Roadway Express, Inc.

ROADWAY EXPRESS, INC. 621 Roadway Express, Inc. and Ronald D. Forsythe. Case 25-CA-4250 February 28, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On January 4, 1972, Trial Examiner Benjamin A. Theeman issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions' and to adopt his recom- mended Order. spondent submitted briefs which have been fully considered. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I BUSINESS OF RESPONDENT Respondent is a corporation with a place of business in Indianapolis, Indiana. It is an interstate carrier engaged in the business of transportation by truck of various products. During the year previous to May 1971, a representative period, Respondent in the course and conduct of its business operations purchased, transferred, and delivered to its In- dianapolis, Indiana, plant, from States other than Indiana, goods and materials valued in excess of $50,000. Respondent, during said representative year, in the course and conduct of its trucking operations within Indiana derived gross revenue in excess of $50,000 from said operations. The latter were performed for various enterprises, each of which performs services or sells products valued in excess of $50,000 directly outside the State in which it is located. In accordance with the foregoing, it is found that Respond- ent is, and at all times material has been, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE UNFAIR LABOR PRACTICES ORDER Pursuant to Section 10(c) of-the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint be, and it hereby is, dismissed in its entirety. ' The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to-credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolu- tions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. I In the absence of exceptions thereto, we find it unnecessary in the circumstances of this case to pass on the Trial 'Examiner's views as to the application of Collyer Insulated Wire, A Gulfand Western Systems Co., 192 NLRB No. 150, to the issues presented herein TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Trial Examiner : The complaint' alleges that Respondent, Roadway Express , Inc., has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et. seq. (the Act), by discharging Ronald D. Forsythe on March 25, 1971, and refusing to reinstate him because he engaged in certain concerted activities protected by the Act. Respondent in its answer denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me on Au- gust 11 and 12, 1971, in Indianapolis, Indiana. All parties appeared and were represented by counsel . They were given full opportunity to participate, adduce evidence, and examine and cross-examine witnesses. The General Counsel and Re- ' Dated May 28, 1971, based on a charge dated April 8, 1971, filed by Ronald D. Forsythe A. The Issues The General Counsel asserts that Ronald Forsythe was discharged because he originated and circulated among the employees a petition requesting the removal of the current union steward and asking for the election of a new one. Respondent asserts that Forsythe was discharged because he falsified his application for employment by withholding cer- tain police record information. The resolution of credibility is a determining factor in the resolution of the issues in this case. In that respect, the tes- timony of all witnesses has been considered. In evaluating the testimony of each witness, his demeanor was relied on. In addition; inconsistencies and conflicting evidence were con- sidered. The absence of a statement of resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such did not occur. See Bishop & Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161. Further, to the ex- tent that a witness is credited only in part, it is done on the evidentiary rule that it is not uncommon "to believe some and not all of,a witness' testimony." N.L.R.B. v. Universal Cam- era Corp., 179 F.2d 749, 754 (C.A. 2). B. Background During the period involved in this case, Respondent and Local Union No. 135, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, were parties to a collective-bargaining agree- ment regulating the terms and conditions of employment of Respondent's employees known as the National Master Freight Agreement. This included the Central States Area Local Cartage Supplemental Agreement. Applicable to these agreements were the Indiana Uniform Rules and Regula- tions. The agreements were entered into on May 18, 1970, effective April 1, 1970, until June 30, 1973. Article 46 of the agreements governed the issues in this proceeding and in pertinent part stated: The Employer shall not discharge nor suspend any em- ployee without just cause, but in respect to discharge or suspension shall give at least one warning notice ... in writing ... except that no warning notice need be given 195 NLRB No. 118 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to an employee before he is discharged if the cause of such discharge is dishonesty.... Section 3D and 3K of the Indiana Rules and Regulations also governed the issues herein and in pertinent part stated: Discipline imposed under these rules must be imposed within ten (10) days from date notice of employee viola- tion is had. Protests of any such discipline must be filed within ten (10) days after notice is received by employee. 