Gateway Transportation Co.

GATEWAY TRANSPORTATION COMPANY Gateway Transportation Company and Forrest R. Drudge. Case 13-CA-9655 April 30, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On October 28, 1970, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The Gen- eral Counsel filed cross-exceptions and a brief in sup- port of the cross-exceptions and the Respondent 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, cross-exceptions, and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions. Although the Trial Examiner concluded that Chief Dispatcher Vitello and other supervisors characterized Drudge as an agitator and warned some of his fellow employees against being mixed up with him for that reason, he found nothing unusual or unlawful in this regard.' Even if these statements are deemed not to be unlawful in the circumstances of this case, we find that they reflect Respondent's awareness of, and its attitude of resentment against, Drudge because of his protected and concerted activities. This resentment is further evi- denced by the fact that, in February 1969, Vitello threatened to keep Drudge out of town if he filed a grievance, and a few days later warned Drudge that he was "skidding on thin ice, that he would get [him] one way or another ... " In November 1969, Vitello again stated to Drudge that if he wanted to try to get along with the Company, he would get good equipment, but ' In the absence of an exception to this finding , we adopt it pro forma. 190 NLRB No. 26 199 if he were going to buck the Company, Vitello could make or break him by giving him bad equipment. Out- side a grievance session held in late November or early December, another supervisor, Brooks, exclaimed to Drudge, "Boy, if Mr. Willy retires and we get you for a union steward, we really got trouble." On March 14, 1970, after a discussion among Vitello, Drudge, and driver Honchell involving Honchell's go- ing to a doctor, Vitello stated to Honchell, "Don't listen to him. You will get yourself in a lot of trouble." Sometime during that same month Vitello and driver Zussman were discussing the number of drivers who had been barred from a motel and when Drudge's name came up, Vitello stated "that Drudge is strictly trouble and we are going to get rid of him." Since the above- enumerated statements occurred within the context of discussion of employees' rights and working condi- tions, we agree with the General Counsel that such conversations can be considered as evidence of animus toward Drudge's concerted activities. In all other re- spects we adopt the Trial Examiner's findings and con- clusions. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Gateway Transportation Company, Chicago Ridge, Illinois, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order.' i In footnote 13 of the Trial Examiner's Decision , substitute "20" for "10" days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On March 2, 1970, Forrest R. Drudge filed a charge with the Regional Director for Region 13 of the National Labor Relations Board (Chicago, Illinois) alleging that Gateway Transportation Company, hereinafter called the Respondent, engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. Thereafter on May 22, 1970, Mr. Drudge filed a first amended charge again alleging violations of Section 8(a)(1) and (3). On May 28, 1970, the Regional Director on behalf of the General Counsel issued a complaint alleging that Re- spondent violated Section 8(a)(3) and (1) of the Act by reduc- ing the amount of work assigned to Drudge and by issuing warning letters on seven occasions to Drudge. By its duly filed answer Respondent admitted the jurisdictional allega- tions and the existence of the Union (Local Union 710, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union) and its status as a labor organization, admitted issuing warning letters, denied reducing work to Drudge and denied the con- clusionary allegations of the complaint. On the issues thus joined the matter came on for hearing before me in Chicago, 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Illinois, on various dates between July 14 and August 12, 1970. All parties were represented and had an opportunity to adduce evidence and to call witnesses, to argue on the record and to submit briefs. The parties waived oral argument at the close of the hearing and briefs have been filed by the General Counsel and Respondent . At the hearing the General Coun- sel withdrew the allegation regarding the alleged reduction of work assigned to Drudge so that the only unfair labor prac- tice under consideration herein concerns the issuance of the warning letters to Drudge . On the record herein and in con- sideration of the briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation engaged in the busi- ness of transporting commodities by truck in interstate com- merce. Respondent operates numerous terminals in many of the States of the United States including one at Chicago Ridge, Illinois, at which the charging party is domiciled and from which he drives. Respondent annually performs services valued in excess of $50,000 in the transportation in interstate commerce of goods and materials for the owners thereof. Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background For many years, and at all times material herein, Respond- ent's drivers have been represented by the Union as part of an associationwide bargaining unit operating under the Na- tional Master Freight Agreement of the International Broth- erhood of Teamsters , Chauffeurs, Warehousemen and Help- ers of America and the Central States Area Over-the-Road Supplement Agreement which , among other things, provide for the formation of joint state committees or city road com- mittees which handle grievances at their initial stage with an appeal to a joint committee for the Central States area. Forrest R. Drudge, the Charging Party, has been employed by Respondent since August 1968 as an over -the-road driver on the extra-board seniority roster . Under the terms of the arrangement between Respondent and the Union two seni- ority rosters are maintained; one of bid drivers, who are senior drivers who by virtue of their seniority may bid for regular runs between Chicago , their domiciliary terminal, and points to which regular runs are made including but not limited to Cleveland, Canton, Columbus and Cincinnati, Ohio, Indianapolis and other cities. The second or extra- board roster is all of the additional drivers needed by the Employer to carry loads to destinations other than those served by bid drivers, and to carry extra loads to the cities into which bid drivers drive . Extra-board drivers are assigned loads on the basis of their seniority ; when more than one load is available an extra-board member may choose the load he prefers leaving the others to be driven by drivers with less seniority. During the year 1969 Drudge filed a number of grievances concerning various aspects of his employment , one was with- drawn and the others were handled in the grievance proce- dure. During the same time he became interested in assisting other