Darling Freight, Inc.

DARLING FREIGHT INC. 219 Darling Freight, Inc. and Kenneth Norton. Case 7-CA-7952 July 26, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On January 20, 1971, Trial Examiner Ramey Donovan issued his Decision in the Above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial `"Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision supported by a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers'm'connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and, finds that no prejudicial error 'was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the' case, and hereby, adopts the findings, conclusions, and recommendations of the Trial Examiner,' with the following additions. We agree with the Trial Examiner's findings that Respondent was aware of Norton's union activities and associations, and that he was treated disparately and unlawfully discharged because of those activities and associations. The record shows that except for Ellsworth and perhaps one other (Poling),2 all the drivers, including Norton, submitted, and the Re- spondent received, replies to its telegrams within a 24- hour period, but that Norton, and only Norton, nevertheless was discharged for the stated, but false, reason that he failed to reply to his telegram. Respondent attempted to abandon this defense at the hearing where it then claimed that Norton was discharged because his telegraphic response did not contain a valid reason for not reporting to work as directed. But, as explained by=the Trial Examiner, this is not persuasive. Nor does the fact that it was Norton's wife,-acting upon Norton's instructions, who sent the telegram, or Norton's obvious inability to commence work within the designated period, afford Respondent any defense since it was neither aware of, nor relied- upon, those factors when it discharged Norton. If further evidence of disparity is needed, it is supplied by Respondent's failure to terminate any driver except Norton for' not reporting for work 192 NLRB No. 24 within the 24-hour period while at the same time countenancing their absences for periods up to 10 days before taking any action against them. Moreover, even assuming that Respondent's ac- knowledged disparate treatment favoring Ellsworth, who ignored Respondent's telegram but nevertheless was reemployed, was based on special considerations in that Respondent may have desired to lease Ellsworth's trucks as well as obtain his driving services, we note that Respondent nevertheless made a specific point of telling Ellsworth that "under no circumstances" would it reemploy Norton and, in effect, made Norton's exclusion a condition of its arrangements with Ellsworth. Respondent took this position, moreover, even -though it conceded ,that it was in great need of all the trucks and drivers it could get and despite the further fact that one of Ellsworth's trucks had no driver, and remained,idle for the 30 flays it took Respondent to find a driver. - - In .these circumstances, and against the background of Respondent's characterization of Norton as a "disruptive influence" and Norton's active opposition to the Union `with Which Respondent contemplated a continuing relationship, we agree with the Trial Examiner that Respondent's discharge of Norton was unlawfully motivated. - ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the - National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Darling Freight, Inc:, Detroit, Michigan, its officers, -agents, successors, and assigns,, shall take the action set forth in the Trial Examiner's Recom- mended Order. 1 As the exceptions,,brief, and the entirerecord in this cast adequately present the issues and positions of the parties , Respondent's request for oral argument is denied. - 2 While the record indicates, contrary to the Trial Examiner's finding, that Poling too had responded to the 'telegram,' we ,note that Poling's severance was a voluntary quit and did not result from a failure to respond. Thus, the record shows that the broker for whom Poling drove canceled his lease with the Respondent and Poling chose to go with the truck, to another employer. TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner: The charge in this case was filed on May 21 , 1970. A complaint was issued on August 12, 1970, against Darling Freight, Inc:, Respondent herein, alleging that,, since on or about' -May 6, 1970, Respondent had terminated employee Kenneth Norton and thereafter refused to reinstate him because of his activities in and allegiance to the Fraternal Association of Steel Haulers, herein FASH, and because he was elected acting committeeman of the Teamsters Union, and because of other union activities . Such conduct was alleged to be in violation of Section 8(a)(1) and(3) of the Act. In its answer 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent 'denies the allegations of discrimination and states that Norton's termination wasa "voluntary quit." The case was tried in Detroit, Michigan;-dn October 14, 1970. FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent. is a' Michigan corporation with its principal office and place of business in Grand Rapids, Michigan. -There are other terminals or installations of Respondent in Michigan, Illinois, Indiana, and Kentucky, and Respon- dent.at all material times has been engaged in the interstate and intrastate hauling of steel and other freight. ' - In' a representative year, Respondent, at its Michigan installation, purchased and caused to be transported and ,delivered goods and materials valued in excess of $500,000, of which goods-and materials valued-in excess of $50,000 -,were transported'and delivered to its Michigan installations directly from points outside Michigan. Revenue in excess of $50;000; ,of gross revenue in excess of $500,000, was derived from the- interstate hauling of steel-and other goods; and revenue in excess of $50,000 was. derived from services ,performed in and for various enterprises located in States other than Michigan. Respondent is an employer, engaged in commerce within the meaning of the'Act: FASH is a labor organization within the meaning of the Act. Local 299, International, Brotherhood of Teamsters, Chauffeurs, Warehousemen- and Helpers of America, herein the, Teamsters, ,is a, labor, organization within -the meaning of the-Act.. , 'II. THE ALLEGED -UNPAIR LABOR PRACTICES Respondent is a; member of an employer's association that negotiates and enters, into a,national master freight agreement, i. e., a national contract,-,with the Teamsters. The relevant contract in this proceeding expired' on March 31, 1970. The parties were in negotiations for a new contract from approximately September 1969 to June 1970. Norton was aroad driver in Respondent's steel division,' working out of Respondent's Detroit installation, from April 1967 to January' 1968. He then' worked for another trucking firm for 4-months and returned to.Darling in April 1968 until his' terminationby Darling in May 1970. ' While employed by Darling, Norton drove for Ellsworth, described by Norton as "the broker I drive for." A broker in the industry, is an owner of trucks who leases the latter to a trucking company. Taking Ellsworth as a specific example, hehas leased,his.trucks to Respondent since 1962. Ellsworth has five trucks, two in his own name and three in his wife's name'thathe controls. The drivers of thettrucks that broker Ellsworth-,leases to Respondent are, Respon- dent's employees and their pay and deductions therefrom, I The steel division, as the name implies, hauls steel, as distinguished from the general freight division which evidently hauls goods or materials other than steel.