3. Conduct (d) Theft or dishonesty of any kind-Subject to dis- charge (k) Filing of false or incomplete employment applica- tions-Subject to discharge The collective-bargaining agreement called for grievance and arbitration proceedings and set forth the machinery and steps to be taken for the filing and hearing of grievances. In this instance' 'the Union filed a grievance on Forsythe's behalf which did not go beyond the City Grievance Committee, the first step of the procedure. The committee was made up of an equal number of employer and union members. No member of the employer or the local involved in a grievance was permitted to sit on the committee hearing the grievance. C. The Terminal Facilities and the Employees Respondent's terminal is located on 25 acres of land in Indianapolis and contains a terminal facility and yard spread over 4% acres. The terminal building has a loading and un- loading dock 340 feet long and 75 feet wide containing 68 loading and unloading doors, each accomodating a trailer. An aisleway runs around the extreme perimeter of the dock. The office adjoins the dock and has two levels. The down- stairs section has the lunchroom for dock employees and drivers, the supervisory lunchroom, restrooms, vending ma- chines, and office rooms. Other office operations are in the upstairs section. Trailer vans 40 feet in length are placed before the doors for loading and unloading. The docks are occupied by vans practically 24 hours of the day, but not all the trailers are worked at the same time. The dock is never free of freight being loaded and unloaded. The dock is in two parts: 36 doors are assigned for outbound cargo; 32 for inbound cargo. The dock checkers work 8-hour shifts and before each shift report to a dock foreman who assigns them to the inbound or the outbound dock. Persons standing in the exterior perimeter aisleway have a good view of one end of the dock but not the other. Persons standing on the dock would have difficulty seeing certain areas of the dock because of the presence of freight, goods, big cars, and flat cars. The facts contained in the record are insufficient to warrant a conclusion that a person on the dock level could view the entire dock while the trucks were being worked. There were about 96 employees in the bargaining unit of which Forsythe was a member. They are yard-switchers, city drivers,' and dock checkers. In addition Respondent employs casual employees on a 3-hour-shift basis. The number of casuals, varies from 2 to 3 on a given day to 22 on a peak day. Twenty-eight over-the-road drivers report to the terminal. The plant also employs approximately 27 clericals and 30 supervisors. The terminal manager is Francis W. Cahill. He has two assistant managers. Under the latter are five operation managers who in turn supervise 10 dock foremen. The latter in turn supervise the dock workers. During a given shift, there will be an assistant terminal manager, an operations As differentiated from over-the-road drivers manager, and two or three dock foremen at the terminal to cover the activities.' D. Respondent Employs Forsythe as a Casual On May -11, 1970, Ronald D. Forsythe was hired by Re- spondent as a dock checker.' He was employed; as a "casual"; i.e. an employee who is on probation for 30 working days.' If fired or discharged during the probationary period, the contract gave the employee no recourse. Forsythe worked 6 days a week. His probationary period expired on or about June 13, 1970. E. Aware That Forsythe's Application Contained False Information, Was Forsythe Hired When his Probation Ended On May 1, 1970, before starting employment Forsythe filled out an employment application blank. He completed certain questions concerning arrests and convictions as fol-. lows: HAVE YOU EVER BEEN ARRESTED NO. IF SO, WHERE WHEN WHAT CHARGE WERE YOU CONVICTED DISPOSITION (FINE, ETC.) Sometime in the first week in June 1970, Cahill received a report from a private investigating company used by Re- spondent for such purpose stating: NOTE: We have information indicating that a Ronald Forsythe of 801 Campus, Indianapolis, Indiana was in- dicted for second degree burglary, April 1, 1959. We have been unable to confirm if this is the sames [sic] as your subject as we have been unable to develop his police record.' Cahill called Forsythe into the office and discussed the report with him.' Cahill asked Forsythe if he had ever lived at 801 Campus. Forsythe said he had years ago. Cahill asked him if he had been arrested for burglary and asked for the complete details. Forsythe admitted the arrest but stated that the charges against him were highly overstated; he was su- prised that there was any information of record about this arrest; the thought everything had been dropped. Forsythe said that it was mainly kid stuff;' that he and some friends were in a tavern or a club; and that, while the bartender was otherwise busy, they stole some beer. The bartender called the police who picked up Forsythe and his friends. They paid for the beer, and the entire matter was dropped. Cahill told Forsythe that the 30-day probationary period was near its end and that he would have to consider the matter further. He sent Forsythe back to work. He then called the investigatory agency on the phone and asked for a complete and detailed report of Forsythe's police history as quickly as possible.' 