employees in filing grievances, advising them with re- gard thereto and even went so far as to have grievance and complaint forms printed at his own expense ,' which he dis- tributed to other drivers and left in the various drivers' rooms and other places where Respondent's employees congregated. There is also evidence that Drudge interested himself in griev- ances filed by others, in which he was not personally con- cerned, to the extent that on one occasion he attended a grievance hearing in Chicago before the Central States Joint Board relating to an attempt by some of Respondent's em- ployees to be redomiciled in Kendalville , Indiana, a domicile from which they had been moved to Chicago at an earlier date. It appears also that during this time Drudge joined an organization known as Better American Teamsters, appar- ently familiarly known as B.A.T., which seems to have as its goal the improvement or displacement of the existing leader- ship in the Union and until the date of the hearing he was occupied to some extent with convincing his fellow drivers of a need to join and support that organization. Early in 1970, Drudge, apparently having concluded that one of the union representatives was not functioning prop- erly, prepared and circulated a petition calling for his removal and replacement . The record does not reveal whether this petition or any part of it was ever forwarded to the Union or whether it ever came to the attention of the Employer , except to the dispatchers whose status, claimed by the General Counsel to be that of supervisors, was not litigated sufficiently that a finding can be made . In any event, it is clear that the activities of Drudge were not calculated to endear him either to the Union or to the Respondent. A number of witnesses testified that Respondent's chief dispatcher, Joe Vitello, and subordinate dispatchers, as well as other individuals, charac- terized Drudge as an agitator and warned some of his fellow employees against being mixed up with him for this reason.' I find nothing unusual or unlawful in this regard ; there is no question that Drudge took it upon himself to operate as a hair shirt to both Respondent and the Union and his activities can well be characterized as agitation among the employees. On December 5, 1969, Respondent, at the instance of Op- erations Manager Schousen but over the signature of Vice President Michael P . Murphy, issued a warning letter to Drudge in connection with his failure to properly mark the log required by the Interstate Commerce Commission as a day-to-day record of over-the-road drivers' activities. There- after on February 18 a second such letter issued on another matter, on March 4 two more, and on March 9, March I I and March 24 additional letters were issued to the Charging Party. Grievances were filed by Drudge as a result of his receipt of the letters of December 5, February 18, both letters of March 4, March 9 , March 11 and March 24. The determin- ation of the joint state and local committee disposed of each of those grievances with the decision "letter stands" which is to say that the grievances were denied by the joint committee. The General Counsel contends that none of the warning letters would have been issued but for the discriminatory intention on the part of Respondent to punish Drudge for his activities in connection with the Union and in filing griev- ances, as set forth above , and further contends that the letters were not in some instances warranted. Respondent, on the other hand, contends that each of the letters is warranted and that they were in no way discriminatory. On the contrary ' Drudge testified that he had mimeographed 500 grievance forms which closely resembled printed grievance forms put out by the Union and 2,000 complaint forms which apparently were like nothing distributed by the Union but were addressed to the union leadership. ' Although, generally speaking, Vitello and the others to whom such statements were attributed deny this fact, I find that statements were made as reported. GATEWAY TRANSPORTATION COMPANY Respondent pointed out that over a thousand such letters had been issued to its employees in the year and a half preceding the hearing and that Drudge was in no different position than its other employees.' As I view the issue it is not unlike any other issue of the possible discriminatory imposition of a sanction by an em- ployer. In the face of Respondent's denial of any discrimina- tory motivation and the absence of direct evidence thereof the General Counsel can prevail only if the facts adduced require on my part an inference that Respondent was motivated by discriminatory considerations; an inference of such strength that it overcomes the Respondent's direct denial thereof. In support of this inference I must consider first whether in fact Drudge was guilty of that with which he is charged in each letter, second whether other employees similarly situated were handled differently than Drudge or whether Drudge, under different circumstances, was handled differently for breach of the same rules. The letter of December 5 dealt with a circumstance which took place on Tuesday, December 2. Drudge reported for duty at 2.59 a.m. and started his "ICC log" showing him going on duty at 3:30 a.m., thus a period of 30 minutes is shown on his log as "off duty" and on his tripcard, upon which his pay is based, as "on duty." According to Respond- ent such time should be marked on the ICC log as "On duty not driving" rather than "off duty." Drudge's immediate reaction was to contend that either the timeclock with which he had punched his tripcard was incorrect or his watch was and he so wrote in a letter addressed to Vice President Mur- phy. Murphy responded that it was Drudge's duty to notify the Company if he found that the timeclock was incorrect or to set his watch if he found his watch was incorrect. In his letter Drudge also informed Murphy that he thought the warning letter had been issued in retaliation for his refusal to commit a violation as ordered by his supervisor on November 29, 1969, at which time he stated he was threatened with a warning letter if he would not do as he was told. The super- visor to whom he has reference is Vitello. He received no answer to his response to Murphy and filed a grievance on January 4, 1970. The committee heard the grievance and ruled that the letter would stand. Drudge admitted that the drivers' log was not correctly made out but stated that he had made out "hundreds" of logs incorrectly in the past without receiving a warning letter. General Counsel adduced the evi- dence of several of the drivers that they made out their logs in the same fashion as Drudge. Each of them testified that there was a period of 5 minutes to over half an hour from the time they punched their tripcards and manifests in the office to the time they entered their truck. Employees Bowen, Chickerillo, Russell and Honchell each testified that they log all or part of such time as on off duty, not driving. Bowen testified that on most occasions he logged time spent looking for his truck, inspecting it and preparing to move out in it as off duty but sometimes logged it as "on duty not driving." Chickerillo testified that he logged the time before leaving the terminal as nonduty but his testimony, which is somewhat ambiguous, seems to reveal that he writes in on his timecard the same hour that he commences his log. Accordingly no disparity appears. ' I see no probative value in Respondent's contention with regard to the thousand letters allegedly issued by it The record reveals that they were issued to an employee complement of over 800 and issued over a period of a year and a half, thus on numbers alone it would appear that Drudge received far more than a normal share Additionally the only evidence on the record that the estimated 1,000 letters dealt with the same type of violations as the letters to Drudge was the testimony of Schousen which was admittedly not based on any review on his part of the letters. 