Thompson Transport Co., Inc.

THOMPSON TRANSPORT CO., INC. 603 Thompson Transport Co., Inc . and Teamsters Union Local 795, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 17-CA-3352 June 27, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April 19, 1968, Trial Examiner Harry R. Hinkes issued his Decission in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision . Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's excep- tions and supporting brief, the General Counsel's answering brief, and the entire record in the 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 Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Thompson Transport Co., Inc., McPherson, Kansas, its officers , agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. I These findings and conclusions are based , in part , upon credibility determinations of the Trial Examiner to which the Respondent has ex- cepted . After a careful review of the record , we conclude that the Trial Ex- aminer's credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, 91 NLRB 544, enfd 188 F 2d 362 (CA 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY R. HINKES, Trial Examiner: The com- plaint herein was issued on November 29, 1967 pursuant to a charge and an amended charge filed on October 2 and 23, 1967, respectively, by Team- sters Union Local 795, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and served on Thompson Trans- port Co., Inc., herein called the Respondent or Company. The Respondent is alleged to have en- gaged in unfair labor practices by the discharge of Losson J. Swanner, one of its employees, because of his interest in and activity on behalf of the Union and to discourage employee interest in the Union in violation of Section 8(a)(1) and (3) of the Act. By answer duly filed Respondent admitted the jurisdic- tional allegations of the complaint and the super- visory status of its president and terminal manager but denied the supervisory status of its dispatchers as well as the commission of the unfair labor prac- tices alleged in the complaint. A hearing was held before me at McPherson, Kansas, on January 30 and 31 and February 1, 1968, at which all parties were afforded full oppor- tunity to participate, examine witnesses , and ad- duce relevant evidence. Briefs have been filed by the General Counsel and Respondent and have been given careful consideration by me.' Upon the entire record in this case, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is now and at all times material herein has been a Kansas corporation engaged in the business of being a common carrier of petrole- um products with its principal place of business located in McPherson, Kansas. During the year preceding the issuance of this complaint Respon- dent performed services valued at excess of $50,000 for other Kansas enterprises which in turn purchased during said period goods and materials valued in excess of $50,000 directly from outside of Kansas. The complaint alleges, Respondent's answer admits, and I find that the Respondent is and has been at all times material herein an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent's answer ad- mits, and I find that the Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 'General Counsel 's unopposed motion to correct the transcript of testimony in certain particulars is hereby granted 172 NLRB No. 66 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Issues The parties agree that these are the issues of this case: 1. Did Respondent's dispatchers, Floyd Rummel and Addison Beal, occupy supervisory status within the meaning of the Act? 2. Did the Respondent discharge employee Los- son J . Swanner in violation of Section 8(a)(1) and (3) of the Act? B. Background Sometime during 1963 the Board conducted a representation election at Respondent's facility. Employee Swanner voted in this election and acted as observer on behalf of the Union . The Union failed to attain a majority of the valid votes cast at this election . Thereafter, during the early part of 1966, the employees of the Respondent again en- gaged in union or concerted activities . Sometime in March 1966, Swanner, in the presence of another employee, Robert Maher , had a conversation with Darrell Thompson , the company president, and Will Sander , the Company's terminal manager. Ac- cording to the undenied testimony of Swanner and Maher , Thompson asked Swanner if Swanner felt that the Company had ever discriminated against him about the other union deal , referring to the 1963 activities, to which Swanner replied "you're damn right." Thompson then admitted "oh, maybe a week or two." Union activity arose again in 1967 at the Respon- dent's facility and on February 6, pursuant to a Stipulation for Certification Upon Consent Election entered into by the parties , Region 17 of the Board conducted a representation election at the Em- ployer's facility. The Union attained a majority of the valid ballots cast in this election and on Febru- ary 14 was certified as the collective-bargaining representative for the following unit: All drivers and mechanics, and parts girl em- ployed by Thompson Transport Co., Inc., but EXCLUDING all leased drivers , dispatchers, office-clerical employees , guards and super- visors as defined in the Act. After unsuccessful attempts at negotiating a