Transway, Inc.

50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Transway, Inc. and General Truck Drivers, Chauf- feurs, Warehousemen and Helpers Local 270, a/w/ International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Ind. Case 15-CA-3615 June 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On April 3, 1970, Trial Examiner Robert E. Mul- lin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, Respondent filed ex- ceptions to the Trial Examiner's Decision and a supporting brief.' The General Counsel filed excep- tions limited to the Trial Examiner's failure to par- ticularize each of his separate 8(a)(1) findings in his recommended Order and recommended notice.2 Pursuant to the provisions of Section 3(b) of the Act, 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recom- mended Order of the Trial Examiner and hereby orders that Respondent, Transway, Inc., New Orle- ans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Renumber existing paragraph 1(c) in the recommended Order to read 1(d). 2. Add the following new paragraph 1(c) to the recommended Order: "Creating the impression of surveillance or im- pliedly threatening employees with a loss of benefits in an attempt to discourage membership in, or activity on behalf of, General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization." 3. Add the following paragraph to the notice at- tached to the Trial Examiner's Decision, marked "Appendix." WE WILL NOT create the impression of sur- veillance or impliedly threaten employees with a loss of benefits in an attempt to discourage membership in, or activity on behalf of, the above-named Union or any other labor or- ganization. ' The Respondent's exceptions are directed to the Trial Examiner's 8(a)(3) finding 2 We find ment in the General Counsel's exceptions and modify the Trial Examiner's recommended Order and recommended notice accordingly TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: The hearing in this case was held on December 15, 1969, in New Orleans, Louisiana, pursuant to a charge duly filed and served,' and a complaint issued on Oc- tober 30, 1969. The complaint presents questions as to whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. At the hearing the General Counsel and the Respondent were represented by counsel. All parties were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, and to file briefs. A brief was submitted by the Respondent on January 20, 1970, and by the General Counsel on January 21, 1970. On February 3, 1970, a reply brief was received from the Respondent. Thereafter, the General Counsel moved that the Respondent's reply brief be stricken, or, in the alternative, that the General Counsel be permitted to file a memorandum in answer thereto. On February 6, 1970, the Trial Ex- aminer issued an order wherein he denied the aforesaid motion to strike, but granted the General Counsel permission to file an answering memoran- dum. Leatherwood Drilling Company, 180 NLRB 893. On February 20, 1970, the General Counsel submitted a reply brief.2 Upon the entire record in the case, including the briefs of counsel, and from my observation of the witnesses, I make the following: The charge was filed on August 4, 1969 - P The General Counsel's motion to strike and the Trial Examiner's ruling thereon have been marked as TX Exhs I and 2, respectively, and are hereby made a part of the pleading file in this case 184 NLRB No. 7 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT TRANSWAY, INC. 51 The Respondent, a Louisiana corporation with its principal office and place of business located in Metairie , on the outskirts of New Orleans, Loui- siana, is engaged as a motor carrier transporting specialized freight over interstate routes . During the 12 months prior to issuance of the complaint, a representative period, the Respondent, in the course and conduct of its business operations, received in excess of $50,000 for services per- formed in States other than Louisiana. On the foregoing facts, the Respondent concedes , and the Trial Examiner finds, that Transway, Inc., is en- gaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED General Truck Drivers , Chauffeurs, Ware- housemen and Helpers Local 270, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, Ind., herein called Teamsters or Union , is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events At the hearing, the parties stipulated to an ex- tended series of cases which constitute part of the Respondent 's labor-management background. The Trial Examiner takes official notice of these cases. They are as follows: Case 15-RC-1598: Union filed petition on June 3, 1957, and withdrew it on June 17, 1957. Case 15-RC-3024: In a representation election held on August 23, 1965, the Union lost by a vote of 13 to 23. Case 15-CA-2675: Here the Board found that the Respondent had violated Section 8 (a)(1) and (3) of the Act during the organizational campaign that preceded the election in Case 15-RC-3024. Transway, Inc., and General Truckdrivers, etc., Local 270, 160 NLRB 838, enfd . 