Transway, Inc.

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Even a statement by an employer that, in the event that a union's strike threat materialized , the plant would be permanently closed, because . the employer's cus- tomers would withdraw their patronage , was deemed by the Board to be privileged .8 And, in Mayfau A9idivest, Inc.,9 it was held not to be unlawful for the respondent to publicize to its employees the following statement: Unions cause strikes, and strikes hurt everyone . A strike here would be extremely harmful because it could cause us to lose our major customer, National Homes. National Homes demands one day service , and if we fail to meet their needs, I'm sure they would not hesitate to find another supplier. [Emphasis supplied l The Board majority said of the foregoing quoted language: The statement in effect expresses the Respondent 's opinion as to possible loss of work in the event of a strike; it does not expressly or impliedly threaten that the Respondent will take action inevitably leading to job loss in reprisal for the employees' union activity. There seems even more reason in the case at bar to regard the pertinent language in the December 9 letter as merely an "expression of opinion as to possible loss of work in the event of a strike ," and as therefore privileged.lo Accordingly, I conclude that the December 9 letter affords insufficient basis for finding that Respondent violated the Act or interfered with freedom of choice in the election . 1 will, therefore , deny the General Counsel's motion for judgment on the pleadings and, as it appears that General Counsel is relying solely on that letter to establish the allegations of the complaint and the Union 's objection to the elec- tion, I will grant Respondent's motion to dismiss the complaint and to overrule the objection to the election. RECOMMENDED ORDER Upon the entire record in this proceeding , it is ordered that the complaint in Case 10-CA-6421 be, and it hereby is, dismissed and that the objection to the election filed in Case 10-RC-6492 and referred to me be, and it hereby is, overruled. 8 Poray, Inc, 143 NLRB 617, 620-621 ( Member Brown dissenting). 8 148 NLRB 1602 , 1603 ( Member Brown dissenting) 10 Cf Aeronca Manufacturing Corporation, 118 NLRB 461 ; Haynes Stellate Company, Division of Union Carbide Corporation , 136 NLRB 95 ; The William J Burns International Detective Agency, Inc , 148 NLRB 1267 There the Board found to be unlawful or coercive employer statements , which , unlike the instant letter , portrayed loss of patronage as the inevitable result of the employees ' selection of it union . Moreover , in all those cases the Board stressed various factors not here involved , such as constant reiteration of the theme of adverse customer reaction to organization of the employees by a union , misrepresenta- tion of material facts as to such reaction , and (in Acronca ) Independent, coercive acts by the employer Transway, Inc. and General Truckdrivers, Chauffeurs, Ware- housemen and Helpers Local 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, Ind. Case 15-CA-2675. September 2, 1966 DECISION AND ORDER On May 18, 1966, Trial Examiner George Turitz issued his Deci- sion in the above-entitled proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain 160 NLRB No. 58. TRANSWAY, INC. 839 affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, and a supporting memorandum? 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 this case to a three-member panel [Chairman McCulloch and Members Fanning 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 and memorandum, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 2(c), the present paragraph 2(c) and those subsequent thereto being consecutively relettered: [" (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." [2. Add the following immediately below the signature line at the bottom of the Appendix attached to the Trial Examiner's Decision : [NOTE.-Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] 1 Subsequently, the General Counsel moved to strike the documents attached to Respond- ent's memorandum , and all references to said documents contained in the memorandum, on the ground that the documents were not offered or received in evidence during the hearing and were thus inadmissible evidence The Respondent stated in its memorandum that it recognized that the documents would not be considered "as evidence" but was submitting them so that the Board would "know where the truth really lies. . . ... As Respondent recognizes that the documents attached to its memorandum are not evidence , we have not not considered them We find it unnecessary, therefore, to strike the documents , as urged by the General Counsel. -- a The findings and conclusions of the Trial Examiner are based in part upon his credi- bility determinations, to which the Respondent has excepted.-After a careful review of the record herein, we conclude that the,Trial Examiner's credibility resolutions are not con, trary to the clear preponderance of the relevant evidence and, accordingly, find no basis for disturbing them. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). Similarly, there is nothing in the record to support Respondent's claim that the Trial Examiner was biased and guilty of hostility toward the Respondent, and such con- tention is herewith rejected. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On March 14, 15, and 23, 1966, a hearing was held before Trial Examiner George Turitz at New Orleans, Louisiana, on a complaint against Transway, Inc. (the Respondent and at times the Company and Transway) issued by the General Counsel of -the National Labor Relations Board (the Board) through the Acting Regional Director of the Board's Region 15. The complaint was issued Decem- ber 23, 1965, on a charge and an amended charge filed by Local 270, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Inde- pendent (the Union and at times the Charging Party), and served on Respondent on July 13 and August 30, 1965, respectively. On January 7, 1966, Respondent filed an answer to the complaint in which it denied all allegations of unfair labor prac- tices and averred certain facts in support of its denials of the discriminatory dis- charge of the two employees named in the complaint.' At the hearing the General Counsel and Respondent were represented by counsel, and the Charging Party by its secretary-treasurer.2 At the conclusion of the hearing oral argument was waived. Counsel for the General' Counsel filed a brief which has been duly considered The issues litigated at the hearing were the allegedly discriminatory discharge of, and refusal to reinstate, Louis Bryant and Theodore Switzer, in violation of Sec- tion 8(a)(1) and (3) of the National Labor Relations Act (the Act) and alleged acts by Respondent in violation of Section 8(a)(1) of the Act which may be broadly grouped under three heads, namely, illegal interrogation, illegal threats, and soliciting an employee to inform as to the union activities, desires, and sym- pathies of another employee. Upon the entire record 3 and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Transway is a Louisiana corporation having its principal office and place of busi- ness in New Orleans, Louisiana, where it is engaged in the business of transporting specialized freight by motor carrier, operating over irregular routes and handling only a few named commodities, among them motion picture prints for exhibition at motion picture theaters. In the course and conduct of its business it annually receives in excess of $50,000 for services performed in States other than the State of Louisiana. Respondent admits, and it is hereby found, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The discharge of Bryant On Monday, August 23, 1965, an election was conducted by the Board at Respondent's premises among employees of Respondent to determine, whether or not they desired to be represented for purposes of collective bargaining by the Union? The scheduled hours of the election were 7 to 8:30 a.m., and 6:30 to 7:45 p.m. Brandon, general manager of Respondent, and others who were interested, including Bryant, arrived around 6 a.m. Shortly before 7 a.m. the Board agent con- 1 On March 1, 1966, the complaint was amended by the Regional Director to allege the filing and service of the original charge, inadvertently omitted from the complaint as issued. At the hearing Respondent orally amended its answer so as to admit the allegations of the amendment. 2 The representative of the Charging Party was absent during most of the hearing 3 Pursuant to the request of both parties', official notice .has .been. taken of the kBoard's Decision on Review In the matter of Tramway, Inc., New Orleans, Case 15-RC-3024, 153 NLRB 885, and of certain proceedings had in said case, and of the Board's Decision and Order in the matter of Film Inspection Service, Inc ., Case 15-CA-2200, 144 NLRB 1040. 4 Case 15-RC-3024, supra. TRANSWAY, INC. 841 ducting the election, Kelly Baird, asked Brandon and Schwehm, the Union's repre- sentative, who their respective observers were. Brandon named Cecil Warren and Allen Lemoine as Respondent's two observers. Schwehm stated that the Union was using only one, namely Bryant. Brandon immediately objected to Bryant acting as observer. The testimony as to the grounds stated by Brandon for his objection and as to the ensuing conversation is in sharp conflict and will be discussed below. It is undisputed, however, and found, that Respondent made known for the first time on this occasion that Bryant was no longer employed. Brandon testified at length as to the circumstances leading up to his decision to discharge Bryant. Bryant, he said, had been employed since about 1952. His job for the last 2 or 3 years of his employment was night dispatcher, loader, and driver and Brandon tes- tified that Bryant was good on the job, driving well, good at repairing trucks, and knowing the routes well. He testified that Bryant had overcome "a drinking prob- lem" some years before but had succumbed again during the last year of his employment, especially since March 2, 1965. This testimony was lengthy, and embellished with details about an illicit love triangle involving two friends of Bry- ant.5 Eventually Brandon categorically denied that the alleged drinking ever impaired Bryant's ability to carry on his work as relief driver or to repair trucks, and he insisted that the "drinking problem" was not a factor in his decision to dis- charge Bryant, stating: It was not a serious thing and did not enter my mind. I had hoped that Bryant would straighten out as he did before . he was generally fired because of threats, intimidation of employees, his lying, his stealing of company records, and his improper supervision and particularly in allowing it to be interfered with by personal feelings, by personal relationship, where these personal mat- ters interfered with his proper functioning in his job. I believe that would be the basis... . The drinking, Brandon explained, in his opinion was "background" which caused some of the other things, "that they were related, but I did not fire him specifically for drinking." Respondent's counsel also stated that Bryant was not discharged because he had a drinking problem. Brandon explained that the drinking was mak- ing Bryant surly and argumentative and caused him to lay blame for his own work on other people. In his affidavit given during the investigation of the charge Bran- don did not mention drinking in connection with the discharge of Bryant; and the notice of termination which Respondent claimed it sent to the Division of Employ- ment Security of the State of Louisiana 6 did not mention drinking. In support of his asserted general reasons for discharging Bryant, Brandon speci- fied five incidents. The first incident involved Louise Bell, employed by Respondent as a janitress at night. Brandon testified that shortly before March 1965, when he left the office one night and returned unexpectedly, he saw Bell leave and remain away about 45 min- utes without punching out. He testified that at first Bryant said that he was not aware of the fact that she had left, and that Bell said that she was going out to buy some medicine for herself and while going was tb cash Bryant's check. On further questioning, said Brandon, they admitted that on several occasions Bryant had sent her out of the building to cash checks or get sandwiches. He testified fur- ther that the next night when he spoke to Bryant the latter said that he had dis- claimed knowledge in order to protect Bell, who had been ill, since he did not know what she had told Brandon, and that Bryant promised that it would not hap- pen again. He said that he told both employees that he should have fired them both on the spot for dishonesty and that if it happened again he would discharge them. Brandon said that there were no incidents of that kind involving Bryant or Bell thereafter. Bryant denied that he gave orders to anyone or that Bell or anyone worked under his supervision. He stated that on the occasion in question Brandon asked him if he knew that Bell was leaving at various times at night, and he answered yes. Asked whether she had punched her timecard in those instances Bry- ant replied that, since he had nothing to do with her timecard, he would imagine 5 The only identifiable instance testified to by Respondent's witnesses where Bryant was seen under the influence of liquor was the day of the election at times when Bryant was not supposed to be at work. Bryant denied that he was drinking on that occasion, and denied that he had "a drinking problem." 6 Respondent's Exhibit 4. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so. Brandon then said, "Well, I want you from now on when she leaves here for any purpose for you or herself to see that she punches off and see that she punches on, and I said yes sir" and that from that time on Bell always punched the clock whenever she left. Bryant also stated that Brandon asked him if she went out on his personal business or her own and that he replied that it was mostly her own, but that if she was going to the drugstore for herself she would get his check cashed. He specifically denied that Brandon threatened to discharge him on that occasion. Bell, who was still employed by Respondent at the time of the hearing, did not testify. The second incident specified by Brandon involved an employee named Norwood Spencer. Brandon testified that about June 25, 1965, Spencer told him that Bryant had threatened him with a jail sentence and a $500 fine; that Bryant called in Lotz, the traffic manager, and Mipro, the office manager and auditor, and had him repeat the statement. He testified as to what Spencer reported: Basically they threatened him that he had to change his way of making logs. He was making them incorrect, and if he didn't make them [correctly] they were going to report him to the ICC and that would mean the ICC would put him in jail, or they would fine him $500. Brandon testified that Spencer was a poor logger, but that his errors were uninten- tional. He admitted never calling Bryant in to talk to him about Spencer's com- plaint. Mipro corroborated Brandon as to what Spencer said; Lotz and Spencer did not testify.? Bryant denied making any threats to Spencer about going to jail or being fined because of his logs. The next specification by Brandon of cause for Bryant's discharge was concerned with alleged discoveries made by him during an investigation of Transway in the spring of 1965 by the Wage and Hour Division of the Department of Labor. On about May 2 8or 29, he testified, at a conference with a wage-hour investigator he recognized certain documents in the investigator's possession as photocopies of pri- vate company records which he had never turned over to the division or authorized anyone to turn over. He stated that he and Mipro had missed papers prior to that, and that a driver had reported that he was missing some personal papers. He said that he had discovered this around the beginning of March and he added that Mipro had reported that his papers were missing on weekends when the only person work- ing at night in the office was Bryant. Brandon further testified that subsequent to the May 28 conference Cecil Warren reported to him: . that Bryant was up front by himself, Cecil had his leg in a cast and couldn't walk at all, and while he was up there Bryant was running the photo- copy quite a bit, and as soon as Paul Harrell came in why he shoved them all in his pocket, then punched out and went home . and Louise Bell was up in the front office and stayed there all the time that he was photocopying, and that as soon as Paul Harrell came in why Bryant quit photocopying and Lou- ise Bell went somewhere else. Brandon also stated that the wage-hour investigator said that he had company rec- ords to indicate that the Company was hauling items illegally. On cross-examination Brandon admitted that between 15 and 25 employees had keys to the office includ- ing 3 or 4 relief drivers and 8 or 10 regular drivers; and that from time to time he had requested Bryant to run copies of various papers on the machine. Mipro testified that during the spring of 1965 he missed certain notes he had made about various happenings in the Company and that it occurred following weekends when Bryant had been on duty alone. On cross-examination he first testi- fied that he could not answer what day of the week it was that he had last seen them prior to discovering that they were missing but could only guess. Pressed as to whether it could have been Monday, he replied: "Now, wait a minute. Ho, ho, ho, ho, wait a minute. It was the latter part of the week. . . Well, the last time I made notes on the paper that was missing I could say that would be on a Fri- day." Mipro admitted that when he had put those notes into his desk the last time he saw them a number of people were in the building besides Bryant, namely the loading crew, the drivers, the man in charge, and the traffic personnel; that on 7There was no .explanation for the absence of Lota, who was Respondent's traffic man- ager and Bryant 's supervisor. With respect to Spencer's absence Brandon explained , through his counsel, that he had promised to testify voluntarily and then refused, and that when, belatedly , a subpena was obtained , Spencer could not be served. TRANSWAY, INC. 843 ,Saturday there was a skeleton crew in the back and a skeleton office force until 12:30, and that on Sunday there was a skeleton crew in the traffic office consisting of a single man and three or four loaders in the back. He first testified that things were missing from his desk on three or four occasions, saying, "Well, whenever something was missing out of my desk is was the weekend that Mr. Bryant was working." Pressed as to the other occasions he stated: "Actually only on two occa- sions did I find my desk had been rifled, the papers had been rifled through and papers were missing." Pressed further as to the latter occasion when he saw the papers that were missing he retreated from his and Brandon's testimony that the incidents had all occurred on weekends and refused to specify even the day of the week, saying it could have been Monday, Tuesday, Wednesday, Thursday, or Fri- day. He admitted that he had never seen Bryant take any of his papers and had never questioned him about them. Cecil Warren, an over-the-road driver, testified that in July 1965, having injured his foot, he was working in the office at night, and that Bryant worked there about 3 nights on the same shift after returning from his vacation.8 He testified that on one of those occasions Bryant had left him in the back office by himself and that subsequently he went to look for Bryant in the front office, where there is a copy- ing machine. He said that he saw in Bryant's hand a piece of paper "like that yel- low sheet there," and he testified further: . rolled up, and rolled it up and as soon as he saw me, when he saw me, he took this rolled document and jerked his jacket up and put it in his hip pocket, and pulled his jacket down over it. He came on in to his desk, the desk that he sits at all the time. He had a key for it, and he put this in the desk. Then just before we left to get off work this morning he taken it out and put it in his pocket again under his jacket. * * * * * * * And he also carried me home, and when I got out of the car to go in the house, I noticed the document that was still in his pocket. He also testified that looking at the document one could see that it had been run off on the copying machine, and that he informed Brandon of the incident a morn- ing or two later and told Brandon he thought there was something wrong about it. Bryant denied that he had ever given any company records or copies thereof to the wage and hour division. He stated that he did not recall using the photocopying machine after his vacation or being in the office near the machine at that time or rolling up a piece of paper. He stated that it was his duty to check around the entire office to see if there was anything wrong. Another incident testified to by Brandon as to the reason for discharging Bryant was an alleged threat to Harrell, a driver-loader-dispatcher like Bryant. Brandon testified that shortly before or after the discharge of Rogers, which took place on March 2, Harrell informed him that on a prior night a relief driver was put on a a regular driver's route so that the regular driver could privately "check his house" 8 and that immediately thereafter Bryant called Harrell and told Harrell that he was a supervisor, that Harrell had no business sending the relief driver out on the regular driver's route so that the latter could take off without reporting; "that he was going to come down and beat the hell out of Mr. Harrell"; that Harrell further said that Bryant said he was going to get the jobs of a lot of people around that place for -their snooping and letting the driver get out and check on his wife and Rogers. Brandon testified that he did not think that he had spoken to Bryant about the matter because both his managers had told him that they had handled it and no further action was necessary. Mipro testified that between February 25 and 28, when he arrived at work one morning, Harrell told him that Bryant had spoken to him and during the conversation had said, "I'll take care of you and give you a good beating when I come in tonight," and that he had reported that to Brandon 4 to 6 days later, when Brandon came back from a trip. He said that he had offered to Harrell to come down and stay with him that night but Harrell thought it was not necessary. Harrell testified that Bryant asked him how it happened that a driver 8It is undisputed that this was the only time the two men worked together in the past 7 or 8 years. 9 This apparently had something to do with the illicit love affair that Brandon described in his testimony about Bryant 's alleged "drinking problem." ' 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was off and he did not know about it, and that the driver had no authorization to get off; that Harrell replied that he was supposed to be off; and that Bryant then said he would see the next morning about that driver being off and then hung up because Harrell had another telephone call. Harrell further testified that 3 or 4 hours later Bryant called again and wanted to know what business Harrell had informing the other driver that he called. Harrell's testimony continued: I told him that I kindly tried to carry along with him to try to take it and everything and I finally told him it wasn't any of his business. Q. I see. A. And then he hung up on me. Q. I see. A. Didn't hang up rather. He told me he would see me tomorrow, that he would take care of me tomorrow night. He also testified that he reported the conversation to Mipro the next morning because Brandon was out of town. He denied that he got angry during the con- versation but said that the next morning Bryant came and apologized, of which fact he informed,Lotz. He did not testify that Mipro had offered to come down and stay with him that night. Bryant's version of the incident was that on his way home he had seen the driver in question driving a car when he should have been on his route; that he therefore telephoned Harrell and asked whether the driver was not supposed to be on his route; that Harrell replied that was none of Bryant's busi- ness; and that Bryant thereupon said, "Well I will see you tomorrow," and that was all. He testified that he went to Harrell the next morning and said that Harrell had seemed "pretty harsh" when he said that the matter was none of Bryant's busi- ness and that Bryant was sorry if he himself had sounded harsh to Harrell when he said he would see him tomorrow. He told Harrell he was merely "trying to tend to company business." The last incident which Brandon specified as leading to his decision to discharge Bryant involved the firm H. S. Thielen, Inc., Respondent's agent in Lake Charles, Louisiana. Brandon testified that on July 29, 1965, Respondent was informed by Thielen that on that same day its employee, Gates, had received a certain long- distance telephone call and that on July 6, pursuant to Respondent's request, he received a letter from Thielen 10 reporting the substance of the call, which in perti- nent part was as follows: CALLER: Mr. Gates, do y'all still handle those magazines for Transway? GATES: We are Transway's agent here. CALLER: Okay my name is Bryant ... . How many trucks do you operate? GATES' We have three trucks on our regular runs. CALLER: Are you Union? GATES: . Who are you with? CALLER' Oh I'm with the teamsters . . . I just wanted to let you know that we are placing a restriction against Transway: * * * * * * That means that if they deliver -anything to you, you shouldn't handle it. Gates testified that he was employed'as chief clerk by Thielen, and that on June 29, 1965, he received the telephone call reported to Respondent. He testified that the caller identified himself as "Bryant" and said he was "with the Teamsters." However that was the extent of his identification and no claim was made that the caller identified himself as an employee of Transway. Gates admitted that he had never spoken to the caller before and did not, recognize the voice as that of anyone he knew. Gates was in the hearing room during a substantial length of time while Bryant was testifying. Bryant denied ever making a call to Thielen or to anyone named,Gates in Lake Charles. Lombardo, who allegedly received the call, did not testify Brandon testified that when the report, was received from Thielen he argued that Bryant "was just drunk when he made that call," and that he told his attorney that Bryant ". . . is very much anti-union. I don't think he wants even to be in a place where they were... . 