Fredrickson Motor Express Corp.

FREDRICKSON MOTOR EXPRESS CORPORATION 557 Fredrickson Motor Express Corporation and Interna- tional Union of District 50, Allied and Technical Workers of the United States and Canada. Cases 11-CA-4458, 11-CA-4476, 11-CA-4509, 11- CA-5426, 11-CA-4568, and 11-CA-4651 October 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 21, 1972, Administrative Law Judge' Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supplement to exceptions. 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 attached Decision in light of the exceptions and the supplement thereto and has decided to affirm the rul- ings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. Contrary to our dissenting colleague, we would find that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Larson and Eady. . Concerning Larson's discharge, the record, which is more fully set forth by the Administrative Law Judge, indicates that Larson was active on behalf of the Teamsters Union until December 1970, at which time he became actively involved in District 50's organizing campaign. Larson signed a District 50 card in December 1970, solicited other employees to do the same, and wore a District 50 patch from Feb- ruary 24, 1971, until he was discharged on April 23, 1971. The day before his discharge, Larson, upon in- forming his supervisor that his driver's license had been revoked, was told to finish his shift by working on the dock. The following day, Larson was again told by the Respondent's terminal manager to continue working on the dock while the manager thought about the situation. Later that day, Larson was terminated despite his offer to work as a warehouseman on the dock. He was later refused reemployment when he answered the Respondent's advertisement which sought a warehouseman. Contrary to the Respon- 1 The title of "Tnal Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 In adopting the Decision of the Administrative Law Judge we hereby correct the inadvertent typographical error that employee Sherrill j oined the Union in November 1971 when the record indicates that Sherrill joined the Union in November 1970. dent's assertions that it had a hard and fast rule against the transfer of employees to lesser paying jobs, the record further reveals that in 1969 the Re- spondent granted the request of a supervisor on the dock to transfer to his former, lower paying, truck- driving job and in mid-1970 the Respondent again breached its policy by granting the request of another supervisor to transfer for health reasons to the posi- tion of a gate guard. Additionally, in his uncontradict- ed testimony, Larson named six former employees who had been rehired by the Respondent. Lastly, Frederickson, Respondent's president, who did not specifically deny Larson's assertions, acknowledged that even after January 26, 1970, when the aforemen- tioned non-rehire policy of the Respondent was in effect,'exceptions could be made to the rule. In view of the foregoing, contrary to our dissenting colleague, we agree with the Administrative Law Judge that the Respondent has not maintained and enforced a rigid policy of terminating employees rather than demoting them or refusing to rehire them after a break in service. Accordingly, we find that Larson's discharge violated Section 8(a)(3) and (1) of the Act. Concerning the discharge of employee Eady, the record, which again is more fully set forth by the Administrative Law Judge, indicates that the Respon- dent was well aware of Eady's union affiliation and activities. Indeed, our dissenting colleague agrees that the Respondent violated Section 8(a)(1) of the Act by asking on its application form whether Eady was a union member, by Supervisor Long's interrogation concerning Eady's union affiliations, by Supervisor Howie's interrogation and subsequent warning con- cerning Eady's union badge, by Supervisor Fun's in- terrogation concerning Eady's solicitation of authorization cards, and by Supervisor Fun's threat that Eady would be summarily discharged for enlist- ing union membership. In finding that the Respondent violated Section 8(a)(3) by discharging Eady, we are aware of the nota- tions about faulty work and conduct which were al- legedly in Eady's personnel file but note that such entries were not made until Eady' s union activities became prominent. Although the Respondent intro- duced into evidence "Over, Short and Damage Re- ports" to justify Eady's discharge, many of the reports attributed the responsibility for such damage to an employee other than Eady. Moreover, Eady was nev- er shown the aforementioned damage reports and other men working on the dock had as many, or per- haps more, of such reports in their files. Lastly, al- though Dock Supervisor Fun testified that Eady failed to report anticipated absences on three to five occasions, only one of the Respondent's records indi- cates that Eady neglected to report an absence. In these circumstances and in light of the Respondent's 199 NLRB No. 82 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing demonstrated animus with respect to the union affiliation and activities of employee Eady, we agree with the Administrative Law Judge that Eady was discharged on April 5, 1971, not for work insuffi- ciencies but because he was a known union adherent. Accordingly, we conclude that Eady's discharge was discriminatorily motivated and violative of Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Fredrickson Motor Ex- press Corporation, Charlotte, North Carolina, its offi- cers, agents, successors, and assigns, shall take the action set forth in said recommended Order. CHAIRMAN MILLER, dissenting in part: forklift and misdirect and mishandle freight. In the face of this undisputed evidence, it cannot fairly be said that the Employer was seizing upon an error as a pretext in order to discharge him for union activity. Instead, the record shows that Respondent gave him several opportunities to improve his working habits, and, when he failed to correct the very habits about which he was warned, Respondent discharged him. In these circumstances, I do not find that the evidence justifies the conclusion that the real reason for his discharge was union activity. I therefore dissent from the 8(a)(3) finding with respect to his discharge. In all other respects, I concur in the findings of my colleagues. 3 Although Larson named six former employees who had been rehired, it is clear that these rehires took place prior to January 1970, and that the policy has not been breached since that time. Unlike my colleagues, I cannot agree that Re- TRIAL EXAMINER'S DECISION spondent discharged Don Larson and Richard Eady because of their union activities in violation of Section 8(a)(3) of the Act. The record clearly establishes that at the time of Larson's discharge the Company had in effect a poli- cy prohibiting the rehire of terminated or discharged employees. There is no evidence to establish that this policy was ever breached after it was firmly estab- lished in January 1970.' Nor does the evidence reflect that the Company's refusal to demote rather than discharge Larson was discriminatorily motivated. Larson was employed as a driver. He lost his license for drunken driving and speeding and consequently was disqualified to per- form his duties as a driver for 3 years. His situation was considerably different from that of the long-term employee whose health required that he be given a less onerous position, and who had, prior to the Respondent's January 1970 policy, been demoted rather than terminated. This humane treatment of an employee with health problems does not establish a precedent requiring Respondent to find work for em- ployees who, through their own negligence, can no longer perform the tasks for which they were hired. Nor does the fact that they choose to participate in union activity give them the right to favored treat- ment. I see no evidence in the record that Larson was discriminatorily treated and accordingly would find no violation of Section 8(a)(3) of the Act arising out of his termination. Richard Eady admitted that he was warned on several occasions about his poor working habits. He was also warned about using excessive speed in the operation of his forklift and mishandling freight. De- spite these warnings, Eady continued to speed on the STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: This case, with all parties represented, was tried before me in Charlotte, North Carolina, on October 26, 27, 28, and 29, 1971, on an amended complaint of the General Counsel of the National Labor Relations Board and an amended answer filed there- to by Fredrickson Motor Express Corporation, herein called the Respondent.' At issue is whether Respondent violated Section 8(a)(1) and(3) of the National Labor Rela- tions Act, as amended. A brief has been received from the General Counsel which has been duly considered. Upon the entire record made in this proceeding, in- cluding my observation of the witnesses who testified, I hereby make the following: I FINDINGS OF FACT AND CONCLUSIONS Respondent, a motor carrier, is a North Carolina cor- poration with terminals located in Charlotte, Asheville, Hickory, and King's Mountain, where it is engaged in the trucking business. During the annual period material to this proceeding, Respondent transported freight valued in ex- cess of $50,000, which originated at various points in North Carolina, to points outside that State and, during the same period, Respondent transported freight valued in excess of $50,000 from points outside the State of North Carolina to locations