Gateway Transportation Co., Inc.

GATEWAY TRANSPORTATION CO. Gateway Transportation Co., Inc . and Floyd Prince. Case 13-CA-10151 September 7, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 10, 1971, Trial Examiner Paul Bisgyer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the supporting briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Gateway Transportation Co., Inc., Chicago Ridge, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This proceeding, with all the parties represented, was heard on January 27, 1971, in Chicago, Illinois, on the complaint of the General Counsel issued on December 11, 1970,1 and the answer of Gateway 193 NLRB No. I 47 Transportation Co., Inc., herein called the Respondent or Company. The issue litigated in this case is whether the Respondent, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended,2 threatened the charging party, Floyd Prince, with reprisals, assaulted him, and subsequently issued three disciplinary warning letters, for engaging in protected, concerted activity in protesting the Company's designation of a casual employee as a group leader and invoking the assistance of the employees' bargaining agent3 to press this grievance , as well as his claim for 15 minutes overtime pay. At the close of the General Counsel's case, the Respondent moved to dismiss the complaint. After hearing argument, the motion was denied and the Respondent rested . Thereafter, the General Counsel and the Respondent submitted briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses , and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation, is engaged in the interstate motor truck transportation of commodities. One of its terminal facilities is located in Chicago Ridge, Illinois, where the alleged unfair labor practices occurred. The Respondent's gross annual revenues derived from the transportation of freight between and among the various states exceed $100,000. It is admitted, and I find, that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is conceded , and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. It is the contractual bargaining representative of the Respondent's employees in a unit described below.4 i The complaint is based on a charge filed by Floyd Prince on October 19, 1970, a copy of which was duly served on the Respondent by registered mail the same day. 2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Insofar as pertinent, Sec 7 provides that "[e ]mployees shall have the right to self-organization , to form, loin, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection 3 The full name of the bargaining agent, herein called the Union, is Highway Drivers, Dockmen, Spotters, Rampmen , Meat, Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees, Local Union No 710, of the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America 4 The parties' current contract, which runs from April 1, 1970 through March 31, 1973, defines the unit as consisting of "Spotters (Hostlers), Fuelmen, Working Foremen, Dock, Tractor Drivers, Checkers, Stackers, Truckers, Wheelers and Office and Miscellaneous Truck Terminal Employees " 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence The events out of which the alleged unfair labor practices arose are, as follows: 1. The September 25 overtime dispute On September 25, 1970,5 Floyd Prince, a dockman in the Respondent's employ for some 12 years, volunteered to work overtime beyond his regular 6 p.m. to 2:30 a.m. shift. While he and other employees were taking a customary coffeebreak about 4:30 a.m., Ron Sanstrom, who was identified as a foreman-in-training, ordered them to return to work and threatened to send them home for taking an unauthorized break. Shortly thereafter, Foreman Lloyd Hendricks told Prince and other employees to leave the terminal, retaining only three regular employees with "top seniority . . . on the shift" for further overtime. Prince thereupon went to the timeclock and, in accordance with the prevailing practice,6 waited about 5 minutes to punch out at 5 a.m. Subsequently, without Prince's knowledge, Thomas W. Reilly, the assistant to the terminal manager, changed the timecards of Prince and other employees who had clocked out with him to show a 4:45 a.m. clockout time, thereby depriving them of 15 minutes overtime pay. On September 26, when Prince reported for work on the Saturday premium shift of 8:30 a.m. to 5 p.m., he noticed the 15-minute deduction on his timecard, which was initialled by Reilly. He also observed that the same change was made on the timecards of two other employees but not on the card of a similarly situated third employee who had less seniority. Prince promptly called the matter to the attention of Union Steward Ralph Klein and requested that Business Agent Wsol be advised to come to the terminal to adjust the matter. About 7:30 in the evening of October 1, while Prince was on a coffeebreak, he met Wsol, who was at the terminal in connection with an unrelated grievance. Prince complained to Wsol concerning the 15-minute overtime deduction, referring to another instance of asserted unfair treatment he had received a year before at the hands of Reilly. Wsol assured Prince that he would try to persuade Reilly to restore the 15 minutes and, if those efforts failed, that the Union would file a grievance. After this conversation, Wsol discussed the matter with Reilly who justified the deduction 5 All dates refer to 1970. 