410 F.2d 368 (C.A. 5). Case 15-RC-3506: In an election held on October 24, 1966, the Union lost by a vote of 19 to 25. Case 15-RC-3870: In an election held on May 16, 1968 , the Union lost by a vote of 16 to 20.3 In June 1969 , the Union began what appears, from the above catalogue of representation cases, as the fifth attempt to organize the Respondent's drivers . In July, John H . Jones, one of the drivers ' In the stipulation referred to above the parties also listed another case, Film Inspection Service, Inc, 144 NLRB 1040 Daniel M Brandon, pre- sident of the Respondent Transway , was likewise president of Film Inspec- tion Service In the complaint case involving the latter employer , the Board found that Film Inspection Service had violated Sec 8 (a)(I) and ( 3) of the involved in the solicitation of authorization cards for the Union, was discharged . The General Coun- sel contends that this discharge was discriminatory and in violation of Section 8(a)(3). This is denied by the Respondent, according to whom Jones was discharged for cause. On September 15, 1969 , in a Board-conducted election held at the Respondent 's terminal, out of 43 ballots cast, there were 19 for the Union, 19 against the Union, and 5 challenged ballots. On September 19, the Respondent filed objections to the election . On November 10, the Board overruled the Respondent's objections and directed that the challenged ballots be opened and counted. Thereafter, a count of these ballots showed that the Union had failed to attain a majority . On November 21, the Board certified these results. B Alleged Interference, Restraint, and Coercion, Findings of Fact and Conclusions of Law With Respect Thereto After the Union began its organizational cam- paign, the Respondent sent out several letters to the employees on its view of the issues in the contest. The language in some of these bulletins is alleged by the General Counsel to have constituted unlaw- ful interference, restraint, and coercion The rele- vant portions of these communications are set out and discussed below In a bulletin dated July 16, 1969,' and addressed to all drivers and loaders, President Brandon urged the employees not to sign cards in the current Teamsters campaign In reviewing the fact that there had been four earlier campaigns at the ter- minal, Brandon stated: Four times we have had a Union vote and four times we have lost untold amounts of money because of these promotions. Four times the employees turned down the Union If you do not want to see the same thing re- peated, it is absolutely essential that you do not bother to sign a card For the newer men with the company, we sin- cerely hope they will talk to some of the older hands who can tell them all the aggravation and loss of monies occurring Legal fees in time have probably amounted to $80,000 00, in the past four cases most of which money would have ended up in pension or profit shar- ing.... We cannot overemphasize too strongly that Act The case was settled after the Board issued its decision There were no subsequent enforcement proceedings in the court of appeals ' All dates mentioned hereinafter in this decision are for the year 1969, unless otherwise specifically noted 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you should carefully consider your actions, do not waste the money of your fellow employees, yourself or your company by being mislead by "promises" or by people who may "profess to know more than you do but might be acting only in their own self-interest or out of jealousy." . . Signing a card cannot save you any dues or anything else. All it can do is bring you the Teamsters whose main interest is getting their hands in your pocketbook. In a letter dated August 29, captioned "Election Bulletin #4," and distributed to all the drivers, Pre- sident Brandon urged that the employees not let the Union "Trick you out of your vote and out of your dough" and concluded with the suggestion that in the forthcoming election they should "Kick the Teamsters out once and for all." All of the em- ployees to whom this letter was addressed were known as "driver contractors" and each worked pursuant to an employment and lease agreement which set out detailed provisions as to leasing ar- rangements for their trucks and the reimbursement terms pursuant to which the "driver contractors" were compensated.5 Brandon included within this bulletin a paragraph on the prospects of an increase in compensation. In keeping with the contractual arrangements with the drivers, these were known as contract changes or adjustments. In this paragraph Brandon wrote: .. Perhaps the story is out that we are not keeping our promises and especially by not having handled promised contract changes but I can assure you these were just about ready and would have already been out except that I have been scared to do this after being notified as to an election as there may be some in- terpretation that my handling these after receiving notice of a forthcoming election would be illegal. I simply believe that it is more prudent to wait a few more weeks than to cost everyone loss of monies in additional law suits [Emphasis supplied I In another letter to the drivers which was dated September 8, Brandon again referred to the con- tract "adjustments." In so doing he wrote, in rele- vant part There has been discussion regarding why con- tract adjustments have not gone out Some agitators are trying to use this improperly To best indicate some of the work we have done and IN ORDER TO PROVE apprehen- sions, I am attaching hereto papers which should be self-explanatory.'' Brandon concluded the letter with the statement. The matter of adjustment is one where I be- lieve it best for you and everyone to delay a few weeks rather than to expose everyone ... to additional costs and loss of monies by mov- ing too fast. In what was captioned " Election Bulletin #7," and dated September 8, as was the letter referred to above, President Brandon reviewed the Company's financial record for prior years and discussed the Respondent 's prospects in the future . In so doing, Brandon made the following statements with reference to the Union 's organizational campaign then in progress- If any monies are taken out of company in- come ] for keeping track of union activity, or ad- ditional lawyer bills, that money can only come out of the employees ' pockets. . . As it is, if we do get more revenue, the em- ployees still get both their base wages and also ... most of the extra profits from such revenue To add more people