Thurston Motor Lines, Inc.

THURSTON MOTOR LINES, INC. 1265 WE WILL, upon request, bargain collectively with Local 1459 Retail Clerks International Association, AFL-CIO, as exclusive bargaining agent of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment , and if an understanding is reached, embody such understanding in a signed agreement . The appropriate unit is: All employees employed at our Springfield , Massachusetts, store, exclusive ,of office clerical employees, professional employees, guards, ' and all super- visors as defined in Section 2 ( 11) of the Act., , WE WILL NOT in any like or similar manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist Local 1495, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activity for the purpose of col- lective 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 Section 8(a)(3), as guaranteed in Section 7 thereof. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization. ED'S FOODLAND OF SPRINGFIELD, INC., 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building , 24 School Street, Boston, Massachusetts 02108, Telephone 223-3 3 53. Thurston Motor Lines, Inc. and Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 26-CA-2078,2,3,4,5,2118,2133, and 2157. June 24,1966 DECISION AND ORDER On March 14, 1966, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceeding, finding that the Respond-, ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached trial Exam- iner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, and the Intervenor, Transportation Employees Association, filed exceptions and a supporting brief. The- General Counsel filed cross-'exceptions and a supporting brief, and the Intervenor filed a reply brief to the General Counsel' s cross- exceptions. 159 NLRB No. 120. 243-084-67-vol. 159-81 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 Trial Examiner's Decision, the exceptions, cross-exceptions, and briefs, and the entire record in the case, and hereby adopts the find- mgs,' conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 We hereby correct certain minor inadvertent errors appearing in the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMEN r OF THE CASE Upon charges filed on various dates between April 9 and July 21, 1965, by Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, referred to herein as the Teamsters or Local 327, the General Counsel issued a consolidated complaint on June 11, 1965, which was thereafter amended and consolidated with charges later filed. The amended consolidated complaint of July 23, 1965, as further amended at the hearing, alleges that Respondent violated Section 8(a)(1), (2), (3), (4), and (5) of the Act. Respondent denies the commission of any unfair labor practices. A hearing was held before Trial Examiner David S. Davidson in Nashville, Tennessee, on August 23 through 27, 1965. At the hearing Transportation Employ- ees Association (Independent), Local 101, hereinafter referred to as TEA, was permitted to intervene. At the close of the hearing oral argument was waived, and the parties were given leave to file briefs. Briefs were filed by the General Counsel and TEA but not by Respondent.' Upon the entire record in this case and from my observation of the witnesses and their demeanor while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent Thurston Motor Lines, Inc., is a North Carolina corporation with its principal office and place of business at Charlotte, North Carolina, and termi- nals at Nashville, Tennessee, and various other locations in Tennessee, North Carolina, South Carolina, and Virginia, where it is engaged in the business of inter- state transportation of motor freight. During the 12-month period preceding the issuance of the complaint, a representative period, in the course of its business Respondent received gross revenues in excess of $1 million for the motor trans- portation of freight between the States of Tennessee, North Carolina, South Caro- lina, and Virginia. I find, and Respondent admits, that at all times material herein Respondent is and has been an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. 'On November 1, 1965, the General Counsel filed a motion to correct record on which I have ruled by separate order. Also after the close of the hearing, pursuant to arrange- ments made at the hearing, the parties substituted a stipulation with 41 pages of attach- ments identified as General Counsel's Exhibit 27 for General Counsel's Exhibits 27(a) through (z) which have been withdrawn. THURSTON MOTOR LINES, INC. IT. THE LABOR ORGANIZATIONS INVOLVED 1267 Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Transportation Employees Association (Independent), Local 101 ate labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and the issues At one time, prior to 1963, the local drivers and dock employees at Respondent's Nashville terminal were represented by TEA. In 1963, an election was held at the terminal on a petition filed by the Teamsters, resulting in a majority vote for no union. From then until the time of the events involved herein, the Nashville employees were unrepresented. Early in 1965, a Teamster organizational campaign commenced among the approximately 17 drivers and dock employees at the Nashville terminal. On March 17, 1965, Local 327 sent Respondent a letter advising it that a majority of the drivers had requested Local 327 to represent them, and on March 22 Local 327 filed a representation petition in Case 26-RC-2357 seeking an election among Respondent's Nashville drivers and warehouse employees On April 8, 1965, drivers Thomas Larkins and Jackie McDole were discharged. On April 9 and 14, 1965, dockmen Thomas Mohon and James Screws were discharged. On April 15, a hearing was held on the representation petition at which TEA sought to intervene on the basis,of a showing-of interest among the Nashville employees. Glenn Poss was the only employee who attended or testified at the hearing. On April 28, 1965, Poss was discharged. On May 6, 1965, the Regional Director for Region 26 issued his decision and direction of election in the representation case. The election directed by the Regional Director was never held and presumably the petition was withdrawn or dismissed when the complaint herein issued. On June 16 and July 19, 1965, drivers Davis Robertson and Larry Storey were discharged. The principal contentions of the General Counsel, all denied by Respondent, are. (1) Both before and after the Teamsters demand for recognition and petition, Respondent through leadman Mike Walters, whose supervisory status is contested, and others, who are admitted supervisors, engaged in extensive interrogation, threats of reprisal, and other acts or interference, restraint, and coercion; (2) Respondent rendered unlawful aid and assistance to TEA by Walters' solicitation of TEA'memberships and attendance at a TEA meeting and by deduction of TEA dues from employees' pay; (3) during the month of April 1965, Respondent first withheld employment from part-time employee Philip Vaughn and then gave both Vaughn and another employee, Larry Storey, jobs as full-time drivers to induce them to forgo Teamsters membership and activity; (4) Respondent discharged the seven employees named in the preceding paragraph because of their union activities and membership and not because of various reasons which Respondent advanced to explain each of the discharges;2 (5) Respondent refused to recognize and bar- gain with Teamsters not because of a good-faith doubt of the Teamsters' majority, but for the purpose of gaining time to undermine and destroy its majority. B. Respondent's Nashville operations and the appropriate unit for collective bargaining Respondent's Nashville terminal is one of a number of terminals in its interstate system. Outbound freight is brought to the Nashville terminal by interlining carriers and by Respondent's local drivers employed at the Nashville terminal for over-the-road hauling to other of Respondent's terminals by Respondent's over- the-road trailers.3 Respondent's over-the-road trailers bring inbound freight from other terminals to Nashville for distribution by the local drivers to interlining carriers and consignees in the Nashville area. When not driving, the local drivers a Poss' discharge is also alleged to have been caused by his participation in the represen- tation hearing. . 3 There are no over-the-road drivers assigned to the Nashville terminal, and none are involved in this proceeding. 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work on the dock loading and unloading freight from Respondent's over-the-road trailers and the pickup trucks and trailers which they drive. At all times material there were approximately 14 local drivers at the Nashville terminal. Respondent also employed several dock or warehouse employees whose duties consisted of receiving, unloading, and 'loading freight. In addition, Respondent employed a mechanic, at times a mechanic's helper, clerical employees, salesmen, a terminal manager, an assistant terminal manager, and two leadmen, Mike Walters and Robert Lilley, whose duties, were largely confined to the terminal. It was stipulated at the hearing, as stipulated and found in the representation case, that an appropriate unit for purposes of collective bargaining with Respond- ent is: All truckdrivers and warehousemen employed at Respondent's Nashville, Tennessee, terminal, excluding office clerical employees, mechanics, salesmen, guards, and supervisors as defined in the Act. The parties agree that the manager, the acting manager who replaced him during the events here involved, and the assistant manager are supervisors and therefore excluded from the unit. They disagree as to the status of leadman Mike Walters. C. The status of -leadmen Walters and Lilley During the winter and spring of 1965 Walters worked at the terminal from 6 a.m. to about 3.30 p.m. each day, and Lilley worked from 9 p.m. until 6 a.m.4 Both Lilley and Walters were paid at the same hourly rate of pay as the 'drivers and one of the dock employees. They worked approximately the same number of hours and received the same fringe benefits as the other terminal employees. Neither Lilley nor Walters had authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees. However, each had duties and responsibilities which were different from the other employees with whom they worked, and the question to be decided is whether they responsibly directed other employees. In the representation case the Regional Director found, after a hearing,5 that both Lilley and Walters "responsibly direct, in a nonroutine manner, employees under them," and concluded that they were supervisors. Respondent filed a request for review of the Regional Director's decision in which it sought review of the finding with respect to Lilley but not with respect to Wal- ters.6 Respondent's request for review was denied. The General Counsel contends that Walters was a supervisor as found in the representation case, but that upon the basis of evidence discovered in the investiga- tion of the charges, Lilley was not a supervisor, contrary to the representation case findings. Respondent and TEA contend that neither Lilley nor Walters was a supervisor. , Although evidence was introduced without objection relating to the status of both Walters and Lilley, there is no contention that there was a change in the status of either after the representation case hearing. Also, there is no contention that the evidence presented before me with respect to their status was unavailable at the time of the representation hearing.? In these circumstances, there may well have been no cause to litigate further their status in this proceeding.8 I find it unnecessary, however, to rely on the Regional Director's findings, for the evidence adduced before me together with the evidence presented in the repre- sentation proceeding, which was made part of the record herein, supports the con- clusion that both Lilley and Walters were supervisors. * Lilley left Respondent's employ after most of the material' events in this proceeding had occurred. s Respondent, the Teamsters, and TEA were permitted to participate fully in the hear- ing, although TEA's motion for intervention in the representation proceeding was denied after the hearing by the Regional Director on the ground that its only showing of in- terest was the authorization card of Mike Walters who was found by the Regional Direc- tor to be a supervisor. 6 TEA filed an untimely request for review which was rejected by the Board. In It TEA sought to challenge the finding that Walters was a supervisor and the denial of its intervention. 7 Although the General Counsel based his position with respect to Lilley on evidence uncovered during the investigation of the unfair labor practices , he has not identified that evidence nor does the evidence presented here with respect to Lilley differ in any substantial way from that before the Regional Director in the representation case. 8 Rish Equipment Company, 150 NLRB 1185. See Trial Examiner Kessel's Decision, adopted therein and attached thereto, at 1193-94. THURSTON MOTOR LINES, INC.- 1269 Lilley arrived at the terminal each evening to start work as Assistant Terminal Manager Marler was preparing to leave. Their working hours overlapped by from 1 to 2 hours .9 After giving Lilley information and instructions with respect to incoming freight, the work to be done, rush shipments, and equipment to be uti- lized, Marler left for the night. Lilley was left with from one to three dock employ- ees to unload all the incoming freight from over-the-road trucks and reload it on local trucks for distribution in the Nashville area. Based upon what Marler told him and his experience and knowledge of the Nashville area, Lilley instructed the other employees in the performance of their work during the night, working along side of them and performing as much manual work as the others. Lilley exercised discretion in determining whether the night shift employees should work overtime. Lilley's opinion was sought by Howell and Marler as to the merits of night shift employees. As is set forth below, in connection with Screws' discharge, when Lilley was dissatisfied with the work of Screws on the night shift, he raised the matter with Manager Howell and recommended that he be transferred to the day shift. Screws was transferred to the day shift. There is no indication that any independent investigation was made of Lilley's evaluation of Screws, and indeed the fact that Lilley worked alone with the night dock crew made it almost essen- tial that Lilley's opinions and reports be given great weight in the evaluation of the night crew. In the morning Walters arrived at the terminal as Lilley was ready to leave. Lilley reported to him on the status of the work and the freight at the terminal and then left with the others in his crew. Walters remained alone at the terminal until approximately 8 o'clock when most of the local drivers arrived for work. Between 6 and 8 most of Walters' time was occupied with compiling and transmitting by telephone to Respondent's headquarters at Charlotte a morning report of tonnage handled and hours worked the previous day. When the drivers arrived, Walters assigned them to unload freight, if the unloading had not been completed by the night crew, or to take loads out for delivery. After the drivers left, Walters was again alone at the terminal for a period of time. Manager George Howell arrived at the terminal sometime after 8,10 but spent little time outside his office on the dock. From the time the drivers left to make their deliveries until 10 a.m., Walters was the only employee on the dock, and he received any freight brought to the terminal by connecting carriers. The two day- time dock employees arrived at 10 and 11. After their arrival, under Walters' direction and with occasional assistance from Walters, they received and loaded out for over-the-road shipment freight brought to the terminal from connecting carriers. As noted above, Assistant Terminal Manager Marler arrived at the termi- nal sometime during the late morning. Walters handled little freight but was responsible for a considerable amount of paperwork and took telephone calls from shippers who wanted freight picked up and from drivers calling in to find out where to go next to pick up freight. None- theless, during the period in the morning when the drivers reported ,for work, it was Walters who determined, whether they should leave immediately or remain at the dock to do dockwork first, assigned equipment and runs to them, and gave them other instructions which they followed." , When the workload required, Walters instructed employees to clock in early to start work, and Walters also asked employees to work overtime on other occa- sions.12 Walters corrected errors on timecards, wrote in time when cards were not punched,' and entered "no lunch" and initialed -cards for employees who worked 0 Although the record is snot entirely clear as to Marler's starting 'time; payroll records show that he worked-9 hours a day, and it appears that he came to work between 11' and 12 in the morning. - ' - 10 Howell was' manager until June 1, 1965, when ' he left Respondent's empl6y. On that date Newt Cathey, who had been a salesman at the terminal, became acting, terminal manager, a position he still ,held at the time of the hearing. 11 Walters instructed drivers and dockmen to wash out refrigerated equipment, `cut grass, fill Coke machines, and perform other duties around the terminal, as, well as to unload and deliver freight. " 120n one occasion; Walters called Vaughn, an employee, ` at home 'and, asked him to come into the terminal to work ,on Saturday, not his regular workday. During' the time Vaughn worked that day, Walters , but no ` other supervisor, vas'present at'the terminal. 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through their lunch periods.13 Walters gave employees permission to take time off without consulting with Marler or Howell. Like Lilley, Walters also reported to Marler and Howell from time to time with respect to the work performance of employees. Although Howell was present at the terminal for about three-fourths of Walters' shift, Howell's testimony makes it clear that Howell's duties at the terminal were administrative and confined him largely to the office. He had little opportunity or occasion to observe the work being done on the dock and in the yard.- While Marler spent more time on the dock and also gave instructions to drivers and dock employees while at the terminal, Marler's testimony indicates that when Walters was at the terminal, Marler was predominantly occupied with office duties, and the running of the dock was left to Walters. Thus, when asked how much of Walters' time was spent doing manual labor while Marler was present to see it, Marler replied: I couldn't give you-I don't know exactly. A lot of times I am in the office and maybe he is out on the dock, maybe supervising the dock work and I don't know exactly what he does, I mean as far as unloading and pushing carts and so forth. Nor was the direction of the clockwork so routine that it may be written off as not a responsible duty. As set forth more fully below in connection with the dis- charge of Screws and Motion, during the winter of 1965, Respondent's headquar- ters was concerned over loading errors and, damage claims throughout its system. Terminal managers in communications from headquarters to all terminals were admonished to take steps to reduce loading errors and claims, and in a headquarters communication to all terminal managers dated April 2, 1965, they were urged: Please spend every minute possible out on the dock supervising loading, handling and counting. The money to satisfy rising cost of equipment and labor will have to come from somewhere and the first place to look for this money will have to be claims. It is evident that Walters performed this important function during the time he was at the terminal each day.14 I conclude on the basis of all the evidence before me that both Walters and Lilley had authority responsibly to direct the work of employees with whom they worked and were supervisors within the meaning of the Act and at all times material herein. Accordingly, both are properly excluded from the unit found appropriate.15 D. The organization of the Nashville employees 1. The Teamsters' organizational efforts Early in 1965 the Nashville terminal employees began to sign authorization cards for the Teamsters. The cards were captioned "Application for Membership-Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America." They bore blanks for insertion of a local union number and the date,is 13 Howell and Marler testified that Walters always reported to them when he wrote "no lunch" on a card. It is clear, however, that Walters did not seek authorization from them but reported to them after the fact, as Howell testified , "because during the course of figuring the production reports or at the end of the week figuring the payrolls we would have to figure this out as to why these people did not have lunches " A bulletin was posted informing the employees that all "no lunch" entries had to be initialed by Howell, Marler, or their leadman. is In this connection I do not credit general testimony of Howell and Marler, adduced at least in part in response to leading questions , to the effect that Walters merely trans- mitted instructions emanating from them. As both admitted , neither kept close watch over the dock while Walters was present, they were not present for a significant period of time that Walters worked, and Walters exercised discretion in making assignments. is Frederickson Motor Express Corporation, 121 NLRB 32, 34-35; Dixie Ohio Express, Inc., 123 NLRB 1936. 16 Most of the cards signed by the Nashville terminal employees had no local union num- ber inserted in the appropriate blank. However, for purposes of the refusal -to-bargain allegation in the complaint they are sufficient to be considered as designations of the affiliated Local 327. A ci D Trucking Co., 137 NLRB 915, 921, and cases cited therein. THURSTON MOTOR LINES, INC. 1271 and designated "the above Union of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America " as "representative for purposes of collective bargaining" of the signer. By March 17, 1965 , 11 employees had signed the application cards.17 On March 17 Frank Reed, secretary treasurer of Local 327 , sent a letter to George Howell, manager of the Nashville terminal , stating: This is to advise that a majority of your truckdrivers have requested that Teamsters Local Union 327 represent them , for the purpose of negotiating wages and working conditions . We stand ready to submit our proof of repre- sentation to any impartial third party. We would like to meet with you in your Company's office at 10:00 A.M. Friday, March 19, 1965. If the time and place is not convenient , please con- tact the writer. On March 19 Howell received Reed's letter and called Reed's office. Reed was not there , and Howell left word that he could not meet with Reed at the time requested because of a prior commitment . Insofar as the record shows, Reed did not com- municate further with Howell thereafter. On March 22 Reed filed the representa- tion petition in Case 26-RC-2357 describing the unit sought as follows: "Included, Truck Drivers, All City Pickup & Delivery Truck Drivers , Checkers, Tow Motor Drivers and Dock employees ; Excluded, Office, clerical, supervisors, guards and all others as defined in the Act." . On March 23 , 1965, Howell replied to Reed's letter of March 17, acknowledging its receipt on March 19 and advising Reed of his attempt to contact Reed at that time. His letter concluded "The subject dealt with in your letter is of such nature that I have referred it to the home office of our Company in Charlotte , North Caro- lina. I will appreciate it, if you will take up any further matters relating to this with our home office." On March 29 Respondent's President Thurston wrote Reed in further reply to the March 17 letter, stating: You state that a majority of the drivers at our Nashville terminal `have requested' your Union to represent them . On the contrary, the circumstances coming to our attention indicate that a majority of these employees do not wish to be represented by your Union. We would like to say further that it is not clear to us that the `bargaining unit,' which seems to be suggested in your letter, would be appropriate. Your letter states that you are ready to submit `proof of representation.' It is our understanding that the National Labor Relations Board is the -agency which is set up to handle such matters . We note that since writing us, you have referred this matter to the Labor Board, and we assume that the Board will proceed with such steps as may be appropriate. Between the mailing of Reed's letter and Thurston's reply, two more employees signed Teamsters application cards and five signed Teamsters cards thereafter. In addition, leadman Robert Lilley signed a Teamsters card on May 22, 1965, and upon Lilley's solicitation, three employees signed cards on June 2 and 4 , 1965.18 During the week ending March 20 there were 17 employees , including 2 part-time employees, employed at the terminal . Of the 17, all but 3 or 4 were drivers.'9 There were no changes in the work force until April 3. '" One, Thomas Larkins, did not date his card . However, he testified that he signed the card around March 1, 1965, and that he was present when his brother Kenneth Larkins signed a card dated March 12, approximately 2 weeks later. I credit Larkins' testimony as to the time of the signing of his card. In any event, the NLRB date stamp on the card would establish that at the very latest it was signed prior to the morning of March 22. 19 There were three regular dock -employees. Philip Vaughn and Billy Williams were sequently destroyed. However, there is no evidence that Lilley participated in the solicita- tion of other employees to sign cards until June 2, 1965. 12 There were three regular dock employees. Philip Vaughn and Billy Williams were part-time employees who both drove and performed dockwork. Vaughn predominantly drove and Williams predominantly performed dockwork. Vaughn and Williams were the only part-time employees who appeared on the Nashville terminal payroll from January 1 until April 3. 