards. " Boano admitted, however, that formal charges would have been necessary under the constitution and bylaws of the union and that no action was taken toward that end. THE YOUNGSTOWN CARTAGE COMPANY 319 From here on the evidence assumed a purely political hue, involving the jockey- ing between factions within Local 377 . Boano and Dohollow testified that they; Poland, Theodore, and Smith met in June 1962, at O'Niel's home with O'Niel and one Abe Schwartz, another representative of Local 377, and there discussed the matter of getting Dohollow reinstated . Boano testified that his own position was that he would have made "any deal with those guys" that was necessary to get Dohollow back to work, and that he therefore agreed when Schwartz proposed that if he would move at the next meeting to reinstate O'Niel as business agent, removing Angelo, he and O'Niel would "see what they could do" for Dohollow on their next trip to Columbus. Boano did not follow through , however, because of dissension within his own group. As Dohollow's testimony showed that the meeting at O'Niel's home followed after the Columbus hearing before the Joint Board at which Dohollow 's, grievance received final rejection despite a fair and vigorous representation by Local 377, Schwartz' promise was at best an empty one, with little weight as a quid pro quo and with none as probative evidence of a failure on the part of the Union fairly to represent Dohollow on his grievance. Further testimony by Boano related solely to developments in January 1963, when Boano and his associates were running a slate of candidates in an election campaign, apparently against a slate of incumbent officers, including O'Niel. O'Niel and Schwartz then made frequent references to the connection which Boano, Poland, and Dohollow had had with the rebel movement and to the fact that their cards could be "pulled" because of such activity . Because such charges constituted a political handicap, Boano's faction required proof from Poland , before accepting him as its candidate, that he had not signed a charter for some organization known as "We Will Win." It also considered whether Dohollow would be an asset on the ticket, feeling that if he were in fact "in cahoots" with Pace, as Boano expressed it, he should not run with them because, "[W ]e figured we were good Teamsters." 3. Eugene Theodore and Michael Boano Theodore and Boano were discharged on November 16, 1962, following their participation on the previous day in a heated grievance meeting with William Wolff, Jr. Preliminarily, there should be noted here again their connection with the committee, as well as the fact of Theodore's prior discharge in January 1962 for having filed grievances with the Union and unfair labor practice charges with the Board. Also to be noted is the fact that on April 24, 1962, William Wolff, Jr., formally notified Boano, an alternate steward, that Respondent proposed not to honor him further as committeeman or assistant steward in presenting matters to the Company because of Boano's involvement on April 17 in a fist fight and quarrel with another union member. Boano was also threatened with action under article 10 of the contract (discharge or suspension ) in the event of a recurrence of such conduct. On November 14, Dispatcher Healey assigned Theodore to pick up a load to, Philadelphia. Theodore testified that that was normally not his run, and that when he inquired if Healey had any "bumpers ," his normal operation, Healey replied that he did not and that Theodore was to take the load "or else." Thereafter Theodore's truck broke down on the way to make the pickup and he did not fill the assignment. In the meantime he had requested Business Agent O 'Niel to straighten, out the dispatching method at Youngstown as his own understanding was that his equipment was for use in Michigan and not in Pennsylvania. Though no written grievance was filed , the matter was scheduled for discussion the next day in a grievance meeting in William Wolff , Jr.'s office. Then present were Theodore, O'Niel, Steward Poland , and Alternate Steward Boano for the Union, and William Wolff, Jr., for the Company. Wolff testified that though he initially questioned Boano's presence because of his prior letter to Boano, he gave in to O'Niel's plea and let Boano remain. Following the disposition of another grievance , discussion turned to Theodore's complaint concerning the assignment which Healey had given him the prior day. Some preliminary heat was engendered during a dispute between Theodore and Healey (who was brought into the meeting ) when Theodore accused Healey of lying concerning the ,availability of a load of , bumpers for Theodore on the 14th .4 4 Though the merits of the dispute are irrelevant to the issues, the evidence established that there were no bumpers for Theodore at the time of his assignment to Philadelphia and that Theodore 's truck in fact suffered a breakdown on the way to pick up the latter load 744-670-66-vo1. 