Clark Truck Line

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clarence Caldwell Clark, an individual d/b/a Clark Truck Line and Harry Page and Highway and Local Motor Freight Employees, Local No. 667, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Cases 26-CA-2621 and 26-CA-2645 November 27, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 26, 1967, Trial Examiner Ivar H. Peter- son issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended that those al- legations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. t Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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, the cross-exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, only to the extent consistent herewith. We agree with the Trial Examiner, for the reasons stated in his decision, that the Respondent did not violate Section 8(a)(5) by its institution of work rules. We do not agree, however, with the Trial Ex- aminer's further finding that Respondent's discharge of Page, Pickens, and Taylor for the violation of the agreed-upon work rules violated Section 8(a)(3) and (1). The Respondent is engaged in transporting freight between Memphis, Tennessee, and points in the State of Mississippi. It maintains a terminal at Memphis and warehouse at Pontotoc and Tupelo, Mississippi. On August 22, 1966, an election was held among the nine truckdrivers and warehousemen of the Respondent, resulting in a vote of five to four in favor of the Union. On Sep- tember 20, as found by the Trial Examiner, the parties held their first bargaining session and agreed to the institution of a set of work rules, proposed by the Respondent, regarding the handling of freight and lost and damaged goods. The work rules were posted on September 26 at the employees' timeclocks and the Memphis dispatcher directed the employees' attention to the rules. After a 6-day grace period, Respondent began to issue letters of violation for breaches of the posted work rules. During the period of enforcement, Page, Pickens, and Taylor each committed three violations and, after having been given the prescribed warning let- ters, were discharged in accordance with the notice provisions. The Trial Examiner, in finding the charges to be discriminatory, placed a great emphasis on the dis- proportionate number of violations attributed to the alleged supporters of the union; i.e., the five Mem- phis employees. The Memphis employees, who had signed union cards and had discussed among them- selves their interest in the union, received 11 viola- tion letters, while the Mississippi employees received only 1 letter. We note, however, that the General Counsel presented no evidence that during the period when the work rules were enforced, the Employer was cognizant of work rule violations by Mississippi employees but chose not to issue warn- ing letters to them. It is true that witnesses Lakes and Edwards testified that non-Memphis drivers had engaged in conduct prohibited by the work rules but had received no warning letters. However, as the Trial Examiner correctly pointed out, these alleged violations took place either before the post- ing of the rules or after their enforcement was suspended by the Respondent on the advice of its attorney. Neither is there any dispute as to whether the employees who received warning letters did in fact violate the work rules. Page, Pickens, and Taylor each committed three violations and received a letter for each violation. Lakes com- mitted two violations and received two letters. One unidentified Mississippi driver committed a viola- tion and received a letter. In short, the record is bar- ren of any showing of disparate treatment of the drivers or discriminatory enforcement of the rules. All of those who received warning letters, including the three employees discharged, did in fact violate the posted rules. There is no evidence that, during the period the rules were in effect, any employee violated them without receiving a warning letter. We therefore conclude that the General Counsel failed to meet the burden of showing that the rules were enforced in a discriminatory manner. In concluding that the discharges were violative of Section 8(a)(3) and (1), the Trial Examiner also ' Respondent moves to strike the cross-exceptions and supporting brief filed by the General Counsel As they do not affect the outcome of these cases, we shall deny Respondent's motion without passing on the ment of Respondent's motion 168 NLRB No. 57 CLARK TRUCK LINE relied on certain additional factors. He states, for example, that no explanation for the necessity of the rules was given to the employees collectively or individually. However, the record clearly reveals, and the Trial Examiner so found in his dismissal of the 8(a)(5) allegation, that an explanation of the necessity for the rules was given to the employees through their duly-elected representative at the bar- gaining session of September 20. Another factor deemed to be significant by the Trial Examiner was that Respondent, at the hear- ing, offered no work records but only vague and general testimony to show an increased incidence of mistakes by drivers which made the work rules necessary. However, the Union, at the first bargain- ing session, readily concurred with Respondent's