Thurston Motor Lines, Inc.

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thurston Motor Lines, Inc. and Teamsters Freight Local No. 480, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America Thurston Motor Lines , Inc. and Teamsters, Chauf- feurs, Helpers and Taxicab Drivers Local Union 327, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America. Cases 26-CA-2527 and -2 and 26-CA-2078, -2, -3, -4, -5, 26-CA-2118, 26-CA-2133, and 26-CA-2157 November 27, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On June 6, 1967, Trial Examiner George J. Bott issued his Decision in the above-entitled proceed- ing,' finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He fur- ther found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. In the backpay proceeding, the Trial Examiner, in accordance with the parties' stipula- tion, recommended that Respondent be ordered to pay certain amounts of backpay to five named em- ployees. Contrary to the contentions of Respond- ent, he recommended that the Board order it to again offer reinstatement to an employee whom it had unlawfully discharged. Thereafter, Respondent filed exceptions and the General Counsel filed cross-exceptions to the Trial Examiner's Decision, and the General Counsel filed a brief in support of his cross-exceptions. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following modification: The Trial Examiner found that Respondent vio- lated Section 8(a)(1), (3), and (4) of the Act by discharging employee Phillip Vaughn for his union sympathies and the testimony he gave in a previous case involving the same parties.'' We do not agree with this finding of the Trial Examiner. Respondent is an interstate carrier of motor freight. Phillip Vaughn began to work as a part-time employee at its Nashville terminal in February 1965. In April, Vaughn became a regular tractor driver, replacing Thomas Larkins who, we sub- sequently found, had been unlawfully discharged.3 On August 26, 1966, 1 year after he had testified in the case referred to above, Vaughn was laid off. His layoff came during the period when Respondent was offering reinstatement to Larkins and several other of Respondent's discriminatorily discharged employees. At the hearing in this case, Vaughn testified without contradiction that, at the time of his layoff, Respondent's Terminal Manager Martin told him of Larkins' forthcoming reinstatement, that the work force would have to be reduced, and that Vaughn would have to be laid off because he had filled Larkins' position. After his layoff, Respond- ent.contacted Vaughn several times, informed him that he was first on the extra driver list, and requested that he report to work. Vaughn refused the requests. In finding that Vaughn had been discriminatorily laid off, the Trial Examiner stressed Respondent's failure to check the relative seniority among its em- ployees with a view to offering Vaughn a job in another classification or of transferring him else- where. He noted that, Respondent did not attempt to retain Vaughn after three drivers either refused to accept reinstatement or quit their jobs shortly after being returned to them. In our view of the record, the factors relied upon by the Trial Examiner do not support the inference he drew, namely, that because Respondent failed to explore the alternatives outlined in the preceding paragraph it had acted on the basis of a continuing animus against Vaughn, discharging him for his union sympathies and the testimony he had proffered in the earlier case. In determining who shall be laid off, Respondent's practice has been that employees in one classifica- tion do not displace employees in another classifica- tion. Its policy is not to bump "down the line or up the line." All job changes which require some loss of employment are confined to the classification in- volved. Thus, when Larkins returned to work the only classification to be affected under Respond- ent's practice was that of tractor driver. Since Two separate matters were consolidated for hearing The first, 26-CA-2527 and -2, is an unfair labor practice case in which Respondent is alleged to have violated certain sections of the National Labor Rela- tions Act, as amended The second, 26-CA-2078, et al , is a backpay specification in which Respondent is also alleged to have failed uncondi- tionally to offer reinstatement to two employees who the Board found had been unlawfully discharged Thurston Motor Lutes, Inc , 159 NLRB 1265 /bid In the same case we also found violations of the Act in Respondent's failure to call Vaughn for available part-time -work and in its promotion of him to full-time employee status 168 NLRB No. 62 THURSTON MOTOR LINES 429 Vaughn had replaced Larkins when the latter was unlawfully discharged , Respondent decided to reverse the process when Larkins , and other em- ployees in the same position , were