146-22 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There was also argument between Theodore and Wolff on Wolff's position that Theodore was supposed to make his equipment legally operable in all the States in Youngstown's system and on Theodore's rejoinder that William Wolff, Sr., had himself ordered Healey to keep Theodore out of a certain area because his equip- ment was not qualified for operation there. It was around this point that Boano entered the fray in support of Theodore's claims. According to Wolff and Healey, Boano banged his fist on Wolff's desk and made loud, profane, and indecent comments. According to Theodore and Boano, William Wolff, Jr., himself gave vent to indecent remarks in ordering them from the office. It may safely be assumed under all the circumstances, and I find, that the statements were made substantially as charged on both sides. In any event there was no substantial dispute as to what happened thereafter. When William Wolff, Jr., informed O'Niel that he was ending the meeting, no one made a move to leave, and Boano made some remark indicating he would not leave until he got the matter disposed of. Wolff then went over and opened the door, approached Boano, and took him by the arm to eject him. In some manner or other Boano's head struck the door and he fell to the floor, although Wolff claimed to have been unaware of that until after he turned his attention to Theodore. Theodore testified that Wolff also grabbed him by the arm, tore his sweater, and put his fingernails into Theodore's arm; and Poland testified similarly that Wolff grabbed Theodore and started pulling at him. Wolff testified that he had no recollection of touching Theodore. Healey testified that his own view was blocked at the time William Wolff, Jr., approached Boano and that he did not see Wolff lay hands either on Boano or on Theodore. Other- wise, Healey's testimony was corroborative of Wolff's. An ambulance was called for Boano and he was taken to the hospital where he remained for some 4 hours. Theodore testified that he followed Boano to the hospital and was given first aid there because of a flesh burn on his arm from Wolff's fingernails. On the following day Theodore received a telegram from the Company informing him he was discharged because of the trouble he had caused the preceding day. Boano at first received a letter informing him he was suspended pending an investi- gation of his activities at the office, and later received a telegram informing him that he was discharged because of his conduct at the meeting. The Grievances; the Settlement Thereafter, Theodore and Boano filed grievances with the local and also filed assault and battery charges in the municipal court against William Wolff, Jr. They also filed charges with the Board. An informal settlement was reached in the municipal court under which Theodore and Boano were to be reinstated with full seniority and would receive backpay from the time of their discharges until their reinstatement. Theodore resumed driving on January 7, 1963, and Boano around February 8. However, as they did not feel that the backpay settlements as first made compensated them fully under the terms of the settlement, they filed further grievances with the Union. Under date of February 25, 1963, Youngstown wrote Boano confirming the prior settlement agreement reached in the municipal court and continuing as follows: According to this agreement, you are, and have been since December 8, 1962, reinstated to your employment with Youngstown Cartage Co. with full restora- tion of your seniority rights as an owner operator. I also confirm the understanding that any additional claim for earnings lost as a result of the original discharge will be paid in accordance with the final decision of the National Labor Relations Board and the grievance machinery of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Thereafter, the grievances for additional compensation were processed by the Union as far as the Joint Board in Columbus, resulting in ultimate victory for Boano and Theodore and the award of an additional amount of backpay for each .5 Pursuant to notice from the Company, Boano went to the office, received his check for the additional moneys, and signed a release. Theodore, however, never pre- sented himself at the office, either alone or with the business agent, and he has received no check and has signed no release. Theodore explained that he was 5 Under Theodore's testimony the Columbus decision was made in March or April, but according to Boano, it was made in May. THE YOUNGSTOWN CARTAGE COMPANY 321 unwilling to collect a check at the office because William Wolff, Jr ., had told him to get out of there and not to come back, and that he therefore refuses to go to the office. Theodore's Sale of Equipment; the Issue of Seniority Rights On March 5, 1963, Theodore sold his equipment and wrote the Company inform- ing it of that fact, but that he was exercising his seniority rights and was ready to go to work as a driver. Theodore received a reply around March 22 to 25, inform- ing him that the Company considered him a voluntary quit because his tractor was