Illinois Ruan Transport Corp.

ILL. RUAN TRANSPORT Illinois Ruan Transport Corporation and Robert E. Adams. Case 14-CA-3969. June 9,1967 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On December 29, 1966, Trial Examiner Arthur Christopher, Jr., issued his Decision in the above- entitled proceeding, finding that the 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 Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Illinois Ruan Transport Corporation, Wood River, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Substitute the following paragraph for paragraph 1(a): "(a) Interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, by discharging employees for engaging in protected concerted activity." Substitute the following paragraph for the first substantive paragraph of the notice: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act, by discharging employees for engaging in protected concerted activity. In the third substantive paragraph of the notice, delete the last four words, "the discrimination 227 against him," and substitute therefor "his unlawful discharge." ' For the reasons stated by him, and in the absence of exception thereto, we adopt the Trial Examiner's finding that it is unnecessary to decide whether the discharge of Adams, found to be a violation of Section 8(a)(1), was also a violation of Section 8(a)(3) However, as set forth infra, we deem it necessary to correct the Trial Examiner's apparent inadvertence in basing his Recommended Order and notice on an 8(a)(3) violation TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR CHRISTOPHER, JR., Trial Examiner: This proceeding was heard before me in St. Louis, Missouri, on July 18 and 19, 1966, on complaint of the General Counsel and answer of Illinois Ruan Transport Corporation, hereinafter called the Respondent.' The issues litigated were whether the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. At the hearing, the General Counsel, the Respondent, and the Charging Party were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence. At the close of the hearing, the Respondent argued orally and thereafter the General Counsel and the Respondent each submitted briefs Upon the entire record herein and upon the basis of my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation with its principal place of business located at Des Moines, Iowa, is a common carrier engaged in providing intrastate and interstate trucking services. In the conduct of its business enterprise, the Respondent maintains a number of freight terminals, including a terminal at Wood River, Illinois, involved herein. During the year ending December 31, 1965, which was a representative period, the Respondent, in the course and conduct of its enterprise, performed services valued in excess of $50,000, of which amount services valued in excess of $50,000 were performed in, and for various enterprises located in, States other than the State of Illinois. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 525, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called either the Union, the Teamsters, or Local 525, is a labor organization within the meaning of the Act. ' The charge herein was filed by Robert E. Adams, an individual, on May 11, 1966 165 NLRB No. 34 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Issues The primary issue in this proceeding is whether the Respondent violated Section 8(a)(1) by its discharge of Robert E. Adams on or about April 21, 1966, because he allegedly engaged in protected, concerted activities. A secondary issue arises out of Respondent's contention that the instant proceeding is barred because of Adams' voluntary submission to, and his agreement to be bound by the outcome of, the grievance procedure set forth in the collective-bargaining agreement between the Union and the Respondent. B. The Facts 1. Introduction The facts are not substantially in dispute. Robert E. Adams, the alleged discriminatee, commenced working for the Respondent in April 1953, and worked until April 21, 1966, the date of his termination. Adams was employed as a transport truckdriver and was engaged in hauling bulk petroleum products throughout 1966 until the time of his discharge, utilizing a Fruehauf trailer and an International tractor. Adams credibly testified that during the period of his employment by the Respondent as a transport truckdriver, he had refused to drive certain units, on the grounds that they were unsafe for operation. The last such refusal on Adams' part to drive a vehicle of the Respondent occurred during the month of February 1966. He testified that after he refused to drive such units, he was "usually ... sent home." He further testified that on one such occasion following his refusal to drive a vehicle on the ground that it was unsafe to operate, he had a heated discussion with Floyd Holcomb, the shop maintenance foreman. As a result of the discussion with Holcomb, Adams stated that he filed a grievance complaining about the extreme language directed by Holcomb