Terminal Transport Co., Inc.

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Terminal Transport Company, Inc. and Walter Pfaff. Case 12-CA-4680 September 21, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On April 30, 1970, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting-brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case and finds merit in the Respondent's exceptions. The Trial Examiner found that Respondent violated Section 8(a)(1) of the Act by discharging Walter Pfaff in reprisal for engaging in the protected activity of filing, and then refusing to withdraw, a grievance. In so finding, the Trial Examiner rejected a decision by an arbitration panel, which, under the applicable collective-bargaining agreement, was empowered to render final and binding grievance determinations. Without passing on the merits of the alleged unfair labor practice, we find that the Trial Examiner erred in not honoring the arbitration award, and on that basis, we shall dismiss the complaint in its entirety. The facts show that on April 28, 1969, the Union, on behalf of Pfaff, filed a grievance contending that a supervisor performed unit work in violation of the contract. The grievance was settled. Pfaff was to be paid for the work done if he had been available to perform it. No final action or compliance with that determination was taken by Respondent in July or August even though Pfaff requested that he be paid the amount of the settlement. Respondent's regional supervisor of maintenance, on September 2, requested Pfaff, through the acting superintendent, to withdraw the grievance. Pfaff refused to do so. On September 12 and 15 Pfaff received warning letters and on September 16, a letter of discharge, for failure to perform his duties as a class A mechanic on three specific jobs. On September 21 Respondent paid Pfaff in settlement of his grievance. Shortly after his discharge, Pfaff, through the Union, filed a grievance against the Respondent, claiming he had been improperly discharged. As the Respondent and the Union could not settle the griev- ance, it went to the multistate grievance committee.' The committee met and considered this grievance on November 4, 1969. Although Pfaff did not appear, representatives of both the Respondent and the Union were present. The Union read into the record Pfaff 's warning letters and a letter from Pfaff to the Union about the grievance, claiming he was discharged because of his activity in connection with the original grievance. The letter set out evidence in support of the Union's claim that Pfaff was discharged in reprisal for his grievance activity. The Union argued that Pfaff had a good work record, but that he had a problem getting a grievance paid. Respondent claimed that Pfaff was unable to perform the duties of class A mechanic and was discharged for cause. In essence, the information before the grievance committee was, in all material respects, the same as the evidence brought out at the unfair labor practice hearing in this case. The arbitration panel, as its final and binding award, issued the following: DECISION: The man to be given the job of tearing down and rebuilding a 10-speed Road Ranger transmission in the presence of the Union and Company representative. Job to be completed in the time prescribed in the flat rate manual. If the employee properly completes the job and the transmission is operable, the employee to be returned to work and paid for time lost If not, the discharge is sustained. Pfaff refused to submit to the test, although he had experience in rebuilding transmissions. From the foregoing, it is clear that the issue specifi- cally raised before the arbitration panel was identical to that alleged in the unfair labor practice charge in the instant case; i.e., was Pfaff discharged because he engaged in protected grievance activity? In refusing to accept the arbitrator's resolution of the dispute, ' The collective-bargaining agreement provides that a multistate griev- ance committee shall consist of an equal number (at least three) of union and employer members, none of whom can be representatives of the particular employer of local involved in the grievance If a majority of the committee decides the dispute, the decision is final and binding If the committee is deadlocked, the grievance goes to the area grievance committee, which is similarly set up There is no provision for a neutral third-party arbitrator 185 NLRB No. 96 TERMINAL TRANSPORT COMPANY, INC the Trial Examiner correctly found, "The whole gamut of the evidence dealing with the alleged discriminatory discharge was presented by the Union to the grievance committee on behalf of Pfaff." There is no claim that Pfaff was inadequately represented, nor is there any suggestion that the arbitration proceedings were not fair and regular on their face. The Trial Examiner nonetheless rejected' the decision, because the commit- tee made no findings of fact and did not disclose in any way how the decision disposed of the discrimi- nation issue or that it was even considered. More specifically, he concluded that, "the issue whether Pfaff was discriminatorily discharged . . was not resolved by the Grievance Committee." In so finding he analyzed the evidence and concluded therefrom that the substantiating facts presented by the Union established discrimination and should have been accepted as true. Furthermore, in his view, the award, since it related only to the question of Pfaff's qualifica- tions, itself established that the arbitration panel did not dispose of the issue before the Board.' In the circumstances of this case, none of the factors cited by the Trial Examiner furnish sufficient basis for departing from the Board's established policy of giving binding effect to arbitral determinations made in proceedings to which all parties have acquiesced where the proceedings are fair and regular on their face, and where the results are not repugnant to the purposes and policies of the Act.' On the other hand, the Board has held that arbitration panels of the type here involved, though operating without neutral arbitrators, meet the Spielberg standards of fairness.' Further, in the instant case, there is no claim of fraud or collusion in the arbitral process. Although Pfaff was not at the grievance hearing, he was represented by the Union, whose interest in successful prosecution of the grievance appeared identical to his own. Moreover, this quite clearly We disagree with the Trial Examiner's interpretation of Illinois Ruan Transport Corporation, 165 NLRB 227, in so far as he construes that case as holding that, "the Board refused to follow an arbitrator 's award because although the evidence of alleged discrimination was presented to it [the arbitrator] it did not consider it in its decision and making the award " Contrary to this statement, as we read that case, the question of discrimination was not raised before the arbitrator therein , and hence no evidence was introduced in support of any such claim ' The Trial Examiner also found that the test which the committee prescribed was too severe The evidence he relied on consists of a nonsupervisory leadman's testimony thst Respondent's regional supervisor of maintenance told him that neither he nor himself could perform the test in the time set by the flat rate manual The evidence was introduced by the General Counsel solely to show animus and was not offered under circumstances that would reasonably lead Respondent to believe that the severity of the test was in issue As the question was not litigated , and, as, in any event, the evidence relied upon is not entirely conclusive we do not adopt the Trial Examiner 's finding in this regard Spielberg Manufacturing Co, 112 NLRB 1080, 1082 Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, 1421, Roadway Express, Inc, 145 NLRB 513, 514 673 is not a case where the issue of discriminatory dis- charge was neither raised not litigated before the arbitration panel.6 Nor is there reason to disturb the award because the grievance committee, in its decision, made no findings and did not mention the nature of the grievance.' In our opinion, the Trial Examiner exceeded his authority under the Spielberg doctrine in rejecting the award either because he would have reached a different result on the evidence presented to the arbitration panel or because the award, in his view, evidenced a failure of the arbitrators to resolve the issue of discrimination. Under established policy, the validity of an award is not to be determined on the basis of whether the Board would reach the same result on the record made before an arbitrator.' Equally without merit is the Trial Examiner's rea- soning that the award, in setting up the qualification tests, could not be construed as taking into account the issue of discrimination.' In our opinion the award, at the very least, was ambiguous as to the question of discrimination. Whether or not an alleged discrimi- natee has been terminated for cause or pretextual reasons will very often, depending upon one's view of the conflicting evidence, turn upon whether or not the dischargee is qualified for the job from which he was discharged. It is quite possible, therefore, that the arbitration panel may have questioned the evidence advanced in support of the grievance and, hence, in its best judgment, allowed the decision to turn on a test of qualification. Although decided in another context, equally applicable here is the following teaching from Enterprise Wheel & Car Corp., supra at p. 598: "A mere ambiguity in the opinion accompanying an award . . . is not reason for refusing to enforce the award." For these reasons, we conclude that it will effectuate the policies of the Act to give conclusive effect to ' Cf DClnternational, Inc, 162 NLRB 1383 ' See, e g , Steelworkers v Enterprise Wheel & Car Corp, 363 US 593 Howard Electric Co, 166 NLRB 338, 341 Furthermore, in Steelworkers v Enterprise Wheel & Car Corp, supra, the Supreme Court established standards for reviewing arbitration awards by the courts, which would apply equally under Spielberg, since designed to implement like statutory policies At p 596, the Court stated "The refusal of the courts to review the merits of an arbitration award is the proper approach to arbitration under collective -bargaining agreements The federal policy of settling labor disputes by arbitration would be undermined if the courts had the final say on the merits of the awards " ' The fact that the award did not sustain or deny the grievance, but set up a test does not detract from its binding nature Although the award was based on a condition subsequent, the result of the test will dispose of the dispute in a final and binding manner To honor such an award is completely consistent with the concept that an arbitra- tor " is to bring his informed judgment to bear in order to reach a fair solution of a problem This is especially true when it comes to formulating remedies" S,eelxorberr i Enlerpnre Wheel & Car Corp supra at p 597 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the arbitration award and, on that basis, we shall dismiss the complaint herein in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. Member Jenkins, dissenting: Where an arbitration award has been made which clearly decides and disposes of the same issue which is alleged to us as a violation of the statute, we have in the past deferred to such an award and refused to make our own independent review of that same issue, if our examination of the arbitration pro- ceedings disclosed that all parties had acquiesced in having the issue decided by arbitration, the proce- dure had been fair and regular, and the award