201 James Russell testified that if the penod of time between punching a timecard and commencing driving exceeds a half hour, he logs it as on duty not driving. Presumably, if the period of time is less than a half hour he logs it as off duty. Employee Honchell testified that if the period of time ex- ceeded 15 minutes he logs it as on duty but logs it as off duty if it is less than 15 minutes. None of the employees who testified have received any warning letters with regard to their punching practices. Respondent contends that it has demonstrated that the employees do in fact log on duty time as soon after punching the timeclock as possible by comparison of drivers' manifests and logs introduced in evidence during the hearing. The manifests and logs on which Respondent relies are dated various dates between July 7 and August 5, 1970. They in- clude one from Chickerillo on which the manifest is punched at 2:36 and the log shows that Chickerillo commenced driv- ing at 2:45. It contains two from Bowen, one punched 3:26 and 3:16 and both of which show that he commenced driving at 3:30; and contains one from Russell with the manifest punched at 10:56 p.m. and showing the commencement of driving at 11 p.m. Manifests and logsheets are also in evi- dence for driver Zussman, showing in one case that he punched in at 3:45 and showed on duty nondriving from 3:45 to 4:30; another one punched in at 12:24 a.m. and shows him commencing driving at 12:30. Another, for driver Portner, shows him as punching in at 2:47 and on duty not driving from 2:45 to 4:00 a.m. A second for Portner shows him punching in at 12:39 a.m. and driving commencing at 12:45. One for driver Bill shows him punching in at 11:01 and commencing driving at 11:00, a second punching in at 5:06 and commencing on duty not driving from 5:15 to 6:15. Of course this substantiates neither position. There is no basis shown for the selection of these few instances by Respondent and it is not inconceivable that they were selected both be- cause the manifests showed a clearly ascertainable date stamp and the timecards compared favorably with the manifest. Chickerillo, Bowen and Russell testified that at all times they tried to fill out their timecards correctly and quite conceiva- bly Respondent could have selected matching sets of docu- ments covering those times when they did it to Respondent's satisfaction. I did not consider that the documentary evidence is sufficient to overcome the testimony of Chickerillo, Bowen, Russell or Honchell that they chronically violated Respond- ent's rules in this regard and that they had never received a warning letter therefor. That Drudge recognized on his re- ceipt of the letter that he was incorrect in marking his log as he had appears to be the case; his reliance on an alleged variance between the timeclock and his watch so indicates. His contention at the hearing that the problem was occa- sioned by the time he spend looking for his truck and check- ing it out before commencing driving appears to have come as an afterthought and does nothing to support his position that a variance such as that criticized in the letter was a normal occurrence. Further, it appears that his attitude to- ward the correct keeping of his log was somewhat cavalier; three logsheets turned in by him covering the dates July 16, July 23 and August 4, 1970, all during the course of the hearing, are discrepant; the first in that no tally of totals was placed by him as required by the form, the second, the hours were totaled and add up to 26 hours for a 24-hour day and the third, the driving time total is shown as 3-2/3 hours although the form is made out in quarter hours and he tes- tified that it is so kept. I cannot find on the record that the offense which gave rise to the warning letter did not take place nor do I find sufficient evidence on the record as a whole that the issuance of the 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warning letter was a disparate action on the part of Respond- ent. On February 13, 1970, Drudge received a call for an as- signement. James Russell , another employee, handed back a load assigned to him and said he did not want it. The load was then assigned to Drudge who turned it down stating "I don't especially care for it, I'm waiting for whatever comes down the chute next." According to Drudge, the dispatcher then discharged both him and Russell. A few minutes later Drudge returned to the dispatcher and said he would take the load and the dispatcher told him it was too late. The next morning Drudge and Russell called their business agent who promptly called Respondent. The discharges were rescinded and warning letters were sent to Russell and Drudge. Drudge appealed his warning letter in a grievance ; Russell did not. Drudge's grievance was denied by the joint commit- tee. The General Counsel adduced evidence of several drivers including Russell, Bowen, Chickerillo and Honchell. Each of them testified that they had in the past turned down as many as a dozen loads and had never received warning letters. Respondent adduced testimony that drivers are given a choice of available loads by seniority as long as there is more than one load available.' If there is only one load there can be no refusal after the driver has accepted the call and come to the terminal . There is no evidence that in any of the cases referred to by employees other than Drudge, i.e., Russell, Bowen, Chickerillo and Honchell, there was only one load involved and it appears affirmatively that at least in some of the cases other loads were available . For instance, Bowen testified that he ascertained from the dispatcher in one in- stance that he might have a Cleveland or Canton run where- fore he turned down a Cincinnati run and on another occa- sion he turned down an Indianapolis run and another employees threatened to file a grievance if Bowen continued to turn down loads because then he would have to drive them. Again, as in the case of the earlier letter, I find that the evidence supports the Respondent's position that in fact Drudge was guilty of the violation with which he was charged in the letter and the evidence does not show that there was