6 Prince testified, without contradiction, that it was company policy for employees to clock out on the hour r A casual employee does not work regularly, only on a day-to-day basis 8 Prince further testified on cross-examination that several employees had also reported Costello to Union Steward Klein who informed Prince that he had given Reilly a deadline to place Costello on the regular payroll as a working foreman 9 This account is based on Prince's undisputed testimony . I find without probative value Reilly 's testimony that he was informed by Sanstrom, a foreman trainee, that he (Sanstrom) had learned that Prince had criticized Costello for the way he performed his work ; that Prince told Costello that he had no right to do this kind of work" (apparently referring to being a group leader); and that Prince threatened to break Costello's arm and to see that he was terminated if he persisted in that activity . It is not without significance that not only did neither Costello nor Sanstrom appear as witnesses, but Reilly's subsequently issued warning letters, later discussed, on the ground that Prince had been directed to leave the terminal at 4:45 a.m. Wsol, nevertheless, urged Reilly to pay Prince's claim. Ultimately, Prince and his coworkers were allowed the 15 minutes overtime, although without Reilly's approval. 2. Subsequent events on October 1 Later in the evening, before the 10 p.m. lunch period, Prince had a conversation with employee Rodney Peterson, a regularly employed stacker on the outbound section of the dock. Irked that he was required to take orders from a casual employee by the name of Costello,? Peterson stated that "he wasn't going to work for a casual after stacking for a year and a half." Thereafter, Prince met Costello at the timeclock where the employees were checking out before taking their lunchbreak. Prince asked Costello whether he was "in charge of the 5-man working group." Upon receiving an affirmative response, Prince declared that "there's been a complaint and . . . [that he was] going to notify the union steward or call the hall about this."8 Costello made no reply.9 Reilly testified that he learned of Prince's meeting with Costello from Ron Sanstrom. About 11:30 p.m., Reilly rushed over to Prince, who was unloading a trailer at the outbound location of the dock, coming to a sudden stop on Prince's toes from which he soon backed off. In the characteristic idiom of the day,io Reilly rebuked Prince for presuming to run the dock and "going around giving personnel instructions" and declared that he was going to see that Prince was fired. Denying that he knew what Reilly was referring to, Prince stated that, if it was the Costello incident, he "definitely told . . . [Costello that he] was going to notify the union steward or call the hall," which he had a right to do. This evoked Reilly's response, "The hell you do. Call your . . . hall . . . [your ] union." Prince then told Reilly he was "not making any sense" and asked Reilly to get out of his way so that he could resume work. Reilly, however, refused to budge and, when Prince attempted to go around him, he was shouldered and pushed by Reilly. Also during the conversation, which obviously was quite heated, Reilly swung his hand, catching Prince on his chin and nose and causing him to lose his right contact lens.ii As Reilly was about to leave the area, he remarked that he wished Prince were a foreman working under him so that he could "crack the whip" on his bottom.i2 It also appears that Reilly put make no mention of such alleged threats having been made by Prince. io The particular accompanying profanity is omitted as it adds little to the case . There is some undisputed testimony that Reilly was not entirely sober on this occasion. ii As a result of the altercation, Prince filed a criminal complaint of assault and battery against Reilly. After a hearing at which both testified, the complaint was dismissed. 