- 2 Ellsworth is, a driver-broker..He himself drives one of his leased trucks at least part of the time. As a driver he is an employee of Respondent and can be hired or fired. As a lessor of trucks , he is regarded as a,broker or owner•operator and his 'relationship can be ' terminated by Respondent hiring and firing,- and work orders are' handled by Respondent .2 Despite the fact that the drivers are not the employees of the broker, there is a relationship between the driver and the broker, whose truck he drives . As indicated, above, for instance, when asked' at the hearing who Ellsworth was, Norton said that "He is the broker I drive for." 3 The broker, because of insurance provisions , can exercise, in effect, a veto over a driverassigned to drive his truck. As far as appears, both the lessee, Respondent, and the broker would have ordinarily °the same interest in having the trucks driven by competent and reliable drivers._Ellsworth, for instance, discovered that as driver of one of the trucks had been drinking while driving. Ellsworth did.notwant such a man driving his truck and , he reported , that matter to Respondent: Although , Ellsworth -in his testimony did not describe the entire incident; we- assume `that Respondent was as much opposed to,having ,its employee drinking while driving Respondent's materials onaleased , truck as was the broker. The evidence indicates that ' there is at least a relatively substantial degree of stability and continuity in the relationship between a broker and the then who drive his trucks: It is apparenf that the trucks that haul 'steel would be heavy and powerful vehicles and that they represent a considerable investment by the 'broker. Although there is no copy of a lease in therecoid,,the evidence indicates that the broker is responsible for the maintenance and repair of his trucks., Because of his-investment and-responsibility for the truck, the broker obviously is interested in' the men who drive ,his particular trucks and, if he - has a satisfactory driver and the driver, on his part,finds that the truck he drives is satisfactory and is well maintained so that` the driver secures adequate driving time ,'a considerable degree of stability' enters into the 'relationship.- Of course an employer, such as Respondent, who leases the trucks and employs the drivers, can exercise flexibiility`in assignment of drivers if situations arise in the course of business, but there is no indication that any of the parties involved view it as desirable or normal -,practice, that drivers drive different trucks of different brokers everyday. - A few specific illustrations of ,the. foregoing are: In early April, 1968, while Norton was working for another employer, Ellsworth told him he was "going to put on another 'truck for Darling and`would'I be interested in driving... ," Norton said , yes,`and returned to work for Darling where he drove Elsworth's trucks.4-An example of the rather limited circumstances under which-4 driver might be assigned -todrive a truck other than that' of his '"own" broker is found in a portion of Ellsworth's, testimony. A driver named Landrum-, employedby Respondent, drove a truck of broker Tennant. The, truck had broken down. Peterson, Respondent's vice president of personnel, called Ellsworth and asked him if he had , a' truck available. Ellsworth said,, "yes," and, Peterson asked ` if Ellsworth canceling the lease. 3 Norton has, however, driven trucks of brokers other than Ellsworth., - 4 Its is interesting to note that when, at this pomt,Norton was asked "who is Ellsworth?" he did not simply 'say, a broker who lease's trucks `to Darling, but said "He is the broker, I drive for,", indicating the way the driver-broker relationship was regarded. DARLING FREIGHT INC. 221 would take Landrum as a driver of the truck and Ellsworth agreed.5 Having described some basic facts that are relevant to the case, we return now to Norton. He, is and has been a member of Local, 299 ^ `of the- Teamsters, which has jurisdiction in the Detroit area and of most of the drivers engaged in hauling steel. Since 1967 Norton has also been a member of FASH' and he is, president of the Michigan chapter of that organization: Norton has not been passive on employer-employee matters where he believes that the employer has acted unjustly or unfairly or inadequately. He estimated that he had filed about 12 contract grievances with Respondent and most of them were evidently in 1969. Whatever the precise number of grievances, the evidence shows that at least sixof these` grievances reached the-point, of the level of, Respondent's president, Darling, whose office is in Gary, Indiana. This might indicate that the grievances were not resolved at a lower level; e.g., by the manager of the steel division in Detroit, Jolly, who, had held that position, for about 15 years In any event, President Darling, on Apri1.24,1969, wrote to McMaster, assistant to the president of the Union, about six grievances filed by Norton. - Darling's-letter aforementioned stated: I am in receipt of, several grievances from a Kenneth E.^- Norton,- driver for a fleet owner and in our Steel Division. =Mr. Norton, to say the least; is a disrupting influence in our, fleet with his continual harassment of the company officials. Taking his grievances one-at a time , I will give you what answers as best I feel are appropriate-and if-they are not satisfactory, I feel same should be docketed for hearing before the Iron & Steel Committee. The letter then, describes each of the grievances and Respondent's ;positionlon each. Obviously, the merits of- the grievances are not before us and, in any`event, we are not in possession-of evidence, that would enable us to express an opinion: -However, from reading , Darling's description of the--grievances' and his, position on each, the matters involved appear to, be things _ about-which there could. be reasonable disagreement. Maybe Darling was right, maybe Norton was right or, perhaps there were relative degrees of merit or lack of ,merit in the positions. But we see no evidence of,paranoia 'or completely picayune behavior in 5 Drivers had seniority with, Respondent and with *_b it particular broker: If, for instance,' the latter secured a new truck, his senior driver would' be given the first choice to drive the new truck instead of an older truck that he was driving. 8 The national contract which is in evidence mentions local grievance procedures-but does not spell them out. 7 The indication is that eventually Norton was not entirely satisfied with the, handling of his grievances either by the Employer, or the Union, or possibly both., For,instance, he was asked at the hearing why he had not filed a grrevanceabout his termination, the subject of this case. He'replied, "Because I -never heard how thentest of them came out , [the grievances previously filed, above-." At another point he spoke of a "runaround" on one of his principal grievances. It was on this same grievance of a 3-percent deduction that Norton, communicated with Senator Griffin and in the course of correspondence he believed he had received a copy of Darling 7s letter to_ McMaster.,, his relight indicate that the Senator had been in communication with either the Company or the Teamsters pursuant to the matter raised with him by Norton . One of the grievances covered by the Darling letter was this 3-percent matter. The circumstances might also indicate that the Company had become aware that-Norton had gone to the Senator about the matter and had supplied theletter to show the position it the grievances and Darling discusses them temperately and without imputation of the above type. He disagreed on the- merits, as, of course, was his right. But Darling did say, as we-have seen, that he regarded Norton, as "to say the least ... a disrupting influence in our fleet with his continual harassment of company officials {by filing a substantial number of grievances]." 