to be reinstated. Therefore , Larkins replaced Vaughn , the man who had replaced him. Yet, having made this choice, Respondent did not discharge Vaughn . Instead, it placed him at the head of the extra list, summoned him to the terminal several times , for jobs, and told him that there was plenty of work available. Vaughn ignored the offers. Furthermore , the record does not justify the Trial Examiner's reliance upon Respondent 's failure to consider Vaughn for the positions supposedly opened up by the decision of three discharged drivers not to resume their employment with the Respondent . Their choice did not create three additional driver positions . It merely allowed the present occupants to continue working without fear of replacement by those who were returning to their jobs pursuant to the Board 's Order in the earlier case. In view of Respondent 's adherence to a policy governing layoff which precluded bumping, its reasonable decision, in the face of a Board Order, to replace Vaughn with the same driver whom Vaughn had previously replaced , and its frequent offers of extra work to Vaughn after he was laid off, we find that the General Counsel has not proved by a preponderance of the evidence that Respondent had discriminatorily discharged Vaughn. Ac- cordingly, we shall dismiss the complaint in Case 26-CA-2527 and-2. In view of our adoption of the Trial Examiner's recommendations in the backpay case , and his inad- vertent failure to include a recommendation relating thereto , we hereby include such in an order herein. plaint in Case 26-CA-2527 and-2 be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE PROCEEDINGS GEORGE J. BOTT, Trial Examiner: This consolidated proceeding based on a backpay specification issued by the Regional Director on January 7, 1967, and a com- plaint of unfair labor practices under Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, issued by the Regional Director on October 14, 1966, pursuant to charges filed on August 24 and September 6, 1966, was heard in Nashville, Tennessee, on March 7, 1967. Subsequent to the hearing, General Counsel filed a brief which I have considered. On the basis of the entire record in the case and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS; THE LABOR ORGANIZATIONS INVOLVED I find on the basis of the facts alleged in the complaint and admitted in the Respondent's answer, and on the basis of the Board's findings in the earlier case upon which the Regional Director's backpay specifications are based, that Respondent Thurston Motor Lines, Inc., a North Carolina corporation with its principal office and place of business at Charlotte, North Carolina, and ter- minals in Nashville, Tennessee, and other locations in Tennessee and other States, where it is engaged in the in- terstate transportation of motor freight, is engaged in commerce within the meaning of Section 2(6) of the Act. Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327 and Teamsters Freight Local No. 480, of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor or- ganizations within the meaning of Section 2(5) of the Act. ORDER - Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Thurston Motor Lines, Inc., Nashville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth below: 1. Pay, as net backpay to the employees named below, the amounts specified opposite their names, Glenn Poss $235 Jackie McDole 128 Davis Robertson 53 James Screws 407 Phillip Vaughn 76 2. Offer Glenn Poss immediate and full rein- statement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed, according to the formula prescribed by the Trial Examiner in the section of his Decision entitled, "The Remedy," for employee Phillip Vaughn. IT IS HEREBY FURTHER ORDERED that the com- Il. THE BACKPAY SPECIFICATION A The Bac%pay Issues The Board, on June 24, 1966, issued a Decision and Order directing Respondent to offer Thomas Larkins, Jackie McDole, Thomas Mohon, James Screws, Glenn Poss, Davis Robertson, and Larry Storey immediate and full reinstatement to their former positions and to make them and Phillip Vaughn whole for any losses they suf- fered as a result of the discrimination against them.' At the hearing on the backpay specification, the parties were in agreement on certain matters, but Respondent disputed the accuracy of the amounts claimed due some of the em- ployees. It was agreed, however, that the record would be left open in order that the parties might seek agreement on basic facts and stipulate the amounts actually due. On March 31 and April 3, 1967, the General Counsel, the Respondent, and the Union executed separate but identi- cal stipulations disposing of the backpay features of the case and providing that I make findings based thereon.2 I Thurston Motor Lines , Inc , 159 N LRB 1265 ' These documents have been marked as T X Exh la, b, and c, and made a part of the record 