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The TEA A number of signed TEA authorization- cards were received in evidence. How- ever, the record is far from clear as to when the authorization cards for TEA were signed by employees and when, if ever, TEA requested recognition by Respondent. For reasons not disclosed, none of the TEA authorizations were dated by those who signed them at the time they were signed. Instead, after they were transmitted to TEA President Davis, he filled in dates which he testified were as near as he could get to the dates on which they were signed. Davis testified that he started a cam- paign to obtain authorization cards from the Nashville employees because he had heard that the Teamsters were there. Initially Davis asked TEA Vice President Adams to ask Mike Walters to talk to the Nashville employees about TEA and ask them to sign authorization cards.20 . Subsequently, Davis made a similar request directly to Walters. The record does not establish when these conversations occurred. However, the earliest date inserted on any TEA authorization card appears on the card of Joe Grisham which Davis dated March 15, 1965. The next earliest date appears on Mike Walters' card which Davis dated March 20, 1965. Twelve additional cards were signed by the other employees and Lilley. The dates inserted by Davis on nine of the cards fell 'between April 1 and 14. The remain- ing three bear dates from April 26 to May 16. Nine of the cards were received in evidence on the basis of Walters' testimony that he was present at the time the cards were signed and saw them signed.' Walters however did not testify as to the dates on which any of these cards were signed or on which he began his organizational activities on behalf of TEA. As Walters and Davis conceded, Walters solicited the signatures on most of these cards, and he was present at the signing of others in addition to the nine he ideritified.21 Indeed, the record indicates that there were at most two cards, that of Lilley, also a leadman, and that of Richey, in which Wal- ters had no hand. As to Richey, Davis identified the card but testified that he was not present at its signing, and the record is silent as to how and when his card was procured. With few exceptions the record does establish that any of the TEA cards were signed on or even near the dates which are marked upon them. Jerry Cripps' card is dated April 2, 1965, although Respondent's payroll records show that he worked at the terminal for the first time on April 12, 1965. Although Davis testified that he had the 11 cards bearing dates prior to April 15 with him when he attended the representation hearing, he offered only one of them to the Hearing Officer at that time as proof of his interest and that card was the card of Walters, whose super- visory status was in dispute. Of those whose cards are dated before the representa- tion hearing only Williams testified in corroboration of the date on the card. Wil- liams testified that Walters solicited his signature on a TEA card shortly after he became a regular employee and that he believed the April 12 date on his card was correct. He became a regular employee on April 12. Storey testified that he was asked by Walters to sign a card several, but more than 2 or 3, days after he became a regular employee, which was on April 13. His card is dated April 14. No other employees who purportedly signed TEA cards before the hearing testified as to the time- or circumstances of their signing. In the light of the consistent irregular practice followed with respect to the dating of the cards; the failure of the record otherwise to establish the date on which any of the cards were signed other than Williams'; the failure of Davis to present any cards other than Walters' to support , his interest in the representation proceeding; the unexplained dating of Jerry Cripps' card before he began to work at the termi- nal; and Storey's uncontradicted testimony, I do not accept the dates which appear on the cards as accurately reflecting the dates on which they were signed, except in the case of Williams. It is also unclear-on the record whether and, if so, when, TEA demanded recogni- tion. Respondent's President Thurston testified that he had an oral demand for rec- ognition from TEA. According to Thurston, sometime in January or February, TEA President Davis told Thurston in his Charlotte office that "he represented our people or some of our people I don't remember exactly how he stated it in the 9o Walters-had been a member of TEA during the time that TEA represented the Nash- - - ville terminal; a Apart from the nine cards Walters identified , the uncontradicted testimony of Storey, Williams, and Vaughn established that Walters also solicited their TEA authorizations. THURSTON MOTOR LINES, INC. 1273 Nashville terminal" and asked for recognition. Thurston testified that sometime around the date of the Teamsters demand or shortly thereafter Davis came to him again and indicated that he had cards signed and' represented them. However, with respect to the second incident Thurston also testified, in an affirmative reply to a leading question by counsel for TEA, that the second conversation occurred between the date of his March 29 letter and the hearing on April 15 22 Davis, who testified, was not questioned as to whether or when he made a recognition demand of Thurs- ton nor was he asked to testify with respect to the substance of such demand, if any. Even if the dates on the TEA cards are accepted at face value, TEA had no inter- est in the Nashville terminal in January or February when Thurston testified Davis first spoke to him, and there is no evidence that at that time TEA had even com- menced its organizational campaign. In these circumstances and in the light of Thurston's vagueness as to the content of Davis' demand at that time and my find- ing below as to Thurston's testimony otherwise, I conclude that no claim of majority representation was' made by TEA at that time. Likewise, in view of Thurston's readiness to agree that the second TEA, demand was made between March 29 and April 15, the absence of any substantial TEA interest at Nashville until sometime in April, even accepting Davis' dates, and the absence of any firm evidence to establish an earlier date, I conclude that no TEA demand for recognition or majority claim was made until sometime after Thurston had written to the Teamsters on March 29. E. The alleged independent violations of Section 8(a) (1) 1. George Howell A number of the alleged independent violations of Section 8(a) (1) with respect to which evidence was received involved the conduct of Terminal Manager Howell. A number of employees testified with respect to incidents of interrogation, threats of reprisal, and other conduct violative of Section 8(a)(1) which they attributed to Terminal Manager Howell. Most of the incidents are undenied, and a few are either directly or indirectly admitted. In a few instances Howell attempted to explain away the conduct attributed to him but was unconvincing in his efforts. While Howell denied in general terms that he ever threatened that employees would be discharged or the terminal shut down if the Union came in, he did not testify as to his version of the conversations in which such threats were alleged to have occurred, nor did his general denial squarely meet most of the threats which were attributed to him. Howell admitted that he had talked with employees about the Union during the period of the union organizational campaign. His testimony was sparse in detail and when pressed for detail, Howell frequently pleaded inability to remember. For these reasons, the additional reasons set forth in connection with some of the specific incidents below, which are illustrative of Howell's testimonial deficiencies, as well as my observation of Howell while he testified, I do not credit Howell's few denials or explanations of the conduct attributed to him, unless other- wise specifically indicated, and I credit the testimony of the various employees involved in the incidents described below upon which I base the following findings with respect to Howell's conduct. a. In November 1964, Billy Williams was hired by Howell for employment at the Nashville terminal. Howell interviewed him twice before hiring him. At the sec- ond interview, Howell asked Williams how he felt about a union and told him he did not want a union at Thurston Motor Lines. William replied that he had quit a job paying a lot less than he would be making at Thurston if hired. A week later, Wil- liams was hired. b. On two occasions a month or more before the Teamsters made its demand for recognition, Howell asked employee Jackie McDole if anyone had approached him from the Teamsters about joining the Union. McDole replied that no one had. On the second occasion, Howell asked McDole to tell him if anyone talked to McDole about the Union or asked him to join it. McDole said that he would. ' c. Philip Vaughn started to work for Thurston Motor Lines as a part-time employee in February 1965. A week or two before he started work, 'he was inter- 22 According to Thurston , at the time ' of the second 'demand Davis indicated he had cards from a majority of the employees. Thurston could not recall whether Davis offered to show him cards. The earliest date on which TEA could have supported a claim of majority based on the dates Davis put on its cards and its contention that Walters and Lilley were not supervisors was April 14. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD viewed by Howell, who asked Vaughn what he thought about the Union and whether he knew anything about it. Vaughn said he knew nothing about the Union. How- ell told him that there was a union in the Company, the TEA, which he would be glad for Vaughn to join, although it was not compulsory. Howell told Vaughn that "they didn't want any part of the Teamsters." d. Early in March, around March 9, Howell called employee Thomas Larkins into his office . Howell asked him if he had heard anything about the Union. Lar- kins said that he had not. Howell asked if he was sure, and Larkins replied that he was. Howell told him that the men were acting rowdy as if something were going around . After Howell tested Larkins ' certainty once more, he told Larkins,he had better be sure because Larkins knew how Thurston felt. Howell added that if the Union got started, "you will be out looking for another job walking the street " 23 e. Early in March , Howell spoke to employee Thomas Greene in the outer office with no one else present . Howell asked Greene if anyone from the Teamsters organization had approached him about joining the Union . Greene replied nega- tively. Howell said "If they do, please let me know." f. Two weeks later Howell asked Greene into his office. Howell asked Greene how the other drivers were treating him. Greene volunteered in response that they never said anything to him about the Teamsters . Howell told him that if they did get the Teamsters started around the terminal , some of them would be fired, and that Thurston would close the terminal down before he would let the Union come in 24 g. Around the time Howell received the Teamsters demand for recognition, he called employee Bobby Freeman into the dispatch office. No one else was present. Howell asked Freeman "What's this I hear about the union ?" Freeman replied that he guessed whatever Howell heard was correct. Howell asked Freeman if he had signed up. Freeman replied that he had . Howell then asked "who all" was in it. Freeman ieplied that if Howell asked those who were involved they would tell him. Howell asked Freeman if he knew who started the Union. Freeman said he did not. Howell said that he was sorry and left.25 h. A day or two after Respondent was notified of the Teamsters ' claim, Howell summoned employee Glenn Poss to Howell 's office. Howell asked Poss if he knew anything about the union activities that were going on. Poss replied in the affirma- tive, and Howell asked him if he was a part of it. Poss again replied affirmatively, and Howell asked if there was any way that they could work something out to satisfy whatever problem was causing the employees to seek union representation. Poss told Howell that he knew of no way. Howell asked Poss who else was involved in it. When Poss replied that he did not care to comment about that, preferring to let each man speak for himself , Howell asked Poss whether he thought the men would be interested in TEA. Again Poss replied that he could not speak for the others, but that he was not interested in TEA. Howell then told Poss. "Mr. Thurston had rather die or close his doors than to sign a contract with the Team- sters Union." 23 These findings are based on the credited testimony of Kenneth Larkins Howell testi- fied in this connection that he had talked to Larkins about the Union in general conversa- tion as to what was going to happen . He was unable to recall what either said to the other except that he testified "I think that I made the statement that if they had a union in, that they would probably be out walking the street, because we wouldn 't have anything further to do." While differing slightly from Larkins' version, certainly absent further explanation , which was not supplied by Howell , his version of the conversation is equally coercive and substantially impairs the general denial that he threatened anyone with discharge or shut down of the terminal if the Union came in. 24 Howell was not questioned about his conversations with Greene but his general denial appears to have been directed at Greene's testimony . For reasons already stated, I credit Greene and discredit Howell's denial. 25These findings are based on the credited testimony of Freeman Howell admitted asking Freeman "what was going on here." According to Howell, when he arrived at the office that morning someone told him he had problems , and Howell asked Freeman, who was closest to the door, what was the matter, whereupon Freeman "blurted out" that he had joined the Teamsters Union, and Howell asked him "why before I knew what was happening." In the light of the substantial uncontradicted testimony of other deliberate interrogation by Howell , in addition to my general impressions as to Howell's credibility set forth above, I do not credit this explanation. THURSTON MOTOR LINES, INC. 1275 i. Approximately a week after the Teamsters demand,26 Howell asked McDole to come into his office and asked him why he was for the Union. McDole replied that he did not feel that he had any security at Thurston Motor Lines, that they had fired employees in the past for breaking mirrors and small things like that, and that he knew of one occasion when they fired a man just because he was for the Union. Howell told McDole it didn't matter whether or not the employees voted for a union because Thurston would never operate under a union contract and could not operate under that high scale Howell attempted to assure McDole he had a job as long as Howell was terminal manager, but McDole replied that Howell might not be terminal-manager in a month. • Howell then mentioned the Thurston profit-sharing plan and told McDole that if he were to reconsider being for the Union, he would be in a lot better shape to profit by it. McDole did, not express any change in attitude, and as McDole left Howell's office, Howell commented that McDole did not want his mind changed. j. Also around March 19, Howell called employee James Screws into his office. Howell showed Screws the letter he had received from Reed and asked Screws if he had anything to do with the letter. Screws replied that he had been at the meeting. Howell asked him why he had anything to do with it, and Screws replied that he "just thought that the union was a good thing." Howell asked Screws if he had been treated badly or anything like that. Screws replied that he had not. Howell said he wished Screws would just forget about having, anything to do with 'the' Union, and'that, if Screws' would do so, his name would not be mentioned, becausethere would be names mentioned as having had something to do with the Union. Screws made no reply, and Howell told him that if he should change his mind to let Howell know. k. On the afternoon of the day of the receipt of the Teamsters letter, a Friday, Howell called employee Charles Jackson into his office and asked him how every- thing was going and whether he knew "of anything that was going on." Jackson replied that he did not. A general conversation ensued The following Monday, shortly after Jackson arrived at work in the morning, Howell again called Jackson in his office and told him he had heard that 11 cards had been signed, and asked what Jackson knew about it. Jackson told him he knew nothing 27 1. Sometime after April 21, when Williams became a regular employee, Howell called Williams into Howell's office Howell asked Williams if anyone had approached him on the dock about the Union. Williams said that no one had. Howell told him that if anyone did, it would help for Williams to come tell him. Howell also asked him how he would vote if it came to a vote There is further evidence of conduct of Manager Howell to support the allega- tions of violation of Section 8(a)(1) which is set forth below in connection with allegations of violation of Section 8(a)(3), to which it also relates. However, the above evidence alone establishes clear and substantial violations of Section 8(a)( I) by the terminal manager. Howell told employees variously that they would be out walking the streets looking for another job if the Union got started; 28 that some of the employees would be fired if they got the Teamsters started; that Thurston would close the terminal down before he would let the Union in; 29 that Thurston would rather die or close his doors than sign a Teamsters contract; 30 that Thurston would never operate under a union contract and could not operate under that high a scale; that an employee would be in better shape to profit by Respondent's profit- sharing plan if he reconsidered being for the Teamsters; 31 and that there would be names of employees mentioned as having something to do with the Union. Each 25MCDole placed this incident at 2 to 3 weeks before his discharge which occurred on April S. He also testified that he started wearing a union button a week to 10 days after the Teamsters demand, and was wearing a button at the time of the conversation. 27 Howell denied that he ever told anyone that he had heard that 11 had signed Team- sters cards, but did not otherwise deny calling Jackson into his office or questioning him about the Union. I have considered the fact that Jackson is a stepson of Robertson, one of the dischargees , and a Teamsters adherent . However, Jackson impressed me generally as a straight-forward witness who confined his testimony to his best recollection of what had happened while Howell did not I credit Jackson. zs Paragraph d., supra. 29 Paragraph f., supra. 31 Paragraph h., supra. 31 Paragraph I. See footnote 96, infra. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these statements, either explicitly or implicitly, conveyed to employees the threat that reprisals would ensue if they continued to seek union representation. Each violated Section 8(a)(1) of the Act 32 Howell's requests to employees that they report on the union activities of other employees also violated Section 8(a)(1).33 Howell's extensive and systematic interrogation of employees as to their own membership, activity, and desires 34 and the activities and desires of other employ- ees 35 was accompanied variously by threats of reprisal, the statement that an employee (McDole) did not want his mind changed, inquiry as to whether there was any way the problems that bothered the employees could be worked out, and expres- sions which could be taken to indicate that the employees' union activities would be futile. In a number of instances the employees were called into Manager Howell's office where the interrogation ensued. Respondent's hostility to the Union was made abundantly clear. No legitimate reason was ever advanced by Howell to the employ- ees to justify his extensive inquiries. While some of the employees were forthright in their replies, others were evasive, unresponsive, or untruthful in their replies. Under these circumstances, I find that the interrogation of employees by Howell described above was coercive and violated Section 8(a)(1).36 2. Mike Walters A number of employees testified with respect to allegations of violation of Sec- tion 8(a) (1) by Leadman Mike Walters, found above to be a supervisor within the meaning of the Act. Although Walters appeared as a witness, he was not ques- tioned with respect to any of the incidents to which they testified and their testimony stands on the record uncontradicted. I credit the testimony of the various employ- ees involved in these incidents who testified with respect to them. However, most of these incidents involve violations similar to those found above and are at most cumu- lative. Accordingly, I find it unnecessary to consider the evidence relating to the alleged violations of Section 8(a)(1) by Walters except as it would expand upon the order warranted by the findings with respect to Howell. On two occasions, on March 18 to Thomas Larkins, and on April 10 to James Screws, Walters asserted knowledge as to the number of cards signed in behalf of the Teamsters. The General Counsel contends by this conduct Walters created the impression that the employees were under surveillance. I find that Walters' claims of knowledge as to the number of cards for the Teamsters did not violate Section 8(a)(1) of the Act. Walters made no claim of knowledge of the identity of the signers or any other aspect of the employees' union activities. Moreover, when Reed mailed the request for bargaining on March 17, a number of the Teamsters adherents began to wear Teamsters buttons at work, giving Walters some basis to estimate Teamsters strength. In these circumstances, I find Walters' remarks did not convey the impression that Respondent had been observing union activities beyond those which were publicly carried on. In mid-April, about a week after Larkins was discharged, during a conversation with Poss, Walters told Poss that he was "going to hire everyone of those good old country boys from up there in Carthage who will tell me they will vote against the Teamsters." Poss told Walters not to forget his statement as he might be asked to repeat it 37 Later in April, Walters told employee Greene that "he would have the biggest hand in winning the election, that he would flood the place with new men to do so." In both cases, Walters threatened that he would hire employees based on anti-Teamsters sympathies to vote against Teamsters and frustrate the desires of those who favored the Teamsters. This threat violated Section 8(a)(1) of the Act. 32 The threats set forth in paragraphs h and I may be alternatively construed as threats that even if the employees chose a union to represent them , Respondent would never enter into an agreement, equally violative of the Act. N.L.R.B. v. Marden Mfg. Co., 217 F.2d 567 (C.A. 5), enfg. as modified 106 NLRB 1335 , cert. denied 348 U.S. 981. 33 Paragraphs b, e, and 1. Thurston Motor Linea, Ino., 149 NLRB 1368. S4 Paragraphs a; c, g, h, 1, and J. ss Paragraphs b, d, e, g, h, k, and 1. 85N.L.R.B. v. Zimnom Coal Co., 336 F.2d 516, 517 (C.A. 6) ; United Mineral & Chemical Corporation, 155 NLRB 1390; Koch Engineering Company, Inc., 155 NLRB 1272. 37 Walters testified that he did not believe he used the exact words quoted by Poss, add- ing however "I might have said I've got a bunch of boys on from up around where I live and I might have said-I just don't remember the exact words." I credit Poss. THUURSTON MOTOR LINES, INC. 1277 3. Carl Marler The only allegations of violation of Section 8(a) (1) by Marler are three instances of interrogation supported by testimony of Vaughn, Freeman, and Poss. Marler denied interrogating employees about their union activities. As further findings of interrogation would be cumulative and as the incidents attributed to Marler are at most ambiguous, I find it unnecessary to consider further the allegations based upon Marler's conduct. 