at Adams. Sometime in March 1965, Adams wrote the Respondent at its Des Moines, Iowa, headquarters. In his letter, Adams requested the intercession of President John Ruan in the dispute Adams alleged that he had with the management of the Respondent's Wood River, Illinois, terminal. Adams complained in his letter that several months earlier, while making a delivery at Springfield, Illinois, his truck lost 550 gallons of gasoline because of a defective air vent which permitted pressure to build up in the tank, resulting in the expansion and loss of gasoline out of the fill pipe. Adams stated that it had been reported to him that the American Oil Company, for whom the delivery was made, had credited the Respondent for the loss but Terminal Manager Fred E. Rose, nevertheless, told Adams that he expected Adams to pay for the loss himself. Adams declined to pay for the loss of the gasoline on the grounds that the defective storage was previously reported and that any existing negligence was due to the failure to correct the defective mechanical equipment. He also stated that the amount of gasoline overrate, i.e., gallons delivered in excess of gallons loaded, would exceed the 550-gallon loss in about a 60-day period. Adams also stated that in all his prior service, without any demonstrable loss, the customer, American Oil Company, should have been indebted to him for several thousand-odd gallons. He also called attention to a deteriorating relationship that began between him, on the one hand, and Terminal Manager Rose and the American Oil Company on the other. He specifically referred to an incident at Decatur, Illinois, in which a short-air warning hose worth only about $4.25 was broken, but nevertheless, was carried as a chargeable accident against Adams. Adams also stated in his letter to Ruan that he had lost an average of about $40 each week in wages and his assigned status. He stated "after being assigned to a different defective truck each day for several days . in compliance with ICC regulations, I was compelled to refuse several trucks." He made a reference to the foul language directed at him by Shop Foreman Holcomb on an occasion in February when he refused a truck that had a loose and misaligned front axle. He also stated in his letter that during the winter months, he was one of few, if not the only driver, who refused to overload with respect to local deliveries. He stated that drivers generally were asked to load 7,000 gallons of oil whereas the St. Louis drivers were instructed to load 9,000 gallons of gasoline, in violation of Illinois weight laws.2 Adams stated that management told him that the latter loading requirement was prescribed by the customer, American Oil Company. He further stated that two of his defective equipment reports were forwarded to the ICC in Washington, D.C., with the request that they be investigated. Concluding his letter, Adams stated that he wanted to submit the following observations for Ruan's appraisal or for some acknowledgement. Adams criticized the fact that the service units of the Respondent, or production units, consisted of two drivers on one truck operating on a 24-hour basis without management supervision. He stated that this was impractical and that what was needed was more emphasis on teamwork and the delegation of sufficient authority to carry out the supervisor's responsibilities resulting from such an arrangement. Adams further complained that any truck, regardless of cost and quality, requires "habitual attention" from the driver as well as scheduled maintenance, and the Respondent's practice of pooling and transferring equipment was not compatible with such a requirement. He also stated that to deprive an experienced and conscientious driver of a well-maintained truck and to assign him one from the St. Louis terminal were both insulting and injurious to all concerned. In this connection, he called attention to the unnecessary amount of risk to a driver resulting from his driving a different truck each day. He also added that one cement driver named "Dan," of Staunton, Illinois, told Adams that his local deliveries ran as high as 120,000 pounds, which was a full tank of cement, Adams added that he did not believe the trucks were ballistically safe at such weight. Adams concluded his letter by suggesting to the Respondent that they (1) stop all overloading in violation of State laws; (2) make driver-tractor-team assignments for a period of at least 6 months; (3) set up a schedule of monthly team progress reports; (4) post a graph in the drivers' room showing actual maintenance and tractor expenses compared to International Harvester pro rata figures for each tract number-differentiating as to the major assemblies and showing the drivers' assigned; (5) conduct weekly business meetings at 12:30 p.m. on Mondays, requiring attendance for not more than 1 hour; (6) with respect to 2 As shown above, the transport trucks were loaded near the Wood River terminal in Illinois. ILL. RUAN TRANSPORT public relations