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have approved the stipulation and, on the basis of it, I find as follows: In accord with the terms of the stipulation certain amounts are due employees, and I recommend that the Board order Respondent to pay the below-named dis- criminatees, as their total backpay, the amount set op- posite his name with interest thereon until paid. Name Amount Glenn Poss $235 Jackie McDole 128 Davis Robertson 53* James Screws 407 Phillip Vaughn 76 8 Except as noted below. Also in accord with the stipulation, I recommend that, when the next allocations are made to any employees' ac- counts pursuant to Respondent's profit-sharing plan, allo- cations be made of the total amount due to Davis Robert- son pursuant to said plan; that Respondent notify the Re- gional Director of Region 26 of the Board of the amount due Davis Robertson; that if said Director considers the stated amount to be incorrect, he be permitted to institute such supplemental proceedings as he may consider ap- propriate. However, if said Director approves the compu- tations of the amount due Davis Robertson, I recommend that Respondent make him whole by payment to him of the amount allocated pursuant to the plan 3 B. The Alleged Failure to Reinstate Glenn Poss and Thomas Larkins as Provided in the Board's Order 1. The facts Truckdrivers Poss and Larkins were discharged in April 1965 and were ordered reinstated by the Board on June 11, 1966. Respondent reinstated Poss on August 11 and Larkins on August 16, 1966, and apparently they worked at their old jobs without incident until August 22, when Nashville Terminal Manager Martin handed each a letter which read: Nashville, August 22, 1966 A. Glenn Poss Nashville Terminal When you responded affirmatively to our offer to reinstate you to your former job here, we assumed that you did so in good faith. Consequently, we proceeded with plans to terminate another employee to make room for you in your old job. However, just as we were on the verge of carrying out such plans, we learned that you had not accepted reinstatement here in good faith. Proof has been furnished to us that you, like several others, have come here while on temporary leave from other em- ployment where you have retained fully your job status. We have a substantial investment in the training of the employee who was slated for discharge on ac- count of your returning here. This employee also has some rights in the matter. You knew, of course, that your returning to work would cause such an em- ployee to lose his job. We do not believe that the law either authorized such misconduct on your part or requires that we tolerate it. It is absolutely essential that you immediately make a choice between our Company and your present employer- the Company from which you are now on leave-of-absence. If you do not now resign from the employment referred to above and sever all relations with that employer, we must assume that you intend to return to that job at or before the ex- piration of your temporary leave, and we will act ac- cordingly. /S/ WILLIAM L. MARTIN WILLIAM L. MARTIN TERMINAL MANAGER Poss and Larkins worked for other employers in the in- dustry after Respondent discharged them in 1965, and when Respondent offered them reinstatement in August 1966 Poss was employed by Ryder Truck Lines and Lar- kins by Southern Forwarding Freight Lines. What Respondent was referring to in its August 22 letter to the employees where it stated that they had not accepted reinstatement "in good faith," but had returned to Respondent "while on temporary leave from other em- ployment" where they had retained "job status," was the fact that each of the men had obtained, on August 9, 1966, a written leave of absence for 30 days from their respective interim employers. When Martin gave Larkins his letter he stated that he had to know whether Larkins intended to remain with Respondent or return to Southern Forwarding. Larkins told him that he had "come back to stay" and would resign from his last employer Southern's terminal manager, Gray, was-then reached by telephone, and Lar- kins spoke with him in Martin's presence and told him he would resign. Martin then instructed Larkins to send a written resignation to Gray, with copies to Martin and the Union, which Larkins did. Larkins was a regular driver at Southern Forwarding before he resigned. He obtained the 30-day leave of absence when Respondent offered him reinstatement, ac- cording to him, and I credit his testimony, because he wanted to be certain when he went back with Respondent that "everything would be all right, so that if something happened I could have a job to go back to. I had made up my mind to stay at Thurston but I didn't know what would happen." After Martin read the August 22 letter to Poss he in- formed him that because he was holding two jobs simul- taneously he