not beyond repair. Theodore admitted that he sold his equipment to Don Wells, another employee of Youngstown , who to his knowledge was going to use it in his employment with the Company , and that Wells did in fact use it for some 2 or 3 weeks, but that it then broke down completely and could not be operated. Under the area contract all employees had terminal seniority , and it was specifi- cally provided that the employer could not require as a condition of continued em- ployment that an employee purchase his own equipment . Owner-operators had seniority only as drivers. The Addendum provided for three separate terminal lists, one for owner-operators, one for company drivers, and one for drivers of fleet-owned equipment. Provision was also made that an owner-operator could exercise his terminal seniority rights by bumping either company drivers or fleet drivers where his equipment wore out beyond economical repair and he did not care to buy other equipment. William Wolff, Sr., testified, however, that under the maintenance of standards clause in the contract , the Addendum did not and could not take away any of the benefits which employees received prior to February 1, 1961 , and that that was true as to all terms and conditions of the contract, including seniority. E. Concluding findings 1. The case against Local 377 There is no substantial evidence which supports the complaint allegations and the General Counsel's contentions that the Union failed fairly and equally to repre- sent employees for whom it was the bargaining representative and that it refused to process the grievances of Smith and Dohollow because they were members of a dissident group opposing Youngstown's attempt unilaterally to change the terms and conditions of employment (i.e., by imposing the provisions of the Addendum) and the acquiescence of the Union in such action. Insofar as the Addendum was con- cerned, the evidence showed that Local 377 in fact fought to the last ditch the Company's attempt to apply it, attempting even an appeal from the final decision of the Joint Area Committee. Similarly without substance were the General Counsel's claims concerning Dohollow's grievances, for Dohollow himself attested to the fairness and genuine- ness of the local's efforts in his behalf. The remaining evidence did not establish the contrary, being concerned mainly with the devious and confused ramifications of a political right within the local. As for Smith's grievance, the evidence showed that Local 377 did what it could to present his grievances to Youngstown, but was blocked by the Company's refusal to recognize it as his representative . Even then 'O'Niel attempted to follow through by effecting a retransfer from Local 299 in order to meet Youngstown's objections. As I therefore conclude and find that the General Counsel failed to prove the allegations of his complaint against the Union, I shall grant the motion to dismiss it. 2. The case against Youngstown a. Interference, restraint, and coercion Based on the evidence summarized in section C, supra, I conclude and find that Respondent Youngstown threatened its employees with reprisals concerning their -participation in concerted activities , i e., their trip to Washington, their filing of grievances and charges, and their appearance before the grand jury and at the criminal trial of William Wolff, Sr., and that it thereby interfered with, restrained, .and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. I find that by the assaults upon Theodore and Boano at the grievance meeting, Respondent further interfered with, restrained, and coerced employees in the exer- cise of their Section 7 rights. There was plainly nothing about Theodore's conduct which justified Wolff's action, and even if Boano's conduct may have furnished justifiable excuse for terminating the meeting, there was no warrant for Wolffs .attempted forcible ejection of him, from which Boano's injuries resulted. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I also conclude and find that by refusing to entertain Smith's grievance as pre- sented by Local 377, Respondent further interfered with, restrained, and coerced employees in the exercise of their Section 7 rights. See Sections 8(a)(5) and 9(a). Not only was Local 377 the statutory bargaining representative of all employees in the Youngstown unit, but Local 299 had forfeited any right to be present during the adjustment because of its own refusal to entertain Smith's grievance. I find that the evidence does not establish that Respondent interrogated employees concerning their union membership, activities, and desires as alleged in the complaint. b. The discharges Although the same body of evidence concerning motivation is relevant to all of the discharges, there are cogent reasons why the Smith and Dohollow discharges stand on a different footing from those of Theodore and Boano and why different principles are determinative of the two sets of discharges. I conclude and find initially that the General Counsel made out a prima facie case by the evidence summarized in