9 This suy)ervusory coverage exists at all times except for 3 or 4 hours a day. 4 A dock checker loads and unloads trailers and handles freight Pursuant to the collective-bargaining agreement. On May 20 or May 27 (the record is not clear as to the date) Forsythe filled out a second application to be filed in Respondent's main office in Akron. The application was the same 4,s the May 1 application except for the date. The uncertain date leaves open the question whether the second application was filled in before or after the discovery by Cahill of Forsythe's arrest Accordingly, no significance is attached to the second application. According to the credited testimony of Cahill. See discussion below in this section. At that time Forsythe was 19 years old. He was born February 3, 1940 Forsythe filed a bond application that was not processed because of company policy. No significance is attached to this failure. ROADWAY EXPRESS, INC. 623 On June 4, the company reported further over the tele- phone. They told Cahill that the information they had showed an arrest for burglary sometime during 1959, that seven people were involved in the incident, and that the charges were dropped against -four of them, one of the latter being Forsythe. The investigatory company advised Cahill it had no other information. Cahill told Forsythe that the mat- ter had been considered and he was being hired. Forsythe continued working as a dock checker until March 25, 1971, when he was discharged. Discussion Showing That Forsythe Did Not Tell Cahill About His Conviction Forsythe testified that during the first conversation with Cahill in his probationary period he told Cahill the whole story of his arrest and conviction." Cahill denied that For- sythe told him about the conviction. The record substantiates Cahill. Forsythe's testimony quoted in the footnote contains sev- eral factual statements that are improbable. Forsythe stated that Cahill told hint that the burglary arrest occurred in Kokomo and referred to the report that Cahill held. The pertinent part of this report has been quoted above. Nowhere therein is Kokomo mentioned. Similarly, Forsythe stated that Cahill "had it on the record that I was fined." This statement also is not supported by the report. 10 In pertinent part Forsythe's testimony follows- . the report had come back that I had a burglary arrest on my record, that I had been arrested in Kokomo, Indiana , picked up in Kokomo, and he wanted to know if I would tell him about it, and I told Mr. Cahill I would rather not talk about it because that was back when I was a kid, and I was trying to forget about it but that I wanted the job, and I liked the job, and I would tell him about it. So I told him the whole story; that there was myself and three other boys out riding around one Sunday evening, drinking, and one of the fella's made the statement that-a-"Let's go into this place", and so we did so and we went to the basement of it. The police arrived as we were playing the pinball machines. Q. What type of place was it, by the way? A. This was a-a-to us it looked like a tavern but it was an American Legion Post. .. and we run upstairs to the front door, and I ran out the front door and across the street, and the police, one of them , came after me, and there was another one still around back, and I got away , and the police officer, one of them, got the other three fellas. They told on me-they told I was the other guy who got away. A week later, I believe it was a week later, I was arrested in Kokomo at my aunt's place I was eighteen . Q. At the time of your arrest') A. Yes, and that was the story I told to Mr. Cahill. Mr. Cahill told me that he didn't know whether he was going to be able to hire me; that he would have to check it out a little more thorough ; that he wanted to hire me because I was a good worker and-but it was getting pretty close to my thirty day probation period.. . He told me he would let me know in a few days whether he was going to be able to hire me or not, so- Q. You mentioned this to Mr. Cahill, that you paid for your penalty') Did you go into any detail with Mr Cahill9 A. Yes, sir. I explained-of course, he had it on the record that I was fined. I told him that I was fined Five Hundred Dollars, and given a year or two probation, and that I thought at the time that they reduced the penalty from second degree to third degree because of pleading guilty to the charge ... A. I told Mr. Cahill all of it Q What you told Mr Cahill was that the truth? A Yes, sir, Mr Fogerty I did make the comment that I had put a false entry on the application, and that I figured all along that Mr Cahill would find out about it. Q. Who did you tell that to') A To Mr. Cahill, this same day-which he did find out about it The record clearly shows that Forsythe knew the difference between an arrest and a conviction. Yet Forsythe testified on 3 