Robertson Tank Lines, Inc.

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robertson Tank Lines, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Southern Conference. Case 23-CA-2898 January 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On August 30, 1968, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent, General Counsel and Charging Party filed exceptions to the Trial Examiner's Decision with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and 'We find no merit in Charging Party's exception which in substance asserts that Respondent maintained an unlawful no-solicitation rule, as this matter was neither alleged in the complaint nor litigated at the hearing. There is insufficient evidence to support the Trial Examiner's factual finding that "[o]n November 15, while W P Brown was outbound with a load, Brock passed him inbound toward Baytown in the opposite direction near Katy, about 25 miles from Houston, shortly after Brock made a U-turn in the road, chased and overtook Brown near Katy, flagged him down, and solicited him to join the Union " The record merely establishes that Respondent introduced as part of an exhibit a memorandum relating a report to that effect. Nor is there sufficient record evidence to support the Trial Examiner's factual finding that on the morning of November 19 when he called Cooper, Stautzenberger saw the workcard covering the November 17 job performed by Walters However, there is substantial evidence that at that time Stautzenberger had full knowledge of Walter's performance on that particular job. These findings are accordingly corrected hereby orders that the Respondent, Robertson Tank Lines, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This case was tried before me at Houston, Texas, on February 27 through March 4, 1968, with all parties participating in the trial through counsel. The issues are whether Respondent, Robertson Tank Lines, Inc., (1) coerced its employees by threats of loss of benefits if the above-named Union succeeded in organizing said employees, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act), and (2) discharged and refused to reinstate three employees for cause, or for concerted activities on behalf of said Union in violation of Section 8(a)(3) of the Act. The issues arise on a complaint issued December 29, 1967, by the General Counsel of the Board through the Board's Regional Director for Region 23,' and answer of Respondent which admitted jurisdiction but denied the commission of any unfair labor practices. At the close of the testimony all parties waived oral argument but filed written briefs which have been carefully considered in preparation of this Decision. Upon the entire record in the case, and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS, AND THE STATUS OF THE UNION Respondent is a Texas corporation operating as a motor common carrier of commodities in bulk, with its principal office and place of business located in Houston, Texas. In the 12 months before issuance of the complaint, Respondent in its business performed services for customers located outside Texas of a value exceeding $50,000, and in the same period it had direct inflow of goods valued in excess of $50,000. Respondent admits, and I find, that it has been and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The above Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A The Union Campaign The Union began a campaign to organize Respondent's drivers and maintenance employees in October 1967, when Conway D. Brock, Sr , a driver stationed at Respondent's main terminal in Houston, sought out the Union for help in organizing the employees. On November 1, 1967, Brock obtained blank union authorization cards, one of which he signed the same day, and thereafter began to solicit other employees to sign them. The Union on November 1 sent Respondent a letter advising it of the organization drive, warning it of provisions of the Act guaranteeing 'The complaint issued after Board investigation of a charge filed by the Union on December 1, 1967 174 NLRB No. 47 ROBERTSON TANK LINES, INC. employees' rights and forbidding Employer interference with such rights, and notifying it that Brock had signed a card and was engaging in union activities protected by the Act. It also stated it would from time to time advise Respondent of other employees who engaged in such activities and signed similar cards, with a view to giving the Union majority status and enabling it to request negotiations for a contract in a unit consisting of drivers and maintenance employees "systemwide." On November 10, 1967, Respondent circulated a letter to all employees, advising them of receipt of the Union's letter, and stating that it opposed a union in its operations and would oppose its organizational efforts by all legal means, gave them some cautionary advice about signing union cards, and talked about the background and character of the Union's president. There is no claim that this letter in any way violated the Act, but it makes clear Respondent's antiunion animus and its determination to work actively against the Union's campaign by all legal means. To show further animosity toward the Union including a probability of retaliation against employees for adherence to it, General Counsel adduced testimony of shop mechanics Milton E. Walters and Jack Houston (whose discharges are considered below) to the effect that: On the night of November 14, Walters and Houston ate lunch on second shift at the Houston terminal with mechanics Elvin Bruce and Don Bailey and Night Shop Foremast Gus Stautzenberger. One of the group brought up Respondent's November 10 letter to the employees, and during general discussion about it and the advantages of the Union, Stautzenberger said he was against the Union "all the way" and did not want it to come into the Company, but if it did, the men would probably lose their safety and Christmas bonuses, and their Provident Fund.2 Walters replied that this made no difference to him, he would still vote for the Union. Houston commented that, while he was not organizing for the Union, he would vote for it in an election. Stautzenberger categorically denied that he was present or made the above remarks, stating he normally eats in his office in order to be able to answer the telephone readily. He is corroborated partially by Bruce who admitted the general discussion and the remarks of Walters and Houston favoring the Union, but testified that Stautzenberger was not present at the time in the lunchroom but was elsewhere in the shop, helping a foreman from another shop, Fred W. Williams, load parts into his car. Bruce also said that in the discussion Houston commented he had left a $3.65 an hour job with another concern to come to work for Respondent at $2.65 an hour, and Williams replied that he was "crazy" to do that. Williams corroborated Bruce about Houston's comments and his own reply, and the absence of Stautzenberger, saying the latter helped him load parts in his car after Williams left the lunchroom. However, Williams" impression was that, the group discussion was about an hour later, at a coffeebreak, and that the Union was not mentioned at all. It must be noted that both Walters and Houston were union sympathizers who claim they were both discharged in violation of the Act, so that their testimony was undoubtedly colored by partisan considerations and mutual self-interest. When he testified Williams was no longer employed by Respondent, which enhances his credibility, but his story does not fully corroborate that of Bruce, as he places the crucial discussion at a different hour, with no talk of the Union at all, hence he does not credibly contradict the union mechanics on the alleged presence and remarks of 269 Stautzenberger earlier, or their remarks favoring the Union. In addition, Bruce was confused as to the exact date of the discussion, and admitted he was present only during the first part of the discussion. On balance I conclude that the weight of credible evidence supports the versions of Walters and Houston, and I find the whole conversation including Stautzenberger's remarks on the basis of their testimony. As Stautzenberger was an admitted supervisor, I conclude that his remarks are chargeable to Respondent, which thereby coerced employees by threats of economic reprisal for activity which might bring the Union into the plant, in violation of Section 8(a)(1) of the Act. In addition, the remarks of Walters and Houston favoring the Union advised him, and hence Respondent, that they were union sympathizers, although not active union organizers. B. Discharge of Conway D Brock, Sr. Conway D. Brock, Sr., was hired by Respondent in December 1955 and worked continuously for it as a truckdriver until discharged on November 20, 1967. In the year or so before discharge he had been operating a large tractor-trailer unit out of the Baytown terminal, hauling asphalt from plants of various customers in or near Houston to other points in Texas. Early in October 1967 Brock contacted the Union about organizing employees of Respondent, held a meeting with union officials in Houston about October 15, and on November 1 received blank union authorization cards for distribution, and signed one himself. After October 15 he openly solicited other drivers for the Union, and after November I he solicited many to sign cards, as found hereafter. Thus, about midnight of October 29, Brock caught up with driver William P. Brown on the highway about 5 miles east of Katy, Texas, while both were driving westward from Baytown with loaded trailers, and flagged Brown to a stop at an isolated point on the highway by flashing headlights at him. When Brown stopped, thinking something was wrong with his rig,3 Brock solicited him to join the Union by signing a card. Just before Halloween, former driver Thomas L. Cox and Brown were returning to Baytown from a long trip and stopped their rigs for coffee at a cafe in Weimar, Texas. Brock came in and joined them shortly, arguing with Brown, and soliciting both and other drivers for about 30 minutes to join the Union. Brown reported the October 29 incident to Baytown Terminal Manager Robert R. Cheek the afternoon of the 30th and shortly after to Personnel Director George Lanier; Cheek also discussed the incident with Lanier the same day. About the same time Cheek got voluntary reports from several other drivers of similar solicitations of them on the road by Brock.' It is clear from these facts that Respondent was well aware of Brock's union activity as early as the latter part of October. I also find from credited testimony of Brock and Cheek that from November 1 up to his discharge, Brock openly solicited drivers for the Union at truck stops, loading points, and terminals of Respondent, This is a profit-sharing trust to which employees may make fixed payments and the Employer contributes a share of profits, and from which employees receive fixed payments upon retirement. 