disparate treatment within the ground rules, as set out above, testified to by Respondent witnesses. On March 4, Drudge received two warning letters; both stemmed from the same incident . On February 28 Drudge was in Canton , Ohio, in the late evening. According to his testimony, he received a load the destination of which was St. Paul, Minnesota. Drudge had never driven between Chicago and St. Paul and normally loads from Ohio going past Chicago are delivered to Chicago by the Chicago driver and proceed on west of Chicago with other drivers. According to the testimony of Drudge both the manifest and the envelope or pouch in which he received the manifest showed the desti- nation as St. Paul. Accordingly he returned to the dispatcher and asked her if he was supposed to go to St . Paul stating in effect it might be snowing there and he was not anxious to drive up there. According to his testimony the dispatcher (a woman) told him that she could not care less where he went and that closed the conversation. He then took the load and proceeded through Chicago to St. Paul where he delivered the load. Drudge was furnished another load to bring from St. Paul to Chicago and arrived at Chicago at 12:02 a.m., March 2. The next day he took another load out leaving at 2:45 in the morning. The dispatcher told him that he had not filed the log for the last preceding trip and told him that he would have This accords with Drudge 's testimony. The record states that the other employee was Joe Vitello. However, my recollection is clear that it was a driver below Bowen on the seniority list. to file a tripcard showing a trip from Canton to Chicago because the Employer would not pay him for taking the load to St. Paul past Chicago. Drudge testified that he informed the dispatcher on this occasion that he had already filed his log and tripcard and that he would not change them because he would insist upon being paid for the trip back and forth between Chicago and St. Paul. Upon his return from this trip the following day, Drudge was informed that Operations Manager Schousen wanted to see him in his office . There he was interviewed by Schousen in the presence of Chief Dispatcher Vitello. Schousen in- formed Drudge that the Employer would not pay for the trip beyond Chicago to St . Paul and return and advised him fur- ther that he had not turned in the logs that he was required to turn in. An argument ensued during the course of which Drudge repeated to Schousen the conversation he had had with the woman dispatcher in Canton and Drudge further declined to make a new tripcard and insisted that he be paid for the trip to St . Paul and return . Drudge stated during this interview that the dispatch envelope or pouch had shown the destination of the load to be St. Paul. A further complication involves the envelope or pouch in which the manifest was contained for the St. Paul load, which was torn so that the portion showing the destination was torn off. According to the first testimony of Drudge this resulted from the fact that the seat in his cab was defective wherefore he had used his logbook and the envelope to build up one side of the seat so that he could sit in a normal fashion in it, resulting in a tearing of the envelope . On cross-examination Drudge testified that the tearing resulted further from the fact that the envelope caught in the door handle of the truck as he dismounted in St . Paul and that the portion of the envelope showing the destination had been torn off. He stated that he tucked that portion of the envelope into the envelope and turned it in to the dispatcher in St. Paul. At any rate the envelope was produced in evidence but does not contain nor is it accompanied by the portion showing the destination. As a matter of fact the envelope shows no entries other than the point of departure, Canton, and Drudge's surname. Respondent called Miss Betty Roskos who identified her- self as the night dispatcher at the Canton terminal ; she tes- tified that she recalled giving the pouch to Drudge and that although the pouch showed Chicago as his destination he inquired whether to go to St. Paul. She told him that he was to go to Chicago with it. She testified also that she had a good recollection of the incident, that it was in no way different from any other load dispatched from Canton terminal while she was on duty, that she normally dispatched from 7 to 12 loads per night and there was nothing special about this incident to bring it to her attention. She testified that she had no recollection of Drudge saying anything about the weather in St. Paul or that he did not want to drive there. She iden- tified the pouch or that fragment of it that remained and stated unequivocally that the destination that had been marked on it was Chicago . I do not credit her testimony, I have a definite impression that Miss Roskos' testimony was based solely on the probability rather than on any definite recollection of writing or seeing Chicago on the envelope in question. As a result of this occurrence two warning letters were issued to Drudge, one for driving beyond Chicago to St. Paul with the load, the other for failing to turn in his log. Drudge filed two grievances , one demanding that he be reimbursed for driving a load to St. Paul and for the return load from St. Paul to Chicago, the other demanding that the two letters of reprimand be rescinded . He prevailed in the first grievance but the grievance committee permitted the two letters to stand. GATEWAY TRANSPORTATION COMPANY Drudge testified that he prepared a duplicate set of logs for the Canton to St. Paul trip which he turned over to the dispatcher on the night of March 3 when the dispatcher told him that he had not turned in the log. He stated that he marked them with the word duplicate. Although these logs were in Respondent's possession they were not produced at the hearing. Drudge testified that normally he determined his destina- tion from the manifest contained in the pouch rather than from the face of the pouch and that on the occasions in which the destination shown on the manifest was different from that shown on the pouch he inquired of the dispatcher which he was to follow. Respondent produced several manifests show- ing loads which went from Canton to St. Paul that were driven by Drudge. On none of the manifests did a Chicago termination for the driver appear; other manifests in evidence similarly reveal that the manifest itself does not necessarily contain the destination of the driver whose name appears on it. I credit the testimony of Schousen and the various dis- patchers called to the witness stand by the Respondent that the destination of each trip is signaled to the driver by the legend on the pouch rather than that on the manifest. In the instant situation, however, I credit the testimony of Drudge that the pouch was incorrectly marked St. Paul rather than Chicago and it is for this reason that he called it to the attention of the dispatcher. I believe that the dispatcher did not realize that a mistake had been made on the pouch and answered as Drudge testified. I reach