occasions in conversations with 3 different people that Ca- hill forgave the "arrest." No reference was made to the con- viction although it would have been appropriate in each con- versation that the conviction have been mentioned as well as the arrest. The three conversations follow: Forsythe testified that the second conversation with Cahill on June 4 went as,follows: A. Mr. Cahill told me to have a seat; that he had checked out everything, and the report and everything, and that he was going to go ahead and hire me-that I was a good worker-and he wanted me. He thought I deserved a break because I was thirty years old, and had a family, and-was a grown man now. I told him that I appreciated it, and that I really liked it there, and I really liked my job, and I thanked him. He told me just to take care of my job. Q. Did Mr. Cahill-was this all the conversation that you recall? A. Kinda hard to remember just exactly everything. Q. Did Mr. Cahill make any reference at all, as best as you can recall, to this arrest that you had talked about a few days earlier? A. Would you repeat that, please? Q. Did Mr. Cahill, in this conversation that we are talking about now, make any reference to the burglary arrest about which you had talked to Mr. Cahill before? A. Yes, sir. He told me he was going to overlook this burglary arrest back when I was a kid. I was a grown man now, and thirty years old, and had a wife and children, and he was going to give me a break-give me my job-that I was a good worker. A few days later, Forsythe was being fingerprinted and photographed for the records. Supervisor Worsham did this. Forsythe told Worsham he was tickled he got hired "because Mr. Cahill found out about my burglary arrest, and that I was afraid I wasn't to get hired." On April 6, 1971, Forsythe, on the advice of a union offi- cial, took a polygraph test." Forsythe took the test to show whether he was telling the truth in the questioned conversa- tion with Cahill. It is significant that, in relating the story to the polygraph expert, Forsythe related to him the fact that he had admitted to the arrest for burglary. There is nothing in the record to show that Forsythe told the polygrapher that he had told Cahill that he had been convicted or that that statement, was to be subject to such a test. Cahill's versions of the conversations with Forsythe receive support from a notation made by Cahill on the private inves- tigatory report on June 4 when he received a telephonic re- port from the agency. This notation rings Forsythe's name in green ink and below states: "SAME--charges dropped- Indpls Police-7 people Arrested-4 Released-Forsythe released. F.W.C. [Cahill's initials] 6/4/70." Cahill explained that the word "SAME" applied to employee Forsythe. The remainder is self-explanatory. In view of the above circumstances and on the record as a whole, it is concluded that during the two conversations between Forsythe and Cahill in May and June 1971, Forsythe did not disclose to Cahill the fact that he had been convicted of the crime of burglary in the second degree. " The General Counsel offered the results of the test in evidence but they were rejected. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Forsythe is Discharged on March 25, 1971, After Respondent Learns of the Conviction and Other False Information On Friday, March 19, 1971, about 12:10 a.m. a shot was fired through the window of the dock operations office at Respondent's terminal. The police were called and made an investigation. The bullet was not discovered, nor was the person who fired the shot. Cahill arrived on the scene at 7:30 a.m. From the files he selected the names of 19 or 20 em- ployees that were present at the time the shot was fired.12 About 5 p.m. that day, Cahill requested that a weapon regis- tration check be made with the Indianapolis police. This conversation was overheard by a nonsupervisory em- ployee named Patton. He stated he had previously worked for the Indianapolis police and volunteered to get the weapon information. He telephoned the police and reported to Cahill a few minutes later that Ronald Forsythe had a record of arrest and conviction for second degree burglary. Further, Patton stated the record included arrests and fines for mali- cious trespass and public intoxication." Cahill informed his superior of the findings. The latter told him to check with other members of the City Grievance Committee14 to get their reaction to the situation. After fur- ther discussion, the decision was made to discharge Forsythe. On March 25, 1971, Ringler, the union steward, and For- sythe met with Cahill. Cahill told Forsythe of the existence of the felony conviction and offered him an opportunity to quit voluntarily. Forsythe told Cahill that he had told him of the conviction during the 30-day probationary period. Cahill denied ever having had such knowledge.15 Upon Forsythe's refusal to sign a paper stating he was quitting, Cahill gave him a letter of discharged which stated: Please be advised that as of this date, you are discharged from employment by Roadway Express, Inc. under Arti- cle 46 of the National Master Freight Agreement and Central States Area Local Cartage Contact, and