'It is customary for over-the-road drivers with large units to flash headlights on and off if they see another truck, particularly one from their company, traveling abnormally , so as to warn that driver to stop and check his unit. °I find these facts from credible testimony of Brown, Cox (who was 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD both orally and by telephone, and that Respondent received continual voluntary reports of his activities from drivers who had been so solicited. During Brock's tenure and at time of discharge Respondent had issued to drivers a Driver's Operating Manual containing a company rule which provided that employees would be disciplined for "unauthorized use of equipment," and had actively enforced violations of that rule by outright discharge for first violations. Brock was well aware of the rule and adi.iitted he knew of several past instances of discharge of drivers for its violation, The record also shows clearly that Respondent had discharged at least 16 drivers for its violation since 1959, and I am satisfied and find that during his 12 years of service Brock knew the rule was actively enforced by the discipline of discharge. Respondent claims that it discharged Brock on November 20, 1967, for recent violations of this rule, the last one which precipitated actual discharge occurring on Friday, November 17, 1967. The record shows that from November 1 to 15, Lanier got numerous voluntary reports from drivers of similar activities by Brock while on the road. Thus, in this period Brock stopped one or more times at a regular rest and food stop in Weimar, Texas, while returning empty to Baytown, to solicit W. P. Brown and other drivers, who were eating there; on one of these occasions he left the cafe before the others and was shortly observed by Brown driving in the opposite direction about 15 miles further east toward Baytown, following another company truck. On other occasions Brock was reported to have stopped at rest or food stops at Rosenberg, Luling, Humble, Flatonia, Weimar, and other points in Texas, to solicit drivers; each location was a more or less regular stop for company drivers while on regular outbound or return runs from or to Baytown. On several occasions he continually solicited a driver at rest stops, when driving outbound with a load in convoy with that driver, during which the two normally stopped together at the same places for rest, food, etc. On November 15, while W. P. Brown was outbound with a load, Brock passed him inbound toward Baytown in the opposite direction near Katy, about 25 miles from Houston; shortly after Brock made a U-turn in the road, chased and overtook Brown near Katy, flagged him down, and solicited him to join the Union. About the same time Brock stopped at a regular cafe stop in Weimar while inbound to Houston to solicit Brown and other drivers eating there, and then left before the others, apparently to resume his return run; shortly after, while running toward Houston, Brown saw Brock near Columbus driving in the opposite direction and following and overtaking another truck driven by Cox. Apparently, the November 15th flagging of Brown was noticed by another driver, M. Adams, who reported it to Tom Clowe, assistant to the Houston general manager, Edward 0. Gaylord.' As Clowe considered a U-turn on a main highway dangerous handling of company equipment, he sent Lanier on November 15 a memo suggesting investigation of the incident and steps to have such use of called by General Counsel), and Cheek. I do not credit Brock 's denial of the Katy incident, or his testimony that he did not begin active solicitation of drivers at truck stops and elsewhere until November 3, for he did not deny specifically Cox's testimony, and my own appraisal of Brock's demeanor on the stand indicated clearly that he was a very aggressive, self-confident, and argumentative person, who was undoubtedly an outspoken solicitor for the Union , so that I consider it more likely than not that, after his first contacts with the Union early in October, he did not wait until November 1 , when he got blank cards, to try to recruit drivers for the Union by oral solicitation wherever he encountered them equipment by Brock stopped. Lanier, the same day, sent Baytown Manager Cheek a memo indicating receipt of reports of risky U-turns and chasing of drivers by Brock for personal business, in violation of the company rule; he advised that since Respondent was on notice that Brock was represented by a union, the Company could not handle the problem directly [with Brock because the Union was not a proper legal representative to handle any intracompany business, and that this left Respondent no alternative but to terminate Brock if he continued to operate equipment in this way in violation of company rules. I find that Respondent was entitled to rely on the numerous reports of] Brock's activities found above, since the record shows all of them came voluntarily from drivers accosted by Brock, none were solicited by management, and their truth is attested by Brock's frank admissions of constant union solicitation, which he justified by saying that "his time was his own" on a return trip, so long as he brought his rig into the terminal safely and within a reasonable time. On Friday, November 17, while returning eastward from a long run to Devine, Texas, Brock saw several Robertson rigs opposite a cafe at Luling on the north side of the road. He drove past, and circled his unit to come back to the cafe. After parking and looking in the other tractors for the drivers, he entered the cafe, ordered coffee, and solicited drivers John M. Kirby and Kenneth Haas to join the Union. He spent about 15 to 30 minutes in the discussion, then reentered his rig and resumed the return trip. Luling was not a normal rest stop for him (though it was for other Robertson drivers), as he had never stopped there before, so it is clear that he deliberately stopped there this time to solicit the Robertson drivers and incidentally drink coffee He drove about 40 miles further east to Flatonia where he saw at least one Robertson rig parked on the opposite side of the road at a cafe which was a regular stop for company drivers. Finding no place to park off the eastbound lane, he drove onward several blocks to a crossover in the two-lane road, made a U-turn, and drove back to the cafe where he parked next to other company trucks and a large van. He entered the cafe, ordered a meal, and while eating solicited driver A. J. Pate to join the Union. When he left the cafe after eating, he saw driver Claude Brown, with Terminal Manager Donald W. Cranfill, drive up and park a company rig on the shoulder across the road. As they walked across into the cafe, Brock entered his.rig, and they saw him drive it in a wide U-turn around the large van and into the highway until he was heading east, and drove away. When making the U-turn he drove his rig slowly in a low gear, but did not make any stop for observation of traffic before entering and crossing the highway while completing the U-turn. Brock drove east about 22 miles to Weimar, where he stopped for another cup of coffee at a cafe run by a friend, which is also a regular rest stop for Robertson drivers. After staying there "not over an hour" without seeing any other company drivers, he continued his return trip to Baytown terminal.' Kirby reported the Luling solicitation to Baytown Manager Cheek when he returned later that day, but when 'I do not credit testimony of Brock and Cox denying the November 15th incident, in light of Brock's admissions of constant solicitation of drivers from and after November 3, both on outbound and inbound runs, and considering the fact that Cox, while no longer employed by Respondent, was admittedly a union adherent while so employed during this period, and also admitted some union activities of Brock at this time. 'The events of this trip , aside from the events at Flatonia, are based on ROBERTSON TANK LINES, INC. 271 Cranfill reported the Flatonia incident to Lanier at Houston, he recited only Brock's maneuver with his rig, which alarmed him as reckless handling of equipment; he asked Lanier what the company policy was on making U-turns on high-speed highways.' At Lanier's request, Cranfill and Brown signed written reports of the incident. As soon as he got the reports, Lanier talked to Clowe and Cheek about them the same evening, and the three agreed that some action against Brock was necessary, so they arranged a meeting for Monday noon, November 20, with Gaylord. At that meeting, attended also by James M. Robertson III, an administrative assistant, and John Crow, assistant to Lanier, they all reviewed the written reports in light of the Clowe and Cheek memos of the 15th, and prior reports from drivers on Brock's activities. They decided to discharge Brock for unauthorized use of company equipment for personal business in violation of the company rule cited above. Final checks for Brock's pay, safety awards, Provident Fund credits, and his termination record, were immediately prepared, and Cheek took them to the Baytown terminal, where he telephoned Brock at home in the afternoon, asking him to report to the terminal at once.' Brock asked if he could bring someone with him, such as an attorney Cheek said, no, as this would be just a talk between the manager and the driver, that Brock would not be represented by anyone else. Brock said he would call back in 15 minutes and tell him whether he would come in. Shortly thereafter he called and said he would come in. He came to Cheek's office about 5 p.m. and acted very nervous. Cheek asked why he was nervous, and Brock replied he was afraid "for his life," had never been so afraid in the last 30 days. Cheek said he need not be afraid in that office, asking, "What is the worst thing that I could do to you?"; Brock did not answer, so Cheek said "The worst I could do is terminate you" and Brock said, yes. Cheek said that was what he had called him in for, to say he was terminated. Brock asked why, and Cheek replied he had been seen using a company vehicle to make a U-turn to come back to a cafe for his personal business. Brock asked where it occurred and who had reported it, but Cheek did not explain. Brock then said he had turned back to a cafe, but that "I did not go back very far." Cheek said his money was ready, and gave him his final checks. At Cheek's request, Brock turned in a gasoline courtesy card and signed the termination slip which stated that he was terminated for "using company equipment for personal usage."' credited admissions of Brock , the happenings at Flatonia are based on credited testimony of Claude Brown and Cranfill, as corroborated in part by admissions of Brock. I do not credit conflicting testimony of Brock tending to show that, when leaving Flatonia, he made a "box -type" turn from the cafe into the eastbound lane, with one sharp right angle turn off the highway, then a full stop at right angles to it to watch for traffic both ways, and another sharp right angle turn on the highway itself to bring himself into the eastbound lane, for the physical dimensions of the two highway lanes (22 feet wide overall), compared with the 55-foot length of his rig, would make such a precise maneuver impossible, and I am also satisfied from his admissions that he often made U-turns on highways to find parking at rest stops, that it is more likely than not that on this occasion-he made a casual and real "U-turn" into the highway without stopping for traffic 'Interstate Highway 90 at this point is only a two-lane road, 22 feet wide, with no protective median strip, and a 60-mile per hour speed limit. Cranfill, as the new manager of the main Houston terminal, was making the run with Claude Brown in order to familiarize himself with driver operations As one of his duties was to maintain company rules on safe operation of equipment , he was watching during this run the operation of any Robertson rigs he saw, and in the normal course he was required to In light of Respondent's admitted union animus, made known to employees about November 13, its discharge of the sole employee union organizer, whose union activities were well known to it, within a week for an alleged unauthorized personal use of his rig which involved open solicitation for the Union, raises a prima facie case of discriminatory discharge which requires Respondent to adduce cogent proof of discharge for cause to rebut the inference of discriminatory motive It is clear from the record that on at least three occasions after October 30, Brock had deviated from the