explanation for the necessity of the rules. The Trial Examiner, himself, credited the testimony of Respondent's witnesses that Chief Union Negotia- tor Augustine, upon reading the rules, commented that the employees ought to be able to work under them and added that the Respondent would not "hear any complaint from us about the rules." Furthermore, the record discloses that at the hear- ing the General Counsel stipulated the reasonable- ness of the rules. Another factor relied upon by the Trial Examiner in emphasizing the discriminatory nature of the discharges was that Respondent was aware that the Memphis drivers were union adherents, and through its Terminal Manager Tucker expressed hostility to their action in selecting the Union. The Trial Examiner derived this conclusion from Page's credited testimony that some 3 or 4 weeks after the election Tucker asked Page "what was wrong with TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 501 IVAR H. PETERSON, Trial Examiner: On January 20, 1967, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 26, is- sued a consolidated complaint against Clarence Caldwell Clark, an individual , doing business as Clark Truck Line, herein called the Respondent , based upon charges filed by Harry Page, an individual, and Highway and Local Motor Freight Employees, Local No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, alleging that the Respondent had engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act.' Briefly stated, the complaint al- leged that the Respondent unilaterally promulgated new work rules on or about September 27, 1966, without con- sultation or bargaining with the Union , which had been selected in a Board-conducted election the preceding month as the exclusive representative of the employees, and that it did so in retaliation against the employees for having chosen the Union to represent them; and that thereafter the Respondent discharged three employees for violation of the new work rules and because they had joined and assisted the Union. Pursuant to notice , I heard the case on March 14 and 15, 1967, in Memphis , Tennes- see, at which hearing all parties were represented and af- forded full opportunity to participate. Briefs filed by the General Counsel and the Respondent have been carefully considered. Upon the basis of the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT the fellows up here [in Memphis] " because they I. THE BUSINESS OF THE RESPONDENT "had to go and vote a union in without consulting with the Company." We cannot agree, however, that his single statement indicates a degree of hostility to the Union sufficient to support the find- ing of discriminatory motivation in the discharges. Thus, we conclude that the General Counsel has not established by a preponderance of the evidence that the work rules were either discriminatorily motivated or discriminatorily enforced. Ac- cordingly, we find that Respondent , by discharging Page, Pickens, and Taylor, did not violate Section 8(a)(3) and (1) of the Act, and therefore dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. The Respondent, operating under the trade name Clark Truck Line, is a sole proprietorship owned by Clarence Caldwell Clark, and is engaged in transporting freight between Memphis, Tennessee, and points in the State of Mississippi. It maintains a terminal at Memphis and warehouses at Pontotoc and Tupelo, Mississippi. The Respondent admits and I find that during the 12 months preceding issuance of the complaint it derived gross revenues in excess of $50,000 from the interstate trans- portation of freight, and that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. ' The charge in Case 26-CA-2621 was filed by Page on December 5, 1966, and amended on January 20, 1967. The charge in Case 26-CA-2645 was filed by the Union on January 9, 1967, and amended on January 20, 1967. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. Promulgation of Work Rules On August 22, 1966,2 a Board-conducted election was held among the nine truckdrivers and warehousemen of the Respondent, resulting in a vote of five to four in favor of the Union, and the Union was certified as the exclusive bargaining representative of the unit on August 3 Leslie Darden, then counsel for the Respondent, on Sep- tember 2 wrote to C. H. Augustine, president of the Union, to arrange a negotiating meeting, suggesting the parties meet during the week of September 18, preferably September 20 or 21. Augustine replied under date of Sep- tember 8, setting the meeting in Darden's New Albany, Mississippi, office for September 20 at 11 a.m. Prior to the September 20 bargaining meeting Darden met on September 2 with the Respondent Clark and Bobby Tucker, the Respondent's terminal manager at Tu- pelo who also had supervisory authority over the Mem- phis terminal, to discuss the forthcoming negotiations with the Union. During this preliminary meeting Tucker stated that he wished to establish work rules to coun- teract an increasing amount of difficulty the Respondent was having with short freight shipments and damaged goods. Darden advised that any changes in work rules would have to be negotiated with the Union and asked Tucker to check what rules were customary in the indus- try and to prepare proposed rules for presentation at the first negotiation session. Tucker prepared the following notice containing the proposed work rules and gave the document, on Respondent's stationery, to Darden on September 20, shortly before the meeting with the Union's representatives: NOTICE TO EMPLOYEES TUPELO - MEMPHIS - PONTOTOC SUBJECT: EMPLOYEE ERRORS & CARELESSNESS TOO MANY ERRORS CONCERNING FREIGHT HANDLING HAVE OCCURED [SiC] IN THE LAST 30 DAY PERIOD. VIOLATIONS: 1. NOT COUNTING FREIGHT- SHORTAGES. 