con- tract, Respondent 's employees commenced a strike on or about May 28, 1967, which continued thereafter for about 5 weeks . During the strike cer- tain acts and incidents of violence , property damage, and physical assault upon employees of the Respondent occurred . The record , however, does not disclose the identity of the perpetrators of these offenses . The strike ended on or about July 1, when an agreement was reached between the Union and the Company . Among other things this agreement provided for the discharge of employees for specified behavior , among which was: Recklessness or willful neglect resulting in physical injury or property damage. Failure to receive approval for purchases other than fuel while on the road. The agreement also contained a provision for em- ployee grievances involving an interpretation or ap- plication of any of the agreement's provisions. It also gave drivers: ... (15) minute rest breaks, with pay, each four (4) hours of his regular workday. The time for such breaks shall be at the Company's discretion at the terminal, but a driver may use his own discretion while on the road. ... half hour meal breaks.... during each six (6 ) hour period [ if the employee is a driver on a "dedicated " truck]. The agreement also required the employee to in- dicate "all time off for meals and breaks on his tach chart." Finally, the agreement contained a provision that neither the Union nor the Employer would resort to a strike or lockout or any other interference with the Company's operations. C. The Status of Dispatchers Beal and Rummel According to Terminal Manager Sander, Beal and Rummel are dispatchers and alternate from time to time as the chief dispatcher . The chief dispatcher has the authority to apportion work out to the regular run drivers and in that connection has access to wage data reflecting the earnings of the employees in order to determine whether the runs are apportioned fairly . Further, Respondent holds meetings from time to time to discuss problems such as the cost of operations . Attending these meetings were , according to Sander , "all the supervisors or the people who have any responsi- bility up there." He identified these persons as Beal, Rummel , Shop Foreman Shrieber, Office Manager Goforth , and himself. Sander further testified that the dispatchers have the authority to grant permission to an employee to take a day off without first consulting with any other member of management or supervision. Sander 's attention was called to the fact that the agreement between the Respondent and the Union , referred to previously, contains grievance and arbitration machinery and provides that the grievance "shall first be presented in writing, signed by the employee , to his im- mediate supervisor...." Sander testified that the "immediate supervisor " with whom a driver-em- ployee would file a grievance would be either Beal or Rummel , depending on which of these two were on duty at the time . Finally , it should be noted that Tommy Thompson, the dispatcher for the Respon- dent in 1962 , was the one who hired Swanner and there is nothing in the record to suggest that such responsibility and authority of the dispatcher has changed. I find that Dispatchers Beal and Rummel are su- pervisors as that term is defined in Section 2(1 1) of the Act. THOMPSON TRANSPORT CO., INC. 605 D. Respondent's Knowledge of Swanner's Union Activities During the 5 weeks starting around May 28, 1967, when the employees of the Respondent were on strike, Swanner performed no work for the Respondent . Indeed, Swanner was a picket captain and walked as a picket in front of the Respondent's facility 12 hours a day, 7 days a week, during the duration of the strike. He testified credibly that both Thompson and Sander saw him walking as a picket and this testimony was not denied. Similari- ly, I credit his testimony that Sander knew that Swanner held the position of union steward which was also undenied. The record discloses other evidence of the Respondent's knowledge of Swanner 's activities and its attitudes. Thus, employee Maher testified that around August 19, 1967, Dispatcher Beal told him "As soon as we get rid of Swanner , things will get back to normal like they used to be. . . . 'We realize we have all made a big mistake .' . . . the only reason that we have a union ... is because Swanner wanted off the dedicated on his regular run." This testimony was not contradicted and I credit it. Similarly, Swanner testified credibly and without contradiction that Supervisor Rummel told him in early September that Thompson and Sander had told him they had to find a way to get rid of Swanner, to which Rummel had replied they would have to go some place other than the customers because all the customers liked Swanner. Mrs. Keith, a former employee of the Respon- dent, testified without contradiction that President Thompson used rough language towards Swanner, especially after the Union was voted in at the Com- pany, and when seeing Swanner drive his truck into the yard would say "there goes the son-of-a-bitch who brought this union trouble on me." She also testified that during the summer of 1967, when the Respondent was remodeling the office, President Thompson said he was getting the office ready for Losson and the Union, which statement was not de- nied by