normal course of inbound runs to reverse the direction of his rig by U-turn to follow and overtake drivers, or to go back to a rest or food stop, to solicit them for the Union. In each instance of a cafe stop, although he ordered and drank coffee pro forma as at any such stop, he spent most of his time in the solicitation. Hence, it can be inferred that, absent the turnaround for that purpose, he would have continued on to Baytown without the need of making two extra U-turns or other turnaround maneuver. It goes without saying that any U-turns on a high speed highway with a 55-foot long behemoth like the rig Brock was driving constitute more of a hazard to his own equipment and others driving on the highway, than if he had made stops merely by drawing off to the right side of the road, and then reentering it in the same direction in careful fashion. Hence, to the extent that Respondent was influenced in the discharge by the factor of unnecessary U-turns to engage in the personal business of union solicitation, particularly the November 17 incident when at least one such turn was made without a precautionary stop prior to actual entry on the traveled highway lanes, it must be said that Respondent presents a cogent case of discharge for cause, particularly since this discharge was only one in a series of discharges for unauthorized use of company equipment during the past 10 years. The inference of this motive as the salient factor is further supported by the fact that the personnel department cited on November 15 the unauthorized use, including risk to the equipment, in violation of the company rule, as ground for discharge if Brock continued such violation, and actual discharge 5 days later, after review of the facts, for the November 17 repetition of the violation, all of which appears consistent with basic past practice in enforcement of the unauthorized use rule. However, these facts lose much force in light of other significant circumstances: 1. First, it is patent that Brock's use of equipment for union solicitation appeared to be a far less serious violation of the rule, overall, than any prior cases of unauthorized use. The record shows that, in prior discharges therefor, the drivers had in some cases driven rigs far out of the normal course of a run, either outbound or inbound, thus consuming far more fuel and time than report and write up any violation of safety rules he observed Hence, his report to Lanier on this incident appears to have been in the normal course. There is no proof that he knew beforehand of Brock's run, nor that he was deliberately observing his operations for any special purpose 'Brock had been assigned on Sunday , November 19, by the Baytown dispatcher to make an asphalt delivery to Moore, Texas, at noon on the 20th, and Brock' s usual routine for that run was to leave the loading platform at Houston late the night before. He was sleepmg at home on the afternoon of the 19th, when the dispatcher called him about 7.30 p in. and said Cheek had telephoned an order not to dispatch Brock until further notice, so he was taking him off the Moore run. Hence, Brock was still at home when Cheek called him on the 20th 'The events of November 17 through 20 recited above are found from credible and mutually corroborative testimony of Lanier, Cheek, Brock, and documentary evidence. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD usual; in some cases they had detached tractor from trailer, parking the latter in unusual places and using the tractor as a passenger car for personal use, such as drinking bouts, transportation of relatives, or social calls, for long periods of time, which resulted in late deliveries of material or otherwise deprived Respondent of normal use of the equipment; other cases involved keeping rigs at home for extended periods without advising the dispatcher, so that loading of the tanks and delivery of material were substantially delayed; in a few cases the driver lied about the use of equipment during investigation of the reasons for its absence; in a few instances the diversion of a tractor for social purposes such as drinking resulted in accidents or internal damage to the equipment. The salient factor in all of these cases was a flagrant or gross misuse of it for personal purposes which resulted in some substantial or measurable detriment to Respondent in the operation of its equipment and its business. In contrast, none of Brock's personal use of the equipment for solicitation purposes resulted in delays in deliveries, or in return of his rig so late as to prevent its use in normal course, or in any damage to equipment. Most of his solicitations occurred at normal rest or food stops, where drivers could talk to other drivers about anything; and Respondent admitted at the hearing that personal talk about union matters at such stops was not prohibited by any company rule or policy, provided Brock at the time was following his normal route. This narrows Respondent's complaint to Brock's maneuvering of his rig through extra U-turns on highspeed highways, as well as chasing and stopping other drivers, to engage in union solicitation. While extra starts and stops enroute for this purpose at other than normal food or rest locations obviously tend to put more strain on his rig, Respondent received no reports, and does not contend, that such stops violated any company rule, if no evidence of risky or unsafe handling of or damage to the rig appeared, or detriment to Respondent through delay of delivery or return of the rig to the terminal was involved; and since no evidence of this was reported by drivers, or otherwise came to Respondent's attention, this reduces such stops for solicitation to mere technical violations of rule 4, far different from the gross misuse of equipment involved in other discharge cases. The sole substantial proof of potential damage to Respondent is also reduced to the extra U-turns by Brock when he turned back to solicit drivers at a rest stop already passed, or to chase drivers for that purpose. Lanier testified that such maneuvering, being unnecessary to his work, could increase cost of operation of the rig on that particular trip; but, Respondent produced no proof that any of these extra turns appreciably increased operating costs or effectively diminished Respondent's profit from the trip, or Brock's share thereof. In addition, it is significant that no driver named by Lanier as reporting on Brock's conduct made any complaint or reported any facts indicating unsafe handling of his rig or any actual hindrance to them in their assigned work through Brock's solicitation; almost all complained only of irritation at Brock's solicitation, which often resulted in heated arguments and thus annoyed them. Hence, this narrows the basis for his discharge to his double U-turn at Flatonia on November 17, with no cautionary stop before entering the highway on the second, and leads me to find that the conclusion in the Clowe report of November 15 that Brock had operated unsafely once in turning to chase W. P. Brown, and Lanier's conclusion of the same date that such operation violated safety rules as well as the company rule against unauthorized use, were not supported by the facts to an extent that warranted discharge under Respondent's past and present disciplinary practices. 2. From the standpoint of safety alone, which is one of the most potent considerations in the transportation industry, Respondent's own treatment of the reports on Brock's activities show that before the November 17 incident it had never considered Brock's handling of his rig alarming. I have noted above that drivers reporting on his recent activities did not indicate he handled his rig unsafely. Although Lanier indicates that some of their reports appeared to raise doubts about the safety of his operations,'0 he admits he made no effort to talk to Brock about it. One of Lanier's main duties was to talk to drivers individually as well as at safety meetings about their driving habits, in order to correct bad habits and improve their driving ability and safety of operation, especially where reports of unsafe operation had come to his notice; hence his failure to talk to Brock even privately after getting these reports is potent proof that he received no evidence that Brock was endangering equipment. He admits drivers reporting on Brock gave at most their opinions about his driving, and that his chasing of other drivers and some unnecessary flagging down of other rigs were not necessarily unsafe operations or reckless driving, "depending on all the circumstances", but Lanier did not query drivers to get "all the circumstances" which might indicate safe or unsafe driving. Hence, it appears Respondent did not have even minimal evidence of unsafe operation which would warrant either the mild corrective action of discussion with Brock, much less the conclusions and suggestions of drastic discipline in the memos of November 15, or possible discipline for violation of company safety rules or policy. Lanier admits he treated the drivers' reports, particularly the earlier ones, as "routine matters" of "no special importance" such as to require statements from the drivers, further investigation, or action against Brock. He explains this lack of concern about the reports by saying no supervisor was "involved" in any of the incidents. This circumstance, plus the obvious contrast in its handling of the November 17 incident where Supervisor Cranfill'was "involved," shows that Respondent was not concerned about Brock's handling of equipment while engaged in union solicitation before November 17, and impels the inference that the Lanier memo of November 15, insofar as it suggested possible punishment for continued unsafe handling of equipment, had no basis in fact and was thus more indicative than not of a preliminary step in a management plan to build a pretext case for Brock's discharge, where the outstanding factor was his continued and persistent solicitation of drivers enroute for the Union. Considering the November 17 incident alone, while I have found evidence of risky operation in the second U-turn into the highway without stopping, it is notable that, according to Lanier, Cranfill did not directly charge that this maneuver was dangerous or even risky, but merely asked what company policy was on such operation, as he felt it was "alarming."" Yet, Lanier did nothing to warn a valuable driver like Brock against repetition, although it was the first recorded incident in 12 years of careful driving, as outlined below This warrants the inference that Brock's driving on November 17 was not "For example, W. P. Brown's report of seeing Brock drive his rig empty the wrong way on a highway, andotherdrivers' comments about his chasing rigs on highways in an outbound direction, while he was running empty "While Cranfill was properly on watch for all aspects of driver ROBERTSON TANK LINES, INC. 273 the real reason for discharge, but only a pretext i' 3. The remaining technical violation of rule 4 inherent in Brock's personal discussions with drivers, taking the form here of union solicitation while enroute, had never before been considered by Respondent as grounds for discipline of drivers under any company rule or policy. A plausible reason for this lies in the credible testimony of witnesses of both sides that Respondent has always been lenient and flexible about the nature and extent of drivers' personal practices while on the road. The main duty of a driver is to drive his rig from the terminal and pick up loads, in time to make delivery at the time and place required by the customer, and to return to terminal by the shortest feasible route within a reasonable time thereafter, usually (before midnight of the day of delivery or the day