and to incur more expense that might be occasioned by legal costs or loafers or parasites, would simply reduce the profits and the amount of monies in the profit sharing funds and everyone would get less. The Teamsters can bring about extra expenses which would cost you monies from the profits and also cost you through required Union dues. You can lose both ways. [Emphasis supplied. ] Several months earlier , in a letter dated April 4 and addressed to all driver -contractors , Brandon announced that he planned a revision of their con- tracts. He asked that in the meantime they assist him in this matter by supplying him with the details as to major increases and decreases in their costs of operation so that these items could be considered with respect to adjustments in the terms of the revised contracts. In this letter, Brandon promised that although he did not know how soon the con- tractual revisions could be determined , the work would be finalized "as quickly as possible." Ac- cording to Vernal Lemoine , one of the drivers who testified at the hearing , President Brandon told the employees in February that the raise would not be effected until the Respondent 's operations were moved into a new terminal that was then planned and that when made effective the contract adjust- ments would be retroactive to February . It was un- disputed that about July 1 the Respondent moved from its old terminal on Edenborn Street in New Orleans to a new terminal located in Metairie. The promised adjustments were actually effectu- There is no issue in this case, however, as to whether the aforesaid "driver-contractors" were employees of the Respondent In the contracts, the drivers are referred to as employees and, insofar as the present record is concerned , all parties appeared to assume the existence of an employer- employee relationship These attachments consisted, inter alta, of several pages of excerpts from the decision in Castle Hotel, Ltd, 129 NLRB 1122, wherein the Board held that under the circumstances present in that case the employer vio- lated the Act by the grant of wage increases pending a representation elec- tion TRANSWAY, INC 53 ated in September, shortly after the election. In a letter dated September 22 to all the drivers, Bran- don announced that he was releasing immediately an attached bulletin which set forth new provisions on credits, rentals, and related matters. He pointed out in the lengthy attachment accompanying his letter that the only changes were increases in credits for which the drivers would be paid Brandon further stated that whereas he had hoped to have a meeting with all the drivers before revising the old schedule, "Due to pressure of time, I am putting this new listing out without waiting for a meeting " At the hearing the General Counsel offered in evidence payroll data which reflected the raises which were made effective then. These statistics disclose that of approximately 24 drivers who were working full time during the period from April through November, all except one (Luther Lloyd) received a substantial increase in salary base pay immediately after the election, and all 24 (includ- ing Lloyd) received an increase in their base al- lowance for expenses at that time Concluding findings as to the alleged interference, restraint, and coercion The Respondent's election bulletin dated July 16 urged the employees not to sign a union card on the ground that to do so would incur a loss of money Further, it specifically noted that approximately $80,000 had been spent on legal fees and time in the last four election cases and that had it not been for the representation problems brought on by the Union, most of that amount would have gone to the employees in pension or profit sharing benefits In the bulletin dated September 8 the Respondent went further and told the empoyees that "If any monies are [spent] for keeping track of union ac- tivity, or additional lawayer bills, that money can only come out of the employees' pockets " The General Counsel contends that the phrase last quoted created an unlawful impression of sur- veillance and that the purport of both bulletins con- stituted unlawful restraint and coercion of the em- ployees' union activities The courts have held that 'an employer's `prediction' of untoward economic events may constitute an illegal threat if he has it within his power to make the prediction come true." International Union of Electrical, Radio and Machine Workers, AFL-CIO v. N.L R.B., 289 F.2d 757, 763 (C.A.D.C.). Here, the Respondent clearly had the power and the means to spend substantial amounts on a campaign against the Union, as its reference to the $80,000 emphasized. In announc- ing to the employees that, in effect, the costs of any such struggle in the future would be assessed against their pension and profit sharing benefits, the Respondent went beyond the permissible limits of Section 8(c) The Trial Examiner concludes that such language by the Respondent constituted un- lawful interference with the employees' rights within the meaning of Section 8(a)(1) N.L R B. v Dowell Division of the Dow Chemical Company, 420 F.2d 480 (C A. 5) Similarly, the Trial Examiner finds that in the bulletin of September 8, the Respondent further violated that same section of the Act by creating an impression of surveillance in telling the employees that funds spent "for keeping track of union activity" would come out of their pockets. It is, of course, well established that a wage in- crease or plan conceived, or accelerated, to thwart an organizing campaign, violates Section 8(a)(I). N.L.R B. v Exchange Parts Company, 375 U.S 405, 409, N.L.R.B. v Rexall Chemical Company, 418 F 2d 603, 605 (C.A 5). Here, on the findings set forth above, it is apparent that the prospect of contract adjustments