Thompson. She also testified that President Thompson, sometime in June 1967, said that one of the first employees to go after the union contract would be Losson Swanner. Thompson, on the other hand, testified that he merely said that ". . . nobody could work under that set of rules that they were proposing ... we could not keep a man two weeks under that set of rules and especially Mr. Swanner could not work under that set of rules no time at all, because of his slowness on the road." However, there is nothing in the record to substantiate Thompson's criticism of Swanner's speed with the exception of an office memo comparing Swanner's mile-per-hour performance with that of another employee concerning which more will be said below. Mrs. Keith also testified that after the strike ended President Thompson was in the coffee area of the driver's room together with several em- ployees and there was some discussion about the is- suance of warning notices. Thompson, referring to a warning notice being issued to Swanner, said "That's No. 1, we'll see how long it takes him to get the other two." She also testified that she had not heard Thompson say anything similar about anyone else. Thompson, in his testimony, did not deny the statement attributed to him. Sander, on the other hand, testified that Mrs. Keith worked for the Company only through July 5, and Swanner's first notice was issued July 22, which would make Mrs. Keith's testimony that she saw Swanner's first notice unreliable. But Sander's testimony was not supported by any company record except a timecard which is completely unre- liable. It shows, for example, July 4 as a workday when admittedly July 4 was a holiday. It also shows the day preceding July 4 as a holiday, and the day preceding that as June 2. Wage records would have established without question the last day Mrs. Keith worked, but these were not produced by the Respondent. Instead, this record merely contains Mrs. Keith's recollection as having worked until "the middle of July" and seeing Swanner's first notice and Sander's recollection that Mrs. Keith's last workday was July 5. In the absence of proba- tive documentary evidence, which Respondent should have been able to produce for this hearing, I find Mrs. Keith's version of this event more credi- ble and therefore credit her testimony in this respect. I conclude and find that the Respondent knew that Swanner was a union leader at its plant at least from May 1967 until the time of his discharge in September 1967. E. The Discharge of Losson Swanner Losson Swanner began working for the Respon- dent in 1962 and was discharged by letter dated September 22, 1967, effective September 24, 1967. This letter specifies the reasons for his discharge: On July 22, 1967 you were issued a warning notice for hitting a post with your tractor and for bending and breaking the bumper on the tractor. On August 26, 1967 you were issued a warn- ing notice for calling,an unauthorized strike, contrary to the terms of the contract. On August 28, 1967 you were assigned to the Augusta dedicated truck and since then your tach charts have reflected a number of stops in excess of the time provided for lunch and rest periods under Article XII and Article XIII. As a result of these, we notified you by letter dated September 14, 1967 of our con- cern and asked you to explain them as soon as possible . On September 16, 1967 you ex- plained some of these but admitted to some of them being excessive but did not explain them to our satisfaction. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 14, 1967 you purchased a tire repair without prior approval as provided by Article III, Section 24 of the contract. It is the contention of the General Counsel that the Respondent fabricated pretextuous grounds to achieve the unlawful objective of discharging Swanner because of his union or concerted activi- ties in violation of Section 8(a)(3) and (1) of the Act. The purported reasons for Swanner's discharge, therefore, will be examined below. 1. The July 22 notice The undenied testimony of Swanner establishes that on or about July 21, 1967, he reported an ac- cident to Company President Thompson and re- lated that when backing into a terminal, the truck wheel rolled over a stick causing a barrel to roll under the truck , catching the bumper , and bending and cracking it. Thompson replied that there was going to have to be some action taken to eliminate damage , to which Swanner replied that he did not intend to do it and that he could not help it. Swanner thereafter received the warning notice of July 22 and in response thereto again spoke to Thompson on July 26. At this time Thompson told him "I want you to know that I lost $16 ,000 while you God damned bastards were out there walking." The validity of this warning notice is open to question . It does not appear that any other driver received any warning notices for damage to the equipment or trucks . Yet it is hardly possible that none of the Respondent 's crew of drivers would have suffered any damage to his truck over the period of time that is involved in this action. Moreover it does not appear that the Respondent considered such a happening to be necessarily the basis for any criticism of the driver . I note, for ex- ample, that the union contract in describing dischargeable offenses speaks of "recklessness or willful neglect," neither of which is suggested to exist with respect to the truck damage incurred by Swanner. I conclude , therefore, that the first warning notice given Swanner involving truck damage was not warranted under all the circumstances , but was incurred primarily because of President Thomp- son's antiunion animus demonstrated when Swanner spoke to him about the notice he had received by his reference to his monetary loss dur- ing the strike. 