1o Respondent's Exhibit 1. TRANSWAY, INC. 845 Brandon also testified at length as to how it happened that Bryant's discharge, decided on 2 months before August 23, was not announced until the moment after Bryant was named as the Union's observer on that day. Brandon stated that when Spencer told him of Bryant's threats, he concluded "on Thursday, Friday or Saturday" of the week, which would be June 24, 25, or 26, that the first thing he wanted to do was to talk to his labor lawyer, Carter, to see if Bryant should be fired. In the absence of Carter, who was on vacation, he spoke to his general counsel, O'Connor, who advised that since, in any event, Bryant was about to leave on vacation, Brandon should await Carter's return. The following Tuesday, June 29, Brandon said, Bryant made the telephone call and Respondent received Thielen's written account of the call on July 6. Brandon testified that he did not want Bryant, who was due back at work that day, to be alone in the office that night and that he therefore instructed him during the day to report at midnight and to "pull routes," i.e., drive a truck. However Bryant then returned with a note from his physician and explained that because of high blood pressure and trouble with his eyes he could do no driving but could only work in the shop." Brandon testified that he suggested that heavy loading would be worse than driving for Bryant's condition, and that he therefore told him he would have him break in a new man, riding with him and letting the new man do all the work, but Bryant next told Brandon that his doctor ordered him to bed for a month or two. Accord- ing to Brandon, he concluded then that Bryant was not coming back. He testified that when, on July 10, he finally reached Carter. and told him of the Lake Charles call and Carter advised him to fire Bryant and not worry about it, Brandon replied that he did not want anyone to say that he had denied Bryant the right to vote in the forthcoming election and that he thought that Bryant, who, he told Carter, was "very much antiunion," was not coming back. Carter agreed that in that case it might be better to wait and let him vote in the election. On several occasions during the period between July 6 and August 20, 1965, Brandon saw Bryant in the plant. He stated however that he continued to believe that Bryant was not coming back to work because Bryant failed to come in and see him on those occasions as he had promised he would. On Friday, August 20, Brandon testified, he learned from Mipro and Lotz that Bryant was indeed coming back to work the following Monday, which was the day of the election, and he so reported to Carter. They thereupon discussed how to go about discharging Bryant without interfering with his right to vote since Carter, Brandon testified, advised that if Bryant was given notice of termination before or during the election, it might lead to the filing of objections. Accordingly, Brandon testified, Carter advised that a separation notice be mailed out the following Mon- day in such a way that it would be received Monday afternoon after the election was over. Brandon testified that the notice was typed on Saturday, and Mipro testi- fied that he mailed it by ordinary mail shortly after 6 a.m. Monday to the Louisiana Unemployment Compensation Division and also mailed a copy at the same time to Bryant. Bryant denied receiving the copy of the notice. Switzer, who was terminated in May 1965, testified that he never received a notice of that type or any other writ- ten notice. No representative of the Unemployment Compensation Division testified. In his pretrial affidavit, given October 29, 1965, Mipro, after telling about Bryant's absence from work starting July 8 and his appearance at the office a few days before the election, concluded, "The above is all I know about Bryant's discharge." Bryant testified that on Tuesday, July 6, he reported back to work at 3 p.m. in time for the start of his usual shift at 3:30 p.m. but that Brandon told him to report at midnight to work along with Warren, whose foot was broken, and possibly drive routes. Bryant worked the midnight to 8 a.m. shift, Tuesday, Wednesday, and Thursday, along with Warren. He made several visits during that period to his regular physician and to an eye specialist. He was advised that he had high blood pressure and also needed an eye operation. Subsequently he was advised that the operation could not be performed until his blood pressure was reduced and that in the meantime he should do no driving or other work that would strain his eyes; n The note, General Counsel's Exhibit 6, on a physician's prescription blank, is dated July 7, 1965, and reads as follows: "It is not advisable for Mr. Bryant to drive because of eyes and blood pressure " Bryant testified that he exhibited that note, along with an- other note from the same doctor, General Counsel's Exhibit 7, to Brandon on July 8, 1965. Brandon denied ever seeing General Counsel's Exhibit 7. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and ultimately he was advised to take a few weeks entirely off in preparation for the operation. Bryant informed Brandon daily of his medical situation and on Thursday, July 8, Bryant received the following memorandum from Brandon: 12 If I do not speak to you by midnight tonight, please call me early Friday morning. Also, whether I speak to you tonight and or tomorrow morning please call me when you finish with the doctor. If you can, arrange your doc- tor appointment after 11 a.m. in case you have to go out on the mail route. When Bryant reported to Brandon on Friday that he had to quit work entirely for a few weeks, Brandon told him to do as advised and to have someone let him know from time to time how he was getting along . Bryant assured Brandon that if serious trouble arose he could be reached at home and would come down to help. Approximately 2 weeks prior to August 4 Bryant was at the company premises and told Brandon that his pressure was then down to some extent and that he would be willing to do some work if he was needed. Brandon said he would prefer that Bryant not work until "straightened out" with his operation. Bryant had his operation on August 4 and was released from the hospital on August 9. He testified that he visited Respondent's premises on August 14, 17, and 19; that on the 14th` he spoke briefly to Brandon and also told Lotz, who asked when he would. return, that it would be as soon as permitted by the doctors; 13 that on the 17th he told Mipro that he wanted to inform, Brandon that he could return to work on the 23d, although not to drive, but Mipro said that Brandon could not be disturbed and that he would tell him; that on the 19th he saw Brandon and told him he would be, back to work on, Monday the 23d, to which Brandon replied, "well, Monday, I'll see you then ."; that he then saw Lotz who asked Bryant when he would be able to return to work, to which Bryant replied, "Monday for sure." Lotz then said, "well I'll see you Monday." 14 The testimony as to the conversation which followed the naming of Bryant as the Union's observer will now be discussed. Bryant testified: . , . Mr Schwehm said, "I'm going to use Jeep Bryant as an observer for the union." Mr. Brandon says, "He cannot serve because I have just fired him." Mr. Schwehm spoke up, he says, "You just fired him? For what reason- and have you made-for what and for why and have you made a filing with the unemployment board as why he was fired?" He says, "No, but we will do that today. That will be done today." Bryant further testified that that was the first time he was told, that he was dis- charged, and that he had received no warning. On cross-examination Bryant denied that any question was raised as to his supervisory status at that time. He said that later, after the voting was in progress , the company observers challenged Paul Har- rell. as, a supervisor, and Bryant said he had the same job as he himself did and therefore could vote. Schwehm's testimony was as follows: Brandon objected to Jeep Bryant being the union observer saying that he was fired. P asked him what he fired him for and he said that he did not report to work, and I asked him if he knew that Mr. Bryant was sick at the time, that he was operated on. He did not answer so I asked him if he notified the wage and hour people-not the wage and hour people, the unemployment people and he said, that he would do that this day... . Schwehm also testified that Brandon was accompanied at the time by another com- pany representative and Bryant testified that Warren was not present but that Mipro was. Mipro and Warren both testified that they were not in the room when the issue of Bryant being an observer was discussed. Lemoine, the other company observer, did not testify. Brandon testified as follows to the conversation which ensued when Schwehm named Bryant as his observer: He said I have only one observer, that is Mr. Bryant, and I said Mr. Baird, I must tell you that I believe Mr. Bryant is in a supervisory capacity. I 12 General Counsel's Exhibit 8. 13 Lotz did not testify 14 This visit actually took place on August 20, as testified by Mipro and Brandon. Gen- eral Counsel's witness, Hill, testified that it was on a Friday, which would have been the 20th TRANSWAY, INC. x;47 will have to object to his being an observer on that basis. He says, anything else? I said Mr. Bryant was in a supervisory capacity, and I just wanted to let you know that I would object to him, and Mr. Schwehm then said, what do you mean by was? And I said, well, this was his duties when he was with the company, and he said, what do you mean was with the company, and I said, well, Mr. Bryant hasn't been here in quite a while. He has promised to come back to work and hasn't showed up. I don't know if he is still with the com- pany or not. He says, well, you say was. What do you mean? I said, just so Mr. Baird knows the whole story This morning before we came in I had a severance notice mailed. I mailed it this morning so it would not interfere with Mr. Bryant's voting, if he wanted, to, and I am not objecting to his vot- ing nor do I want to do anything because a severance notice was mailed. My only objection is that I think he is a supervisor. Mr. Schwehm said, well, why else did you fire Mr. Bryant. Why was he fired, and Mr. Baird says that doesn't matter. Let me go use the phone. I want to make a phone call. ...15 Counsel for Respondent adduced from Brandon the following as the reason for objecting to Bryant acting as an observer: It was morally wrong to hide any facts from Mr. Kelly affecting the conduct of the election, and I did not want to hide anything, or any of my thoughts as to his being an observer, and so I thought, is it morally right to hide this fact from Kelly, and if I say it I know I am going to be accused, but I knew it was the only thing to do, to apprise Mr. Kelly of all the facts so that he could conduct the election properly. To support his claim that his ground of objection to Bryant was his supervisory status, Brandon testified to the following: He had given much thought to having Harrell act as one of his observers but the evening before the election he had told Paul Mipro, Lombardo, Cecil Warren, and Herbert Mipro that, "I still couldn't live with the fact that I thought Mr. Harrell was a supervisor, and as much as I would like to use him as . an observer but he was a supervisor and I would not use him for that." He also testified that shortly prior to the election he spoke to Mipro and Lombardo and told them, as well as Harrell, "That in my opinion that although I would like to use Mr. Harrell the following Monday of the election, since he knew many men, I couldn't conscientiously do so because in my opinion he was in a supervisory capacity." At another point in his testimony he testified, "Mr. Harrell I did not see until the following Monday morning at 6.00, and I told Mr. Harrell that I hated to get him down there and have him come in at 6:00, but in my opinion he was still a supervisor, and I just thought he should know why he was not being used as an observer. Mipro testified that during the weekend prior to the election Brandon had a meeting with the potential observers and some supervisory personnel . At that meet- ing, said Mipro, Brandon instructed them that in the event something should hap- pen to prevent his presence at the election, Bryant was to be challenged as an observer if he showed up as an observer on the ground that he considered him supervisory or semisupervisory, and that Harrell was in the same situation. Harrell, called by Respondent, testified that he was at no meeting where Brandon discussed whether or not he could act as an observer but that Brandon asked him if he would, to which he assented, and that Brandon asked him to come down early on the morning of the election. He testified further that he did not come down early and that thereupon Brandon told him that he would not be needed as an observer but gave no reason. At the representation case hearing which preceded the election the Union sought to exclude Harrell and Bryant from the unit; Respondent's posi- tion was that Bryant and Harrell were entitled to vote in the election. Brandon there testified that the Company had two dispatchers with a supervisory authority, namely Lombardo and Barras but that Bryant and Harrell, although they did some dispatching, did not exercise supervisory authority except when Lombardo and Bar- ras were on vacation. Respondent's counsel stated during the present hearing that he did not contend that Bryant was a supervisor. is Counsel for Respondent, pursuant to Section 102.118 of the Board's Rules and Regula- tions, Series 8, as amended, requested the 'Board and the General Counsel to permit Baird, the Board agent, to testify but such permission was denied. Counsel stated that he did not seek to have Baird testify with respect to his own actions or the conduct of the elec- tion, but only with respect to an allegedly overheard conversation. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings as to Bryant's Discharge Brandon's involved explanations of the ground claimed at the hearing of his objection to Bryant acting as observer do not bear examination. The only evidence Respondent could marshal to the effect that Brandon was moved to object not by his discharge of Bryant but by his opinion that Bryant was a supervisor was his testimony about his secret thoughts and his and Mipro's uncorroborated testimony about statements allegedly made by Brandon during the weekend before the elec- tion when instructing his subordinates what to do if he could not be at the election. All Brandon had to do before the election was to say who the observers were to be; explanations about Harrell's supervisory status and Brandon's pangs of con- science at the thought of having a supervisor act as his observer were unneeded except for purposes of the present case. Harrell himself testified, in flat contradic- tion to Brandon, that he was simply told by Brandon on Monday morning that he was not to be an observer, with no explanation. Moreover, if Brandon had in fact decided during the weekend that Harrell was not to be an observer, he would have go[ word to him not to bother appearing at 6 a.m. Monday. Finally, since he claimed that the idea that the two men were supervisors was planted in his mind by the wage-hour investigator several months before, it is not credible that as late as the weekend before the election he was considering using Harrell but suddenly was struck by his conscience the night before the election. As opposed to the evi- dence adduced by Respondent are the following: (1) Bryant and Harrell had been found by the Board to be nonsupervisory, as Brandon knew. (2) This finding was in accordance with Respondent's demand and against the Union's. (3) Brandon himself had testified at the representation case hearing that they were not super- visors. (4) Schwehm's testimony that Brandon said that Bryant had been termi- nated because he had not reported for work was corroborated by Brandon's own testimony that he did say during the conversation which followed his challenge of Bryant that Bryant had been away and had been discharged, and by Mipro's pre- trial affidavit that Bryant's absence was all he knew about his discharge. Plainly Brandon was enraged on learning that Bryant was pro-Union and hastily seized upon the handiest pretext that came to his mind for discharging him, namely, his pro- longed absence. The reason Brandon subsequently abandoned the discharge-for-absence defense is that he realized that it could not stand up at a trial as a believable cause for dis- charge. He thought, however, that the absences might sound plausible as a reason for not taking action against Bryant after deciding to discharge him. However, his testimony to this effect was just as implausible as would have been testimony that the absences were the cause of the actual discharge. Bryant advised Brandon daily between July 6, when he returned to work from vacation, to July 9, the day follow- ing his last day of actual work, of the results of his daily visits to his doctors; and as late as July 8 Brandon wrote him a memorandum about his next day's work and visit to the doctor. Notwithstanding such intensive medical consultation and Bry- ant's faithful and prompt reporting to Brandon about it, Brandon testified that when Bryant told him that his doctor ordered him off work entirely in preparation for an operation, he thought that Bryant was not coming back to work; and he testified that he persisted in this opinion even after he learned through a friend that Bryant had in fact been in the hospital, and he saw Bryant visiting the Transway premises on a number of occasions during July and August. No claim is made by Respondent that Bryant ever said a word to indicate that he was not returning. On the contrary, it is uncontradicted that on about August 14 Lotz, Bryant's supervisor, asked him when he would return to work and that Bryant replied it would be as soon as the doctor permitted it. No evidence was presented of anything that could reasonably have given Brandon the impression that Bryant had decided not to go back to work for Respondent. His testimony that he decided in June at the time of the Spencer report to discharge Bryant, and that his attorney advised him on July 10, upon hearing of the Thielen phone call, to discharge Bryant is, accordingly, not credited. As to the alleged mailing of the discharge notice before the election the evidence offered by Respondent is self-destructive. The purpose, according to Brandon, was to have Bryant receive the notice in the afternoon mail, thus not interfering with his right to vote, and not furnishing a possible basis for objections to the election but, apparently, nevertheless preventing him from going to work at 3:30. In the first place, it will be recalled that Brandon ascribed his raising the supervisor-observer issue with respect to both Harrell and Bryant to his "good conscience." A "good TRANSWAY, INC. 849 conscience" that excludes two supervisors from being observers, however, would not allow them to vote either-especially where Brandon asserts that until he heard Bryant was to be an observer he really thought Bryant was anti-Union. More to the point, if Bryant had received a discharge notice before reporting for work at 3:30, Respondent would not have accomplished its alleged purpose of avoiding objection to the election,16 since there was still to be voting from 6:30 to 7:45 p.m. Furthermore no reasonable explanation was offered of why the Respondent's action had to be taken at that precise time, Monday morning before the election. Assum- ing, arguendo, that it was dangerous to allow Bryant to be in the office beginning at 3:30 Monday afternoon, Respondent could have ordered him to report at mid- night, as had been done July 6 when he returned from vacation, and then dis- charged him at midnight. A 6 a.m. mailing, if proved, might have helped establish a defense that Bryant had not been discharged because he was designated as the union observer, but no other consideration required it. Finally, and persuasive even standing alone, if Brandon had been plotting so careful a course with respect to discharging Bryant as he described, the plotting would have included some better proof of mailing than the bare word of an auditor-office manager, particularly one who in his pretrial affidavit stated that all he knew about Bryant's discharge was certain facts connected with his absence and illness just prior to the election.17 It is, accordingly, found that Respondent did not mail a notice of Bryant's dis- charge prior to the election, that Respondent did not decide to discharge Bryant, or even consider such discharge, until it learned that he was the Union's observer, and that Respondent did discharge Bryant at that time. It is further found that the ground stated by Brandon for objecting to Bryant as an observer was that he had been discharged, and not that he was a supervisor. Brandon's discharge of Bryant in direct response to the announcement that he was to be the union observer makes the discriminatory motive for the discharge plain. Moreover, at the time the discharge was announced, the reason stated was different from the reasons advanced by Respondent at the hearing 18 In the circumstances discussion of those reasons is, perhaps, superfluous. Nevertheless they will be con- sidered briefly. The Bell incident, involving that janitress' leaving the plant without punching out, occurred prior to March 1965 and admittedly was not repeated. Even assuming, arguendo, that Brandon's version of the incident was correct, it was not of such a nature as, unrepeated, to carry over until August 23 in an employer 's mind as a ground for discharge.19 It is found that the Bell incident played no part in Respond- ent's decision to discharge Bryant but was seized upon as a pretext to justify a dis- charge hereinafter found to have been discriminatory. Respondent failed to proved that Bryant threatened Norwood Spencer with jail and a fine because of his bad logging. Even as testified by Mipro and Brandon, Spencer reported a warning as to what some governmental body might do, which is not a threat by the warner. The whole incident sounds at worst like teasing, and might even have been good-faith advice that it was to Spencer's own interest to log correctly. Moreover, Spencer's alleged report was not only about Bryant but about others also, and Respondent made no claim that it did anything about those others, or that it even asked Bryant about his participation. In any event , since, as will hereinafter appear, Brandon and Mipro are not credible witnesses, it is found that Respondent has failed to prove that Spencer reported such warnings by Bryant, and it is found that no such reports played any part in Respondent's decision to discharge Bryant 20 It is further found, 10 Objections were filed, as testified by Schwehm, but the Union neglected to make timely service on Respondent as required by the Board's Rules, Section 102 69, and the objections were therefore withdrawn 11 Mipro testified that Hurricane Betsy had caused the inundation of his house so that he was not in a mood to think much about what he said in his affidavit. 18 Hurd Corporation, 143 NLRB 306, 318. 19 Bryant testified as to the incident more convincingly than Brandon and it is found that the incident occurred as described by Bryant. 20 Assuming arguendo that Respondent did receive such reports from Spencer, it is found, in view of the triviality of the information and the circumstances of Bryant's actual dis- charge at the election that nevertheless they played no part in its decision to discharge Bryant but were seized upon as a pretext to justify a discharge hereinafter found to have been discriminatory. 257-551---67-vol. 160-55 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the basis of Bryant's uncontradicted testimony, which is credited, that Bryant did not tell Spencer that the latter would be jailed or fined because of his logging. The testimony adduced by Respondent to establish its belief that Bryant was stealing and copying papers to hand over to the wage-hour investigator, or for other purposes, will now be considered. The nearest thing to direct evidence of wrong- doing by Biyant was furnished by Cecil Warren, who merely described ordinary actions in terms of a spy drama. Thus, he said that when Bryant placed a "rolled up" photocopy in his hip pocket, he not only "jerked his jacket up," but he pulled the jacket down over it, implying, apparently, that if Bryant were up to any good, he would have walked round with the skirt of his jacket round the waist in order to display the paper. His implication that Bryant was trying to hide something by placing the copy in a desk for which "he had a key," and then taking it out and placing it again, of all places, "under his jacket" is at variance with his admission that Bryant did all this in the full view of the witness and that he then took him home Strangest of all is Warren's failure to say anything about what Bryant did with the original from which he made the copy. Mipro's testimony as to this episode was so self-contradictory as to be unworthy of belief. After saying that he missed papers three or four times and suspected Bryant because it happened only on week- ends when Bryant was on duty, he changed the count to two occasions, only one of which was a weekend. Moreover, as already noted, in his pretrial affidavit he said that he knew nothing about Biyant's discharge except his prolonged absence. Bran- don, who tried to involve Bryant only on the basis of reports received from Mipro and Warren, had his testimony undermined and made worthless by the fact that they contradicted him in important detail. Thus, he testified that Mipro had told him that papers were missing over weekends when Bryant was the only one on duty. As already indicated, Mipro changed that story as to weekends when he was on the witness stand. Mipro also admitted that others were on duty besides Bryant on those occasions. So far as Warren's alleged reports are concerned, Brandon was com- pletely out of touch with his alleged source. His testimony had Warren immobilized in the office with his broken foot, and Harrell coming in and discovering Bryant at the photocopier; and he threw in Louise Bell as being present with Bryant. All this was at complete variance with Warren's testimony that he himself went up to the front office and discovered Bryant there; he mentioned nothing about Harrell or Bell. It is found that Bryant did not steal Respondent's records or copy them for the purpose of furnishing them to the wage-hour investigator or for any other purpose not authorized by Respondent. It is further found that Respondent did not believe that Bryant did so. With respect to Bryant's alleged threat to Harrell, what Mipro testified Harrell told him was that Bryant said, "I'll take care of you and give you a good beating when I come in tonight." Brandon made it, ". . . that he was going to come down and beat the hell out of Mr. Harrell." However, Harrell, the source of the informa- tion, testified that what Bryant said was, " that he would take care of me tomorrow night"; 21 and even this was said stumblingly. He testified: I finally told him it wasn't any of his business . . . and then he hung up on me . . . didn't hang up rather He told me he would see me tomorrow, that he would take care of me tomorrow night. Bryant's version, that he said, harshly, he would "see" Harrell the next day is not too different from Harrell's. While Harrell was a generally truthful and credible witness, in this particular instance the words "that he would take care of me" seemed to be not what he actually heard, but his later interpretation. It is found that the remark actually made was as Bryant testified. Bryant's admission to Harrell that his remark, "I'll see you tomorrow" was uttered harshly, would imply a threat of some kind. However, the threat need not have been of a beating; it could equally have promised some more harsh words or a report to management. In any event Bryant apologized and the incident was closed. It happened in the latter part of February and Brandon testified that he did nothing about it at that time because his managers told him it had been satisfactorily adjusted. For these reasons it is found that Bryant's conversation with Harrell was not a contributing cause of his dis- 22 Harrell did not testify that he spoke to Brandon about the incident TRANSWAY, INC. 851 charge and that Respondent searched out and seized upon the incident as a pretext to justify a discharge hereinafter found to have been discriminatory.22 The Thielen letter shows that the caller identified himself as "with the Team- sters" and not as a