2. LEAVING FREIGHT AT POINT OF ORIGIN, (SHIPPER) AFTER SIGNING CLEAR BILL. 3. LEAVING BILL, SHIPPING ORDER, AT SHIPPERS OFFICE. 4. LEAVING FREIGHT & BILL AFTER SIGNING. 5. SIGNING BILL PICKING UP WRONG SHIPMENT OF FREIGHT. 6. REFUSING TO PICK UP WHAT DISPATCHER GIVES DRIVER, SUGGESTING ANOTHER TRUCK OR DRIVER. 7. PICKING UP SHIPMENT IN BAD ORDER WITH NO NOTATION. 8. NOT SIGNING SHIPPING ORDER, LEAVES NO RECORD OF WHO MADE THE PICKUP. COMPANY ACTION TO BE TAKEN: A LETTER OF VIOLATION WILL BE PRESENTED ON ANY OF THE ABOVE. THESE WILL BE NUMBERED I 2 3. ON RECIEVING [SiC VIOLATION LETTER NUMBER 3, EMPLOYEE WILL BE DISCHARGED. CLARK TRUCK LINE OWNER.... Representing the Union at the September 20 meeting were Augustine and George Moore, assistant business representative; the Respondent was represented by At- torney Darden, his law partner Lester Sumners, and Clark and Tucker. The testimonial versions of this meet- ing as given by General Counsel's witnesses Augustine and Moore, on the one hand, and the Respondent's wit- nesses Darden and Sumners, on the other hand, are at considerable variance both with respect to the sequence of events and particularly as to whether or not the parties agreed that the work rules proposed by the Respondent were to go into effect. It becomes necessary, therefore, to set out the conflicting versions in some detail.4 According to Augustine and Moore, the parties met at approximately 10 a.m. and for the ensuing 2 or 2-1/2 hours, prior to lunch, discussed in some detail the provi- sions in the Union's current printed national master freight agreement, which Augustine had at the outset presented as the appropriate proposal for discussion. They further testified that shortly before the meeting was recessed for lunch Darden presented to them several con- tract clause proposals, including the proposed work rules. In connection with the latter, the testimony of Augustine is that Respondent's representatives remarked "that they were having trouble with some of the people leaving freight and not properly checking freight, and they wanted something in the contract to take care of the situa- tion." Both testified that no statement was made of an in- tent on the part of the Respondent to place the work rules promptly into effect. During the afternoon session Au- gustine stated that he thought the Respondent's proposals were inadequate and Darden stated that the Union's master agreement was inapplicable to the Respondent's operation. At Darden's request, Augustine agreed to sub- mit a new proposal , which he mailed to Darden some time later. The meeting adjourned, according to Augustine and Moore, with no agreement by either side on any of the proposals of the other. Darden's account of the September 20 meeting, cor- roborated by Sumners and the contemporaneous notes on the conference kept by the latter, differs in material respects from that given by Augustine and Moore. He testified that the morning session convened at 11 o'clock5 z Unless otherwise indicated, all dates refer to the year 1966. I find, as alleged in the complaint and admitted in the answer , that the appropriate unit within the meaning of Sec. 9 (b) of the Act consists of "all truckdrivers and warehousemen employed by the Respondent at his Memphis, Tennessee, terminal, and points of operation at Pontotoc and Tupelo, Mississippi, excluding office clerical employees, guards and su- pervisors as defined in the Act," and that the Union is the exclusive representative of said unit within the meaning of Sec. 9(c) 4 Augustine and Moore, in that order, were the first witnesses called by the General Counsel. Thereupon, by agreement of all parties the testimony of Darden and Simmers , on behalf of the Respondent, was taken. They ceased to be counsel for the Respondent in this matter shortly after the September 20 meeting 5 In fixing the time the meeting began , Darden referred to the Sep- tember 8 letter from Augustine in reply to Darden's letter of September 2, in which Augustine stated that he would "arrange to be in New Albany on Tuesday, September 20, 1966 at I I am for this meeting in your of- fice." CLARK TRUCK LINE 503 and lasted only about 30 minutes. After some preliminary discussion, the Union presented its proposal consisting of the printed booklet containing the Union's master na- tional freight agreement and southeastern area supple- ment ; Augustine suggested that the supplement, which began on page 53 of the booklet, was the portion he would like to follow. Darden gave Augustine eight proposed contract clauses, each on a separate sheet of paper. About 11:30 the parties adjourned until 2 p.m., in order that they might study the respective proposals. When the parties reconvened in the afternoon Darden, so he testified, stated that the Union's printed proposal was "a rather elaborate contract" and