and also for the benefit of the current emphasis on damage-control measures, design and publicize the use of a low-semicircle-contoured front truck bumper to coincide with automobile bumpers, and capable of reflecting an out-of-control automobile away from the truck wheels and frame, thus preventing a transport truck from overriding an automobile from the rear, crushing the fuel tank. After receiving the letter from Adams, President John Ruan contacted his local management at the Wood River terminal and upon receiving a report from Terminal Manager Rose, acknowledged Adams' letter. Ruan stated in his reply that he was asking Rose for additional information in connection with the various allegations made by Adams in his letter. Sometime in early March 1966, Adams, concerned about the operation of vehicles which he deemed to be unsafe and believed did not comply with the ICC standards, talked to a number of people about the matter, including Patrolman Robert M. Churich of the Alton, Illinois, police department, a personal acquaintance. Adams told Churich that he thought that he was being discriminated against resulting from the fact that the Respondent had established a policy of overloading its vehicles and that he had refused to go along with such overloading. Churich told Adams that he knew a State patrolman who he thought would investigate the charges upon request. Later Churich told Adams that he had referred to Patrolman Whitmore of the Illinois State Police and that Patrolman Whitmore was going to inspect some of the Respondent's equipment at Hartford, Illinois, and that if Adams had any friends he wanted to notify so that they would not be caught with overloads, that Adams should do so. Thereafter, Adams contacted Edward Ruffato, a driver of the Respondent who also served as union shop steward at the Respondent's terminal and advised him of his prior conversations with Patrolman Churich. Following his talk with Ruffato, Adams stated that the next day a notice appeared on the bulletin board for all drivers to begin loading the St. Louis loads "legal." The notice was signed by Superintendent Fred Rose. Adams testified that during his 13 years of employment with the Respondent, he had never seen a similar notice as the foregoing notice posted by the Respondent. 2. The discharge of Robert E. Adams Robert E. Adams reported for work as usual on April 12, 1966, and was assigned tractor 8792 and trailer 2165. As was customary, prior to driving the vehicle, Adams filled out the driver's vehicle report. He stated thereon that two of the tires on the trailer were worn out. Thereafter he placed the form in the slot where drivers' reports were deposited. On April 13, 1966, Adams was assigned tractor 8792 and trailer 2165, the same two vehicles he had driven the previous day. He again executed the driver's vehicle condition report and again indicated that two tires were worn out. Adams explained that he did not speak to anyone connected with management about his assignment to the same tractor and trailer that he had driven the day before because he believed that if he had insisted on any necessary repairs, he would have been sent home. His first assignment on April 13 was to deliver a load to the American Oil Company, located on Park Street in St. 3 The time was definitely fixed by reference to the tachograph, a mechanical instrument installed on the truck . The tachograph makes an imprint on a round piece of paper , indicating each 229 Louis, Missouri. He left the Respondent's Wood River, Illinois, terminal, which was located about 26 miles from the delivery point at approximately 7:50 a.m. With respect to the route traveled, Adams credibly testified that he had never been given a particular route with instructions to follow, nor was he given a return route. In this respect, the Respondent, a number of years before, had posted specified routes for certain runs, but it is clear from the testimony of several drivers that no one was required to follow such a specific route outlined by the Respondent but was free to use his own discretion with respect to such trips. On the day in question, Adams left the refinery at 7:50 a.m.3 He proceeded to St. Louis, and had a coffee stop en route which consumed about 20 minutes and which likewise was reflected on the tachograph. Thereafter he arrived at the American Oil Company installation at 10:20 a.m. On arrival at the American Oil Company premises, he observed that a truck belonging to the latter company was parked in the unloading area and was in the process of unloading. An American Oil Company employee named Matthews told Adams that if he desired, he could pull his vehicle up to the left side of the American Oil Company truck and throw his hose beneath the truck with an extension and pump the oil from his vehicle to the tank in that manner. Adams asked Matthews how long would be required for the unloading of the American Oil Company truck and when told that 15 or 20 minutes were required, Adams told Matthews that he