2. The August 26 notice This notice was given Swanner as a result of ac- tivities occurring on or about August 20. Swanner testified that on that evening, driver Sheldon Annis told Swanner he would not go out on the dedicated truck2 run to which he was assigned for that even- ing because the Company wanted to send Sheldon's father, Elbert Annis, to Augusta against his wishes. Sheldon added that he was going to shut down operations if he could talk the guys into it. Swanner told Sheldon he was unable to go along with that because he was a union steward and that "might lay the Union liable for a law suit." Sheldon neverthe- less called a meeting of the drivers at his home. Swanner called driver Schorling and informed him of the meeting taking place at Sheldon's house. He also told Schorling that other drivers did not want to go out on their runs but that he could not recom- mend the strike. The same evening Swanner, Shel- don Annis, and several other drivers stood around the front of the terminal for some time. None of them, however, with the exception of Sheldon An- nis, was scheduled to go out on the run that even- ing. Swanner also had a conversation with Terminal Manager Sander that evening, or within 24 hours, in which conversation Swanner asked Sander whom Sander was sending to Augusta on the dedicated truck, to which Sander replied "It didn't make a damn who it was. The truck had to run." Swanner answered "It looks like you're trying to force us to walk again." Driver Schorling, called on behalf of the Respon- dent, testified that Swanner told him that Swanner and some of the paid members of the Union were calling a walkout. Schorling then consulted the union contract and the constitution of the Union and decided that a walkout was not proper and that he would therefore go to work. When he arrived at the terminal building he told Swanner, who was there, that he was going to work but Swanner said that they were not going to go out until they got "it" settled. Schorling then went on to drive his truck. Terminal Manager Sander testified that two drivers were scheduled to go out on the night of August 20, Sheldon Annis and Mel Heinrich. Both Annis and Heinrich refused to go out. Sander also testified that Swanner refused to go out on the dedicated run and threatened to be "over there across the street" unless Sander changed Swanner's assignment on the dedicated truck. Sander also testified about a meeting with Swanner 3 days after the work stoppage at which meeting Sander accused Swanner of calling a strike. According to Sander, Swanner admitted the calling of the strike after first denying it. Both Heinrich and Sheldon Annis received warn- ing notices for their failure to go out with the dedicated truck on August 20. Swanner, however, received a warning notice, not for his alleged failure to go out on August 20, but for allegedly calling an unauthorized strike. I credit Swanner's version of the events of August 20 although the record is far from clear as to what exactly happened. I find that only two drivers were ' The practice of reserving the use of a particular truck to a particular customer for a particular period of time THOMPSON TRANSPORT CO., INC. 607 scheduled to go out on the runs that evening, Hein- rich and Sheldon Annis, and that neither of these two drivers took his truck out that evening. I do not credit Sander's testimony to the effect that Swanner also refused to take the truck out that evening, in view of the fact that Swanner denied this and was not given any warning notice for failure to take out an assigned run as were Heinrich and Annis. Moreover, I cannot conclude that Swanner called an unauthorized strike . The only evidence to that effect was given by driver Schorling , who testified that Swanner told him he was calling a strike. This Swanner denied and, after considering the demeanor of the two men on the stand and the na- ture of their testimony , I credit the testimony of Swanner rather than that of Schorling . This conclu- sion is fortified by the fact that within 2 days after receiving the warning notice dated August 26, 1967, Swanner filed a written protest against the warning notice he had received and denied calling an unauthorized strike. The fact , if it is a fact , that Respondent honestly but mistakenly believed Swanner had called a strike on August 20, would be no defense to its disciplin- ary action . N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21. Moreover , it would appear that Respon- dent condoned the illegal work stoppage of August 20 by permitting the return to work of all those al- legedly involved , thus removing said work stoppage as a basis for the disciplinary action later. Alabama Marble Company, 83 NLRB 1047. 