section C, supra, that Respondent was motivated in all four cases by his animus against the employees for engaging in protected concerted activities, for presenting grievances and filing charges, and for testifying against William Wolff, Sr. In the cases of Smith and Dohollow, however, each engaged in serious miscon- duct which plainly furnished just ground for discharge and which was assigned as the cause. The issue in their cases, therefore, becomes one of determining whether those causes were the real ones or only pretexts, and whether Respondent was moved instead by its animus as repeatedly expressed on former occasions. I con- clude and find that Respondent's evidence was sufficient to overcome the General Counsel's prima facie case and to establish that its action in each case was motivated by the cause assigned. Smith's negligence had cost Youngstown a flat $500, plus the danger of further loss of business. His record otherwise was such that, had Respondent been seeking for excuses to discharge him, it had ample opportunities to do so before his final costly blunder. It cannot therefore be found, as the General Counsel urges, that the Newark load constituted only a pretext which Respondent seized upon. Dohollow's conduct had resulted in the appropriation of company stationery, in the use of company facilities, and finally in the use of the stationery in mailing out literature which seemed plainly directed at forming a new labor organization among Youngstown's employees to supplant the incumbent bargaining representative with whom Respondent was by statute required to bargain. If knowingly made, such contributions to a labor organization would plainly have left Respondent vulnerable to unfair labor practice charges of unlawful assistance and support under Section 8(a) (2) of the Act. Though Respondent's investigation was directed at discovering all who had participated in the actual mailing of the notices , Dohol- low's admissions were so guarded and limited that it was able to establish only that Dohollow was the recipient of the envelopes .6 Under all the circumstances I cannot find here, anymore than I did in Smith's case, that Respondent seized upon the incident as a pretext, and I find to the contrary that it discharged Dohollow for the reason it assigned. Theodore and Boano on the other hand were discharged for engaging in con- certed activities of the most common and conventional variety, i.e., the presentation of grievances. Both had been the object of Youngstown's bitterest expressions of animus, and Theodore had been previously discharged specifically for filing griev- ances with the Union and unfair labor practice charges with the Board. So far as Theodore's conduct at the grievance meeting was concerned, there was nothing about it which warranted the drastic action of discharge. Though a minor amount of heat was engendered by Theodore's attack on the bona fides of the assignment which Healey had made him and by his calling Healey a liar, Healey's testimony reflected nothing of resentment or antagonism on his part, nor was there evidence that Wolff took exception to it. Of course, Boano's conduct, when he injected himself loudly and profanely into the dispute, justified Wolff in calling a halt and in declaring the meeting at an end. It did not, however, justify his attempted forcible ejection of Boano and Theodore and also plainly did not justify the subsequent action of discharge. 6It is a reasonable assumption that Dohollow's failure during grievance meetings to divulge the identity of his confederates was due to apprehensions that they too would be discharged. THE YOUNGSTOWN CARTAGE COMPANY 323 The presentation of grievances through collective-bargaining representatives is an integral part of the bargaining process (see section 9(a)) and, like collective bar- gaining, is a form of concerted activities protected by section 7. Principles which the Board has established concerning conduct of employees during bargaining sessions are therefore applicable to and determinative of the present issue. Those principles are spelled out by the Board in The Bettcher Manufacturing Corporation, 76 NLRB 526, 527. Though not holding that an employee may never be discharged because of what he says or does in the course of a bargaining contract, the Board commented: Aline exists beyond which an employee may not with impunity go, but that line must be drawn "between cases where employees engaged in concerted activities exceed the bounds of lawful conduct 'in a moment of animal exuber- ance' (Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 286, 293) or in a manner not activated by improper motives, and those flagrant cases in which the misconduct is so violent or of such serious character as to render the employee unfit for further service." See also Bowman Transportation, Inc., 134 NLRB 1419, 4120, enfd. 314 F. 2d 497 (C.A. 5). The conduct of Theodore and Boano plainly did not merit discharge under those standards. Indeed, Respondent's subsequent reinstatement of them and its recog- nition of Boano as steward since