Transway employee. As Bryant is not an uncommon name, Brandon's testimony that, without inquiry or even giving the matter thought, he assumed that his employee, Louis Bryant, was the person referred to is not accepted as true. It might be conceivable that on hearing Bryant named as the union observer at the election Brandon concluded that Bryant may have made the telephone call, and that this entered into his decision to discharge Bryant, along with the fact that Bryant was the union observer. However, the evidence is to the contrary. Brandon did not tell Schwehm that Bryant was discharged for disloyalty or for promoting a boycott; he gave the pretextual reason that Bryant had been absent. Accordingly, it is found that the Thielen incident played no part in Respondent's decision to discharge Bryant but was seized upon as a pretext to justify a discharge hereinafter found to have been discriminatory.23 It is found that Respondent discharged Bryant because of his union activities and thereby discouraged membership in the Union and engaged in unfair labor prac- tices in violation of Section 8(a)(1) and (3) of the Act. In view of the extent to which Brandon misrepresented the reasons for, and manner of, Bryant's discharge, and of Mipro's assistance to Brandon by his testi- mony about the missing papers, and the mailing of the discharge notice, and of Mipro's demeanor on the stand, it is further found that Brandon and Mipro are not credible witnesses. B. Interference, restraint, and coercion 1. Background On December 8, 1964, the Union filed its petition in Case 15-RC-3024. Its organizational campaign had started sometime before but it continued after the petition was filed. When Brandon received the petition or a letter about it, he had Bryant make several photocopies to send to stockholders and then asked him to come to speak to him later.24 Bryant returned that evening to Brandon's office where Brandon discussed the election procedures with him and then asked whether Bryant knew of anyone who had signed a union card. Bryant replied that he did not but was sure the men he associated with had not signed. He speculated that it might have been some old employees who had been involved in a prior election proceed- ing, and Brandon, in turn, speculated that it was "all these colored boys they got." Brandon then asked him to check to find out who had signed and to let him know, and Bryant said he would. Sometime thereafter Brandon came to Bryant and spoke to him about Robert Pigrenet. Pigrenet was hired by Respondent on October 2, 22 On March 15 Respondent's counsel completed his direct e'.uniaation of Brandon with- out adducing any testimony concerning the alleged threat to Harrell When the hearing was resumed on March 23, Respondent was permitted, over objection by counsel for the Gen- eral Counsel, to resume direct examination and it was upon such resumption that Respond- ent for the first time in the proceeding adduced testimony concerning the alleged threats to Harrell. When Brandon's direct examination was closed on March 15, he was In a hurry to catch a plane in order to participate in making funeral arrangements for his sis- ter, who had died that very day. In view of the pressure counsel was under because of this, the ommission might very well have been inadvertent Accordingly, no adverse inference had been drawn from this circumstance 23 Moreover, the only competent evidence as to whether or not Bryant actually made the call-as opposed to what was reported to Respondent and what Respondent believed-is Bryant's denial, which, It is found, was truthful. Even a good-faith belief on Brandon's part that Bryant had made the call would not constitute a defense to the allegation that the discharge restrained and coerced the employees in violation of their rights under Sec- tion 7 of the Act and that Respondent thereby violated Section 8(a)(1) of the Act. N.L.R.B. V. Burnup and Sim8, Inc., 379 U.S. 21. 24 Bryant testified that this occurred around the latter part of December 1964. Brandon testified that he had Bryant run off copies of a letter from the Board dated December 9 on about December 16 or 18, 1964. It is the practice of the Regional Offices when a repre- sentation petition is filed to notify the employer and other parties involved. 852 DECISIONS OF NATIONAL LABOR RELA'i`IOTtS BOARD 1964,25 and discharged about December 15, 1964. Brandon said that he was watch- ing Pigrenet and that he saw him ", .. talking around to some of the men ... and I am inclined to believe he is hooked up in the union situation . . . I want you to keep your eyes open." Brandon placed the conversation in the early or middle part of November and testified that he merely told Bryant: that Pigrenet had been lying on a couple of occasions and was driving a truck like a maniac, and since he was friendly with him to see if he could not tell the boy that we just could not use him around there if he kept driv- ing around town, and racing around town, and tearing up the truck, and just generally endangering the public. He gave as his reason for speaking to Bryant that Bryant had brought Pigrenet to the Company and recommended him. On rebuttal Bryant denied that he had recommended Pigrenet, or, indeed, that he had ever met him until after he started to work for Transway. This denial and Bryant' s version of the conversation are credited. Schwehm testified that among the persons who solicited union cards during the organizational campaign were Bryant, Switzer, and Roy Hirstius. Hirstius was for- merly employed by Film Inspection Service, Inc., (Film Inspection) of which Brandon is president, but had been discharged on November 2, 1962, for reasons found by the Board to be at least in part discriminatory 26 At the time of the Charg- ing Party's organizational campaign and up until approximately the time of the hearing in the present case Hirstius was employed by Local 37 B of the Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Oper- ators of the United States and Canada, AFL-CIO (Local 37 B). That organization had a contract with Film inspection and in the course of his duties Hirstius fre- quently visited its premises. Respondent transported film for Film Inspection and employees of the two firms had considerable contact with one another, and Trans- way employees at times had duties to perform at the Film Inspection premises, sometimes for extended periods. 2. Interrogation, threats, and requests to act as informer Carvin Strother, employed by Respondent from January 1958 until June 1965, when he left of his own accord and in friendly circumstances, signed a union card on November 8, 1964, which had been given to him by Hirstius. In the middle of February 1965 he was riding from a job which was away from Transway's premises in a stationwagon with Brandon. Brandon asked him if anyone had con- tacted him about the Union, to which he replied in the negative. Brandon then said- "I understand that the Union is trying to get in and if it does it would cause me to close my business." In March or April 1965, again in a stationwagon and under similar circumstances, Brandon asked him: ". . how come that Roy Hirstius keeps calling . . . [him] up back of town...:. Strother told Brandon that he had received no such calls but Brandon replied, "I know he does because I have been answering the phone." On cross-examination Strother admitted that Brandon disliked Hirstius 27 and had told Strother on one occasion when he was working at a depot that he did not want Hirstius on any of his premises and that if he appeared Strother should call him up and let him know. The record shows that other former employees used to visit the depot where Hirstius was excluded. Strother testified: Anybody used to come in there. Where he was at-Just anybody that wanted to drop in-I mean, when we wasn't busy or something, and talk to us or something, we would talk to them. They didn't try to run anybody away or nothing like that. Strother named several former employees who used to come to that depot, only one of whom Brandon had excluded other than Hirstius.23 The record also shows O This is the date testified to by Brandon. Pigrenet testified that he was hired on August 29, 1964. 144 NLRB 1040, 1043. 21 He stated that Brandon's hostility started when Hirstius became "president of that Union" at Film Inspection. 78 He added that at the time that Brandon gave this order the employee was no longer coming and, further, that when Hirstius was told Brandon did not want him there, he stopped coming. TRANSWAY, INC. 853 that Hirstius had been permitted to be at the depot talking to employees on a num- ber of prior occasions. Strother testified to at least one such occasion in 1964 when Brandon found him talking with Hirstius and another employee and did not order him off. The first time Brandon ordered Hirstius off, so far as Strother knew, was in February 1965. Brandon admitted to various conversations with Strother in which Hirstius' name was mentioned. He claimed to have told Strother a number of times throughout 1964 to keep Hirstius• off his premises. However Strother impressed me as a credible witness, and on the basis of his testimony it is found that Brandon first excluded Hirstius from his premises after the filing of the peti- tion. Brandon testified that Strother on one occasion said Hirstius was always want- ing to know about the Union but that he had told him how he felt; that on more than one occasion Strother said he did not want Hirstius around either or want him to telephone him since he, Strother, did not want the Union. On each occasion, Brandon testified, he told Strother he did not want to hear about the Union or where Strother stood on it. He testified: I said I told you before I don't want to know where you stand on the Union, and I don't appreciate your telling me about it. I don't want to know... . Hirstius testified credibly that he had never telephoned Strother or any other employees at Transway's or Film Inspection's premises. He admitted visiting Film Inspection in connection with his duties for the Union that had the contract there. As already found, Brandon was not a credible witness and his denials of Stroth- er's testimony have not been credited. His threat to Strother in the middle of Feb- ruary 1965 to close the business if the Union got in was a clear violation of Sec- tion 8(a)(1) of the Act.29 Moreover, his asking Strother, who had signed a union card in November, whether he had been contacted about the Union necessarily tended to coerce and restrain him in the exercise of his right to assist and adhere to the Union. Brandon told him in the very same conversation that his signing a union card would contribute to inducing Brandon to close Respondent's business. Inter- rogation of employees in threatening circumstances as to their desires or activities with respect to unionization plainly violates Section 8(a)(1) of the Act. Camco, Incorporated, 140 NLRB 361, enfd. 340 F.2d 709 (C.A. 5). The legality of Brandon's later inquiry of Strother about Hirstius telephoning Strother must be considered in the light of the fact that Hirstius was known generally as an advocate of unionization. Moreover, on October 11, 1963 Brandon's firm, Film Inspection, had been ordered to reinstate Hirstius with backpay because of his dis- criminatory discharge by Brandon. There is no evidence that Respondent objected to Strother receiving telephone calls; it was only calls from Hirstius, the discrimina- torily discharged union advocate, that Brandon asked Strother about. In the light of these circumstances, and of Brandon's threat to Strother in February to close the business if the Union came in, his questioning Strother about calls from Hirstius tended to coerce Strother and restrain him from exercising his rights to support and adhere to the Union and to engage in other concerted activities, in further violation of Section 8(a)(1) of the Act.30 Bryant testified that in the first part of April 1965 Brandon asked him to keep his eye on Strother, saying, "I got a feeling that he's hooked up in this Union situation . . . ," adding that Strother ". . . had had too many conversations with the men to suit me." Bryant also testified that Brandon several times after that conversation, and possibly in it, asked him to check to ". . . find out who and how many that you think have signed union cards...." Bryant also testified that he had a discussion with Brandon concerning the reaction of the other employees to the termination of Switzer's contract. He said that during the conversation Brandon told Bryant, ".. . we figured maybe Mr. Switzer could have avoided some of his accidents and a few other things that you may not know about. . . . Well, you know there's been var- ious times when he didn't want to follow dispatches." Bryant testified that when he demurred to the last statement, Brandon said, "Well, Bryant, to my opinion I think he's hooked up in that union deeper than what you think, that union situation." Brandon testified to various conversations with Bryant, a number of which can be identified as the same occasions to which the latter had testified, but he gave dif- ferent versions of the conversations. He denied ever asking Bryant to check around 29 Adamson Company, Inc., 141 NLRB 273; Savoy Leather Mfg. Corp., 139 NLRB 425. 30 Cameo, Incorporated, supra. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to see who was signing union cards. He testified that Bryant frequently tried to volunteer information of that kind but that he stopped him. With respect to a con- versation around New Years 1965, he testified: Well, briefly to the point that he despised the Teamsters and he would like to do anything he could to keep the union out because they kept him out of a job, and he wanted to do sometring and to let him know, and I told Bryant I didn't want to hear from him. I was quite leary at this time . . . [of] Bryant. At one point Brandon testified: I told him to forget it. I didn't even know who was going to vote, and most likely we were going to ask everyone vote in the thing again, In my opinion, we probably never would even have an election, so just forget about this thing, and I purposely didn't want to talk to Bryant about any of this, matters at this time, the other affair was going on. Brandon also testified: . .. and after we discharged Rogers in March he came up on three or four occasions talking about union and talking about people in the union, and these people were out to form a union, and I told him I didn't want to hear it. . . . With respect to discussions with Bryant about Switzer, Brandon first testified that in a conversation with Bryant after he got back from his vacation, which was the same conversation as Bryant described 31 nothing was said about the Union by either. "Absolutely not," he testified. "I didn't even think Mr. Switzer was inter- ested in the union." However, on cross-examination he testified as follows: Now, the only occasion I remember after I got back from vacation again, he talked to me about Mr. Switzer and tried to tell me during our conversation about Mr. Switzer and the union, about promoting Rogers to file an unfair labor practice against us. . . . Brandon admitted to "opinion and hearsay" about various employees, whom he named, being active in the Union and to having heard about it at least in Febru- ary 1965 and also in March, April, and May 1965 after the representation case hearing, when the Company was . due to have an election." Asked from whom he had heard about those employees, he replied: I would say various people around the place. I can't pinpoint any one person down, including the managers on it, the managers and I definitely discussed several of these people. Q. Who do you mean by the managers? A. Mr. Paul Mipro and Mr. Lombardo, and Mr. Lotz . . . with occasional conversations with Mr. Johnson, another manager. . . Brandon testified that when John Lafleur, a former emlpoyee, was returning to Respondent's employ in March or April 1965, it was suggested that it might be better not to rehire him since he was a union man but he could not recall who made the suggestion, whether it was Mipro, Lotz, Lombardo, or even some of the other drivers. Finally Brandon testified that he knew that some drivers were active in the Union from his own observations, namely, "The way they would go out of their way to congregate and fraternize with the people who would then vote in the election, buy them cokes and take them out to lunch." Brandon did qualify his testimony that he ordered Bryant not to tell him about the Union. He stated: At that time I told him I didn't want him to check and I didn't want to talk about the Union except to the point if anyone was threatened or intimidated, if he heard of anyone being threatened or intimidated or coerced, because per- sonal relationships or other matters going on, I did want to know, and to see that none of my men were being harassed or threatened or coerced one way or the other on the union. He testified that he had told at least 40 or 50 employees the same. "',Bryant placed the conversation on the same day that he accompanied Switzer to Bran- don's office to demand another letter about his discharge , which took place on May 7 or 8 At that time Brandon was about to leave on his vacation . The discrepancy in date is in either event immaterial. TRANSWAY, INC. 855 Bryant's testimony with respect to Brandon's inquiries about, and requests that Bryant inform as to, employees' union activities almost uniformly includes the utterance by Brandon of the words, "I think he's hooked up in this union situa- tion." It is, of course, possible that Brandon did habitually use those words. In any event Brandon's own testimony ]ends support to the conclusion that Bryant, irrespective of the exact words employed in his conversations with Brandon, testi- fied accurately as to their substance. Brandon's testimony as to his conversations with Bryant bore marked similarity to Bryant's, with the difference that he had Bryant offeiirg the information that Bryant testified Brandon requested. As Bryant, without Brandon's knowledge, had signed a union card in December or January and another in April, such offers by Bryant were improbable. Moreover, Bryant quoted Brandon as basing his suspicions of named employees on the fact that he had seen them talking and associating a great deal with other employees, which was what Bran- don himself later testified was the basis of his conclusion that certain employees were prounion. Brandon also admitted that he had had conversations with his man- agers about who the Union's adherents were and, in the case of John LaFleur, possibly even with some of the drivers. Finally, Brandon constantly reiterated that whenever Bryant, Strother, or another employee tried to tell him where he or others stood on the Union Brandon promptly shut them up with the command, "I don't want to hear about that." This testimony of Brandon's is suspicious not only because of the excessive protest, but also because he usually followed it with the addendum that he did invite information as to any acts of coercion by the Union, although he admitted that he knew of none. Bryant did not remember clearly whether, when Brandon asked him to check about Strother, Brandon also asked him to report what he found, although he did testify that such requests were definitely made by Brandon on other occasions with respect to other employees. In any event, a request to check on a man's union activities carries a clear implication that any union activities discovered should be reported. It is therefore found, in accordance with Bryant's testimony, which is credited, that Brandon in the first part of April 1965 requested him to watch Strother and report on his union activities, and that on various occasions there- after he requested Bryant to find out which employees had signed union cards and to report his findings to Brandon. It is further found that by such requests Respond- ent interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, thereby engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act.32 The complaint alleges in paragraph 8(d) that Respondent told an employee that another employee had been discharged because of his union membership, desires, and activities. This refers to Brandon's conversation with Bryant about Switzer's termination. While Brandon's interrogation of Strother, his requests to Bryant to inform, and his admitted knowledge as to the identity of many union adherents warrant the inference that he found out about Switzer's activities on behalf of the Union, Bryant's testimony as to that conversation would lend much strength to the allegation that Switzer's discharge was discriminatory. Since Bryant, as an illegally discharged employee is subject to the suspicion that he may have borne a grudge against Respondent, his testimony as to this conversation has been considered espe- cially critically. Two things serve to make Bryant's testimony as to the conversa- tion about Switzer's termination credible. First, although Brandon at first denied any discussion of Switzer's connection with the Union in that conversation, on cross-examination he admitted that there was some such discussion, albeit not of the same nature as Bryant testified to. Second, Bryant's testimony had Brandon ascribing Switzer's discharge at least in part to accidents and refusal to follow dis- patches, thereby lending some support to Respondent's contention that the acci- dents were not on afterthought first claimed in response to charges. If Bryant were fabricating evidence to prove Switzer's discharge discriminatory, he would not have reported those details. In view of the foregoing, and since Respondent offered nothing to rebut Bryant except the testimony of a discredited witness, Bryant convinced me that Brandon did tell Bryant that Switzer had been terminated because of his connection with 92 Wyatt Food Stores (Division of Kroger Company), 127 NLRB 262; Angus Manufac- turing Company, Inc., 123 NLRB 1919 , 1920; Rockwell Manufacturing Company, 123 NLRB 1066 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, and it is so found. As such a statement carries the necessary implica- tion that the listener and other employees might also be discharged if they engaged in union activities, it is further found that by this statement Respondent interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, thereby engaging in an unfair labor practice in viola- tion of Section 8(a)(1) of the Act. C. The discharge of Switzer Theodore Switzer was employed by Respondent from March 1, 1948, to May 31, 1965. He serviced a Transway route between New Orleans and Hattiesburg, Mis- sissippi, where he lived, driving a two-ton truck which he owned and leased to Respondent for $40 per month 33 Shortly before his termination Switzer put a new motor in the truck. His employment agreement 34 provided for a wage of $330 per month and $435 per month for the expense of operating and maintaining his truck. Both agreements were for a period of 1 year, renewable from year to year unless sooner terminated by either party on 15 days' notice. Switzer's last employment agreement was dated September 1, 1964. Brandon testified that Switzer ". . is very honest, he is very reliable, and he is very fine. There is nothing wrong that way.. ." Switzer had received several safety awards from Respondent, the last, given at the end of 1961, for 9 years (non-consecutive) of driving without an avoidable accident 35 He testified that on one occasion he told Brandon that he planned to retire when he reached age 64, which would have been in January 1966. Switzer signed a union card in January 1965 and another in April 1965.36 Dur- ing his employment by Respondent he spoke to some of the men about joining the Union and persuaded several to sign cards. On May 4, 1965, Switzer had an accident at the Film Inspection premises, back- ing his truck into an old car parked there, causing minor damage to a fender or other part of the body. The owner minimized the accident and did not even want to look at the damage done. Upon Switzer's insistence he did look and then said: Oh, well, don't worry about it. It's is an old car. I can run it like that. It won't make any difference. Maybe I'll take it over there and let Mike at the shop bump it out. Switzer submitted a written report of the accident the same day. On May 6, Brandon called Switzer to his office and said, "Pop, I hate to do this but I'm going to have to let you go." Switzer asked him the reason and the date, but Brandon told him to go to the office and get his retirement money straightened out. Switzer replied that he was not then worried about the retirement moneys but only wanted to know why he was discharged and as of when. He requested a letter stating why he was discharged and Brandon promised it. That evening Switzer received a copy of a memorandum from Brandon to Mipro and Lotz 37 reading as follows: Switzer and I had discussions about his resigning today. Right now, the plans are for Mr. Switzer to finish through the month of May as per our discussions. If there are any earlier or later arrangements he wishes, he will contact one of you gentlemen or Roy Lombardo. Mr. Switzer is going to consider how he wants to handle his trust monies and will advise. The next morning Switzer told Brandon that what he wanted was a letter stating why he was discharged and not leaving the date open. Brandon again told him 33 General Counsel's Exhibit 10. 81 General Counsel 's Exhibit 9. ae To receive credit toward such an award an employee must drive for 12 consecutive months without an avoidable accident. 81 Because of uncertainty as to whether over-the-road drivers, such as Switzer, would be included in or excluded from the unit, the Union vacillated with respect to the scope of its organizational efforts, with the result that a number of employees' original cards were destroyed and new cards obtained later. 37 General Counsel's Exhibit 12. TRANSWAY, INC. 857 to make arrangements about his retirement moneys and promised another letter. That evening Switzer found in his box a letter to himself 38 reading as follows: As requested, I am giving you written notice as to termination of your contract. Instead of 15 days' notice I am merely notifying you that your contract will terminate as of May 31, as we discussed. If you desire an earlier or later date, please advise. On May 8 Switzer called on Brandon together with Bryant, who stood at the door and listened to the conversation but did not participate. Switzer told Brandon that the second communication was unsatisfactory also, since it did not state that Respondent was terminating the contract. He said he wanted a letter saying he was being discharged, and not making it appear that the action was taken at his own request. Again Brandon told Switzer to get his retirement moneys straightened out. Switzer replied that he did not want to touch the money until he was 65 and and then said, "That's settled. Now give me the letter," to which Brandon replied, "I will not do it." Switzer said, "Well, I have done all I can do" and walked out. Bryant corroborated that main substance of this conversation.39 Switzer then sent Respondent a registered letter 40 protesting that Respondent's May 7 letter made it appear that he had requested the contract termination, and stating that he "defi- nitely" did not desire to terminate his contract with Respondent. He further wrote: I do not know the reason why you want to terminate my contract; therefore, I am hereby requesting that you advise me of the reason or reasons, in writ- ing, for this contract termination. Brandon was on vacation at that time. He returned about May 27 and wrote a letter 41 in reply to Switzer's which included the following: You asked the reasons for termination. It is something long considered due to accidents and other matters such as disagreements with and/or failing to follow instructions of the dispatcher, excess relief driver, etc., and in fact, you know of prior notices on your route. It will not do any good to reiterate some of these as essentially, you want this letter only to affirm the fact that your contract was terminated and due notice given you and that you were relieved May 31 and your contract terminated as of that date by my actions and by my notice to you. The primary reason for terminating contract was due to the accidents you had, both as regards number and the frequency and also, the excuseless type of accidents. In my opinion, your continued highway driving would be a serious hazard, not so much for the company, but particu- larly for yourself and the public in general with also severe exposure to the welfare of other Transway employees. Since 1948, when he started working for Respondent, Switzer had 10 accidents listed on his individual Employee Performance Record.42 The accidents listed were as follows: March 30, 1956 September 6, 1960 September 12, 1964 December 16, 1957 June 1962 April 22, 1965 February 3, 1960 April 18, 1963 May 4, 1965 43 July 28, 1964 as General Counsel's Exhibit 13. 