this conclusion partially because the record reveals that Drudge relayed the conversa- tion he had with the dispatcher to Schousen on March 3, immediately after returning from the trip. I believe that there would have been no occasion for the conversation if the pouch had not been marked incorrectly, on the other hand, I have no doubt that Drudge recognized that an error had been made and I believe that he deliberately relied on the error in driving past Chicago to St. Paul for reasons of his own. He testified that although he had never driven past Chicago under similar circumstances he was afraid not to on this occasion because of the warning letter he had received, and he testified that he was afraid that he would receive another warning letter if he failed to follow the written in- struction. I do not credit this explanation. Under all the circumstances of this case it appears much more logical for him to have called the Chicago terminal, at least when he arrived in Chicago, to resolve the problem before preceding on to St. Paul. I also credit Drudge's statement that the pouch, when he turned it in at St. Paul, contained the missing section showing the destination. I reach this conclusion based on the probabilities of this situation. The St. Paul terminal must have been, to say the least, surprised by Drudge's arrival with the truckload of merchandise inasmuch as the testimony is clear that no other Chicago driver delivered loads between Chicago and St. Paul. Under these circumstances the probabilities, in my opinion, are that the St. Paul terminal would have checked with the Chicago terminal immediately and would have checked the pouch to determine whether Drudge's orders were to deliver the load to St. Paul. It is clear that Drudge spent some time in St. Paul before returning with another load from St. Paul to Chicago. There is no evidence that the dispatcher or anyone else in St. Paul asked him about the torn envelope or attempted to determine the whereabouts of the missing section of it. I conclude that this was only because the missing section was in their custody at that time and it was not until later that it became separated from the pouch. 203 I conclude that the warning letter regarding the St. Paul trip was issued by Respondent in retaliation for Drudge's deliberate misunderstanding of the trip he was expected to make. I do not believe that Schousen was aware at the time of writing the March 4 letter that the envelope in fact directed Drudge to take the load to St. Paul but, on the other hand, I agree with Respondent's position that even if it had Drudge did not take the proper steps to ascertain whether the en- velope was in error. Under these circumstances I believe the letter was warranted and that the General Counsel has failed to show by a preponderance of the evidence that it was issued with a discriminatory motivation. The General Counsel adduced evidence from several driv- ers that they had taken loads to the wrong destination in the past and had not received warning letters. However, in each such case it appears that the loads were taken to destinations within the normal sphere of Chicago drivers' activities and the situation was not such that the drivers should have known that they were not to take the loads to the destination at which they were delivered. I do not consider that this evi- dence sufficiently shows such a disparity of their treatment to warrant a finding that the issuance of the letter of reprimand to Drudge was discriminatory. With regard to the second letter referring to Drudge's failure to turn in an ICC log for March 1, I credit Drudge's testimony that he did turn in a log together with a tripcard for the entire trip and that he was warned by the night dis- patcher on the morning of March 3 to change his tripcard because he would not be paid for the trip to St. Paul. I do not believe that the night dispatcher made any reference to changing his log, but that Drudge assumed such a reference from the fact that he believed that the log and the tripcard had to be consistent, accordingly, that the log too had to be changed. This he refused to do. It is clear that logs were occasionally misplaced when they were turned in, all the witnesses agreed to that and also it is true that with some frequency drivers failed to turn in logs on time. No occasion appears to have singled out Drudge on this occurrence, even if he had failed to turn in a log, warranting the issuance of such a letter, in the absence of evidence that other drivers who failed to turn in logs were reprimanded,' I conclude that the only reason for the issuance of the second March 4 letter was an excess of irritation with Drudge, both because of his un- warranted trip to St. Paul and because of his activities both on his own behalf and on behalf of any other driver who had a grievance to stir up trouble between the Employer and the Union. I conclude that the issuance of the warning letter of March 4 with regard to the failure to turn in a log was discriminatory within the meaning of Section 8(a)(3) of the Act. The March 9 letter again deals with the failure to turn in ICC logs for March 6 and 7. There is no substantial evidence on the record regarding this matter other than the fact that the letter was issued. Operations Manager Schousen testified that he was told by Chief Dispatcher Vitello that Drudge had failed to turn in the two logs and he immediately issued the letter of March 9 without further investigation. Vitello did not testify with regard to the letter or the incident and Drudge testified only that if he had failed to turn in the logs and anyone had spoken to him about it he would have turned in duplicate logs which he would have marked duplicate. The only evidence of any reprimand letter having been issued for failure to turn in logs was that given by driver Bowen, who testified that when he first started to work for the Company he turned in logs at the end of each week rather than on a daily basis and received a reprimand after several weeks of this practice Since that time, although he has on occasions forgot- ten to turn in logs, he has not been reprimanded 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent did not come forward with logs purportedly turned in by Drudge, thus there is no way to determine whether Respondent's file contains original or duplicate logs. Drudge testified that he had no recollection of the incident and was testifying only from the probabilities. Vitello was not asked to testify concerning the incident giving rise to the March 9 letter. Thus the only evidence we have is Respond- ent's evidence that it was issued by Schousen because Vitello told him the logs were not turned in and because, having just issued a similar letter on March 4, he considered that the failure to turn in logs immediately thereafter required the issuance of a warning letter and the testimony of Drudge that he in fact did turn in the logs and that if he was asked thereafter to turn them in he turned in duplicate logs. I conclude, in view of the fact that as I stated above logs appear to have been misplaced