his election in May, adequately attests that their conduct was not so serious as to render them unfit for further service. I therefore conclude and find on all the evidence that Respondent discharged Theodore and Boano because of their participation in protected concerted activities both at the grievance meeting on November 15 and on the earlier occasions involving their trip to Washington, their testimony before the grand jury and at the trial of William Wolff, Sr., and their filing of earlier grievances and charges; and that by such conduct Respondent Youngstown engaged in interference, restraint, and coercion of employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1). Because their discharges resulted from the presentation of grievances by Local 377 as their statutory bargaining representative, I conclude and find further that Respondent Youngstown thereby engaged in dis- crimination to discourage membership in the Union within the meaning of Section 8(a)(3) of the Act. There remains the issue whether the discharges were also violative of Section 8(a)(4). As previously found Respondent's motivation lay partly in the animus it entertained against them and other members of the committee because they had testified against William Wolff, Sr., before the grand jury and at the criminal trial, and specifically, in Theodore's case, because of his filing of charges with the Board. To the latter extent at least Theodore's discharge fell plainly within the proscription of Section 8(a) (4), and I so find. Though I conclude and find contrary to the General Counsel's contention that the grand jury investigation did not qualify'as a proceeding "under this Act" within the meaning of Section 8(a)(4),7 I find that the trial under the indictment so qualified. Thus the indictment was returned against William Wolff, Sr., under Section 186(a) of Title 29, United States Code, and against his codefendant, McMaster, under Section 186(b) of Title 29. As those sections are identical with Section 302(a) and (b) of the present Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959, I conclude and find that the giving of testi- mony at the trial under an indictment involving criminal violations of Section 302(a) and (b), fell within the literal language of Section 8(a)(4). Though there is no legislative history which 'shows a specific intent that Section 8(a)(4) extends to proceedings brought for violations of Section 302, the course of prior amendments to the Act permits no other conclusion. Thus Section 8(a) (4) has been continued in its present form without change since the enactment of the original Wagner Act. , In 1947 the adoption of the Taft-Hartley Act created in Section 8(b) an entirely new body of proscriptions against labor organizations. It has never been suggested that Section 8(a)(4) will not protect the filing of charges and the giving of testimony in proceedings under Section 8(b). There .is no greater reason to assume that proceedings under Section 302, as first added by the Taft-Hartley amendments and as augmented by the Landrum-Griffin bill_in 1959; will not similarly qualify for protection. 4 As I have found above that a violation of Section 8 (a) (1) 'resulted from discharges which were motivated in part by the grand jury appearances, the Recommended Order will reach and remedy the conduct in any event. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That the forum which conducts the proceeding is not the Board is, of course, not material if the testimony be given "under this Act." Thus the protection of Section 8(a)(4) would plainly extend to testimony given by employees in District Court actions under Section 10(j) and (1). Indeed, in view of the literal and unqualified language of Section 8(a)(4), there is not the slightest basis for con- cluding that Congress intended it to protect testimony given only under some sections of the Act but not under others. I therefore conclude and find that by discharging Boano and Theodore in part because they gave testimony in the criminal action brought in enforcement of Section 302 of the Act, Respondent engaged in an unfair labor practice under Section 8(a)(4). IV. THE REMEDY Having found that Respondent Youngstown engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which is conventionally ordered in such cases, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consoli- dated Industries, Inc., 108 NLRB 60, 61 and cases there cited, I shall recommend a broad cease-and-desist order. Some further discussion of remedies is necessary because the General Counsel contends that the reinstatement of Boano and Theodore as part of the settlement in the municipal court action was not unconditional. In Boano's case, the evidence showed to the contrary that he was reinstated with full seniority rights and that he is currently employed. Though Boano contested the first backpay settlement, he later received a further award as a result of the processing of his grievance, as envisioned in Youngstown's letter of February 25, 1963, and he has since collected the moneys and has signed