39 Bryant's best recollection was that the conversation took place on April 8, although, with some doubt, that it may have been May 8 Bryant's recollection of dates was gen- erally inaccurate. Brandon admitted that Bryant was present when the conversation took place. 40 Respondent's Exhibit 5 41 General Counsel's Exhibit 14. 49 General Counsel's Exhibit 15 This was placed in evidence by counsel for the General Counsel during his cross-examination of Brandon. Such an individual record is kept for each driver for the purpose of making safety awards Brandon testified . "These cards are used more for safety awards than for anything else . . . 43 General Counsel's Exhibit 15 also lists an accident on November 4, 1964 It is omitted from the present listing for the reason that it was not entered on the card in due course and it is found below that Switzer did not have this accident. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The December 16, 1957, and February 3, 1960, accidents are listed as not avoid- able; 44 all others as avoidable. Counsel adduced details concerning five of the listed accidents. In June 1962 Switzer's truck struck a telephone pole in the middle of the Transway driveway. Switzer, who duly reported all the other accidents, refused to report this one even when ordered to do so by the traffic manager, saying, "The damn telephone post was in the way anyhow, and it ought to be knocked down." For sometime before the accident the post had been broken at the bottom and had been held upright by the wires. It broke in two when the truck struck it. Brandon angrily summoned Switzer and showed him a bulletin he had prepared posting his route as vacant. Switzer apologized, explaining that he had been out of sorts because of trouble with his shoulder, but he pleaded that he had caused no damage since the post "was almost broken loose for years down there." Brandon did not post the bulle- tin; and Switzer extracted a promise not to mention the matter again.45 On July 28, 1964, Switzer's truck had a collision on the highway with a car trying to pass on his right. Switzer's report 46 shows that the accident occurred when he was stopped at a stop sign and then made a left turn into the intersecting highway. He was going at about 10 miles an hour when the other car tried to pass in front of his truck and was struck in the left rear fender, with damage of approximately $100. On September 12, 1964, Switzer backed his truck into a car parked near the unloading space at Film Inspection, bending a fender, and causing damage which he recalled as amounting to approximately $90. On April 22, 1965, while he was driving a Transway tractor-trailer through a narrow passage between a parked truck and parked cars, the toolbox on the trailer hit one of the parked cars, causing it in turn to hit a second and that in turn to hit a third, causing damage totaling approximately $700. On May 4, 1965, he had the accident already referred to. With respect to the alleged accident on November 4, 1964, Mipro testified that on that day he found the trunk of his car damaged and a Transway tractor parked 2 or 3 feet back of it with paint marks on its bumper from his car. Informed by Lotz, the traffic manager, that Switzer had been using the tractor, he testified, he asked Switzer about it but Switzer denied having done it or having driven the tractor. Brandon testified that he discussed the accident with Switzer, who pleaded that the tractor must have rolled forward after he got out. Switzer denied having caused damage to Mipro's car and denied having any conversation about it with Mipro. He said that 1 or 2 days after the accident Brandon did ask him if he had hit Mipro's car and he told him he definitely did not. The Mipro accident was not charged to Switzer until after his discharge, when it was first entered on his performance record card and was marked "avoidable." Under Respondent's pro- cedure there was no basis for marking the accident on the card "avoidable," since that decision was supposed to be made by a safety committee and Brandon admitted that no committee had met with respect to that accident.47 Meanwhile, the April 22 and May 4, 1965, accidents had been entered and a mere glance at the card discloses the irregularity. Moreover, the vehicle designated is not the Transway tractor, which Mipro and Brandon testified was involved, but Switzer's own truck, No. 240. Respondent failed at the hearing to produce any record showing that on the day of the accident Switzer was using the tractor which actually struck Mipro's car In his affidavit given on October 29, 1965, during the investigation, Mipro stated: The only thing I know about Switzer's termination was that I received some letters from Mr. Brandon as to why Switzer was being terminated. I remem- ber this mainly being due to accidents he had. Brandon's statement that Switzer pleaded as an excuse that the tractor must have rolled forward is incredible on its face. Switzer, an experienced driver, would not plead so self-defeating an explanation. In view of the irregularities in Respond- ent's records concerning the accident, its failure to produce any record establishing Switzer's use of that tractor that day, Mipro's failure to mention it during the 44 The 1957 accident occurred when Switzer's truck was being driven by his relief driver, Robert Cooley. 45 Brandon testified that his concern at that time was the failure to report the accident rather than the accident itself. 46 Respondent's Exhibit 2. 47 He made the same admission with respect to the May 4 accident TRANSWAY, INC. 859 investigation, and the fact that the accident was charged to Switzer only after he was discharged , it is found that Switzer was not involved in the accident to Mipro's car. The April 22 accident occurred when Switzer was driving a Transway tractor- trailer which was defective in that the trailer did not track properly so that its rear extended to the right. At the hearing Brandon testified that his mechanic could find nothing wrong with the trailer and that drivers reported that "The trailer is fine." He admitted however: It looks screwy to me when you look at it . . . It looks slightly out of line the way it hangs, and it sits down on one spring . In other words, one spring is weaker than the other, and it does give the appearance that the thing is going to run spraddle. In his affidavit given during the investigation Brandon said: This was Transway equipment and the trailer had a little right hand angular running characteristic, but it was known to him and everyone else that had driven it. Brandon called Switzer in to discuss the accident with him and agreed to have Transway pay for the damage because Switzer was not using his own truck and because of its condition. Switzer testified, and this is credited, that Brandon joked about the accident. He admitted that "The police gave me a ticket" and that he was taken to jail and had to make bond, and that his representative at the trial, who was Lombardo, ". . . couldn't do anything but plead guilty." Respondent adduced testimony to the effect that many drivers had been dis- charged in the past, but questioning developed that these were usually reckless drivers, dubbed "cowboys" by Brandon, drivers who carried women or liquor in their trucks, newly hired men, and one who, Brandon testified, had "an adverse physical or mental condition before he had an accident. I considered him accident prone, and they put him in a private sanitarium." Witnesses for the General Counsel testified that they knew of no instances where regular drivers had been discharged because of accidents. When Brandon notified Switzer on May 6, 1965, that his driving contract was being terminated, he offered Switzer other work. He testified that what he said to Switzer was- "There is other work you can do here if you want. I said, now you can do the safety work, you can work in the shop, there is some other work you can do around here," but that Switzer refused to discuss or even hear about other work, saying that he had wanted to retire for some time but had held on to his route until his relief driver, Paul Kelly, was ready to take it over. Switzer testified that all he was offered was safety work, which, he said, he knew amounted to only a few weeks' work a year. Brandon admitted that that had been true so far as Transway employees were concerned up to that time. He said, however, that in other firms he was interested in he had safety jobs that were full time, and that he had in mind consolidating all Transway safety work into one job for Switzer. Harrell testified that on a date he could not fix, but which was before the time Switzer left the Company, Switzer said to him, ". . . that Mr. Brandon had offered him a road job, checking the trucks, or either working there at the ware- house, now, I believe it was." This was denied by Switzer. Switzer also denied telling Brandon that he had been holding on to his route for Paul Kelly. He testified that Kelly could not get the route over others in the Company with more seniority. Conclusions as to Switzer's Discharge Switzer had four accidents in the period of less than 1 year prior to his termina- tion. A glance at his employee performance record discloses that this was a pro- nounced decline from the excellence of his prior performance. On the other hand, there are additional facts with respect to the accidents that must be considered. The last three all involved the striking of parked cars when Switzer was maneu- vering a vehicle at a Film Inspection loading area or in a narrow passageway. It goes without saying that an employer may, without violating the Act, refuse to keep in his employ a driver who makes four mistakes in that period of time; but no credible evidence in this record 48 was adduced to establish that Respond- ent's standards required the removal of a generally reliable and careful driver 8 Brandon's testimony is not relied on for reasons already stated. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of four accidents not involving any personal injuries and causing minor damage. The three-car accident, it is true, caused $700 worth of damage. But notwithstanding Brandon's repeated assertion that it was "excuseless," he did recog- nize that Switzer had an excuse-the tractor trailer did not track properly and the toolbox augmented this aberration. Respondent apparently recognized that its less-than-perfect equipment contributed to the accident and paid the damages involved. The one accident in the year preceding Switzer's discharge which may have involved dangerous driving by Switzer was the one at the intersection in July 1964, where, while traveling at 10 miles per hour, his truck struck a car passing him on the right. However notwithstanding that accident, more significant at least on its face than later accidents, Respondent renewed his contract in September 1964. Respondent's testimony that it discharged unqualified drivers with the Com- pany a short time and various reckless or sick drivers proved nothing as to its standards which is relevant to Switzer. The only evidence in the record as to the drivers' accident experience was Swit- zer's employee performance record and Warren's oral testimony as to his own accidents.49 However, no claim was made that all Respondent's regular drivers got safety awards like Switzer's and Warren's 50 The experience of those two men, therefore, cannot be used as a standard for judging the acceptability of Switzer's performance in the last year of his employment. Respondent had readily available the employee performance records of all its drivers, from which conclusions could be drawn as to how Switzer's accident record compared with those of others in its employ. Its failure to produce this or comparable evidence as to its standards warrants the inference that while Switzer during the last year failed to meet his own prior level of performance he did meet the standards required by Respondent. Respondent's doctoring of Switzer's employee performance record card points to the same conclusion. If Switzer's actual record warranted his discharge, Respondent would not have added the Mipro accident and gone to the length of marking the accident as "avoidable" when no safety commit- tee had passed on it as was required by the usual practice. On the basis of Harrell's testimony it is found that Brandon did tell Switzer that he could have some sort of miscellaneous work in addition to safety work. So far as safety work is concerned, the existing job amounted to at most 2 or 3 weeks' work a year. Brandon's claim that he had in mind creating a new job is irrelevant, even if it were credited, which it is not; he neve! told Switzer. As to the miscellaneous