12 The foregoing account of this episode reflects Prince's convincing testimony which, in part, was substantially corroborated by employees William H. Smith and Ernest Worthy. It is not likely that Smith and Worthy, who were still in the Respondent's employ at the time of the hearing, would deliberately bear false testimony against their employer and thus incur its displeasure. Georgia Rug Mill, 131 NLRB 1304, 1305, fn.2, On the other hand, considering Reilly's demonstrated hostility and rage, I am not persuaded by his testimony that, when he reminded Prince that he was only a dockman without authority to supervise or direct his coworkers, he simply suggested to Prince that, if he had a grievance concerning the way the dock was operated, he should consult his union representative. GATEWAY TRANSPORTATION CO. 49 Prince on notice that a warning letter would issue. This entire episode probably lasted 4 minutes more or less. Reilly thereupon proceeded to station No. 2, which was a small dock office approximately 100 yards from Prince's work area, to prepare a report of this incident with instructions to the personnel office to issue a warning letter to Prince . A few minutes later Prince arrived at station No. 213 where he saw Reilly, Jack Calla, the shift superintend- ent, and Lloyd Hendricks, Prince's immediate foreman, the latter two individuals being subordinate to Reilly in the supervisory hierarchy . Addressing Caha, Prince com- plained that Reilly was harassing and keeping him from his duties and that he could not continue working under those conditions . Calla simply shrugged his shoulders. Reilly, however, ordered Prince to return to his truck , declaring that he would now receive two warning letters. Obviously provoked , Prince replied that he did not care how many letters Reilly sent him and that he would throw them in his face With these parting words, Prince returned to his work area.14 Because Reilly had so unnerved him, Prince decided to leave without finishing his shift . Accordingly, Prince gave Foreman Hendricks the manifests and bills of lading which he was using and informed him that he was too upset to continue working and was punching out before he hit Reilly. At 11:45 p.m. Prince departed. It is undisputed that the next day (October 2), about 4 hours before he was due to report for work , Prince called in sick. 3. Warning letters Several days later, Prince received by registered mail two warning letters dated October 5. Although signed by Michael P. Murphy, the Respondent's vice president, it was concededly authorized by Assistant Terminal Manager Reilly. The issuance of warning letters for violation of company rules and other offenses has been a long- established practice at the Respondent's terminal.15 It appears that the last time a warning letter was issued to Prince before those in question here was in 1966. The first October 5 letter stated: Thursday, October 1, 1970, you used profanity and abusive language toward our company supervisor, Mr. Thomas Reilly. On the above date, at approximately 11:30 P.M., while in a conversation with Mr. Reilly at your assigned work area, you swore and used abusive language. We are hereby warning you that further insubordina- tion and use of abusive language toward our supervisors will not be tolerated. Nor do I credit Reilly's testimony that Prince repeatedly used profane and abusive language to him Prince disputed this accusation and Smith and Worthy denied hearing such intemperate language from Prince . Indeed, although Reilly testified that Prince resumed his personal tirade against him at station No. 2 in the presence of Superintendent Caha and Foreman Hendricks, these individuals were not produced as witnesses to corroborate Reilly 13 According to Prince, he went to that office to report Reilly's asserted inebriation to a "reliable foreman " 14 The findings concerning the station No 2 episode are derived from the testimony of Prince, whom I have found to be a trustworthy and reliable witness I do not believe Reilly's version that on this occasion Prince again directed abusive and profane epithets at him. The Respondent's unexplained failure to produce Superintendent Calia or Foreman Hendricks, who were undeniably under its control, to corroborate Should you in the future again be involved in such an offense or other actions deviating from the established rules and regulations of the Gateway Transportation Company, Inc., it will be necessary to take appropriate disciplinary action, without further notice, which may result in your suspension or discharge. Therefore, please consider this as a letter of warning and govern your future actions thereby. The other October 5 letter recited the following: Thursday, 10/1/70, you failed to follow the instructions of a company supervisor. On the above date, at approximately 11:45 P.M., you were instructed to return to your assigned trailer by Mr. Thomas Reilly. In the presence of Mr. Lloyd Hendricks and Mr. Jack Calla you used abusive language in refusing to do as you were instructed. We insist you follow the instructions issued to you by your supervisors at the time they