within that State. The complaint alleges, the an- swer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 The complaint, which issued on September 23, 1971 , is based upon charges filed and served on January 21, 1971, February 8, 1971, March 11, 1971, March 29, 1971, May 5, 1971, and August 9, 1971. FREDRICKSON MOTOR EXPRESS CORPORATION 559 II. THE LABOR ORGANIZATION INVOLVED Respondent on July 29, 1970, he was required to fill out an International Union of District 50, Allied and Techni- cal Workers of the United States and Canada, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent independently violated Section 8(a)(1) of the Act by restraining, coercing, and interfering with the rights of its employees guaranteed under Section 7 of the Act. The complaint further alleges that Respondent offended the provisions of Section 8(a)(3) by discharging employees Murrey Sherrill on February 4, 1971, Marshall Ruple on March 2, 1971, Richard Eady on April 5, 1971, Don Larson on April 23, 1971, and A. Dale Robinson on July 14, 1971. Finally, the complaint charges that Respondent committed violations of Section 8(a)(3) by assigning more onerous duties to Don Larson on October 27, 1970, and to Harley Silver on February 8, 1971, because they joined and supported the Union. Respondent denies the commission of any labor practices proscribed by the Act. In early 1968, Local 61 of the Teamsters embarked upon an organizational campaign among Respondent's drivers and warehousemen at its various terminals. In con- sequence of this campaign, Local 61 obtained a Board certi- fication as the collective-bargaining agent for a unit of employees at Respondent's Charlotte terminal on October 25, 1968, and was the recipient of another such certification at Respondent's Canton and Asheville terminals on January 16, 1969. Commencing in February 1969, Respondent's su- pervisors at various terminals indulged in a series of acts of coercive interrogation and threats to employees designed to chill their ardor for elected collective representation. This conduct found its way into a complaint filed by the General Counsel of the Board against Respondent which issued on July 20, 1970. After a full hearing, and on June 8, 1971, the Board entered a Decision and Order finding that Respon- dent had violated Section 8(a)(1) of the Act by the foregoing conduct.' Meanwhile, after unsuccessful attempts to negotiate a labor agreement with Respondent, Local 61 faded out of the picture and, in October 1970, the Union entered upon the scene. That Respondent was fully apprised of the activities of alleged discriminatees Larson, Sherrill, and Silver on be- half of Local 61 and subsequently the Union is evidenced by three petitions which Sherrill personally mailed to Re- spondent on October 27, November 17, and November 23, 1970. These petitions recited that the employees whose names appeared thereon had actively supported Local 61 and that they intended to engage in other concerted, pro- tected activities in the future. Even before the Union's campaign got off the ground, Respondent manifested its opposition to unionization in a coercive and restraining manner. Harley Silver credibly tes- tified and I find that, when he obtained employment with application form which contained the question "Give the name of any labor organization of which you are a mem- ber."3 On the same day, Silver conversed with Harry Long, manager of the Charlotte terminal. During the colloquy, Long inquired whether Silver was a member of any labor organization and, when Silver replied in the negative, Long sought Silver's opinion about unionization. Silver re- sponded that "if you have one, okay; and if you don't, okay." Long then asked whether Silver was aware that "the unionjust about broke" several large trucking companies in the area, and Silver stated that he was not. Long continued that "Mr. Fredrickson stated that there would never be a union in his company" and Long cautioned Silver "not to go out on the dock and get with the older men and get involved in the union, that it would get me in trouble. "4 At the conclusion of the conversation, Long advised Silver that "it would be best if I would leave it [the union] alone." Arvettra Christmas credibly testified and I find that, when he was employed by Respondent in August 1970, Terminal Manager Long instructed Christmas "that if someone would approach me about the union for me to come and tell him about it; or who they were." On the basis of the foregoing credited testimony, I conclude that Long's interrogation of Silver regarding his union status and union sympathies, Respondent's question on the application form regarding union membership, Long's conveyance of Fredrickson's threat that "there would never be a union in his company," and Long's warn- ing that Silver would find himself in "trouble" if he engaged in union activities, violated Section 8(a)(1) of the Act. I further conclude that Long's instruction to Christmas that the latter report the names of any employees who solicited his union membership intruded upon rights guaranteed in Section 7 of the Act and was violative of Section 8(a)(1). Howard Carr testified without contradiction and I find that, on or about February 15, 1971, he had a conversation with Foreman Joe Howie at the Charlotte terminal. Howie noticed that Carr was wearing a union decal on his clothing and inquired about the inscription on the badge. Carr invit- ed Howie to read the emblem. After perusing the inscrip- tion, Howie noted that he had never heard of the Union and remarked, "if you are going to join a union, join something worth joining." Howie then asked whether "this union was going to get up anywhere." Carr answered that "maybe it was dust a chance but I was willing to take it." Carr further testified that, a few days after he began wearing the union decal, Foreman Ted Bishop approached and observed the insignia.5 Bishop thereupon inquired, "you know what that 3 According to Respondent's Vice President Fredrickson, this question was not removed from the application "until the first part of 1971. " Respondent's Treasurer Moose placed this occurrence on January 1, 1971. 4 Silver's testimony in this connection stands uncontroverted. 5 At the hearing, Respondent declined to stipulate that Joe Howie and Ted Bishop were supervisors within the purview of the Act However, Terminal Manager Harry Long testified and I find that Howie's job was that of a "supervisor," and that he was so held out to the employees by Long himself. Long further reported that Howie directed the work of eight or nine employ- ees, performed no manual labor, possessed the authority to discipline em- ployees under him, and effectively recommended the hire of employees and the granting of wage increases to them Long also testified that Howie and 2 Fredrickson Motor Express Corporation, 190 NLRB No. 142. I have, at the Bishop had the same duties and responsibilities. On the basis of the forego- unopposed request of the General Counsel, taken judicial notice of that mg, I find and conclude that both Howie and Bishop possessed and exercised proceeding. Continued 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD means, don't you?" When Carr sought out the meaning of the remark, Bishop replied that "that [the decal] was the main reason why we hadn't got a raise and that was going to be the main reason why we weren't going to get one." When asked, during his examination, whether he had made the foregoing statement to Can, Bishop replied, "Not to my knowledge." Can impressed me as a candid witness and I credit his testimony. Accordingly, I conclude that Respon- dent violated Section 8(a)(1) by Howie's coercive interroga- tion of Can concerning his union inclinations, and by Bishop's threat to Can that the latter's union activities had caused a delay in the receipt of wage increases. Employee James Taylor testified that, sometime in Jan- uary 1971, he had a conversation with Dock Supervisor Fun at the Charlotte terminal during which Fun inquired wheth- er Taylor belonged to the Union. Taylor replied in the nega- tive. In his testimony, Fun denied that he engaged in this act of interrogation. As indicated hereinafter, Fun did not impress me with his candor. I therefore credit Taylor's testi- mony and conclude that, in the context of this case, Fun's interrogation of Taylor was offensive to the provisions of Section 8(a)(1). In the middle of January 1971, Respondent's Vice Pres- ident Bill Fredrickson delivered a series of speeches at vari- ous terminals, admittedly occasioned by the advent of the Union's organizational efforts. Employee Tony Icard re- called that, on or about January 14, 1971, Fredrickson ad- dressed most of the employees at the Hickory terminal. In the course of his speech, Fredrickson observed that the Union "didn't have much to offer as far as benefits go, that we had better benefits than some of the companies had to offer; and he went on to say in giving his speech that if any worker was caught participating in union activities that they would be dismissed." According to Icard, Fredrickson did not restrict this predicted disciplinary action to the conduct of union activities on company time. Fredrickson further stated that, if the Union was selected by the employees, he would participate in contract negotiations but that "he would not sign a contract in order to keep the union out." Joe Seagle testified that, during the January 14 speech at the Hickory terminal, Fredrickson reported that the Un- ion was attempting to organize the employees and that they could expect to be contacted by a