upward which, to the drivers concerned, were the equivalent of wage increases, were promised in the early part of 1969 with a commitment by President Brandon that they would be effectuated after the Company's operations were moved to a new terminal. By early July however, when this move was completed, the Union had begun another organizational campaign. Thereafter, in the bulletin of August 29, the Respondent told the drivers that the adjustments were ready, but that they were being withheld dur- ing the pendency of the election The election of September 15 was not immediately diapositive of the representation question, for the eventual out- come turned on four challenged ballots which were not opened and counted until November 21. In the meantime, on September 19, the Respondent filed objections to the conduct of the election. Neverthe- less, in his bulletin to the drivers on September 22, President Brandon announced a schedule of in- creased benefits and explained that he was doing without waiting to meet them "due to the pressure of time." From the foregoing, it is evident that the in- creased wages and allowances, originally scheduled for announcement after completion of the move to a new terminal, were thereafter delayed pending the election Then, after the election, but before the challenged ballots were counted, and before a decision on the objections filed to the conduct of that election, the Respondent hastily released the upward adjustment of the contract provisions on wages and expenses. In McCormick Longmeadow Stone Co., Inc., 158 NLRB 1237, the Board set forth the following ex- position of its views on the Act's requirments as to an employer's obligation during the pendency of a question concerning representation (158 NLRB at 1242) An employer's legal duty in deciding whether to grant benefits while a representa- tion case is pending is to determine that question precisely as he would if a union were not in the picture. If the employer would have granted the benefits because of economic cir- cumstances unrelated to union organization, the grant of those benefits will not violate the 427-835 0 - 74 - 5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. On the other hand , if the employer's course is altered by virtue of the union's presence, then the employer has violated the Act, and this is true whether he confers benefits because of the union or withholds them because of the union. Here, the Respondent's course of conduct with reference to the wage adjustments violated the principles set forth in the above-cited cases on several grounds. By the bulletin of August 29, the Respondent notified the drivers that adjustments which had been announced months before were then ready, but that they would be withheld for the time being because of the election The Board has held such action by an employer under similar cir- cumstances to be a violation of Section 8(a)(1). In- ternational Ladies Garment Workers' Union, AFL-CIO, 142 NLRB 82, 105, 113; Deutsch Com- pany, Metal Components Division, 178 NLRB 616. Thereafter, and immediately following the election, President Brandon announced that the promised adjustments were being granted then, notwithstand- ing the fact that he had not had a meeting with the drivers to discuss the matter "due to the pressure of time " At this point, and for almost 2 months sub- sequent thereto, the results of the election were in doubt because of the issues raised by challenges to four ballots and by the objections which the Respondent had raised to conduct affecting the election. Since the Respondent's announcement of the contract adjustments was made at a time when the election was subject to invalidation and there existed the likelihood that another election might be directed, the Trial Examiner concludes and finds that the dispatch with which the Respondent took this action likewise violated the Act Prior to the election it had withheld an announcement of the in- creases, and then, almst immediately after filing ob- jections to the conduct of the election, the Respon- dent publicized the increases which it thereupon put into effect Applicable to the situation here is the language in NLRB. v. Exchange Parts Co., where the Supreme Court said (375 U.S at 409). The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. In the light of the foregoing opinion and the cir- cumstances presented by the facts in this case, the Trial Examiner concludes and finds that Respon- dent , having earlier violated the Act in withholding benefits on the eve of the election , similarly vio- lated Section 8(a)(1) by the manner in which these benefits were granted after the election and while the representation question there involved was still unresolved . McCormick Longmeadow Stone Co, supra; Ralph Printing & Lithographing Co., 158 NLRB 1353, 1354, fn. 3. C. The Discharge of John H. Jones; Contentions of the Parties; and Findings of Fact and Conclusions of Law With Respect Thereto John H. Jones was a driver-contractor who was first hired by the Respondent in June 1968. Ini- tially, he had a truck route from New Orleans to Baton Rouge. During the summer of 1968 an op- portunity arose for him take over a route from New Orleans to Hattiesburg, Mississippi The change in routes was voluntary on Jones' part and made, as he testified, because the latter route involved mostly daywork and more pay. The only testimony in the record on his employ- ment history is that of Jones himself The latter credibly testified that throughout the course of his tenure with the Respondent he had no problems in fulfilling his duties as a transport driver There was no evidence that he was ever critized or disciplined prior to his termination. It was undisputed that in June 1969, and after a discussion among the day route drivers, Jones