are given. We will not tolerate any such further actions by you. This letter concluded with the same disciplinary admoni- tion as the first one. As indicated above, Prince, in fact, had not addressed Reilly in abusive and profane language. Although Reilly admittedly learned from Foreman Hendricks that Prince had called in sick on October 2, he authorized the issuance of a third warning letter dated October 13 for this absence. Prince testified that Reilly's harassment on October 1 had upset him too much to return to work the next day. The warning letter read: Friday, October 2, 1970, you absented yourself from yourjob. Absenteeism causes undue hardship on your fellow employees and for the company in efficiently planning its operations. You were hired to work a fulls-day week and you are hereby warned that further absenteeism will not be tolerated. Here, too, the letter closed with the same disciplinary admonition as that contained in the final paragraph of the October 5 letters. According to Reilly, it has been company policy for at least 10 years to send an employee a warning letter as a matter of course for an absence, regardless of duration or whether or not the employee had called in sick. He further testified that, under company rules, the letter will be retracted if the employee produces a doctor's or medical certificate and that, in Prince's case, no such certificate was submitted. Prince, however, testified without contradiction that during the past 5 years he was absent about eight times, giving the Company on each such occasion the required Reilly warrants the inference that, had they been called, their testimony would not have been favorable to it. Kirby v. Tallmadge, 160 U.S 379, 383, Texas Coca-Cola Bottling Company, 146 NLRB 420, 433, enfd. 365 F 2d 321 (C A 5) 15 Art. XXIV of the Union's collective-bargaining agreement with the Respondent provides, in pertinent part, that The Employer shall not discharge nor suspend any employee without just cause . With respect to discharge or suspension, which includes repeated tardiness or absence from duty, the Employer shall give at least one warning notice of the complaint against such employee to the employee in writing and a copy of same to the Local Union. (Warning letters shall be effective only for a period of nine (9) months from the date issued) except that no warning notice need be given to an employee before he is discharged if the cause of such discharge is dishonesty or drunkenness, when such charges are proven.. . 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD advance notice, and that no warning letter for such absence was ever issued to him. Indeed, the only evidence presented by the Respondent of the issuance of warning letters to Prince for absenteeism related to a 1959-60 period when he received six letters of this nature, two of which also alluded to his failure to notify the Company. Employee Smith also gave uncontroverted testimony that in the 5 or 6 years he has been in the Respondent's employ, he was absent some 20 to 30 times, as a result of which he had received only two or three warning letters. On several occasions, he further testified, warning letters were not issued even though he had failed to call in sick. In disagreement with Reilly, both Prince and Smith testified that company rules, which they had seen posted on a bulletin board, required a medical certificate only for absences of 3 or more days. In addition, Smith testified that in April 1970, when he sought to return to work after a less than 3-day absence, Reilly refused to permit him to do so unless he first submitted a doctor's certificate; that he (Smith) insisted a certificate was not required; and that, after complaining to Union Steward Klein, Smith was paid for the day he lost as a result of Reilly's action. This testimony was not disputed. It thus appears that, whatever might be Reilly's understanding of the Company's rules regarding the issuance of warning letters for absences, they have not been rigidly or uniformly enforced. Although fully familiar with the contractual grievance procedure 16 and the practices thereunder, which he had utilized on other occasions with the assistance of the Union to complain about warning letters issued to him, Prince did not file a grievance regarding the October 5 and 13 letters. Instead, he filed an unfair labor practice charge on which the complaint herein is based, alleging that the letters were issued because of his protected and concerted activities. According to Prince, before doing so, he had asked Union Steward Klein to have Business Agent Wsol come to the terminal to discuss with him the filing of a grievance but that Wsol was evidently too preoccupied with other matters to see him. However, Prince made no effort to visit the Union's offices. B. Concluding Findings In substance, it