union representative. Fredrickson went on to state that "if we were caught talking to anyone, to any one of the union representatives or car- rying on union activities, we would be automatically dis- charged." Seagle insisted that Fredrickson did not limit the application of the proscription to worktime. Fredrickson added that "they would not sign a contract and they couldn't be forced to sign a contract." Seagle also reported that management representatives Moose, Carter, and Con- nor were present during the address. Jerry Brandon recounted a speech which Fredrickson made in mid-January 1971 at the King's Mountain terminal. It is Brandon's testimony that, after alerting the men to the fact that the Union was soliciting membership in quest of exclusive representative status at the terminal, Fredrickson the requisite Statutory indicia of supervisory authority, that they were super- visors within the meaning of Section 2(11) of the Act, and that Respondent was accountable for their actions and utterances. warned that "if anyone was caught talking about the union or anything that they were subject to dismissal." Once again, Fredrickson made no mention of banning union ac- tivities only on company time. Fredrickson further stated that the union representatives "would tell you that the com- pany would not see the cards that they, the cards that you had signed, but he said that was not necessarily true." Douglas Hollifield also heard Fredrickson's talk at the King's Mountain terminal. Hollifield recalled that Fred- rickson told the assemblage that the Union had embarked upon an organizational campaign. Fredrickson commented that Respondent's officials would view any signed authori- zation cards before an election could be conducted among the employees. Fredrickson continued that the Respondent would oppose the Union by all legal means and that "any man caught participating in union activities that it would be grounds for dismissal." Fredrickson did not limit the fore- casted disciplinary action to activities which took place only on worktime. During his visit to the stand, Fredrickson acknowl- edged that he spoke to employees during January 1971 at various terminals in which he informed them "that all other matters not pertaining to work including the union that they were not supposed to have any union activities on the job, and that if they did, it was subject to dismissal." However, Fredrickson denied that he proscribed the engagement of union business on noncompany time, denied that he made any reference to contracts or stated that he would not sign a collective agreement, and denied that he told the employ- ees he would see the union cards before the election. I do not credit Fredrickson's denials . He testified that he deliv- ered his speeches from written notes. Despite the fact that these notes apparently were available to him, they were not produced to fortify his testimony where it collided with that of Taylor, Seagle, Brandon, or Hollifield. Moreover, while Moose, Respondent's treasurer, was placed at the scene of Fredrickson's speech at Hickory terminal, Moose was not questioned about the contents of the speech and hence did not corroborate Fredrickson. In sum, I conclude that Re- spondent violated Section 8(a)(1) by Fredrickson's threats that employees would be discharged for engaging in union activities without regard to time and place, his threat that Respondent would never negotiate or sign a contract with the Union, and his further threat that Respondent would learn the identity of union adherents because it would view the cards offered to the Board in support of an election. I turn next to a consideration of the alleged acts of discrimination which the General Counsel claims Respon- dent visited upon Murrey Sherrill, Don Larson, Richard Eady, Marshall Ruple, A. Dale Robinson, and Harley Sil- ver. Murrey Sherrill was employed by Respondent at the Charlotte terminal in September 1959 and worked as a truckdnver until his discharge on February 4, 1971. Sherrill had been active in the organizational campaigns conducted 6 Even were I to find that Fredrickson restricted punishment for union activities to those occurring on company time, I would nevertheless find this threat unlawful in fight of my conclusion with regard to the discharge of Murrey Sherrill that Respondent's no-solicitation rule promulgated in Fredrickson's speeches was discnminatonly and disparately applied and enforced FREDRICKSON MOTOR EXPRESS CORPORATION by Local 61 of the Teamsters and, in November 1971, he joined the Union.7 Thereafter, he solicited the signatures of fellow employees on behalf of the Union, held meetings, addressed employees at those convocations, and distributed union literature. Sherrill testified that, on February 3, 1971, while making a delivery to a customer, his truck was fol- lowed for approximately 2 miles by Safety Director Gerald Rogers. When Sherrill stopped at-the customer's premises, Rogers approached and berated Sherrill for entering the wrong gate, pointing out that a sign at the premises instruct- ed the drivers to enter through the rear. Sherrill protested that he did not see the sign, and Rogers acknowledged that the placard was obscured by a parked car. Thereupon, Rog- ers proceeded to criticize Sherrill because his truck was dirty and a tail flap was missing. Sherrill retorted that he "didn't want him [Rogers] bothering me like he did the last [Team- sters'] campaign in `68; and he said that he would bother me any time he pleased ...." Sherrill then stated, "I want you to know now that I am in the process of getting cards signed; I got cards signed in the previous campaign and I am in the process again." It is uncontroverted and I find that Rogers shot back, "Do you know Mr. Fredrickson said in a previous meeting that he would fire any man for talking union on company time." Sherrill requested Rogers to re- peat the statement, and Rogers modified his comment by stating that Fredrickson would discharge employees "for promoting union on company time." Sherrill further testified that he reported to work on February 4 a bit late because of icy conditions on the road and, as he proceeded to clock in, he was accosted by Termi- nal Manager Long who instructed him to report to the office of Everett Fredrickson, Respondent's president. Upon his arrival, Sherrill was greeted by Fredrickson and Rogers. Fredrickson asked Rogers to recount the events which had transpired between Rogers and Sherrill the previous day. Rogers related that he had informed Sherrill that Fredrick- son had told the men on an earlier occasion that he would discharge any employee "for talking on company time," at which point Sherrill interjected to add that Rogers had actu- ally used the phrase "talking union on company time." Fredrickson turned to Sherrill and invited the latter to pre- sent his version of the conversation, but Sherrill declined. Rogers continued with his narrative and, when he had con- cluded, Fredrickson asked Sherrill "was I getting cards signed on company time, getting union cards signed on company time." Sherrill replied that he did not know wheth- er Fredrickson was privileged to pose such an inquiry, and he thereupon placed a call to a Board agent to seek advice as to whether he should answer the query. Following that conversation, Fredrickson repeated the question and Sher- rill responded, "Yes, on the clock and off the clock." Fred- rickson observed that he was not interested in "off the clock, only on the clock," and he instructed Long to terminate Sherrill's employment. While the discharge action was being consummated, Rogers remarked that Sherrill "had done a real good job and said that I has a perfect safe-driving record." Long then handed Sherrill a termination slip which recited that Sherrill had been separated for engaging "in 7 In fact, Sherntl was a member of the Teamsters ' bargaining committee which met on numerous occasions with officials of the Respondent. He also served as a shop steward for that labor organization. 561 union activities on company time by his own admission." Long testified that Sherrill had been cautioned on sev- eral occasions about speaking to fellow employees during working time prior to his discharge and that the termination had resulted from a breach of a no-solicitation rule which Respondent had promulgated in 1968 and reiterated in Jan- uary 1971 debarring solicitation for any purpose, union or otherwise, dung working hours, and other witnesses called by Respondent repeated this theme .8 I find that Sherrill, by his own admission, solicited the membership of his fellow employees in the Union on company time despite the exist- ence of a no-solicitation rule. However, I am persuaded that his discharge was nevertheless violative of Section 8(a)(3) because the rule which formed the basis for his sep- aration was disparately and discriminatorily enforced. Thus, employee Woodrow Turner testified and I find that, in November 1970, Supervisor Hickey solicited a contribu- tion from Turner for the United Givers' Fund on worktime and President Everett Fredrickson testified that such solic- itations were a "must" at his installations , without re- striction as to when the solicitations were to be made. I find that, shortly before Christmas in 1970, Turner received per- mission from Terminal Manager Long to take up a collec- tion for an individual named Regoldie who had been discharged, and that Turner obtained contributions on company time from Supervisors Hickey and Keever. Again, employee Arvettra Christmas testified without contradiction and I find that Supervisor