preferred to wait. Adams thereupon parked his truck and made a telephone call to the ICC's local office and talked to a man named O'Hara. Adams told O'Hara about his previous vehicle equipment report of the previous day and about the one he executed for that day and asked O'Hara if he could come by and have his truck inspected. O'Hara told Adams to bring the truck by and he would inspect it. Thereafter, Adams returned to his truck, spotted, and unloaded it. Adams explained that if he had followed Matthews' suggestion and unloaded his truck by pumping the oil beneath the American Oil Company truck, he would have been required to disconnect the hoses when the latter truck was ready to leave because his hose would have been damaged if the American Oil Company truck had driven over it. Moreover, it required from 5 to 10 minutes to hook several such hoses together. After unloading his truck, Adams proceeded to the ICC office. According to Adams' credible testimony, the distance between the American Oil Company and the place where he parked his truck, at the ICC inspection station, is from 500 to 600 feet. O'Hara, the ICC employee, inspected the truck and executed the appropriate ICC form. Thereafter, O'Hara gave Adams a copy of the form and instructed him to turn it in with his log report, which Adams did. In this connection, O'Hara admonished Adams to be certain that he reported the interval required for the inspection on all his trip sheets and all company worksheets pertaining to it. In this connection , the time required for the ICC inspection is shown on the tachograph chart. According to the chart, Adams arrived at the ICC inspection station at 11:40 a.m. and departed about 12:40 p.m. According to the tachograph chart, Adams returned to the Wood River terminal at 1:20 p.m. and made other runs during the instance the truck's motor was started and shut off, thereby furnishing a complete record of all stops by the vehicle 299-352 0-70-16 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remainder of that day. He made out all the necessary forms required by the Respondent when he returned, including a form J-60 equipment report. Adams, in addition to making out the tachograph chart, also made out an IBM card in triplicate which is used as a trip sheet and, in addition , completed a logsheet and attached the inspection report to it as directed by the ICC inspector. These forms were likewise deposited in the slot designated for such drivers ' forms. The ICC inspection report, which was signed by ICC Inspector Thomas P. O 'Hara, although not requiring that the truck be withdrawn from service , disclosed findings that the right front inside dual tire on the trailer had been worn through three plies of fabric to such an extent that the fourth ply fabric was exposed. The report also revealed that the trailer had a leaking discharge valve on the right side and a broken leaf in the right front spring. The tractor's stop and tail lights were inoperative and its brake chambers were chafing against the axle housing. The center identification light on the tractor was likewise inoperative and the right front reflector on the trailer was cracked.The left front outside dual tire on the trailer was likewise worn smooth. On the evening of April 20 , Adams was told by Holmes, his dispatcher , that Terminal Manager Rose wanted to see him the next morning. About 9 a.m. the next morning, Adams went to Rose's office where Rose told Adams "we assume that you do not want to work for us any longer, you have pushed us too far." Adams replied that he thought the Respondent was pushing its drivers too far. In answer to a remark by Holmes that Adams had taken the tractor- trailer to the ICC inspection station with the expectation of getting the vehicles tied up so that the Respondent would have to pick them up at the station, Adams replied that he took the vehicles over "to try to get it repaired and to find out, to see if I have the right, the authority , to get the truck repaired." In the ensuing discussion , Adams referred to an upset incident that occurred early in 1965, involving a driver named Plank, in which Adams told Rose that he believed the brakes on that vehicle were defective . He also stated that he had heard other drivers say that they had refused to operate defective trucks or had written up reports on defective trailers. Adams also made a reference to a driver who was killed in an accident at Denver, Colorado, in 1965 or early 1966, stating that he believed much of the Respondent 's equipment was damaged because of overloading. He also stated that it was possible that the man killed in the Colorado accident did not have sufficient brake traction to avoid the train collision. To Adams' remark, Rose replied that "the Company had a clear record of that accident ." Rose told Adams that all drivers had driven equipment after Adams had refused such equipment and had been advised that Adams had, in fact , refused such equipment . In this connection, Adams credibly testified