following, depending upon the length of the trip, so that his rig can be inspected and serviced promptly in preparation for the next trip. Aside from these requirements, the driver's movements on the road, including the route traveled and the number, location, and time of stops enroute both ways, are left almost entirely to his discretion. In fact, in the interest of safe driving, Respondent encourages drivers to stop for refreshment, meals, test, or to check condition of their equipment, whenever they feel it necessary in order to keep themselves in proper physical shape to drive alert and safely, and the rigs in proper running condition. No time limits ai a placed on the length or number of stops; if a driver considers it necessary to stop to sleep for periods up to 10 hours, or to make extra stops, he is encouraged to do so," provided he advises the dispatcher at the terminal if the stop might make him late for delivery or delay his return in normal time . In addition, drivers often stop at will at home, or at other than normal stops enroute, usually on return trips, to pick up food or other items for personal use or that of other company personnel including officials; while Respondent does not specifically permit this, it in effect condones it in that it has done nothing officially or unofficially to prevent it, for it did not have inspectors on the road checking on movements of drivers, and there is no proof that it had ever disciplined drivers for transacting such personal business enroute, provided they made deliveries on time and returned to terminal within a reasonable time." The reason for this lenient attitude clearly lies in the fact that the pay of most drivers, and asphalt drivers in particular, was a percentage of the revenue of their trucks from each trip." operations during this "training" run with Brown, the written reports of neither gave details on Brock's operations that day. Driver Pate was interviewed by Lanier and gave an oral report, but never a written statement , and he did not testify at the hearing Lanier admits he only secured from him confirmation of the union solicitation at the cafe ''Lanier says he gave orders that Brock should not be interviewed or warned about his actions , because of the Union's letter about him, which indicated it would represent Brock in any dealings with Respondent, and Lanier says Respondent did not recognize the Union as Brock's agent at that point for any dealings with Respondent. However, this excuse appears flimsy, for that explanation did not prevent Respondent from talking to Brock alone, refusing to allow him to have any representative present, when he was discharged. "AII asphalt hauls out of Baytown are intrastate , hence not governed by Interstate Commerce Commission's rules regarding maximun speeds, maximum driving periods, etc. "My finding of Respondent's leniency in use of equipment enroute makes it unnecessary to resolve the conflicts in testimony relating to company policy on parking of equipment by drivers at or near their homes. "Drivers received pay by the hour only for waiting time over 2 hours at loading or unloading points. The reports to Respondent about Brock's activities from October 29 to his discharge indicated that he stayed well within the general ambit of personal activities enroute which Respondent had countenanced in the past. One apparent deviation appeared to be constant solicitation of drivers for the Union, but Respondent admits such action at rest stops is within the area of permissable personal talk among drivers on any subjects. His other notable deviation from routine operation was the making of additional U-turns on the road to chase and solicit drivers, which were not necessary to the performance of his work. However, he testified without contradiction, and I find, that he had often made such turns merely to return for a rest or meal stop at a cafe on the opposite side of the road, and there is no proof that Respondent discouraged or prohibited this, provided it was done safely or without undue risk to equipment.16 The final apparent deviation from normal practice during the November 17th trip, on which Respondent based the actual discharge, involved a deliberate double U-turn to solicit drivers. While this clearly was unnecessary to his return trip, and he made the second turn in a rather reckless manner, it is plain that it did not deprive Respondent of the normal use of the equipment, or cause other economic loss, hence it must fall within the class of personal use enroute which Respondent had not objected to in the past, although it was a technical violation of rule 4." It follows that Respondent's sharp deviation from past disciplinary practice for such violation, in its discharge of Brock therefore, is another potent indication of discrimination, for it was suddenly enforcing the rule in rigid manner against a known union adherent and organizer. 4. The same inference is impelled by the manner in which Respondent investigated his actions and meted out discipline. The Driver's Manual advised drivers that discharges are "controlled by the terminal manager at the terminal" where the driver is stationed, and "discharge will be after a complete analysis of the circumstances of the situation, and shall be justified before the termination is completed." Gaylord testified that during the investigation the terminal manager has discretion to give the driver a chance to explain an alleged violation of rule 4 (or any other rule) before discharge, and that the Manual further states that any employee who feels he had been hastily or unjustly terminated "will have the prerogative of requesting a hearing by the committee" - consisting of a 3-man board chosen from among 5 named officials including Smart, Gaylord, ' and Lanier. Gaylord testified that under these provisions discipline of drivers is usually handled by the terminal manager, including oral warnings before discharge, and Lanier admitted that, while discharge is the authorized discipline for violation of rule 4, the seriousness and extent of violation are considered before deciding upon discharge instead of some lesser discipline, and that even if a man is discharged for a first violation, he can be recommended for rehire "depending on the circumstances." In line with this "At most, the Driver's Operating Manual directed drivers only to "drive defensively" by using sound judgment to stay out of accidents, but Lanier admits that this did not prohibit U-turns as such , but only turns and other maneuvers which might be considered reckless driving under all the circumstances "I find from uncontradicted testimony of Brock that he often stopped at Flatonia for meals, like other drivers, and that on this occasion he found no parking place on the inbound side of the road when he reached the cafe, so had to drive a short distance and U-turn back to the cafe, and that he had often done this in the past when he was unable to find parking space on the right-hand side of the road 27 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice, the record shows that, among the 14 other rule 4 discharges delineated in the testimony, in 2 cases written or oral explanations were procured from the driver himself and considered before his discharge, 2 drivers received one or more warnings about violations before discharge, and at least 2 drivers (Raymond David Moss and Eugene Paterson) were rehired, one of them 3 times, after flagrant personal use of equipment which caused proven loss to Respondent during such use. Most of these discharges were handled directly by the terminal manager In contrast, Brock was never given any warning by his manager or other official for the claimed repeated violations of rule 4, or his alleged dangerous driving, his opportunity for explanation of his conduct was limited to the short remark about the extent of his turnaround on November 17 in the final interview with Cheek, during which Cheek refused to give him any information on the place or details of the violation, and did not remind him of his right to consideration by the "review board"; and there is no proof that Respondent ever considered him for rehire, despite the single technical but otherwise harmless violation. The salient fact is that Respondent was content apparently to receive only a partial account of his conduct, and was not interested in hearing both sides. Although there is no proof of the driving or earning ability of the other discharged drivers, which would assist in comparison of treatment, the record clearly shows that Brock was outstanding in a total force of nearly 400 drivers, in point of general deportment, driving ability, safety record, and earning ability.18 The marked disparity between Respondent's summary and drastic discharge of a very valuable employee for a single technical rule violation, and its far more lenient treatment of other drivers guilty of far more serious violations of the same rule, none of whom had engaged in any union or concerted activity, persuasively impels the conclusion that his discharge was not for his comparatively minor rule violation but for his known union activity. In light of Respondent's clear union animus, this disparate treatment also impels the inference that in these circumstances, Brock would probably not have been discharged, absent his union activity. Considering all the factors and circumstances pro and con," I am constrained to conclude that Respondent has not sustained the burden of going forward with evidence sufficient to overcome the prima facie case of discrimination shown by General Counsel, and that General Counsel has on the entire record sustained the ultimate burden of proof by a preponderance of credible evidence that Brock was discharged because of his open union activity, and that Respondent's claim of discharge for violation of the company rule against personal use of equipment was but a pretext to conceal the discriminatory motive, and that by such discharge Respondent discriminated against Brock in violation of Section 8(a)(3) and (1) of the Act. 2° "In the last 3 years, including 1968, his profit sharing from his truck earnings averaged about $2500 a year, which was well above the general driver average, and was due in large part to his driving skill and ability, his receipt of the longer, more profitable asphalt runs due to long and unblemished service , and the fact that he had had no chargeable accidents for 12 straight years, and had received increasingly more valuable safety awards annually for 11 years. He was one of only 20 drivers with 12 or more years of service, and 1 of 14 in this group who had perfect driving records He had never received a prior disciplinary suspension or layoff during his whole service "Some other aspects of Brock' s movements on the November 17 trip to Devine, Texas, are the subject of conflicting testimony , and Respondent In reaching the ultimate finding and conclusion, I have considered carefully the circumstances that Brock was at times quite general and at times evasive and argumentative in testimony about his travel practices, and self-contradictory on other points and about details of some of the incidents enroute in which he was involved, but the other circumstances outlined above which support a conclusion of discrimination far outweigh these aspects of Brock's demeanor, testimony and deficiencies of memory, as well as the factor of self-interest and union partisanship. C. Discharge of Milton E. Walters Walters was hired in June 1967 by Houston Shop Foreman Earl P. Cooper as a mechanic at the main Houston shop. After working there 2 or 3 weeks he voluntarily accepted transfer to the Baytown terminal shop, with a pay raise, upon the understanding with Cooper that he could return to Houston if dissatisfied with the Baytown