Sam Thompson openly conducted a baseball pool on working time during the 1970 World Series. He also averred that, around Christ- mas in 1970, he vended some church tickets during working hours to Supervisors Thompson and Herman Fun. Indeed, Furr conceded that he purchased a ticket on that occasion and that approximately six others were sold . Employee Claude Thomas testified that a junkman openly solicited the sale of materials on company time as late as September 1971 at which time Supervisor Reed Brown made a purchase. Thomas also recounted and I find that Supervisors Hickey and Keever, as well as Thomas, openly purchased metal social-security cards at the Charlotte terminal during work hours. Numerous other instances of such solicitation was reported in the record, and yet, so far as appears, not a single employee-solicitor was discharged for engaging in the foregoing activity, and not a single employee was terminat- ed for making a purchase on working time. Accordingly, I conclude that, although the no -solicita- tion rule promulgated in January 1971 was promulgated as a general rule against solicitation, it was invalidly applied and enforced only to Union solicitation while Respondent permitted extensive solicitation for various social and chari- table purposes. I therefore find and conclude that the pro- mulgation of the rule offended the provisions of Section 8(a)(1) of the Act.9 I further conclude that the enforcement of the rule against Sherrill with the consequent causation of his discharge of February 4, 1971, was violative of Section 8(a)(3).1° I also conclude that Safety Director Rogers Viola- 8 Respondent's Vice President Bill Fredrickson conceded that the rule was first promulgated only after the Teamsters embarked upon its organizational campaign in 1968, and was again reintroduced in his speeches in January 1971 only after the Union commenced to organize the employees. 9 Halhburton Co, 168 NLRB 1091. 10 Standard-Coosa-Thatcher Co., 85 NLRB 1358. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ted Section 8(a)(1) by threatening Sherrill with discharge pursuant to the invalid no-solicitation rule. Donald Larson was hired in September 1966. He was employed as a truckdriver and dockworker until his termi- nation on April 23, 1971. Larson was one of the most active adherents of the Teamsters Union, as Respondent well knew, for Larson personally mailed three petitions to Respondent's officials in October and November 1970 which recited that the "undersigned employees of Fredrick- son Motor Express [which included Larson] are involved with union activity, and have been in the past, and intend to do so in the future." In December 1970, Larson became active in the Union's organizational efforts when he signed an authorization card and solicited the membership of his fellow employees. On February 24, 1971, Larson com- menced to wear a union badge on his person while at work and persisted in this activity until the date of his discharge. Larson testified that, after he mailed the petitions to Respondent, his hours of work were changed from the 8:30 a.m. to 6 p.m. shift to the 10 a.m until 8 p.m. trick, in consequence of which he was assigned to a longer route which entailed more stops for the delivery of freight. He also testified that, after the mailing, he no longer was allowed to leave work early at the end of his shift. On April 21, 1971, Larson informed a supervisor that he had an appointment away from the terminal on the following day and that he would be absent for a certain period of time. The nature of this appointment, which was not immediately disclosed to the supervisor, involved a court appearance in which Larson was charged with driving under the influence of alcohol and speeding. On the af- ternoon of April 22, Larson was found guilty of the offenses charged and his driver's license was suspended. Late that afternoon, Larson returned to the Charlotte terminal where he informed Assistant Terminal Manager Warren Hickey of the events which had transpired that day. According to Larson, Hickey "hummed and hawed" and finally directed Larson to work on the dock until the end of the shift. The following morning, April 23, Larson returned to work and was told to toil on the dock. A short time later, Larson was called to the office of Terminal Manager Harry Long. When he arrived, Long stated that he observed a note on his desk which indicated that Larson had been deprived of his driver's license and Long inquired into the circumstances surrounding this happenstance. Larson reported on the inci- dent, after which Long commented "Well let me think about it a while" and Larson returned to the dock. Later that afternoon, Larson was recalled to Long's office where the latter proffered Larson's termination slip and paycheck and stated that "we don't need you any more, you are not qualified for it."" Larson asked "why can't I work on the dock? I will take a cut in pay," to which Long replied "No, because you are hired as a driver." Larson protested that an employee named Tracy Hunt had lost his license and had nevertheless obtained employment on the dock thereafter. Long retorted that he was unaware of such personnel ac- tion, whereupon Larson left the terminal. On May 17, 1971, while seeking employment, Larson 11 Under regulations applicable to common carriers, truckdnvers are dis- qualified from performing driving tasks for a period of 3 years if their licenses have been suspended. noticed an advertisement in a local newspaper which had been placed by Respondent and which sought the services of warehousemen. Larson responded to the advertisement and visited Long in quest of a job on the dock. Larson filled out an application for employment which he handed to Long. Long reviewed the document and commented, "thank you for filling out an application, but we don't hire former employees." According to Larson, he was aware that five former employees, including Claude Thomas, were reemployed by Respondent after a break in service . In this connection, Thomas testified that he had been reemployed after a break in service. And, James Reed testified that he had been a supervisor of the loading dock at the Asheville terminal in 1968 and 1969 and requested that he be allowed to return to his former job of truck driving, a request which was granted by Respondent. In defense of its action in discharging Larson on April 23, 1971, Respondent asserted that company policy dictated his separation after the loss of his license. Respondent's President Everett Fredrickson testified that Respondent's policy with respect to the transfer of employees to lesser paying jobs in the event that the employees were in poor health, injured, or lost their driving licenses, was to the effect that no such transfer would be made because, in his words, "We found that in the past that when we were doing that, years ago, that this person became disgruntled because of his cut in salary and the different type of work that he had to do." According to Fredrickson, this policy had been evolved approximately 3 or 4 years before Larson's termina- tion. However, Fredrickson confessed that he was aware that James Reed had been transferred in 1969 from a higher to a lower paying job in direct contradiction to Respondent's "established policy." Initially, he professed that this personnel action did not offend the rule because Reed was not a supervisor. On further examination, Fred- rickson admitted that Reed "acted as a supervisor in load- mg out of some of the runs in Asheville" but he "asked to be demoted" because he "did not want the responsibility." In addition, Fredrickson acknowleged that in mid-1970 Otis Brandon was transferred from the position of a supervisor to that of a gate guard because of reasons of health, again in contravention of Respondent's policy. According to Fredrickson, the variation of the rule constituted a qualifi- cation upon its rigid application because "That is one of the things that you have to consider in business." Unlike Respondent's alleged policy with respect to transfers, Fredrickson testified that Respondent promulgat- ed a written rule against the reemployment of employees who were discharged or had resigned after January 26, 1970. Such a rule appears as an amendment to an employees' handbook. Here again, Fredrickson testified initially that his terminal managers did not deviate from this policy. However, he finally admitted that the managers did not depart from the rule after January 26, 1971 "until they brought it to my attention." After a careful review of the evidence on this issue, I am persuaded and find that Respondent terminated Larson on April 23, 1971, not because of its policy of refusing to transfer an employee from a higher to a lower paying posi- tion and refusing to rehire employees who had previously been discharged, but because Larson was a known , active union adherent. I have heretofore found that in October FREDRICKSON MOTOR EXPRESS CORPORATION and November 1970, Larson personally mailed to Respon- dent a list of employees' names, including his own, who were active on behalf of the Teamsters , with the notation that he and the employees "are involved with union activity, and have been in the past, and intend to do so in the future." In December 1970, he joined the Union and solicited on its behalf. Beginning on February 24, 1971 , he openly wore a union badge while at work. While it is true, and I so find, that Larson lost his license on April 23 , 1971, and was disbarred from driving a common carrier for a period of 3 years, Larson requested a job on the dock and