that he had refused equipment on five occasions , most of which occurred in 1966. With respect to whether he was paid for the stopover at the ICC inspection station , Adams testified that he was not supposed to be paid for idle time and he should not have been paid for the ICC inspection time because he had indicated the nature of his stops on his various reports , but it was up to the dispatcher to make the determination as to whether a driver was to be paid for such time as the ICC inspection. Adams credibly testified that when he returned from his April 13 trip, he was questioned by the dispatcher as to what took him so long to make the trip and Adams replied that he was delayed, stating as the reason for his delay that there was some fault with the truck ahead of him. Adams did not recall whether he told the dispatcher definitely what was wrong with the truck in front of him. He admitted that he might have made the statement at some time that the truck in front of him had a faulty pump on it. In this connection, the Respondent asserted that it checked with the American Oil Company station and determined that the truck did not have a faulty pump. Adams credibly testified in this connection that the American Oil Company's spotter, Carl Matthews, had stated that the pump contained a leakage. Terminal Manager Rose, on the occasion of Adams' discharge on April 21, indicated that he would detail the reasons for Adams' discharge in a letter to him, in accordance with the provisions of the collective-bargaining agreement between the Union and the Respondent. The letter, which was dated April 21, 1966, and was signed by Fred C. Rose, stated that on completion of Respondent's investigation, and in accordance with the uniform rules and regulations governing employees of tank truck carriers signatory to the Central Conference of Teamsters' Tank Truck Agreement, Adams was being served notice of discharge for dishonesty, falsification of records, and unauthorized use of motor vehicles. Although the Respondent, in the letter did not specifically rely on the following as reasons asserted for Adams' discharge, the letter nevertheless stated that on April 13, 1966, Adams took it upon himself to move the Respondent's transport number 8792-2165 from the Standard Oil Company- American Oil Company plant in St. Louis, to 16th & Clark Streets, St. Louis, where he had arranged for an ICC equipment compliance check, which constituted an unauthorized movement of Respondent's equipment. It also stated that after he returned to the terminal after a delay of nearly 2 hours, he told the dispatcher that he had been delayed by another truck and, in his J-60 operational report, stated that he was delayed at the American Oil Company-Standard Oil plant because an American Oil Company truck with a defective pump was unloading ahead of him whereas the Respondent's investigation developed that the above statement was incorrect. The letter also stated that he had been given four warning notices since November 2, 1965, for violations. On November 2, 1965, it stated Adams was given a warning letter because of "running" a railroad crossing. On December 3, 1965, it alleged that he likewise received a warning notice for failure to park and load his transport. It also stated that on January 28, 1966, he was given a warning notice for accidents involving him on January 25, 1966, and on January 28, 1966. It also stated that, on February 9, 1966, he received a warning letter for a violation of "ICC hours." The letter concluded by stating that discharge was effective on April 21, 1966. 3. The grievance proceedings Following his discharge, Adams immediately went to the Union's business office in Alton, Illinois, and filed a notification of grievance, pursuant to the existing collective-bargaining agreement between Teamsters' Local No. 525 and the Respondent. The hearing following his filing of the grievance took place at the Local 525 hall. In addition to Adams, the Union's Business Agent Lee Aldridge, Union International Representative Doty, and Terminal Manager Rose were present. At that time, Rose stated that Adams was dismissed for misrepresenting a ILL. RUAN TRANSPORT delay. On conclusion of that meeting, the Respondent declined to comply with the Union's request and put Adams back to work As a consequence, the grievance matter was referred to the Joint State Committee, which met at Springfield, Illinois. The Joint State Committee's meeting was held on May 9, 1966, and likewise was held pursuant to the collective-bargaining agreement. At that meeting, the Respondent was again represented by Terminal Manager Rose; Doty again represented Local 525, and Lee Aldridge served as the personal representative of Adams. The committee was composed of three members from management and three members from labor. No verbatim record of the proceedings was made. Edward Ruffato credibly testified that the State Committee considered the question of the unauthorized use of the vehicles and the alleged false report by