was designated to contact the Union On or about June 19, Jones and Lavell Brown, a coworker, went to the Teamsters headquarters and obtained a supply of authorization cards. Jones testified, credibly, that during the next 2 days he secured signed authoriza- tions from 18 or 19 of his fellow employees. Other employees such as Brown and Vernal Lemoine likewise engaged in the solicitation of the work force during this period Lemoine, however, testified that Jones was the most active in the or- ganizational campaign and secured the most signa- tures. This testimony as to Jones having been the most active of the prounion solicitors was likewise corroborated by Wilton Harvey, another driver, who testified that it was common knowledge among the employees in the shop that Jones was trying to secure signatures on the union cards. Jones testified that during the 2-day period when most of the signed cards were secured from the em- ployees, he endeavored to conduct his solicitations clandestinely and that he kept the cards concealed as much as he could. Jones also testified, however, that when the solicitations were in progress he sometimes had authorization cards, all of which were about postcard size, in his shirt pocket where they could have been seen by other people. Thus, he testified that about June 20 he went to the traffic office and, while in the process of removing some traffic tickets from this same pocket in order to turn them in at the counter, he inadvertently left the union cards protruding slightly from the shirt front pocket According to Jones, at that moment he was in the presence of President Brandon, Traf- fic Manager Lotz, and two other individuals. Jones further testified that the next day when he visited the terminal shop to pick up some cards from the mechanics there, he again encountered Mr. Bran- don Jones testified that just as he was in the act of putting some cards in his pocket Brandon looked at him According to Jones, he was "pretty sure he TRANSWAY, INC. 55 [Brandon] saw them [the cards]." At the same time, Jones conceded that he could not be certain that Brandon realized what he (Jones) was doing at the moment. President Brandon was never called to the stand and Jones' testimony as to these incidents was never denied or contradicted by any other witness. Moreover, it was, in part, corroborated by Cecil Bounds, a driver who was called as the one and only witness produced by the Respondent. Thus, Bounds credibly testified that during this period he himself had seen Jones with authorization cards in his pocket. Other witnesses testified as to the number of employees in the terminal who had ob- served or knew about Jones' activity as the chief protagonist for the Union. Employee Harvey, men- tioned earlier, testified that at least three-quarters of the personnel at the terminal had been contacted by Jones in his efforts to organize a union and Ver- nal Lemoine listed 12 different employees there who were acquainted with Jones' attempt to get union cards signed Jones was credible in his testimony as to the two occasions when, in the presence of President Brandon, he had inadver- tently displayed the authorization cards. Further, since this testimony was corroborated by Bounds, a witness for the Respondent, the Trial Examiner concludes and finds that Jones' testimony in this connection is worthy of belief. The terminal where most of these solicitations occurred had a compara- tively small work force and it was apparent that President Brandon was frequently in and about the premises Consequently, in view of Jones' credible and uncontradicted testimony that on two occa- sions he had cards on his person where they could have been observed by President Brandon and other supervisors and, in fact during this period, were observed by Respondent's witness Bounds, as the latter testified, it is reasonable to infer, as the Trial Examiner does, that, shortly after Jones began his solicitations on behalf of the Union, his or- ganizational activities came to the attention of the management.7 About July 2, Brandon told Jones that he was being discharged. About 2 weeks later Jones received a letter pursuant to which his termination was effected on July 29, 1969 The General Coun- sel contends that Jones was discriminatorily dismissed because of his union activity. This is de- nied by the Respondent The incident out of which Jones' termination al- legedly arose was an exchange between the em- ployee and President Brandon that occurred early in July and shortly after the Respondent had moved to its new terminal. The employee and the company president were the sole parties to the conversation and no others, apparently, were in the immediate vicinity. Only Jones, who appeared as a witness for the General Counsel, testified as to what occurred. The Respondent never called Brandon to the stand. Jones testified that before moving to the new ter- minal, President Brandon told him that after the move the drivers would be departing on their routes an hour earlier than usual. According to Jones, not- withstanding this promise, after the move there was no substantial change in the hour that his truck was loaded and when he was able to leave on his route. He testified that on the evening of July 2, as he was about to commence his run, he complained about this matter to President Brandon who was in the area. According to Jones, it was then about 6 p.m. and he told Brandon that if he would not be leaving until that hour every morning, he would like to get a part-time job somewhere else, so that he could work elsewhere from noon until 6 p.m. Jones testified that Brandon's immediate answer was that if Jones was dissatisfied with his hours "we will just give you your notice of termination. You can work all night as far as I care." According to