made was not clearly repugnant to the purposes and policies of the Act. Even though we are not bound to accord such recognition to an arbitrator's award, we have done so with "the desirable objective of encouraging the voluntary settlement of labor disputes." Spielberg Manufacturing Co., 112 NLRB 1080, 1082. The award here, however, is entitled to no such deference from the Board, for several reasons. To begin with, it is plain that the party principally concerned, employee Pfaff who allegedly was discrimi- natorily discharged, has not consented to have his case determined by the joint union-employer Griev- ance Committee.10 Instead, he has brought it here, as he is entitled by the Act to do. There is therefor( missing at the outset the element of "voluntary settle- ment" by the parties which is the sole reason for our deferring to arbitration awards. This is reason enough not to defer to the joint Committee proceed- ings-but there are other reasons equally compelling. There is no indication anywhere in this record that the joint Committee considered or decided the same issue which is before us, namely, whether Pfaff was discriminatorily discharged for exercising his rights under Section 7 of the Act to present and follow up employee grievances relating to the collec- tive-bargaining agreement. Rather, the Committee 10 When the joint Committee proposed to determine his case by requiring the employee to take and pass a mechanical test to determine his competence as a mechanic , a test which would do nothing to determine whether the real reason for his discharge was his activity in presenting employee grievances and his asserted lack of competence was pretextual, Pfaff withdrew from the Committee proceeding and filed charges under the Act To say that he has "consented" to the Committee 's award by his participation in the proceedings up to this point at which it became apparent the Committee would not resolve the issue of discrimination , which was the only issue he had submitted to this "arbitration," is to require him to accep^ in advance a change of rules in the middle of the game which deprives him of any forum for the determination of the alleged violation of the Act proposed to resolve Pfaff's case by requiring him to tear down and rebuild a truck transmission properly and within the time specified in a repair manual, and Pfaff refused to take the test. Such a test might show that Pfaff was entirely competent, entirely incompetent, or somewhere in between and, depending on the result, might also show that the employer had a legitimate reason to fire him for lack of ability, as it asserted it did. But the issue is not whether a good reason existed for discharging Pfaff, but wheth- er that reason was the real reason or a pretext, and whether Pfaff was in fact discharged for the reason that he vigorously pursued employee griev- ances. The mechanical test does nothing to advance this inquiry." Thus, the Committee's proposed deter- mination of the propriety of Pfaff's discharge by the outcome of the test necessarily means that Com- mittee had no evidence on which to reach any conclu- sion regarding the existence of discrimination, and that it could not have decided that issue. My colleagues would supply this deficiency in the Committee's decision by inferring that, since the Com- mittee proceeded to the question of Pfaff's competence, it must have decided that his discharge was not discriminatory unless the employer's assertion of his incompetence was groundless. But the opposite conclu- sion, that the Committee in no way considered the issue of discrimination, is equally logical and requires no assumptions. In such case, there is no warrant for drawing any inference that the Committee of necessity passed on some or all phases of the discrimi- nation issue. Indeed, to draw such an inference here amounts to saying that in discrimination cases under Section 8(a)(3), if a valid reason exists for discharge and the employer asserts that reason as a defense, the Board need not and perhaps should not inquire whether that, and not his protected activity, was in fact the true reason for the discharge. In the circumstances here, moreover, this inference flies in the face of record evidence showing affirmative- ly that the Committee did not consider the question of discrimination. Lawson, the supervisor , who dis- charged Pfaff, and the only employer representative with firsthand knowledge of the material facts, was present at the Committee meeting. The employer indicated he was available to answer questions about the grievance presentation which Pfaff asserted led to his discharge. The Committee nevertheless made no inquiry of him. Instead, the Committee heard from the employer only evidence concerning Pfaff's 11 The irrelevance of this test to the issue of discrimination against Pfaff is particularly apparent because at the time of his hiring Pfaff had told the employer that he had not had much experience in rebuilding work, was nonetheless hired , and seemingly performed his work without incident until his problem with management arose over his filing of grievances. TERMINAL TRANSPORT COMPANY, INC competence, much of it hearsay and none of it from Lawson. From these facts it is plain, not that the Committee necessarily decided, or can be inferred to have decided, the issue of discrimination, but that it avoided that issue. If on this type of evidence it is asserted that the Committee did decide that issue, then any such conclusion by the Committee is on its face at variance with "fair and regular" procedure and does not comport with our standards for deferring to an arbitration award. And, finally, it is the absence here of "fair and regular" procedure inherent in the structure of the Committee which renders its award defective in yet another aspect. This Committee was not, properly speaking, engaged in arbitration and the making of a binding impartial award. It was a joint Committee composed solely of representatives of the employer and the Union, i.e., the disputants. It had no outside, neutral member to provide impartial consideration of the alleged discrimination against Pfaff. The Board has in the past never deferred to any award where such impartial consideration cannot be had, for to do so would deprive the discriminatee of an impartial determination of a claim arising under the statute.'Z Whatever result such a Committee of the protagonists might reach, it is in part the product of economic power, adjustment with an eye on other disputes or differences between them or on their future bargain- ing positions, and other considerations unrelated to the merits of the particular claim before the Commit- tee. Where the claim states a violation of the Act this Board administers, as Pfaff's did, the employee is entitled to an impartial determination of his claim at some point. Pfaff did not get it from the Committee, and under this decision he will not get it from this Board. No other forum is available to him. The National Labor Relations Act establishes specific and basic employee rights, and the protection of such rights is committed to this Board, particularly by the entrustment to us of the power to take appropriate steps to remedy any violations of the Act. The Board's refusal to consider Pfaff's case on the merits is a nonperformance of the obligation the Act imposes on us for the protection of Pfaff and others like him. It does not lie in our discretion to cut them off from their statutory rights, and I would proceed to a consideration of Pfaff's claim on the merits. " Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, is distin- guishable because the employees had clearly agreed to be bound by the award of a Committee similar to the one here, and the General Counsel stipulated that the Committee was constituted of "balanced" representation If the dictum in footnote 6 of that decision is considered a precedent for deferral to a tribunal which has no neutral and impartial component, I would overrule it TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 675 JAMES F . FOLEY, Trial Examiner : This case, 12-CA- 4680, was brought before the National Labor Relations Board (herein called the Board), under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), 61 Stat 136, 76 Stat . 579, against Terminal Transport Company, Inc. (herein called Respondent), by a complaint issued January 8, 1970, and an answer to the complaint filed January 15, 1970. The complaint is premised on a charge filed November 6, 1969, by Walter Pfaff, the Charging Party, and amended by Pfaff on January 7, 1970. It is alleged in the complaint that Respondent, in violation of Section 8(a)(1) of the Act, discharged Pfaff on or about September 16, 1969, and has failed and refused to reinstate him since that date to his former or substantially equivalent employment, because ( 1) he engaged in concerted activities for the purpose of collective bargaining or mutual aid or protection , (2) filed and processed a grievance through Freight Drivers , Warehousemen and Helpers, Local Union No 390, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union), his collective-bargaining represent- ative, and (3) because he refused to withdraw or abandon his grievance at the request of Respondent. In its answer, Respondent admits discharging Pfaff on or about September 16, 1969, but denies it discharged him for any discriminatory motive violative of the Act It affirmatively defends the discharge on the ground that Pfaff, employed as a Class A mechanic, was discharged because he was unable to perform the duties of a Class A mechanic . It further defends that Pfaff filed a grievance on or about April 28, 1969, through the Union, one of Respondent's supervisors performed unit work to be done only by rank-and-file mechanics ; this grievance was heard in Atlanta, Georgia, on July 2, 1969, by the Southeastern Area Multi-State Grievance Committee (herein called Griev- ance Committee); this Committee decided on this date that if a mechanic were available to perform the work the Respondent was to pay Pfaff, the grievant, wages for 2 hours straight time, but if a mechanic were not available the claim was to be denied ; and on or about September 24, 1969, Pfaff was paid the sum of $31 68 in settlement of the grievance. It further defends that Pfaff, following his discharge, filed a grievance against his discharge which was heard by the Grievance Committee in Miami, Florida, on November 4, 1969; the Grievance Committee decided on that date that Pfaff was to be "given the job of tearing down and rebuilding a ten (10) speed Road Ranger Transmis- sion" and required to complete it in the time prescribed in the flat rate manual , in the presence of a representative of the Union and a representative of Respondent, and, if the job were properly performed and the transmission were operable, Pfaff was to be returned to work and paid for lost time, and if not his discharge was to remain in effect, and Pfaff has failed to comply with the decision of the Grievance Committee. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The hearing on the complaint and answer was held before me on February 25 and 26, 1970, in Miami, Florida. The parties were afforded an opportunity to present evi- dence, make oral argument, and file briefs. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, an Indiana corporation with its principal office and place of business in Atlanta, Georgia, is a motor carrier engaged in the business of hauling freight interstate and intrastate. It operates terminals in several cities in Florida, and in cities of several states other then the State of Florida. It operates pursuant to the laws, rules, and regulations of the United States and States in which it does business that are applicable to its motor carrier opera- tions. Respondent annually derives gross revenue in excess of $50,000 from its interstate motor carrier operations. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and jurisdiction of this proceeding will effectuate the purpos- es of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Issues had a rebuilding shop He was, however, hired as a Class A mechanic by Respondent Respondent is a member of the Southeastern Motor Carriers Association comprised of common, contract, and private carriers in the States of Alabama, Georgia, Florida, Mississippi , and Tennessee (herein called Association), and the Union is affiliated with the Southern Conference of Teamsters (herein called Conference), a multi-state confer- ence, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America Respondent, as a member of the Association, and the Union, as an affiliate of the Conference, are parties to a collective-bargaining contract known as the Southeastern Area Garage Agreement, effective for the period April 1, 1967, to March 31, 1970. The unit of employees which the contract covers is a multi-state employee unit of all the employees in the Mechanical and Service Departments of the employee-members of the Association. The contract was negotiated by the Southeastern Area Motor Carrier Labor Relations Association with the Southern Conference of Teamsters. Grievances under the contract not disposed of by settlement between a particular employee-member of the Association and a particular member local of the Conference handling the collective-bargaining relations with the employee-member are heard and disposed of by the Southeastern Area Multi-State Grievance Committee This Committee consists of representatives of the Association and representatives of the Conference Representatives of an employer or of a union directly involved who are on this grievance committee may not hear and dispose of a grievance of an employee employed by this employer or represented by this local Is the Board stopped from considering the alleged unfair labor practice by its policy of deferring to disposition by grievance proceedings? If not, was employee Pfaff discharged for either filing a grievance or refusing to withdraw it? B Background Evidence Pfaff's employment with Respondent began on or about August 1, 1968. He was discharged on or about September 16, 1969, after approximately 14 months employment. He was hired as a Class A mechanic and retained that classifica- tion during the period of his employment. Prior to his employment with Respondent, Pfaff was employed for the month of July 1968 by W. E Johnson Equipment Company in Hialeah, Florida, and prior to that time was employed as a Class A mechanic by Denver-Chicago Trucking Compa- ny of North Bergen, New Jersey, and served as a mechanic in the United States Army on location with the Four Hundred Twenty-Third Ordinance Division, at Fort Devens, Massachusetts. He received training as an automotive mechanic in the United States Army for a period of 2 or 3 months at Fort Dix, New Jersey. When Pfaff was interviewed by Respondent's representative, he disclosed to them that he had not had much experience in rebuilding work as his employer, Denver-Chicago Trucking Company, C. Undisputed Evidence Pfaff was discharged by Respondent on or about Septem- ber 16, 1969, for the alleged reason that although he was employed as a Class A mechanic, he did not, and could not, perform the duties of a Class A mechanic.' On April 28, 1969, the Union, on behalf of Pfaff, filed a grievance against Respondent because a supervisor per- formed unit work which the contract precluded a supervisor from doing. Just prior to a scheduled hearing on the griev- ance in Atlanta, Georgia, on or about June 30, 1969, before the Grievance Committee, the grievance was settled by a representative of Respondent and a representative of the Union, and the settlement was that the grievance should be sustained and the grievant paid for 4 hours work if a representative of the Union and Robert Davis, manager of Respondent's terminal in Miami,' found that a mechanic was available to do the work the supervisor performed. Davis was apprised of the settlement. No final action was taken in either July or August 1969, even though Pfaff requested and demanded, through Leo J. Jefferson, the union steward in Respondent's repair and maintenance shop at its Miami terminal, that he be paid ' G C Exh 4, Respondent's letter of discharge to the alleged discrimina- tee, is received in evidence Through oversight, it was not offered Respond- ent's counsel has no objection ' Davis is Respondent's representative in bargaining with the Union TERMINAL TRANSPORT COMPANY, INC. 677 the amount of the settlement. He insisted he was present in Respondent's terminal and shop when the supervisor did the work. James Lawson, Respondent's regional mainte- nance supervisor, on or about September 2, requested Pfaff, through James F Lusby, acting shop foreman at the Miami terminal and Pfaffs supervisor, to withdraw the grievance, but Pfaff refused to do so and threatened to file another grievance if he was not paid the amount of the settlement. Lawson, who was stationed in Atlanta, Georgia, at Respondent's main headquarters, appeared at the Miami shop and terminal on September 10, 1969, after being informed by Lusby on or about September 5 or 6, 1969, that Pfaff refused to withdraw the grievance and threatened to file another grievance because Respondent would not pay the amount of the settlement On September 12 and 15, 1969, Lawson issued to Pfaff letters of warning, and on September 16, 1969, a letter of discharge for failure to perform his duties as a Class A mechanic on the three jobs that Pfaff worked on from the time Lawson met Pfaff in the Miami shop on September 11, 1969, until his discharge on September 16, 1969. He was on leave September 12 and 13. The jobs on September 11 and 13, which were rebuilding jobs, a type of work on which Pfaff had little experience, were assigned to Pfaff by Lawson On or about September 21, 1969, Respondent paid Pfaff $31.68 as a final deposition of the settlement of June 30, 1969, of Pfaff's grievance of April 28, 1969. Pfaff filed a grievance against his discharge. It was not settled by the Union and Respondent, and was heard by the Grievance Committee on November 4, 1969, in Miami, Florida. The Committee made the decision on November 4 that Pfaff was to be given the job of tearing down and rebuilding a 10-speed Road Ranger transmission in the presence of a representative of the Union and a represent- ative of Respondent, the job was to be completed in the time prescribed in the flat rate manual; and if Pfaff complet- ed the job in the prescribed' time and the transmission were operable, he was to be returned to work and paid for time lost, and if not, his discharge was to be sustained. Pfaff refused to submit to this test He filed the unfair labor practice charge on November 5, 1969. D. Disputed Evidence3 Regional Supervisor Lawson's visit to the Miami shop starting on September 10, 1969, followed closely a visit he made there about the end of August to investigate reports of a breakdown in service He returned to Atlanta, Georgia, September 1, 1969.1 During the visit ending Sep- ' I make these findings after consideration and evaluation of all relevant testimony and written evidence , in context, including the demeanor of witnesses ' Lawson visits the Miami shop of Respondent , at most, five or six times a year He would normally not visit the Miami shop 10 days after a previous visit With headquarters in Atlanta, Georgia, he has responsibility for the operation of the shops in the terminals in Jacksonville, Orlando, Del Ray Beach, Tampa, and Venice, Florida, as well as Miami He communicates daily with their shop foremen, and at times with the terminal managers, about their operations Lawson is under the supervision of Benjamin White, the vice president of mainte- nance for all Respondent's operations which span 13 States from the Great Lakes to the southern boundary of Flonda tember 1, he discharged Reo Cella, the shop foreman, and assigned James C Lusby, the leadman on the day shift, 7 30 a m. to 3:30 p.m., to perform the duties Cella had until a new shop foreman was appointed. Lusby per- formed the duties of a shop foreman until a new shop foreman named Jerry Ferrero was appointed about the end of October or the beginning of November 1969 ' Just before Lawson left the Miami shop on September 1, to return to Atlanta, Georgia, by plane, he saw on the bulletin board the Union's version of Pfaff's grievance of April 28 and its settlement of June 30, 1969 6 He asked Lusby about it, who replied he did not know about it, and then asked Lusby to ask Pfaff if he would consider withdrawing it. Lawson said he would telephone Lusby about it, and he did so the next morning Lusby had not spoken to Pfaff about it, and he told Lawson he had not talked to him. He talked to Pfaff that day in the presence of Jefferson, the union steward, and, as stated, Pfaff refused to withdraw the grievance and said he would file another if he was not paid the amount of the settlement Lawson telephoned Lusby on or about September 6 about the grievance, and Lusby informed him of Pfaffs refusal to withdraw it and threat to file another one Pfaff told Robert J. Aaron, the leadman on the afternoon shift begin- ning at 3.00 p.m., that Lawson had called the second time and Aaron so informed Jefferson Jefferson asked Lusby about the second telephone conversation in the pres- ence of Aaron. Lusby answered that all he knew was that when Lawson called the second time he told Lawson that Pfaff refused to withdraw the grievance, and Lawson said he was very much upset about it and would be down in a few days to deal with the matter himself' I find that the holder of the job of shop foreman in Respondent's shop at its Miami terminal effectively recommends the hiring , discharge, and layoff of mechanics and other employees who work in the shop, directs them in their work , authorizes time off for , and overtime working by, these employees , consults with them about their work and time spent on assigned work, has the authonty to pledge the credit of Respond- ent by purchasing parts and other materials for the stock of the parts department of the shop, has the responsibility for the maintenance of records showing the work to be done in the shop , the work accomplished, the time in which the work is done and by whom , the current workload of the shop, and the reporting of this information to the regional mainte- nance supervisor and the terminal manager I find that the shop foreman in performing these duties exercises independent judgment, has the authori- ty on behalf of Respondent to effectively recommend with respect to hiring, discharging and laying off of shop employees , and to responsibly direct the shop employees in the performance of their work, and is a supervisor within the meaning of Section 2( 11) of the Act I further find that Lusby performed the duties of a shop foreman during the period from the end of August 1969 to the end of October or the beginning of November 1969, and during that period was a supervisor within the meaning of Section 2(11) of the Act The payment to Lusby of wages at an hourly rate instead of an annual wage and the continuation of his active membership in the Union , while holding the temporary assignment of shop foreman, do not rebut the evidence of his temporary supervisory status The Union 's statement was that the gnevance was for 8 hours pay, and that was the amount to