Item 3D and Item 3K of the Indiana Uniform Rules and Regulations. ' G. On March 17, 1971, Forsythe Prepares and Circulates a Petition for the Removal of and Election of, a Steward In 1971, at the time of Forsythe's discharge, the union steward was a man named Roy Ringler, who had held that office since 1968. On March 17, 1971, Ronald Forsythe brought to the terminal a petition addressed to Robbins, president of Local 135, stating that the undersigned felt that Ringler, the present steward, was not giving them the union representation to which they were entitled and that he did too much for the Company and too little for the employees. An election for a new steward was requested. Forsythe and other employees circulated the petition on the dock among the employees. The movement giving rise to the petition started in late February or early March 1971. A group of the dock em- ployees were dissatisfied with the way in which Ringler was 11 At this time there were employees of the morning and afternoon shifts present when the shot was fired 11 Patton discovered no police record for any other employee 10 The record does not show which committee members Cahill consulted. is According to the credited testimony of Cahill, this was the first time the Respondent or he knew of the conviction. Forsythe, when asked by the General Counsel why he had not disclosed the information about the two misdemeanor offenses and fines, answered, "I wasn't asked." 16 Under the rules above quoted, the withholding of such information subjected the employee to discharge without notice. representing the employees." Ronald Forsythe, his brother Robert, and another employee, Jim, Mayo, talked to Warren Dunn. The latter had been union steward immediately before Ringler. They asked him whether he would run for steward again if a petition for the election of a new steward were gotten up. He refused but offered to help them if a new election was held." For a month or so prior to March 25, ' Roger Beach," another employee, and Forsythe talked-about Ringler's ac- tions. About March 10, during one of these conversations, Beach told Forsythe that he didn't "want to be the one to get the petition up-if he'd get it up [Beach] would sign, it." During this period the Forsythe brothers asked Beach if he would run for steward. Beach did not reply at the time. On March 16, 1971, Ron Forsythe had a-conversation with Jim Griswell, Glen Basham, and Bernard Garver, all dock employees. Garver had been a steward from 1962 to 1968. The others asked him how they could go about getting an election for a new steward. He told them to get up a petition, have the men sign it, and show it to the president of Local 135.20 A little later Ron Forsythe told Garver he would draw, up the petition. Also, on that day Garver told the Forsythe brothers that if they got an election he would run for steward. On March 17, Ronald Forsythe started getting signatures on the petition. Between the hours of 4 and 8:30 a.m., he procured 20 signatures; including those of Dunn, Beach, and Garver. After he left that day, Forsythe left the petition with Basham who was on the next shift and who got additional signatures. The next day, Forsythe got eight additional signa- tures. A total of 54 dock employees signed the petition. About 8 to 10 dock employees did not sign though they were asked. H. The Record Contains Insufficient Facts To Warrant a Conclusion That Respondent Knew of Forsythe's Concerted Activities All the above conversations and actions took place while the men were at work on the dock, during their lunch periods and at breaktime. Other than the instance mentioned in the next section, there is no evidence in the record that any supervisor heard or saw the actions or conversations of the men dealing with the petition or its circulation. Forsythe testified on direct examination that on one occa- sion Supervisors Adams21 and Sydnor observed him circulat- ing the petition. This occurred "sometime after the first night" the petition was circulated; i.e., after March 17. The dock checkers were having lunch in the breakroom between 4:30 and 5 a.m. The petition was circulating among the men, none of whom was identified. They were reading it and sign- ing it if they so wished, but Forsythe could not recall that any of the men said anything about the petition. Forsythe asked about 8 to 10 men to sign. Adams and Sydnor during this time were about "five _ feet-six feet away-standing at the doorway talking to the employees ...." On cross-examination Forsythe changed his testimony somewhat. He declared he saw Adams pass the breakroom door going to the vending machines and use the vending machine. There is no indication that Adams entered the room or saw or heard what was going on in the breakroom. Sydnor "was standing in the room talking." Forsythe could recall Forsythe testified generally that about 50 or 60 percent of the dock employees were talking about it. is According to Dunn the four were standing inside a trailer on the east end of the dock when the conversation took place, ' Beach was an alternate steward appointed by Ringler. zo According to Garver, this conversation took place inside a trailer. Also on direct, Forsythe