work, Brandon said nothing about its regularity, the pay, the hours, or anything at all as to terms or conditions of employment except that it was to be in New Orleans. Brandon was merely indicating to Switzer that the latter could negotiate for some odd jobs. The offer to Switzer of a job comparable to what he previously had would carry some weight against a conclusion that Brandon had a discriminatory motive in removing him from his driving position. Brandon's offer of undefined odds and ends away from home, with doubtful income, made to a man who owned his own truck, if anything, emphasized his discriminatory motive. Switzer in his demoted status would serve as a constant living example to the other employees of what Respondent would do to drivers who dared join the Union. Brandon did everything possible to avoid stating to Switzer why he was termi- nated. Plainly he was hoping that "Pop" would be amenable and would take his truck and go off somewhere else to make a living. He therefore tried to avoid raising the accident issue, which he knew Switzer would recognize as spurious. "Counsel for Respondent offered in evidence a listing of safety awards for the years 1962 through 1965 and stated that the purpose was to show that Warren was a safe driver and Switzer was not a safe driver. The offer was rejected on the ground that it was cuniu- lative of R hat was already in the record but with the reservation that if contradiction developed as to safety awards to Warren or the absence of safety awards to Switzer, permis- sion would be granted to Respondent to introduce further evidence Counsel for Respondent did not in any way indicate that he desired to show that all regular drivers had received safety awards or even that a large number of them did, and he subsequently withdrew the offer (Respondent's Exhibit 7 for identification) stating, ". I am inclined to simply withdraw that in view of the testimony of the witness, and the entire context of the testi- mony, I don't think I need it and I am going to withdraw it. . " 00 While Warren was not a credible witness and his testimony as to his accident ex- perience was based on his recollection, which cross-examination disclosed to be inaccurate, his 12-year safety award and his safety award as late as 1965 establish his record better than Switzer's. TRANSWAY, INC. 861 Only a registered letter from Switzer could smoke out Respondent's claim. This refusal to state the reason for Switzer's termination is further evidence of Respond- tent's discriminatory motive 51 Brandon's explanation to Bryant of the reasons for Switzer's discharge discloses that Switzer's accidents were a pretext, and that the true reason for terminating him was "things you (Bryant] don't know," which Brandon finally revealed as Switzer's connection with the Union. Even giving Bryant's testimony the interpretation most favorable to the Respondent, Brandon ,was saying that he discharged Switzer for several reasons, one of which, the mov- mg cause, was discrimination, thus making the discharge a violation of the Act. Respondent alleges in its answer that Switzer was not terminated but was reassigned to a different job and resigned. As already indicated, Brandon did not reassign Switzer; he merely indicated to Switzer that the latter could negotiate for some odd jobs in place of the job from which he was discharged The termina- tion of Switzer's driving contract was definitive and unconditional with the single exception of a reservation as to the effective date. Thus, Switzer was effectively discharged at the time Brandon first spoke to him, which was May 6, 1965 52 Even assuming, arguendo, that Switzer's status as an employee was not abrogated by the termination of his contract and that Respondent did reassign him to a differ- ent job which he resigned, that would be of no effect in this proceeding. To demote a driver-owner for discriminatory reasons to doing odd jobs, at presumably lower income, at a place far trom his home would constitute a constructive discharge and would be just as violative of the Act as the actual discharge which took place.53 In summary: The evidence as to Switzer's accidents does not, standing alone, justify a finding that he was an unsafe driver. Respondent was in a position to establish what its standards for retaining drivers were when a discriminatory motive was absent, but failed to do so; hence the record does not justify a finding that Switzer was a driver who failed to meet Respondent's standards. Switzer joined, and induced other employees to join, the Union, an organization to which Respondent was strongly opposed. Respondent at first refused to state its reason for terminating Switzer's contract, doctored records to establish the accidents as the reason, and later admitted to Bryant that Switzer's connection with the Union was a reason. Accordingly, it is found that Respondent terminated Switzer's con- tract because of his union activities, using the accidents as a pretext, that Respondent discriminated against him, thereby discouraging membership in the Union, and that Respondent thereby engaged in an unfair labor practice in viola- tion of Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of Respondent set forth above in section III of this Decision, occurring in connection with its operations described above in sec- tion I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As it has been found that Respondent has engaged in certain unfair labor practices, it is recommended that the Board issue the Recommended Order set forth below, requiring Respondent to cease and desist from said unfair labor prac- tices and to take certain affirmative action which will effectuate the policies of the Act. Switzer testified that at one time he told Brandon that he planned to retire in January 1966, when he would reach the age of 64. However, he was not asked at the hearing whether he had in fact retired, and effectuation of the policies of the Act requires an affirmative order of reinstatement. Accordingly, is it recom- mended that the Board issue the usual order of reinstatement appropriate for employees discriminatorily discharged with respect to both Switzer and Bryant. Any evidence that Switzer actually did remove himself from the truckdriver labor market can be considered in the compliance stage of this proceeding. si Hurd Corporation, 143 NLRB 306. 52 Ben Kostel, d/b/a Kostet Shoe Company, 124 NLRB 651. 3,Ho8tel Shoe Company, supra, C. F. Fellows doing business a8 American Patrol Seri,- ice, 75 NLRB 662, 669. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also recommended that Respondent make Switzer and Bryant whole for any loss of earnings suffered by reason of the discrimination against them by payment to each of a sum of money equal to what he would have earned from the date of discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period . The loss of earnings shall be computed in accord- ance with the formula stated in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, to be computed in the manner described in Isis Plumbing & Heating Co., 138 NLRB 716. Switzer's earnings, and consequently his loss of earnings resulting from the discrimination against him, are affected by the fact that his contract called for a monthly payment of $435 for the expenses of operating and maintaining his truck, which may have been less or more than his actual expenses, as well as $40 per month truck rental. The exact method of treating these items will be left to the compliance stage of this proceeding. At this time it is necessary only to point out that these payments were part and parcel of his employment arrangement and must be considered as part of it, so that whatever money accrued to him there- from shall be deemed part of his earnings for purposes of the backpay provisions of the order to be issued. It is also recommended that the Respondent preserve and, upon request, make available to the Board, payroll and other records to facilitate the computation of back-pay. In view of the nature of the unfair labor practices engaged in by Respondent, it is further recommended that it cease and desist from infringing in any manner on the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and of the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Transway, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, Local 270, is a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily terminating the employment of Louis Bryant and Theo- dore Switzer, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By interfering with, restraining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The unfair labor practices described above are unfair labor practices affecting commerce withing the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, Respondent, Transway, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Independent, Local 270, hereinafter called the Union, or any other labor organization, by discharging, transferring, demoting, or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening to close its business if the employees designate the Union or any other labor organization as their bargaining representative, (c) Interrogating employees concerning their union activities, desires, or sym- pathies in a manner or under circumstances constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (d) Soliciting employees or other individuals employed by Respondent to deter- mine, and to report to Respondent as to, the union activities, desires, or sympathies of other employees. TRANSWAY, INC. 863 (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist the Union or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Louis Bryant and Theodore Switzer immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. (b) Make Louis Bryant and Theodore Switzer whole for any loss of earnings they may have suffered as a result of the discrimination against them in the man- ner described in section V of this Decision, entitled "The Remedy." (c) Upon request, make available to the Board and its agents for examination and reproduction all payroll records and other data necessary to analyze and com- pute the backpay and reinstatement rights required by this Order. (d) Post at its office and place of business located at 235 South Genois Street, New Orleans, Louisiana, and at each of its depots and warehouses in New Orleans, Louisiana, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material 54 (e) Notify said Regional Director for Region 15, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.55 5' In the event that this recommended Order is adopted by the Board, the words "the Recommended Order of a Trial Examiner," shall be substituted for the words, "a Decision and Order" 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, "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order" in the notice. 55 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read, "Notify the Regional Director for Region 15, in writing , within 10 days from the date of this Order , what steps 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 NOT discourage membership in International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , Independent, Local 270, or any other labor organization, by discharging, transferring, demoting, or otherwise discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten to close our business if our employees designate Local 270 or any other labor organization as their bargaining representative. WE WILL NOT interrogate our employees concerning their union activities, desires, or sympathies in a manner or under circumstances constituting inter- ference, restraint, or coercion within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended. WE WILL NOT solicit employees or other individuals employed by us to determine, and to report to us as to, the union activities, desires, or sympathies of other employees. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in the exercise of the right to self-organization, to form, join, or assist International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, Independent, Local 270, or any other labor 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. WE WILL offer to Theodore Switzer and Louis Bryant immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. WE WILL make whole Louis Bryant and Theodore Switzer for any loss of wages or other earnings they may have suffered as the result of the discrimina- tion against them. WE WILL NOT discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment because of member- ship in, or activity on behalf of, any labor organization. All our employees are free to become , remain, or to refrain from becoming or remaining, members of any labor organization. TRANSWAY, 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 provisions, they may communicate directly with the Board 's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans , Louisiana 70113, Telephone 527-6391. Evergreen Rambler, Inc. and Garage Employees' Local Union No. 44, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America , Independent. Case 19-CA- 2958. September 2,1966 DECISION AND ORDER On May 26, 1965, Trial Examiner Herman Marx issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. On November 2, 1965, the Board entered an Order reopening the record and remanding the proceeding to the Regional Director for a further hearing before the Trial Examiner to receive evidence from the parties relevant to the issue of whether Respondent and the insur- ance carrier initially agreed that Respondent would defray the total premium cost of the improved medical plan. On May 9, 1966, the Trial Examiner issued his Supplemental Deci- sion, in which he found that the Respondent and the insurance car- rier had not initially agreed that the premiums for the improved medical plan would be paid entirely by Respondent, but that the Respondent changed the plan from a contributory to a noncontribu- 160 NLRB No. 57.