be paid if a mechanic were available to do the work the supervisor had done Ozment, a witness for Respondent, testified the settlement was for 4 hours pay This is the testimony of Jefferson and Aaron of what Lusby said Pfaff testified that Lusby said to him that in the second conversation he had with Lawson , the latter said he would come to Miami to deal with him personally Lusby denied Lawson made this statement to him and (cont'd) 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lawson was present in the shop when Pfaff reported for work between 2.30 and 3 p.m., on Thursday, September 11. He personally greeted Pfaff with a handshake. He did not extend this greeting to Aaron, the leadman in charge of the afternoon shift, which began at 3 p.m., or mechanic William Snyder, the other mechanic on this shift. Lawson instructed Aaron to assign to Pfaff the work to be done on a Reo motor in tractor W-70. It is undisputed that this motor was old and had seen considerable service. Lawson testified that the block was to be cleaned and liners (cylinders), pistons, and piston rings installed The work Lawson instructed Aaron to assign to Pfaff had been assigned to Snyder, a mechanic with 25 years experience and he had spent about 10 minutes on it Aaron told Snyder that Pfaff was to do the job, that Lawson wished him to "get experience" on that engine, and then assigned the job to Pfaff. The latter knew he was to do it as he overheard Lawson instructing Aaron to assign it to him.' Pfaff found the block warped and very dirty with protrusions on it. He talked to Aaron about its condi- tion, and the latter told him to use a hand file to rectify it. He smoothed the block with a hand file, and inserted the liners. He then cleaned the crankshaft, and cleaned and polished the journals. He noticed that the crankshaft had excessive end play and brought this situation to the attention to Aaron. Aaron instructed him to "check it out." He pulled down the main bearing and showed it to Aaron. Aaron told him not to do any further exploratory work. He put the rings on the pistons, and fitted the wrist pins. It was the end of the shift. He took 7.9 hours to do this work. While he was working Lawson passed him a number of times, looked at what he was doing, but said nothing. Another mechanic on the shift that fol- lowed installed the pistons in the liners and closed up the motor. On September 12, Lawson prepared a warning letter to Pfaff in which he criticized him for taking 7 9 hours to do the rebuilding work of installing six liners and installing rings on six new pistons. He stated in the letter that this work should have been done in 2.5 hours. Lawson also stated that Pfaff was paid Class A mechanic wages, and was expected to do the work of a Class A mechanic. In the last paragraph of the letter, Lawson stated that the letter was a final letter of warning for failure to perform Class A mechanic duties, and any future incidents would warrant further disciplinary action and possible discharge. Lawson showed the letter to Union Steward Jefferson during the first shift on September 12. Jefferson asked Lawson what Pfaff said about the letter, and Lawson said he had not showed it to him. Jefferson, a mechanic with 20 years experience, looked at the work Pfaff had done. It was still open. He then told Lawson it was a rough Lawson denied he made it I have credited the testimony of Aaron and Jefferson of what Lusby said Lawson came to Miami a few days after September 6, the date of the second telephone conversation he had with Lusby $ Lawson testified that he wanted Pfaff to do the work because Snyder was slow, and it would be done quicker if Pfaff did it. Pfaff made full disclosure to Respondent of his experience , including his limited experience in rebuilding , before being hired by Respondent as a Class A mechanic. This job was the first rebuilding job Pfaff was given in the 14 months he was employed by Respondent job and would have taken him the same time or longer to do it, and then said to Lawson "see what explanation Walt had for it." Lawson replied that he did not care who did the work, that it should not have taken 7.9 hours. Pfaff did not work on September 12 or 13. On September 13, he received from Respondent in the mail the letter of September 12. Both Jefferson and Snyder, as witnesses for the General Counsel, testified that they would have taken about the same time as Pfaff took to do this work. The job was open when Jefferson viewed it on Friday morning, September 12 Snyder was told what work Pfaff had done, and he gave his opinion based on the description given him of the work that was done Pfaff testified that ordinarily he could do in 2.5 hours the rebuilding job of cleaning the block, installing liners for six pistons and installing rings on the six pistons. He testified that the additional 4.5 hours was used in cleaning the block, rectifying it with a hand file and checking out the excessive play in the crankshaft. As found, Jefferson and Snyder testified they would have taken the same amount of time to do the work Pfaff did on the W-70 motor. At the commencement of the second shift, about 3 p.m., on September 14, Aaron assigned Pfaff a job of installing a transmission and a clutch cylinder in tractor W-68. He completed this job and roadchecked the tractor to see that it shifted properly. He placed it where tractors were placed that were to be fueled. The fueler drove it to the pump, fueled it, and drove it to the line of tractors to be used the next morning On September 18, 1969, 2 days after his discharge, Pfaff received in the mail a letter dated September 15, 1969, prepared by Lawson in which Lawson charged him with failing to adjust the clutch arm properly on tractor W- 68 in connection with the job he did on it on Sunday, September 14. Lawson stated that on the morning of Septem- ber 15, the tractor "had no clutch," and the driver lost 30 minutes while the clutch arm was being adjusted. Lawson also charged him with leaving three brackets loose on the transmission. But Lawson testified that the brackets that were loose held the air hose. In the final paragraph of this letter to Pfaff, Lawson stated that the letter was the final letter of warning for failure to perform his duties as a Class A mechanic, and any future similar incident would warrant immediate discharge. Pfaff did not have notice of this warning letter until it was received by him on September 18, 2 days after his discharge on September 16, for allegedly improper work he performed on September 15. Lawson saw Lusby making the adjustment on the clutch about 8 a.m. on Monday, September 15. At this time he apparently saw the three loose brackets or Lusby told him they were loose. Lawson then prepared the September 15 letter and showed it to Shop Steward Jefferson. Jefferson asked him if he had talked to Pfaff, and he said he had not. Pfaff saw Lawson in the shop when he worked during the afternoon of Septem- ber 15, but Lawson did not speak to him. Lawson testified that Pfaff did a good job of installing the transmission on September 14, and performed the work in a reasonable time. He found fault only with the clutch adjustment and the loose brackets. TERMIN %L TRANSPORT COMPANY, INC 679 At the beginning of the second shift, at 3 p.m, on September 15, Leadman Aaron, at Lawson's direction, assigned Pfaff a rebuilding job on tractor W-82. The job was to install liners, piston rings, and pistons It was similar to the job Pfaff was assigned on September 11. There were six liners and six pistons The pistons were four-groove pistons. A ring was to be installed in each of the four grooves on each of the six pistons. The first two rings were compression rings and the last two were oil rings. One oil ring was a four-piece unit and the other oil ring was a single-piece unit. When Aaron assigned the job to Pfaff, he told him to just clean the block and install the liners, pistons, and rings, and to get the job done in a hurry. He testified he did not want him doing the extra work he did on the September 11 job when he was trying to make an impression since it was his first assignment on this type of work. Pfaff installed the liners in the block, and the rings in the pistons. He placed a four-piece oil ring in the third groove of each piston, and a one-piece oil ring in the fourth groove of each piston. This was the extent of the work Pfaff did on this job on September 15. At the beginning of the first shift at 7 a m., on September 16, Arthur Glennon, a Class A mechanic, employed 5 years, went into the shop office and asked for work. Lawson assigned to him the remainder of the work to be done on the W-82 tractor The pistons, with the rings installed, had to be inserted in the liners after the connecting rods were affixed Glennon inserted the pistons in the liners, and then he saw a manufacturers diagram and instructions for the installation of the four-piece oil rings . It showed the four- piece oil ring in the lowest groove, which Glennon took to be the fourth groove, and not the third groove. He subsequently found that the diagram and instructions were for a three-groove piston and not for a four-groove piston, but at the particular time on the morning of September 15, he was of the opinion that Pfaff had made an error in installing the four-piece ring in the third groove instead of the fourth groove, and in installing the one-piece ring in the fourth groove instead of the third groove, and set about to switch the four-piece rings to the fourth grooves and the single-piece rings to the third grooves. This meant a switch of two rings on each piston. Lawson walked by and asked him what he was doing, and he told him. He also showed Lawson the diagram and instructions Glennon testified that Lawson picked up the diagram and instructions and took them with him, and that he completed the switching of the four piece and single-piece oil rings on each of the pistons and installed them in the liners. Lawson also found and picked up an envelope with the words "4th Groove," and a set of instructions for both compression rings and oil rings and for supplementary work to be done in connection with the installation of the liners, pistons and rings. Lawson took these documents and placed them in Pfaff's personnel file, and set about preparing a letter of discharge to Pfaff. It was stated in the first paragraph of Lawson's letter of September 16 to Pfaff, that on September 15, 1969, Pfaff installed improperly rings on pistons in tractor W- 82. He installed number four oil ring in number three groove, and number three ring in number four groove, when he had instructions on each ring package with all information, and also pictures, "of how to install these rings properly." In the second paragraph, it was stated that Pfaff had been previously informed of his repeated negligence as a rated and paid Class A mechanic in letters dated September 12 and 15, 1969. In the final paragraph Lawson stated the following. Be advised due to your poor performance, repeated negligence and apparent lack of knowledge of a Class A mechanic you are hereby discharged from your duties as an employee of Terminal Transport Company Incorporated in accordance with the Local Union 390 contract Pfaff had not received warning letters prior to the two dated September 12 and 15 that Lawson sent him Lawson called Jefferson into the office between 12 a.m. and I p in on September 16, and showed him the letter Jefferson asked Lawson what Pfaff had said about it, and Lawson replied that he had not asked Pfaff about the matter. Jefferson looked at the job on the W-82 tractor, which had been completed by Glennon He asked Glennon what he had done, and Glennon told