had to relinquish one of them. Poss told him that he did not intend to resign from Respondent because that was where he wanted to work and he had taken a leave of absence from his last employer for "security" only. Martin told Poss to "hit the clock," and he did. His separation slip reads: "Employee rejected full reinstate- I Paragraph 31 of the backpay specification claimed reimbursement for certain dues deductions, but General Counsel stated at the hearing that this matter was no longer before me because the Respondent had for- warded checks covering the amounts due to the Regional Director THURSTON MOTOR LINES 431 ment to former Job as offered by company." In his testimony, Poss amplified his reference to "security" being the basis for his 30-day leave of absence from Ryder. He said he had been "previously dismissed by Thurston Motor Lines which was proven by the Na- tional Labor Relations Board that they had discriminated against me, that they had dismissed me illegally and I had worked [the] extra board and worked myself up from that status with another company and was on regular at that time, and I felt it would be foolish to go back although I wanted to go back for different reasons." These reasons, he explained further, were that he was on the night shift at Ryder but worked days at Respondent, and, in addition, at Ryder he worked on the dock, but he would be driving a truck for Respondent. He reiterated that he asked for a leave of absence from Ryder "purely on the basis of security in case that I was dismissed and I [would] have a job that I could go back to " D. J. Thurston, Respondent's president, testified that after Respondent offered reinstatement to the dis- criminatees, he began to "question the motives" of the employees because some of them "did not show up at all" or have the "courtesy to say they weren't coming." In ad- dition, McDole and Robertson worked only a day or so after reinstatement and then quit. When Larkins returned, Thurston learned from his previous employer that he had been granted a leave of absence, and he also discovered just before another Board hearing on August 17, 1966, that Poss had a 30-day leave of absence from Ryder 4 Thurston secured copies of Larkins' and Poss' leaves of absence and, based upon these documents and his ex- perience with the other reinstated employees, he caused the letters to be written to Poss and Larkins in which they were required to elect where they wanted to work because, as he said, ... it was our feeling, before we threw some other men out and replaced other men with these men, we should have some reasonable indication of sincerity and honesty of the purpose and intent on their part. Thurston said his position was accurately stated in the letters which Terminal Manager Martin gave to Larkins and Poss. He added that the Company also has a rule against "moonlighting" and that an employee had been discharged for holding two jobs. Thurston maintained that "no limitation or restriction of any kind" was placed on Larkins or Poss when they were reinstated. Larkins is still working for Respondent and Thurston said that after Poss refused "to accept the terms" stipulated in Re- spondent's letter, Respondent informed the Board that it would take him back to work if he would. 2. Analysis and conclusions The backpay specification alleges that Respondent failed to reinstate Poss and Larkins as provided by the Board's Order because it required them as a condition of employment or reinstatement to give up the "seniority rights and other benefits" acquired by them during their employment with another employer. The letters which Respondent gave Poss and Larkins on August 22, 1966, speak for themselves, and Thurston, Respondent's pre- sident, said they accurately expressed his views. Accord- ing to the letters, Poss and Larkins had accepted rein- statement while on temporary leave from other employ- ment where they had fully retained "job status." In Respondent's view, such actions were not in "good faith" but constituted "misconduct" which Respondent would not tolerate. Respondent required the employees to "im- mediately make a choice between our Company and your present employer" or Respondent would "act ac- cordingly " How Respondent would act was made clear when Poss was told to "hit the clock" when he refused to resign from Ryder Truck Lines immediately. It is clear, therefore, and I find that Respondent conditioned con- tinued employment of the employees on their immediate resignations from the employers who had granted them a 30-day leave of absence and on their "severing all rela- tions with [those] employers." Certain principles relating to the Board's power to order reinstatement of employees with backpay where in the Board's judgment this remedy "will effectuate the pol- icies of [the] Act"5 have been long established. The pur- pose of reinstatement