stated that he believed it was Adams but "couldn't say for sure-definitely." ROADWAY EXPRESS, INC. that one employee named Triggs Munday signed the petition but could recall no one else signing it. As to the date when Sydnor was present Forsythe repeated that it was "around the second or third day the petition was being circulated." Upon being pressed he stated he couldn't remember the date; it could have been the 17th, but it could not have been March 20 because that was a Saturday and his day off. Respondent's pay and work records received in evidence show that Sydnor worked on March 17 from 10 a.m. to 10 p.m. and that he did not work again until March 23. Sydnor testified to the same effect. The variance between these times and dates and Forsythe's testimony has not been accounted for by the General Counsel. Sydnor and Respondent's records are credited. From the foregoing and on the record as a whole, it is concluded that there are insufficient facts to warrant a con- clusion that Adams and Sydnor were present in the break- room or its doorway while Forsythe was circulating the peti- tion. On the evening of March 24 or the morning of March 25, Beach called Robbins, president of Local 135. The call was made in the presence of Ron Forsythe and another employee. The purpose of the call was to speak to Robbins about the petition, but Robbins was not in. Beach insisted on seeing him and made an appointment for the next day. The record does not show that Beach mentioned the petition during the call. The telephone was located in the dispatch office visible to and close by an office in which dispatchers and office clerks sat. Whether or not the dispatchers or the clerks overheard Beach's conversation is of no significance in light of the call's contents as shown by the record. The next day, the day after Forsythe's discharge, Beach and four employees including Ron Forsythe went to see Robbins. The General Counsel offers these facts as additional support for his position that an inference may be drawn to the effect that Respondent had knowledge of Forsythe's participation in the preparation and circulation of the petition prior to his discharge. Nothing shown in this paragraph reasonably warrants the drawing of such an inference. Cahill denied that he had any knowledge prior to Forsy- the's discharge of a petition being circulated among the men concerning Ringler. He admitted that "In February I had heresay [sic] information that there already was one-it was all third or fourth hand information." Cahill testified that this was one of several petitions that resulted in the instructions to his foremen to watch out for work stoppages. (See next section.) Nothing in his testimony shows that he had any knowledge concerning the petition's originator or the circula- tor. The facts above stated indicate that Respondent was aware that a petition was being circulated among the men in Febru- ary and March 1971. They do not show, however, that Re- spondent had knowledge that Forsythe originated the peti- tion and circulated it. The facts give rise to a suspicion that Respondent had knowledge of Forsythe's involvement. But, suspicion is inadequate. It is found that the facts presented in the record as a whole are insufficient to warrant a conclusion that prior to Forsythe's discharge Respondent had knowl- edge that he drafted and circulated the Ringler petition." " In resume: The Dunn and Garver conversations were unobserved No supervisor was specified who saw or heard Forsythe's activities. The proof as to Adams and Sydnor failed. The cluttered condition of the dock pre- vented easy observation. 625 I. Respondent's Actions Were Free of Union Animus The record is free of any showing of union animosity by Respondent. The Union and Respondent have been under contract for at least 10 years. The relationship has apparently been amicable. No evidence of any friction between the two has been shown. The record shows that petitions have been circulated among the employees during working hours without restric- tion or interference by management. In the past year two petitions were circulated: one dealing with weekend opera- tions which was circulated twice;" and the other dealing with Forsythe's discharge. Among the employees the life of a union steward has not been easy. This was the case with each of the two stewards preceding Ringler. In 1961, Leach was the steward. The em- ployees started to get up a petition asking for the election of a new steward. Leach heard of it and resigned. In the next runoff election Garver was elected. In about 1/ years the men complained about him also.24 In any event, Garver found the steward's job untenable. He resigned. Ringler who followed him was the only candidate running and was elected. The foregoing indicates that the petition to remove Ringler was not extraordinary. The record does show that Cahill was aware that petitions had been circulated among the employees. Cahill' issued in- structions to the dock foremen that if they saw gatherings of employees on the dock and the freight was not getting moved "to find out what the issue was and to get them back to work." As expressed by Cahill "any aggravated group meet- ings