him. Jefferson then informed Lawson that Pfaff had mounted the rings properly When Pfaff reported for work between 2:30 p.m and 3 p.m. on September 16, he found that his timecard was not in the rack. Jefferson told him that Lawson had a letter for him. Pfaff and Jefferson went to the office where Lawson handed him the letter and a paycheck in the presence of Jefferson After he read the letter Pfaff said he installed the rings properly He left the office to find Aaron, and excitedly showed him the letter. Pfaff had asked Aaron on the afternoon of September 15 how he should install the rings The instructions in the box which contained the piston kits for installing the rings were for installing rings on a three-groove piston. The pistons on which Pfaff had to install rings were four-groove pistons Aaron had told Pfaff to follow the manufacturer's instruc- tions on the envelopes. The manufacturer stated on each envelope the groove in which the ring in the envelope should be installed. Aaron went into the office with Pfaff He told Lawson in the presence of Jefferson and Pfaff that Pfaff had installed the rings properly and had followed his instructions, and if Pfaff deserved a letter he should have one also. Lawson turned and walked away. Glennon spoke to Lawson three times about the work he had done on the W-82 tractor following the work Pfaff had done on it Just before the hearing Lawson asked him to write down what he did in switching the rings Later that day he told Glennon it had not been necessary to use what Glennon had written. In the last conversation Glennon told Lawson that he had talked to some of the mechanics about his switching the piston rings, and he had doubts that it had been necessary for him to have changed the rings from the way Pfaff had placed them on the pistons. He told Lawson that the diagram which he had followed, and which Lawson had taken, was for a piston with three grooves and not for a four-groove piston It was stated in the instruction accom- panying the diagram that the four-piece oil ring should 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be placed in the lowest groove The third groove on a three-groove piston would be the lowest groove A few days after the Grievance Committee's November 4 decision on Pfaffs grievance against his discharge , Jeffer- son had a conversation with Lawson . Another mechanic was present . Lawson asked them if they knew where he could get a couple of mechanics. Jefferson asked if he meant two in addition to 0. H . Cross, the casual employee. Lawson replied that maybe only one was needed as they might have to put Pfaff back to work , but then he said that two were needed as he would not work Pfaff. As stated supra, Pfaff filed a grievance against the dis- charge, and a hearing was held on it before the Grievance Committee in Miami on November 4, 1969. The Committee decided that Pfaff, in the presence of a representative of the Union and the Respondent , was to tear down and rebuild a 10-speed Road Ranger transmission in the time prescribed in the flat rate manual , and if he completed the job in the prescribed time, and the transmission were operable, he was to be returned to work and paid for time lost, and if not, his discharge was to be sustained Shortly after this decision , Lawson asked Aaron if he had done the type of job assigned to Pfaff by the Committee, and Aaron said he had torn down and rebuilt that type of transmission about 2 years before. Lawson remarked that Aaron could not do it in the time prescribed in the flat rate manual , and he could not do it either. Lawson testified at the hearing that the first diagram and accompanying instruction introduced through him in evidence went with the envelope with the words "4th Groove" on it, which was also introduced in evidence through him He identified the oil ring on the diagram as a four-piece oil ring, and testified that the accompanying instructions contained the information for installing it in the fourth groove of the piston He also testified that the ring that was in the envelope marked "4th Groove" was a four-piece oil ring . Pfaff on rebuttal testified that the envelope marked "4 th Groove" contained a ring he used, but that the ring was a single-piece oil ring and not a four-piece oil ring as Lawson testified . He testified that the instruction and diagram for a four-piece oil ring introduced through Lawson was for installation on a three- groove piston and not a four -groove piston like the six in the W-82 tractor He agreed that the four-piece ring in the diagram would go in the lowest groove, as the accompanying instruction directed , because the third groove was the lowest groove in a three -groove piston He testified that the four-piece ring ir, the case of a four-groove piston goes in the third groove, and the single unit ring , a supple- mental oil ring, goes in the fourth groove or lowest groove. He further testified that he installed the rings properly by placing the four-piece ring in the third groove, and the single-piece ring in the fourth groove of the six four- groove pistons of the NN -82 tractor, in accordance with the directions on the envelopes. tee of the grievance filed by the Union on Pfaffs behalf against his discharge on September 16, 1969' The grievance was presented by Larry Hicks, business representative of the Union R. V Pulliam , a vice president of Respondent, represented the Respondent . He is in charge of labor rela- tions and transportation Transportation includes Respond- ent's over-the-road operations The Union 's evidence consisted of the grievance filed with the Union by Pfaff, the two warning letters of Septem- ber 12 and 15 , 1969, and the letter of discharge of September 16, 1969, received by Pfaff from Respondent , and a letter to the Union from Pfaff in which he recounted his personal knowledge and opinion of the circumstances giving rise to the issuance of the three letters. Pfaff's statements in the letter to the Union dealt with Lawson's request that Pfaff withdraw his grievance of April 28, 1969, which had been settled by the Respondent and the Union on June 30, 1969, his refusal , the visit of Lawson, beginning September 10, 1969, following Pfaffs refusal and about 10 days after a prior visit to the shop , Pfaff 's experi- ence prior to his employment by Respondent, his employ- ment by Respondent as a Class A mechanic although it had knowledge of his limited experience in motor rebuild- ing, his 14 months' employment by Respondent without being assigned to motor rebuilding work , Lawson 's assign- ment to Pfaff, through Aaron , of two motor rebuilding jobs, ostensibly to give Pfaff experience in this work, and Pfaffs performance of this work . The work was the subject of Lawson's warning letter of September 12, 1969, and his discharge letter of September 16, 1969, to Pfaff. Pfaff stated that he explained to Lawson that he did more than Lawson stated he did in the September 12 letter, but Lawson said to him he did not want the end play on the crankshaft fixed He wanted only new liners , pistons, and piston rings installed . In connection with the charge in Lawson's September 16 letter that Pfaff installed the four-piece oil rings and the one -piece oil rings incorrectly on the pistons, Hicks stated he had the manufacturer's diagrams to show that Pfaff installed them correctly. Pfaffs letter to the Union also dealt with Leadman Aaron's assignment to Pfaff of the work of installing a transmission and a cylinder in a clutch assembly, and Pfaff's performance of this work . This work was the subject of Lawson's warning letter of September 15, 1969. Pfaff stated in his letter that he had performed this work numerous times, and without criticism . The Union's presentation con- cluded with Hicks' statement that Respondent had no diffi- culty in considering Pfaff a qualified Class A mechanic for 14 months, until he refused Lawson's request that he withdraw the April 28, 1969, grievance filed through the Union. Hicks, in conclusion, stated that Pfaff had not only worked for Respondent 14 months, but was a good mechanic, had no absentee or drinking problem, and was considered by Respondent as a Class A mechanic until he refused to withdraw the grievance filed through E. The Evidence Presented to Grievance Committee Against, and in Support of Pfaffs Discharge Respondent offered in evidence the transcript of the The transcript is a transcription of a record made of the testimony Certain parts of the record were inaudible, and the inaudible portions hearing on November 4, 1969, before the Grievance Commit - are so identified in the transcript TERMIN kL TRANSPORT COMPANY, INC the Union on April 28, 1969, and settled by Respondent and the Union on June 30, 1969.1° When Pulliam presented Respondent's case to the Griev- ance Committee, Lawson sat beside him to assist him. Lawson did not, however, answer any questions or otherwise give any testimony Pulliam made Respondent's representa- tion. It appears that Lusby, who was acting shop foreman from the end of August until the end of October 1969, and who was waiting in the hall outside the waiting room, may have been called in and may have answered a few questions about incidents in which he was directly involved. It appears that Bates, a representative of the employers on the Grievance Committee, asked Lusby five questions, and Payne, a representative of the Union on the Committee, asked him two questions. One question was asked by some- one identified as "Voice." One of the answers to Bates' questions was audible. The answers to his other four ques- tions were not. Part of Payne's first question and part of his second question were inaudible. There was no answer to his first question, and the answer to his second question was inaudible. The question by "Voice" and Lusby's answer were audible. Respondent's Vice President Pulliam began the presenta- tion of Respondent's case to the Grievance Committee by stating that Lawson did not know anything about the grievance until he ordered it paid "so there was no conversa- tion on the grievance between Mr. Lawson, Mr. Lusby or anyone else because I told them to pay the grievance." Pulliam also stated that so much emphasis was placed on the April 28 grievance and its settlement that he ordered it paid. Pulliam then represented that Pfaff was not a Class A mechanic, and that the other mechanics in the Miami shop were covering up for him. He referred to Lusby, said he was in the hall, and that he was the man who repaired part of what Pfaff did. Pulliam said that he had the statement of Glennon who straightened out the rings on the pistons that Pfaff allegedly installed improperly. He also said at this time that he was going to call Lusby in and let them question him about the conversation between him and Lawson about the grievance Pulliam again repeated that Pfaff was not a Class A mechanic. He referred to his alleged inability to place a clutch in a truck He said that Pfaff failed to put the brackets back on after he worked on a clutch, left bolts out, failed to put the rings properly on a piston, and took 8 hours to install liners in a block and to install rings on six pistons when this work was a 2-hour job. He then said that Lawson, sitting beside him, and Lusby, in the hall, could tell them about Pfaff 's April 28, 1969, grievance, and its settlement, and what happened after the settlement, because he knew nothing about it until he read the letter Pfaff sent to the Board. 