is the "restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination. `6 An offer of reinstate- ment to the victim of discrimination has been described as "the only sanction which prevents an employer from benefiting from his unfair labor practices through discharges which may weaken or destroy a union ..."7 and "is not only the final achievement of the Act's protec- tion in respect to [the discharged] employee but it is the most realistic and articulate demonstration of the Act's paramount protection to other employees."8 The achievement of these important objectives requires that the employer's offer be "immediate and full,"9 and it is only when it is "not possible to restore the absolute status quo" that something less is permitted.10 I n accord with these rules it has been said that the em- ployer's offer of reinstatement must be unequivocal, un- conditional, and in good faith in order to be valid and the kind of offer the Act contemplates. I i In rare and exceptional circumstances the Board may permit an employer to impose a condition on an em- ployee's reinstatement. Thus, in Marshall Maintenance Corp., 145 NLRB 538, the Board thought it reasonable for an employer to require employees who had gone into a competing business after their discharges to divest themselves of their interest in that enterprise. But merely because prompt, unconditional, and full reinstatement would work some hardship on an employer is not suffi- ' Poss testified in Thurston Motors, Inc , Cases 26-CA-2353 and 26-CA-2353-2 [166 NLRB 862], which involved the alleged dis- criminatory discharges of employees Jackson and Capps Section I0(c) of the Act Phelps Dod;'eCorp , 313 U S 177, 194 v Local 833, International Union, UAW [Kohler Co ] v N L R.B , 300 F 2d 699, 703 (C A D C ) Burnup andSims, Inc, 157 NLRB 336 Such is what the Board ordered in the principal case and it is in the "standard form, which has long been in use by the Board " See N L R B v Diaper Corporation, 159 F 2d 294, 297 (C A 1) "' The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N LRB 827, 829 " See White Sulphur Springs Co v N L R B , 316 F 2d 410, 414 (C A D C ), Lakeland Bus Lines, Inc v N L R B , 278 F 2d 888, 892 (C A 5), Harvey Carlton, d/bla Cello-Tak Company, 143 NLRB 295, 304 The Ready-Mix Concrete Company of Lawrence, Kansas, 142 NLRB 502, Borg-Warner Controls, 128 NLRB 1035, 1044 Employee offers to return to work after a stake must also be "unconditional" to serve as a basis for a backpay order See J A Terteling & Sons, Inc dlbla Western Equipment Company, 152 NLRB 1014, where an offer to return to work "under the terms and conditions of employment existing at the time the strike began" was considered unconditional 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cient reason for excusing the offer, and the confusion or other difficulties the employer must bear in fully comply- ing with the Board 's order have been described as merely byproducts of the unfair labor practices which he has committed. 12 Considered in the light of these well-established rules, the facts in this case compel the conclusion that Larkins and Poss did not receive full and unconditional reinstate- ment within the meaning of the cases and that, as one court succinctly stated it , the "type of ` reinstatement' [they] got was not what [they were] entitled to." 13 Respondent has not restored the status quo ante as nearly as possible because before these employees were illegally discharged Respondent made no inquiry of them about how long they intended to stay with Respondent and they had the right to quit their employment at a moment's notice. By requiring Larkins and Poss to decide im- mediately whether to discard whatever tenure or security they had at their interim employers , Respondent imposed on them a condition of employment which did not exist when they worked for Respondent before and which would never have become an issue but for Respondent's violation of law. 14 A relevant factor in judging the respective rights of the employer and employees in this case is that it was the em- ployer whose good faith was originally put in issue when he discharged these employees and, that issue having been resolved against him, upon whom reinstatement was imposed as a sanction to prevent him from benefiting from his unfair labor practices. 