4. D. J. Thurston, Jr. Between April 1 and the end of June, Respondent's President Thurston admittedly spoke to a number of employees both individually and in groups about the pros and cons of having a union at the Nashville terminal. Around June 1, at the time Howell left the Company and Cathey took over as acting terminal manager, during the course of a lengthy conversation with employee Jackson, Thurston stated that at the Greensboro terminal the "Union had been voted in 2 years ago and all they had done up there since was fight among themselves and that they hadn't had a raise since." In a similar conversation with employee Wil- liams, Thurston mentioned he had dealings with the Union in Greensboro and it did not work out for the good of the men.38 I find, as alleged, that the remark by Thurston to Jackson with respect to Greens- boro constituted an implied threat that if the employees of the Nashville terminal selected representation by the Teamsters they would not receive raises at least for a long time thereafter, especially in the context of other threats by Howell to the employees indicating the futility of selecting the Teamsters to represent them.39 F. The alleged assistance to TEA As set forth in section D, 2, above, Leadman Mike Walters solicited- or witnessed the signature of practically all of 'the cards collected by TEA- during the organizing campaign at the Nashville terminal. Walters' activities in this'regard were testified to by several employees and were freely admitted by both Walters and Davis, the president of TEA. Walters' activity in this regard appears to have- been carried on openly on the dock and around the terminal. In one instance, involving employee Williams a few days before the hearing in the representation case, Manager Howell' suggested that Walters take Williams' into the salesroom to talk to him after Walters had started to talk to him in behalf of TEA. - - On April 26, TEA held a meeting at a restaurant at which dinner was served and paid for by TEA. All the employees who had signed TEA authorization cards and two others, Vaughn and Matthews, who had not signed before that date, were invited to the meeting by Walters. Walters also attended the meeting. At the meet- ing Vaughn and Matthews were asked to sign cards and signed them. Walters sat with TEA President Davis 'and its vice president 'at the head of the table, and Wal- ters solicited Vaughn's signature. However most of the talking at the meeting was done by Davis. Walters" comments consisted mainly of occasional indications of ' agreement with what Davis said. On June 12 and again 'on July 3, ' 1965, -TEA dues in the amount of $3 were deducted from the paychecks of those who had signed TEA cards and of Roger Grisham who had not. According to TEA President Davis the dues checkoff was the result of an erroneous inclusion of a list of Nashville employees names on a list of employees whose dues were 'to be checked off at the Memphis, Charlotte, and 88Thurston did not deny making these statements but testified that all his remarks were directed at unionization in general . However, Walters, to whom Thurston also similarly talked, testified that Thurston's remarks were explicitly directed 'against the Teamsters. Board records show that the Teamsters were certified as representative of the Greensboro employees on August 5, 1963. Also at the time of Thurston's talk with Jackson, TEA was out of the race at Nashville as a result of the Regional Director' s denial of TEA's motion to intervene in the representation case. I do not credit Thurston and find that his remarks to Jackson were directed against representation by the Teamsters and were so understood by Jackson. _ 19 I find it unnecessary to consider a further allegation, supported by testimony, of Wil- liams but denied by Thurston, that Thurston interrogated employees about their union' activities, as this incident is at most cumulative. ' 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knoxville terminals which TEA represented. The list was submitted to Respondent and accepted by its payroll department, apparently without question. According to Davis he did not learn of the error until after the second deduction had occurred. No checkoff authorizations were submitted to the Company by TEA for the Nash- ville employees, and there was no contract in effect at the time of the checkoff. On July 19, 1965, the General Counsel alleged in an amendment to the com- plaint that the deduction of the TEA dues from its employees' wages violated the Act. On August 10, 1965, Thurston sent a letter to each of the employees from' whose wages dues had been deducted, expressing regret that the deduction had been made in error and explaining that the list submitted by TEA had gone through the payroll department without being caught or questioned. The final paragraph of the letter stated: Since this deduction was the result of error within our Company we will be happy to refund you any deduction that has been made if you will signify your wishes in the matter. This letter is being sent to you in duplicate so that you may return one copy to this Company, on which you may show the amount 'which has been deducted and indicated [sic] your desire that it be refunded to you, if that is your wish. Insofar as the record shows only one employee, Storey, following his discharge, requested a refund of the deducted dues.40 I find that the activities of Walters, whom I have found to be a supervisor, in soliciting employees to sign TEA cards, in soliciting their attendance at the April 26 TEA dinner meeting, in attending and participating in that meeting as set forth above, constituted unlawful assistance to TEA in violation of Section 8(a)(2). Sinko Manufacturing and Tool Company, 149 NLRB 201; Meyers Bros. of Missouri, Inc., 151 NLRB 889. Likewise the deduction of TEA dues from employees' wages in the absence of any agreement between Respondent and TEA constituted a violation of the Act.41 Whether committed by inadvertence or design, the effect upon employees of such assistance is the same, particularly in view of the other acts of assistance to TEA and the other unfair labor practices found herein. Respondent's offer of refund upon request was clearly insufficient to negate or dissipate the effects of the unlawful deduction.42 The General Counsel also contends that Respondent's conduct which is alleged to violate Section 8(a)(1), (3), and (4) of the Act also violated Section 8(a)(2) because^it constituted unlawful, assistance, and support to TEA. As I find elsewhere herein kespondent engaged in extensive violation of Section'8(a)(1) and '(3).' It is true that the record indicates that the Teamsters Union was not mentioned by name in connection with many of the incidents found to violate Section 8(a) (1) and Respondent at Nashville and elsewhere in the past opposed TEA as well as the Teamsters.43 However the timing of the incidents; Walters' open pro-TEA activi- ties, Howell's specification of the Teamsters on a number of instances as the object of Respondent's concern; Howell's statement to Vaughn that he would be glad if Vaughn joined TEA; Howell's inquiry of Poss as to whether he thought the employ- ees would be interested in TEA; and the fact that those found below to have been discriminated against were Teamsters adherents, persuade me that Respondent's unfair labor practices at the Nashville terminal in 1965 were directed at Teamsters activity and not at all union activity generally and equally.44 Accordingly, I find that the conduct elsewhere found to violate Section 8(a) (1) and (3)' herein also violated Section 8(a)(2) of the Act. Kiekhaefer Corporation, 127 NLRB 1381, enfd. as mod. 292 F.2d 130 (C.A. 7); Campco Plastics Company, 142 NLRB 1272. 40 Other than the letter, there is no evidence in the record to explain the action of Respondent's payroll department in making the deductions. 41 Mstco Undergarment Co., Inc., 106 NLRB 767, 769, enfd 212 F.2d 801 (C A. 3). 47 See Consolidated Edison Co. of New York, Inc v N L.R.B., 305 U.S 197, 320; N L R.B. v. Mexia Textile Mills, Inc., 339 U.S. 563, 567. In the light of the circumstances set forth above, the remedy provided herein shall include the reinibur,ement of employees for any dues unlawfully deducted from their wages, with interest at the rate of 6 percent per annum. Hampton Merchants Association, et at, 151 NLRB 1307: 8inbo Mannfac- turing and Tool Company, 154 NLRB 1474. 43 See Thurston Motor Lines, Inc , 149 NLRB 1368. 44 See footnote 38, supra. THURSTON MOTOR LINES, INC. 1279 G The layoff of Vaughn and the transfers of Vaughn and Storey 1. The facts The complaint alleges that employee Philip Vaughn was laid off for 2 to 3 days between March 31 and April 6, 1965, to discourage him from engaging in Team- sters activity and that Vaughn was thereafter granted additional part-time employ- ment and made a full-time employee to induce him to forgo Teamsters activity. The complaint alleges that employee Larry Storey was transferred from a bill clerk's job to a tull-time driving job for similar reasons.45 a. Philip Vaughn Vaughn was hired by Howell as a part-time employee in February, 1965, after Poss, an active Teamsters adherent, had spoken to both Howell and Walters on Vaughn's behalf. As I have found above, at the time Vaughn was hired, Howell questioned him as to his views about a union and indicated that he would be glad if Vaughn joined TEA, but that Respondent did not want any part of the Team- sters Union Vaughn started to work part-time during the last week in February. From then until Tuesday, March 30, Vaughn worked at least 3 or 4 days each week, including every Saturday. Until March 30, Vaughn rode to work with employees Poss and James Cripps, who lived in the same town as Vaughn. James Cripps, like Poss, was an early Teamsters adherent. During that period Vaughn learned when he was needed for work by telephoning in to the terminal, by requests when at work to come back the next day, or by messages sent to him with Cripps and Poss. On March 30, while Vaughn was at work, Howell called Vaughn into his office to talk to hint about the Union. Howell asked Vaughn if he would cross a picket line, if necessary, to work. Vaughn replied that if he went for the Company, he guessed he would have to. Howell asked Vaughn what he would do if it came to It vote, and Vaughn replied he would probably vote against the Union. Howell told Vaughn he would give him a week to think about the matter and their con- versation ended Following this conversation, Vaughn was not called to work until the end of the following week. On Tuesday, April 7, Vaughn telephoned Howell and asked him why he had not been called to work and what the trouble was. After indicat- ing that Vaughn's work had been satisfactory, Howell asked Vaughn if he remem- bered what they had talked about the other day. Vaughn replied that he did. Howell ascertained that Vaughn had money due him and suggested that he come to the terminal the next day to pick up his money and talk further about his employment, adding, "That is something you can't talk about over the telephone." The next day Vaughn went to Howell's office. Howell repeated the questions he had asked on March 30, and Vaughn answered much as he had at that time, adding that he thought he had already explained his feelings to Howell and that he did not know anything else that would make it any plainer than it was According to Vaughn, Howell then said, "Philip, I don't know about you" and then after thinking for a few minutes Howell said , "I am going to give you another opportu- nity and bring you back in and work you some more ." In the course of this con- versation, Howell pointed out to Vaughn that he had been riding with Cripps and Poss and thai they might try to influence him. Vaughn replied that everyone was entitled to his own opinion. Howell told -Vaughn- not to ride with Cripps or Poss any mote 46 45 The grant of full-time employment to Vaughn and the transfer of Storey are alleged as violations of Section 8(a)(1) only. 46 The findings as to the three conversations between Vaughn and Howell are based on Vaughn's credited testimony. Howell did not deny that any of the conversations occurred and testified only in fragmentary fashion with respect to them. When asked without reference to any specific conversation whether lie asked Vaughn how he would vote or whether he would stick with him , Howell replied , "I don't recall the complete con, oorsa- tion the day that he came into the office , sir, whether I asked him that or not . I doubt it that I did." Howell's testimony with respect to his discussion of carpooling with Vaughn was internally inconsistent, vague, and implausible For these reasons , as well as niy im- pressions of Howell as a witness set forth above, I do not credit his testimony with respect to 'Vaughn. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next day, April 9, Vaughn was again called to work and it appears that he worked daily thereafter. However, Vaughn did not ride to work again with Poss or Cripps According to Respondent's records, Vaughn became a regular employee on April 12 47 Although Vaughn signed a Teamsters card on that day, there is no evidence that he gave any outward indication of Teamsters support. However, as set forth above, on April 26 he attended the TEA dinner meeting at Walters' request and there signed a TEA card in Walters' presence. Respondent's payroll records show that from January 1 until March 30, 1965, Vaughn and employee Billy Williams were the only part-time employees used at the terminal. According to Respondent's payroll, the first time in 1965 that any other part-time employee was employed was April 3, the Saturday following the last day Vaughn worked in March. On that day Richey first appeared as a part- time employee and worked 7 hours on the dock.48 During the next week Richey and another part-time employee Agee worked on Monday, Tuesday, Wednesday, Friday, and Saturday, April 5, 6, 7, 9, and 10.49 Williams worked Monday through Friday that week Vaughn did not work between Tuesday, March 30 and Friday, April 9. There was no difference between the duties performed by the part-time employees between March 30 and April 9 and those normally performed by Vaughn before March 30.50 b. Larry Storey Larry Storey started to work for Respondent on November 9, 1964 , as a billing clerk in the Nashville terminal office . Early in 1965, Storey spoke to both Marler and Howell about his desire to ' drive a truck . Howell told him at that time that he did not believe that Storey would be interested and that it would not be good for him. Howell attempted to persuade Storey that he had a better future in the office. Storey told him that he was nonetheless interested. Two or three months later, Howell called Storey to his office and asked him if he still was interested in driving and working on the dock . Storey replied that he was, adding that he knew what was going on. Howell replied that it was no big secret and asked Storey how he felt about it. As the subsequent conversation makes clear, both Storey and Howell were referring to the Teamsters campaign. When interrogation failed to product a commital reply from Storey , Howell said that if that was the way Storey felt about it, he was sorry he had ever said anything about it. Storey asked Howell to wait because Storey had not had time to think about it. Howell then asked "If I move you out on the dock, will you be for the union or the Company." Storey replied that he would like to go out on the dock for the money and would be for the Company . Howell asked how he could trust him. Storey replied that Howell would have to trust him. Storey was made a driver on April 13. During the 4 to 6 weeks before his move, Howell asked Storey on several other occasions if he could trust Storey if he moved him to the dock. Each time Storey replied that he could. On one occasion Howell told Storey that if he moved him out on the dock and Storey signed up with the Teamsters , Howell could "pretty well find it out" and would fire him 5i 2. Concluding findings On the facts found above it is clear that between March 30 and April 9 there was work available to which Respondent failed to call Vaughn and called employees who had not worked for Respondent previously during 1965. Indeed, the utiliza- tion of part-time employees during that period of time appears to have been greater rather than less than usual, and in view of the consistent utilization of Vaughn for such part-time work since he came on the payroll in February, one would normally 47 Vaughn testified that he became a regular employee around mid-April, possibly a week after his return to -work. While unimportant, the slight discrepancy between Vaughn's testimony and Respondent's records is perhaps explained by the fact that Vaughn was paid out of petty cash for the week ending April 17, and payment from , petty cash was the method used to pay part-time employees. 18 Howell's testimony, that no part-time employee worked on April 3 is specifically con- tradicted by the stipulation based on Respondent's payroll records. *s There is testimony that one of the two worked part-time for Respondent at an earlier period of time, evidently before January 1, 1965. w It appears from the pay records that Williams, who had. previously worked mostly on the dock, drove during the week Vaughn was off and Richey and Agee worked on the dock. 51 Storey's testimony as to the events leading up to his transfer is uncontradicted and credited. THURSTON MOTOR LINES , INC., '1281 expect that he would have been called for it. In view of Vaughn's conversations with Howell at the time he was hired, his conversations with Howell before, during, and after the period in question ,- there is no doubt that the failure to call Vaughn, for which there is otherwise no satisfactory explanation , was motivated by Howell's suspicions as to Vaughn's union sympathies and intended to discourage those sym- pathies. When Vaughn was interrogated on March 30, his response failed to reas- sure Howell and he was explicitly given a week to think about it. As became clear, the week of thought was not to be interrupted by the conflicting demands of work. When Vaughn returned to talk to Howell again, after further interrogation How- ell was sufficiently satisfied to bring Vaughn back to work, but on condition that he not carpool with Poss and Cripps, a condition for which there is also no satisfac- tory explanation other than union considerations . Vaughn acquiesced, abided by the condition, was given work and almost immediately made a regular , employee when openings occurred because of the discharges of Larkins , McDole, and Mohon. I find that Howell discriminatorily laid off Vaughn and refused to call him to avail- able part-time work between March 30 and April 9 in order to discourage sympathy and support for the Teamsters. I find further that Howell's elevation of Vaughn to regular employment status a few days after the discriminatory layoff ended, although in accord with what appears to have been the normal practice of elevating part-time employees to full-time status when openings arose, was based on " his indi- cation to Howell 's satisfaction that he would not support the Teamsters and designed both to induce him to continue his adherence to the views he expressed to Howell and to interfere with the efforts of the employees to gain representation by the Teamsters. The evidence also establishes that Storey 's transfer from the office to driving was similarly motivated . When Storey first sought transfer , early in 1965, Howell sought to discourage him., But when the Teamsters campaign became a matter of concern, Howell broached the matter of transfer to Storey , at the same time seek- ing assurances from Storey that he would be for the Company and against the Teamsters . For several weeks before the transfer occurred Howell several times asked Storey if he could trust Storey, threatening on one occasion that he would fire Stoiey it he transferred Storey to the dock and then discovered that Storey signed up with , Teamsters . There is no evidence to rebut the clear inference that Howell decided to grant Storey 's request for transfer after a sufficient period of preparation for the same reason that-he made Vaughn a full-time employee. I conclude that Vaughn's layoff violated Section 8 (a)(3) of the Act and that the assignment of Vaughn and Storey as full-time drivers violated Section 8(a)(1) as alleged in the complaint. I also find that the Howell's interrogation and threats directed at Vaughn and Storey constitute additional independent violations of Section 8(a)(1), similar to those found in section E, 1, above. In addition, Howell's statement to Storey that if Storey-signed up with the Teamsters , Howell could find out, created an impression of surveillance further violating Section 8 ( a)(1). H. The discharges 1. The facts a. Thomas Larkins Thomas Larkins signed a Teamsters application card around March 1" and, started to wear a Teamsters button in the latter part of March. Howell clearly knew of his Teamsters support. Sometime before April 1, Larkins asked Howell about getting his shift changed . Howell replied that it was possible and then asked Larkins what was the trouble with the men and why they wanted the Union. Larkins replied that the men, including Larkins, felt insecure and wanted job security. Howell told him that their jobs were as secure as if they had the Union. Larkins continued to express doubt and concern over their security , and Howell continued to attempt to assure Larkins that his job was secure. Howell' also mentioned the Company's profit-sharing plan and pointed out that in a year Larkins would be eligible to draw from it it he wanted to. Larkins replied that he did not believe Thurston would let a man stay long enough to draw any of that and that he had seen men with long service that were fired for little,or no reason at all. At the conclusion of the conversation Howell told. Larkins to think about it and let him know how -he, felt: , Howell also at that point agreed to change Larkins' 243-084=67=vol. 1'59-82 i ` ' 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift. There is no evidence that Larkins and Howell talked further about the Union thereafter. As the drivers were aware, Respondent employed safety men who occasionally patrolled in unmarked cars highways over which Respondent's trucks traveled in connection with Respondent's efforts to enforce speed and safety regulations. Driv- ers were not notified of such patrols, but to the contrary, Respondent took precau- tions to conceal the presence of the patrols from drivers in the patrolled area. On March 23, 1965, the same day that Howell wrote Reed to inform him that the bargaining request had been referred to Charlotte, Respondent's President Thurston sent a lengthy letter to Respondent's safety director, Cecil Lamm, marked "Personal & Confidential." In it Thurston stated that he had heard reports of speeding and of drivers stopping at undesirable locations on Respondent 's west-end operations. In its three pages Thurston set forth a descriptive summary of Respondent's problems aris- ing from these practices and its past efforts to curb them. In the course of the let- ter, Thurston stated, "You also know that in an effort to help this situation along we have the governors set on these trucks so that the driver cannot quite reach 60 miles an hour unless he tampers with his governor." In conclusion Thurston urged Lamm to patrol the western end of Respondent's routes as soon as possible. Lamm replied in writing on March 25, indicating his intention to assign his eastern division driver-trainer, Richard Leapley, to the western-end patrol work. On April 1, Larkins reported for work, and Walters instructed him to take the ped- dle run to Smithville and Carthage, Tennessee. Walters also instructed him to exchange the tractor then attached to the loaded trailer for tractor 248 which Larkins regularly drove. While Larkins was not regularly assigned to peddle runs, he was assigned to them on occasion.52 On April 1, Leapley was in the Nashville area on a patrol assignment. While parked at a drive-in to eat lunch, Leapley testified that he saw Larkins' truck headed west at what appeared to be a fast i ate of speed. Leapley pulled out and followed the truck 53 According to Leapley, he pulled up to Larkins after a while, got close to the truck, and followed it for from 10 to 15 miles. Leapley testified that while he followed the truck, a slow moving vehicle got in front of the truck as it started up a hill. According to Leapley, while still on the crest of the hill and while the yellow line indicated a no-passing zone, the truck pulled around the slow moving vehicle and passed it. On another occasion a Tennessee highway patrol car pulled onto the highway behind the truck, passed it, and went out of sight. According to Leapley, on these occasions Larkins slowed down to the legal speed limit, but otherwise dur- ing most of the time Larkins maintained a speed of 60 miles an hour, fluctuating at times between 60 and 62 or 63 miles an hour. Leapley testified that he made out a report on a company form at the time of his observation and turned it in to the safety director at Respondent's Charlotte offices on his return to Charlotte. Leapley was not consulted further with respect to the matter. Leapley's report consisted of a mimeographed form which Leapley completed and signed. It identified the home terminal and numbers of the trailer and tractor.54 It identified the place where the truck was observed, the direction in which it was mov- ing, road surface and width. As completed by Leapley, the report indicated "Speed 60 Legal 50," as well as dry road, medium traffic, clear weather, the distance over which Leapley observed the tractor-trailer, and the time of observation. Under a section headed "Violation" four blanks were filled in. These were: Too fast for conditions__________________________ yes Following too close_____________________________ yes Improper passing_______________________________ crossing yellow line Exceeding legal speed---------------------------- company At the bottom under "Remarks," the following was written: This driver was following to [sic] close to other traffic as well as myself. Highway patrolman came up behind this unit and truck slowed down after patrolman passed him he went back up in speed to a top speed of 60 miles per hour. 53 Unlike city deliveries, peddle runs require some sustained highway driving. 