volunteered to take a pay cut. If Respondent had indeed maintained and enforced a rigid policy of terminating employees rather than demoting them, or refusing to rehire them after a break in service,.Respondent's discharge of Larson would have been completely privileged. However, Fredrickson himself testi- monially unfolded how the policy was observed in the breach. Accordingly, I find and conclude that Respondent discharged Larson because of his adherence to the Union and that Respondent thereby violated Section 8(a)(3) of the Act. The complaint also alleged that Respondent violated Section 8(a)(3) by assigning more difficult and onerous du- ties to him on and after October 27, 1970, because of his engagement in union activities . I am not convinced that the General Counsel has established this allegation by the re- quisite .proof. Larson testified that he had taken over the route in late October because the incumbent driver , Sherrill, had been assigned to fill the place of a driver on another route who had been discharged. Larson claimed that the number of stops increased on the new run, but he acknowl- edged that he never complained of his transfer to manage- ment and, indeed, had had his routes changed on several occasions prior to his engagement in activities on behalf of labor unions. I shall therefore recommend that this allega- tion in the complaint be dismissed. A companion allegation is contained in the complaint regarding the treatment which Harley Silver received at Respondent's hands after he commenced to wear a union decal at work on February 8 , 1971. Silver had signed a union designation in November 1970, solicited other employees to join, attended union meetings, and advertised such invoca- tions. On February 8, 1971, he began to wear a union patch on his clothing while on duty . Silver testified that, between March 1 , 1971, and March 15, 1971, when he was dis- charged, he was assigned to haul loads of baby food and wax approximately two to three times a week, whereas prior to his display of the decal he was required to deliver only one such load and in that case he was afforded a helper. According to Silver, it was more arduous to handle this type of cargo because it was not palletized. However , dispite his assertion, records from which Terminal Manager Long tes- tified and which ran through March 5 , 1971, failed prepon- derantly to substantiate this claim and the General Counsel made no effort to obtain records from Respondent which he contended contained the pertinent information . I therefore conclude that the General Counsel has failed to establish that Respondent violated Section 8(a)(3) by any conduct directed toward Silver. Richard Eady entered Respondent's employ on De- cember 14, 1970, and worked as a forklift operator and 563 checker on the dock at the Charlotte terminal until he was discharged on April 5, 1971. Eady executed a union authori- zation card shortly after he commenced working for Re- spondent and solicited union membership among his fellow employees. During the last 2 weeks in February 1971, he began wearing a union badge on his hat while at work. On the date of his hire, Eady was handed an applica- tion for employment bearing the question on the front page which asked, "Give the name of any labor organization of which you are a member." Eady did not respond to the question. The following day, Terminal Manager Harry Long inquired whether Eady had ever belonged to a labor organization and Eady answered in the negative . In early February 1971, Eady entered into a conversation with Fore- man Joe Howie. Eady's testimony is undenied and I find that, on this occasion, Howie asked the former "What are you wearing that union badge for?" and warned "You know, we are writing these names down." Eady further testified and I find that, on February 18, 1971, Dock Super- visor Herman Fun told Eady that Fun had been informed by two employees that they had observed Eady with a white card, the same color as the Union's authorization card, in Respondent's trailer. Fun added that "I don't know what you were doing or what you intended to do ." Eady ex- plained that he merely attempted to give another individual a pencil or piece of chalk to sign the card . Fun then cau- tioned Eady that "the next time this happens there will be an automatic dismissal," and no mention was made of solic- iting on company time in this connection . Fun hinted to Eady that the man whom Eady had solicited might have been a company decoy or policeman . At this point, Fun inquired whether Eady had anything further to say, and when Eady replied that he did not, Fun concluded the conversation by advising that "I will have you in here next month and then we will see if you have anything to say." Eady testified that, in the last week of February 1971, he was approached by Fun who was carrying an empty box and a piece of paper. Fun stated, "this is the man that was wearing the badge, this doesn't mean anything to me," and Fun discarded the box and paper. On April 5, 1971, Eady was called into Long's office where he was discharged for a variety of reasons, including mistakes in his work and failing to telephone Respondent when he intended to absent himself from duty. During his examination, Eady candidly admitted that on two or three occasions during his employment, he had misrouted freight to customers and had operated his forklift too speedily, in consequence of which he was spoken to by Fun and other supervisors. However, Eady adamantly denied that he had failed to call in, either individually or through his wife and father-in-law, denied that he had committed any more work infractions than other employees , and denied the commis- sion of the entirety of the infractions which Respondent attributed to him. To support its claim that Eady was severed from its employment rolls on April 5 for manifold mistakes and misconduct, Respondent relied principally on the testimony of Fun. Fun claimed that Eady was selected for discharge because of a multitude of errors in checking and routing freight, excessive breakage of freight, negligent operation of his forklift, and failure timely to report his absences from 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work. Furr then spun off a series of incidents to justify his claim. This endeavor proved abortive. Thus, regarding Fun's contention that Eady damaged an inordinate amount of freight, Respondent introduced approximately 14 "Over, Short and Damage Reports." At the bottom of the doc- ument appears the phrased question "Who Respon- sible ." However, only four of these reports attributed damage responsibility to Eady, and the question on two others are unanswered. Other formal and less formal reports on Eady's derelictions were also introduced into evidence. However, although they bear the notation that Eady was responsible, Fun admitted that Eady was never shown these documents. Fun also testified that Eady failed to report anticipated absences on three to five occasions. However, Respondent's records reveal that only three nota- tions regarding absences appear in Eady's personnel file, the only one discloses that Eady neglected to report the absence. Regarding other aspects of Eady's work perform- ance, Fun admitted that Eady's work tonnage was above average. Moreover, Fun conceded that other men on the dock had personnel files which contained as many or more notations as did Eady's, and other men had failed to report absences without suffering the pain of discharge. Finally, Fun acknowledged that he did not begin to place warning and reprimand notations into Eady's file until February 1971 at a time when Eady became prominent in the Union's campaign. As I have heretofore found, Eady commenced wearing a union badge on his hat while at work early in February 1971 and supervisor Howie noted this display, asking "What are you wearing that union badge for?" and warning that "You know, we are writing these names down." I credit Eady's testimony and find that, on February 18, 1971, Fun told Eady that two employees had seen Eady in a trailer in possession of a card which bore the same color as a union authorization designation and stated that "I don't know what you were doing or what you intended to do ... the next time this happens there will be an automatic dismissal." Fun also remarked that "I will have you in here next month and then we will see if you have anything to say." I also find that, at the end of February, Fun stated to Eady that "this is the man that was wearing the badge." In light of the foregoing, the fact that Respondent did not begin to make notations about faulty work and conduct in Eady's person- nel file until he exhibited his support of the Union, and Respondent's failure cogently to support its claim that Eady had committed extensive work errors, I am persuaded and find that Respondent discharged him on April 5, 1971, not because of any work insufficiencies but because he was a known union adherent. I therefore conclude that, by termi- nating Eady, Respondent thereby violated Section 8(a)(3) of the Act. I also conclude, based upon Eady's testimony which I credit, that Respondent violated Section 8(a)(1) by posing the question on its application form to "Give the name of any labor organization of which you are a mem- ber"; by Long's interrogation of Eady on December 15, 1970 regarding the former's union affiliations; by Howie's interrogation of Eady concerning the purport of the union badge which he sported on his hat and Howie's comment that Respondent maintained a list of the names of employ- ees who openly supported the Union; and