is the General Counsel's position that Prince engaged in protected, concerted activity in protest- ing the loss of 15 minutes overtime on September 25-26 and the Respondent's designation of a casual employee, Costello, as a group leadman, and in invoking the Union's assistance to press these complaints. The General Counsel 16 Art. XV11, sec I of the agreement , entitled "Grievance Machinery," provides, among other things The Operators and the Union shall together create a permanent Committee The Joint Committee shall consist of an equal number representing Employers and Union but no less than three from each group . It shall be the function of the Committee above referred to, to settle disputes which cannot be settled between Employer and the Local Union The Union and the Employer agree that there shall be no strike, lockout, tie-up, or legal proceedings without first using all possible means of a settlement , as provided for in this Agreement, of any controversy which might arise Disputes shall first be taken up between the Employer and the Local Union Failing adjustment by further argues that, as Assistant Terminal Manager Reilly's threat to discipline Prince, his assault upon Pnnce, and the subsequent issuance of three warning letters were motivat- ed by Prince's above activity, the Respondent violated Section 8(a)(1) of the Act. The Respondent, on the other hand, contends that the General Counsel failed to prove that Pnnce was restrained or coerced for engaging in protected concerted activity urging, in defense, that Prince was verbally reprimanded because he improperly attempt- ed to supervise other employees and that the three warning letters were issued for the very reasons therein stated. In any event, the Respondent argues, the Board should decline to exercise junsdiction and relegate Prince to the contractu- al grievance procedure to have the warning letters rescinded. Answering the latter contention, the General Counsel, denies that, under the special circumstances of this case and in view of the fact that the matter has already been litigated, the policies of the Act would be effectuated were the Board to defer to the grievance procedure. At the outset, I find insufficient evidence in the record that Prince's effort to regain the 15 minutes overtime pay through the Union's intercession was involved in, or contributed to, the Reilly-Prince encounter on October 1 and I therefore reject the General Counsel's contention that the Respondent violated the Act in that respect. However, I do find that this incident was precipitated by Prince's objection to the designation of Costello, a casual employee, as a leadman of a crew which included regular employees. Undeniably, Prince expressed his objection to Costello, informing him of his intention to report the situation to the Union. As shown above, there is absolutely no evidentiary basis for the Respondent's assertion in its brief that Prince attempted to supervise Costello or otherwise interfered with a management order given by Sanstrom, a foreman trainee, to Costello.'? It is also perfectly clear that Prince's interest in the Costello designation displeased Reilly enough to provoke him to rush over to Prince's work area where he rebuked him for intruding into what Reilly obviously regarded as a management preserve and threatened him with discharge and warning letters. When Pnnce reiterated his previously expressed intention of presenting his complaint to the Union, Reilly reacted with the remark, "The hell you do," and, as if to challenge Prince, added "Call your ... hall . . . [your I union." It cannot seriously be disputed that the appointment of a group leadman to direct employees relates to a working condition and is a legitimate employee concern for concerted action which the Act sanctions.'s Similarly safeguarded is the employees' right to enlist their bargain- these parties the following procedure shall then apply- A Where a Joint Committee by a majority vote settles a dispute no appeal may be taken. Such a decision will be final and binding on both parties D Failing to arrive at a settlement by this procedure same shall be submitted within thirty days to an arbitrator . The arbitrator shall be appointed by the Federal Mediation and Conciliation Service. The decision of the arbitrator shall be final and binding upon the parties. 17 Cf Morrison-Knudsen Company, Inc. v N L R B, 358 F 2d 411, 415 (C A 9), enforcing 149 NLRB 1577. 18 Cf Sutherland Lumber Company, Inc, 176 NLRB No 143, In 1; Guernsey-Muskingum Electric Cooperative, Inc, 124 NLRB 618, fn. 1, enfd 285 F 2d 8, 12-13 (C A 6); Phoenix Mutual Life Insurance Company, 73 GATEWAY TRANSPORTATION CO. 51 ing agent's assistance in pressing these complaints or grievances before management. 