53 Leapley testified that he did not know the identity of the driver at the time, but recorded the numbers of the tractor and trailer from which the driver 's identity was deter- mined after his report was submitted u The record does not explain how Leapley ascertained the home terminal of the tractor and trailer nor how he ascertained the number of the tractor while following it from the rear. THURSTON MOTOR LINES, INC. 1283 Larkins was informed of Leapley's report for the first time on April 8. On that morning Larkins was called into Howell's office. Howell prefaced his remarks with the comment, "You all have got me in a mess here . I should have stayed in bed this morning." Howell then informed Larkins that Leapley had reported that he had observed Larkins over a 17-mile stretch running at 60 miles an hour, passing on yellow lines, running too fast for the condition of the road, and following too closely to automobiles. Larkins protested to Howell "George, I don't pass on yellow lines, and the only time that I would be close to an automobile would be to pass them, and that I was not running over 50 miles an hour." Howell told Larkins that he had no choice and would have to let Larkins go. As Larkins left, he told Howell there were no hard feelings 55 Respondent's rules for drivers established the company speed limit at 50 miles an hour or less if required by the condition of the road. A manual furnished terminal managers provided that mandatory discharge would ensue for several offenses, including "Sustained speeds in Company trucks of 55 miles per hour or over." The evidence establishes further that drivers were per- mitted to go up to 55 miles an hour temporarily in order to pass other vehicles but that the limit was otherwise 50 miles an hour and that drivers who drove at sus- tained speeds of 55 miles an hour or more were subject to immediate discharge 56 According to Leapley, the legal speed limit where he observed Larkins was also 50 miles per hour for trucks. b. Jackie McDole McDole was hired by Howell to work at the Nashville terminal as a truckdriver in January 1964. At that time, McDole volunteered to Howell that he had been in a union before. Howell replied that this fact would not have anything to do with his working at Thurston as long as he had nothing to do with it while he was there. Howell added that McDole would be fired if the Union came up and McDole had any part in it 57 As set forth in paragraph E, 1, b, above, a month or more before the Teamsters' request to bargain, Howell questioned McDole as to whether he had been asked to join the Teamsters and asked McDole to inform him if McDole was approached. McDole, who was among the earliest of the signers of Teamsters cards, started to wear a Teamsters button after the request for recognition. Shortly thereafter, as set forth in paragraphs E, 1, i, above, Howell called McDole into his office and questioned him as to why he was for the Union. Howell sought to refute the reasons stated by McDole and reassure him that his job was secure. When McDole indicated that he was not persuaded by Howell's assurances, Howell told McDole he would be in a lot better shape to benefit from Respondent's profit-sharing plan if ii These findings are based on Larkins' uncontradicted testimony which is credited in this regard Although Larkins did not claim that he inadvertently sped because of a defective tachograph and conceded that a defective tachograph would have induced him to drive more slowly than otherwise , he testified that the tachograph needle on tractor 248 sometimes failed to show the appropriate speed after shifting into high fifth gear, that he had talked to Howell, Marler, Guynn , and Walters about it, and that he had written it up six to eight times as defective on forms provided by the Company for that purpose . Marler testified that he did not recall talking to Larkins about the tachograph„ and Howell, Guynn, and Walters, all of whom testified, were not asked whether Larkins discussed it with them. However, the forms on which equipment,,condition, and defects were, reported :for the 6 months prior to Larkins' discharge fail to show any complaint about the tachograph on tractor 248 although other defects were noted They show also that each morning be- fore leaving the terminal, drivers indicated that the speedometer, for which the tachograph was a substitute, was in working order. When mechanic Guynn checked the tachograph after Larkins' discharge , he found nothing wrong with it. In these circumstances, al- though I have otherwise credited Larkins, I do not credit his testimony that he had written up the tachograph as defective. 69 There is also testimony that a further refinement, communicated to the drivers in a letter after Larkins' discharge, required that those who reached 60 miles an hour or more be dismissed without regard to any other factors. The testimony is not entirely clear as to the existence of this refinement of the rule before Larkins' discharge , and, as I view the facts, it is not material herein. 87 These findings are based on the credited testimony of DlcDole and are considered only as background "to shed light on the true character of matters occurring within the lim- -stations period." Local Lodge No. 1424, 1AM v. N L.R.B., 362 U.S. 411, 416-417. 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he were to reconsider being for the Union, and also said that Thurston would never operate under a union contract and could not operate under that high a scale. As McDole left Howell s office, Howell asserted that McDole did not want his mind changed. On. April 8, while making deliveries, McDole passed the Mid-Tennessee Toy House, which was operated by a Mr. Don Shelton and his wife. McDole occasion- ally stopped there to make deliveries, although on that day he had nothing to deliver there. As he passed the warehouse, McDole observed that there were no lights on and that Mrs. Shelton's car was not there. When he later stopped on his lunch hour, he called the Shelton home and spoke to Mrs. Shelton. He told her he had not seen her car at the Sheltons' place of business and asked her whether anyone was sick. She replied that no one was sick, but that they just were not working that day. She asked McDole if he was working hard. McDole replied that he was not, and the conversation ended. Shortly thereafter, Shelton telephoned the terminal and asked to speak to the supervisor of the drivers. Howell took the call. Shelton said he wanted to know why a driver would telephone his wife at home. Shelton told Howell that his wife had received a call a few minutes earlier from McDole and that Shelton could not understand why he had called or what he was up to. Shelton then repeated to Howell the substance of McDole's conversation with his wife. Shelton expressed anger and threatened to come to the terminal. Howell told Shelton that he did not know when McDole was due back but that he would handle it for the Company. Shelton told Howell that he did not want McDole sent to his place of business again. and that otherwise Shelton would not accept freight or use Thurston again. Howell ended the conversation by advising Shelton that he would let him know anything that he could to justify McDole's call or help Shelton. Thereafter Howell sent Gibson, one of the salesmen at the terminal, to Shelton's house to obtain a letter setting forth the nature of the complaint. At some point also either before or after- sending Gibson to Shelton's house, Howell called Walker, Respondent's vice presi- dent, at Charlotte and talked tohim about the matter. Walker instructed him to discharge McDole.58 Gibson returned to the terminal with a letter from Shelton containing the follow- ing message: Today my wife received a phone call from the route man that delivers freight to Mid-Tenn. Toy House, Madison, Tenn. This call was made to my home at or near 2 p.m. The phone call had nothing to do with business since we had no freight- coming from Thurston on this date. The following questions: 1. Why aren't you at work? - 2. Are you sick today? 3. Is anyone working at the warehouse? 4. He also said the only car parked at the warehouse was a Studebaker and I didn't see yours and thought maybe you were sick (She drives. a Buick). My, wife answered these questions and then he said he had better let her go. When 'McDole returned to the terminal that evening Howell' called him into his. office and told him that a man in East Nashville had lodged a severe complaint against him that day. McDole asked what it was, and Howell replied that the man had said that McDole was trying to go with his wife. McDole asked who it was.- Howell replied that it was Don Shelton who worked at the Mid-Tennessee Toy 58 Thurston testified that , both he and Walker handled the McDole matter with Howell. According to Thurston, Walker handled the matter first but the instruction to discharge McDole came from Thurston conditioned upon a determination of the '•accuracy of the in- formation given him. Thurston testified that he told Howell that if he found'that the information Howell gave Thurston was true there was no alternative ' but to let McDole go. Neither Howell nor Walker testified that Thurston had any role in the discharge; and a detailed statement by Walker setting forth the Company 's position with respect to the discharge, which was submitted to the General Counsel under cover'of a letter signed by Thurston during the investigation of the charges , makes-no mention of participation by Thurston in the discharge. Thurston's testimony cast Thurston in the role which Walker's statement and the testimony of Walker and Howell place Walker . I do not credit T'hurs-- ton and find that be played no part in the discharge. ' THURSTON MOTOR LINES, INC. 1285 -House. McDole replied that he never tried to go with Shelton's wife.59 Howell then asked McDole if he had called Shelton's wife, and McDole replied that he had called her on his lunch hour. Howell asked why McDole called her. McDole told Howell that when he went by the warehouse, no one was there and there were no -lights on, and that he thought someone was sick or something and called for that "reason. McDole further told Howell that Mrs. Shelton answered the telephone. McDole repeated to Howell his conversation with her, as set forth above. Howell told McDole that Shelton was very upset. McDole said that if Howell would give .him 30 minutes to go talk with Shelton, he could straighten it out. Howell told McDole he could not straighten it out because Shelton was very upset. McDole said if it had not been for "the Union, Howell would have given him a chance to work it out.60 McDole was immediately discharged. Following his discharge McDole talked to Shelton, and on the next day he returned to the terminal at his regular starting time to ask Howell if he was going to put him back to work. McDole told Howell that Shelton would call and tell, _him that everything was straightened out. Howell replied that Shelton had not -called and that he could not put him back to work. McDole again called Shelton -and returned to the terminal later in the day to inquire whether Shelton had called. Howell again replied that he had not. McDole asked Howell if he would put him back to work if Shelton called. Howell said that he could not do so and that McDole would have to have a letter from Walker in Charlotte in order to get his _job back. Subsequently, McDole obtained a letter from Shelton, and about the middle of the following week he returned to the terminal to offer it to Howell, -telling him that it was from Shelton. Howell refused to accept it and told McDole he would have to mail it to Walker in Charlotte. McDole did not mail the letter to Walker. c. Thomas Mohon "and James Screws Thomas Mohon started to work at the Nashville terminal in the summer of 1962 as a part-time dockhand. He became a regular employee in March 1963, and from then until the time of his discharge he was employed as a dockhand. There is no -evidence in the record to show that Motion's work record had ever been criticized or had ever given cause for criticism prior to the time of events here involdgd<. Indeed Terminal Manager Howell conceded that until that time Mohon was a good employee. Although dockhands were paid 10 cents an hour less than drivers, in early February 1965, Mohon was given an increase and thereafter received the same pay as drivers. His duties remained unchanged. James Screws started to work for Respondent in August, 1964. Screws had known Howell for 4 or 5 years. He was a close friend of Howell's brother, and the two had been union members together. Howell knew of Screws' past union membership and at the time he hired Screws, Howell warned him to have nothing to do with the Union or getting one started because if he did, Howell would fire him as quickly as he hired him.81 Screws worked initially on the night shift. After 6 weeks, Leadman Liffey complained to Howell that Screws was not carrying his load on the night shift and recommended his transfer to days. Lilley told Howell that Screws was a slow worker and showed very little initiative. Screws was transferred. From then until April 9, the day after Larkins and McDole were discharged, Mohon and Screws worked on the dock during the daytime. Mohon and Screws were among the early signers of Teamsters membership applications. Mohon signed on January 22, and Screws on January 25. Both started to wear union buttons at work during March, 1965. As set forth above '*These findings are based upon McDole 's uncontradicted testimony. Although Howell testified as to the discharge , he was questioned as to only one aspect of this conversation between him and McDole, discussed below. 61 On direct examination McDole testified that Howell first said that he' had given the employees too many chances now and they had rammed the Union down his throat, fol- lowing which McDole said if it had not been for the Union, Howell would have given him a chance to work it out. On cross-examination , however, McDole conceded that he was the first to raise the Union by his assertion that it was because of the Union that Howell would not give him a chance and added further only that Howell did not give him a chance. Howell denied saying that the employees had rammed the Union down his throat. As McDole's testimony in this regard is left unclear by his response on cross- examination, I credit Howell's denial. 61 This testimony of Screws was undenled by Howell and is credited.' 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in section E, 1, j, around March 19 after Howell had received the Teamsters demand for recognition, be called Screws into his office and questioned Screws about his union activities and sympathies, telling Screws in the course thereof that he wished that Screws would forget about having anything to do with the Union. As Screws testified, Howell added, "If I did that my name wouldn't be mentioned because there would be names that would be mentioned as having any- thing to do with the Union." Screws said nothing in reply, and Howell told him that if he changed his mind, he should tell him. The duties of Mohon and Screws consisted of receiving freight from interline carriers and from Respondent's city trucks and loading outbound freight on over- the-road trailers. On receiving freight they initialed and marked incoming bills to indicate the number of pieces received and where the freight was stored. In load- ing freight out for out-bound shipment they marked the trailer number on the bill, the number of pieces in the shipment, and again initialed the bills. They were the only employees with full-time assignment to these duties and performed, accord- ing to Howell's estimate, 75 to 80 percent of the outbound loading at the termi- nal. The remainder of the loading was done by drivers at the end of the day as they returned from their local delivery and pickup runs and to some extent by the night crew.62 In Respondent's business, shipments occasionally arrive at their destinations with more freight than called for on the accompanying bill, less freight than called for on the bill, or with damaged freight. These are referred to respectively as over- ages, shortages, and damages 63 Shortages and damages give rise to direct mone- tary claims against Respondent, and all three give rise to administrative costs.64 A certain volume of overages, shortages, and damages is to be expected, and is budg- eted. During 1964 and 1965, each terminal was allocated a budgetary amount of 11/2 percent of its revenue for payment of claims with respect to freight shipped from that terminal.65 During 1964 total claims payments for the system ran at about 21/2 to 3 percent of revenue, and 1964 was described by Respondent's Presi- dent Thurston as the worst year in claims since World War II. Each month a summary of claims is compiled and circulated to the terminals in the form of a claim report which shows for each terminal the numbers of claims charged, the amount of claims charged, the percentage of tonnage handled by the terminal, and the terminal budget for the month. The number of claims and amounts charged are allocated to shortage, damage, and concealed damage. In addition, the monthly report shows total amounts for the year to date of claims charged and the terminal budget. By correlating a claim to the bill on which it was based, it would be possible to determine who initialed the bill and checked the shipment at its point of origin for each claim. In addition to monthly claim reports, the employees at terminals who receive and unload shipments fill out trailer unloading reports for each inbound trailer. These reports note the unloader's opinion of how the truck was loaded and list the pertinent information for each shipment unloaded which is over or short. The report contains a blank for listing the initials of the responsible checker and loader which appear on the accompanying bill.66 From these trailer-unloading reports, Respondent compiles weekly reports of out- bound loading errors which are circulated to the terminal managers. These reports 92 On the basis of Mohon's testimony and his affidavit placed in evidence after his cross- examination , I am satisfied that Mohon testified truthfully that drivers also checked out- bound freight until a few weeks before Mohon's discharge when he suggested to Howell that he be permitted to oversee the drivers' loading. There was no testimony to the contrary. e3 Occasionally freight arrives without an accompanying bill or a bill arrives without accompanying freight. The former is considered an overage and the latter a shortage e* In the event the missing freight is located and delivered there is no claim, but admin- istrative costs are incurred 95 Administrative costs are not included in this amount, and apparently no effort is made to allocate administrative costs to the various terminals It appears from Respond- ent's monthly claims analysis in evidence that there are damage claims which are not attributed to any terminal and which are charged to the system generally. w One such report for a trailer originating in Nashville which was unloaded on Febru- ary 11 was placed in evidence . This report indicates that the trailer contained three ship- ments that were short and one that was accompanied by no bill. It also indicates that there were no initials on the bills for the short shipments, and of course there were no initials indicated for the missing bill. THURSTON MOTOR LINES, INC. 1287 show for each terminal for the week covered the number of overages, the number of partial shortages, the number of shipments with no freight, the total number of errors, the total number of shipments loaded by the terminal, and the number of shipments per error as an index of the accuracy of the loading at the terminal. Also shown on the report is the number of shipments per error at the terminal for the previous week. No effort is ordinarily made to correlate the loading errors to individual checkers and loaders. These weekly reports of loading errors of course not only reflect the accuracy of the loading at the terminal of origin but the accu- racy of the reports of the unloaders at the terminal where the trailer, unloading reports are completed. The claim record of the Nashville terminal during 1964 was relatively good. The total claims allocated to the Nashville terminal fell below its budgeted amount. However, 13 of Respondent's 22 terminals exceeded their claims budgets in 1964. The record does not disclose the loading error record at the Nashville terminal during 1964 except for the last 2 weeks of the year.67 At the close of 1964, Respondent began a claim prevention campaign directed at all its terminals, and periodic letters and memoranda were sent to all terminal managers urging increased efforts to improve freight handling and bill handling procedures and the exercise of closer supervision over the handling and loading of freight to reduce loading errors and claims. In a letter from Sutton of Respondent's Charlotte central operations to all ter- minal managers, dated December 22, 1964, they were asked to "Study the situation and drop me a note by January 10th outlining what you are going to do, effective immediately and throughout 1965, to eliminate overages, shortages and freight without bills; and how you are going to protect the freight to eliminate damages." On January 4, 1965, Howell wrote Vice President Walker with reference to con- versations and correspondence with Respondent's claims agent, Thomas, and Sut- ton, regarding "the claim picture i.e., proper loading, checking. etc. These subjects being the direct cause of a very poor claim problem here at Nashville " Howell wrote Walker, "I am in agreement with Mr. Thomas and Mr. Sutton that we should tighten our reign on the negligence displayed by some of our people at Nashville. This we are attempting to do and have attempted in the past, by meet- ing with our warehouse people, reprimands, talks, and on the job training. I can assure you that we will better the Claim picture in Nashville for the year 1965, and tighter control will be used in stopping this drain on company monies." 68 On January 7, Howell wrote Sutton in response to his December 30 letter as follows: Nashville has started a consentrated drive through terminal meetings and group meetings, in order to explain this situation to our personnel and also train them. We have advised these people that this problem must be elimi- nated and that carelessness on their part will result in disciplinary action. I have further advised them, that we would not hesitate to use written repri- mands to control this carelessness. On January 22, 1965, Howell posted the following notice on the bulletin board at the terminal: Nashville, Tennessee January 22, 1965 gh/sb SUBJECT: Loading Errors DRIVERS & WAREHOUSEMEN: I have talked with many of you, regarding the checking and loading of freight. It seems that many of you, have failed to take notice, that claims, are the direct results of misloading and checking. Please be advised that disciplinary action, will be taken in the future to curb, these errors, and that if you are involved, you will have no one to blame, but yourself, as notice has been given. GEORGE HOWELL, Terminal Manager. 87 The report for the week ending January 1, 1965, shows 254 shipments per error for that week, a relatively high or good figure, and 36 shipments per error for the previous week, a relatively low or poor figure However, perhaps reflecting seasonal shifts in work- ing loads or other variables, most terminals did relatively well for the week ending January 1, and most did relatively poorly for the previous week. 68I have reproduced this and portions of other letters below without correction of obvious errors . Little purpose would be served by calling attention to each of them where it occurs. 1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 16, Sutton again wrote to Howell. 69 In this letter, Sutton called attention to the weekly loading report for week ending February 5, during which 18 total errors were charged to the Nashville terminal. Sutton indicated as sources of difficulty shortcuts taken by some of the terminals bypassing proper checking procedures, lack of interest in the rate and billing departments; and the lack of coordination between the billing departments and the manifest clerks to insure that all bills are properly manifested on the right trailer. - On February 24, 1965, Sutton wrote all terminal managers about claims. After setting forth the fact that January claims for the system as a whole exceeded the budget by almost 50 percent, Sutton pointed out that shortages, which accounted for half the total claims, were basically attributable to improper checking of ship- ments, that damages, which accounted for the remaining claims, could be caused by improper checking or acceptance of traffic unfit for transportation, but were generally caused by improper handling and storing in the pickup units, line units, or in the warehouse. Sutton concluded: A careful analysis of this claim picture for the month of January indicates that there is an immediate need for better education of all our freight handling people. We will expect terminal meetings to be held immediately with all freight handling people. Go over this report and take positive action on our claim reduction program. On March 12, Howell wrote to Walker as follows: Please refer to Mr. C. M. Thomas's letter of March 1, 1965 and Claim Bulletin for the month ending February 1965. As you advised, the extremely bad showing of Nashville in the Claim effort, has me upset also. Although our record for the year 1964 was very poor, the claim budget for January and February this year, has almost doubled the Claim Budget allottement for Nashville. I am also alarmed at the progress, we are making to solve the problem, with our personnel. I am sure you are aware of the labor problems, we have encountered in the last weeks, for this reason, I am very hesitant in making changes of person- nel at this time, however I see no other way of reducing our claim ratio at Nashville, without the removal of some of the negligence. I have attempted to take some warehousemen from other shifts, with hopes that this would alleviate the problem, however the men do not won't to make shift changes and you can not end a problem with disinterest to start with. Loading reports, waybills, Unlading reports, and check back on claims, reveal that checking and loading of interline traffic is the apparent cause. I recommend that the dismissal of two Nashville Warehousemen, Thomas Mohan and James B. Screws, these men according to our records are involved in over 80% of the checking and loading and quite frankly, there personnel records indicate that disciplinary action, should have been taken before now, these men have recieved both verbal and written reprimands for their negli- ence as well as I have personnally handled with them on the platform, show- ing them improper loads, etc. As stated, they are day shift men, involved in checking, loading nearly all the interline traffic as well as city pickup units at night or early evening. I have discussed this with Mr. Carl Marler, Assistant Terminal Manager in hopes he might have a more suitable solution and he advised, that the atti- tude of these men is very bad in that they are not receptive to improvement and then go back to unsatisfactory work. As stated, I am definetely against personnel changes at this time, if at all possible, however since, we do have several excellent part time men and appli- cations readily - avaiable, I believe we should take advantage of them. Mr. Mohon and Mr. Screws are not qualified drivers, either P & D or Tractor-Trailer drivers, and have made no effort to learn and they can qualify Although individualized, identical letters were sent to all terminal managers. THURSTON MOTOR LINES, INC. ,1289' for nothing else, it looks as efforts for self improvement by these men are taken very lightly. I would like to have your advice on this matter of changes. I trust your reply will be forth coming. There is no evidence that any reply, written or oral, was received by Howell. On March 23, Sutton sent a further communication to all terminal managers concerning proper loading and its relationship to all the claims picture. In it Sutton listed 14 items relating to proper loading for the managers to take up with their people and stressed that it was important for the managers to devote more of their personal attention to the loading of vehicles. On April 2, Thomas, the claims agent, wrote all terminal managers and sales personnel with reference to the ever-rising number of claims resulting from dam- ages. The letter pointed out that 17 terminals had exceeded their budget and that as a result the claims ratio was at 2.56 percent of revenue rather than the budgeted, 1.5 percent. After comparing Respondent's claim position with those of other trucking lines, the letter concluded by urging the managers to spend all available time on the docks supervising loading, handling, and counting. During the period covered by this correspondence, Howell talked to Screws and- Mohon about outbound loading errors on three or four occassions either in his office or on the dock, and either gave outbound reports to Mohon or asked Marler to, do so.70 Two or three weeks before Motion's discharge, between March 19 and 26, Howell talked to Mohon and Screws separately about loading errors. He told them that loading errors were the ultimate cause of claims, that they were greatly out of proportion for the terminal, and that the responsibiliy was with them, because they loaded 75 to 80 percent of the freight. He also told them that records indicated that the errors were caused by them and that they would have to straighten up or something would have to be done. Howell indicated that he would talk to them about it further in 2 weeks 71 Both Mahon and Screws pro- tested Howell's assertion that they were responsible, and Mohon suggested that the drivers be stopped from loading freight at night or that he and Screws be permitted to oversee the drivers' loading 72 Howell told them that they were responsible and should be able to work the procedure out. There is no evidence that Howell told either of the employees that he had recommended their discharge to Walker a week or two before. After Mohon's conversation with Howell, around April 1, Walters asked Mohon while he was loading a trailer on the dock if they were still going through with the Union. When Mohon said yes, Walters said that he hated to see Mohon, get messed up in it, that he had been through it three times before, and that Thurston would never agree to a contract. He added that the- Union would have to go out on strike and that whenever Mohon got hungry Wal- ters would ask him up for supper.73 On April 9, Mohon was called into Howell's office. Howell said that it looked like Mohon had done it again, that they were still having the same old problems, too• many loading errors, shortages, and claims, and that it was costing the Company 10 While I credit Howell that he spoke to Mohon and Screws about loading errors three or four times after December, as would appear consistent with the system -wide campaign to eliminate errors, I note that Howell , whose testimony was frequently sketchy, made no claim that,he reprimanded Mohon or Screws or charged them with personal responsibility for claims or errors from December 1964, until 2 or 3 weeks before Motion's discharge. On one occasion, as Mohon and Marler testified, Marler showed Motion an .unloading report and discussed the errors on it with him. Marler also testified that he had discussed the nature of the work with Mohon and Screws several times and that "they've been showed the loading report." I credit Mohon that Marler showed him only one, report. , n The versions of Howell, Mohon, and Screws of these conversations are not in essential dispute 'and my findings are based on a synthesis of their testimony in this regard. 