7 - u, - The above matter,-as to materiality-regarding later events, merits neither exaggerated significance ' nor complete minimization. It is not claimed that Respondent or its president or other management people are antiunion or that they are not reconciled to normal union and management relations - under a , contract including the filing and processing of, grievances. But the factis, albeit about a year prior to Norton's termination, Darling, the top officer of Respondent, viewed Norton as a disrupting influence who was continuously harassing management officials with his complaints and grievances and Darling took the trouble to convey,this view to a top official of the Union.- Bromley testified that he became _top operating officer of Respondent's steel and special commodities division in November 1969. This was a new post and Bromley, with, the title of president of the division, took over many, of the duties previously performed by Darling with respect to the division., However, Darling remained the chief, officer and president of Respondent. He, was not ,a president emeritus. Jolly was still manager of the steel division -and we assume that Darling, when he wrote his April 1969 letter,,had been previously-, briefed by Jolly or other management.-people about the details of the Norton grievances , It is, not likely that Darling or later Bromley would-be so familiar with all the details of various grievances that ,;they would not secure some briefing from subordinates .s There was therefore a basic management continuity in the steel division even with the advent of Bromley and there is no reason to believe that Darling as president was not also a-factor in the ,continuity regardless pof whether some of his duties were now carried out by Bromley .9 For, some time the drivers at Darling had not,had, a grievance committeeman. In March or April 1970, Norton originated , a petition on the subject, signed by Darling drivers, that was sent to Proctor, business, agent of , Local 299. Proctor claimed he had, not received,it. Norton then had taken. Perhaps all this might be viewed as further "harassment" by Norton of the Company. 8 For instance, the record shows a February 1969 grievance filed by Norton-as an employee. The "management" version of the particular incident that was the subject of the grievance is set forth in an April 8, 1969, memorandum from Owens , dispatcher'at the Detroit steel'division, to Jolly. It is reasonable to assume that Jolly in turn would brief higher management if the grievance reached that stage. 8 At the time Norton secured a copy of Darling's letter,'above, Norton showed it to Olsen and Owens, two of Respondent's dispatchers. They told Norton that he was trying to make trouble for the Company but that the Company could make more trouble for hun than he 'could for the Company. After being told this,'Norton-posted the letter on the bulletin board' "for everybody to see." Ellsworth testified that, around the spring of 1969, he had a conversation with Darling and Jolly and-"... they said he [Norton I had been causing quite a ]bit of disturbance with the Company and [they I asked me to fire him...." Ellsworth refused and said that if the Company wanted to fire Nortoji it would have to do it. Ellsworth told them that, as long, as Norton was doinga good job for'lum , Norton could stay on Ellsworth's truck even if Ellsworth had to remove the truck from Respondent's service. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD placed a petition on the Respondent's bulletin board so that drivers might sign'it 10 This petition disappeared, so Norton and other drivers went to a,Teamsters meeting and brought up- the matter. As a result, Norton was appointed acting committeeman- by Proctor, business agent of Local 299 of the Teamsters. By letter of April 16, 1970, Proctor advised Jolly, Respondent's manager of the, steel division, of Norton's appointment. Thus, Respondent was aware that Norton,- who, as a rank-and-file driver, and union member, had been, characterized by Respondent's president as a disrupting influence because of'his "continual harassment of the' company' officials" by filing grievances, had, now been-appointed grievance committeeman for Local 299. In the circumstances - described, we cannot believe ^ that Respondent's management regarded Norton's, appointment as welcome news. Norton never reached the point of actually functioning as committeeman since the contract expired on March 31; 1970, and was followed by astrike, a lockout, and Norton's termination. The strike, work stoppage, or protest;,as it, was variously' referred to in" the record, commenced' early in April ,1970. About April' 7 there was, a lockout by Respondent-'for approximately I week.'1 - This case has not b'een' presented or tried by the parties on the basis of the legality or illegality of the strike or lockout or on the basis of the legal status of the employees involved, including Norton. The crux of the case is -Respondent's contention, in effect, that Norton was treated no differently than other employees who had not been working during then above events andthat his ' termination was not due to illegal discriminatory considerations. The General Counsel, on the other hand, contends that Norton did not -receive evenhanded treatment but that he was discriminated against because of'his past union activity and because=of his activities with 'FASH. 'Despite-the foregoing posture of the case, the issues `and facts cannot be adequately evaluated without some description of what the record- shows was' involved'in the events -occurring after the expiration of the contract. It is also to be stated that this record, did not undertake a -full scale examination of the relationship or dichotomy' between the -Teamsters and FASH and it was, not necessary -that it'shiku'1d.12 But, again,' there are certain references in.'thelrecord t6'66 Teamsters,and FASH that form part of the instant factual picture. - Although_ the employer association and the Teamsters had been and continued to be in negotiations for many, months, the contract expired on March 31 and the parties had not been able to agree on the terms- of anew contract until 'June 1970. Although Local 299 did not sanction a 10 This and the prior petition were evidently intended to request the Union to rectify the lack of a committeeman. ' I" Although the record is not, clear on the point, the lockout was probably not confined to Respondent since the latter was a member of an employer association that was n `egotiating with and otherwise dealing with, the Teamsters, the employees' bargaining agent. 