that he would prefer to "start out from scratch" with a new contract rather than attempt to adapt the Union's proposal to the needs of the Respondent. Augustine and Moore, how- ever, said they preferred to follow the printed booklet. Accordingly, the parties began an examination of the Union's printed proposal, starting at page 55. When they reached article 39, section 6, on page 59,6 Darden handed the union representatives the proposed work rules set forth above, stating, as he testified, that the Respondent proposed to put them into effect "because of the problem that we had which was the loss of freight and damage to freight on the part of the freight handlers." Darden testified that Augustine read the rules and then com- mented, "Any son-of-a-bitch ought to be able to haul freight or pick up freight under these rules."7 Darden further testified that he told Augustine that in his opinion the Respondent's rules "were more liberal than were his own rules which were contained in this booklet that he had furnished me, which required only one notice whereas we had provided for two notices; and that we were now handing those to him and giving him the notice and would put them into effect the following week after the six days had elapsed as provided in his rules."8 According to Darden, Augustine placed his copy of the rules in a file folder and said, "You won't hear any com- plaint from us about them." Sumners testified to the same effect, and his notes on the meeting, to which he referred, indicate that the discussion of the work rules began at 2:35 p.m. and that at 3 p.m. the parties began discussing grievance procedure. Sumners' notes record the comment attributed by Darden and Sumners to Augustine, that "You won't hear any complaints from us" about the work rules. Although Sumners was uncertain as to the discus- sion concerning the time the rules would be posted, he and Darden were positive in testifying that they definitely understood the rules and their being placed in effect had been accepted by the Union. The parties thereafter turned to other matters and the meeting adjourned at 5 o'clock. On September 26 the Respondent posted the rules at the Memphis and Tupelo terminals. No meeting was called to advise the employees about them, but Mary Pat- ton, the Memphis dispatcher, directed attention to the rules. Following the September 20 meeting Darden and Sum- ners ceased to represent the Respondent in the negotia- tions. Under date of September 29, Darden wrote to Wil- liam Fortas, of the firm of Fortas & DeHart, which firm thereafter represented the Respondent, transmitting the certification of the Union issued by the Board, the con- tract-clause proposals made by the Respondent at the September 20 meeting, a second proposal received from the Union on September 29, and the notice containing the work rules. Regarding the notice, Darden's letter states that a copy thereof "was given C. H. Augustine on Sep- tember 20, 1966, with statement that we were putting rules into effect. Augustine and Moore concurred in this procedure." On October 17 the parties met for their second negotia- tion session. Moore alone represented the Union and the Respondent was represented by Clark, Tucker, and At- torney DeHart, his first meeting after becoming counsel for the Respondent. In the meantime, the Respondent had issued five "letters of violation" of the work rules.9 On October 17 two more letters were issued, the first to employee Joseph Lakes and the third to employee Pickens, which also notified him that he was discharged. Moore testified that before the bargaining session started DeHart "informed me that employee John Pickens was receiving a third warning notice for leaving freight." Moore could not recall whether DeHart stated Pickens was being discharged. Tucker, on the other hand, testified that at the October 17 meeting the parties discussed the impending discharge of Pickens, "that he had had three violations and would be discharged." Tucker further testified that "Mr. Moore made a comment something to the order that if the violations were in order, and we were sure he had violated what we were talking about, that we would hear nothing from him." Moore testified that he first learned of the posting and enforcement of the work rules at the negotiating meeting on November 10, at which he was the sole representative of the Union.10 Taylor had been given his third "letter of violation" and was discharged on November _7. Accord- ing to Moore, at the November 10 meeting the parties discussed the discharges of Pickens and Taylor and the impending discharge of Page,J" DeHart taking the posi- tion that Augustine had agreed to the work rules going into effect at the September 20 meeting, while Moore as- serted that there had been no agreement on the rules. Moore requested that the Union be furnished with copies of the warning letters, and he received these on November 18. At a further meeting on November 21 Moore informed the Respondent's representatives that it would be practically impossible to consummate a collec- tive-bargaining agreement unless the three discharged employees were reinstated. Thereafter the Respondent, upon advice of counsel, discontinued issuing "letters of violation" and in effect suspended enforcing the work rules pending disposition of the present unfair labor prac- tice charges. 