72 According to Mohon, Howell agreed to let them try overseeing the drivers ' loading. According to Howell , Motion's suggestion that drivers be stopped from loading put the problem back on him, but he did not deny that he permitted Mohon to 'start overseeing the drivers' loading. Is Mohon's testimony in this regard is uncontradicted and is credited. 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD too much. Howell told Mohon that at the rate they were going, Screws and Mohon would be the highest paid men in the- freight business, in reference to the claims allocated to the Nashville terminal in January and February 1965. Mohon replied that he thought that they had improved since Howell had talked to them. Howell said that they had improved some but not enough, that it seemed like Motion was the cause of the loading errors, and that he was going to be dismissed.74 During the conversation Howell showed Mohon about five freight bills that he had in his hand, three of'which had Mohon's-initials on them. ' One was a bill for which no 'height was received, one was a bill for which the freight had been short, and one showed that freight had been damaged. On the same day Screws was called into Howell's office and told that there were still too many claims and loading errors and that Howell was going to have to do something about it. Screws asked if they had not improved since the last conver- sation and whether they had more loading claims. Howell replied that he did not know for sure because he had not yet received any reports, but that they were still having too many, and he was going to have to do something.75 Howell told Screws that whether he liked it or not, he would have to go back on the night shift. Howell told Screws he did not want any trouble or conflict on the night shift and that if he did not work out, there would not be anything else Howell could do. Screws pointed out that the last time he was on nights Lilley had said it did not seem to him that Screws was trying, but that he would work on the night shift if that was what Howell wanted. Howell told Screws to report for work at 9 p.m on April 11. On April 10, Howell again wrote Walker: This has reference to various correspondence and my latest letter of March 12, 1965, regarding the claim problem at Nashville, with further ref- erence to our telephone conversation of April 8, 1965.76 As previously advised in my correspondence and conversations with you, it was felt that in order to strengthen Nashville's very poor claim problem it would be necessary to make personnel changes although it was with much hesitation that I do so. Since March 12, 1965, I have personally made a concerted effort to handle the matter without changes, but my efforts were ineffective. There was with a constant surveillance of trailers, the supervisors all but loading and checking freight, an improvement. However, as soon as normal procedure is followed these personnel go back to a very, poor job. As example, improvement was shown for one .week after working with the men, but one week later we had 14 wet, damaged, or short shipments on one trailer alone. I am of the opinion that every effort was utilized to alleviate the situation without changes The following changes were made effective Friday, April 9, 1965. I dismissed Mr. Thomas Mohan on April 9, 1965 after one last conversa- tion. His attitude was very bad and he was not at all receptive to my conversation I moved Mr James Screws from the day warehouse shift to the night shift with hopes of salvaging this man's future. I had a very long conversation 74 Howell did not ' testify' as to his conversation with Mohon at the time of Mohon's dis- charge. According to Howell , the loading error situation improved right after his con- versations with Mohon and Screws 2 weeks earlier but then reverted 75 Howell did not deny making this remark , and there is no evidence otherwise to estab- lish when the March claim reports or the weekly loading error reports were received by Howell. 76 Neither Howell nor Walker testified with respect to a conversation on this date other than that concerning McDole. April 8, the day before Mohon's discharge, was the day that Larkins and McDole were discharged and Vaughn was'told by Howell that he would be given more work. THIJRSTON MOTOR LINES, INC. 1291 with Mr. Screws and I am not at all satisfied with his attitude, however, I believe another chance should be given this man to make improvement. I trust you are in agreement with these changes. Screws worked 3 nights on the night shift and on the third night was told to see Howell the next day. When he did, Howell told him that the night shift had not worked out, and he was going to have to do something else. Screws asked why it had not worked out. Howell told him that majority of the men did not want to work with him and did not like him, but declined to tell Screws who did not like him when Screws asked.77 Howell then asked Screws if he had ever checked out as a driver. Screws replied that he had not Howell asked Screws the reason, and Screws replied that he had been busy on the dock and had never gotten around to being checked out as a driver. Howell told Screws that if he knew how to drive, there would be a way out, but since he did not, there was nothing else to do. Screws asked if that meant that he was out of a job, and Howell said it did. Howell then said that he did not want to let this have anything to do with their being friends, and Screws told him that it did not. Screws then left. During the period from January 1 until the discharge of Mohon and the transfer of Screws, the unloading reports show the following with respect to Nashville. Week ending Overages Partial shortages No freight Total errors Number shipments Number shipments per error Jan 8--------------------- 7 9 1 17 571 34 Jan 15-------------------- 5 2 3 10 668 67 Jan. 22-------------------- 4 7 0 11 730 66 Jan. 29-------------------- 2 3 1 6 652 108 Feb 5-------------------- 5 6 7 18 696 39 Feb 12------------------- 4 10 1 15 789 53 Feb 19------------------- 2 5 2 9 741 82 Feb 26------------------- 2 7 10 19 694 37 Mai 5---------------------- 4 0 1 5 750 150 Mar 12------------------- 8 8 2 18 789 44 .liar 19------------------- 9 7 6 22 752 34 Mar 26------------------- 6 2 3 11 672 61 Apr 2-------------------- 3 3 0 6 665 109 Apr 9-------------------- 3 4 3 10 714 71 During the next 4 months the volume of freight remained about the same as before, and the record of the terminal after Mohon and Screws were replaced showed a variation in the number of shipments per error from a high of 34 to a low of 11, with an average of approximately 20 each week. The weekly reports of outbound loading errors show also that relative to other terminals of the same size, the number of shipments per error at the Nashville terminal during 1965 until the discharge of Mohon and Screws was slightly better than average, and in the 3 weeks ending with the discharge of Mohon the Nash- ville terminal ranked near the top with respect to number of shipments per error among terminals handling approximately the same number of shipments per week. 14 Howell did not testify as to his conversation with Screws at the time of his discharge. However, he testified that after Screws returned to the night shift Lilley told Howell that Screws "couldn't do it" from which Howell presumed Lilley meant the work and Howell decided to discharge Screws. According to Lilley, who wanted to leave the night shift, Howell told him that he was transferring Screws to the night shift with a view to making- him leadman in Lilley's place, and when Howell asked him how Screws was doing, his answer was that Screws was not capable of taking over his job. I do not credit Lilley in this regard. 'T' I 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to damage claims, however, the record of the Nashville -terminal' in 1965 during the employment of Mohon and Screws was poor. The monthly claims reports show the following for Nashville during 1965.78 Month No. claims charged Amount claims charged Terminal budget January: Shortage -------------------------------------------- 13 $307.12 Damage-------------------------------------------- 17 592.03 Cone. damage -------------------------------------- 7 216.33 Total 37 1,115.48 $647 90- February- Shortage ----------- I -------------------------------- 18 1,262.70 Damage -------------------------------------------- 8 358.83 Cone. dainage -------------------------------------- 4 162.59 Total 30 1,783.62 618. 52' March: Shortage -------------------------------------------- 10 270.12 Damage-------------------------------------------- 9 471.91 Cone. damage-------------------------------------- 4 78.77 Total--------------------------------------------- 23 820 80 703.98 April: Shortage -------------------------------------------- 7 585.31 Damage-------------------------------------------- 12 171.16 Cone. damage -------------------------------------- 9 112.65 Total--------------------------------------------- 28 869.12 694.98 May' Shortage-------------------------------------------- 5 417.52 Damage--------- ----------------------------------- 7 84.61 Cone. damage---------- ---------------------------- 3 39.01 Total--------------------------------------------- 15 541.14 700.53 The performance of Respondent's other terminals fluctuated substantially. By the end of February, the worst 2 months at Nashville, the claim's allocated to all terminals totaled $48,518.15 against a budget of $27,108.43, and 16 of the 22 terminals had exceeded their budgets. Approximately nine terminals exceeded their budgets in proportions comparable to and in some cases greater than the excess at Nashville. d. Glenn Poss Glenn Poss' started to work for the Company in March 1963 as a part-time employee. In June 1963, he became a full-time city delivery driver. Poss was an early Teamsters adherent and actively engaged in the solicitation of Teamsters application cards. His activities on behalf of the Teamsters were open, and Howell was aware of them even 'before the Teamsters request for bargaining. Around the time of the request Poss began to wear a union button at work. As found above, in section E, 1, h, at that time Howell interrogated Poss as to his knowledge of and participation in the union activities Shortly thereafter, Walters also interrogated Poss about his union activities and told Poss he was going to have to fight him all the way. Poss 'was the only employee who attended the' April 15 representation hearing, and he testified in that proceeding as a witness for the Teamsters. Immediately after Larkins' discharge, when Poss and another driver, Davis Robertson, were assigned to tractor 248, they began to write up the tachograph in 's The record contains no reports after May. THURSTON MOTOR LINES, INC.' 1293 the tractor as defective and to complain about it. As a result,' one morning mechanic Guynn rode with Robertson to check the operation of the tachograph. Guynn observed that, it seemed to be marking the tachograph disc "funny" and so informed Robertson. The same morning while Guynn was checking the tachograph, Poss approached him. Poss asked Guynn if there was anything wrong with the tachograph. Guynn, who was still in the process of checking it, told Poss that there appeared to be. Somewhat later after Guynn had finished checking the tachograph, Poss spoke to Guynn again, and Guynn told Poss'that it seemed to be all right. Poss. replied that there was going to be a' protest 'iiiade about the tachograph. Thereafter Guynn checked the tachograph thoroughly and found no fault with it. He installed a different tachograph in tractor 248, but the complaints -continued until after Poss was discharged on April 28. Sometime after Poss' conversation with Guynn, Howell received a call from the Interstate Commerce Commission informing him that two complaints had been made against Respondent, one for allowing an underaged or unqualified driver on the streets, and the other for tampering with a tachograph to show incorrect speed 79 Howell contacted Respondent's Charlotte headquarters and informed Thurston ,of the complaint. Thurston urged Howell to go to the local ICC office and to offer the assistance of the Company in try' ing to clear the matter up. Thereafter, Howell went to the ICC office and spoke to Gatling, its safety director. During the conversation Gatling asked Howell if a man had been fired recently. Howell told him that Larkins had been fired, and Gatling commented that the complaint had not been filed by Larkins. Howell asked who had filed the complaint, and Gatling replied that it was against ICC policy to discuss the identity of com- planiants. According to Howell, however, during his conversation with Gatling he sat next to Gatling's desk.and was able to see a portion of a paper which-Gat- ling was holding in his hand sideways. Howell testified that he saw Poss' name on it, adding, "I would not state or swear to it without looking at it again, with- out holding it in my hands but I figured, felt that it was Glenn Poss' name, because it was fairly visible to me at the time." Howell could not read the title or' heading on the paper and saw no printed headings on it. He, descnbed it as a white. piece of unlined typing paper which looked to him like some sort of a form. According to Howell, Poss' name was on the left side of the paper almost at the bottom. One or two words or a sentence preceded the name "which I was convinced that. I thought it was Glenn Poss' name." Following his visit to the ICC office, Howell called Thurston again and reported his conversation with Gatling. Howell told Thurston that he was satisfied- in his own mind that he had seen Poss' name on a report as the complainant, but could not see it all because part of Gatling's hand was over 'the report. "Thurston asked Howell what other evidence he had-to establish Poss' responsibility. Howell told Thurston that he.had learned Poss had gone to the mechanic, Guynn, talked to. him about the tachagraph, made accusations of tampering to him, and threatened' that it would be reported. According to Thurston he asked specifically if Poss' name could have been on the report as that of a witness. Howell replied that he did not think so. Thurston told Howell that it was his feeling that Poss' action "was vicious and malicious against the Company and that he should be discharged." 80 On April 28, 1965, Poss was called into Howell's office. Howell told 'Pons' he understood Poss had filed charges against the Company: Poss asked what he meant and told Howell he did not understand. Howell told him that someone had reported the Company to the ICC and that he had "access to believe" that Poss was the one who did it. Poss denied making the report and, told Howell that he did not know' that any charges had been filed nor did he know who had done it if there had been. Poss asked Howell what the charges were, and Howell told him that they pertained to use of an unqualified driver and firing Larkins when the tachograph and speed- ometer were not working properly. According to Poss, he'told Howell that he knew nothing of the charges "although I couldn't say that they were unjust charges." Howell again repeated that he had reason to believe Poss had made the 79 The first complaint was attributed by Howell to the fact that a new employee was inadvertently allowed to drive a pickup due to Assistant Terminal Manager'Marler's lack of knowledge that he did not have a chauffeur's license and driver's checkout. This com- plaint had merit. 80 Following Howell's visit to Gatling, an ICC investigator was sent to the terminal to examine the tachograph, but it appears that no further action was taken thereafter by the ICC. 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charges, and Poss again denied it. Howell informed Poss the decision had been made that he had made malicious charges against the Company and that Howell had no alternative other than to dismiss him. Poss subsequently received by mail a separation slip dated April 29, 1965, stating that he was discharged for "improper efforts to damage the Company." 81 Poss denied making the complaint to the ICC, but testified that after Larkins' discharge, he discussed the tachograph with Reed, the Teamsters business agent, and asked what he could do for Larkins. Reed suggested that Poss could call the ICC. Poss also testified that he discussed with fellow employee James Cripps the possibility of reporting the tachograph to the ICC. e. Davis Robertson Davis Robertson was among the most senior employees at the Nashville terminal. Robertson signed an application for membership in the Teamsters on March 12, 1965, and began to wear a Teamsters button at work the day after the Teamsters request for recognition. As indicated above, Robertson made a number of com- plaints about the tachograph in tractor 248 after Larkins' discharge, and Robertson repeated his complaint in an interview with Thurston around June 1 .82 In that interview Thurston told Robertson' he believed he could beat the Teamsters in an election, and despite Robertson's known Teamsters adherence, asked Robertson to use his influence with the other men. Robertson replied that the men with whom he might have had influence had been discharged. On June 16, 1965, Robertson was discharged, according to his separation notice for "excessive accidents in one year and not complying with instructions reporting accidents." In December 1964, Robertson had an accident under adverse weather conditions, causing substantial damage . Robertson was given a written reprimand which stated "Driver to be issued a written reprimand for traveling too fast for condition of highway and weather, negligence in deceleration of tractor and for the first avoid- able accident within 12 months." Although at the time Robertson disputed the chargeability of that accident, he conceded at the hearing that that accident was properly charged against him within the meaning of Respondent's rules discussed below.83 On Friday, June 4, 1965, while Robertson was backing his trailer into a ware- house at Springfield, Tennessee, the right front fender of his tractor struck a utility pole and was damaged. Robertson waited to report the accident until he reached Clarksville about 4 to 41/2 hours later from which he usually called the terminal for instructions. His report was taken by Mader. At Marler's instruction, he reported the accident to Acting Terminal Manager Cathey the following morning. Cathey then told Robertson to take an accident report home and fill it out. Robertson turned in the written report on the following Tuesday, apparently with Cathey's acquiescence. Although the amount of damage was not great, Robertson conceded that this accident was also chargeable to him. On the morning of June 11, Cathey talked to Robertson about safety on the highways and the cost of accidents to the Respondent. On that day while traveling through Springfield, Tennessee, Robertson's trailer caught an overhanging telephone cable just beyond a caution light and stretched or broke it causing it to hang down. A local policeman witnessed the accident. Robertson stopped to report the accident to the telephone company and waited for a telephone company representative to arrive. While at the scene, Robertson gave the policeman a card to fill out from his accident-reporting kit which Respondent furnished. On the card next to the printed question "Was our driver at fault? (Yes or No)," the policeman wrote "No." Next to the words "Explain briefly," he wrote, "Cable was too low for trailer clear- ance." The policeman signed the card with his name, address, and home and office telephone numbers. The card indicated that he witnessed the accident but not that he was a policeman. Robertson again waited until he reached Clarksville and about >tt Poss' testimony as to his conversation with Howell at the time he was terminated is uncontradicted and is credited. 83 Thurston testified that this was the first time he heard of problems with the tacho- graph on tractor 248. Thurston was involved in Poss' discharge and clearly heard of the complaints before this interview. 83 "Chargeable" and "avoidable" appear to have been used interchangeably by Respond- ent and its drivers. Robertson had an earlier accident in 1961 for which, insofar as the record shows, he was not charged. THURSTON MOTOR LINES, INC. 1295 21/2 hours later reported the accident to Cathey by telephone. Cathey asked if he should come to the scene of the accident. Robertson told him that he was in Clarksville and advised him not to come. Cathey told Robertson he would have to go to investigate it and instructed Robertson to fill out an accident report when he got back to the terminal. Either that evening on his return to the terminal or on the following day, Robertson filled out the report and gave it to Cathey. With it Robertson turned in the card which the policeman had filled out. At that time Cathey again told Robertson he would have to go to investigate the acident because the telephone company might decide to sue the Company. Robertson replied that the telephone company could not possibly make a claim as the cable was hanging too low. On June 16, Cathey called Robertson to his office and informed him that he had received word from Charlotte about Robertson's accidents. Robertson asked if he was fired. Cathey said that he was, that Cathey did not know anything about it, and that he had only done what he had been told to do. He also commented that Robertson's accident records were in Charlotte 84 Neither Safety Director Lamm, who recommended the discharge, nor Cathey testified concerning Robertson's discharge, though Cathey did appear as witness for Respondent. However both Respondent's President Thurston and Vice President Walker testified that they were consulted by Lamm before he recommended the dis- charge. Thurston testified that he was informed by Lamm that Robertson had had four accidents within a year and had not followed instructions with respect to report- ing accidents. According to Thurston, Lamm consulted with him to inquire whether he should follow normal policy and discharge Robertson in view of the number of charges that had been filed and the problems they were having. Walker testified that Lamm told him that Robertson was to be discharged because "he had three avoidable accidents within, I believe, it was six months and four total accidents within a year." Walker was aware of no other reason for the discharge. Respondent's most recent set of rules governing the employment of drivers, dated November 5, 1964, provides in Rule 38 "AN ACCIDENT WILL BE CON- SIDERED AS CHARGEABLE AGAINST A DRIVER'S RECORD IF HE COULD HAVE PREVENTED THE ACCIDENT, EVEN THOUGH THE OTHER PARTY IS ALSO PARTIALLY AT FAULT." 