12 The Teamsters for one thing were not `represented at the hearing and were not involved' as an organization. is Bromley testified that the drivers "were probably out for two reasons . the contract` wasn't settled .., and they claimed they' 'ere unhappy with the Teamsters: It was in all of the papers " Sometime around the -middle of 1970, 'Norton states that FASH filed a petition for certification with the NLRBs' Pittsburgh office. Apparently the unit sought was an overall unit of steel haulers throughout the country. - 14 We will take official notice that in early 1970, the exact date which strike at the expiration of the'old contract, there is no doubt that a work stoppage by employees took place. Employees generally appeared, to share, a, common ground of dissatisfaction with the absence of a contract and with,the employers' proposed contract terms. There was also present the Teamsters-FASH situation, which,-on this record, we cannot undertake to probe fully. - , Norton testified that FASH was opposed to the present Teamsters: leadership, i.e., cindividual officers, because of their alleged,records.-FASH also was ,, dissatisfied with the fact that the Teamsters as bargaining agent was not representing the,interests of the steel haulers in away that FASH believed should be done.13 Norton states that,, -early, in April 1970, he and, others ceased work and that a principal factor was that "they were shooting trucks, throwing bricks from the overpasses and, it wasn't safe to run ... there is no-job worth me going out and-getting killed." There is, with, the exception of one incident,-no direct evidence of -violence during the. strike and, lockout. However, although ` it would probably qualify as hearsay, we credit Norton's testimony that there was violence during this period. Manager Jolly testified that he had read in the newspaper that there was violence on the highway during the work stoppage. The Trial Examiner is satisfied that there was physical violence during this period. Although we do,not-pretend to know who was doing what to whom,-we do know that the three groups most related -to a, generally less - than harmonious situation were -the employers and their association; -the teamsters; FASH;° and ^, their respective adherents. We accuse none of responsibility but we-are 'satisfied' that there. was violence at various times in this work stoppage period.14 Sometime during' the work stoppage and, lockout, evidently in April 1970,15-Norton stopped at,Respondent's Detroit terminal with another employee who was returning_ some logbooks. While' there Norton states that he and Jolly got into, a conversation in the course of which FASH was mentioned. Norton explained to Jolly that f'We were trying to get the Teamsters cleared ,11p, the' crooks out '. and that,: pursuant to this=objective,, the FASH -adherentsu.were considering ' going to Washington _ about the ' matter. Although Jolly expressed general agreement with the idea of cleaning up the Teamsters, "he told me [Norton] not, to- get involved, in something I [Norton] would be sorry-for" because the Teamsters were the bargaining agent and Jolly believed, that FASH should `'work with the T eamsters rather than against them." 16 i - 1 11 By early May 1970, the idea of FASH adherents going to we did not note and do no recall, the Washington Post,'a-District of Columbia newspaper read by ''the Trial Examiner; reported' violence; including shooting, in the'Detroit, Michigan; area, duffing the course'of'a labor situation involving trucking companies, 'the Teamsters, and an organization of' steel haulers. The story was accompanied by a-pictu`re'of "a damaged truck. At the 'time, it was simply another public news item as far as the Trial Examiner was concerned. The details of the'story we'do not remember and we do not refer to it for anything else than that the public press outside of Detroit reported violence in a strike situation in which the parties were trucking companies, the Teamsters,' and, some "organization' representing steel haulers; the name`of which meant nothing to us at the time. - -- - _ , , '15 The -stoppage commenced about April 4 or '6; then there was 'a lockout for a short period; and the stoppage resumed or continued. , ' " 1s Norton' testified that be had two jackets, both of'which' had FASH DARLING FREIGHT INC. 223 Washington, the possibility of which Norton had previously mentioned to Jolly, had jelled to fruition. As president of the Michigan chapter of FASH, Norton was active in organizing this "march to Washington." He rounded up various steel hauling drivers of Respondent and other employers to go to Washington :17 -On Saturday, May 2, - 19.70, Norton and 8 or 10 drivers, who were going to Washington, stopped at -Respondent's Gary, Indiana, terminal.18 Norton asked Jasinski, the, Gary,,terminal manager and dispatcher,- if he and the other men could sleep that night in the terminal bunkroom . Jasinski refused permission. in the course of conversation with the group, there was some conversation about the impending trip to Washington. Norton - said he .was ,going as a delegate. Jasinski expressed the view that the Washington trip was not a good idea. Norton and other FASH, adherents arrived in Washing- ton on Monday, May, 4, 1970. While there, they picketed the Teamsters office and went to talk `to various public officials such as senators and others. Norton and others arrived,home from Washington on Sunday morning, May 10.- Bromley testified that between April 20 and May 4 he had instructed Jolly to contact all the drivers-in an effort to have them return to work.. Bromley states that Jolly proceeded to ,make such contacts by telephone and that by Monday, May 4, '40 out of, 65 steel hauler drivers had returned. Jolly places the figure as 30 out of 65. Since Jolly, as manager, was a step closer to actual operations than was President Bromley, the former's figure of 30 may be the more accurate but, in any event, 30-40 had returned. According to - Bromley, , Jolly had been try' ing to get Norton, by telephone `every day for weeks and had never been able to reach him.-Although Jolly 'did not controvert the foregoing, he ' did not testify about calling Norton in vain for several weeks or about any call to Norton. Respondent had Norton's address and'telephone number and Norton had a wife who lived with him. Other than Bromley's statement about what Jolly assertedly did, there is no evidence of a call to Norton, or that his wife was given a: message for Norton to call Respondent, or that any call was made in the evening if no answer was received during the day, or that any other specific step or call was made. It seems strange that, as far as appears, no contact at all was able to be made with Norton or someone at Norton's home during this period. In any event, Bromley states` that his prime instruction to Jolly was basically to get the drivers back to work. Thereupon, under the company name and its Detroit address, telegrams were sent; in the week of May 4, to all drivers who had not returned to"work: One of these telegrams, dated'May 4, 'was addressed to Norton at his home. The telegram stated: Report for, work to the Detroit terminal within 24 hours or we willconsider you a voluntary quit. insignia in the front and the word "Representative" as well as FASH inscribed on the back. During the work stoppage, Norton states that he wore one of the jackets every day andthat he was so clothed when ` talking to Jolly, above. 17 The men went in their own cars attheir own expense. 