by Fun's interro- gation of Eady concerning his union solicitations and his threat that Eady would be summarily discharged for enlist- ing union membership without regard to time and place. Marshall Ruple was hired by Respondent on Septem- ber 11, 1970 as a truckdriver and dockworker at the Char- lotte terminal. He testified that in October 1970 he signed a union authorization card and solicited the union member- ship of his fellow employees. In February 1971, he openly displayed a union badge on his work clothes. It is undisput- ed on this record and I find that, around February 1, 1971, Ruple engaged in a conversation with Warren Hickey, the assistant terminal manager and an admitted supervisor. During the colloquy, Hickey cautioned that Ruple had "better be careful and watch my step and start picking up a bit" because "they were watching me and keeping notes on me; every time I did something wrong, they were going to take a note on me, and when it came down to a trial, in court, that the Labor Board would laugh at me." Ruple further testified that, on February 12, 1971, Her- man Fun, Respondent's dock supervisor, approached and asked Ruple about the union badge which he was wearing on his jacket. Fun commented that "he seen a few other people around the terminal wearing them, and he wanted to read mine; and he read it, and he said, `you know you are on the s... list already and you ought to be playing ball on our time [sic] instead of the other team."' Employee Rich- ard Eady, who was present during this exchange, corrobo- rated Ruple's testimony. In his testimony, Fun initially claimed that he did not indulge in any conversation with Ruple on February 12, 1971. Later, Fun changed tack and allowed as how he did speak with Ruple at this time. How- ever, Fun contended that the discussion related to Ruple's work performance as evidenced by a posted tonnage list which, according to Fun, was "a list pertaining to getting on the 'S' list or the 'low' list ...... Fun asserted that Ruple ,.was below average all the time" in discharging freight. Fun then admitted that Ruple "part of the time ... seemed to work his units proper and at the right pace . . . ." When asked whether he told Ruple to get "on our side," Fun stated "No, sir, I said, `let's get on the ball, let's go." Fun did not impress me with his candor as a witness, and I credit the testimony of Ruple, as corroborated by Eady, and find the facts as Ruple reported them on the stand. Accordingly, I conclude that, by Fun's actions and comments, Respon- dent thereby violated Section 8(a)(1) of the Act. On February 17, while he was servicing a truck which belonged to a fellow employee, Gerald Rogers, Respondent's safety director, walked up to Ruple and in- quired as to how the latter was getting along. Ruple replied that he was doing fine, at which point Rogers glanced up at the dome light in the cab and remarked that the plastic dome light cover had been broken out. Rogers instructed Ruple to park the truck and remain with the vehicle until the former returned from a visit to the office of Harry Long, Respondent's terminal manager. A few minutes later, Rog- ers summoned Ruple to Long's office. When they arrived, Rogers stated that the light cover had been broken, spoke about the cost of replacing it, and asked whether Ruple knew who had damaged the equipment. Ruple expressed his ignorance as to the cause of the damage and denied that he was involved. Long broke into the conversation with the FREDRICKSON MOTOR EXPRESS CORPORATION comment that he had a note in his desk drawer which con- tained the information that "a driver had reported you [Ru- ple] for breaking out the dome light lens in his truck." Ruple vehemently denied that he had engaged in this act and branded the informant, whom he believed to be Thomas Metcalfe, a liar. Ruple was then sent back to work. On the evening of March 2, Ruple returned from a run. After parking his vehicle, Truck Supervisor Don Keever informed Ruple that Long wished to see him. Accompanied by Keever, Ruple entered Long's office where the latter immediately handed Ruple his paycheck and a dismissal slip which recited "fired for destruction of company proper- ty." Thereupon, Ruple left Respondent's employ. Accord- ing to Ruple, he was involved in the breakage of a dome light only on one occasion during his employment. In that instance, a cover had already been broken and the jagged edges remained in the receptacle. Ruple removed these edges. Thomas Metcalfe testified that he had a conversation with Terminal Manager Long relative to broken dome lights in February 1971. On that occasion he was called into Long's office where, in the presence of Safety Director Rog- ers, he was asked what he knew about the breakage of dome light covers in the vehicles. Metcalfe replied that he was aware that approximately seven had been damaged but pro- fessed ignorance as to the men responsible for the damage. Long and Rogers stated that they had been apprised by some unidentified employee that Metcalfe possessed the name of the guilty party or parties. At his juncture, Metcalfe remarked "just reach up and get a name," adding "You [Long] could have done it, Gerald Rogers could have done it; I could have done it, or anybody could have ... even Marshall [Ruple] could have ...... However, Metcalfe ada- mantly insisted that he did not suggest that Ruple was ac- countable for the breakages. Employee Lee Mabry, a witness called on behalf of Respondent, testified that he noticed that some dome light covers had been broken in a number of Respondent's ve- hicles including. the one assigned to him. However, Mabry indicated that he gained this intelligence approximately 4 or 5 months prior to the hearing herein, which would have placed his awareness of this condition either in June or July 1971, more than 3 months after Ruple's discharge. Mabry went on to state that he thereafter had a conversation with Metcalfe and the latter volunteered the information that, during a trip in one of Respondent's pickup trucks with Ruple, the men reached their destination and Ruple began to fill out a delivery form on a clip board. Ruple thereupon knocked the dome light out with the clip board and ex- claimed, "Now I can see, I cleaned it." Upon receiving this information, Mabry reported it to a few employees. Long testimonially recounted that he and Rogers joint- ly made the decision to discharge Ruple on March 2, 1971 "For breaking the dome lights out of a pickup truck." Long related that Rogers visited Respondent's shop and noticed that some dome lights had been fractured. Rogers asked Ruple whether the latter knew who had broken the equip- ment and Ruple replied that he did not know. Ruple was summoned to Long's office and Ruple again denied that he had broken the light covers and denied that he was aware of the identity of any employee who had done so. According 565 to Long, Rogers continued his investigation and found that Metcalfe's vehicle had also been damaged. Metcalfe was called to Long's office and interrogated about the matter. Metcalfe thereupon recounted that he had delivered a load to a customer with Ruple during the course of which Ruple broke the dome cover in Metcalfe's truck. Metcalfe also recalled that Ruple had removed the cover from Ruple's vehicle which already bore a small hole. Ruple was then brought to Long's office where the former admitted break- ing the cover in his cab and volunteered to pay for the damage. Subsequently, Long learned that approximately 17 other vehicles contained broken dome covers and, because Ruple drove several of Respondent's vehicles, Long sur- mised that Ruple was the culprit. On March 2, 1971, Long and Rogers terminated Ruple. On the record before me, I am convinced and find that Respondent discharged Ruple on March 2 because of his engagement in activities on behalf of the Union, and that its claimed assertion that Ruple was terminated because he had broken some dome light covers was merely a pretext to cloak its act of illegality. As previously chronicled, Ruple had joined the Union in October 1970 and, commencing in February 1971, he openly wore a union decal on his jacket while at work. That Respondent was aware of Ruple's union activities is evidenced by his uncontroverted testimony that, about a month before his discharge, Supervisor Hickey warned him that he had "better be careful and watch my step and start picking up a bit" because Respondent's offi- cials were "watching me and keeping notes on me; every time I did something wrong, they were going to take a note on me, and when it came down to a trial, in court, that the Labor Board would laugh at me." I am fortified in this conclusion by the credited testimony of Ruple and Eady that, on February 12, Dock Supervisor Fun noticed Ruple's union decal, inspected it, and cautioned that Ruple was "on the s... list already and you ought to be playing ball on our [team] instead of the other team." Long claimed that he learned of Ruple's breakage of a dome light from Metcalfe, although the latter steadfastly insisted that he did not place the onus of responsibility on Ruple when Metcalfe talked with Long and Rogers. Moreover, Mabry asserted that he learned from Metcalfe that Ruple had broken a light cover, but the record fails to establish that Mabry conveyed this intelligence either to Long or Rogers. In sum, I conclude that, by discharging Ruple on March 2, 1971, Respondent violated Section 8(a)(3) of the Act. I also conclude that Respondent violated Section 8(a)(1) by Assistant Terminal Manager Hickey's threat made to Ruple that Respondent was