15 So viewed , the Com- pany's protestation that the innocent victims of its dis- crimination did not accept reinstatement in "good faith" but had engaged in some form of "misconduct " by return- ing to work while on leave of absence from their interim employers is not particularly appealing on its face. 16 The charge is particularly unpersuasive when the explanations of the parties for their respective actions are weighed. Larkins and Poss testified credibly that they had mixed feelings about returning to Respondent because they re- called the earlier discrimination against them . They both felt that they needed a 30-day period in order to test the situation and to have the "security" of ajob to go back to "if anything happened" and they were discriminated against again . Their feelings that the interim jobs they had in hand might be worth more than Respondent 's promise of an "immediate and full " restoration of them to their former states were not unreasonable or unrealistic. Respondent , on the other hand , defended its insistence on Larkins' and Poss' immediate severance of all connec- tions with their interim employers on the ground that, in order to make room for them , it must terminate another employee in whom it had a "substantial investment" and who had some "rights in the matter" himself, but, as has been held in many cases ,'7 these are not circumstances which justify Respondent reinstating Larkins and Poss conditionally , for Respondent would not have had a sub- 11 N L R B v Trinity Valley Iron and Steel Company, 290 F 2d 47,48 (C A 5) See also N L R B v Quest-Shon Mark Bras siere Co, Inc , 185 F 2d 285, 290 (C A 2), N L R B v Remington Rand, Inc 94 F 2d 862, 871 (C A 2), cert denied 304 U S 576 Lakeland Bus Lines, Inc v N L R B 278 F 2d 888, 891 (C A 3) In Marshall Maintenance Corp , supra , the Board permitted the dis- crimmatees a "reasonable time" to comply with a condition it allowed the employer to place on their reinstatement 15 Local 833,UAW, siipra,fn 7 11, And even if the employees had taken reinstatement only for the pur- pose of showing other employees that they had been reinstated and their stantial investment in replacements if it had not discharged these employees in the first place.'" I conclude that by requiring Larkins and Poss as a con- dition of continued employment to resign from and "sever all relations with" the employers who had granted them a leave of absence , Respondent failed to comply with the Decision and Order of the Board requiring full and im- mediate reinstatement to their former positions. Poss refused to resign from Ryder Truck Lines and was immediately discharged as a result . I recommend, therefore , that the Board order Respondent to make him an offer of full and immediate reinstatement to his former or substantially equivalent position as provided in the Board's original Order , including the customary backpay provisions. Larkins resigned from the employer he had been work- ing for when Respondent required him to, and he was still employed by Respondent at the time of the hearing in this case. General Counsel argues that although Larkins has already waived his right of seniority at Southern For- warding, it is impossible to know what his decision would have been if he had been permitted to decide for himself whether to return to work there and therefore there should be some remedy for him. General Counsel sug- gests that the remedy should be an order that in the event Larkins is terminated in the future by Respondent, Respondent should make him whole for whatever earnings he would have had at Southern Forwarding if he had not been required to give up his seniority there. I am not completely certain about the nature of the remedy General Counsel is requesting in Larkins' case but the core of it seems to be to treat him as he would have been treated if he had gone back to Southern Forwarding or had not given up his leave of absence there. I am not con- vinced that there is a practical remedy in Larkins' case, however, particularly since his leave of absence was only for 30 days and there is no evidence that Southern For- warding would have renewed it. It is unlikely that Larkins would have been carried in a leave status at Southern in- definitely and we would not be able to use his theoretical continued tenure at that company as any kind of a reliable indicator of his losses if he were laid off at some uncertain time in the future by Respondent . Any financial losses that Larkins may suffer by reason of Respondent's ac- tions in his case are too uncertain , speculative , and too difficult to compute to make a remedy in this area effec- tive. These factors, plus the uncertainty caused by the lack of a suggested time limit on Respondent 's potential liability, lead me to conclude that no financial remedy should be recommended in Larkins' case. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Discrimination against Poss and Larkins The complaint alleged that by requiring Larkins and statutory rights vindicated , this would not excuse Respondent ' s imposi- tion of a condition on their return See Local 833 , supra , fn 7, Burnup and Sims, Inc , supra, fn 8 11 Cases cited fn 12, supra "Respondent does not seriously rely on its rule against "moon- lighting," as suggested in Thurston 's testimony , as a reason for requiring Larkins and Poss to "elect " between employers , and, in any case , the rule is irrelevant because these employees were not actually working at two jobs (moonlighting), but reserving for a temporary period only a right to return to anotherjob THURSTON MOTOR LINES Poss to surrender their seniority rights at other employers (resign from those employers who had granted them a 30- day leave of absence) as a condition of employment, and by discharging Poss, Respondent violated Section 8(a)(1), (3), and (4) of the Act. Whether Respondent 's imposition of an improper condition on Larkins ' and Poss' reinstate- ment was a display of continuing animus, done in the hope that the employees would turn down the offers and Respondent would be rid of them ,'9 "inextricably inter- twined with and derived from [their] original filing of charges against the Respondent and . . . giving of testimony in support thereof,' '20 and additional act of dis- crimination to discourage membership in a labor or- ganization , a per se violation of employee rights guaran- teed in Section 8(a)(1) without regard to Respondent's motive,21 a violation of Section 8(a)(3) because of the "nature of the conduct"22 itself or just a continuation of the original unfair labor practices are interesting but not easy questions which I find it unnecessary to decide because it will not add anything to the remedy I have recommended to the Board in the backpay case. I have found that no workable remedy may be devised in Lar- kins' case, but that Poss should be given a new offer of reinstatement made without conditions and made whole for any losses suffered by reasons of his second discharge . Respondent has previously been found to have violated the Act in regard to these very employees and others, and has been ordered to post appropriate 23 notices Another cease-and-desist order relating to the same individuals seems redundant.24 B. The Discharge of Phillip Vaughn Phillip Vaughn was hired by Respondent as a part-time employee in February 1965. Vaughn testified in the prin- cipal case, which also involved Larkins, Poss, and others, and the Board found that he, too, had been discriminated against because ". . . Respondent failed to call him to available part -time work between March 30 and April 9 in order to discourage sympathy and support for the Team- sters." In addition , the Board found that Respondent sub- sequently elevated Vaughn to full -time status because he had expressed views against the Teamsters and in order "to interfere with the efforts of the employees to gain representation by the Teamsters ."25 It also appears from the findings in the earlier cases that Vaughn , after he acquiesced in certain antiunion conditions suggested to him by his supervisor , was ". . . almost immediately made a regular employee when openings occurred because of the discharges of Larkins , McDole and Mohon." The complaint in the instant unfair labor practice case alleges that Respondent discharged Vaughn on August 26, 1966, in violation of Section 8(a)(1), (3), and (4) of the Act. Vaughn was working regularly as a city tractor driver when he was laid off on August 26 , 1966, which was during the period when Respondent was offering reinstatement to the drivers whom the Board had found it had illegally discharged in April 1965. He testified without contradiction that Martin , the terminal manager, told him that Thomas Larkins was being reinstated, that Respondent would have to reduce the force because it '" Federal Dairy Company , inc , 142 NLRB I33• 20 Lakeland Bus Lines, incorporated , 124 NLRB 123, 124 Exchange Parts Company, 375 U S 405, The Radio Officers' Union of the Commercial Telegraphers Union [A H Bull Steamship Co ] v NLRB ,347US 17,44 21 N L R B v Erie ResistorCorp , 373 U S 221,227 433 would have too many drivers and since Vaughn "was the last man put on regular as a tractor driver" he would have to go. Vaughn inquired about "the men who had been hired" after him, and asked if "seniority " meant anything. Martin said it did , but added that he still had to get rid of a driver to make room for the discriminatees. I find, in accord with Vaughn 's uncontradicted testimony , that when he was discharged Respondent had in its employ at the Nashville terminal , six dockmen, two city pickup drivers and two tractor-trailer drivers who had less service with Respondent than he , but that, as he conceded, one of the tractor -trailer drivers, Jerry Cripps, was made a regular driver before he was. Vaughn was aware that he had been made a regular driver "immediately" after Larkins was fired and that Respondent had hired additional help to replace the other men discharged around the same time Vaughn also said that, after he was laid off, Martin telephoned him and of- fered him work as an extra driver. He turned the offer down and asked for his old job, but Martin refused it. Respondent's position , as explained by Thurston, is that when