3. The September 20 notice Terminal Manager Sander sent Swanner a letter dated September 14, 1967, informing Swanner that he had violated provisions of the union contract requiring explanations for breaks taken on his runs and limiting the time permitted for such breaks. The text of that letter follows: Section 1 of Article XII of the union contract provides for 1/2 hour lunch break every six hours on dedicated trucks . Section 4 of Article XII provides that "all time off for meals and other breaks shall be indicated on tach charts." Article XIII provides for a 15 minute coffee break every 4 hours. According to the tach charts from your dedicated runs, you are violating the above provisions of the contract. We will need to have satisfactory explanations for the unathorized [ sic] delays enroute that you have been taking, or we will be compelled to issue you another warning notice , and in view of the fact that you already have two warning notices, this will subject you to discharge. Contact me as soon as possible so we can give you an op- portunity to explain your delays. We will be checking from here on out to be sure that you will run your tractor so as to satisfy the above provisions of the contract, and also the provisions of the dedicated service contract with Mobil Oil Corporations. Enclosed with said letter was a copy of an in- teroffice memorandum addressed to "Swanner, Bill Haynes, Carl Drake." It read as follows: Mr. Swanner drove 1,825 miles in 41 hours, 10 minutes. This averages 44.2 miles per hour. Mel Heinrich drove 2,324 miles in 45 hours, 30 minutes. This averages 51.1 miles per hour. Mel averages $9.33 per hour revenue. Swanner averages $7.20 per hour, for a difference of $2.13 per hour. Mel Heinrich had 4 hours for coffee, down times, and lunch in delivery of 13 loads. Mr. Swanner had 10 hours of lunch, and other time not explained in only 11 loads. In response to these communications Swanner visited Sander at his office on September 16, asked to see the tach charts with respect to which addi- tional information was sought, and volunteered to fill in the additional information. After doing so, Swanner told Sander "If you find any that is in- complete, if you will let me know, I will try to fill them out to your satisfaction." Sander replied, "I will let you know." Swanner then said, " . . I'll bet the next contract will be different from this one" to which Sander replied "There will not be a next con- tract." President Thompson sent Swanner a letter dated September 22 terminating Swanner's employ- ment as of September 24, and enclosing a warning notice dated September 20, 1967, and designated as fourth notice, specifying "violation of Article XII and Article XIII per attached list." The same letter also contained another warning notice dated Sep- tember 21 and designated "third notice," concern- ing which more will be said below. The alleged misconduct of Swanner appears to be twofold: (1) that Swanner failed to record the reason for the stops shown on his tach charts and (2) that Swanner took excessive time for his breaks which were limited to one-half hour for meals every 6 hours and one-fourth hour for rests every 4 hours. As respects the excessive time, Sander testified about two of Swanner's tach charts. Only one of these tach charts was offered in evidence and it shows a meal break in excess of 30 minutes on Au- gust 28. Swanner identified two other tach charts of his which were received in evidence. One, dated August 30, covers a run lasting from about 1:20 p.m. to 5 a.m. the next morning, during which time a meal break was taken from about 7:15 p.m. to 7:40 p.m., a coffeebreak was taken from about 11:20 p.m. to 12:20 a.m., and another coffeebreak from 4 a.m. to 4:10 a.m. for a total breaktime of about 1 hour and 35 minutes during the run which lasted almost 16 hours. Swanner testified in effect that under those circumstances he understood the contract, in permitting 30 minutes meal break every 6 hours and 15 minutes rest break every 4 hours would permit 1 hour and 35 minutes total breaktime during a 16-hour period, a construction I 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do not find unreasonable and which was not con- tested . The other tach chart , dated September 13, shows a meal break of 1 hour and another meal break of about one-half hour during a run which lasted from about 2:10 a.m . to 11: a.m ., or 9 hours. There can be no question that with respect to the tach chart of September 13, as well as the tach chart for August 28, identified by Mr . Sander, there were breaks taken in excess of the time specified under the contract. The issue with respect to Swanner 's failure to note the reasons for downtime on the tach charts is not so clear. The only tach charts offered and received in evidence , which have been referred to above, show the meal and rest breaks taken by Swanner albeit some of them were in excess of the time permitted under the contract . Counsel for the Respondent argues, however, that Swanner was obliged to show the reason for downtime , that is, the time during which the truck was not running, not merely meal and rest breaks, and failed to do so. I note, however , that article XII of the union contract requires that "all time off for meals and breaks shall be indicated on his tach charts ," article XII referring to meal breaks and article XIII refer- ring to rest breaks. I find no provision in the con- tract