Jones, he protested to Brandon that he had always done his job and never been criticized, but the company pre- sident abruptly turned away and left. Thereafter Jones finished loading his truck and left on his regularly scheduled run to Hattiesburg. When he returned to Metairie the next morning and made his customary stop at the terminal office, Brandon was there. According to Jones, the pre- sident opened a conversation with the statement "whenever you resign we will talk about buying your truck."8 Jones testified that he declared im- mediately that he had not resigned and had no in- tention of doing so, that he understood the Com- pany was terminating him and that if that was the case he wanted a statement to that effect which set out the reason for such discharge According to Jones, Brandon made no response and walked away. Jones testified that he continued to work for several days thereafter, when, on another occasion that he was in the office, Brandon asked him "what was this letter deal you wanted?" According to Jones, he again told the president that if he was being discharged he would insist on getting the 15- day notice provided in the terms of his employment agreement' and that he wanted a statement in writ- ing as to the reason for the termination. Jones testified that Brandon concluded the conversation by assuring him that the letter would be forthcom- r Angwel! Curtain Company, Inc v N L R B, 192 F 2d 899 (C A 7), Hesmer Foods, Inc, 161 NLRB 485 , 490, Dubin-Haskell Lining Corp, 154 NLRB 641, 642, 650, Shamrock Foods, Inc, 127 NLRB 522,531 e Jones, like many of the driver -contractors , had his own truck , for the use of which in the Company's operations he was compensated pursuant to the terms of a lease agreement which each of the drivers signed In addition to a lease arrangement, the Respondent had each of its con- tract drivers execute an agreement covering the terms and conditions of employment on the particular route assigned to the individual The agree- ment which Jones signed was for a period of l year from the date of execu- tion, renewable from year to year unless terminated by either party on 15 days' notice This agreement also provided , however, that the Employer could terminate the agreement without notice upon the default, failure, or disobedience of the employee, or for "any misbehavior of employee, in- compatible with the service for which employee is hereby employed " 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing and then added "the reason we are relieving you is because you are not happy. ..." Shortly thereafter Jones received from Brandon a letter dated July 14 and signed by the company president. The letter set the date for Jones' termination as July 29, exactly 15 days later, and referred in some detail to the arrangements which could be made with respect to the sale of his truck and other equipment, but gave no reason whatsoever for Jones' termination. In its answer and at the hearing the Respondent offered no reason for its termination of Jones. In its briefs, the Respondent asserts that Jones was discharged because he was insubordinate and threatened to strike President Brandon, and that the 15-day notice he was given was required by the terms of Jones' employment agreement. At the hearing the Respondent put on only one witness, Cecil L. Bounds, a driver-contractor, who testified about various matters, but gave no testimony with reference to Jones' termination. The Respondent offered no direct testimony on the cause for Jones' discharge and relied solely on an extended cross-ex- amination of Jones and Vernal Lemoine, a driver whom the General Counsel had called as a witness. In the cross-examination of Jones, counsel for the Respondent sought to develop the thesis that when Brandon approached Jones' truck on the evening in question the complainant threatened the company president with assault and battery. To that end, counsel engaged in a prolonged cross-examination of Jones The latter, however, denied having ut- tered any threats during the course of his conversa- tion or having engaged in any violence with Bran- don. In a further effort to establish that Jones had a propensity for violence, counsel for the Respondent cross-examined him at some length about his domestic affairs, including a matter which occurred five months after his departure from the Respon- dent's employ 10 Later, during the Respondent's cross-examination of Lemoine, that witness testified that on the morning after Jones' exchange with Brandon, the employee told him that the company president fired him the night before when Jones sought permission to get a part-time job in the af- ternoons Lemoine testified that Jones told him that after Brandon made this statement to him, he told the president to get out of the way or he would knock him down. In its brief, the Respondent stresses that the General Counsel has the burden of proving dis- crimination and that the Respondent does not have the burden of establishing the contrary. N.L.R.B. v. 10 This was an incident that occurred in November 1969 when , according to an affidavit which Jones' wife swore out, in support of a petition for a peace bond , his spouse averred that during a marital altercation he had struck her and threatened her with a shotgun. "Budd Mfg Co v NLRB, 138F2d86,90(CA 3 ),cert denied 321 U S 773 i= At the outset of the hearing the Trial Examiner granted a motion by the Respondent to exclude the witnesses from the hearing room until called to testify Thereafter , when the Trial Examiner allowed each party one ex- ception tho the rule , the Respondent named D M Brandon, and the Soft Water Laundry, Inc., 346 F 2d 930 (C.A. 5). It is, indeed, well established that the burden of proof never shifts from the General Counsel and that the Respondent