6 This provision reads as follows: The employer is permitted to make and enforce any reasonable Com- pany rules which do not conflict with the provisions of this Agree- ment; all such rules to be posted for a period of six (6) days before becoming effective and Union to be furnished a copy of such rules. ' On cross-examination, Augustine denied that he made this or any similar comment with reference to the Respondent's proposed rules. 8 In characterizing the Respondent's rules as more liberal than the Union's Darden had reference to article 43 of the Union's printed booklet, which required "at least one warning notice ... in writing" before discipli- nary action could be taken in regard to matters other than certain specified conduct as to which no warning notice was required. 9 These five warning notices were issued October 10. Harry Page had been given two; John Pickens, two; and Sug Taylor, one. 10 Augustine had met with Respondent's representatives on October 31 and Moore had been the Union's only representative at a meeting on November 7. Both testified that on neither of these occasions were the Respondent's work rules discussed. " Page was discharged on November 11 for a third violation of the work rules that had occurred several days earlier. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Discharges The notice posted on September 26 set forth eight violations of basic work duties in connection with han- dling freight and provided that "a letter of violation will be presented on any" of the violations, and stated that upon receiving the third letter of violation the employee "will be discharged." Although the listed "violations" established no new duties in regard to the handling of freight and employees in the past had been told that proper performance of their job entailed avoiding making the mistakes now listed as "violations," it is clear that prior to the notice there existed no rule or practice of noti- fying employees in writing of improper work performance and no rule that a third violation would result in discharge. John Pickens, who was given notice of a third violation and discharged on October 17, had been in the Respond- ent's employ as a truckdriver at the Memphis terminal since April 1965. On October 10 he had been given the first two notices of violation of rules. The first of these stated that on October 4 he had picked up a shipment of drugs and failed to note on the shipping order that it was two cartons short. Although Pickens disputed this when testifying, Tucker supported the charge contained in the letter with documents he had before him while testifying. I accept Tucker's testimony that Pickens had made the error attributed to him. The second letter related to an in- cident on October 7, when Pickens failed to sign the shipping order on a particular shipment. Pickens admitted he had not signed the document. The final letter, which Pickens admitted was correct, stated that on October 14 he signed for four pieces of freight but picked up only three, and that 3 days later the missing piece was found at the shipper's dock. Pickens testified that before the rules were posted he had on occasion made errors similar to those charged to him as violations but had never been threatened with discharge therefor. On one occasion, Clark, the owner, complimented him on his work, stating that he thought Pickens was a good pickup and delivery man. Sug Taylor went to work as a truckdriver at Respond- ent's Memphis terminal in July 1965. His first "letter of violation" was issued October 10, 1966, and recited that on October 7 he picked up three shipments and in each instance failed to sign the shipping order. Taylor testified that this incident "possibly" could have happened, and stated that before the rules were posted he "never did sign my turn in copies" and had not been reprimanded for failing to do so. The second letter, dated October 26, charged him with leaving 1 piece of an 11-item shipment on the shipper's dock. Taylor admitted so doing. The final letter, issued November 7, stated that on November 2 he picked up a shipment consisting of 12 cartons, which checked out 1 carton short. Taylor recalled picking up 12 cartons and being 1 short; he testified that possibly 1 car- ton was lost because the truck he was driving had no tail- gate. When Taylor received his second letter Tucker urged him not to make any more mistakes as he would be discharged if he received a third letter. Harry Page was hired as a truckdriver at the Memphis terminal on March 7, 1966, and was discharged on November 11 when he received his third violation letter. According to Page, about 3 or 4 weeks after the Union had won the election Tucker engaged him in conversa- tion, asking "what was wrong with the fellows up here." Page asked what Tucker meant, and Tucker replied, "You had to go and vote a union in without consulting with the Company." Page explained that the hours were bad and wages were low and that he personally had not been allowed by the dispatcher to leave at 6 o'clock dur- ing a week in order to attend church services. Tucker ad- mitted having a conversation with Page in which the latter complained about not being permitted to leave early to at- tend church services, but denied