which requires the driver to show an explana- tion for downtime on his tach chart . The warning letter sent to Swanner by Sander on September 14 refers only to meal breaks and coffeebreaks and asks for satisfactory explanations for the "un- authorized delays en route" that Swanner had been taking. Swanner attempted to explain his tach charts to Sander on September 16, and offered at that time to supply more information if more was needed . Thompson's termination letter to Swanner on September 22 states that Swanner 's explanations were not satisfactory , but his warning notice refers only to a violation of the union contract . Insofar as the alleged violation consisted of unexplained downtime it appears that no contract provision was thereby violated and the reason given for the warn- ing notice in that respect is without foundation. This conclusion is fortified by the fact that a tach chart of driver Mel Heinrich , received in evidence, shows a similar lack of explanation for downtime. Yet no warning notice was given Heinrich for that omission which took place on August 31. It might be argued that Sander 's letter of September 14, in speaking of "unauthorized delays en route," was referring to unexplained downtime , but I find that more likely it referred to the enclosed interoffice memo which compared Swanner's elapsed time on runs unfavorably with Heinrich 's. The probative value of this interoffice memo is seriously un- dermined because, standing alone, it furnishes no objective basis for comparing the work of the two drivers. Thus, there is no reason to assume that the runs of the two drivers are similar enough to make comparisons between them , nor do we know what driving conditions were encountered by the two men which affected the miles per hour experienced by each. Similarly, although Swanner had 10 hours downtime in 11 loads while Heinrich had only 4 hours in 13 loads, there is no information on the time involved in each load , without which informa- tion it is impossible to determine the reasonable- ness of any breaks taken . For example , all of Hein- rich's runs may have been for less than 6 hours each, entitling him to no meal breaks, while all of Swanner's may have been for more than 6 hours. In any event, inasmuch as the Respondent does not al- lege such performance by Swanner as a reason for his discharge in its termination letter of September 22, 1 disregard that memo and the "unauthorized delays en route " of Sander's September 14 letter, and find that the only complaint on Swanner's tach charts involved an alleged violation of the contract, which required only showing the time taken for the meal and rest breaks which , apparently , Swanner did. As respects Swanner's breaks which exceeded the time periods permitted under the contract, it is significant that no employee received similar warnings before Swanner, who received the first criticism for such offense when Sander wrote to him on September 14, 1967 . Thus, no criticism was directed at driver Heinrich for the break of over one-half hour on his August 31 tach chart . Signifi- cantly, the first warning notice in this respect to any other employee is dated September 20, warning driver Maher of excessive meal breaks that he took on September 11, 13, and 14. I find it difficult to believe that during all of the time Respondent had his dedicated trucks in operation requiring the use of tach charts, no employee abused the rest or meal break time allowed until Swanner did on August 28. I find it much more likely that such excessive breaks did occur but without any criticism or warn- ing notice from the Respondent . Assuming, nevertheless, that no one did, these violations by Swanner, which could have formed a basis for the notice of September 20, furnished , at most, the basis for a first warning notice , not a third, since I have concluded that the first two warning notices were not warranted. 4. The September 21 notice As mentioned earlier, Sander 's letter dated Sep- tember 14 to Swanner also contained a notice dated September 21, and designated " 3rd notice." The record contains no explanation for this notice being designated "3rd" despite its later date than the one which was marked "4th." This so-called 3rd notice states: Article III, Section 24 provides for approval of all purchases other then fuel on the road. You had tire repair at Langton Oil at Goddard without prior approval It is undisputed that on or about September 14, as Swanner was driving a truck through Goddard, THOMPSON TRANSPORT CO., INC. Kansas, around 6 a.m., he got a flat tire. He had this tire repaired at the first service station he came to in Goddard about 6 a .m., and turned the bill in to the Respondent 2 days later on September 16. As stated earlier , the union contract negotiated with the Respondent at article III, section 24, states "failure to receive approval for purchases other than fuel while on the road " constitutes sufficient grounds for discharge of an employee. Neverthe- less, the testimony of Terminal Manager Sander establishes that the Respondent 's policy was to allow employees three warning notices before ter- mination. According to Sander, Swanner told him in re- porting the tire repair " I suppose I should have called in and got prior approval for that." When Sander replied that he should