85 Rule 9 provides with respect to reporting of accidents: A DRIVER MUST IMMEDIATELY REPORT EVERY ACCIDENT REGARDLESS OF HOW SMALL OR WHO IS TO BLAME. This report must be made by telephone to the nearest terminal manager to the scene of the accident. This applies to damage to company vehicles and property as well as damage and injury to others. In the event a driver cannot locate the nearest terminal manager, he should immediately call the safety department. Every vehicle accident must be reported in writing complete and in full on the Company Accident Report form. Failure to report an accident as outlined herein will necessitate dis- missal of the employee involved. The accident report and courtesy cards pro- vided must be used at the scene of the accident. The accident report should be completed at the scene of the accident in addition to recording thereon the names of witnesses and investigating officers. The written accident report must be turned into the terminal manager personally by the driver upon his return to the home terminal. If the driver has not attended safety meetings of the Company and is not thoroughly familiar with what to do in case of an accident he should not be dispatched.se "These findings are all based on the credited uncontradicted testimony of Robertson "'In 1962 Robertson signed a receipt for four items : Rules governing employment with Thurston Motor Lines, Inc. ; Instructions applicable to drivers of motor vehicles ; ICC safety rules and regulations, and an accident reporting kit Robertson identified a copy of the rules governing employment with Thurston Motor Lines, Inc., dated June 5, 1962, as a copy of the rules which he received when he signed the receipt. The rules relating to chargeability and reporting of accidents do not appear therein. The evidence does not disclose the instructions applicable to drivers of motor vehicles which were given to Robertson in 1962. However, at all times material it appears that the 1964 rules were in effect. 80 Section 192.40 of the ICC Revised Safety Regulations which also apply require that the driver report "all details of the accident as soon as practicable after the accident." 1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence with respect to the Respondent's rule or policy for excessive acci- dents is less clear. Thurston testified that Respondent furnishes an instruction manual to terminal managers in which there is an instruction relating to discipli- nary procedures for three chargeable accidents within 1 year. According to Thur- ston, copies of these instructions were not placed in employee's hands, but the pro- cedures were common knowledge among the employees and were imparted to the employees at safety meetings and in conversation. Walker testified similarly. How- ever, despite confusion in the testimony described below as to the nature of the rule or policy, no documentary evidence'was introduced to support the claim. The rules furnished the drivers do not mention discipline for excessive accidents in 1 year, and an excerpt from .a company "Instruction Manual" listing offenses for which discharge is mandatory does not include three chargeable accidents within a year,87 although it is Respondent's contention that discharge was mandatory for that offense. In the absence of any supporting documentary evidence, the omission of such a rule from the list of offenses for which discharge is mandatory, and my findings otherwise with respect to the testimony of Thurston, I conclude that there was no written instruction to the managers such as Thurston described. Thurston testified that the applicable rule relating to discharge for excessive acci- dents was: Three accidents of a chargeable nature is just positively discharge and three, even part chargeable parts might require a thorough investigation of the mat- ter and the determination of whether the employee should be or should not be dismissed. Thurston added that a driver could be discharged for one or two accidents if bad enough and indicative of complete negligence and lack of concern. Subsequently Thurston added in response to a leading 'question by Respondent's counsel that three chargeable accidents within a year was a compulsory dismissal offense. Vice President Walker testified initially that Safety Director Lamm makes recommenda- tions to the terminal managers with respect to discharges for excessive accidents, which are "pretty generally followed." 88 Walker also testified that he knew of no instance in which an employee had three chargeable accidents of any size within 1 year without being discharged; and Thurston identified a list of employees who were discharged for excessive accidents, all of whom were discharged for three accidents or less. Walters, who was once discharged for excessive accidents, but whose discharge was rescinded when two accidents were held not chargeable on an appeal, testified that company policy provided for discharge for three chargeable accidents. Jackson, who was Robertson's son-in-law, testified that he had heard that if he had three chargeable -accidents in 1 year he would be discharged 89 and imagined that all the drivers had heard it. Robertson testified that he heard, about drivers being discharged for three chargeable accidents. The testimony of Thurston and Walker is far from convincing. Their erroneous testimony that Robertson was discharged for four `chargeable accidents within a year not only raises a question with respect to their recollections concerning Robertson's discharge, but 'also conflicts with Respondent's contention that three accidents within 1 year resulted in mandatory 'discharge. Nonetheless, the testimony of Jackson and Poss suggests that three accidents is a -critical number in Respondent's policy, rather than some other number, and the reprimand given Robertson'at the time of his first chargeable accident, as well as ar The list of offenses includes other road infractions as well as general disciplinary 'breaches. In response to a leading question by Respondent's counsel, which was phrased so as to leave in doubt whether the significant number of accidents was three or four, Walker agreed that terminal managers bad no discretion with respect to the penalty for breach of the excessive accident policy. In view of the manner in which it was adduced, I find this response of no probative value to negate the inference to be drawn from his initial testimony that terminal managers had some discretion ,in the application of the excessive .accident policy.- se Jackson and Walker testified that this was common practice in the trucking industry. THURSTON MOTOR LINES, INC. 1297 Jackson's testimony, suggests that 1 year is the significant period of time in the administration of the policy.90 However, while it thus appears that there was a general policy of discharge for three chargeable accidents within 1 year, the rigidity of the application of the policy is left in doubt by Thurston's quoted testimony with respect to partly chargeable accidents, and by the testimony of Walker that terminal managers have some dis- cretion in the application of the policy.91 f. Larry Storey The circumstances leading to Storey's transfer from the office to a driving job are set forth above and need no repetition. One Saturday after his transfer, while Storey was working on the dock, Richey, another employee, commented that he wished he came in earlier and got off earlier. Storey said, "Well, they can let you come in and let you go about anytime they want to, because we don't have too much security around here." The following Monday, Walters asked Storey if he had said that there was not any security at Thurston. Storey denied it, and Walters said he did not think Storey would say something like that. Walters went into the office and a few minutes later told Storey that Howell wanted to talk to him. Howell asked Storey about the incident, and Storey denied that he had said any- thing. Howell said he was going to do some checking and that if he found out that Storey was lying, he would send him out the door because Mr. Thurston would not stand for things like this 92 Shortly after going on the dock to work Storey signed a card for the TEA at Walters' request, and Storey attended the TEA dinner meeting on April 26, de- scribed above. Walters invited him to attend, representing to him, apparently with- out foundation, that the Company was giving the dinner.93 On June 11, 1965, the Regional Director issued his first consolidated complaint in this case. Paragraph 16 of that complaint included the allegation that "on or about April 13, 1965, Respondent transferred an employee from billing clerk to dock employee," in violation of Section 8(a)(1). This paragraph had obvious reference to Storey. When TEA dues were deducted from the employees' paychecks, Storey asked Walters what the deduction was for.94 Walters laughed and said, "you are a mem- ber of TEA aren't you?" Storey replied that he was. Walters asked him what else was he a member of. Storey replied he was a member of his own organization. Walters asked if that was all, and Storey did not reply. Walters then said he heard that "You're all signed up but six, is that right." Storey said he did not know, and went on to say that he did not think it was right to take $3 out of their pay when there was not even a contract. On July 19 Storey was discharged. The principal cause alleged was moonlighting for Viking, another carrier. Storey's part-time employment with Viking began dur- ing the latter part of February, 1965, while Storey was still employed as a clerk. It is uncontradicted that Storey told both Assistant Terminal Manager Marler and Walters about it within a week after he started. Some time later Storey also spoke 9u The General Counsel argues that the printed form on which the reprimand was typed indicates at the bottom that 6 months was the critical period because it states "This reprimand will not be effective for a separation if you have a clear record for the next six months." I regard this printed general language, which apparently applies to all repri- mands for any cause, of less significance than the specific warning typed thereon "for the first avoidable accident within 12 months." 81 See footnote 88, supra. e7 Storey's testimony with respect to this incident is uncontradicted and is credited. Howell's testimony does not contradict Storey and is itself revealing. Howell testified that he asked Storey about the incident because "I felt that an investigation should be made, because of the fact that a new man would go around making such statements to new employees." Howell testified that the Union was probably involved in the conversa- tion, that Storey said he was not a 'union man and never would be, and that ended the matter as far as he could recall. e3 Storey's testimony in this regard was also uncontradicted. 64 The first deduction was made on June 12 243-084-67-vol. 159-83 1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Howell about it. Howell told him the Company did not think it was good policy for him to work part-time for another carrier, but did not tell him to stop doing so. On March 8, 1965, a notice was posted on Respondent's terminal bulletin board on the subject of moonlighting. The notice indicated that it had come to the atten- tion of the Company that a few of the full-time employees had been working for other companies on their off days or during their off hours, and that a no- moonlighting policy had been established to become effective with the posting of the notice on the bulletin board. The notice included the following: Since it is not in the best interest of either the employees or the Company, employees are not permitted to work for other companies on a full or part- time basis while in the regular employment of Thurston Motor Lines, Inc. This policy applies to all regular, full-time employees in all job classifications but not to those employees who are specifically hired on a part-time basis. Any employee found to be disregarding this policy, either in its specific wording or in its intent, will be subject to immediate dismissal. All managers are hereby instructed not to hire employees for part-time work if they are employed full- time in other companies. No one told Storey thereafter that it would be all right for him to continue his outside employment. Storey read the notice but continued his outside work. As indicated above, on June 1, Howell left the terminal, and Cathey became acting manager. On July 19 Cathey called Storey to his office and asked him if he worked at Vik- ing on Saturdays. Storey replied that he did. Cathey then told Storey that some- one had called the previous day and reported seeing him driving with the door to his truck open. Storey denied the charge and asserted that he never drove with the door open. Cathey then said that he had called Charlotte, had reported Storey's moonlighting, and had been told to discharge Storey. During the conversation Cathey also referred to Storey's loss of a roll of wire from his truck and damage to a newly poured driveway by Storey. After Cathey told Storey that he was to be discharged, Storey said that he knew that if he had not signed a Teamsters card he certainly would not be getting fired. Cathey replied that he did not know Storey had signed. Storey was given a separation slip stating as the grounds of his dis- charge, "Carelessness in handling freight and equipment and displaying lack of concern for company policy by working on another job while working full-time for Thurston Motor Lines." On the following day, when Storey went to the terminal to get his pay, Walters remarked that he knew all along that Storey was for the Teamsters. Cathey's testimony with respect to the circumstances which led to Storey's dis- charge was confused and contradictory. He testified that he discharged Storey for violation of company policy against moonlighting but had other reasons if he needed them. Cathey also testified that Storey's moonlighting was general knowledge around the terminal, but that he learned that it was general knowledge only after Storey's discharge. On direct examination he testified that he learned of Storey's moonlighting by telephoning Viking's office manager, who was a personal friend, inquiring and receiving an affirmative reply. Cathey testified that he did not know of Storey's moonlighting before then. Cathey testified that after calling Viking, he contacted Walker in Charlotte who "asked me to investigate this thoroughly which I did " Cathey denied any knowledge of Storey's union activity. . On cross-examination Cathey specifically affirmed and repeated that he called the Viking office manager before calling. Walker in Charlotte and that he found out "officially" from Viking that Storey was working there before calling Walker. Cathey testified further that he had not known it before "unofficially " Cathey then testified that the call to Viking was precipitated because he heard from someone that Storey was woiking at Viking and he called to confirm what he had heard. After affirming once again that he called Walker after talking to Viking, Cathey was asked: Q. What did you do to investigate it after you talked to Mr. Walker? A. I went and made it official by calling. Q. Who? A. Viking Truck Line's office manager. Q. Again? A. Again? I called him once is the only time. While inconsistencies in testimony may arise from inadvertence , misunderstanding of questions, or revival of an incomplete recollection while testifying , the inconsist- ency between Cathey's first and second versions of the sequences of his telephone THURSTON MOTOR LINES, INC. 1299 calls on the day of Storey's discharge are basic and may not be attributed to such harmless cause Cathey's testimony as a whole was brief and covered little other than events surrounding Storey's discharge. His answers were generally short, guarded, and lacking in detail. Only after Cathey was asked what he did to investi- gate the charge against Storey following Walker's request that he do so did he switch his testimony as to the sequence of the calls, although Cathey himself volun- teered in his initial testimony that Walker asked him to investigate thoroughly and that he did If the sequence of the calls were as Cathey originally testified, the nature of his investigation after Walker's call and what he discovered would be critical importance to a determination of the reasons for Storey's discharge 95 This inconsistency in Cathey's testimony is not the only source of doubt. His initial testi- mony as to his knowledge of Storey's Teamsters activities is at best ambiguous, and there is independent reason to doubt that Cathey was quite so ignorant of Storey's activities as he professed. Although Cathey became acting terminal manager on June 1, he had been regularly employed at the terminal before that time as a sales- man. He was acting terminal manager when the complaint issued alleging Storey's transfer as a violation of the Act and when Storey complained to Walters about TEA dues deductions. I am constrained to conclude, after careful consideration of Cathey's testimony and his demeanor while testifying, that Cathey changed his testimony with respect to the sequence of his calls to Viking and Walker to conceal a portion of the truth and that his testimony as to the state of his knowledge at the time of Storey's discharge and the considerations which led to Storey's discharge cannot be credited. 2. Concluding findings a. The evidence supporting the complaint There is substantial evidence to support the General Counsel's contention that the discharges which occurred from April 8 to July 19 were caused by the union activities of the dischargees. As set forth, there is substantial evidence of Respond- ent's union animus, much of which is uncontradicted, and some of which consists of explicit threats of discharge and other reprisal. Before the Teamsters request for recognition, 6 of the 7 dischargees were among the 11 employees who signed Teamsters application cards and 4 of them signed in the first week of the Teamsters organizational efforts in January. Although McDole attempted to conceal his activity from Howell until the demand was made, some of the Teamsters activity was carried on openly, and Howell by his own admission, as well as by inference from his interrogation before the Teamsters demand, was aware of the organiza- tional activity at the terminal. Four of the discharges, McDole, Poss, Larkins, and Screws were interrogated by Howell as to their reasons for supporting the Team- sters, and Howell sought to dissuade them from their support, inviting Larkins and Screws to let him know if they changed their minds, and telling McDole, when Howell's efforts appeared unsuccessful, that McDole did not want his mind changed. Two of the employees, McDole and Screws, whose prior union affiliations were known to Howell, were warned at the time of hire to have nothing to do with the Teamsters while in Respondent's employ on pain of discharge. Again when Howell interrogated Screws and McDole after the Teamsters request for bargaining, Howell asked Screws to abandon the Teamsters so that his name would not be on the list of those reported as having anything to do with the Union, and warned McDole that he would be in better shape to profit by Respondent's profit-sharing plan if he withdrew his union support.96 Storey, who became a driver on April 13 only after numerous assurances that he would not support the Teamsters but signed a Teamsters application on April 16, was warned several times he would be discharged if Howell discovered that he supported the Teamsters. Howell demonstrated that the threat was not idle when he interrogated Storey after his transfer with respect to a chance remark to Richey about job security,97 and again repeated the threat of discharge should he discover that Storey's denial of the remark was untrue. Although Storey, unlike the other es If investigation disclosed that Marler and Howell had known of Storey 's moonlighting and had done nothing about it since the March 8 notice was posted, the case against Storey would have been completely different. ea In the absence of further explanation and in the light of Larkins' testimony indicat- ing that eligibility to participate was based on length of service, I have construed this warning as a veiled threat of discharge. 07 Other employees had told Howell when interrogated by him that concern over job security was a reason for their Teamsters support. 1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dischargees, does not appear to have revealed his Teamsters activity openly, his offhand remark about job security clearly raised suspicion, and his later protest to Walters about TEA dues deduction, as well as the inclusion of his transfer as an allegation in the complaint against Respondent, could have left little doubt where his true sympathies rested, as Walters asserted to Storey after Storey's discharge. All but Screws and Storey were employees of some standing at the terminal with work records which, insofar as appears, gave no cause for complaint. Three of the seven discharges occurred within a space of 2 days and a fourth but a few days later. Although each was based on allegedly different cause, except for Mohon and Screws, who were discharged for related causes several days apart, the alleged causes had existed for lengths of time varying from a few hours to a few months before the discharges. The discharges commenced on the day that Vaughn's layoff, found above to be discriminatory, was ended, and it was amidst the reshuffling and hiring of new employees to replace the first of the dischargees that Vaughn and Storey were made full-time drivers on the basis of their assurances to Howell that they would not support the Teamsters. Under these circumstances, I find that there is substantial evidence to support the inference that the discharges were discriminatorily motivated and to establish a prima facie case of violation. The question remains "whether Respondent's defense has overcome the General Counsel's showing, that is, whether Respondent has proved that its real motive for [the] discharges was not to discourage union activi- ties but was rather to discipline" the dischargees for the various causes alleged. Heck's Inc., 156 NLRB 760, 762-763. b. Respondent's defenses (1) Thomas Larkins As the General Counsel has observed, a discharge for traffic violations based on the uncontradicted testimony of a single observer is one of the easiest causes to fabricate and one of the most difficult to disprove, particularly where as here, the driver is not confronted with the charge until a week after the violations allegedly occurred. Basically, Respondent's defense is that on the basis of Leapley's written report without any discussion with him and without any corroborating tachograph disc,98 Respondent's Safety Director Lamm instructed Howell to discharge Larkins. Leap- ley's report contains a minimum of detail. While it is not totally implausible that a decision to discharge would be based upon such a report lacking a corroborative tachograph disc and without any discussion between patrolman and the safety director, the contention that this was the case raises doubts, which Leapley's testi- mony does not dispel. As set forth above, Leapley's report indicates Larkins traveled at a "top speed" of 60 miles per hour. In his testimony Leapley stated that after the State patrol- man passed tractor 248, "the speed went back to 60 and above it, at times." When asked how far above, Leapley testified "That is pretty hard to determine on a regu- lar speedometer, 62, 63, but it was a'little above it at times " When asked whether it was momentarily or sustained Leapley testified, "Well between the 60 and what- ever the speed was above 60. It fluctuated back and faith, generally going down- grade it would pick up and, then, maybe going upgrade, of course it would slow down some, but I would say it was a sustained speed of 60, anyhow." Larkins' truck was equipped with a governor, which mechanic Guynn testified was in good working order. As indicated in a statement in Thurston's memoran- dum to Lamm, governors were set so that drivers could not quite reach 60 miles an hour. Thus, it would appear that Leapley's testimony is not only in conflict with his report but also with the speed limitations of the truck. It is possible, however, as to the latter that the discrepancy may be due to inaccuracy in the speedometer in Leapley's car, which he identified as a regular speedometer. There is no evi- dence that it had been calibrated or checked for accuracy, and there is substantial possibility for error in an ordinary speedometer. See People v. Dusing, 155 N.E.2d 393, People v. Heyser, 141 N.E.2d 553. However, this possibility does not explain the discrepancy between what Leapley testified that he observed and what he wrote. ea It is conceded that Larkins' tractor had no disc in its tachograph on April 1. Un- like an ordinary speedometer, a tachograph not only indicates speed to the driver at any instant in time but also is capable of making a written record of the truck's speed over .an interval of time if its clock is wound and a paper disc is inserted. THURSTON MOTOR LINES, INC. 1301 In his testimony, Leapley was asked to explain what was meant by his remark in the report that the driver was following too close to "other traffic as well as myself." Leapley's explanation was "Well actually, to get a good check on him, I was a little closer in traffic than I probably should have been normally, but to get an accurate check, you have to get pretty close to them " This explanation rang false to me at the time it was given and continues to do so upon analysis of the record. The reporting form obviously calls for a report of the violations of the driver under observation, not of the patrolman. The sentence on its face indi- cates that Leapley charged Larkins with following too close to Leapley as well as other traffic. Leapley's explanation is contrary both to the plain meaning of what he wrote and what one would expect from the nature of the report. Doubts concerning Leapley's report and the Company' s reliance upon it in dis- charging Larkins are magnified by examination of the exchange of correspondence between Thurston and Lamm which led to Leapley's removal from his usual duties and his assignment to patrol duty in the west end of Respondent's operations. As Thurston's letter indicates much, it not all, of the matter set forth therein was well known to Lamm, and the practices over which Thurston expressed concern were not new but constituted constant problems. Despite its confidential label, the letter has every appearance of a document intended for eyes other than Lamm's.99 The extensive contents of Thurston's letter, the fact that Lamm and Thurston were both located in Charlotte, and the timing of the letter both in relation to the Team- sters bargaining request, which had just been made, and the safety problem, which was long standing, make it appear that the correspondence was intended to ration- alize Leapley's assignment rather than to explain how it came about. Although Thurston testified that apart from his correspondence with Lamm he did not otherwise discuss the west-end speeding problems orally with Lamm before the patrol was established, Thurston testified that Lamm talked to him before Larkins was discharged and told him that he knew there were union problems which would result in charges against the Company if Larkins were discharged. According to Thurston, Lamm asked Thurston if he wanted to take a hand in it, and Thurston replied that he did not and that the rules should be enforced. There is no expla- nation as to how Lamm in Charlotte was aware of Larkins' union affiliations before the decision to discharge him was made. In the light of the void in the record as to communications between Lamm and the Nashville terminal up to the date of Larkins' discharge, Lamm's inquiry of Thurston can only increase the mystery sur- rounding Respondent's explanation of Larkins' discharge.10° I conclude that Thurston's testimony cannot be relied on as establishing the whole truth with respect to Larkins' discharge.ioi Even if Leapley's assignment was deliberately timed to coincide with the Team- sters activity, it is of course possible that Leapley nonetheless observed the traffic violations which Leapley reported and that his discharge routinely followed Respondent's practices. But in the light of the suspicious circumstances surround- ing Leapley's assignment , the fact that Larkins' union activities were discussed between Thurston and Lamm befoie the discharge and at a time when no other unfair labor practice charges were pending, the timing of the discharge both in rela- tion to the Teamsters request to bargain and the other discharges, and the discrep- ancies between Leapley's report and his testimony set forth above, I have concluded that Leapley's testimony with respect to the gross traffic violations by Larkins, a driver with almost 5 years' seniority and a clean record, cannot be credited. Accordingly, I find that Larkins was not discharged for cause, but was discharged because of his union activities as part of an overall course of action to weed out Teamsters adherents and replace them, after Larkins' assignment to the peddle run left him vulnerable to the charge that he had been observed in violation of Respond- ent's rules. (2) Jackie McDole The alleged cause of McDole's discharge was the telephone call made by him to the home of Respondent's customer Shelton. Until the day of his discharge, insofar 00 In its first paragraph the letter states that "two reputable good men" had come to Thurston with respect to speeding in the west end. Thurston could not identify the reputable men to whom he referred. 