does not have the burden of proving that it discharged an employee for the reason which it asserts. Moreover, as was stated many years ago, and often repeated since, so long as the provisions of the Act are not violated, an employer may discharge an employee for "a good reason, a poor reason or no reason at all."" At the same time, it is also true, that employers do not ordinarily discharge an employee for "no reason at all," and that support for a finding of unlawful motivation "is augmented [when] the explanation of the discharge offered by the respondent [does] not stand up under scrutiny." N.L.R.B. v. Bird Machine Com- pany, 161 F.2d 589, 592 (C.A. 1). The explanation which the Respondent offered in its briefs for Jones' dismissal is not supported by the evidence in the record and does not "stand up under scrutiny." Jones denied having been insubor- dinate or having threatened to assault President Brandon. Even the testimony of Lemoine affords no support for Respondent's contention that Jones was discharged for threatening Brandon. As noted above, Lemoine testified that subsequent to the in- cident in question Jones told him that when he asked Brandon for permission to work at a second job, the company president fired him on the spot and that thereafter he told Brandon to get out of his way or he would knock him down Even if Lemoine's testimony accurately reflects his conver- sation with Jones, and even if Jones did what Lemoine testified Jones said that he did, it is clear from Lemoine's account that whatever threats Jones made were uttered after Brandon fired him. Under these circumstances, the Respondent cannot now be heard to claim that what Jones said to Bran- don after the discharge constituted the reason for the discharge. It is significant that the Respondent did not call Brandon as a witness, although he was present at the hearing. 12 The Respondent's president, as the only other party to the various conversational exchanges with Jones, was the preeminent witness to establish the Respondent's case. The failure of Brandon to take the stand may be construed to mean that, had he done so, his testimony would have been damaging to the Respondent's position. 13 Finally, there is no support in the record for the Respondent's contention, set forth in its brief, that after allegedly firing Jones for cause, it was required by his employment agreement to give him aforesaid officer was allowed to remain in the hearing room throughout the course of the trial " See Interstate Circuit, Inc v United States, 306 U.S. 208 , 226, where the Supreme Court said "The failure . . to call as witnesses those officers who did have authority to act is itself persuasive that their testimony, if given, would have been unfavorable The production of weak evidence when strong is available can lead only to the conclusion that the strong would have been adverse .. Silence then becomes evidence of the most convincing character " TRANSWAY, INC. 57 a 15-day notice, in writing, of the decision to ter- minate him. A copy of this agreement appears in the record. Paragraph 8 of this exhibit accords the Employer the unqualified right to terminate an em- ployee without notice in the event of disobedience or misbehavior on the part of the employee." The incident in question occurred early in July." If the Respondent had evidence that Jones had been insubordinate and had threatened to assault the company president, it is reasonable to assume that he would have been discharged on the spot and the provisions of the driver-contractor agreement would have been no bar to such an immediate disposition of the matter Instead, the Respondent did nothing until Jones himself insisted on a written explanation for his discharge. After Brandon told Jones that the real reason for letting him go was that Jones was not "happy," Jones received a letter which gave him 15 days' notice of his termination, but contained no explanation for his dismissal. On the basis of the testimony adduced at the hearing and the entire record herein, the Trial Ex- aminer concludes and finds that prior to the time that Brandon told Jones that he was being ter- minated and that he could look for another job, the employee had made no threats to the company pre- sident.16 The evidence adduced by the General Counsel established- that Jones was a driver of considerable experience with a good work record, that he became interested in organizing the Union in June, that he actively solicited his fellow employees to sign authorization cards, that while doing so the Respondent learned of his activities, and that early in July when Jones complained about having to wait for his truck to be loaded and inquired of Pre- sident Brandon as to whether he could get a part- time job in the afternoons Brandon abruptly told him that "we will dust give you your notice of termina- tion." The record further establishes that thereafter Brandon told Jones that he was being terminated because Jones was not "happy" working for the Company, but that when Jones insisted that he have a letter from Brandon which set forth in writing the reason for his discharge, Brandon at first promised but thereafter never gave him a written explana- tion. On the foregoing findings and those set forth earlier herein, most particularly, Jones' satisfactory "See in 9, supra 16 Jones credibly testified that the incident in question occurred on about July 2 Counsel for the Respondent, in his cross-examination of one wit- ness, seemed to assume that this incident occurred on July 8 However, the Respondent presented no testimony to that effect Consequently, on the present record the Trail Examiner finds that the first exchange between Brandon and Jones as to the termination of the latter occurred on July 2 16 It is the conclusion of the Trial Examiner