Adams to his superiors. William Doty, business agent of Local525, substantially corroborated Ruffato's testimony According to Doty, the Union admitted a violation on Adams' part, but took the position that discharge was too severe a penalty for the violation. After deliberating, the committee voted unanimously to let the discharge stand. As no appeal to the national committee in the circumstances was provided for by the agreement, the committee's action marked the end of Adams' grievance. C. Concluding Findings The Respondent contends that Robert E. Adams was discharged for cause; i.e., he was discharged because of his unauthorized use of the tractor-trailer assigned to him on April 13, 1966. It further contends that the General Counsel has not met his burden of proof and established that Adams was, in fact, discharged because he reported the Respondent to the ICC and requested an inspection of the vehicles by the ICC. It also urges, contrary to the General Counsel, that Adams driving the vehicles in question to the ICC inspection station on company time and without the Respondent's consent, does not constitute protected concerted activity within the meaning of the Act. In this connection the Respondent argues that although Adams had the right to request an inspection by the ICC, he did not have the right to accomplish such an inspection by unauthorized use of the vehicles on company time and by taking the vehicles to the ICC inspection station. The Respondent further asserts that Adams' refusal to be bound by the grievance procedure set forth in the existing collective-bargaining agreement between the Union and the Respondent precludes his utilizing the processes of the Board in the instant proceeding and, as a consequence of all the foregoing, the complaint herein should be dismissed. The General Counsel urges that the Respondent, by its discharge of Adams on April 21, 1966, violated Section 8(a)(1) of the Act, asserting that Adams was engaged in protected, concerted activity by virtue of his having the vehicles inspected that day, and the evidence clearly shows that he was discharged because of such activity. The General Counsel argues that Adams' action in having the vehicles inspected by the ICC was taken not only because of his personal safety and that of the other drivers, but in implementation of both the existing collective-bargaining agreement as well as ICC rules and regulations relating to such motor carriers. 'See B & M Excavating Inc , 155 NLRB 1152 231 It is clear from the record that the Respondent was very annoyed by Adams' refusal of vehicles in the past for the asserted reasons that they were unsafe Its annoyance was climaxed when he took the vehicles assigned to him on April 13 to the ICC for inspection as to their road worthiness. The foregoing is demonstrated by Terminal Manager Fred E. Rose's statement in a communication to President John Ruan in which Rose, reporting to Ruan as to Adams' background and prior employment record with the Respondent, stated that he had been given warning notices in the past but that the incidents were so spaced that the discharge of Adams was not feasible but that Adams' present and future conduct would be watched very carefully. The Respondent's annoyance at Adams is also reflected in Rose's statement to Adams when Adams was given verbal notice of his termination, that Adams had "pushed us too far." Respondent's argument that Adams was discharged pursuant to its rules, which recognized as valid by the collective-bargaining agreement between the Union and the Respondent, is lacking in merit. That Adams was deeply concerned for his own safety as revealed by his several refusals of vehicles because of his belief that they were unsafe to operate. As a result, he kept up an almost constant campaign for improved vehicles and also urged that a ban be instituted on the overloading of vehicles. Adams' complaint to the ICC and his subsequent taking the vehicles to the ICC for inspection, are protected activities within the meaning of Section 7 of the Act.' Even though Adams' action in taking the vehicles to, and in communicating with, the ICC occurred without prior consultation with the other drivers, it is clear that such individual action was taken in implementation of the collective-bargaining agreement and amounted to an extension of the concerted activity that gave rise to that agreement.' Moreover, the fact that Adams engaged in concerted protected activity is not open to serious doubt as revealed by his talk with Union Shop Steward Ruffato concerning the then imminent road check of Respondent's vehicles by the Illinois State Police, which resulted in an order by Respondent to all its drivers to carry only legal loads in Illinois on the day of the anticipated police check. In the recent Thurston Motor Lines, Inc., 159 NLRB 1265, 1306-07 the Board stated: When Respondent discharged Poss in the belief that he had complained to the Interstate Commerce Commission in the course of that concerted activity, the