by Respondent's clerical em- ployees on other occasions and Respondent apparently issued a warning letter in this instance without any investigation, not even a conversation with Drudge, that the warning letter resulted from Respondent's irritation with Drudge rather than any good-faith effort to require him to mend his ways. Accordingly I find that the issuance of the warning letter was discriminatory within the meaning of the Act. The next warning letter was dated March 11 and dealt with the same trip that had resulted in the warning letter of March 9. The issue here was that on Saturday, March 7, Drudge arrived in the late afternoon at the Mansfield, Ohio, terminal with a load. The terminal was closed and Drudge drove his tractor to the Blue Bell Motel where he spent the night. The Blue Bell Motel is the place to which Respondent's drivers are instructed to go. Normally the motel keeper is called and comes and picks the drivers up at the terminal or they take a taxi to get there. A sign posted at the Mansfield terminal directs the employees to stay at the Blue Bell Motel and to call the Blue Bell owner or the taxicab company for transpor- tation. Drudge testified that he did not telephone for trans- portation because the only telephone available to him was located in the terminal drivers' room and a lock had been placed on the dial so that it could not be used. He testified that the nearest public telephone was variously three quarters of a mile and a half a mile away and he did not want to walk that far so he took his tractor and drove to the motel. He testified that this was not an abnormal procedure, that he had driven to the motel on other occasions and that he had seen other equipment of Respondent's parked at the motel obvi- ously having been driven there by Respondent's drivers. There is no evidence that any other driver ever was given a warning letter for using company equipment to go to the motel. The manager of the Mansfield terminal testified that no driver was ever permitted to use Respondent's equipment to drive to the motel, that he had no knowledge that any driver had ever done so other than on the one occasion concerning Mr. Drudge and that there was no lock on the telephone and never had been. He testified that Drudge's use of his tractor came to his attention because Drudge had been unable to start it the next morning and he had been called to supply mechanical assistance in getting the tractor started at the motel. As a result of this he reported the matter to the Chicago office and a warning letter resulted. A number of drivers testified, supportive of Drudge, that they had used Respondent's equipment at the Mansfield ter- minal to drive to the Blue Bell Motel and had never been criticized therefor and they also agreed with Drudge that a lock had been placed on the telephone in the drivers' room so that it could not be used to call a taxi or to call the motel owner. Respondent contends that there is no evidence that the terminal manager knowingly permitted any driver to engage in the practice of driving to the motel. However, the terminal manager testified that on each occasion that a taxicab is called or that the motel keeper provides transportation the Com- pany is billed for the transportation and that he compares the bills with the motel bills and forwards them for payment to the main office of Respondent. Accordingly, each time the driver used Respondent's equipment to go to the motel it must have been apparent to the terminal manager because no bill for transportation would be forthcoming. He must there- fore either have known that Respondent's equipment was being used for local transportation or have chosen to ignore the notice implicit in the absence of bills from either the taxicab company or the motel keeper for transportation. I find that for a period of time a lock appeared on the telephone in the drivers' room and that the incident occurred as Drudge testified. On cross-examination the plant manager testified that a notice produced by him which gave instructions to the drivers as spelled out above was not the only notice posted. He said there were other notices and specifically a notice that under no circumstances are drivers to take tractors to motels. Further on in his cross-examination, however, he testified that the notice placed in evidence was the only notice that was posted the first 3 months of 1970. I do not credit his testimony that a notice was posted that drivers are specifically forbidden to take tractors to motels. The terminal manager from Mansfield testified that he called Schousen in Chicago on Monday, March 9, and in- formed him that Drudge had broken the rule of the Mansfield terminal and used a tractor to go to the motel. Schousen testified that when he received the bill from the mechanic for starting the tractor that he called the terminal manager in Mansfield and ascertained that there was a rule against driv- ing company equipment to the motel in Mansfield just as there was such a rule in the Chicago terminal and it was then that he determined to issue the warning letter. If the terminal manager were to be credited there is no explanation for the fact that Schousen waited from March 9 to March 11 to issue the warning letter; there was no delay about issuing the warn- ing letter of March 9 which concerned Drudge's alleged fail- ure to file his logs at the end of the same trip. On the other hand, if Schousen is to be credited, I would have to assume that the mechanic submitted his bill for starting the tractor at the motel very promptly and directly to the Chicago termi- nal although it appears that he was retained by the Mansfield manager for the task of starting the tractor. In either event there is no evidence that any other driver was even warned with regard to using his tractor to go to the motel in Mans- field, although it was frequently done. I believe that the.Gen- eral Counsel has sustained his burden of proof with regard to this allegation and I find that Respondent issued the letter of March 11 in retaliation for Drudge's activities in grieving and complaining to Respondent. The last of the warning letters placed in issue in this pro- ceeding was issued March 24, 1970, and warned Drudge about failing to punch out in the correct space on trailer manifests after having been cautioned and instructed by dis- patchers. The March 24 letter recited that manifests covering 11 trips during the month of February 1970 were improperly punched so that the clerical employees who had threafter to deal with them were unable to read either the time of depar- ture or arrival or the date or both. Drudge testified that during his entire tenure with the Employer he frequently punched manifests incorrectly. He testified that in the latter part of 1969 he was admonished by Dispatcher Harper, but that otherwise he had had no warning or complaint from Respondent with regard to punching. Operations Manager GATEWAY TRANSPORTATION COMPANY Schousen testified that he told both Chief Dispatcher Vitello and Harper to warn Drudge about the problem and that when, in the latter part of