have, Swanner said "Well, I suppose I am fired. Write me out my third notice and get me out of here because this is it for me." Sander further testified that the Company requires drivers to call their immediate supervisor, "anybody available there ," and request approval for tire repair . He also testified that there is always a supervisor or manager on the company premises at 6 a.m., 6 days a week . He did not know, how- ever, which supervisor , if any, was on duty in Sep- tember 1967 , when this unauthorized repair took place. Swanner, on the other hand , testified that he did not understand the contract provision with respect to unauthorized purchases to apply to tire repairs and that he had incurred expenses for tire repairs in the past without prior approval and without criti- cism from management. He further testified that none of the supervisory personnel was at the ter- minal at that hour of the morning to call for ap- proval of the tire repair. Although , technically speaking, a tire repair is the purchase of a service and as a purchase would require prior approval under the contract, the repair of a tire is seldom regarded as a purchase by the ordinary layman , and I, therefore, credit Swan- ner's testimony to the effect that he did not un- derstand tire repair services as being covered by the contract's provision with respect to purchases on the road . It is inconceivable to me that none of the drivers of the Respondent experienced tire failure on the road before September 14, or that those who did received prior approval before having the tire fixed in every instance . Yet, I note that Respondent was able to produce only one instance of a driver having been issued a warning notice for an unauthorized tire repair on the road before Swan- ner's so-called unauthorized tire repair of Sep- tember 14. Respondent issued a warning notice to driver Wilson and bearing the date September 25, in which he was warned about purchasing tire repairs on September 2 and September 7, without prior approval . I note , however, that the warning notice is dated September 25, after Swanner's discharge , despite the fact that the expenses were incurred as much as 12 days before Swanner's 609 unauthorized tire repair . Respondent also cites the warning notice issued to driver Swisher dated Sep- tember 18, 3 days before Swanner's warning notice, in which Swisher was warned about tire repairs without prior approval. The notice, however, does not specify the date the unauthorized expense was incurred and I have no reason to assume that it was incurred prior to September 14, when Swanner in- curred his tire repair. It also cites a warning notice issued to driver Heinrich on November 2, 1967, for the purchase of seven tire repairs without approval. Here , as in the case of Swisher, there is no clue as to when the tire repair expense was incurred and I have no reason to assume that it was incurred prior to September 14. It appears to me that the Company had no policy requiring a driver to secure prior approval for tire repair expenses incurred on the road, at least until September 14, when Swanner incurred his tire repair expense. Within 2 days after hearing of Swanner's expense, the Company issued its first warning notice with respect to unauthorized tire repairs to driver Swisher. Then, after issuing a warning notice and termination letter to Swanner, it buttressed its position by issuing a warning notice on the same subject to driver Wilson; and, finally, in November issued a warning notice and termina- tion letter to driver Heinrich. I therefore conclude that the warning notice to Swanner regarding unauthorized tire repair services was a pretextual basis for the termination letter which accompanied that notice and that such action by a driver was not, in fact, considered improper either by the drivers or by the Respondent on September 14, when Swanner made the tire repair. Even if I assume that the contract should and could be interpreted to cover tire repairs despite the common understanding of "purchases" and even if I assume that the policy of the Company was well established prohibiting such expenditures by the drivers even before September 14, Swan- ner's commission of the offense on that date con- stituted but a second offense and under company policy would not make him subject to dismissal on September 22. 5. Conclusions as to Swanner's discharge I conclude and find that Respondent's four warn- ing notices to Swanner were not warranted, but were only pretextual bases for the discharge which came on September 22. It is reasonable to assume, therefore, that the real motive for Swanner's discharge was one that the Respondent desired to conceal and that such a motive might be an illegal one. Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466 (C.A. 9). In this instance, having regard for the fact that President Thompson was well aware of Swanner's leadership in the Union and expressed his deep-seated animosity towards Swanner on more than one occasion and considering the contemporaneous conduct of the 354-126 O-LT - 73 - pt. 1 - 40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent aimed to discourage union activities by threats of discharge and accusations of loss caused by the Union, I conclude that Swanner was discharged for his union activities in violation of Section 8(a)(3) of the Act. F. The Independent 8(a)(1) Violations Counsel for the General Counsel urges an 8(a)(1) finding based upon dispatcher Beal's state- ment of August 14 to employee Maher that "As soon as we get rid of Swanner things will get back to normal like they used to be.... `We realize we have all made a big mistake.' The only reason we have a union is because Swanner wanted off the dedicated on his regular run ." Similarly, he urges a like finding with respect to President Thompson's statement to Mrs . Keith and other employees that one of the first employees to go after the union contract would be Swanner. Although the complaint contains no allegations of independent 8(a)(1) behavior, the issue was fully litigated at the hearing without objection and is therefore ripe for adjudication here and now. Monroe Feed Store, 112 NLRB 1336. I have found that the above statements were made. Not only do they establish the Respondent's knowledge of Swanner 's union activity , but they also constitute violations of 8(a )( 1) of the Act. Such statements by supervisory officials of the Respondent, concerning known union leaders like Swanner and conveyed to the employees, could not fail to have a coercive and threatening effect upon them , interfering with their free exercise of rights guaranteed employees under the Act. CONCLUSIONS OF LAW 1. Thompson Transport Co., Inc., is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Union Local 795, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent 's dispatchers, Floyd Rummel and Addison Beal are supervisors of the Respondent within the meaning of Section 2(1 1) of the Act. 4. By discharging Losson J . Swanner because he engaged in union and concerted activities protected by the Act, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act. 5. By threatening the discharge of Losson J. Swanner in the presence of other employees, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I shall recommend that Respondent offer Los- son J. Swanner immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him by payment by a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of Respon- dent's offer of reinstatement less any net earnings during said period (Crossett Lumber Co., 8 NLRB 440) and in the manner described in F. W. Wool- worth Company, 90 NLRB 289, together with in- terest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, I recommend that the Respondent Thompson Transport Co., Inc., its of- ficers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Threatening the discharge of employees for their union or concerted activities. (b) Discouraging membership in and activity on behalf of Teamsters Union Local 795, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization, by discharging or refusing to reinstate employees or by dis- criminating against employees in any other manner in regard to their hire or tenure of employment, or any term or condition of employment. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their right to self-organization , to form, join, or assist the Union, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Offer Losson J. Swanner immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniori- ty or other rights and privileges and make him whole for any loss of earnings suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Losson J. Swanner if presently serving in the Armed Forces of the United States of his THOMPSON TRANSPORT CO., INC. 611 right to full reinstatement upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (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 relevant and necessary for a determination of compliance with paragraph (a) above. (d) Post at its terminal in McPherson, Kansas, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Re- gional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith." 3 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 Ap- peals Enforcing an Order " shall be substituted for the words " a Decision and Order " 4 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 " 795, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor or- ganization, by discharging or refusing to rein- state employees or by discriminating against employees in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to form, join, or assist the Union or any other labor organization, or to engage in any other concerted activities for the purpose of collec- tive bargaining or any other mutual aid or pro- tection, or to refrain from any or all such ac- tivities. WE WILL offer Losson J. Swanner im- mediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any losses he may have suffered as a result of the dis- crimination we have practiced against him. WE WILL notify Losson J. Swanner if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive 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 refrain from becoming or remaining, members of the above-named organization, or any other labor organization. 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 Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten the discharge of any employee for his union or concerted activities. WE WILL NOT discourage membership in and activity on behalf of Teamsters Union Local Dated By THOMPSON TRANSPORT CO., INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-5181.