18 About 99 percent-of Respondent's loads from Detroit passed through and stopped at Gary since it was one of Respondent's fuel stops and was Norton testified that on May 4 his wife was at work during the day and that -Western Union telephoned during the day and then telephoned again 'that evening and orally' relayed the telegram to Mrs. Norton at that time 19 In 1967, according to Nor-ton, -there 'vixas a strike or work stoppage and the Company had sent out similar telegrams to those in 1970, above. From talking to a, company' dispatcher in 1967 about the telegrams, -Norton received the impression that the telegrams were simply to -=protect the Company's position under the ICC regulations and were more of a pro forma move,than anything else. In any event, in 1970, before leaving for Washington on May 4, Norton foresaw the possibility that the Respondent would send out telegrams of the natura,aforedescribed., He instructed his wife that if there were still reports of shooting and violence going on, and, while-he was in Washington , she'received a telegram from the Company about reporting for work, she should send Respondent a telegram as drafted -byNotton. If the situation proved to be otherwise, Mrs. Norton -was to try to contact her husband in Washington. On May 5, 1970, Mrs. Norton sent a telegram' , to - Respondent at its Detroit address. The telegram, under the-' name, Ken Norton, stated: ' I cannot run due to unsafe conditions on the highways. On May 5- or 6, after the above telegram was- sent -in Norton's name by his Wife, Norton's Mustang automobile, sitting at his home, was fire bombed-by persons 'unknown. Norton lives in Three Rivers, Michigan ,, about 125 miles from Detroit. The local paper; Three Rivers -Commercial, carried, on May 6, a front page story and picture ` of"the incident. In the story it is mentioned that Norton, "head of - the local chapter of the Fraternal Association of, Steel Haulers," is presently in Washington "to aid in clearing up - Teamster ,,problems. " Jolly testified that he had read in, a newspaper about Norton's-car having been bombed.9 ` By letter -to Norton, dated May 6, and on Respondent's letterhead and Grand Rapids, Michigan, -address, the following was stated. - On May 4,1970, you were sent the following message 'by Western Union telegram (the telegram, above, about reporting for work within 24 hours or - otherwise be considered as a voluntary quit, is set forth verbatim). You did not report as directed . In fact, we still have heard nothing from you. We are therefore considering you a voluntary quit, effective this date, and are removing your name from our employment records. jsigned, Peterson, vice, _ president personnel` cc: Local 299 and Bromley] Peterson testified that he sent the above termination letter after Respondent's steel division - office ,in Detroit telephoned him and informed him that it- had sent--out 24 strategically located for drivers going to other points. 19 We assume- that Western Union was the source of the statement that it had called during the day or perhaps a child or some other person was at home. Norton was enroute to Washington or in -that city on May 4. 20 Respondent subscribes to a number of newspapers inrthe local areas within a few hours drive from Detroit . This is'because Respondent places advertisements for drivers and owner-operators in such papers. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how telegrams to drivers and had received no response from Norton;, the steel,'division office asked Peterson to, write to Norton confirming Norton's voluntary quit. According to Peterson, • the reason the division - office in Detroit.did,not_handle the entire' natter, was because the Detroit office did not have secretarial help and also because the, a aanont employee records ,were in Grand Rapids. swat tesified ,that. he did notsrecall sending out any other voluntary quit letter on May 6 except the,one to Norton. Norton returned from Washington on Sunday morning, May 10. He, of course, saw, Respondent's May, 6 letter, signed by Yice President Peterson, referring , to Respon-, dent's. May , 4 telegram and stating, - inter alia, that Respondent had -!still _ .. heard nothing, from ,,you [Norton rand declaring that Norton was a" voluntary, quit. On. Monday, May .` 11, Norton telephoned Peterson in Grand Rapids and, referring, to the-termination letter,, he mentioned the telegram sent in his name by his wife, in response to Respondent's May 4; telegr-am..E,.Peterson responded that he had no ,knowledge of a telegram from Norton21,3Norton thereupon got in touch with Western Union and secured a copy of the telegram sent by his wife under his name on May 5 in response to Respondent's May 4 telegram. Thiso.,copy , with a Western Union, certification therein ;was identified and introduced ' in evidence at the hearing; as part of the General Counsel's presentation.22 The May 4 telegram to drivers, stated that unless they reported for work within 24 hours they would=be considered voluntary quits. There is no evidence that this condition was enforced.-Drivers who-responded to the telegram and Save, a reason why they could not immediately, report were not sent, termination (quit) letters. It.therefore appears that, ostensibly, the, prime factor in Respondent's termination letter to Norton was not that he, had actually reported for work within-24 hours but that, as,the, letter stated, "We still have heard, nothing from you."-"Ih'erefore, when, at the hearing, the General Counsel came forward with proof that Norton had respondedgn,May 5 to Respondent's telegram, Respondent-;,could not effectively adhere to ,its prior position, conveyed in its May °6 letter and in -Peterson's statement to Norton on May 11, to the effectxthatthere had been "no response" and no,telegram received by Respon- dent from Norton. - - At the ,hearing, therefore, Respondent did not contend that no, telegram , had been received from Norton or that "we still have heard nothing from you," as Respondent stated in its May 6 termination letter. Bromley testified that Norton "sent.us one telegram, in, I believe, May 5." In view of this fact, now admitted at the hearing by Respondent, some further -explanation was in order. Bromley then testified that he considered' Norton's telegraphic response on, May 5 that he was unable or unwilling to drive because '23 Peterson -testified that he did not recall having had this telephone call' frgm Norton. Re ; states ,that, if Norton had called he would hake referred him to the steel division office in Detroit. We credit Norton in this incident. He had raised with Peterson the fact, that a telegram had been sent in, response to Respondent's May 4,-telegram. Since Peterson testified that the division office, in,asking him to send, the May 6 termination letter, had expressly said.that.no response had been received, it is likely, that he- simplyaepeated this factto Norton in saying that he (in effect Respondent) hadno knowledge of such a telegram., 22 The telegram was sent from the ,Western Union office at 3!38 p.m. on of unsafe conditions on the highways as not being "a valid reason for not coming back to work." , The foregoing reason, unveiled at the hearing, could, as an abstract, matter be why some- employer might treat an employee as being ,uninterested in returning to work and, therefore as -having quit. But we are not dealing with- some abstract factual situation. We have the context already described hereinabove of Respondent's ` opinion about Norton as a` disruptive force and we have at least a variation or a change -in emphasis-''as to'the-reason for termination" from' ' that ' stated previously' to Norton. Respondent's manager, Jolly, was aware that Norton's car had been-bombed and, if a tritekdriver knows that someone or some group has bombed his car' in his driveway, it would require little imagination to envisage that,'if hewas driving a truck on the highway at that time, the truck'might, have been