could be potentially ... a violation of [the collective- bargaining] contract." He further informed his foremen that he "might possibly discharge the employees involved under the illegal work stoppage clause in the contract" but under the contract to sustain the discharge an employee "would have to be a full eight hours doing it." Cahill also told his foremen "that we run production on our people, we expect production, and that if we had any large gatherings on the dock that [the foremen] had better make them known to somebody in authority." Cahill admitted that these instructions were issued to the foremen in 1970 and may have been again issued in February 1971. No allegation is made that these instructions are illegal or exceed the rights and privileges of Respondent in its rela- tion to the Union or the employees. Lacking other facts, Cahill's actions under these circumstances are insufficient to warrant a conclusion that union animus then existed. J. The Decision of the Grievance Committee Does Not Prevent the Board from Hearing This Case Immediately after the discharge , Forsythe filed a grievance under the contract grievance procedure. It was heard by the City Grievance Committee on April 7 , 1971. The Union pre- sented Forsythe's claim and Forsythe and Cahill both tes- tified before the committee. The grievance hearing dealt with the propriety or impropriety of the discharge based on the fact that Forsythe had withheld information concerning his conviction and other arrests. The committee denied Forsy- the's petition on the grounds that Forsythe "openly admitted that he violated 3K of the Uniform Rules and Regulations."25 The record does not show that Forsythe or the Union took any further steps under the grievance procedure. " The first time an insufficient number of signatures was obtained neces- sitating the second circulation. " Garver attributed these actions to his inability to get cooperation from Cahill 25 See sec. B, above 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The minutes of the grievance hearing were received in evidence as a Respondent's exhibit. At Respondent's request it was stipulated to be accurate. The minutes show that no evidence was presented to the Grievance Committee pertain- ing to the petition prepared and circulated by Forsythe, nor to his contention that those actions in the nature of concerted activities were the real reason for his discharge." An allega- tion that a discharge occurred for concerted activities is one that is clearly within the provision of the Board and should be heard by the Board. In such a case the Board's expertise is required; in such a case the Board should exercise its discre- tion and accept jurisdiction. Such a case cannot "better be resolved by arbitrators with special skill and experience in deciding matters arising under established bargaining rela- tionships than by the application by this Board of a particular provision of our statute." See Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB No. 50. . ists. However, a suspicion of unlawful motive is insufficient where there exists conduct of the discharged employee that warranted discharge and a failure to present substantial evi- deuce of an unlawful discharge." In sum, the totality of the evidence is insufficient to show that Respondent discriminatorily discharged Forsythe on March 25, 1971, in violation of Section 8(a)(3) and (1) of the Act. It is so found. CONCLUSIONS OF LAW 1. Roadway Express, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7)` of the Act. 2. Respondent has not engaged in conduct, as alleged, violative of Section 8(a)(3) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, I hereby issue the following recom- mended:28 Conclusion as to Forsythe's Discharge Considering all of the foregoing, the evidence is not suffi- cient to establish that Respondent discriminatorily dis- charged Forsythe on March 25, 1971, in violation of Section 8(a)(1) and (3) of the Act. The General Counsel's case essen- tially reveals that Respondent had no union animus. It does not reveal clearly that Respondent was aware of Forsythe's concerted activities. Thus, a suspicion of discrimination ex- " Forsythe testified that at the grievance hearing he told the union repre- sentative of this contention and that it was presented to the grievance committee. Respondent contends "this statement was lost in the many mandibles that appear throughout this transcript" The Trial Examiner checked the grievance committee transcript and nothing therein can reason- ably be interpreted to show that the petition contention was raised or dis- cussed. Forsythe's testimony that the, issue was raised before the grievance committee is not credited. ORDER That the complaint in this matter be dismissed in its en- tirety. , 2' In N.L.R.B. v Smoky Mountain Stages, Inc., 447 F.2d 925 (C A 4), the court stated- ... where evidence indicates that the conduct of discharged employees warranted discharge, there must be substantial evidence of an unlawful motivation for the discharges before the Board can find that an im- proper, rather than the proper, motivation led to the discharges. :s 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.