10 Pfaff's letter to the Union presented by Hicks to the Grievance Committee presented Pfaffs version of what happened that led to his discharge In making my evidentiary findings, I have credited Pfaff's testimony before me of what happened, and its corroboration by Aaron, Jefferson, and Glennon Pfaffs letter to the Union presented to the Grievance Committee on November 4, 1969, contains substantially what was presented at the hearing before me in his behalf 681 At this point in the Respondent's presentation to the Grievance Committee the Committee examined Lusby about jobs Pfaff had done that he had to straighten out. As stated supra, the colloquy between Lusby and Bates and Payne of the Committee was not recorded properly on the record made of the testimony and could not be tran- scribed. It is referred to as inaudible in the transcript Payne asked Lusby if he had a conversation regarding Pfaff's withdrawal of a grievance he had filed for 4 hours pay because of two violations of the collective-bargaining contract, and Lusby answered he had Undoubtedly, the reference was to the conversations in the early part of September 1969 between Lusby and Lawson about Pfaff s withdrawal of the April 28, 1966, grievance that was settled on June 30, 1969. Bates or Payne asked Pulliam if major repairs were made in the Miami shop, and he answered yes Pulliam then read to the Committee from Pfaffs applica- tion for employment the experience Pfaff had as a mechanic prior to his filing the application He had been employed by W. E. Johnson Equipment Company, Hialeah, Florida; Denver-Chicago Trucking Company, North Bergen, New Jersey; Four Hundred-Twenty-Third Ordnance Division, Fort Devens, Massachusetts, and United States Army, Fort Dix, New Jersey. The remainder of the transcript, insofar as it can be considered evidence, is marked inaudible. Harp, a represent- ative of the employers on the Committee, asked that the Union and the Respondent leave the specifications and diagrams for installing the piston rings that they had brought to the hearing with them The decision of the Committee is then stated It is: The man to be given the job of tearing down and rebuilding a 10-speed Road Ranger Transmission in the presence of the Union and Company representative Job to be completed in time prescribed in the flat rate manual. If the employee properly completes the job and the transmission is operable, the employee to be returned to work and paid for time lost. If not, the discharge is sustained. As stated supra, Pfaff refused to submit to this test, and filed the unfair labor practice charge on November 5, 1969. ANALYSIS AND FINDINGS AND CONCLUSIONS OF LAW AND FACT In reaching a decision in this case, the threshold question is whether the Board should consider itself bound by the November 4, 1969, decision of the Grievance Committee, and decline to resolve the issue whether Respondent, in discharging Pfaff on September 16, 1969, discriminated against him in violation of Section 8(a)(1) of the Act Section 10(a) of the Act provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise ... " In International Harvester Co., Indianapolis Works et al.,", the Board stated that "there is no question that " 138 NLRB 923, 925, affd sub nom, Ramsey v NLRB, 327 F2d784(CA 7) 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board is not precluded from adjudicating unfair labor practice charges even though they might have been the subject of an arbitration proceeding and award "12 However, the Board also stated therein that "it is equally well estab- lished that the Board has considerable discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will serve the fundamental aims of the Act "" The Board also stated that "If complete effectuation of the Federal policy is to be achieved, we firmly believe that the Board, which is entrusted with the administration of one of the many facets of national labor policy, should give hospitable acceptance to the arbitral process as `part and parcel of the collective bargaining process itself' (citing United Steelworkers ofAmerica v. Warrior & GulfNavigation Company, 363 U.S. 574, 578), and voluntarily withhold its undoubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act," In dismissing the complaint, the Board stated that "while an arbitrator's award could not oust the Board of its jurisdiction to adjudi- cate unfair labor practice charges, we conclude that, under the facts and circumstances herein, it will effectuate the purposes of the Act of respect the award and dismiss the complaint in its entirety. 1114 In accomodating its statutory responsibility to prevent unfair labor practices with recognition in the Act and other Federal legislation and Court decisions15 of arbitration as an instrument of national labor policy for composing contractual differences, the Board has set the standards for its "hospitable acceptance of the arbitral process" and its voluntary withholding of its authority to adjudicate unfair labor practices involving the same subject matter. In International Harvester, it held that it would not defer where the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities, or that the award was clearly repugnant to the policies of the Act. These are the same standards it established in Monsanto Chemical Co., 97 NLRB 517, enfd 205 F.2d 763 (C A 8), and in Spielberg Manufacturing Company, 112 NLRB 1082, 1080, and relied on in Raytheon Company, 140 NLRB 882. In D. C. International Inc., 162 NLRB 1383, the Board declined to defer to the arbitration because the issue of discrimination was not before the arbitrator 16 In Illinois Ruan Transport, 165 NLRB 227, 232, the Board refused " The courts have uniformly so held See NL R B v Walt Disney Productions, 146 F 2d 44, 48 (C A 9), cert denied 324 U S 877, NL R B v Hershey Chocolate Corporation et a!, 297 F 2d 286, 293-294 (C A 3), Carey v Westinghouse Electric Corporation, 375 U S 261, NL R B v C & C Plywood Corp., 385 US 421, NL R B v Acme Industrial Co, 385 U S 432 " Supra, fn 11 at 925-926 " Supra, fn 11 at 927, 929 " See Southern Steamship Company, v NLRB, 316 U S 31, 47 and NLRB v Hershey Chocolate Corporation, et al., 297 172d 286, 293-294 (C A 3) " See also The John Klann Moving and Trucking Company, 170 NLRB No 133, enfd 4 1 1 F 2d 261 (C A 6), cert denied 396 U S 833 (1969). and Rotax Metals, Inc 163 NLRB 72, 78 to follow the arbitrator's award because although the evi- dence of the alleged discrimination was presented to it, it did not consider it in reaching its decision and making the award. It did not make findings of fact, and its award did not disclose that the evidence of the discrimination was considered The Eighth Circuit Court of Appeals agreed with the Board on this issue 11 The whole gamut of the evidence dealing with the alleged discriminatory discharge was presented by the Union to the Grievance Committee on behalf of Pfaff. This included the warning letters and the discharge letter Lawson gave or sent to Pfaff, Pfaffs statement about the motor rebuilding work Lawson assigned him after Lawson returned on Sep- tember 10, 1969, to the Miami shop following his request to Pfaff, through Lusby, a few days before, that Pfaff withdraw the grievance he had filed on April 28, 1969, and which the Union and Respondent settled on June 30, 1969, and Pffafs refusal and threat to file another one. Hicks, the Union's business representative, also present- ed Pfaff 's statement about the transmission and clutch job he performed in between the two motor rebuilding jobs, and what Lawson found fault with in that job. Pfaffs statement also disclosed that during his 14 months of employment by Respondent he had not been assigned motor rebuilding work by Respondent prior to the jobs Lawson assigned him, that Respondent knew when he was hired that his experience in motor rebuilding was very limited, that they hired him anyway as a Class A mechanic, that ostensibly Lawson assigned Pfaff the motor rebuilding work so he could obtain experience in that line, and then issued a warning letter and a discharge letter to Pfaff because allegedly he did not meet the standards for the performance of this work by a Class A mechanic. For the Respondent, Pulliam, vice president of Respond- ent, met the Union's presentation of Pfaffs case He made the conclusionary statement, unsupported by any personal knowledge, that Pfaff was not a Class A mechanic, that the other mechanics were making it possible for him to continue as a mechanic in the Miami shop, and that Pfaff was discharged because he could not do in the required time the rebuilding work of installing liners or cylinders, pistons and piston rings, did not know what piston rings to install in the third and fourth grooves of a four-groove piston, and could not install properly a transmission or a clutch cylinder The statement of Pulliam was supported only by answers Lusby gave the Committee to questions it asked him about jobs Pfaff had done and which he straightened out. Although Lawson was sitting next to Pulliam he did not offer any testimony as to why he discharged Pfaff. Lusby could only answer questions about the half hour he took to adjust the arm on the clutch Pfaff installed and tighten the brackets that held the air hose which he or Lawson found loose at the time that the clutch was adjusted. Although Lawson had the statement of Glennon regarding what the latter did in switching the piston rings in the 17 Illinois Ruan Transport v N L R B 404 F 2d 274, (C A 8) See also Ford Motor Compam, 131 NLRB 1462, 1463 Milne Trucb Lines, 171 NLRB No 25 Wagoner Transport Compant, 177 NLRB No 22 TERMINAL TRANSPORT COMPANY, INC 683 third and fourth grooves of the pistons in connection with the second motor rebuilding job Lawson assigned to Pfaff, this statement was not presented to the Committee So the only evidence dealing with Pfaffs work that the Commit- tee received from Respondent was Lusby's recounting of what he did to adjust the clutch arm and tighten the brackets Pulliam's derogatory statements about Pfaffs work were not based on knowledge but on sheer hearsay from Lawson. Pulliam stated he had no knowledge of Lawson's efforts to have Pfaff withdraw his April 28, 1969, grievance, and its settlement on June 30, 1969, but that Lawson was available to answer the Committee's questions about that incident. The Committee did not question Lawson. It asked Lusby if he had a conversation about the withdrawal of the grievance and he answered yes Pulliam stated to the Committee that Respondent paid Pfaff the amount due him under the settlement in accordance with his instructions, but did not disclose that he gave the instructions 5 days after Pfaff was discharged, and the payment was made at that time He was silent on the facts that Pfaff had requested payment many times in August 1969, and no payment was made, and in early September 1969, shortly before his discharge, Lawson requested him to withdraw the grievance, and Pfaff refused and threatened to file another one It could well be true that Pulliam was not personally aware, prior to the discharge, of what transpired between Pfaff, Lusby, and Lawson before Lawson's return to the Miami terminal, but he failed to ask Lawson to give testimony regarding it. This silence should have estab- lished the truth of the evidence presented by the Union on this matter. The Committee had before it the diagram on which the Union relied to show that Pfaff installed properly a four-piece oil ring and a supplemental single-piece oil ring on four-groove pistons in connection with the second rebuilding job Lawson assigned him on September 15, 1969, and which was the subject of Lawson's letter of discharge to Pfaff of September 16, 1969. The Committee also had the diagram on which Respondent relied to show that Lawson installed the rings improperly. The diagram Respondent had was for the installation of a four-piece oil ring on a three-groove