a release. Thus, in Boano's case the unfair labor prac- tices resulting from his discharge have been fully remedied save for the posting of the customary notice to employees. In Theodore's case, subsequent developments established that his reinstatement was not accompanied with full restoration of his seniority rights. Thus, though it was plain from William Wolff, Sr.'s testimony that the Addendum did not affect Theodore's seniority rights under the area contract to "bump in" on company and fleet drivers following the sale of his equipment, Youngstown nevertheless denied his assertion of that right and regarded him as a "quit." I shall, therefore, order that Respondent Youngstown fully restore to Theodore all seniority rights to which he was entitled prior to February 1, 1961, that it place his name at the appropriate place on its terminal seniority lists for drivers of company equipment and for drivers of fleet-owned equipment, and that it offer him full reinstatement to such position as was available to him on March 5, 1963, or such as has since become available. I shall also order that Respondent Youngstown make Theodore whole in the usual manner for any loss of pay which he may have suffered since March 5, 1963, as a result of the discrimination against him. I shall also recommend that it forthwith make to Theodore a formal tender of the amount of the additional back- pay as awarded to him in the grievance proceeding which followed the former settlement in the municipal court action .8 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAw 1. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act as found in section E, 2, above, Respond- ent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 2. By discharging Eugene Theodore and Michael Boano because of their participa- tion in protected concerted activities, because they filed charges, and because they gave testimony before the grand jury and at the criminal trial of William Wolff, Sr., Respondent Youngstown engaged in further interference, restraint, and coercion and in further unfair labor practices proscribed by Section 8(a) (1). s Theodore's reinstatement, like Boano's, presumably left open the issue of additional backpay to be determined under the grievance machinery of the contract or in the present proceeding. They both won additional awards, and there is no suggestion in the record that the proceedings were not fairly and equitably conducted . Theodore's failure to re- ceive payment of the additional award was due solely to his-refusal to go to Youngstown's office. I - S.A.G.E., INC. OF HOUSTON 325 3. By discharging Theodore and Bono , and by thereafter failing unconditionally to reinstate Theodore, Respondent Youngstown engaged in discrimination to dis- courage membership in Local 377, thereby engaging in unfair labor practices proscribed by Section 8(a)(3). 4. By discharging Theodore and Boano because they filed charges and gave testimony under the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a) (4). 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 6. Respondent Youngstown did not engage in unfair labor practices by discharg- ing Howard Smith and Peter Dohollow. 7. Respondent Union did not engage in unfair labor practices as alleged. APPENDIX A ATTENTION-STEELIAULERS YOU NEED A GOOD UNION JOIN THE ORGANIZATION THAT 'S GOING TO HELP YOU JOIN THE FORMATION OF A NEW STEELHAULERS UNION THIS IS SOMETHING YOU NEED AND WANT * * * * STOP * GOING * BACKWARDS * 1. Stop rate and percentage cuts 2. Stop the hiring and bringing of new truckers in the steelhaul field,-to assure steady work 3. BETTER WORKING SECURITY 4. Better and honest representation Steelhauling is a large and active industry today, but the steelhauler is very badly dis- organized and subject to many bad labor practices. Stop being pushed around and join this organization which is starting in other area's and eventually will all be coor -dinated together. We can then affiliate with the teamster's as an organization on our terms , or affiliate with some other large labor organization. COME TO THE MEETING-SUNDAY-APRIL, 29TH. EAGLES HALL-CORNER OF-FIFTH & RAYEN AVE. 10:00 AM YOUNGSTOWN, OHIO S.A.G.E., Inc. of Houston and Its Licensees,' Joint Employers and Retail Clerks Union, Local No. 455, AFL-CIO, affiliated with Retail Clerks International Association, AFL-CIO, Peti- tioner. Case No. 23-RC-1984. March 10, 1964 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer 'The petition was amended to include the following licensees : S.A.G.E. Sewing Center ; Coastal Camera Company , Inc. ; Topsy's Catering Co., Inc. ; Joches, Inc. ; BAE Sales, Inc. ; Goldan Division of Iowa Paint Manufacturing Company, Inc. ; Berlan 's, Inc. of San Angelo ; Lack's Wholesale Distributors, Inc. ; Matt, Inc. ; Leased Departments of Texas, Inc. ; Linen Sales Company ; Murbil , Inc. ; Discount Records of Oklahoma, Inc. ; Hakone, Inc. ; Confectionery Cabinet Company , Sage Services, Ine. ; Saage Liquor, Inc. ; Tex-Calmont, Inc. ; Harold Lipp, d/b/a Lipp Cleaners ; and Gulf Enterprises, Inc. 146 NLRB No. 35.