discharge violated Section 8(a)(1) of the Act, even if Respondent's belief were well founded, unless the complaint to the ICC were made in bad faith, with knowledge of its falsity, or with intent to harass Respondent. The merit or lack of merit to the complaint is immaterial. As the refusal of the Interstate Commerce Commission to divulge the names of informants indicates, public policy requires that employees and private individuals be free to make complaints to public agencies without fear of reprisal. It would be contrary to that policy to hold that the making of a complaint to a public authority in the course of concerted activity removes the protection from the concerted activity, particularly where, as here, statements by the Respondent's mechanic, although later amended by him, were such as to raise doubt as to conditions of the tachograph. ... As Poss was clearly a participant in the concerted protests over the tachograph to Respondent, and Respondent's conclusion that he made the complaint See the B &A/ case, supra , and cases cited therein. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the 1CC was based in part on his role therein, it makes no difference whether Respondent's belief that Poss made the complaint was well founded or mistaken. As shown by the ICC inspection report which, inter alia, revealed several defective tires, Adams' complaint to the ICC was not made in bad faith. In Socony Mobil Oil Co., Inc., 153 NLRB 1244,1247, the Board approved findings in an earlier case," where the Board stated: Any discharge predicated in whole or in part on the effort of an employee, representing himself and one or more other employees, to present such grievances, absent unusual circumstances not present here, would be a discharge for protected union and concerted activities and therefore a violation of the Act. The merit or lack of merit in the grievance that would be presented, if permitted, is immaterial. The Respondent's defense that Adams violated one of its rules by his unauthorized use of the vehicles is not tenable. As shown hereinabove, Adams' departure or deviation from his route of delivery amounted only to 500 or 600 feet. Moreover, the record is replete with evidence that other drivers had departed from their routes of delivery for a number of personal reasons, including the obtaining of license plates at Springfield, Illinois, and visits to barber shops for haircuts. Although the record does not show that the Respondent had definite knowledge of such unauthorized use of its vehicles, it is clear that such unauthorized use extended over a period of several years and, in at least one instance, was for the benefit of the Respondent's office secretary at the Wood River terminal . I infer that because of such extended unauthorized use of Respondent's vehicles and the long period of time over which such unauthorized use occurred that the Respondent, in fact, had knowledge. I therefore find and conclude that the Respondent's defense that Adams was, terminated because of his unauthorized use of the vehicles in question on April 13, is lacking in merit. The Respondent's contention that the Board's powers may not be invoked, or should not be exercised, in this case because of Adams' reliance on a provision in the subsisting collective agreement authorizing arbitration in the event of a discharge under the grievance procedure, likewise is lacking in merit. I am of the opinion that the proceeding before the State committee did not meet the standards of fairness and regularity set forth by the Board in Spielberg Manufacturing Company, 112 NLRB 1080, as to warrant honoring its determination or award.7 Thus, it is clear that Terminal Manager Fred Rose, in his presentation of Respondent's case to the State committee, relied on other reasons for discharge as set forth in his letter of April 21, to Robert Adams. Rose had stated in an affidavit to a Board agent that the other incidents related in the letter were set forth therein "not because they were actually the reasons for the discharge, but for the purpose of strengthening . [Respondent's] case before the Union." Apart from the fact that the committee was not an 6 Top Notch Manufacturing Company, 145 NLRB 429 ' See Monsanto Chemical Company, 130 NLRB 1097 at 1098-99 s See Precision Fittings, Inc., 141 NLRB 1034 at 1040-43. ° See Monsanto Chemical Company, supra, and Raytheon Company, 140 NLRB 883. 