100 Howell testified that he had nothing to do with Larkins' discharge and merely fol- lowed instructions from Charlotte Lamm did not testify loi As I have elsewhere found herein, in addition to the above considerations, there is substantial additional cause to question Thurston 's credibility. 1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the record shows, McDole's record was unblemished. Although Shelton was angered by McDole's telephone call and expressed his anger to Howell, the nature of the call from McDole to Mrs. Shelton, as disclosed by Shelton's letter, did not indicate such inherent impropriety that McDole's presence could not be tolerated for even another day. The conversation set forth in Shelton's letter corroborated McDole's explanation that he had called only to determine whether anyone was sick at the Shelton home. The situation could well have been improved by giving Shelton time to cool off. McDole's insistence that he could straighten the matter out with Shelton, despite the fact that McDole was the object of Shelton's anger, would tend to indicate that Shelton's complaint was more the product of a quick temper than of misconduct by McDole. As Howell admitted, the situation posed by Shelton's complaint was novel, and he did not know exactly what to do. There was no rule prohibiting employee contact with customers outside the regular course of business nor had employees otherwise been warned against such contacts. In the event that there was a misunderstanding and that McDole's explanation could satisfy Shelton that his call had no guilty purpose, the need for drastic disciplinary action would have disappeared as quickly as it arose. In sum, nothing in the situation demanded peremptory discharge of McDole without giving him an opportunity to adjust the matter. The major vice in his conduct lay in its threat to Respondent's relations with its customer, and if McDole had been able to satisfy the customer, that threat would have been removed. Indeed, as McDole testified without contradiction, and Walker's written statement of position bears out, the heart of the charge against McDole was that his questions and comments to Mrs. Shelton were uncalled for and indicated that he was trying to go with Mrs. Shelton,102 Shelton may well have believed so, but McDole's ready admission to Howell that he made the call, his honest report of its contents, corroborated by Shelton's letter, and his readiness to see Shelton to straighten out the matter indicated that there was substantial reason to doubt that Shelton's belief was justifiable and to believe that McDole could be given the opportunity to adjust the matter with some chance of success and without harm to Respondent. Despite Shelton's anger, Howell in his initial reaction to Shelton's report appears to have been of this opinion. He testified that he ended his telephone conversation with Shelton "by advising him that we would let him know anything that we could to justify or help him, and he thanked me and he said he would handle if from that end." Howell also testified that he told Shelton he would "try to get the matter straightened out, if at all possible." After calling Walker, however, Howell did nothing to try to straighten the matter out nor did he contact Shelton again to advise Shelton what he had learned or done. In the light of these circumstances I conclude that the peremptory decision to discharge McDole was motivated by the desire to utilize the fortuity of Shelton's complaint as a pretext in order to rid Respondent of an active Teamsters adherent whom Howell had failed to dissuade despite intimidatory efforts. Nothing in the events following McDole's discharge alters this result. Shelton's failure to call Howell, as McDole told him he would, the day after McDole's dis- charge might well have had bearing if Howell had given McDole a chance to straighten the matter out. However, as McDole had already been discharged, Shelton's failure to call Howell could not have any bearing upon the determination to discharge him. On the other hand, Howell's persistent efforts to discourage McDole in his efforts to straighten the matter out with Shelton indicate that the incident between McDole and Shelton was not itself the motivating cause for the discharge. Even when McDole persisted and brought Howell a letter from Shelton, Howell refused even to look at it and would have nothing further to do with the matter. As indicated by Thurston's description of the operation of the Company's rules with respect to chargeable accidents, terminal managers, who had consider- able authority, interceded at other times when the management in Charlotte decreed that employees should be discharged. Even if it would have been necessary for Walker to authorize rescession of the discharge, there was no reason why Howell 102 In his written statement, Walker stated that Howell called back after investigating the matter to report McDole did not deny making the call or the conversation and "that there was no question in his, Mr. Howell's mind, but that McDole was making unjustifiable advances to her." While I consider this statement revealing as to the nature of the alleged cause for McDole's discharge , I do not accept Walker's statement as an accurate recital of the facts relating to McDole's discharge. Clearly the time sequence set forth in the statement is inaccurate , and it was written to put Respondent's best foot forward. THURSTON MOTOR LINES, INC. 1303 could not have come to McDole's aid by communicating to Walker any newly dis- covered evidence. Howell's adamant refusal to have anything more to do with the matter is further indication that the McDole's alleged misconduct was rationaliza- tion for and not the true cause of McDole's discharge. I find under all the circumstances that the true cause of McDole's discharge was his activity and membership in the Teamsters Union. Accordingly I conclude that McDole's discharge violated Section 8(a)(3) of the Act. (3) Thomas Mohon and James Screws The stated cause for the discharges of Mohon and Screws was negligence and inefficiency in the handling of freight. There is no doubt that Respondent was engaged in a system-wide campaign to reduce the incidence of loading errors and claims against it arising at all its terminals. And there can be little doubt that Howell, who admitted a poor record to company headquarters at the end of 1964 despite performance considerably better than average, must have been disturbed by the claims charged to his terminal in January and February far in excess of the budgeted amount after the headquarters campaign was under way. Nonetheless, the evidence in the record falls far short of establishing that either Mahon or Screws, let alone both, were responsible for the claims attributed to Nashville in the months of January and February or that their record following Howell's late March warning continued to be poor. Until Howell's March 12 letter, there is every indication in Howell's correspond- ence that he considered the problem terminal-wide. Whether he held such meetings or not, he at least informed Charlotte in his December 30 statement that he had started a drive through group meetings and terminal meetings. Simultaneously, his bulletin-board notice posted on January 22 was addressed to all drivers and warehousemen. Quite clearly Howell then viewed all drivers and warehousemen as possible sources of loading errors and damage claims.103 Moreover, while there is substantial correlation between claims and errors in checking and loading, the periodic letters from Charlotte to all terminal employees indicate that not all claims or errors discovered in unloading can be attributed to those who check and load trailers. For example, overages and shortages in the no-bill or no-freight category may be the fault of the rate and billing clerks and manifest clerks rather than of those who check and load. Concealed damages may be caused by improper handling or stowing by pickup or interline drivers as well as by those loading and unloading Respondent's outbound and over-the-road trailers.104 In view of these factors, it cannot be presumed that Mohon and Screws were jointly or indi- vidually responsible for any, and certainly not all, of the deficiencies in the per- formance of the Nashville terminal. Howell's March 12 letter stated a more specific basis for narrowing responsibility for claims to Mohon and Screws jointly, namely, that his records showed that checking and loading of interline traffic was the apparent cause of the bad claims picture at Nashville, and that Mohon and Screws handled all the interline traffic. In his letter, Howell also stated that both had received verbal and written repri- mands for their negligence and indicated that disciplinary action should have been previously taken. However, this letter, which was written with awareness of the union activities, is not supported by any corroborating evidence on its crucial points. Although Mohon and Screws may have loaded most of the interline traffic, as distinguished from that picked up locally by Respondent's drivers, there is no testi- mony or documentary evidence to establish that interline traffic was the apparent cause of the problem. While a few bills were shown to Mohon and Screws which they had initialed, there is no indication other than in this letter and his testimony that Howell made any effort to run down the source of the problem by a systematic check of records. Considering the fact that there were only 90 damage claims in total attributed to Nashville during the months of January, February, and March, and a number of the particulars relating to these claims must have been identified in the processing of the claims, the failure to produce any documentary 303 Mohon and Screws together performed 75 to 80 percent of the outbound loading. As the weekly volume of shipments was in excess of 500, at least 100 shipments a week were loaded by others. 104 To the extent that the figures set forth above indicate , there were substantial errors and claims in these categories. , 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence to support the assertion in Howell's letter renders suspect its claim 105 Indeed if the information was not available, then Howell's letter and testimony were clearly unsupportable, and if the information to which he specifically referred in his letter and his testimony was available, there was no reason shown why it could not have been produced.los Howell's claim in his letter that Mohon and Screws had been reprimanded ver- bally and in writing is likewise unsupported. There is no evidence, not even in Howell's testimony, to support Howell's assertion in the letter that Mohon and Screws had received written reprimands. While there is evidence that Screws was verbally reprimanded at the time of his transfer to daywork and shortly thereafter in October 1964, there is no such evidence with respect to Mohon. To the con- trary, all the evidence is to the effect that Mohon's prior record was good. His February pay increase, absent explanation, supports the conclusion that it was still considered good in February, and there was nothing in his record to support Howell's assertion that Mohon's personnel record indicated that disciplinary action should have been previously taken. Indeed although Howell testified, and I have found, that he talked to Mohon and Screws about loading errors three or four times between December and the time of their discharges, Howell did not claim that he reprimanded them or charged them with personal responsibility for the loading errors until a week or more after the March 12 letter was written when he gave them 2 weeks to improve. Under these circumstances, I conclude that the March 12 letter, which concedes knowledge of "labor problems," absent corroboration, cannot be taken as estab- lishing the truth of the contents. To the contrary, every indication is that it was a self-serving document prepared with a view toward the day when some justifica- tion for the discharges of Mohon and Screws might be needed.107 Casting further discredit on the claim that Mohon and Screws were discharged for cause, is the failure of the evidence to support Howell's claim that after he gave Mohon and Screws 2 weeks to improve, they did better briefly and then reverted and committed a great number of errors again. If, as Howell testified, he spoke to them on March 26, even assuming that loading errors could be attributed to them, it would appear that their performance in the following week did improve and that there was some decline in the following week. But the rate of shipments to errors in both weeks was relatively high in comparison to past performance at Nashville and in comparison to the ratios at Respondent's other terminals of all sizes. Moreover, the weekly report for the week ending April 9 could not have been in Howell's possession on April 9 when Mohon was discharged, and the record is silent as to the basis, if any, Howell may have had for assessing their performance during that week. If, as is most likely, the information which Howell received after fiist speaking to Mohon and Screws pertained to the weeks ending March 26 and April 2, then all that Howell had before him showed improve- ment and no decline. The evidence with respect to claims gives no greater support to Howell, for the claim reports for March, if they had been compiled and reached Howell by the time of the discharges, showed substantial improvement. In view of Screws uncon- tradicted testimony that Howell said he had not received any reports yet in response to Screws' question about loading claims, I conclude that Howell had no specific knowledge of claims, certainly as to the period after April 1, on which to base his assertion that Screws and Mohon had not improved. 106 In a letter dated April 13 after Mohon's discharge to all terminal managers from Thomas, the claims agent, Thomas discussed the difficulty in establishing responsibility for claims because of lack of information furnished with inspection reports. In the course of the letter Thomas stated, "Although we have for several weeks been advising the Terminal Manager of individual claims charged to his terminal , we have had compara- tively few comments or questions from you regarding these chargeouts." Moreover, when Screws was reprimanded in October 1964, it was in connection with a specific shortage which could have resulted in a substantial claim had the freight not been located It would appear that information identifying the employees who loaded and checked shipments which gave rise to claims was available for production at the hearing, but none was produced. 101 Howell in his testimony did not mention finding that the problem was mostly in in- terline shipments , as he did in his letter. He testified merely that after checking the records, he considered Mohon and Screws marginal employees 107 Howell 's sketchy, unspecific testimony stands on no firmer footing and is not credited THURSTON MOTOR LINES, INC. 1305 Moreover, as in the case of Howell's earlier assertion that they were responsible, there was no evidence offered to corroborate the charge that Mohon and Screws were responsible for the damage and loading errors that occurred after Howell warned them 108 In his letter of April 10 to Walker, written after Mohon's dis- charge and Screws' transfer, Howell cited as an example of their poor job the fact that after working with them for a week, they had 14 wet, damaged, or short ship- ments in one trailer alone. But no evidence was presented to support this charge or to show that deficiencies were attributable to Mohon and Screws. Nor was any other evidence produced to support Howell's general claim. In his letter Howell cited as a further reason for Mohon's discharge the fact that his attitude was poor and he was not at all receptive to Howell's conversation. However, from Howell's testimony it appears that the only weakness in Mohon's attitude lay in his unwill- ingness to concede responsibility for the errors and claims and his disputing their cause with Howell 109 Finally, even assuming that Howell could have inferred that the errors and claims were attributable to the day shift dockworkers as a group, there was no basis shown for his conclusion that they were attributable to both Mohon and Screws. Indeed, every indication would appear to the contrary. There is no evi- dence of excessive claims or loading errors during Mohon's employment before Screws was transferred to the day shift, and Mohon was given a raise in February despite the existence of the problem. On the other hand, Screws was transferred from the night shift after Lilley complained of his lack of initiative and was repri- manded in connection with a shortage shortly after his transfer. There was thus every reason to suspect that if the blame lay with either, it lay with Screws. Yet, it was Mohan who was immediately discharged, and Screws was temporarily retained but transferred back to Lilley's shift. I am satisfied that these actions were taken without any real effort to assess responsibility for the high January and February claims, because the claims were not their underlying cause. In sum, I conclude that Howell's initial letter of March 12, his 2-week warning to Mohon and Screws, and his action in discharging Mohon and transferring Screws were based on their union activities in violation of Section 8(a)(3) and (1) of the Act rather than on their work performance, and that the defense advanced to Justify their discharges was erected to take advantage of the fortuitous system-wide concurrent campaign to reduce loading errors and damage claims which had been in progress for some time when the Teamsters request for recognition was made. Although Howell briefly relented after recommending Screws' discharge in his March 12 letter, in spite of his work history which was both shorter and poorer than Mohon's, the evidence compels the conclusion that Howell had no real inten- tion to attempt Screws' salvage. It may be fairly inferred from the rapidity with which Howell discharged Screws a few days after his transfer and after an appar- ently brief comment by Lilley which Howell construed as referring to Screws' ability to do the job, that Howell's purported desire in his April 10 letter to give Screws another chance was not genuine, but that Howell sought to let his brother's friend down somewhat more easily than Mohon by assigning him to a job which he might be expected to refuse or which if he did accept was likely to produce a basis for discharge which Howell could more readily defend. I conclude that both the transfer and the discharge were motivated by Screws' union activities.110 108 The bills Howell showed Motion and Screws on April 9 were not offered in evidence. Motion and Screws may well have been responsible for some errors, but it does not follow that they were responsible for all or excessive errors. ins According to Howell, both Mohon and Screws protested his assertions that they were responsible and suggested that the solution lay in stopping the drivers from loading at night, which according to Howell "was in effect putting the problem back on me " This assertion makes sense only if Howell's only solution to his problem lay, in placing the blame on Motion and Screws regardless of what the facts warranted . Absent proof that Motion and Screws were responsible , their attitude as described by Howell may not have been acquiescent but also was not censurable. llU The employment levels indicated by Respondent's pay records show that on Monday, April 12, there were four employees who were made regular dockworkers for the first time. Screws was discharged on Wednesday , April 14, and not until May 8 was another dock- worker hired. The fact that Respondent managed with three regular dockworkers until April 9 and utilized five or six thereafter without no major change in the, number of weekly shipments , does nothing to confirm the claim that Mohon and Screws were marginal employees. 