asking Page what was wrong with the Memphis employees or making any reference to the Union. I credit Page, who impressed me as a credible witness and whose version of the conversa- tion seemed more plausible than Tucker's. The first two letters of violation relating to Page were issued October 10. One asserted that on October 7 he failed to sign a shipping order pertaining to a particular shipment. The other stated that on October 6 he picked up a shipment which checked out one carton short. The evidence indicates that Page did commit these errors. The final violation letter of November 11 charged Page with failing to turn in a shipping order on a shipment he picked up November 3. Page acknowledged that he apparently had lost the shipping order and that he had gone back to the shipper some days later and obtained a photocopy. Before enforcement of the work rules was suspended following the discharge of Page, Joseph Lakes, the remaining truckdriver at the Memphis terminal who had been one of the five unit employees at that terminal when the rules were placed in effect, had received two letters of violation, one on October 17 and the other on November 7. Lakes admitted that he had made both mistakes. The fifth Memphis unit employee, Arthur Lee Edwards, worked as a warehouse checker and not as a truckdriver during the period here relevant, and apparently because of the nature of his job no letter of violation was issued to him. Lakes and Edwards were still employed at the time of the hearing. According to the testimony of Lakes and Edwards, the four truckdrivers who were based in Tupelo and Pontotoc and hauled freight between those points and Memphis, also violated the work rules but received no warning let- ters. However, in fixing the time when these alleged breaches of the rules occurred, Edwards placed them as taking place either before the rules were posted or after their enforcement was suspended. Terminal Manager Tucker testified that one of the Mississippi drivers was given a letter of violation. Explaining why the higher in- cidence of violation occurred among the Memphis drivers, Tucker testified that part of the freight originating in Mississippi was loaded by the shippers, and that there were more small shipments and pickups made in Mem- phis, involving a larger number of freight bills, destined for Mississippi points, than vice versa. Tucker testified that in the period before the rules were posted there had been a gradual increase in the number of errors made by employees, which he attributed to care- lessness; however, he could give no more specific esti- mate or description of the magnitude of the problem than to say that "it was just an overall problem that was getting worse." Although he had, prior to posting the rules, talked to individual employees "on a lot of occasions" about mistakes they made, he did not call them together to explain the rules or why they had become necessary. C. Concluding Findings On the question whether the Respondent unilaterally promulgated the work rules and thereby violated Section CLARK TRUCK LINE 505 8(a)(5) of the Act, I am persuaded that upon analysis the preponderance of the credible evidence establishes that the rules were placed in effect with the consent of the Union. In reaching this conclusion I have relied primarily upon the testimony of Darden and Sumners, in preference to that of Augustine and Moore , regarding what happened at the negotiating meeting of September 20, because their version impressed me as more con- sistent with the probabilities and the objective facts. Considering that Augustine in his letter of September 8 to Darden had fixed the time of the September 20 meet- ing at 11 o'clock, I accept Darden's testimony that the meeting began at approximately that hour rather than about 10 o'clock as Augustine and Moore testified. Since both parties had written contract proposals , the more likely procedure would be, as Darden testified, that these were exchanged early in the meeting rather than that the first 2 or so hours prior to lunch would be spent in discussing the Union's proposals , as the union represent- atives testimony would have it, with the Respondent submitting its proposals just before adjournment for lunch. I find that the morning session lasted only about 30 minutes, that the parties exchanged proposals, and then adjourned until 2 o'clock in order that each side might have time to study the proposals submitted by the other. I further find that early in the afternoon session, as the parties were considering the provision in the Union's proposal (article 39 , section 6) permitting the employer "to make and enforce any reasonable Company rules," Darden gave a copy of the Respondent's proposed work rules to the Union's representatives and stated that the Respondent proposed to place them in effect the follow- ing week after being posted for a period of 6 days in con- formity with the requirements in the Union's printed proposal. Upon analysis, I find the evidence establishes that Au- gustine raised no objection to the rules and concurred in Darden's announced intention of placing them in effect promptly. In view of the fact that the rules were in the form of a notice to employees and prescribed the penal- ties for violation, rather than in the form of a contract