monitoring his conduct and taking notes thereof in order to justify his discharge, and by Fun's comment about the s... list." The essential facts surrounding the discharge of A. Dale Robinson are not in substantial dispute and I find them to be as follows. Robinson was hired by Respondent in May 1967 as a truckdriver at the Asheville terminal and was discharged on July 14, 1971. On October 13, 1970, Robinson testified against Respondent in the previously reported unfair labor practice proceeding in which the Company was ultimately found guilty by the Board of vio- lating the provisions of Section 8(a)(1) of the Act. In No- vember 1970, Robinson joined the ranks of the Union, 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attended meetings, solicited membership, and distributed literature. In late November or early December 1970, he appended a union sticker to his personal truck which he drove to the terminal each day. About this time, Robinson told Supervisors Richard Ray, Whitey Rice, and S. J. Prin- gle that he supported the Union. In the early part of 1971, Robinson commenced to wear a union badge while at work. Around June 15, 1971, approximately a week after the issuance of the adverse Board decision adverted to above, Robinson clipped a report of the decision out of a local newspaper and posted it on the terminal bulletin board. He then proceeded to fuel his tractor, at which juncture another employee approached to announce that Supervisor Ray had removed the article from the bulletin board. The following day, Robinson asked Ray why the latter had taken down the article. Ray replied that he did not know to whom it be- longed. Robinson exclaimed that it was his property and that Ray had no right to remove it. During the course of his employment, Robinson, like other drivers, made deliveries to customers on an unsche- duled basis. On the morning of July 14, 1971, he reported for work and was assigned to deliver a load of cargo to the Southern Bell Telephone Company. When he arrived at Bell's plant, he observed that a strike of Bell's employees was in progress and a picket line of approximately 20 indi- viduals was stationed at the main gate. As he drove his vehicle toward the gate, he became surrounded by 10 to 15 strikers who shouted "lock her down right there, Buddy, you are not going any farther ... we are on strike, and I don't think you are going to run over anybody to go in there ... if you do, you are going to be sorry." Robinson climbed down from his truck and telephoned Supervisor Ray. Rob- inson informed Ray that Bell was on strike and that he was debarred from entering the plant by pickets who had threat- ened him if he proceeded any further. Ray contacted a Bell official who advised Ray that Bell would unlock a rear gate. Ray was instructed to convey the freight to this entrance. Ray communicated this information to Robinson. Rob- inson drove the truck to the new location, but was met by about 10 pickets who blocked access to the gate. Additional- ly, ingress was impeded by cars which had been parked in the street. The Bell official approached the truck and sug- gested that Robinson return the load to Respondent's termi- nal and that Bell would use one of its vehicles to pick up the freight at that location. Robinson countered that, to save time and trouble for all concerned, he would unload the cargo at the rear gate. The official agreed to this procedure and departed to dispatch a small Bell truck to take on the shipment. A short time later, another Bell official appeared and instructed Robinson to telephone his terminal. Rob- inson did so and contacted Ray. Ray inquired as to what was the difficulty and Robinson responded that "they have got a picket line up here, and I can't get in; and I am not going to under the present conditions even if I could; I had already been threatened ... I don't want to endanger. my- self, and I don't want to get the company equipment tom up." Robinson invited Ray to come to the Bell plant and survey the situation, but Ray declined. When Robinson again declined to move the freight, Ray commented "you are just refusing to do your work." Robinson insisted that he was not shirking his duties and explained that "I have tried the best I can to work it out with this fellow, he even told me; [the Bell official] told me himself not to go in, that he would rather come out and get it and not cause any trouble." Ray stated that the official was not coming out and that "you [Robinson] are going in." Robinson once more declined, and Ray rejoined, "Well, if that is the way it is going to be, we don't need you any more. I will send a man to relieve you." Robinson asked whether this meant that he was discharged, and Ray replied "That's right. I will bring a man to relieve you." While waiting for his relief, Robinson removed his personal belongings from the cab and walked over to some of the strikers where he discussed with them the legality of the discharge although he did not engage in any picketing. Later that day, the relief man, Shorty Rice, drove to the plant in a tractor. Rice told Robinson to return Rice's trac- tor to the terminal while the latter attempted to drive the truck into the gate. Robinson stated that he did not think that he should use Respondent's equipment because he had already been terminated by Ray. At this point, Rice ap- proached the strikers, expressed sympathy for their cause, but insisted that he would complete the delivery. However, Rice was unsuccessful in this endeavor, whereupon he and Robinson proceeded to a telephone booth where Rice called Ray. Rice explained that he was experiencing difficulty in making the delivery because of the pickets. Robinson then took the phone and reported that Rice had instructions for Robinson to return the tractor to the terminal. When Rob- inson reiterated that he did not think he should perform this chore because he had already been terminated, Ray re- marked that "you are still on the clock at the present" and directed Robinson to come to the office when he returned. After Robinson arrived, Ray instructed Robinson to clock out and come to work the next day at the beginning of the shift. Robinson punched out and proceeded to a phone where he telephoned the local union representative in the area for advice. Robinson then drove to a city parking lot across the street from the Bell installation where he met a striking employee of Bell who was a shop steward for that company. Together they visited a local union office to dis- cuss Robinson's problem and then he returned to the park- ing lot. In company with a union representative whom Robinson met at the lot, he went to lunch and then applied for a job with another common carrier in Asheville. After lunch, Robinson returned to the parking lot and observed Rice sitting in a small truck in the vicinity. Before Robinson left for home, he noticed that the city police had arrived, the picket line was broken up, and Rice was permitted to enter the Bell plant. At no time during his visits to the lot did Robinson join the picket line. Moreover, he testified and I find that Robinson would have made the delivery if it were physically permissible to do so. The following day, July 14, 1971, Robinson reported to the terminal at the appointed hour and was met by Ray. Ray announced that "I have been instructed to relieve you of all duties," adding that Robinson's paycheck and termi- nation slip would be available the next da_y. Sometime there- after, Robinson received a "Separation Notice" on a form provided by the State Employment Security Commission which recited that Respondent's professed reason for his FREDRICKSON MOTOR EXPRESS CORPORATION separation was for "engaging in misconduct at customer's premises after refusing work assignment ." Respondent's Vice President Bill Fredrickson testified that, during the Bell strike, another driver requested that he not be assigned to drive through the picket line. According to Fredrickson, "We put him on another job and sent another man" and the driver was never disciplined or discharged. In Overnite Transportation Company,12 a case involving facts strikingly parallel to those presented herein, the Board had occasion to consider the question of the balancing of an employer's right to run his business and the right of an employee to engage in protected, concerted activities. In that decision, the Board observed: The Board has held, with court approval, that employ- ees engage in protected concerted activity when they respect a picket line established at the premises of an- other employer. [Citations omitted.] Recognizing the right of an employer to run his business despite this protected activity, the Board has held that an employer does not violate the Act in terminating such employees if the employer acts "only to preserve efficient opera- tion of his business, and ... only so [that he] could immediately or within a short period thereafter replace them with others willing to perform the scheduled work ...." [Emphasis supplied.] At the same time, however, it is the Board's view that if the protected right of employees is to have any meaning at all, the employer who would justify a discharge on the basis of an over- riding employer interest must present more than a mere showing that someone else may have to do the work. That fact is inherent in every situation where employ- ees fail to perform a portion of their assigned tasks by respecting a picket line. To accept it alone as conclusive proof that their services were terminated solely to pre- serve efficient operation of the employer's business would be to render illusory any finding that the em- ployees engaged in protected activity. It would leave the refusal to cross a picket line without any protection at all. Clearly, what is required is the balancing of two opposing rights, and it is only when the employer's business need to replace the employees is such as clear- ly to outweigh the employees' right to engage in pro- tected activity that an invasion of the statutory right is justified. In the instant case, Respondent patently had no cause to discharge Robinson under the teachings of Overnite. The record clearly shows that Robinson made every effort to discharge his cargo at the Bell plant but was thwarted by Bell's pickets who threatened Robinson with bodily harm, and by his concern that Respondent's equipment might be damaged. Robinson suggested and Bell's official concurred that Robinson should unload the freight at the rear gate and that Bell would transport the materials in its vehicle. Addi- tionally, Bell volunteered to pick up the cargo at Respondent's terminal. When Robinson was unsuccessful in making the delivery, Respondent dispatched another driver to perform the chore without, so far as this record stands, disrupting in any manner the orderly conduct of its business. Indeed, the substitute driver was also barred from 12 154 NLRB 1271, 1274. 