19 Moreover, under settled law,20 the protection the Act affords such concerted activity does not depend upon the meritoriousness , wisdom or justification of the particular complaint or grievance. In the present case, Prince made common cause over a working condition at least with Rodney Peterson,21 a regular employee who voiced his resentment to Prince at being subjected to the direction of Costello. Certainly, it is not unusual for employees to help each other and make common cause so that "each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping ." 22 Thus, in a very real sense, Prince exercised his right to engage in concerted activity for mutual aid and protection when he undertook to protest Costello's designation as group leader by enlisting the Union's aid to press the grievance , even though he himself was not a member of Costello's crew.23 Accordingly , I find that Reilly's threat to issue a warning letter and to discharge Prince in reprisal for his protected, concerted activity constituted an infringement of employee statutory rights prohibited by Section 8(a)(1) of the Act.24 However, Reilly's pushing, jostling, or other physical contact with Prince when the latter attempted to resume working, I find in disagreement with the General Counsel, was not calculated to intimidate Prince to desist from his protected activity and therefore was not violative of the Act. Turning to the warning letters, I find that their issuance was motivated by Reilly's extreme displeasure with Prince's protected involvement in the Costello matter and his expressed intention to resort to the Union to press his complaint, and not, as the Respondent maintains, by the reasons asserted in these letters . As shown above, the first October 1 letter was issued, as Reilly had threatened he would do, when he rebuked Prince for his unwarranted intrusion into management's preserve. Moreover, Prince was actually not guilty of the abusive conduct or insubordination stated in that letter unless the reference to insubordination related to the activity in which he was statutorily privileged to engage. As for the second letter , it, in my opinion, was issued under circumstances which were but an extension of Reilly's vituperative treatment of Prince at the latter's work area a few minutes earlier. Incensed by Reilly's conduct, all Prince did was to go to the station No. 2 dock office to complain to management about Reilly's harassment and interference with his work . Reilly's superior was not then on duty, and Prince voiced his complaint to Superintendent Calla, whom he regarded as a responsible official , although below Reilly in the supervisory hierarchy I am not persuaded, as the Respondent suggests, that Prince NLRB 1463, 1464-65, enfd 167 F 2d 983 , 987-988 (C A 7), cert denied 335 U S 845 i9 Interboro Contractors, Inc, 157 NLRB 1295, 1298- 1302, enfd. 388 F 2d 495 (C A 2), McNally Bros, Inc, 167 NLRB 819, 826, enfd 417 F 2d 1029, 1030 (C A 2), Colony Furniture Company, 168 NLRB 725, Dorwood Rental Company, 178 NLRB No 104 20 Interboro, supra, fn 7, 388 F 2d at 500 ; cf N L R B v MacKay Radio & Telegraph Co, 304 U S 333 , 334 ("the wisdom or unwisdom of the [employees), their justification or lack of it" does not affect the protected character of their conduct) 21 As previously indicated, Prince was not alone in complaining about deliberately went to the dock office to revive the confrontation originally initiated by Reilly. Nor do I find entirely accurate the reason for the second disciplinary warning set forth in that letter that Prince refused to follow instructions to return to his truck. Prince did return to his truck, although he decided to leave the terminal because he was too upset to finish the day. In these circumstances, I find that the second warning letter, no less than the first one, was issued in reprisal for Prince's protected activity. Such statutory protection, I further find, was not forfeited simply because, in response to Reilly's declaration that Prince would receive a second warning letter, Prince impulsively retorted that he did not care how many letters Reilly sent him and that he would throw them in his face.25 Lastly, I find that Prince's absence on October 2 was also a pretext for the third warning letter, which, I find would not have been issued were it not for his protected activity. Thus, apparently still emotionally distressed by his encounter with Reilly the day before, Prince called in sick on October 2. From my discussion above, it is quite clear that the Respondent's rules, under which Reilly purported- ly acted, have not been so inflexible or consistently applied as to require the issuance of a warning letter for Prince's absence. Significantly, for the past 5 years, at least, Prince was absent about eight times, without being given any warning letters. On those occasions, he observed the Company's requirement and notified the terminal