piston. Pfaff had the job of installing a four-piece oil ring and a supplemental single- piece oil ring on a four-groove piston. The Committee rendered the decision that Pfaff should tear down and rebuild a 10-speed Ranger transmission in the time prescribed by the flat rate manual in the presence of a representative of the Union and a representative of the Respondent If Pfaff did this work properly in the time prescribed by the manual , in the judgment of these representatives, he was to be returned to work, and paid for time lost, and if not his discharge was to be sustained. The Committee made no findings of fact, nor disclosed in any way, how the decision disposed of the issue before the Committee-whether Pfaff was discharged for filing and refusing to withdraw his April 28, 1969, grievance, or whether he was discharged only because he failed to do the work properly that he was assigned on September 11, 12, and 15, 1969. The decision itself does not disclose any resolution of this issue. As far as it goes, it appears to set the basis for a determination by the Union and the Respondent as to whether Pfaff was a Class A mechanic The issue whether Pfaff was a Class A mechanic was not placed before the Committee by Pfaffs grievance, although it appears that the Committee acted on such an issue The issue of Pfaffs qualifications as a Class A mechanic is not before the Board in this proceeding The issue whether Pfaff was discriminatorily discharged is before the Board by the charge filed by Pfaff on November 5, 1969 This is the issue before me by the complaint in January 8, 1970, and the answer filed on January 15, 1970. This issue was not resolved by the Grievance Committee. The Committee only returned the controversy to the Union and Respondent with directions to determine whether Pfaff could be considered a Class A mechanic as a result of his performance of the prescribed test The Committee's decision was not even a final decision or a final award For the reason that the issue whether Respondent discrimi- natonly discharged Pfaff on September 16, 1969, because he filed and refused to withdraw a grievance, in violation of Section 8(a)(1) of the Act, was not resolved by the arbitration of November 4, 1969, and because the Grievance Committee did not make a final decision or final award, this issue is properly before me by the complaint of January 8, 1970 and answer of January 15, 1970, for disposition in an unfair labor practice proceeding.18 It is not necessary to decide whether the Committee's decision failed to resolve the issue before me for the reason that the test the Committee prescribed was too severe. It will be recalled that Aaron gave the unrebutted testimony that Lawson said to him that neither he nor himself could perform the test in the time set by the flat rate manual An employer can discharge for good cause, bad cause or no cause at all providing that a motivating purpose behind the discharge is not to do what the Act forbids." However, when the impact of a discharge or other conduct of management is even only "comparatively slight" with respect to interference with, restraint, or coercion of an employee in connection with rights set out in Section 7 of the Act, the employer must come forward with evidence of legitimate and substantial business justifications for the discharge in order to avoid a finding that he violated Section 8(a)(1) of the Act Proof of motivation is most accessible to him. When the employer had advanced these justifications, General Counsel must then show antiunion motivation by the preponderance of the evidence on the record considered as a whole 20 18 Hrtbar Trucking Company, Inc, 166 NLRB 745, 754, Precision Fittings, Inc, 141 NLRB 1034, 1041-43, Illinois Ruan Transport, 165 NLRB 227, 232, Illinois Transport v NLRB, 404 F 2d 274, 280 (C A 8), Spielberg Manufacturing Company, 112 NLRB 1080, D C International. Inc, 162 NLRB 1383, Rotax Metals, Inc, 163 NLRB 72, 78, Milne Truck Lines, 171 NLRB No 25, Monsanto Chemical Co, 97 NLRB 517, enfd 205 F 2d 763 (C A 8) 11 NLRB v McGahey, 233 F 2d 406, 412-413 (CA 5), enforcing in part 111 NLRB 1162 '° NLR B v Great Dane Trailers, 388 U S 26, 34, NL R B v Fleetwood Trailers Co, 389 U S 375, 378, Atlanta Newspapers, inc., 172 NLRB No 152 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence before me discloses that 14 months before his discharge on September 16, 1969, Pfaff was hired by Respondent as a Class A mechanic, and worked in that classification during his period of employment without receiving any warning letters or other reprimands Respond- ent knew when it hired him that he had only limited motor rebuilding experience, but hired him anyway as a Class A mechanic. It did not, however, assign him any motor rebuilding working during the 14 months until Regional Maintenance Supervisor Lawson came to the Miami terminal shop on September 10, 1969, after he unsuccessfully sought, in early September 1969, through Acting Shop Foreman Lusby, to have Pfaff withdraw his grievance of April 28, 1969, which the Union and Respond- ent settled on June 20, 1969, but which could not be disposed of because Terminal Manager Davis refused to pay to Pfaff the amount of the settlement." Pfaff refused to withdraw the grievance and threatened to file another one if he was not paid the amount of the settlement Within 6 days after his arrival at the Miami shop on September 10, 1969, Lawson gave Pfaff two motor rebuilding jobs, and issued to Pfaff a warning letter on one and a discharge letter on the other, and issued a warning letter on the transmission and clutch cylinder job Pfaff did between the two motor rebuilding jobs. This evidence, in context with the background evidence, constitutes an adequate showing of interference with rights of employees protected by Section 7 of the Act,22 to place upon Respondent the burden of coming forward with legitimate and substantial business justifications for Pfaff's discharge to avoid a finding that it violated Section 8(a)(1) of the Act.2J On September 11, 1969, Lawson instructed Leadman Aaron to assign Pfaff the rebuilding job of installing liners, pistons, and piston rings in a tractor (W-70) with a Reo motor. It was old and had seen considerable service Aaron had assigned the job to mechanic Snyder, but Lawson told him to give it to Pfaff to permit him to acquire experience in this work Snyder had done about 10 minutes work on it. Pfaff cleaned the block, removed protrusions and rectified a warped condition with a hand file pursuant to Aaron's instructions, cleaned the crankshaft, and cleaned and polished the journals. He found that the crankshaft had excessive end play, and, on Aaron's instructions, pulled down the main bearing to check out the excessive end " Pfaffs grievance was undoubtedly abrasive It was against a supervisor doing unit work However , the collective-bargaining contract between the Union and Respondent provided against Respondent's officials and other nonunit employees doing this work , and gave the employees and the Union the right to file grievances against their doing it The Union and Respondent settled the grievance on June 30 , 1969, shortly before it was to be presented to the Grievance Committee According to the settlement, Pfaff was to be paid by Terminal Manager Davis for the work done by the supervisor if he was available in the terminal to do it at the time the supervisor did the work Pfaff testified he was available Neither Davis nor any other representative of Respondent who could give probative evidence of Pfaffs presence or absence testified In these circumstances , I credit Pfaff Pfaff and the Union claimed that the amount of the settlement was for 8 hours pay, but the Respondent claimed it was for 4 hours pay As stated , Davis, in any event , refused to pay it It was not paid until Vice President Pulliam ordered it paid, but that was not until 5 days after Pfaffs discharge " See D. C International, Inc, 162 NLRB 1383 " See cases cited supra, fn 20. play. He installed the liners and installed piston rings on the pistons. This work took 7.9 hours, the complete workday. On September 12, Lawson issued Pfaff a warning letter. He stated to Pfaff that he took 7 9 hours to do work that should have been done in 2.5 hours. Lawson's position was that the work of installing liners in the block and installing rings on the pistons, was a two and a half hour job. Lawson showed the letter to Shop Steward Jefferson before giving it to Pfaff Jefferson asked him if he had talked to Pfaff and he said he had not. Although Jefferson told Lawson he ought to see what Pfaff had to say before issuing the letter, he did not talk to Pfaff. When Pfaff told Lawson after he had received the letter that he did much more than installing liners in the block and installing rings on the pistons, Lawson told him that he was assigned to the job of installing liners, rings, and pistons only He told him this notwithstanding that he walked by Pfaff a number of times when Pfaff was doing the extensive work in an obvious attempt to make a good impression on his first rebuilding job, looked at what he was doing, but never said a word to him. Shop Steward Jefferson, a mechanic with 20 years experi- ence, and Snyder, a mechanic with 25 years experience, testified that they would have taken about the same time as Pfaff did to do the work Pfaff did. It is clear from the evidence that the time in excess of 2.5 hours taken by Pfaff was due to his cleaning and rectifying the block with the hand file, cleaning the crankshaft, cleaning and polishing the journals, and checking the excessive end play of the crankshaft If Lawson was acting in good faith toward Pfaff, he would have informed Pfaff he did not want this extra work done on the type of assignment he gave him when he saw him doing this work, or at least he would have talked to Pfaff about this doing the extensive work, instead of giving him his first warning letter after 14 months employment, and in connection with his first rebuilding job, when he had only limited experience in this work, and when Lawson ostensibly assigned this work to Pfaff to enable him to obtain experience I credit Pfaffs unequivocal testimony that in performing the second motor rebuilding job on September 15, 1969, he installed in the fourth groove of the six four-groove pistons the piston rings that came in the envelopes marked "4th Groove." I credit his testimony that the rings in these envelopes were one-piece supplemental oil rings I also credit his testimony that he installed in the third groove of these pistons four-piece oil rings that came in envelopes marked "3rd Groove " I find that Lawson, in his grasping at straws to find an excuse for Pfaffs discharge, accepted without question mechanic Glennon's statement to him that Pfaff should have installed the four-piece oil rings in the fourth groove of the pistons and the single-piece oil rings in the third groove of the pistons. Shop Steward Jefferson, who looked at the work Pfaff did before Lawson presented the discharge letter to Pfaff, informed Lawson before he gave Pfaff the letter that Pfaff had installed the rings properly. Leadman Aaron who assigned Pfaff the rebuilding work at Lawson's direction, told Lawson after Pfaff had received the discharge letter that Pfaff had installed the rings properly. He gave TERMINAL TRANSPORT COMPANY, INC 685 his opinion after being informed of what Pfaff did, and of Glennon's statement that he did it incorrectly. Glennon, who told Lawson that the rings were improperly installed, testified at the hearing he told Lawson about the time of the hearing before the Grievance Committee that he could have been mistaken when he said Pfaff installed