567 making the delivery until the local constabulary dispersed the pickets and escorted the truck through the gate, an accommodation not made available to Robinson. More- over, Respondent's Vice President Bill Fredrickson candid- ly admitted that at a later date, another driver refused to drive through the same picket line and that "We put him on another job and sent another man" without discharging or otherwise disciplining the recalcitrant. In short, I find that Respondent discharged Robinson on July 14, 1971, because he engaged in a protected, concerted activity by refusing to cross the picket line, without any weighty countervailing business necessity present to justify such action. I therefore conclude that, by so doing, Respondent violated Section 8(a)(3) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent set forth in section I, above, have a close, intimate, and substantial relation to trade and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. I have heretofore found that Respondent discharged Murrey Sherrill on February 4, 1971, Marshall Ruple on March 2, 1971, Richard Eady on April 5, 1971, Don Larson on April 23, 1971, and A. Dale Robinson on July 14, 1971, because they engaged in union activities and/or in other protected, concerted activities under the Act. I shall there- fore recommend that Respondent offer to Sherrill, Ruple, Eady, Larson, and Robinson immediate and full rein- statement to their former jobs, or if those jobs no longer exist, to substantially equivalent jobs, and make them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them, by payment to each of a sum equal to that which he normally would have earned from the date of his discharge to the date of offer of rein- statement, less net earnings during said period. The backpay provided herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the nature and extent of the unfair labor practices engaged in by Respondent, which evince an atti- tude of opposition to the purposes of the Act in general, I deem it necessary to recommend that Respondent cease and desist from in any other manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in the case, I hereby make the following: 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Murrey Sherrill, Marshall Ruple, Richard Eady, Don Larson, and A. Dale Robinson, thereby discriminating in regard to their hire and tenure of employ- ment, in order to discourage their engagement in union or concerted activities protected by the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in these cases, and pursuant to Section, 10(a) of the Act, I hereby issue the following recommended: ORDER 13 Fredrickson Motor Express Corporation, Charlotte, North Carolina, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discharging employees, thereby discriminating in regard to their hire and tenure of employment, in order to discourage their engagement in union or concerted activi- ties protected by the Act. (b) Coercively interrogating employees concerning their union activities and affiliations. (c) Ordering employees to cease engaging in union ac- tivities and to report the engagement in union activities by other employees. (d) Threatening employees that there would never be a union at Respondent's terminals. (e) Threatening employees with discharge for engaging in union activities. (f) Threatening employees with reprisals for wearing union insignia on their apparel. (g) Threatening employees that wage increases would be withheld if they engaged in union activities. (h) Informing employees that Respondent would never execute a contract with the Union. (i) Warning employees that Respondent was making a list of the employees who wore union insignia. (j) Informing employees that Respondent would learn the names of employees who signed union authorization cards. (k) Ordering employees to refrain from engaging in union activities on company time while permitting employ- ees to engage in other non-work activities on working time. (1) Discriminatorily promulgating and enforcing a no- solicitation rule. (m) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act. (a) Offer to Murrey Sherrill, Marshall Ruple, Richard Eady, Don Larson, and A. Dale Robinson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent employment and make them whole for any loss of pay which they may have suffered as a result of the discrimination practiced against them, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Murrey Sherrill, Marshall Ruple, Richard Eady, Don Larson, and A. Dale Robinson, if presently serving in the Armed Forces of the United States, of their right, to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due herein. (d) Post at its terminals in Charlotte, Asheville, Hicko- ry, and King Mountain, North Carolina, copies of the no- tice attached hereto and marked "Appendix."14 Copies of said notice, on forms to be provided by the Regional Direc- tor for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consec- utive 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 any other material. (e) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." IT IS FURTHER RECOMMENDED that all allegations in the complaint not found herein be dismissed. 13 In the event that no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objec- tions thereto shall be deemed waived for all purposes. 14 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." 15 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 11, in writing , within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." FREDRICKSON MOTOR EXPRESS CORPORATION 569 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Murrey Sherrill, Marshall Ruple, Richard Eady, Don Larson, and A. Dale Robinson immediate and full reinstatement to their former jobs or, if those jobs are no longer in existence, to substan- tially equivalent jobs, and reimburse them for any loss of pay they may have suffered because of our discrim- ination practiced against them. WE WILL NOT discharge our employees, thereby dis- criminating in regard to their hire and tenure of em- ployment, in order to discourage their engagement in union or concerted activities protected under the Na- tional Labor Relations Act, as amended. WE WILL NOT coercively interrogate our employees concerning their union activities or affiliations. WE WILL NOT order our employees to cease engag- ing in union activities or to report on the union activi- ties of other employees. WE WILL Nor threaten our employees that there will never be a union at our terminals. WE WILL NOT threaten our employees with dis- charge for engaging in activities on behalf of Interna- tional Union of District 50, Allied and Technical Workers of the United States and Canada, or any other labor organization. WE WILL NOT threaten our employees with reprisals for wearing union insignia on their apparel. WE WILL NOT threaten our employees that wage in- creases will be withheld if they engage in union activi- ties. WE WILL NOT tell our employees that we will never sign a contract with the above-named union. WE WILL NOT warn our employees that we are mak- ing a list of the names of employees who wear union insignia. WE WILL NOT tell our employees that we will learn the names of the employees who sign union authoriza- tion cards. WE WILL NOT order our employees to refrain from engaging in union activities on company time while permitting employees to engage in other non-work ac- tivities on working time. WE WILL NOT discriminatorily promulgate or en- force a no-solicitation rule. WE WILL NOT, in any other manner, interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through rep- resentatives of their own choosing, to engage in con- certed activities for the purposes of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become, remain, or re- frain from becoming or remaining, members of the above- named or any other labor organization. FREDRICKSON MOTOR EXPRESS CORPORATION (Employer) Dated By (Representative) (Title) We will notify Murrey Sherrill, Marshall Ruple, Richard Eady, Don Larson, and A. Dale Robinson, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after their discharge from the Armed Forces. 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 direct- ed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2300.