of his contemplated absence, as he did here. Employee Smith had a comparable experience . In the 5 or 6 years he has been in the Respondent's employ he was absent 20 to 30 times, as a result of which he received only two or three warning letters. He also testified that on several occasions he was not given a warning letter, despite the fact that he had failed to notify the Respondent in advance . In view of the foregoing, including Reilly's hostility to Prince's concerted activity, the sequence of events, and the facts and circumstances surrounding the issuance of the first two letters, I am convinced that it was Prince 's concerted activity, rather than his October 2 absence, that accounted for the issuance of the third warning letter. In sum, I conclude that the three warning letters which, by their own terms, render Prince vulnerable to discharge, were the instruments utilized by the Respondent to punish Prince for his protected, concerted activity, and that therefore their issuance violated Section 8(a)(1) of the Act. Even assuming that the reasons stated in the warning letters to some extent contributed to the Respondent's decision to issue them, I find that the paramount moving cause for their issuance was its displeasure with Prince's involvement in the Costello protest.26 Whether or not an unfair labor practice was committed by the issuance of the three warning letters to Prince, the the Costello situation but several other employees had also reported Costello to Union Steward Klein. Cf Interboro Contractors, 157 NLRB at 1298, 388 F 2d at 499-500 22 N L R B v Peter Caller Kohler Swiss Chocolates Co, Inc, 130 F 2d 503, 505 (C A 2) 23 Morrison-Knudsen, supra, 358 F.2d at 413 24 Dorwood Rental Company, supra, Colony Furniture Company, supra, New York Trap Rock Corporation, 148 NLRB 374, 376. 25 Cf Thor Power Tool Company, 148 NLRB 1379 , 1380-81, enfd. 351 F 2d 584, 586-587 (C A 7), New York Trap Rock Corporation, supra 26 Cf. N L R.B v . Symons Manufacturing Co., 328 F 2d 835, 837 (C A. (Continued) 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent urges, nevertheless, that statutory policies dictate that the Board decline to exercise jurisdiction, relegate Prince to the contractual grievance procedure where the justification for the warning letters could be determined, and dismiss the complaint. The General Counsel, however, sees no justification for the Board to abandon its statutory duty to adjudicate the unfair labor practices litigated in this case. There is no question that the Board is not ousted of jurisdiction by the existence of a grievance-arbitration procedure in a collective-bargaining agreement,27 although, in its discretion, it has deferred in the appropriate case to such a procedure as a recognized "instrument of national labor policy for composing contractual differences."28 I do not believe that statutory policy would be effectuated in the present case were the Board to withhold its jurisdiction. Here, the unfair labor practice charge is based on an alleged violation of employee rights guaranteed by the Act to engage in concerted activity for mutual aid and protection and not on an asserted breach of contract which might require the interpretation of ambiguous clauses.29 Indeed, the alleged violations involve retaliatory threats and warning letters to Prince for seeking the Union's assistance in pressing his grievance which certainly entailed the use of the grievance procedure the Respondent now insists should be pursued to resolve the underlying controversy.30 In the face of such conduct, it can hardly be said that it would be consonant with statutory policy for the Board to refuse to assert its power to prevent the commission of unfair labor practices and thereby vindicate employee rights under the Act. Further fortifying the view that the Board should retain jurisdiction is the fact that Prince had not elected to file a grievance; that the issues herein have already been litigated and are ripe for decision without further delay; and that no esoteric problems of contract interpretation are here presented which require a special competence not possessed by the Board. All things being carefully considered, I find that the issues in this case can best be decided within the framework of the Act, without deferral to the contractual grievance procedure.31 Accordingly, the Respondent's request to dismiss the complaint is denied. IV. THE REMEDY Pursuant to Section 10(c) of the Act, I recommend that the Respondent cease and desist from engaging in the unfair labor practices found and in like and related conduct and take certain affirmative action designed to effectuate the policies of the Act. 7), enfg 141 NLRB 558, N L R B v. Jamestown Sterling Corp, 211 F 2d 725, 726 (C A 2), enfg 106 NLRB 466. 