it decided to comply with the Board's Order to reinstate the drivers it had fired , it had to replace Vaughn because it would have had five more drivers than it needed. In reinstating the discriminatees it tried to return them to the jobs they had held before they were fired, "the same run even , as nearly as we could," and "the man who had taken their place was the man that would go " Since Vaughn had taken Larkins ' place, he was removed, and he was not offered another job in another classifica- tion because Respondent has no policy of "bumping ... down the line or up the line. . . Thurston made the final decision to discharge Vaughn after talking with Martin , the Nashville manager. He said he had determined that Vaughn had taken Larkins' place but he "didn 't check out his seniority." Respondent 's asserted reason for selecting Vaughn for layoff or discharge is unimpressive and I don 't think it is genuine for a number of reasons . In the first place, it looks a lot like Respondent 's treatment of Poss and Lar- kins, described above, for when they accepted Respond- ent's offers of reinstatement , Respondent gave them an opportunity to reconsider by insisting that they "im- mediately" cut their ties with other employers. One of them did . Vaughn's elimination, solely on the ground that Respondent , in effect, had no other choice in complying with the Board's Order, convinces me that Respondent was looking for a convenient excuse to get rid of Vaughn and perhaps discourage the return of other drivers. The treatment of Vaughn , taken with Respondent 's handling of Larkins and Poss, indicates that Respondent's com- pliance, if compliance it was, with the Board 's Order was so reluctantly and grudgingly done that it suggests bad faith. Not offering Vaughn another job in another classifica- tion when less senior men were employed is odd enough, but Respondent did not even check the relative seniority of others or discuss the possibility of a transfer with Vaughn , and this is additional evidence that it was not really looking for a solution to the problem. Moreover, two drivers in Vaughn's own classification were junior to 21 Based on the violations of Section 8(a)(1), (3), and (4) which I find in Phillip Vaughn's case , infra , Respondent will also be ordered to post a new notice relating to those sections of the Act 2' Lakeland Bus Lines v N L R B , supra, 891-892 2` Thurston Motor Lines, Inc , 159 NLRB 1265, section III, G, 2 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him and Thurston never adequately explained why he didn't consider replacing one of them rather than Vaughn. Finally, with respect to seniority and job availability, it should be noted that Respondent had a "substantial in- vestment" in trained employees, as it told Poss and Lar- kins in its letters of August 22, but Vaughn had been driv- ing regularly for over a year when he was fired, yet no ef- fort was made to keep him, and Respondent never ex- plained why, when discriminatees Robertson and Mc- Dole quit shortly after reinstatement, and Poss went back to Ryder, its investment in Vaughn did not suggest to it that he might replace one of them. Vaughn testified on his own behalf in the earlier proceeding in which the Board found that Respondent had violated Section 8(a)(1) and (3) of the Act and or- dered reinstatement of a number of dockmen and truckdrivers with reimbursement to them and Vaughn for losses caused by Respondent's discrimination against them all. I find and conclude, on the basis of the entire record and for the reasons set out, that Respondent's pur- ported reason for discharging Vaughn is not the real reason but that his discharge was part of Respondent's continuing unfair labor practices motivated in substantial part by Vaughn's union sympathies and his testimony in the earlier case. By such conduct, Respondent violated Section 8(a)(1), (3), and (4) of the Act. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirm- ative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged Phillip Vaughn. Accordingly, it will be recom- mended that the Respondent offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay suf- fered by reason of the discrimination by payment to him a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement, less his net earnings during such period in accordance with the formula prescribed in F. W. Wool- worth Company, 90 N LRB 289, together with interest on such sum, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumb- ing & Heating Co., 138 N LRB 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 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respond- ent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. 1. The Respondent is engaged in commerce within the meaning of Section 2(6) of the Act. 2. By discharging Phillip Vaughn, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]