even a more likely target than the car. In the'light of such facts it `is' not too apparent why' Norton's telegram, should have been'characterized as stating an invalid 'reason for not returning t'o driving within 24 hours.23 " , , Also helpful in appr'aising' Respondent's position regard- ing Norton is its conduct with respect to other, drivers. In this April-May 1970 period, Respondent , needed and wanted drivers. As Bromley, testified, "... We Were "going' through a lot of turmoil at this time and it was justdifficult to get good men hired to replace people that left.... It was, a very turmoil type of time." With the exception of Norton, who received Respondent's first letter of termina- tion, Respondent was very tolerant toward the drivers who were still out and,, unless it became clear that an individual had no intention -of-' returning to work, he ,Was not terminated. Respondent did not require that the' he drivers,, who were out, return to 'work or' signify , an intention to return within a, day .or two or longer. Indeed, Respondent also' had a problern, to some degree` of having trucks available for drivers since some of the owners; of trucks who leased trucks to Respondent had also been out. And, with one apparent exception (Norton), Respondent was not, eager to termirnate-a driver since, as Bromley stated, it was difficult togood replacements at, this, time. In fact, when Norton was terminated it took' Respondent 30=60 days to secure a replacement. The, following are the terminated drivers concerning whom there is evidencein"the record - Poling; terminated as quit '5/18; did-not respond to Respondent's telegram; the broker, , for whom Poling drove, cancelled-his lease with Respondent and Poling went with the broker. Mitchel; terminated 6/1; responded by saying he would be back when he secured his license plates; Respondent waited 10 ,clays and Mitchel stilldid' not have plates; he was then terminated. May 5. A duplicate was' furnished to Respondent addressee on May 11. 23 Although Norton's telegram was prescheduled and was not due to the bombing of his car, the bombing tended to confirm Norton's concern about unsafe conditions. It is also apparent 'that, while he was in" Washington,. Norton` was not going to be driving forRespondent. But' the fact is not helpful' for Respondent since it does not claim knowledge of such factor or that it ,was a factor in the termination .,We will discuss this matter of Respondents knowledge of Norton's FASH activities at another point. DARLING FREIGHT INC. 225 Caruso; terminated May 12; responded to telegram by coming in and saying that he was quitting his job. Eaton, terminated, 5/15; responded by saying he would return in aweek or 4 or 5 days but, when his broker sold his-truck, Eaton-quit and worked elsewhere. In our opinion, the foregoing instances reveal genuine quits by individuals or, in one case, considerable tolerance and flexibility on Respondent's part. For instance, Mitchel, like the others had presumably been engaged in the work stoppage or strike since about April 6. He obviously knew well in advance of the event that his license plates would expire on a certain date. He also presumably knew that plates were essential in his occupation. Respondent, however, chose to accept as a valid excuse for Mitchel not returning to work the assertion that the plates had expired and that Mitchel would return as soon as he secured plates. Respondent gave Mitchel 10 more days in his nonworking status and did not terminate him until June 1 when he still allegedly had no plates. Norton had never indicated that he was quitting or did not intend to return; he responded with a reason why he was not returning within 24 hours specified by Respondent; the reason, in view of a the circumstances previously described, was as. valid as Mitchel's and,,in any event, unlike in the case,of Mitchel or Eaton, Respondent did not wait 10 days or 4 or 5 or even 2 days to see whether Norton might by then conclude that•it was safe to,drive. Ellsworth, the driver-broker (owner) for whom Norton had driven prior to the strike, was a FASH member and was with Norton in Washington. Like Norton, he was in Washington from May, 4-10, returning on the latter date. Ellsworth and his trucks and drivers had not been working since about April 1970, because of the work stoppage and lockout. During- the week-of May 4, while Ellsworth wasin Washington, one of Respondent's 24-hours-to-report-for- work telegrams,, the, same as Norton and others were sent, was delivered to his home. His wife refused to accept it. Western Union then telephoned the telegram to Mrs. Ellsworth. No, response to the telegram was sent. Ellsworth testified . that his wife did not call Respondent but that he "believed" that Jolly telephoned his wife and that she said her husband was out of town. Respondent's counsel, who was cross-examining the witness, then asked: Q. Could .she have- said you-were not there presently and that you would contact them as soon as you returned? , A. Possibly.24 In an apparent effort to show that Ellsworth, who had, unlike Jolly, sent no, telegraphic response to ,Respondent's 24-hour telegram, was more responsive than Norton, Jolly furnished some testimony. Jolly testified that, after sending a 24-hour telegram to Ellsworth -(which the evidence shows was , on May 4 or sometime later in that week), he, Jolly, telephoned Mrs. Ellsworth.25 What he said to her does not appear butt Jolly states that "She told me that Mr. Ellsworth was repairing his trucks and she would have him call me." There is no evidence that Ellsworth thereafter called Respondent until May 11. Ellsworth, of course, was in Washington`fromr May 4-10: At another point Jolly testified that he' spoke to Ellsworth about May I or 2 and Ellsworth said that he was repairing his trucks. In his brief Respondent states that Ellsworth had told Jolly that `"he had intended to return to work as soon as the repairs on his truck were completed." It is our opinion that the evidence does not support the ' foregoing assertion When Jolly telephoned, he may have been told ' that rucks but ''there was no Ellsworth' was working on, his trucks,- statement by Ellsworth or his wife that this was the'reason why Ellsworth,,was not working for Respondent -'or that Ellsworth would return to work as soon as the repairs were completed.26 Our conclusion that Respondent was -aware that Ellsworth and his trucks were not working between April 6 and May 1 I for the . same -reason as Norton and _ other employees were not working, and that Ellsworth hadrbeen no more responsive to Respondent's 24-hour telegram than Norton or others, is borne out by the fact that, in addition to the telegram sent to Ellsworth, Respondent then sent notices to Ellsworth (probably by another telegram) that, his truck leases with Respondent were canceled. However, when Ellsworth' telephoned Peterson -on May 11 about the communications he had received, Peterson advised him to call Jolly.-Ellsworth called Jolly on the same day and then went to Detroit on the same day to meet with Jolly and Bromley as arranged.27 The three individuals aforementioned met in Respondent's Detroit terminal on May 1 ] 28 Jolly, who had been the terminal manager for 15 years, knew Ellsworth well. -Bromley had been- with Respondent 7 months, and Ellsworth,, had Amet him only once, before. At the meeting jolly said,that Ellsworth had done a good job for, the Company in,the past and that his trucks were needed. It was stated to Ellsworth that "they" would put him, his trucks, and the, drivers back- to work except that _ under no circumstances would they take Norton back. The three participants in the meeting. then reached an understanding, that Ellsworth would have his trucks ready as soon as he contacted the drivers and ,within 24 if Mrs. Ellsworth's response was as suggested by counsel, Respondent would have had to be rather patient since Respondent did not-hear from Ellsworth until May 11 , the day after his return from Washington. 