10 See B & M Excavating, Inc., 155 NLRB 1152, Socony Mobil Oil Co , Inc, 153 NLRB 1244. See also Thurston Motor Lines, Inc., supra arbitration panel, its decision forms an insufficient basis insofar as showing the disposition of the issues before the members of the joint committee. Its report merely stated that the "discharge be upheld. Motion carried unanimously." No specific reasons for its determination were set forth therein. In all the circumstances, the withholding of the real reason for discharge from the committee, in my opinion, impugned the fairness and regularity of the proceeding before that body." Moreover, it is clear that the committee's action was silent as to certain issues relevant to the instant case, including the question of whether Adams was engaged in protected, concerted activity when he visited the ICC in the circumstances, there is no basis for a finding that the Board is in any way bound by the determination of the committee's On the basis of all the foregoing, I find and conclude that, by discharging Robert E. Adams on April 21, 1966, and its subsequent failure and refusal to reinstate Adams thereafter, the Respondent violated Section 8(a)(1) of the Act. Io IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities as set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Robert E. Adams on April 21, 1966, and thereafter discriminatorily refused reinstatement to him, I shall recommend that the Respondent be ordered to offer Robert E. Adams immediate and full reinstatement to his former of substantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing if necessary any person hired on or after April 21, 1966, to provide a place for him. I shall also recommend that Respondent be further ordered to make Adams whole for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period commencing on April 21, 1966, to the date of the Respondent's offer of reinstatement, less his net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, Although the complaint alleged that the Respondent violated Section 8(a)(3) and (1) of the Act by its discharge of Robert E Adams and its subsequent failure to reinstate him, the General Counsel, in his brief to the Trial Examiner, took the position that the Respondent had only violated Section 8(a)(1) of the Act. In the circumstances , it is unnecessary to decide whether the Respondent also violated Section 8(a)(3), as such a further finding would not affect the remedy herein Canada Dry Corporation, 154 NLRB 1763. ILL. RUAN TRANSPORT together with interest on such sums, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discharging Robert E. Adams on April 21, 1966, and by its subsequent failure and refusal to reinstate him to his former and substantially equivalent position, the Respondent violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within 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, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization by discriminatorily discharging any of its employees because of their participation in concerted activities protected by the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that those rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is found to effectuate the policies of the Act: (a) Offer to Robert E. Adams immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. - (b) Make Robert E. Adams whole for any loss of earnings he may have earned by payment to him of a sum of money equal to the amount he would have normally earned as wages from April 21, 1966, to the date the Respondent offers him full and complete reinstatement, together with interest on said amount at the rate of 6 percent per annum . Backpay and interest are to be computed and paid in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co., 138 NLRB 716, less the net earnings during the aforesaid period. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Notify Robert E. Adams if presently serving in the Armed Forces of the United States of his right to full reinstatement 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. 233 (e) Post at its Wood River, Illinois, terminal, copies of the attached notice marked "Appendix." " Copies of said notice, to be furnished by the Regional Director for Region 14, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to Respondent 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. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 12 i 1 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 12 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director , in writing , within 10 days from the date of this Order, what steps 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge or otherwise discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment for engaging in any activity protected by Section 7 of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, except to the extent that those rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(1) of the aforesaid Act. WE WILL offer to Robert E. Adams immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. ILLINOIS RUAN TRANSPORT CORPORATION (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Military Training and Service Act, as amended, If employees have any question concerning this notice after discharge from the Armed Forces. or compliance with its provisions , they may communicate This notice must remain posted for 60 consecutive days directly with the Board's Regional Office, 1040 Boatmen's from the date of posting and must not be altered, defaced , Bank Building, 314 North Broadway, St. Louis, Missouri or covered by any other material. 63102, Telephone MA 2-4154.