clause, it does not seem likely that in presenting them Darden would state, as Augustine testified , that the Respondent "wanted something in the contract" to deal with the situation to which the rules were addressed. Rather it seems more plausible that Darden, as he testified, stated that the Respondent proposed to put the rules into effect the following week. I credit the testimony of Darden and Sumners that Augustine , upon reading the rules, commented in substance that employees ought to be able to work under them and added that the Respond- ent would not "hear any complaint from us about" the rules. Further supportive of the view that the rules were agreed to by the Union is Darden's letter of September 29 to Fortas, transmitting the relevant documents in con- nection with the negotiations had up to that time , in which Darden stated that on September 20 the rules were given to Augustine "with statement that we were putting rules into effect" and that "Augustine and Moore concurred in this procedure." Moreover , at the October 17 meeting the fact that employee Pickens was that day receiving his third warning notice was discussed. I credit Tucker's testimony that Moore was then informed that Pickens was being discharged and that Moore remarked that if Pickens had committed the violations no objection would be made by the Union. I conclude that at the September 20 meeting the Respondent did inform the Union of its desire and inten- tion to place the work rules into effect the following week. I further find that the Union's representatives agreed to this proposal. Accordingly, it will be recommended that the allegation that Respondent changed employees' "ex- isting terms and conditions of employment ... without notification, consultation or bargaining with the Union by unilaterally promulgating new rules and regulations af- fecting the conditions of employment of its employees," thereby violating Section 8(a)(5) of the Act, be dismissed. The fact that the Respondent discussed the work rules with the Union and obtained the Union's consent to their adoption does not, however, establish that the Respond- ent's motive in promulgating and enforcing the rules, resulting in the discharge of three out of nine unit em- ployees in a few weeks, was wholly nondiscriminatory. I am persuaded that the Respondent's purpose, in substan- tial part, was to retaliate against its Memphis employees for designating the Union as their bargaining representa- tive. The following considerations lead me to this conclu- sion. There can be little doubt that the Respondent, at least after the Union was selected as bargaining representative by a vote of five to four out of a unit of nine employees, was aware that the five Memphis-based employees were union supporters. They signed union cards and discussed among themselves their interest in bringing in the Union. There is no evidence that any of the four drivers based out of Memphis had indicated any support for the Union; indeed one of them, Shirley McGlaun, who had been with the Respondent some 30 years, told Page that "if I [Page] didn't have anything to do with the Union, I had a job." Some 3 or 4 weeks after the Union won the elec- tion Tucker, the Tupelo manager, asked Page "what was wrong with the fellows up here," referring to the Mem- phis employees, because they "had to go and vote a union in without consulting with the Company." According to the undenied and credited testimony of Arthur Edwards, who was the warehouse checker and the only Memphis employee not to receive a warning letter (probably because his job was in the warehouse and the work rules pertained primarily to operations of pickup and delivery drivers), Clark, the owner of the business, at a time Ed- wards fixed as about 2 months before the hearing, asked Edwards if he did not "have better knowledge than to fool with people like" Page and James Hall, a union represent- ative; and that Clark added that if Edwards and Joseph Lakes continued to "fool around with Harry [Page] and James Hall, pretty soon you won't have no jobs," because Clark might go out of business.12 The testimony of Tucker regarding the necessity for in- stituting the work rules impressed me as vague and generalized. According to him, during the 30-day period preceding the posting of the rules there had been a marked increase in employee mistakes in connection with handling of freight. However, he was unable to be specific and produced no documentation to substantiate his con- clusionary statement. It is clear, however, that the Respondent maintained documents which would reveal 11 Edwards further related that Clark attributed to Page talk "about putting sugar in the trucks and blocking up the road trucks and stuff like that," to which Edwards replied that he had heard no such talk. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD errors of the sort covered by the rules, since Tucker in several instances referred to such records in establishing that some of the employee errors for which violation let- ters had been issued had in fact occurred. Although the problem had existed for some time and Tucker claimed to have spoken in the past "on a lot of occasions" to in- dividual drivers about their mistakes, when the rules were posted employees were not called together or spoken to individually with a view to instructing them in the proper performance of their duties or impressing upon them that a continuation of errors would result in discharge when the third violation occurred. In view of the laxity in operations that had been tolerated in the past and the evident frequency of em- ployee errors of the character covered by the rules, a pre- dictable result of merely posting and rigidly enforcing them would be that in short order employees would have received enough letters of violation to require their discharge, without achieving the stated objective of reducing employee mistakes. This is precisely what hap- pened. Although Tucker testified that the rules were not enforced for the first 6 days after being posted, ostensibly in order that employees might become "familiar with these rules and understand what we were doing," no such explanation was given the employees nor did the rules as posted state when they became effective. On October 10, five letters of violation were issued, covering mistakes committed by three drivers between October 4 and 7, in- clusive. Thus within less than a week after the rules were put in effect two of the four Memphis drivers, Page and Pickens, had two violations each, and a third (Taylor) had one. A week later, on October 17, Pickens was discharged upon receiving his third letter, and Lakes was given his first letter. On October 26, Taylor received his second letter; on November 7, a third letter was given Taylor and he was discharged, while Lakes received his second letter. Thus in the first month the rules were in ef- fect, two out of the four Memphis drivers had been ter- minated and each of the remaining two was one violation away from termination. Page was discharged 4 days later, leaving Lakes one step away from the same fate. While this rapid erosion of the Memphis staff was taking place, the most that appears with respect to the same number of drivers based in Mississippi is that one of them received a violation letter.13 That the four Memphis drivers would receive 1 I violation letters in the same period that only I letter was being given to the four Mississippi drivers is a circumstance which I believe is not due to chance or ex- plained by the fact that the Memphis drivers picked up and delivered more items of freight. I infer that the dis- proportion finds its explanation in substantial part in the fact that the five Memphis employees were supporters of the Union and known to be such by Clark and Tucker, whereas the Mississippi drivers had not been instrumen- tal in bringing in the Union as the employees' representa- tive. Considering that the work rules were instituted within a short time after the Union was certified; no explanation of the necessity for them was given to employees collec- tively or individually; the alleged increased incidence of mistakes during the 30-day period prior to their posting was not supported by available work records but only by vague and general testimony; a disproportionate number of violations were attributed to supporters of the Union, and the Respondent was aware that the Memphis drivers were union adherents and through Tucker had expressed hostility to their action in selecting the Union, I am per- suaded that a significant factor motivating the promulga- tion and enforcement of the work rules was a purpose to retaliate against the Memphis employees for choosing the Union to represent them. Accordingly, I find that by discharging Pickens, Taylor, and Page, the Respondent unlawfully discriminated against them and thereby vio- lated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that the Respondent cease and desist therefrom and take appropriate affirmative ac- tion in order to effectuate the policies of the Act. Since I have found that the Respondent discriminatori- ly discharged John Pickens, Sug Taylor, and Harry Page, I shall recommend that the Respondent offer them im- mediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered from the date of the discriminatory discharge to the date of the Respondent's offer of reinstatement. The backpay shall be computed in accordance with the formula ap- proved in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, as pro- vided in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that the Respondent preserve and, upon request, make available to the Board, payroll and other records necessary to facilitate the computation of backpay due. As the unfair labor practices committed bythe Respond- ent are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. 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. Clarence Caldwell Cliark, d/b/a Clark Truck Line, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 Tucker's testimony to this effect is unsupported by a copy of the letter and he did not identify the driver or state when the letter was issued. CLARK TRUCK LINE 507 2. Highway and Local Motor Freight Employees, Local No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging John Pickens, Sug Taylor, and Harry Page, on October 17 and November 7 and 11, 1966, respectively. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. In other respects alleged in the complaint, the Respondent has not engaged in unfair labor practices. [Recommended Order omitted from publication.]