March, he was informed by a clerical employee that 11 of the manifests during the month of February had been improperly punched he decided that it was necessary to issue a warning letter. Six of the 11 manifests were placed in evidence by Respondent, some of them were not time-stamped at all and on others the time stamp had nearly missed the paper so that it was impossible to read either the date or the time of the stamping. Most of the manifests used by Respondent contain boxes in which the time stamp is supposed to be punched showing the time of departure and time of arrival. On some of the manifests these boxes appear at the bottom of the page, and, on others, at the side. A number of manifests furnished by other drivers, including those who testified in support of Drudge's position, were put into evidence by Respondent for this and other purposes. Each of them contains a clear date and time stamp in the appropriate place. Drudge testified that some manifests are never punched at all because on his arrival at a destination terminal the timeclocks were locked in the terminal. In that circumstance he testified he would either write in the time or just ignore it. He testified that he recalls missing the little boxes "untold times." Driver Zussman tes- tified that he would punch the manifest wherever he could find an opening and tried to punch it in spots where it could be read. Sometimes, he stated, one punch is right over another because of variance in the clocks. He testified he never re- ceived a warning. Driver Portner testified that he would punch his manifest wherever he could find room. Driver Bill testified that he would punch the manifests in the approxi- mate area and on a few occasions he had not punched the manifests at all. Honchell testified that he punched them in the correct box unless the manifest was torn or mutilated and in those instances he would punch it wherever it would show. Drivers Russell, Bowen and Chickenllo stated that they punched outside the proper boxes on several occasions. Each of them testified that they had never received a warning letter. General Counsel contends that the testimony of the other drivers reveals a discriminatory imposition of the Company's rule. None of the other drivers testified that they consistently punched manifests in such a way that they could not be read and the tenor of the testimony of each of them was that they attempted to time-stamp the documents in such a way that it could be read. The manifests placed in evidence by Respondent, upon which the letter was based, reveal, if nothing else, that they were punched carelessly with no regard to whether the date stamp would be legible. The General Counsel made no effort to have Respondent produce manifests illegibly punched or not punched at all by drivers other than Drudge and I cannot deduce from the evidence offered from drivers other than Drudge that their violation in this regard was in any way as frequent or consistent as Drudge's. There can be no question that he did in fact breach the company rule of which he admittedly knew and did it with great consistency at least during the month of February 1970. Under these circum- stances I cannot find that the General Counsel has prevailed in a showing that the issuance of the warning letter was discriminatory. I have found above that some of the warning letters were issued for discriminatory reasons and that the General Coun- sel failed to prove by a preponderance of the evidence that others were issued for discriminatory reasons. The former findings of course raise a suspicion with regard to the latter. In each of the latter instances recited I found Resondent had good reason to believe that Drudge was guilty of the miscon- duct which gave rise to the letter, but where a finding is made 205 that some letters were discriminatory in their inception a suspicion naturally arises that all were. However, suspicion is not evidence and it is my opinion that Respondent in the normal course of its business would have issued warning letters under the circumstances that they were issued herein. The Spielberg Issue As I have stated above each of the warning letters issued to Drudge resulted in the filing of a grievance by Drudge. These grievances were considered by grievance committees established by the two contracts under which Respondent's drivers worked. Respondent contends that under these cir- cumstances the Spielberg doctrine' should be applied. The General Counsel on the other hand contends that the Spiel- berg doctrine, as it has been spelled out in various succeeding cases, is not applicable to the situation for various reasons including the reason that the grievance panel did not consider the issue of discrimination but based its decision only on the issue of whether Drudge was in fact guilty of the misconduct charged in the warning letters.' Further, General Counsel contends that the evidence reveals that the grievance commit- tee did not consider the issue of the pretextual nature of the warning letters. The joint state and local committees have no provision for a written decision; no formal record is kept of the grievance hearing' and it cannot be determined from the committee decision what if any issues were considered by the committee. The Board has in the past given conclusive effect to awards issued by committees such as this.'° In Modern Motor Express, Inc., 149 NLRB 1507, the Board deferred to a grievance decision of the joint committee, under the circumstances that the alleged discriminatee raised the issue of discrimination for concerted activities by stating to the committee when asked if he had anything to say, that he thought the disciplinary action was taken because he had filed a grievance. The Board there assumed that this issue having been placed before the committee, the committee gave it due consideration in its award. The General Counsel likens the instant case to the situation in Monsanto Chemical Com- pany, 130 NLRB 1097, where the arbitrator specifically stated that he was ignoring the issue of union activities and in which the Board stated that under the circumstances it would take cognizance of the violation in spite of the arbitra- tion. In the instant case Drudge's grievances attempted to raise the issue. In his grievance dated March 16 relating to the March 11 warning letter, Drudge stated: This letter is only because of concerted activities with fellow employees. because of charges filed with NLRB discrimination as in past letters, also letters that are yet to come per grapevine [sic]. In his grievance of March 16 relating to the warning letter dated March 4, he stated that the warning letter was untrue and "is very discriminating. And was wrote only because of past concerted activities with fellow employees." Unquestion- ably the discrimination issue was placed squarely before the committee. But I do not believe that it is sufficient to show that the committee had the issue before it. This was what happened in Monsanto, supra. If the issue was not considered by the arbitrator, he cannot be said to have decided it. Spielberg Manufacturing