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Glenn Poss The stated reason for Poss' discharge was his "improper efforts to damage the Company" by complaining to the Interstate Commerce Commission. Apart from Howell's testimony as to what he observed on the paper in Gatling's hand at the time of his visit to the local ICC office, there is some circumstantial evidence to suggest that Poss was involved in the making of the report to the ICC. Thus, Poss had threatened to Guynn that a report would be made, and Poss was one of the principal finders of fault with the tachograph on tractor 248 after Larkins' discharge." On the other hand, absent the context of union activity in which Poss was prom- inent and the apparent relationship of the tachograph complaint to Larkins' dis- charge,112 it may be seriously questioned whether this evidence together with what Howell observed at Gatling's office was sufficient basis for a conclusion that Poss was responsible for the complaint. Howell's testimony as to his observation reduced to its essence was that he thought he saw Poss' name on a piece of paper in Gat- ling's hand. Assuming that he did, it is a substantial jump from that observation to the conclusion that Poss made the complaint. Although, according to Thurston, Howell told him he did not believe that Poss' name appeared as a witness, nothing in Howell's testimony discloses any basis for that belief. Likewise, Howell's testi- mony as to what he saw indicates substantially less certainty than Thurston testified accompanied Howell's report. Indeed, apart from Howell's belief that Poss' name appeared and the perhaps reasonable assumption that the document in Gatling's hand related to the tachograph complaint, Howell gained no other knowledge as to what the paper was or represented. In the light of the substantial evidence of animus and my findings above with respect to Larkins, I conclude that Respondent's decision to discharge Poss would not have been reached on the weak evidence available to Respondent and in the face of the refusal of the ICC to identify the complaint but for Poss' union activities. However, even if Poss was discharged in good-faith belief that he had filed the complaint with the ICC, I find that the result would be the same, regardless of the accuracy of Respondent's belief. The complaints by Poss and Robertson to Guynn, the writeups of the tachograph, and the complaint to the ICC, by whomever made, and certainly if made by Poss, were made in the effort, discussed by Poss with Reed, to help Larkins. Certainly after Howell talked to Galling, he had reason- able cause so to believe. Although nothing was wrong with the tachograph in tractor 248, mechanic Guynn made statements to Robertson and Poss which indi- cated that there might be. Having been so informed by Guynn, there was at least basis for doubt on the part of those employees who desired to help Larkins that the tachograph was in proper working order. The effort to help Larkins, in which at least Poss and Robertson participated along with Teamsters Business Agent Reed, was concerted activity within the meaning of Section 7 of the Act. When Respondent discharged Poss in the belief that he had complained to the Interstate Commerce Commission in the course of that concerted activity, the discharge violated Section 8(a)(1) of the Act, even if Respondent's belief were well founded, unless the complaint to the ICC were made in bad faith, with knowledge of its 11 Apparently unknown to the Company was the fact that Poss also discussed with Teamsters Business Agent Reed what could be done for Larkins with reference to the tachograph, and that Reed suggested that Poss could report it. However, Howell's in- vestigation must have disclosed that Poss was not alone in complaining to Guynn about the tachograph. As Guynn testified, Poss' threat to report the tachograph was made while Guynn was checking a complaint by Robertson . Also as Guynn testified , writeups and complaints by at least Robertson and Poss, if not others , started immediately after Larkins' discharge. In the light of the latter testimony , Howell's testimony that the tachograph had not been written up at the time of the complaint to the ICC is not credited. is Although there is no evidence that Larkins raised the tachograph with Howell, the timing of the complaints, which started immediately after Larkins ' discharge, and the fact that they related to tractor 248 made the relationship evident . Gatling's question to Howell as to whether anyone had been discharged further suggested the relationship. That Howell accepted the suggestion is indicated by the fact that Howell named Larkins as the discharges although Mohon, McDole, and Screws had also been discharged Gatling also asked Howell whether the complaint was related to a labor dispute. The first Teamsters charge in this case, which related to Larkins ' discharge, was filed on April 9 THURSTON MOTOR LINES, INC. 1307 falsity, or with intent to harass Respondent.113 The merit or lack of merit to the complaint is immaterial.114 As the refusal of the Interstate Commerce Commission to divulge the names of informants indicates, public-policy requires that employees and private individuals be free to make complaints to public agencies without fear of reprisal. It would be contrary to that policy to hold that the making of a com- plaint to a public authority in the course of concerted activity removes the protec- tion from the concerted activity, particularly where, as here, statements by the Respondent's mechanic, although later amended by him, were such as to raise doubt as to the condition of the tachograph. In the light of that evidence, as well as the substantial grounds for the Teamsters adherents to believe that the discharges on April 8, 9, and 14 were based on union activities and not the causes advanced by Respondent to explain them, I cannot conclude that the protest, by whomever made, was made in bad faith, with knowledge of its falsity, or with the intent to harass Respondent. As Poss was clearly a participant in the concerted protests over the tachograph to Respondent, and Respondent's conclusion that he made the com- plaint to the ICC was based in part on his role therein, it makes no difference whether Respondent's belief that Poss made the complaint was well founded or mistaken.115 Accordingly, even if Poss' discharge did not violate Section 8 (a)(3), as found above, it violated Section 8 (a)(1).116 (5) Davis Robertson Respondent contends that Robertson was discharged for excessive accidents and failure to follow Respondent's instructions for reporting accidents. This defense rests on the testimony of Thurston and Walker that Robertson's discharge was mandatory under company policy and followed Lamm's inquiry as to whether the rules should be applied in Robertson's case because of the charges which had already been filed as to other discharges at Nashville. The evidence with respect to the policy regarding excessive accidents does not establish the mandatory nature of the policy, as found. Although there appears to have been a policy under which Respondent considered the continuation of employment of drivers with three chargeable accidents within a year, according to Walker, even when discharge was recommended by Respondent's safety director, the decision to discharge was made by the terminal manager. That procedure was not followed in Robertson's case. Secondly, as Thurston stated the rule, an unde- fined concept of "part chargeable parts" would require a thorough investigation before determining whether discharge would result. In the absence of and further explanation, I am unwilling to conclude that partial fault of another party was not a factor in determining whether an accident has "part chargeable parts." 117 Absent evidence of what Respondent's investigation, if any, disclosed, or of the position taken, if any, by the telephone company with respect to the cause of the accident, the only evidence in the record indicates that the cable which Robertson's trailer struck, in a town which Robertson regularly visited, was hanging too low on the day that Robertson struck it. While Robertson was clearly required to avoid 113 Indiana Gear Works, a Division of the Buehler Corporation , 156 NLRB 397; Walla Manufacturing Company, Inc., 137 NLRB 1317, 1319, enfd. 321 F.2d 753 (C.A.D C ), cert. denied 875 U.S. 923. 114 Socony Mobil Oil Company, Inc., 153 NLRB 1244 , 1247, 1248 . Despite self-serving testimony that the discharge was based on the complaint concerning the tachograph and not the complaint concerning use of an unqualified driver , Poss' uncontradicted testimony was that Howell did not distinguish between the charges in his discharge interview. Even if Respondent considered the complaint malicious only insofar as it related to the tacho- graph, the fact is that one aspect of the complaint to the ICC was well founded. m; N.L.R.B. v Burnup and Sims, Inc., 379 U.S. 21. The complaint also alleges that Poss' discharge violated Section 8(a) (4). In view of the findings already made and the fact that the remedy would in any event be the same, I find it unnecessary to consider further the allegation of violation of Section 8(a) (4). 117 The definition of chargeable accident specifically provides for chargeability where an- other party is partially at fault but is silent as to the effect of contributory negligence upon the consequences to be attached to chargeability in such cases . In the light of Thurston's testimony that there are grades of chargeability , this' factor would appear to be the most likely basis for amelioration of the offense. 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overhead obstructions as well as those on the ground, and as Thurston's testimony indicated, encounters with overhead wires may entail substantial danger, Robert- son's version of the accident and the eye-witness report which he submitted with his accident ,report support the conclusion that the telephone company was partially at fault. I cannot conclude under all these circumstances that application of Respondent's policy routinely required Robertson's discharge. As already noted, the testimony of Thurston and Walker as to what Lamm reported to them as the cause of Robertson's discharge was clearly in error. In the absence of any testimony by Lamm as to what evidence he had before him or by Cathey as to the investigation he told Robertson he was going to make, the decision to discharge Robertson remains shrouded in mystery.118 Absent evidence that Robertson's discharge was clearly required by Respondent's policies in the face of his long service, in the light of the admitted consideration of his union activities in making the decision to discharge him; Robertson's role with Poss in the com- plaints over the tachograph, which Robertson specifically called to Thurston's attention after Poss' discharge; and the substantial evidence which I have found above supports a prima facie case of discrimination, I conclude that Respondent's defense with respect to Robertson has not been sustained and that Respondent seized upon Robertson's accidents as an opportune excuse to rid itself of another Teamsters supporter. (6) Larry Storey The main reason advanced by Respondent for Storey's discharge was his viola- tion of Respondent's antimoonlighting policy. There is no contention by the Gen- eral Counsel that the institution and posting of the policy in March was discrimi- natorily motivated and most seriously intended Although Storey continued to work part-time for Viking in violation of the policy, it is also clear that Storey's part-time work at Viking was generally known around the terminal and that Howell, who was then terminal manager, transferred Storey to driving duties despite knowl- edge of Storey's moonlighting when satisfied that Storey was opposed to the Teamsters, as found above. Nonetheless, had Cathey testified credibly to establish that Howell's prior knowledge was not attributable to him and that he was unaware of it when he discharged Storey, there would be little basis to conclude that Cathey's reasons for discharging Storey were other than those which he advanced. Cathey, however, did not so testify. Cathey was no stranger to the terminal or the men. He was at the terminal throughout the period in question. The issuance of the complaint and Storey's protest to Walters over TEA dues occurred after Cathey became terminal manager. The conviction which Walters later voiced as to Storey's Teamsters sympathies must have been born of these events. Although ,Cathey denied to Storey awareness of his Teamsters activity, as found above, I do not credit the truthfulness of that denial. Cathey's failure to explain credibly what his investigation disclosed after talking to Walker and what it consisted of, as found above, leaves unanswered the inference otherwise to be drawn that Storey's moon- lighting, which had been generally known around the terminal, was tolerated until Respondent sought a pretext to discharge Storey after it became apparent that Howell had erred in relying on Storey's assurances of his opposition to the Team- sters. I conclude therefore that Storey's moonlighting was only a pretext 119 for -the discharge and that his discharge violated Section 8(a)(3) of the Act. u8 The added cause stated on Robertson's separation notice was clearly insubstantial and .a makeweight. Thurston's recollection was that Lamm reported, "There was a late re- porting on one of them. It was not reported, he had not followed the instruction con- cerning the reporting of accidents " Walker recalled no mention of this cause There is no indication that Cathey took exception to or reported to Lamm the fact that Robertson waited until making his regular telephone calls from Clarksville to notify Cathey of the accidents on June 4 and 11. It also appears that Cathey acquiesced in the lateness of one of the written reports, and is not established that the other was filed late. 119 Without the moonlighting, it is clear that Cathey himself considered the other deficiencies attributed to Storey insubstantial grounds for discharge and that they were added only to bolster the main cause which Cathey advanced. While the moonlighting under other circumstances might have been a sufficient cause for Storey's discharge under Respondent's policies, "A justifiable cause for dismissal is no defense if it is a pretext and not the moving cause." N.L.R .B. v. Solo Cup Company, 237 F.2d' 521 , 525 (CA. 8). THURSTON MOTOR LINES, INC. 1309 1. The alleged refusal to baigain As set forth in detail in section D, 1, above, on March 17, 1965, Secretary- Treasurer Frank Reed of Teamsters Local 327 by letter to Howell, which was received on March 19, claimed to represent a majority of the truckdrivers at the Nashville terminal and stated his readiness to submit proof of representation to any impartial third party. On March 22, 1965, Reed filed his petition in Case 26-RC-2357 seeking a unit of all the city drivers and dock employees at the terminal. On March 23, Howell replied to Reed's March 17 letter referring Reed to the Respondent's home office in Charlotte, and on March 29, Thurston replied to Reed's letter stating that cir- cumstances coming to the Company's attention indicated that a majority of the drivers did not wish to be represented by the Union.120 Thurston's letter stated that it was not clear that the bargaining unit "which seems to be suggested in your letter," would be appropriate. However despite indicating awareness of the Team- sters petition, the letter made no comment with respect to the unit requested in the petition, which Respondent subsequently agreed was appropriate. At all times between March 17 and March 29, the Teamsters had valid applica- tion cards from a majority of the 14 drivers, even assuming that both part-time employees then on the payroll were to be considered drivers,121 and also had a majority among the combined group of 17 drivers and dockmen, including the two part-time employees. Although Reed's March 17 letter mentioned only the drivers, by the time of Thurston's March 29 letter the petition made it clear that the Union was not seek- ing a limited unit but claimed to represent all Nashville terminal employees engaged in driving and dockwork While Thurston's letter of October 29 challenged the appropriateness of the unit set forth in the letter, its failure to mention the unit described in the petition makes clear that its challenge was technical and did not reflect candid concern over the scope of the unit of the Teamsters claimed to repre- sent. I find that the request tor recognition set forth is the Teamsters March 17 letter, as clarified by its petition , was sufficient in form as a request for bargaining 122 and constituted a valid request for bargaining in the appropriate unit.123 As found, Teamsters Local 327 represented a majority in that unit at the time of the request and of the refusal. In the light of Respondent's other unfair labor practices, which had begun before the Teamsters request but intensified almost simultaneously with its receipt and took more drastic and varied forms, including the discharge of more than a third of its employees , it is readily concluded that Respondent 's refusal to recognize Local 327 on March 29 and thereafter was not motivated by a good-faith doubt as to Local 327's majority status but was "due to a desire to gain time and to take action to dissipate the union's majority." Joy Silk Mills v. N.L.R.B., 185 F 2d 732, at 741 (C.AD.C.), enfg. 85 NLRB 1263. Accordingly, I find that on March 29, 1965, and all times thereafter Respondent refused to bargain with Local 327 in violation of Section 8(a)(5) of the Act.124 120 There is nothing in the record to indicate what circumstances , If any, had come to Respondent's attention to indicate that a majority did not wish to be represented by the Teamsters. 1-On March 17, the Teamsters had 9 cards from among the 12 regular driieis and 2 from among the 3 regular dockmen. By March 29 , it had cards from an additional dockman and an additional driver 112Jas H. Matthews cC Co, 149 \LRI' 161, 167, enfd. 61 LRRM 2070 (CA. 8) 123 Sabine Vending Co ., Inc., 147 NLRB 1010. 124 In view of the evidence set forth in section D, 2, above and my findings with respect thereto, it Is clear that at the time of Respondent 's refusal, Respondent was not faced with rival claims of two unions which precluded it from recognizing either On March 29 TEA had at most two signed authorization cards in its possession , including leadman Walters' TEA not only lacked a majority on that date but I am satisfied for reasons set forth above that no claim of majority representation had been made by TEA as of that date. Finally at no time did TEA have cards from a majority of the employees in the unit apart from those which were solicited by Walters. See N.L R B. v. Hamilton Plastic Molding Co., 312 F.2d 723 ( C A. 6) ; Insular Chemical Corporation and Rubber Corpora- tion of America, 128 NLRB 93; Conren, Inc., d/ b/a Great Scot dupes market, 156 NLRB 592, 601-602. 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Thurston Motor Lines, Inc., described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, as alleged in the complaint, I shall recommend that Respondent be ordered to cease and desist therefrom and take certain affirmative action. As I have found that Respondent discriminated against employees Thomas Lar- kins, Jackie McDole, Thomas Motion, James Screws, Glenn Poss, Davis Robertson, and Larry Storey by discharging them on the various dates set forth above, I shall recommend that Respondent be ordered to offer them immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges and to make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to them of the sum of money equal to the amount they normally would have earned as wages from the dates of their discharges to the date of the offers of reinstatement, less their net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Moreover, as I have found that Respondent discriminatorily denied employee Philip Vaughn part-time employment between March 30, and April 9, 1965, I shall recommend that Respondent be ordered to make him whole for the loss of earnings he may have suffered by reason of the discrimination against him by payment to him of the sum of money equal to the amount he would have earned as wages between those two dates less his net earnings, if any, on the days he would have worked, to which shall be added interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., supra. As I have found that Respondent engaged in substantial violations of diverse character, I am of the opinion that there exists a danger of commission of other and further unfair labor practices and shall recommend that Respondent be ordered to cease and desist from infringing in any other manner on rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Thurston Motor Lines, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters, Chaffeurs, Helpers and Taxicab Drivers Local Union 327, affili- ated with International Brotherhood of Teamsters, Chaffeurs, Warehousemen and Helpers of America, and Transportation Employees Association (Independent), Local 101, are labor organizations within the meaning of Section 2(5) of the Act. 3. All truckdrivers and warehousemen employed at Respondent's Nashville, Tennessee, terminal, excluding office clerical employees, mechanics, salesmen, guards, and supervisors as defined in the Act constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since March 17, 1965, Local 327 has been, and now is, the exclu- sive representative of the employees in the said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By coercively interrogating its employees, threatening employees with reprisal as a consequence of their union activities, threatening to hire employees on the basis of antiunion sympathies, creating an impression of surveillance of union activities, and requesting employees to report on the union sympathies of other employees so as to interfere with, restrain, and coerce its employees in the exercise of rights guaranteed them by Section 7 of the Act; by rendering unlawful aid, assistance, and support to Transportation Employees Association (Independent), Local 101; by changing the employment status of employees so as to induce them to forgo union membership and activity; by discriminating in regard to the hire and tenure of employment of employees thereby discouraging their membership in Local 327; and by refusing to bargain collectively with Local 327 as the exclusive representa- THURSTON MOTOR LINES, INC. 1311 tive of its employees in the appropriate unit above, all as found above, the Respond- ent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (2), (3), and (5), and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that Thurston Motor Lines, Inc., Nashville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their own membership, activities, and desires or those of other employees. (b) Threatening employees with discharge, terminal shutdown, refusal to sign a contract, withholding of future raises, or any other reprisals for engaging in union activities. (c) Requesting employees to report to Respondent' s managers or supervisors with respect to the union sympathies or activities of other employees. (d) Threatening to hire employees on the basis of antiunion sympathies. (e) Creating an impression of surveillance of union activities. (f) Assisting Transportation Employees Association (Independent), Local 101, by the participation of its supervisors in urging and soliciting its employees to sup- port, to sign authorization cards for, or to join said organization, or by unlawful deduction of dues from wages. (g) Changing the employment stauts of its employees by granting them full-time employment or changing job duties so as to induce them to forgo union member- ship or activities. (h) Discouraging union membership in Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America by discriminating against employees in regard to the hire and tenure of employment or any term or condition of employment. (t) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section of this Decision entitled "Conclusions of Law." (j) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to loin or assist Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act- (a) Offer Thomas Larkins, Jackie McDole, Thomas Motion, James Screws, Glenn Poss, Davis Robertson, and Larry Storey immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make the above-named employees and Philip Vaughn whole for any loss they may have suffered by reason of the dis- crimination against them in the manner set forth in the section of this above Deci- sion entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right, to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Serv- ice Act, as amended, after discharge from the Armed Forces. (c) Reimburse all employees for any union membership dues unlawfully exacted by deduction from wages, together with interest at the rate of 6 percent per annum. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay under the terms of this Decision. 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Upon request, bargain collectively with the above-named Union as the exclu- sive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (f) Post at its Nashville, Tennessee, place of business copies of the attached notice marked "Appendix." 125 Copies of said notice to be furnished by the Regional Director for Region 26, shall, after being duly signed by Respondent's representa- tive, be posted by it immediately upon receipt thereof and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.126 12i In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "the Decree of the United States Court of Appeals, Enforcing an Order " shall be substituted for the words "a Decision and Order." In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL offer to Thomas Larkins, Jackie McDole, Thomas Mohon, James Screws, Glenn Poss, Davis Robertson, and Larry Storey immediate and full reinstatement to their former or substantially equivalent positions without prej- udice to their seniority or other rights and privileges , and we will make the above-named employees and Philip Vaughn whole for any loss they may have suffered as a result of discrimination against them. WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truckdrivers and warehousemen employed at the Nashville, Tennessee, terminal , excluding office clerical employees, mechanics, guards, and super- visors as defined in the Act. WE WILL NOT coercively interrogate our employees concerning their union membership, activities, or desires. WE WILL NOT threaten our employees with discharge, terminal shutdown, refusal to sign a contract, withholding of raises, or any other reprisal for engag- ing in union activities. WE WILL NOT threaten to hire employees on the basis of antiunion sym- pathies. WE WILL NOT create impression that we are engaged in surveillance of employee union activities. WE WILL NOT request our employees to report to our managers or super- visors with respect to the union sympathies or activities of other employees. WE WILL reimburse all employees for any union membership dues unlaw- fully exacted by deduction from wages, together with interest at the rate of 6 percent per annum. WE WILL NOT assist Transportation Employees Association (Independent), Local 101, by the participation of our supervisors in urging and soliciting employees to support, sign authorization cards for, or join said organization, or by unlawful deduction of dues from wages. INT'L BROTHERHOOD OF TEAMSTERS, LOCAL 377 1313 WE WILL NOT change the employment status of employees by granting them full-time employment or changing their job duties so as to induce them to forgo union membership or activities. WE WILL NOT discourage membership in Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and helpers of America, or any other labor organization by discriminatorily discharging or laying off any of our employees. WE WILL NOT refuse to bargain collectively with Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of all the employees in the bargaining unit described above. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. THURSTON MOTOR LINES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele- phone 534-3161. International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 377 and All- American Stamp and Premium Corporation of New York, Charging Party International Brotherhood of Teamsters, Chauffeurs , Warehouse- men and Helpers of America, Local Union No. 377 and Hath- away Bakeries Division, Seaboard Allied Milling Corporation, Charging Party International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 377, and Ralph Lucente and National Tea Company, Charging Party. Cases 8-CC-230,239, 231, and 258. June 24,1966 DECISION AND ORDER On April 14, 1966, Trial Examiner George L. Powell issued his Decision in the above-entitled proceeding, finding that respondents 159 NLRB No. 86. 243-084-67-vol . 159-84