the rings improperly as he was looking at a set of instructions for installing rings on a three-groove piston when he talked to him, but that the pistons on which Pfaff made the installation were four-groove pistons. I credit Pfaff's testimony that on a four-groove piston the one-piece oil ring is a supplemental oil ring, and is installed below the four-piece oil ring which is the main oil ring, and that the instruction on which Glennon relied stated that the four-piece oil ring went in the lowest groove because the third groove is the lowest groove of a three groove piston. The first two grooves are for compression rings, and it is very important that the oil rings not be juxtaposed with the compression rings. Lawson had doubts about his discharge letter to Pfaff. Just before the hearing before the Grievance Committee he said to Shop Steward Jefferson and another mechanic that he might have to take Pfaff back It is true that on second thought, Lawson then said that he would not work Pfaff. However, this decision not to reinstate Pfaff was not because of any error Pfaff had made. This evidence discloses clearly that Lawson, in issuing Pfaff the discharge letter, was not acting with the motive of reprimanding Pfaff for cause. Pfaff had done nothing in connection with the second rebuilding job that could be considered as cause for discharge or cause for discipline or any kind. The warning letter for errors in Pfafrs work on September 14 was not received by him until September 18, 1969, 2 days after his discharge Again Lawson did not talk to Pfaff about the errors before issuing the letter although Shop Steward Jefferson told Lawson he should. The letter charged Pfaff with failing to adjust properly the arm of the clutch on which he was working, and leaving loose three brackets on the transmission he installed The clutch arm needed an adjustment . Brackets holding the air hose, and not the transmission , as Lawson stated in the letter, were loose. They had to be tightened. Pfaff had installed many transmissions and clutch assemblies , and had not been previously reprimanded by a warning letter. Acting Shop Foreman Lusby adjusted the clutch arm, and tightened the brackets. It took him a half hour. Pfaff testified that he drove the tractor after he completed the work and found no fault with its operations . He also testified that the fueler drove it to the gasoline pump and then to the line for vehicles available for operation the next morning, September 15 There is no testimony that connects the loose air hose brackets with the job Pfaff did on the transmission and the clutch cylinder. Lawson testified that he was satisfied with Pfafrs work of September 14, except for the loose brackets and failure of the clutch because the clutch arm needed adjustment. The loose brackets appeared to be quite serious as Lawson represented them as holding the transmission Pfaff installed . But at the hearing Lawson testified that the brackets held the air hose. As stated, there is no evidence that the looseness of the brackets was due to Pfaff s work. Considered in isolation, the work failures of September 14 were not serious and appear to be the type that call for an oral reprimand rather than a warning letter. But, aside from the other warning letter and the discharge letter, the warning letter of September 15 could be considered as a legitimate reprimand from a maintenance supervisor who insisted on a high level of efficiency in service opera- tions, and who considered even a minor lapse in efficiency to be serious. However, this letter takes on a new dimension when it is considered with the warning letter of September 12 and the discharge letter of September 16. Those two letters were clearly unjustified Considered in a context that also includes those two letters, the letter of September 15 was clearly pretextual and motivated by reasons other than legitimate and substantial business reasons. I find and conclude that the Respondent has not advanced legitimate and substantial business reasons for its warnings to Pfaff of September 12 and 15, 1969, and for its letter of discharge to Pfaff of September 16, 1969. I find and conclude that the preponderance of the evidence shows that Pfaff's discharge was for the reason that Pfaff filed the April 28, 1969, grievance and refused to withdraw it This is clear from the evidence that the discharge followed on the heels of Lawson's request to Pfaff, through Lusby, on or about September 2, 1969, to withdraw his grievance of April 28, 1969, which had been settled by Respondent and the Union on June 30, 1969, but which Terminal Manager Davis refused to finally settle by paying the amount of the settlement to Pfaff; Pfafrs refusal to withdraw the grievance and his threat to file another grievance because of Davis' refusal to pay the amount of the settlement; Lawson's receipt of the information about September 6, of Pfaff 's refusal and threat; Lawson's appearance at the Miami shop of Respondent on September 10, although he had only left there on September 1 to return to his headquarters in Atlanta , Georgia, following a reorganization in supervisory personnel in the Miami shop , Lawson's assign- ment of motor rebuilding work to Pfaff on September 11, although this work had already been assigned to mechan- ic Snyder, and although Lawson knew that Pfaff had only limited experience in this work and had not previously been assigned such work during his 14 months of employ- ment, and Lawson's pretextual reasons for warning Pfaff in his September 12 letter in regard to this work; Lawson's second assignment to Pfaff of motor rebuilding work on September 15, and his pretextual reasons for finding fault with the way Pfaff did this work; and the pretextual reason for the warning Lawson gave Pfaff on September 15 for the work Pfaff performed on September 14.24 The right to file a grievance stems from the Act and from the collec- tive-bargaining contract between Respondent and the Union. Interference with the right to file a grievance pursuant 14 NLRB. v Great Dane Trailers, 388 US 26, 34, Kamp Togs, Inc., 148 NLRB 196, N.LR.B v Tru-Line Products, 324 F 2d 614, 616 (C A. 6), enforcing 138 NLRB 964, cert denied 377 U S 906, N.LR.B v D'Armigene, Inc, 353 F 2d 406, 409-41 1(C A 2), enforcing 148 NLRB 2, NL R B v WTV.J, Inc., 268 F 2d 346, 347-348 (C A 5), enforcing 120 NLRB 1180, and Ames Ready Mix Concrete, Inc., 170 NLRB No 174, enfd, 411 F 2d 1159, (C A 8) 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a collective-bargaining contract and the discharge of an employee for filing a grievance pursuant to a collective- bargaining contract constitute a violation of Section 8(a)(1) of the Act.26 For the foregoing reasons, I find that Respondent violated Section 8(a)(1) of the Act by discharging Pfaff in reprisal for engaging in the protected activity of filing a grievance, pursuant to a collective-bargaining contract between Respondent and the Union, and refusing to withdraw it, and otherwise interfering with, coercing, and restraining Pfaff for his filing and processing of the grievance, and refusing to withdraw it IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V. THE REMEDY Respondent has been found to have discharged Walter Pfaff for discriminatory reasons under the Act. I shall recommend that it be ordered to cease and desist from engaging in such conduct, and to take the affirmative action specified to effectuate the policies of the Act Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent discriminatorily discharged employee Pfaff on September 16, 1969, in violation of Section 8(a)(1) of the Act in reprisal for filing a grievance pursuant to a collective-bargaining agreement and refusing to withdraw it 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing facts and conclusions of law, and upon the entire record in the case, I recommend that the Board enter an order requiring Respondent, its officers, agents, successors, and assigns, to: 1 Cease and desist from: (a) Discharging or in any manner discriminating against employees in reprisal for the filing or processing of griev- ances pursuant to the terms of a collective-bargaining agree- ment, or refusing to withdraw them " D C International, Inc, 162 NLRB 1383 (b) By like or related conduct, interfering with or restrain- ing or coercing employees in the exercise of rights to self-organization, to join or assist the Union, or any other labor organization, to bargain collectively through represent- atives of their own choosing, and to engage in other concert- ed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Offer immediate and full reinstatement to employee Walter Pfaff to his former or substantially equivalent employment, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of 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 any net earnings during such period, in accordance with the formula in F. W. Woolworth, Company, 90 NLRB 289, together with interest at 6 percent per annum computed in accordance with the formula in Isis Plumbing & Heating Co., 138 NLRB 716. (b) Notify the above-named employee, if presently serving in the Armed Forces of the United States, to his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military and Service Act of 1948, as amended, after discharge from the Armed Forces. (c) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and material to Respondent's compliance with the provisions of this Order (d) Post in conspicuous places at its terminal in Miami, Florida, including all places where notices to employees are customarily posted, copies of the notice attached hereto as Appendix 26 Copies of said notice on forms provided by the Regional Director for Region 12 of the National Labor Relations Board shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter in such conspicuous places Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material. (e) Notify the Regional Director for Region 12, in writing, within 20 days from the date of the receipt by the Respond- " 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 said Rules and Regula- tions, 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 National 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 " TERMINAL TRANSPORT COMPANY, INC ent of this Trial Examiner's Decision and Recommended Order what steps the Respondent has taken to comply therewith 27 It is further recommended that unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision and Recommended Order the Respondent notifies the Regional Director in writing that it will comply with the foregoing Recommendations, the National Labor Rela- tions Board issue an order requiring the Respondent to take the action aforesaid. " In the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or in any manner discrimi- nate against employees in reprisal for filing or process- ing grievances pursuant to the terms of a collective- bargaining agreement, or refusing to withdraw them WE WILL NOT engage in like or related conduct that interferes with, coerces, or restrains employees in the exercise of their rights to self-organization, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities 687 for the purpose of collective bargaining or other mutual aid or protection WE WILL offer immediate reinstatement to employee Walter Pfaff to his former or substantially equivalent employment, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him with interest at 6 percent per annum Dated By TERMINAL TRANSPORT COMPANY, INC (Employer) (Representative) (Title) NOTE. We will notify Walter Pfaff, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 826, Federal Office Building, 51 S.W. First Avenue, Miami, Florida 33130, Telephone 305-350-5391.