assignment. During his short stay at Houston, he proved to be a good workman who improved in his work, and Cooper had recommended him highly for the Baytown job, as competent to do miscellaneous repair work. At Baytown Walters worked on second shift under supervision of Forman Eddie Lawrence. When Brock began his union solicitation in October, Walters did not engage in any similar or other active organizing work for the Union However, in October he had several talks about it with Al Miller, a dispatcher at Baytown terminal, in which he made it clear that he favored a union, as other members of his family were members of the Teamsters, and he felt there were distinct advantages to the Union, so if it came to a vote in the terminal, he would vote for the Union." I have also found above that Walters expressed prounion sentiments in a talk with Houston Shop Forman Stautzenberger and other employees at the Houston shop on November 14. The record shows Stautzenberger is a supervisor, hence I find that Respondent knew at least on November 14, if not sooner, that Walters strongly favored the Union, although he was not active in its behalf. For the first month or so, Walters' work at Baytown was satisfactory, but in August Lawrence discovered that he began to take more than normal time for repair jobs, so Lawrence talked to him about several of them. In addition, Walters had several heated arguments with drivers about the repair jobs he was assigned to do on their trucks. Toward the last of October, Walters had an argument with Terminal Manager Cheek about a repair job, during which Cheek suggested he suspend work on it until he could get advice from the more experienced Lawrence. Walters resented this, feeling Cheek did not have proper confidence in his ability, but nevertheless sought advice from Lawrence, who merely confirmed Walters' diagnosis of the cause of the trouble and proper intimates in its brief that some movements are open to question, but I make no finding thereon because Respondent did not cite or rely on them at time of discharge, and even if I found that some of his acts were not strictly in line of duty, the salient fact is that they did not prevent him from making his delivery on time or returning to Baytown within reasonable time, as required. 10Frosty Morn Meats, Inc. v N.L R.B., 296 F 2d 617, 621 (C A. 5); Alamo Express, Inc, 170 NLRB No. 26, Houston Cartage Company, Inc., 2 NLRB 1000, 1005, 1006; N L.R.B v Longhorn Transfer Service, Inc, 346 F.2d 1003, 1006; Jackson Packing Company, 170 NLRB No. 155. vI find the Miller talks from uncontradicted testimony of Walters, as Miller did not testify ROBERTSON TANK LINES, INC. method of repair. Walters complained to Lawrence about Cheek's orders, and said he wanted to leave Baytown and return to Houston, as he did not like Cheek's "attitude" toward him. He also said he wanted more experience on major, complete overhaul work, none of which was done at Baytown, but only at Houston; at Baytown Walters had been doing preventive maintenance and emergency repair work Lawrence said he did not want to see Walters leave, but would not object to his return to Houston. Near the end of October Walters called Cooper at Houston to ask if he could return, as they had agreed. Cooper said he could, and took steps to arrange it, so that Walters was transferred back to Houston on November 6, with no reduction in pay, where he worked thereafter on second shift under Foreman Stautzenberger. At Houston, Walters did repair work assigned to him by Stautzenberger, generally of a wider variety and more complicaled than at Baytown. On each assignment, he used a 1 imecard prepared for that job, on which he recorded his name, punched the times when he began and finished the work, and noted the component parts he used in the repairs. Respondent bases his discharge of November 20 mainly on alleged inefficient performances of two repair jobs after his return to Houston, claiming it was a continuation of poor performance at Baytown illustrated by three specific repair jobs. On the evening of November 14, Walters was assigned to replace a leaking grease seal on the front wheel of a tractor. 'Walters spent 4 hours on the job, and then punched out, and another mechanic spent one-half hour in finishing the job. The next day Stautzenberger examined the timecard, noted the time recorded and that Waiters had not finished the job, and then told Walters he was spending too much time on repair jobs, that he was standing and talking too much and not getting out his work promptly. On November 17, Stautzenberger gave Walters a similar repair job. When he handed the work order to 'Walters at the start of the shift, the latter looked at it and said "Yeah, this is another one of those dirty jobs, pulling an oil seal running in grease, it pours out on the floor, you get it all over you; I will just go ahead and make 4 hours on it." Stautzenberger said nothing in reply, but did follow his progress on the job. Walters actually clocked _3.8 hours on this job Stautzenberger saw the workcard on the morning of November 19th, and at once called Cooper, reciting Walters' action and remarks when given the workcard, and the length of time spent on the job; he also cited the earlier job, and said Walters had been spending too much time in standing and talking and not working, and asked Cooper to talk to Walters, to see what he could do with him. Cooper at once contacted Lanier, reported what Stautzenberger had told him, and said he was undecided what to do, but that he would talk to Walters first, and if he did not "straighten up," he would discharge him. At the start of the second shift that afternoon. Cooper called Walters to his office, told him "you are not the same man you were when you were here before, what has happened to you?" and said his work had become unsatisfactory since he came back from Baytown. He mentioned the two repair jobs on which Walters had taken long periods of time, and asked why. Walters admitted taking the time shown on each, but offered no explanation, merely asking for a chance to "do better" and "square it with you." Cooper then said he would have to let him go, he would have to find another job, and that he should come in Monday for his final checks.22 Later during the shift Walters asked Stautzenberger, "what was the problem?" and Stautzenberger said he did not know, 275 but that he had heard Tom Clowe ( assistant to Gaylord) wanted Walters fired. That evening Walters called Lanier, said he had been fired and could not get a good reason, and asked if it was "over the union business." Lanier said he did not know about the discharge, or the reason, but would check into it and have an answer if Walters would come to his office about 8.30 or 9 a.m. Monday. Walters said he would. He then called Clowe at his home and asked the same question. Clowe replied that he was "kind of in the dark about it, but I will find out something for you." Walters said his wife was upset about the discharge, and Clowe told him not to worry, but that he should come to the office about 9:30 or 10 a.m. Monday after Clowe attended a meeting, and Clowe would have "some answers." On Monday Lanier did check on the discharge shortly after he came in at 7:30 a.m. and was in his office most of the morning, except for attendance at a management meeting. When Walters came to the terminal about 9 a.m., he went to Cooper's office, where the latter said his checks would be ready about 11 a.m. Walters said that was O.K., as he had come down to see Lanier and Clowe. He then waited outside the office building for some time, during which he saw and spoke to Stautzenberger and Maintenance Superintendent Stanley Smart. Stautzenberger told Walters he had come in all dressed up because "they" had called him down there; and when Walters asked Smart why he had been fired, Smart replied, "Don't you know? If I had been Gus Stautzenberger Friday night I would have fired you then and not waited until Sunday." Walters then waited outside the office, without trying to see Lanier or Clowe, until 11 a.m. when Cooper called him in and gave him his final checks and had him sign the termination form. Walters said he would not "let the matter just ride like it was," and Cooper replied that he had a right to see Lanier, Clowe, or Smart. Walters said he was there that morning to see them. Walters then went outside again and' stood near Lanier's office, but did not go in. He waited until lunchtime, and then went home. Walters returned to the shop about 9 p.m. to pick up his tools. While there, Stautzenberger approached and told him, "I hope you don't hold me responsible for what happened here." Walters replied that he felt he was responsible to a certain extent for the discharge, but that Respondent was using Stautzenberger as a "scapegoat" in order to have a reason for firing Walters because of his views on the Union. Stautzenberger said he also felt "they was using me," and then helped him pack his tools. Walters has never returned to the terminal, nor has Respondent ever sought to reinstate him. Respondent's defense is that Walters' work and general conduct began to deteriorate at Baytown, long before the union activity began, and it continued to do so after his return to Houston, culminating in the November 14 and 17 rather routine repair jobs on which he spent unusually long hours, which caused his discharge. It is clear that Walters went to Baytown with the benefit of a strong recommendation from Houston Foreman Cooper, and that for a month or so his work there was satisfactory. "I find this conversation from credited testimony of Cooper, as corroborated in part by that of Walters. Testimony of Walters indicating that Cooper did not cite the work orders and refused to give Walters a chance to explain is not credited, because from my appraisal of the two men on the stand, and considering Cooper's original high opinion of Walters' work, I think it more likely than not that he cited his deficiencies to him in detail, and asked for an explanation, and that Walters refused to give any explanation. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howev i, there is cogent proof that his work and attitude changed. I find from credible testimony of Lawrence and company records, with some corroboration from Walters himself, that- Almost from the beginning, Walters complained about the limited and rather routine type of work assigned to him. He also had several arguments with drivers about truck repairs, and once shortly before November 1st, he had a very heated argument with one driver about what was wrong with his truck, which became so noticeable that Lawrence had to take him aside and talk to him privately to calm him down, and to advise him that he did not like Walters' attitude toward the drivers, saying they all "had to get along" to earn their pay. Walters earlier had an argument with another mechanic, which arose after Walters had tried without success to reassemble a wheel with new bearings, and left the job unfinished, and the other mechanic, Powell, finished the work properly the next day; they argued over it, with Walters accusing the other mechanic of doing "shoddy" work; Lawrence had to talk to both to calm them down; Powell got so angry that he threatened to quit and had to be pacified. Once in October, Walters was assigned to repair a shiftbox in a tractor transmission, but could not make the gear selector work after he reassembled it, so he had to call on Lawrence for help. Lawrence directed Walters to disassemble the shiftbox and recheck it, to which Walters objected, saying that it was working fine. Lawrence then noticed that the box had been reassembled without a necessary original bushing, without which it could never work; so he showed it to Walters, and both men then reassembled the box with the bushing in place, and it worked properly thereafter. On August 31, Walters spent about 8.7 hours on one job, replacing a grease seal on a drive wheel and installing new heater hoses. As Lawrence knew from long experience that this type of work should not take more than 3-1/2 hours, he complained to Walters about the time spent on that job, telling him to expedite his work on such jobs because'the longer he took on them, the longer he kept the equipment out of operation and prevented drivers from making more runs and improving their profit sharing." Walters replied that some jobs took longer to do than others, but that he would try to do better in the future. On ari assignment of either July or August 26, Walters logged 4.6 hours to replace a broken starter switch on a tractor, which normally should take no more than I hour. On October 17, Walters spent 4 hours to dismantle and check over a truck transmission, an operation which normally took no more than 2-1/2 hours. When Lawrence asked him why this took so long, Walters got angry, telling Lawrence he was not qualified to tell him how long it should take; this particular job was done over a period of about 3 days, with another mechanic, Ayers, also working on it. On several iccasions, Lawrence complained to Terminal Manager Cheek about the length of time Walters took on jobs, and his two arguments with a driver and a mechanic. I have already found that Walters quickly became dissatisfied with the limited type of work given him at Baytown, and resented Cheek's remarks and doubtful attitude about his ability as a mechanic. It was The unusual length of this job contrasts sharply with a repair job done by mechanic Powell on September 4, 1967 , in 4 3 hours, which involved basically the same dismantling of a whole wheel assembly with replacement of seals, etc; replacement of heater hoses required on Walters' job normally took about the same time as removal of wheel lugs and installation of new ones, as required on Powell's job shortly after his argument with Lawrence about the transmission job in October, and Lawrence's warning about his attitude after his argument with the driver, that Walters requested transfer back to Houston While it is a fair inference that Walters' work performance at Baytown probably suffered because of his dissatisfaction with that job in general, his arguments with drivers and other mechanics, the warnings he got from Lawrence, and his resentment of Cheek's attitude toward him, the record falls short of indicating that his declining performance was such as to warrant in Respondent's eyes discipline more drastic than the few verbal admonitions given him. Walters gave detailed explanations in testimony to show that the unusually long hours spent on the starter switch and transmission overhaul jobs were caused in the former case by his inability to make the switch work by rebuilding it, which required a trip to Houston to get a replacement from a wrecked truck, all of which added over 2 hours to the normal time for the job, and in the second case he had to dismantle only the rear portion of the transmission (rather than pull the whole unit out intact, which takes less time), to replace defective bearings and accessories, and this was done only after he and Lawrence had discussed it for about 30 minutes, and Lawrence had called Houston to find out whether to pull the whole unit and send it to Houston for repair, or repair it at Baytown; and after the latter course was decided, Lawrence himself worked about 2 hours with Walters to get the rear portion off before repairs could be made I must accept this explanation because Lawrence admitted he did not see Walters working on most of the jobs cited above, and I find from credible testimony of Walters, Houston, and admissions of Lawrence, that in motor repair work some jobs take longer than others, depending on the conditions encountered, including size, complexity, and condition of the units worked on. Lawrence also admitted that Walters' troubles with other workers and poor performance was sporadic, not continuous, and that the work orders of August 26, 31, and October 17 were the only ones he could find to "verify" his complaints to Cheek, out of more than 3 months of Walters' work; it is also significant that he searched for and secured these orders only toward the last of November, when Cheek asked for such proof after the discharge; they were not shown to Cheek at the time of the complaints to him. Cheek admitted that he never took any steps to give Walters warnings or reprimands, and that, while he and Lawrence were disappointed in his substandard performance, they had not reached the point of decision to discharge him, because of Cooper's original recommendation of him It is also significant that they did not suggest or initiate the transfer back, it was Walters' own idea, and they approved it because of Cooper's interest in the man and desire to work with him on his problems. While Walters' performance at Baytown was not considered bad enough to warrant discharge, the lack of discriminatory intent toward him is bolstered by the fact that, even though Respondent probably knew of his union sentiments (as well as of Brock's union activities), it readily transferred him back to Houston in accordance with his agreement with Cooper. However, even with its knowledge of his union sympathies, Respondent still had the right to keep his past deficiencies in mind and to watch to see whether he improved his performance at Houston, where the broad type of work he wanted was available for him. But his performance did not improve. Credible testimony of Stautzenberger and R V. ROBERTSON TANK LINES, INC. Snodgrass (leadman on third shift, whose work on that shift overlapped the second shift about 3 hours) indicates that: After return to Houston, Walters frequently stopped work completely on an assigned job, after Stautzenberger had left the shop between 10 and 11 p.m., and walked out to the parking lot to spend up to 30 minutes talking to a lady in a parked car.x" Walters had never done this while working at Houston before. Snodgrass did not at once report these incidents to Stautzenberger, because he normally did not try to check on jobs assigned to men by the second shift foreman; however he did tell him about Walters' work stoppages after he observed Walters do it the nights of November 14 and 17. Further, Cooper and Stautzenberger testified credibly that as soon as he returned, Walters began to gripe about the work given to him, indicating he would like to choose his own jobs, although the normal practice was to assign repair work to mechanics in rotation, and under this practice Walters was given both simple and more complicated jobs, as they came up in rotation. In the second week after his return he did the jobs of November 14 and 17, which Respondent considered far too long, as found above; and he admitted that, when assigned one or the other, he made the complaining remark indicating displeasure with it and an intent to stretch it out, as I have found above, and his actual clock time of 4 hours for one and 3.8 hours for the other strongly indicates that on one or both he deliberately slowed down his work to vent his displeasure at the assignments. It was but natural that, having warned him after the first job about taking too long, and then noting a similar slowdown on the second after Walters' threat to do so, Stautzenberger would report this at once to Cooper; and when Cooper called him in on Sunday, the 19th, it is also notable that he did not discharge him outright, but only after reproaching him for not acting up to his former standard of work at Houston, citing his two recent delinquencies, giving him a chance to explain them, and getting no explanation, but instead an admission of poor performance implicit in Walters' request to "do better" and "square it with you." The same admission is implicit in Walters' signal failure to make any real attempt to see either Clowe or Lanier, as they suggested, as he verified to Cooper on Monday morning in the 2-hour period while waiting for issuance of his final checks, or to ask for review of his discharge by a board of top officials (which probably would have included Lanier)." To rebut these cogent circumstances, Walters testified in detail about the many steps involved in performing the November 17 grease seal job, including the time spent in finding the tractor to be worked on, moving it into the shop, hoisting it properly, and then disassembling the wheels and other component parts. He indicates that the disassembly was difficult, and he had to get help from another mechanic after appealing to Stautzenberger; he also loss time in finding the proper tools for the job. However, he admits that he took one break of 15-20 minutes when he got "disgusted" with the job, and then "rode the card" for the last half hour noted on the timecard, by using it to clean up and prepare to go home; no supervisor was present in the shop at this time. The job "I do not credit Walters' vague and unconvincing denials of these social talks. "Since he had no hesitancy about seeing Cooper twice in his office that morning, I cannot accept Walters' flimsy excuse for not seeing Clowe or Lanier or asking for a review board , that he waited outside their offices all morning but was not' called in I am convinced he did not try to see them, because he knew he had no answer to his delinquencies which had caused his discharge. 277 was not new to him, as he had performed it two or three times before, but he insists this particular operation took the longest time of any. I cannot accept this explanation because I have found that he was angry when getting it, threatened to stretch it out, was angry while doing it, and finally added a half hour of nonworktime on the card at the end. That he engaged in a deliberate slowdown, or "padded" his timecard, on this job, in protest against its assignment to him, is indicated strongly by his oblique admission of guilt when Cooper confronted him with it, his refusal to give Cooper the detailed explanation of its difficulties which he now states in testimony (although the unusual difficulties, if they existed, must have been much clearer in his mind when talking to Cooper only 2 days later), and his failure to seek the review of discharge by higher management officials to which he knew he was entitled. In addition, I find no clear or credible explanation by Walters of the reasons why he took so long to do the November 14 job. On all these facts, I am impelled to conclude that Walters engaged in a slowdown, or padded his timecard, on both jobs, that Stautzenberger gave him a verbal admonition about it the first time, but when he did the same thing 2 days later, in an admitted deliberate stretchout of the job, Stautzenberger properly reported the facts to Cooper. The latter, as his sponsor, gave him a clear chance to explain away his poor performance and, when he did not do so, discharged him. In light of his past deficiencies at Baytown, his failure to improve and Respondent's action thereon noted above presents cogent proof that he was discharged for cause, and not for his union sentiments. In this connection, I also note that in his discharge interview with Cooper nothing was said by either regarding the Union or Walters' union sympathies; the fact that Walters brought it up in later talk with Stautzenberger, including the charge that the shop foreman was being used as a "scapegoat" to discharge Walters on a pretext, and the foreman's oblique agreement, does not amount to substantial proof of discriminatory motive which would outweigh the impressive sequence of facts denoting a discharge for cause.'