that Jones was a credible wit- ness on direct examination and throughout an extended cross-examination that was skillfully conducted by counsel for the Respondent In arriving at this finding, based on Jones' testimony and his demeanor on the stand, the Trial Examiner has considered the Respondent's allegations as to the em- ployee's temperament , but has concluded that evidence as to Jones' ill temper in his domestic relations and as to his problems with his wife 5 months after he left the Respondent's employ related to matters that are work record, his prominence in the Union's initial attempt to organize in June, the Respondent's knowledge of that activity, the abruptness of Bran- don's declaration to Jones that he was being ter- minated," Brandon's subsequent explanation to Jones that he was being terminated because the em- ployee was not "happy," the Respondent's failure thereafter to give any reason in writing for the discharge," and the Respondent's longstanding an- tipathy to union activity among its employees, the Trial Examiner concludes and finds that Jones was terminated for his activities on behalf of the Team- sters. In so doing, the Respondent violated Section 8(a)(3) and (1). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of John H. Jones, thereby discouraging membership in the Union, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that the Respondent be ordered to cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Having found that the Respondent discrimina- torily terminated John H. Jones on July 29, 1969, the Trial Examiner will recommend that the Respondent be ordered to offer Jones immediate and full reinstatement without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suf- largely irrelevant to the issue as to Respondent 's motive for discharging Jones IS "The abruptness of a discharge and its timing are persuasive evidence as to motivation " N L R B v Montgomery Ward & Co , 242 F 2d 497, 502 (C A 2), cert denied 355 U S 829 See also N L R B v Dorn 's Transpor- tation Company, Inc, 405 F 2d 706, 713 (C A 2), N L R B v Symons Manufacturing Co, 328 F 2d 835 ,837 (C A 7) ""At first, his foreman did not tell [the employee ] the reason for his layoff, which alone would be enough to support an inference that the layoff was discriminatory " N L R B v Griggs Equipment , Inc, 307 F 2d 275, 278 (C A 5), N L R B v Plant City Steel Corp, 331 F 2d 511, 515 (C A 5), N L R B v Waycross Machine Shop , 283 F 2d 733, 736, in 6 (C A 5) (Leon Smith ), Peoples Motor Express , Inc v N L R B , 165 F 2d 903, 905 (C A 4) (Humpries). 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fered from the time of his discharge to the date of the Respondent's offer of reinstatement. The backpay for the foregoing employee shall be com- puted in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with in- terest computed in the manner and amount prescribed in Isis Plumbing & Heating Co, 138 NLRB 716, 717-721. It will also be recommended that the said Respondent be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be or- dered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R B v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A 4). Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Trial Ex- aminer hereby issues the following: ORDER 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 terms of this recom- mended Order. (c) Notify John H. Jones, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its place of business in Metairie, Louisiana, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms pro- vided by the Regional Director for Region 15, after being duly signed by Respondent's representative, 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 employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the date of the receipt of this Decision, what steps have been taken to comply herewith.'" Transway, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because of membership in, or activity on behalf of, General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind. (b) Announcing the granting or the withholding of wage increases to employees during the pen- dency of a representation election, should such an- nouncement interfere with the rights of employees as set forth in Section 7 of the National Labor Rela- tions Act, as amended. (c) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their right to self-organization, to form, join, or assist any labor organization, to bargain collec- tively through representatives of their own choos- ing, or engage in concerted activities for the pur- pose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Offer to John H. Jones 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 in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and 19 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in General Truck Drivers, Chauffeurs, Warehousemen, and Helpers Local 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other union, by discharg- ing, or otherwise discriminating against our employees because of their union or concerted activities. TRANSWAY, INC. 59 WE WILL NOT announce the granting or mutual aid or protection, or to refrain from withholding of wage increases to our em- ployees during the pendency of a representa- tion election, should such announcement inter- fere with the rights of employees as set forth in Section 7 of the National Labor Relations Act, as amended. WE WILL offer John H. Jones 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 pay suffered as a result of discrimination against him. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collective- ly through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other any or all such activities. TRANSWAY, INC. (Employer) Dated By ( Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6361.