27 Sec 10(a) of the Act provides that the Board's power "to prevent any person from engaging in any unfair labor practice shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise 28 International Harvester Company, 138 NLRB 923, 926, affd sub nom Ramsey v N L R B, 327 F 2d 784 (C A 7), cert denied 377 U S 1003, Spielberg Manufacturing Company, 112 NLRB 1080 29 Cf. N L R B v C & C Plywood Corp, 385 U S 421, Jos Schhtz Brewing Company, 175 NLRB No 23, C & S Industries, Inc, 158 NLRB 454, 459-460 30 It is noted that the Union neither filed the unfair labor practice To remedy the disciplinary action taken against Floyd Prince, it is recommended that the Respondent withdraw and rescind the warning letters dated October 5 and 13, 1970, previously served on Prince; that it remove the copies of these warning letters from his personnel file; and that it expunge any notations made in company personnel records relating to these warnings.32 The posting of an appropriate notice is also recommended. Upon the basis of the foregoing findings of facts and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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. By threatening Floyd Prince with discharge and the issuance of disciplinary warning letters and by actually issuing such letters in reprisal for protesting a condition of employment and seeking assistance of the Union to press his grievance, the Respondent has interfered with, re- strained, and coerced employees in the exercise of their statutory right to engage in concerted and union activities for mutual aid and protection, within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not violated Section 8(a)(1) of the Act in other respects alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommended: 33 ORDER The Respondent, Gateway Transportation Co., Inc., Chicago Ridge, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to discipline, suspend, or discharge employees or issuing warning letters in reprisal for protesting conditions of employment or for seeking assistance of their collective-bargaining representative to press such grievances and complaints. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to engage in concerted or union activities for mutual aid and protection as guaranteed in Section 7 of the Act. charge herein nor appeared at the hearing to support Prince's case 31 Consolidated Freightways Corporation of Delaware, 181 NLRB No 137, TXD, fn. 2; United Aircraft Corporation (Pratt & Whitney Division), 180 NLRB No 49, In. 2, McLean Trucking Company, 175 NLRB No. 66; Producers Grain Corporation, 169 NLRB No. 68, In. 2 The cases cited by the Respondent in support of its position do not require a contrary result than that reached in this decision 32 Quality Production Company, 162 NLRB 1459, 1460 33 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, and recommended Order herein shall, as provided in Sec 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 GATEWAY TRANSPORTATION CO. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Withdraw and rescind the warning letters dated October 5 and 13, 1970, previously issued to Floyd Prince; remove copies of these letters from Prince's personnel file and records; and expunge any notations made in company personnel records and files, which could be used as a basis for disciplinary action against Prince. (b) Post at its terminal in Chicago Ridge, Illinois, copies of the attached notice marked "Appendix."34 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.35 IT IS FURTHER ORDERED that the complaint be, and it hereby is dismissed insofar as it alleges other violations of Section 8(a)(1) of the Act. 34 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 " 35 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 13, in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX 53 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to discipline, suspend, or discharge employees or issue warning letters in reprisal for protesting conditions of employment or for seeking assistance of their collective-bargaining representative to press their grievances and complaints. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to engage in concerted or union activities for mutual aid and protection as guaranteed in Section 7 of the National Labor Relations Act. WE WILL withdraw and rescind the warning letters dated October 5 and 13, 1970, previously issued to Floyd Prince. We will also remove the copies of these letters from Prince's personnel file and records, and expunge any notations made in any other personnel records and files, which could be used as a basis for disciplinary action against him. GATEWAY TRANSPORTATION CO., INC. (Employer) Dated By (Representative) (Title) 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, 881 U.S. Courthouse and Federal Office Building, 219 S Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.