25 Neither Jolly nor anyone else claimed that they had telephoned Mrs. Norton or had sought to do so. ' 26 See Jolly's testimony above: Also Ellsworth's testimony is that before, during, and after the strike it was customary for him to be performing routine maintenance on his trucks. There is no evidence that any major repairs, such as replacmg,engines or transmissions, was being performed by Ellsworth between April 6 and May I I and the trucks had_ not stopped working on April 6 for any reason other than the strike and lockout. We are satisfied that Ellsworth's five trucks were not inoperative from April 6 to after May 11 because of mechanical problems and Ellsworth never made such an assertion to Respondent and Respondent was fully aware that the trucks were not out because of mechanical difficulties. Respondent's counsel had asked Ellsworth about the matter. Q. Did you have any repairs made to your trucks between April 20 and May 4? A. Probably, changed the tires and a few things like that . . . all my trucks have,these oil 'bushings . , '. and you have to go around and check them, and there are a lot of little things you check. Q. The question was you don't exactly recall making the comment to Mr. Jolly between April20 add- May 4 that some of your trucks were down and you were making repairs to,these trucks (all Jolly testified to was that he was told that Ellsworth was doing some repair work on his trucks ]. A. I probably did. If they needed something done to them !_sure would have told him. 27 Ellsworth lived in Ceresco, Michigan. 28 What follows is Ellsworth's credited testimony regarding the meeting. 226 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD 2' or, 3 days'Ellsworth's trucks and the same drivers that had driven the trucks before the strike, with the exception, of Norton, were back -at" work.29 One of Ellsworth's- trucks, however, remained idle for lack of a driver. It took Respondent 30, days or longer to secure another driver to replace Norton and to drive the truck that was down. The replacement was . a new man who had not previously worked-for therRespondent. As we earlier pointed out, it was the normal and ordinary procedure that an owner-operator such as Ellsworth, in returning,--his -trucks to service, would also have his customary drivers, albeit they were employee's of Respon- dent, with those trucks. The Ellsworth drivers had not driven for Respondent during the strike and they returned with Ellsworth whenhe advised them the trucks were ready. This was the` mutually acceptable arrangement that was understood and agreed on between Bromley, Jolly, and Ellsworth 'on May"'. 11. "Respondent, however, expressly excl`uded Norton from this normal procedure and did so at considerable cost and inconvenience to itself. It is clear that its a^ . busine`ssL matter, Respondent deemed the lease ' arrangement with ' Ellsworth for-his 5 trucks` as a part of its operation ,and presumably each tru ck's operation contrib- uted,to what, we assume, was the profit objective of the business. But rather than agree to take Norton back with the other Ellsworth drivers, Respondent allowed one of'the trucks to be operative for at least a month because it was unable `-to secure a competent driver. And at the time Resp'ondent'made this decision and after, Respondent was well aware ofthe'difficulty that it would encounter in endeavoriingto_secure a replacement for Norton. Respondent never` asked Ellsworth, who knew Norton as a friend as well as one, of his drivers, whether Norton would be' available as a -driver 'when` the' trucks `returned. If Ellsworth' had said that Norton was not available to drive on May 11 or when the trucks were ready, Respondent, could,' of course, have sought a replacement. But Respon- dent took the initiative in excluding Norton and, in effect, made his exclusion a condition of Respondent's. arrange- mentwith Ellsworth on May 11. Jolly testified that Norton's name was not mentioned in the 'conversation on May -11 between Ellsworth, Bromley, and- Joll y_`.30,Bromley testified that he did not hear folly mention Norton's name. According -'to Bromley, the purpose'of the meeting was to get Ellsworth's trucks back to work`.31`" At a' later point,;"Bromley testified that at the ' meeting'FEllsworth had said that he would not bring'his trucks'back unless all his drivers also came back. Bromley states that he replied that the Company wanted the trucks; that the drivers were available but that Respondent had not `ia As Ellsworth testified, you do not send a truck back without the man to drive it. ao Although Jolly was not present 100 Percent of the time during the meeting, it is our opinion that he was there most of the time and when the main, topic was discussed. 31 We do, not doubt that, because of Ellsworth's ownership of trucks, Respondent was, prepared to pass over his participation in the strike and his' failure'to heed the 24-hour-return-to-work telegram. But, even to secure Ellsworth's trucks, Respondent was not prepared to take Norton, notwithstanding the absence of a replacement. 32 Bromley admitted at the hearing that it was 30-60 days before a replacement for Norton was secured. 33 In oral argument at the close of the hearing , Respondent's ;counsel heard from Norton;,and that the Respondent was leasing the trucks and ,itwould put,drivers in them.32 We have credited Ellsworth's testimony on the May 1 I meeting because ,he impressed us as a credible witness. As an owner-operator of five trucks, he had a substantial investment in his trucks and the source of his, income was -trucking -companies like Respondent and other trucking companies in the employer association. To deliberately testify falsely and adversely to Respondent would make little sense,, nor is it reasonably to be expected even in the light of the fact that Ellsworth was a friend of Norton. Indeed, even to testify truthfully, under the circumstances, was not discernibly in Ellsworth's personal-interest if such testimony' was adverse and contrary to Respondent's position.33 On all the evidence, it is our 'opinion`that Respondent displayed a rigidity and inflexibility toward Norton-"and' his return to work that contrasted with Respondent's general objective of securing the return, if possible, of all the trucks and drivers. When Respondent had what it believed was an ostensibly plausible-reason for terminating Norton, it did so swiftly and with firnality,,and thereafter refused to make any reasonable accommodation' even to obtain its objective of securing the return of'the drivers. It expressly foreclosed any possibility of Norton's return even to its-own detriment of having an idle truck owing, to the`30-60, days it took to obtain areplacement of Norton. It has been said that 'motive is a persuasive interpreter of equivocal conduct. Respondent's motive for its discrimina- tion against Norton was the latter's history of activism in filing grievances. Respondent viewed Norton ` as a "disrupting influence" who was guilty of "continual harassment of Company officials." This was'a manage- ment view ' of ' Norton conveyed in writing to the union bargaining ' agent and it was not simply some personal feeling of a minor supervisor orforeman. The situation was compounded 'when just before the strike in April 1970, Norton had been appointed acting grievance committee- man of the Union. Respondent's opinion of Norton, above, was expressed- about Norton `,when- he had no, union position. From Respondent's' standpoint, the situation could be appreciably worse now that-Norton was clothed with an official status regarding grievances. We are also of the'opinion that Respondent was aware of Norton's active and prominent association with FASH generally and also was aware of the FASH march to Washington inMay 1970.34 From Respondent's stand- point, we cannot discern how it could view FASH as a helpful presence or that the combination of Norton as stated, with regard,to an owner-operator's relationship to the trucking companies, that "x .'a fleet operator [like Ellsworth] who leases his. trucks is kind of like love and marriage [the relationship between the lessor and lessee is a close and intimate one]." Counsel, also stated, "I was frankly surprised to hear Mr, Ellsworth testifying against his bestinterest " 34 We have previously described conversations' with Jolly and Jasinski on the FASH aspect; the visible FASH -insignia worn' by Norton. The newspaper story of the bombing of Norton's car-was read by Jolly and the story mentioned that Norton, an official of FASH, was in Washington on a FASH move against the Teamsters. Aside from' This, Jolly also admitted that a story of the FASH demonstration in Washington was in a newspaper he read. DARLING FREIGHT INC. 227 president of the- FASH Michigan chapter was anything but an unhappy potential. Respondent's counsel has intimated that there was no reason why Respondent should be anything but well disposed to FASH and that it would probably prefer to deal with the weaker FASH rather than the powerful Teamsters. Perhaps Respondent would prefer a weaker union if there was any reasonable prospect that the Teamsters would, by the same token, disappear. Realistically, there was no discernible prospect that the-Teamsters would fold up and disappear. Respondent and its association had their hands full in dealing with the large and potent Teamsters. FASH was "taking swings" at the Teamsters for not doing enough for the Teamsters drivers- who hauled steel and FASH eventually, petitioned the, Board for separate representation of steel hauling drivers. In short, there was a conflict between the .two Unions, and for each to demonstrate that one or the other was better for a particular 'group of employees, more militancy and higher demands could be expected to be made on the employers. Instead of the Teamsters alone which was probably enough of a situation for most employers, FASH, a militant organization, hopefully on the way up and endeavoring to prove itself as able to accomplish more than the Teamsters, could scarcely be viewed as a welcome factor by Respondent. The militant Norton's prominent identification with the militant FASH was, in our opinion, not a happy situation in Respondent's view and, when the opportunity presented itself to be rid of Norton for all the reasons we have mentioned, Respondent acted. In our opinion, Respondent discriminated against Norton because of his union activities and associations and this is a violation of Section 8(a)(1) and (3) of the Act 35 CONCLUSIONS OF LAW By discriminatorily terminating employee Norton's employment and by refusing to allow him to return as a driver because of his union activities, Respondent violated Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in the unfair labor practices above described, it will be recommended that Respondent cease and desist from such practices and take certain action to remedy the effects thereof and thereby effectuate the purposes of the Act. It will be recommended that Respondent offer Kenneth Norton immediate reinstatement to his former job without prejudice to his seniority or other rights and privileges. If the job no longer exists, reinstatement is to be made to a substantially equivalent job, dismissing or replacing, if necessary, any employee hired since the initial discrimina- tion. We will further recommend that Respondent reimburse Norton for any loss of pay he may have suffered by reason of Respondent's discrimination against him by paying him a sum of money he would have normally earned as wages from the date, after May 11, 1970, when a truck or trucks, were available for him to drive, to the date of Respondent's offer of reinstatement, less any net earnings of Norton during this period. Backpay shall be computed in accordance with the method described in F. W. Woolworth Co., 90 NLRB 289, with interest at 6 percent as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Darling Freight, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from discouraging membership and activities in a labor organization, by discriminating in regard to hire, tenure, or other conditions of employment. 2. Take the .following affirmative action to effectuate the policies of the Act: (a) Offer Kenneth Norton reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, in the manner` set forth hereinabove under the section entitled "The Remedy." - (b) Make Kenneth Norton whole for any loss of pay he suffered by reason of the discrimination against him, in the manner set forth hereinabove under the section entitled "The Remedy." (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 all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its place of business in Detroit, Michigan, copies of the attached notice marked "Appendix." 36 Copies of said notice, on forms provided by the Regional Director for Region 7, after being signed by Respondent's represen- tative, shall be posted by Respondent 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 Respondent to insure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.37 33 Respondent's feelings can be understood but their effectuation cannot be legally sanctioned. 36 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, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board"'shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 37 In the event that this Recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 7, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX - whole for any loss of earnings suffered as a result of his discharge, in the manner set forth in the Board's Order. NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS ,BOARD An Agency of the United States Government DARLING FREIGHT, INC. (Employer)- Dated, By After a trial in which all sides had an opportunity to present (Representative) (Title) evidence, a Trial Examiner of the National Labor Relations Board has found that we have violated the National Labor Relations Act in certain respects-,and has ordered that this notice be posted. WE WILL NOT discriminate against Kenneth Norton or any other employee because of membership and activities in any labor organization. WE wu,L offer.Kenneth , Norton reinstatement to his former job,or, if that job- no longer exists, to a substantially equivalent job, and we will make him This is ' an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting ,and must not be altered, defaced, or covered by any other material. ' Any questions concerning this notice or compliance with its provisions, may be directed to the Board's `Office, 500 Book 'Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226- 3200.