* Nor is this defense weakened by the fact that Cooper did not talk to Walters about his job performance and attempt to straighten him out before the discharge, as he told Cheek he would when they arranged the transfer back to Houston: while Stautzenberger received indications right after his return that Walters was stretching out jobs, griping, standing around, and at times even leaving the shop during his shift for social purposes, this did not come to Cooper's attention until after the November 17 repair job, when Stautzenberger reported all his conduct of the past 2 weeks to Cooper, hence it does not seem unnatural for Cooper to give Walters a chance to improve at Houston on his own, without specific advance advice or admonition, and to say nothing until he got a clear report that he was not improving; on the contrary, it would appear more natural for Cooper to assume at the outset that Walters would resume his former satisfactory work, once he achieved his desire to get away from Baytown and return to Houston (but without reduction in pay), where he had a chance to do the wider variety of work which he wanted. I have also considered the suspicious circumstance that Walters was discharged when the Houston shop was already short two mechanics, which became three on his discharge, but this does not become in my view an inference persuasive of discrimination, in light of credible testimony of Cooper "Since Stautzenberger must have known of Cooper 's high regard for 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and admissions of Walters that there had long been a general shortage of good mechanics in the Houston area, and Cooper was always asking mechanics to watch out for good mechanics and let Cooper know about them; hence this was no more than a normal situation when Walters was fired, and it was soon alleviated , for Cooper testified credibly that he was able to replace Walters in the first week after his discharge , and filled the other two vacancies in the second week thereafter I have carefully examined the other facts and circumstances, including some weaknesses in and conflicts of testimony of company witnesses , which General Counsel considers strange or incredible and thus indicative of discriminatory motive for the discharge of Walters, but while they arouse suspisions of discrimination against him, I conclude that either singly or together they do not overweigh the persuasive facts and circumstances outlined above which point to poor performance at Houston, in continuation of similar conduct at Baytown , as the sole motivation for the discharge . Considering all the pertinent facts and circumstances pro and con , I must conclude that Respondent has adduced cogent evidence sufficient to rebut the prima facie case of discrimination made by General Counsel, and that on the entire record General Counsel has failed to sustain the ultimate burden of proving that Walters was terminated for discriminatory reasons. I therefore grant Respondent 's motion to dismiss the complaint as to Walters, and recommend that it be dismissed insofar as it alleges his discharge violated the Act. D. The Discharge of Jack Houston Jack Houston was hired by Respondent about July 1, 1967, as a mechanic at the main Houston terminal, with a background of several years of experience as a general auto mechanic. Until his discharge on November 21, he worked mainly on diesel engines , at first on'day shift, and later at times on both day and night shifts. He received a 10-cent raise after 2 months on the job, which he had been promised on hiring if his work proved satisfactory. I have found that Respondent learned on November 14, 1967, of Houston's prounion sentiments in the general talk of some mechanics with Foreman Stautzenberger.27 There is no proof that Houston ever actively solicited for the Union, like Brock. During his first week of work, Cooper asked Houston if he would be interested in transferring to the Baytown shop, saying it was short of help, and someone had to go down there. Cooper offered him a raise as an inducement. Houston refused the offer, saying he owned his home in Houston, and his wife also had a good job there. Sometime in late September or early October, while talking to Houston about the condition of some trucks sent in for repair from the LaPlace, Louisiana, terminal of a concern associated with Respondent, Cooper asked Houston if he would be interested in transferring to that terminal as a working shop foreman on straight salary. Walters' work, and that he was in effect his sponser , I consider it only natural that the foreman would not take any drastic action on his own toward Walters, and would at all times attempt to remove himself from any controversy between management and Walters, considering it Cooper's problem , not his. "In view of Stautzenberger's coercive remarks and Houston's expression of his union sentiment on that occasion , and Respondent ' s clear knowledge of Brock's union activities , I do not credit pro forma denials by Smart and Cooper of any knowledge of Houston's union sympathies at or before his discharge Houston, who had already learned of the vacancy from another employee," said he was not interested, because he had too much at stake in Houston. Houston received no later comments or criticism from any official about his refusal to make these transfers. However, he had consented to transfer temporarily from first to second shift at Houston in September, at the request of Cooper, to relieve a shortage of mechanics on the latter shift. Up to his discharge, Houston apparently was a satisfactory employee, for he never received any warnings or other discipline for poor work. On November 21, the day after the unlawful discharge of Brock, as soon as Houston reported for work on second shift, Cooper sent him in to see Operations Manager Stanley Smart, saying Smart had a "proposition" for him. Smart told Houston that he was badly short handed for mechanics at the Port Arthur, Texas, shop of Apex Truck Rental Company29 which was turning down repair work because it could not get mechanics locally, that he needed another mechanic down there at once, he knew Houston could do the work as he had seen him rebuilding engines at Houston, and that he would have to send him to Port Arthur, as he was the youngest mechanic (in point of service) in the main shop. Houston asked when the 'transfer would take place, and Smart replied, "right now, today" he needed a man there immediately. Houston replied it would be impossible for him to go on such short notice, as he had to discuss a decision like that with his wife. Smart repeated that he would have to send Houston, as he needed a man there and Houston was the youngest; he offered to give him a raise and pay his living expenses at Port Arthur while he was getting located there permanently. Houston said that if he needed a man there for a week or so until Smart could hire another man permanently for the place, Houston would be glad to go on a temporary basis. Smart replied, no, he needed a man there permanently. Houston replied that he was not interested in going "just-like that," that he could not go without talking it over with his wife, that his home was in Houston and his wife had a job there, so he did not want the job.30 Smart again repeated the need for a mechanic that Houston had to go. Houston asked if he "had" to transfer, and Smart replied, yes, it is mandatory, and that "if you do not want to go, we are just going to have to dissolve partnership." Houston then said, "well if it is go or leave the company, then I will just get my tools and leave now and get a job elsewhere; I was going to quit January 1, anyway, two other mechanics and I are going out to the Gulf Freeway and start our own repair business." Smart replied that if he had intended to quit, "let us just make it effective today, you are quitting today, and I will call the personnel office and have them start the check-out process now. "Smart then called Cooper, and told him to figure out Houston's time. As Houston was leaving, he asked Smart if "that had anything to do with the union business," that he had not "Late in September, one Randall who worked in the personnel office under Lanier, had asked if Houston was interested in the LaPlace job, intimating he could arrange it with the terminal manager there, who was a friend of his. Houston told him he was not interested. "Apex is a separate Texas corporation which has the same common control, stock ownership, and management as Respondent and other enterprises in the "Robertson group," and a common office with Respondent at the main Houston terminal Respondent's personnel office has usually supplied Apex with mechanics as needed. "Port Arthur is 110 miles from Houston , so a transfer would require Houston to live apart from his home and wife, or sell his home and make his wife quit her own job, in order to make the transfer ROBERTSON TANK LINES, INC. engaged in any of it, and Smart replied that it did not, that "it is your affair, your right and privilege, that is none of my business."" Houston then went back to the shop and told Cooper of his termination. Cooper was angry about it. Houston asked him why it happened, and Cooper replied he did not know, he had nothing to do with it. Houston disagreed, angrily saying, "it does not make any sense" and "you are forcing me to go to Port Arthur, but you are going to be short one man at Houston." Houston returned about 7 p.m. to receive his final checks from Stautzenberger, but refused to sign the usual termination slip because it stated no reason for termination. In light of Respondent's knowledge of the union activity, its unlawful discharge of Brock found above, and its prior knowledge of the prounion sentiments of Houston, the separation of the latter on the day after Brock's discharge, including Smart's quick seizure on Houston'"s remarks about later plans for quitting, to make it appear that he was quitting that very day, raises a prima facie case of constructive discharge which requires Respondent to adduce cogent proof to rebut it. Respondent's sole defense is that Houston voluntarily quit, after being apprised of the economic necessity of his transfer, rather than accept a higher paying job at the Port Arthur shop. In support of this defense, and Smart's remarks in the final interview, General Manager Gaylord and Personnel Director Lanier testified that- Respondent has a policy, which is announced to employees upon hire, that they can be required to transfer to another location, if help is needed there, under penalty of discharge if they refuse. In line with this policy, Respondent has at times transferred mechanics, particularly Diesel mechanics, from its own work force to the Port Arthur shop of Apex, which has had continual trouble getting mechanics locally. In selecting men for transfer Respondent chooses the junior man in point of service who is qualified to do the work of the classification of the vacancy. Houston was chosen on this basis, as he was qualified to do the work needed at Port Arthur. Smart testified that: The need for a Diesel mechanic at Port Arthur became apparent about November 1 when Carl Lee, operations manager there, asked for Smart's help in getting a mechanic, advising that his shop had to turn away work because of a shortage of Diesel mechanics. On November 20, Lee called again to find out if Smart had secured a mechanic. Smart said, no. Lee reported he was unable to find any good all-around mechanics around Port Arthur, and that he was "in a rush" as the shop foreman was going on vacation, leaving him short another man. Smart then decided to send Houston, as he was the junior all-around Diesel mechanic in point of service. However, this defense has many weaknesses disclosed by other facts in the record. Gaylord's story that all workers are advised of