Company, 112 NLRB 1080 As I have found above Drudge had in fact committeed the misconduct charged in each of the warning letters ' The committee refused to let Drudge have his own court reporter present 10 Roadway Express, Inc., 145 NLRB 513, Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, Razor Express, Inc, 172 NLRB No 201 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Each of the grievances concerning warning letters resulted in the same ruling "Letter Stands." It is impossible to deter- mine therefrom whether the committee in any way consid- ered the issue. The only specific evidence relating to the con- sideration of the issue by the committee is found in the testimony of Drudge that at the meeting of the grievance committee at which he appealed the warning letters of Febru- ary 18, March 4, March 9 and March 11, on each of his grievances his union representative, Sobel, simply read his name, the statement from the grievance form and then stated that the grievance was mailed to him and he knew nothing about it. In each case then Drudge attempted to present the evidence that he felt support his position including hotel bills, copies of manifests, etc. However, when Drudge attempted to raise the issue of the alleged discrimination and to present copies of the charges filed with the Labor Board to the com- mittee he was told "we don't need that. That doesn't have anything to do with it." No support in the form of argument or the production of evidence was offered by Sobel at any time other than his statement that he had received each grievance in the mail and knew nothing about it. The entire grievance procedures; undertaking disposition of eight separate griev- ances, took about 15 minutes in the presentation and 5 or 10 minutes in the decision. I question whether in that time any serious consideration of the charge of discrimination could have been made but I am not required to so decide inasmuch as I infer from the statements attributed by Drudge to the committee that they were not interested in the charges filed with the Labor Board and that they were not concerned with that issue, because this was not a matter considered by the committee. Under these circumstances I do not believe that the mere fact that Drudge attempted to raise the issue both in argument to the committee and in his grievances gives rise to an inference that the issue was considered by the commit- tee. Accordingly I do not believe that the Spielberg doctrine applies in the instant case or that the Board should defer to the committee decision on the grievances filed by Drudge." It is clear that the effect of the issuance of a warning letter under the terms of the contractual arrangement between Re- spondent and Local 710 is to place the recipient of the warn- ing letter in a position where another similar violation could result in summary discharge. Accordingly I find that Re- spondent violated Section 8(a)(3) and (1) of the Act by the issuance of the warning letters of March 4 and March 9 regarding turning in logs and the warning letter of March I 1 regarding the use by Drudge of his tractor to drive to a motel, for the purpose of discriminating against him because of his activity in filing grievances and complaining concerning his and other employees' grievances to the Company and for the purpose of interfering with, coercing and restraining Drudge in his filing and processing of such grievances. 11 Monsanto Chemical Company, supra. Unlike the circumstances in the recent decision in Terminal Transport Company, Inc., 185 NLRB No. 96, 1 am not rejecting the award because I would have reached a different result on the evidence presented to the arbitration panel, nor because the award evidenced a failure of the arbitrators to resolve the issue of discrimination. I find that the reaction of the "arbitrators" to Drudge's attempt to raise the issue evidenced the arbitrators' failure to resolve that issue rather than the fact that the award itself gives no clue to their consideration of the issue. In the instant case I find that Drudge was inadequately represented, if in fact representation can be attributed to Sobel, who took no part other than to say he knew nothing about the grievance. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section II, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY having found that Respondent has engaged in certain un- fair labor practices I shall recommend that it be ordered to cease and desist from engaging in such conduct and take the affirmative action specified to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent discriminatorily issued warning letters to employee Drudge on March 4, 9 and 11 in violation of Sec- tion 8(a)(1) and (3) of the Act in reprisal for filing grievances and complaining about wages, hours and working conditions and conditions of employment. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclu- sions of law and the entire record in the case, I recommend that the Board enter an order requiring Respondent, its offic- ers, agents, successors, and assigns, to: 1. Cease and desist from: (a) Issuing warning letters or in any related manner dis- criminating against employees in reprisal for the filing of grievances or entering of protest or complaints concerning wages, hours and conditions of employment. (b) By any like or related conduct interfering with, restrain- ing or coercing employees in the exercise of the rights to self-organization, to join or assist the Union or any other labor organization, to bargain collectively through represent- atives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Withdraw and expunge from its records the warning letters found hereinabove to have been issued for discrimina- tory reasons and make necessary provisions that those warn- ing letters shall not be used as a basis for further disciplinary action against Forrest Drudge. (b) Post at its terminal in Chicago Ridge, Illinois, copies of the attached notice marked "Appendix."" Copies of said 11 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a Judgment of a United States Court GATEWAY TRANSPORTATION COMPANY notice, on forms provided by the Regional Director for Re- gion 13, after being duly signed by Respondent's representa- tive, 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 em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13 in writing within 20 days from the date of receipt of this Decision what steps the Respondent has taken to comply therewith." of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against Forrest Drudge or any other employee by issuing warning notices in re- 207 prisal for the filing or processing of grievances or enter- ing complaints regarding wages, hours and working con- ditions and conditions of employment for himself and other employees nor in other like manner interfere with, restrain or coerce employees in the exercise of their rights to self-organization. GATEWAY TRANSPORTATION COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, Rm. 881, Everett Dirksen Building , 219 S. Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.