possible mandatory transfer subject to discharge when they are hired is not credibly supported by Foreman Cooper who hired Houston, other company officials, or regulations offered by Respondent, hence I credit Houston's testimony that he was never advised of such policy when he was hired. The existence of the policy itself, and its enforcement if it in fact existed, is negated by the "The events of November 21 are found on credible and mutually corroborative testimony of Houston and Smart . I do not credit Houston's denial of talk about quitting at a later date to start his own business, for he admitted he often talked about those plans with others in the shop, and I consider it more likely than not that he mentioned it here in the terms found above 279 following circumstances: (1) Walters' transfer to Baytown by Cooper was clearly voluntary with the unqualified right to return, although Baytown was badly in need of mechanics at the time; (2) Cooper had twice before offered Houston transfers to Baytown and LaPlace, and he was not disciplined in any way, much less discharged, for his refusal to go; (3) Brock testified without contradiction, and I find that, he had once been offered a temporary transfer to another part of Texas, with right of return, and in late 1966, Lanier had told him he did not have to move to Baytown when the asphalt operations moved there, but would only have to give up the lucrative asphalt hauls if he did not move with the operation; there was no threat of discharge; and (4) Lanier testified that Respondent had in the past discharged workers for refusal to transfer, but Respondent never produced any personnel records (as in the case of discharge of drivers for unauthorized personal use of equipment) to substantiate actual enforcement of the claimed mandatory policy. These circumstances indicate that any transfer policy was in practice a lenient and nonmandatory one prior to Houston's case, with any move being voluntary and even temporary, if the worker wanted only to try out the new location, even where the need was clear. The sudden and onerous application of a mandatory transfer rule under pain of instant discharge in Houston's case is such a sharp contrast as to raise a strong inference that Respondent wanted him to refuse and quit under threat of discharge. Further, the claim of a pressing need for a Diesel mechanic, on which Respondent bases the application of the mandatory rule, is greatly weakened by the facts that, although Port Arthur called for a man as early as November 1st, Respondent did not try to transfer any other mechanics down there even on a temporary basis before the November 20th call, nor did it send any other men permanently because, as Smart says, it had no "applications" (apparently from new applicants); but this is a flimsy excuse because Smart admits he had other qualified but older mechanics in Houston, whom he could have sent on a temporary basis, as indicated by past practice, yet he does not offer any credible explanation why he did not send one of them (except to say they were "much older"); and the lack of "applications" seems to be a spurious reason, for it is clear from management testimony that Houston was seeking new mechanics for itself, but not getting them because of a plain lack of them, during all this period. Further, even after Houston "quit," as Respondent claims, and although Smart says he still had the emergency call for a man, he admits the need was only partially filled when Port Arthur finally settled for a man from that area about December 1st, who was only an engine mechanic, not a fully qualified truck mechanic like Houston. All of this indicates that the "dire need" used to cause Houston to quit did not in fact exist. Smart's reason for not sending an older man, even temporarily, further deflates the claim, for he says "it was not that real big emergency it had to be done right then," even though he admits the vacation of the Port Arthur foreman made it a far greater emergency on November 21st than on November 1st; the inconsistency in this testimony is significant. Finally, the, same inference arises from his explanation he did not have to send an older man down because of 24-hour phone service between Houston and Port Arthur, and "we can just send a man over there or else we will just have to bring it to Houston to be repaired"; and he offers no proof that Port Arthur sent any work to Houston in that week; he does not try to explain why these expedients would not have justified 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acceptance of Houston's offer of a temporary transfer of 2 weeks. He also admitted that Port Arthur was "not really hurting" in that week. I am convinced by these admissions that the emergent "need" at Port Arthur did not really exist so as to require the imposition of a sudden mandatory transfer policy on Houston, and that this. spurious policy was brought up suddenly as a pretext in order to force Houston, an otherwise satisfactory employee, to quit when faced with an unfair and intolerable demand, without consideration of his personal situation, in order to conceal an ulterior motive.31 This conclusion is further supported by the fact that Houston's separation left Houston itself three men short, and the alleged emergent "need" of Port Arthur still unsatisfied, which could well have been avoided in part at least by a temporary assignment of either Houston (as he offered) or a more senior mechanic to Port Arthur. As Respondent has offered no rational or credible explanation for its action on Houston's refusal to transfer on short notice, and Smart quickly seized on his side remarks about plans for quitting later-to try to make it appear that he was voluntarily quitting that very day, but he did not insist on Houston signing a termination slip containing that as the reason for the separation, I can only conclude that the real reason for the separation was his known union sentiments. I therefore conclude that Respondent has failed to rebut the prima facie case of discrimination shown in the record, and that General Counsel has sustained the ultimate burden of showing by substantial proof in the entire record that Respondent forced Houston to quit, and thus constructively discharged him, on November 21, 1967, because of his known union sympathies, in violation of Section 8 (a)(3) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having been found that Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discriminated against Conway D. Brock , Sr., and Jack Houston by discharging and refusing to reinstate them, I shall recommend that Respondent offer each of them immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to seniority or other rights and privileges previously enjoyed, and that Respondent make them whole for any loss of pay suffered by reason of its discrimination against them, by payment to each of a sum of money equal to that which "In reaching this conclusion, I find it unnecessary to indulge in the speculations in the Union's brief based on the timing of some of Brock's union activities in this period , for there is no credible proof that Houston was in any way connected with them or that Respondent desired to remove him from the Houston scene to prevent him from helping Brock. he would have earned as wages from the date of the discrimination against him, as found above, less net earnings during said period, the backpay to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percentum per annum to be added to the backpay due, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend that Respondent preserve and make available to the Board or its agents, upon request, all records necessary and pertinent for computation of the backpay due. In view of the nature of the unfair labor practices committed which indicate Respondent's basic disregard for the fundamental rights of employees protected by the Act, I shall recommend issuance of a broad cease and desist order. I shall also recommend dismissal of the complaint insofar as it alleges a discriminatory discharge of Milton E. Walters. CONCLUSIONS OF LAW 1. The Union named above is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging Conway D. Brock, Sr., and Jack Houston and failing and refusing to reinstate them, because of their union activities and sentiments, thereby discriminating in regard to their hire and tenure of employment and discouraging union membership and activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By threatening employees with loss of benefits and other economic reprisals if they supported the Union in its efforts to organize Respondent's employees, Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 4. The unfair labor practices aforesaid are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act by its discharge of Milton E. Walters, as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and on the entire record in the case, I recommend that Robertson Tank Lines, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the above-named labor organization, or any other labor organization of its employees, by discharge or refusal to reinstate its employees, or discriminating in any other manner in regard to their hire or tenure of employment of any term or condition of employment. (b) Threatening employees with loss of benefits if they support the above-named labor organization or any other labor organization in efforts to organize employees of Respondent. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of any rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Conway D. Brock, Sr., and Jack Houston immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to ROBERTSON TANK LINES, INC. 281 seniority or other rights and privileges previously enjoyed, and make said employees whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section entitled "The Remedy." (b) Notify above-named employees if presently serving in the Airmed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed F orces (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its terminals and shops in Houston and Baytown, Texas, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places,nicluding all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.34 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges any discriminatory action against Milton E. Walters. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 3"In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " WE WILL NOT discourage membership by any of our employees in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Southern Conference, or in any other labor organization, by discharging or refusing to reinstate our employees, or in any other manner discriminating against our employees in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL offer Conway D. Brock, Sr., and Jack Houston immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges previously enjoyed, and we will make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner described in the Trial Examiner's Decision. WE WILL NOT threaten our employees with loss of benefits if they support the above-named labor organization, or any other labor organization, in efforts to organize our employees, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees are free to become or remain, or to refrain from becoming or remaining, members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Southern Conference, or any other labor organization. ROBERTSON TANK LINES, INC. (Employer) Dated By APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: (Representative ) (Title) 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. If employees have any questions concerning this notice or compliance with its provisions they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4296.