Allegheny Corp.

JONES MOTOR COMPANY Jones Motor Company, a Division of Allegheny Corporation and Joseph J. Grace: Case 6-CA-5959 March 2, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 3, 1973, Administrative Law Judge Harry H. Kuskin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Jones Motor Com- pany, a Division of Allegheny Corporation, Irwin, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as herein modified. Substitute the attached notice for the Administra- tive Law Judge's notice. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions 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 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten you with injury to your 123 person or with closing down the Irwin, Pennsylva- nia, terminal because you have acted together for your common interest or protection. WE WILL NOT discharge any of you and fail and refuse thereafter to reinstate you because you have engaged in union-connected activity or because you have acted together for your com- mon interest or protection. WE WILL NOT in any other manner interfere with your rights under the Act to form, join, or help unions, to choose a union to represent you in bargaining with us, to act together for your common interest or protection, or to refuse to participate in any or all of these things. WE WILL offer to Glenn H. Wilson immediate and full reinstatement to his formerjob or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of his discriminato- ry discharge. JONES MOTOR COMPANY, A DIVISION OF ALLEGHENY CORPORATION (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. DECISION STATEMENT OF THE CASE HARRY H. KUSKIN, Administrative Law Judge: This case was heard at Pittsburgh, Pennsylvania, on August 2 and 3, 202 NLRB No. 31 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1972. A complaint, as amended at the hearing, issued herein on May 24, 1972, based on a charge and an amended charge filed on March 17 and April 11, 1972, respectively, by Joseph J Grace, an individual, against Jones Motor Corporation, a Division of Allegheny Corpo- ration, herein called Respondent.' Respondent's Irwin, Pennsylvania, terminal is alone involved herein. The complaint, as amended, alleges that Respondent violated Section 8(a)(1) of the Act since about November 1971 by threatening to discharge its employees, to do them physical violence, and to shut down its Irwin operations with their resultant discharge, all because they engaged in protected concerted activities, and by further threatening them with a shutdown of these operations if International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 30, herein called the Union or Local 30, persisted in filing grievances under its collective- bargaining agreement with Respondent; in addition, the complaint, as amended, alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging, and thereafter failing and refusing to reinstate, Glenn H. Wilson, an employee, because of his union and concerted activities. In its answer, Respondent denies that it has violated the Act as alleged herein. Upon the entire record, including my observation of the witnesses, including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and of Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint, as amended, alleges, and Respondent admits, that Respondent is a Maryland corporation with its principal office in Spring City, Pennsylvania; that it is a common carrier engaged in the business of transporting goods in various States of the United States under certificates issued by the Interstate Commerce Commis- sion; and that during the year preceding the issuance of the complaint herein, it received in excess of $50,000 for services rendered in connection with transporting materials across state lines to and from the Commonwealth of Pennsylvania. I find, upon all the foregoing, that Respon- dent is an employer as defined in Section 2(2) of the Act, and is engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint, as amended, alleges, and Respondent further admits, and I find, that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 30, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Some Background Facts Respondent conducts its business at approximately 85 terminals Of these terminals, 39 comprise its special commodities division, and the others comprise its general commodities division. The Irwin, Pennsylvania, terminal is part of the former division, the boundary lines of which encompass 20 States and the District of Columbia. This terminal employs about 40 drivers out of a total of the 540 drivers in the division. Apparently, these drivers are comprised of owner-operators, who own the tractors and trailers which they operate; of brokers who own a number of tractors and trailers and also drive for Respondent; and of drivers who do not own equipment but drive a broker's equipment. The above equipment is placed under lease to Respondent after passing a safety inspection conducted by Respondent's personnel. Once the equipment is under lease, Respondent supplies the owner-operator or broker with license plates and appropriate decals. Should a piece of equipment sit too long, namely, more than 30 days, Respondent will normally contact the owner of the equipment and advise him to put the equipment into service; and should he fail to do so, Respondent will take the equipment out of service and cancel the lease on the equipment.2 There are times when a broker or owner- operator has mechanical trouble with his equipment and will either arrange to have it repaired or will seek to replace it, or will just want to update his equipment. In such instances, the owner-operator advises Respondent that he is taking the truck out of service, and, in consequence, he remains out of work until either of the above contingencies occurs. According to Lawrence Swenglish, an owner- operator in Respondent's employ, he took his tractor out of service because of mechanical problems in the middle of March 1972 and then replaced it with another tractor and returned to work on May 22, 1972, after a lease was cut on the new equipment by Respondent. And according to Wilson, he was out of work for about 6 weeks in 1970, during which time he sold an old tractor which was then under lease to Respondent and replaced it with a new one under lease to Respondent. The Irwin terminal is housed in a two-room complex,3 with no docking, parking, or garage facilities, and is adjacent to a restaurant, called the Big T Restaurant, where the drivers spend some of their time when off duty. Arrangements for the pickup and delivery of cargo by drivers is usually made by telephone. Thus, the dispatcher at the terminal calls a driver on the telephone and tells him that a load has to be hauled from one place to another. The driver either accepts or rejects the load; if he accepts, the dispatcher gives him the job numbers and the stations for pickup and delivery. At all times material herein, Walter Guidas, an admitted supervisor, was the terminal manager at Irwin. Included in the plant hierarchy and figuring in these proceedings are the following admitted supervisors, Robert List, the vice president for the special commodities division; Charles Long, the vice president of labor I The name of Respondent appears in the caption and throughout this cancellation of that arrangement as signing off a lease d Decision as amended at the hearing 2 The record refers to the leasing arrangement as cutting a lease, and the as the driver's room 3 One of these rooms is referred to in the recor JONES MOTOR COMPANY 125 relations; Paul Englehart, the area director for the western region; Donald Chinchella, the regional manager; and Robert Poteste, the district manager. With specific refer- ence to List, the record shows that he deals mostly with administrative matters, being responsible for general sales and operations, as well as safety and compliance, of the 39 terminals. Under his aegis, at all relevant times, were, inter alios, two area directors, including Englehart; several district managers, including Poteste and Chinchella; a national accounts sales manager; 39 terminal managers, including Guidas; more than that number of clerks and an administrative director in the general offices at Spring City where he has his own office; and also some rate supervisors. With respect to List's overseeing the driver functions of the division, the record shows further that the central dispatch office is housed at the facilities at Spring City and is tied in to all 39 terminals by an "open voice box communication"; that three individuals in that office take dispatches throughout the day from the various terminals and record them on the driver trip cards, and that List spends some time in the central dispatch office and, from these cards, generally gathers information pertaining to this phase of Respondent's operations. These cards would show if and when a driver rejected a load, which, List admitted, occurred daily when viewed on a systemwide basis. As will appear hereinafter, information as to Wilson's rejection of a load, which was part of the critical developments leading to his separation, did not come to List in the above manner; instead, it was called in to him directly from the Irwin terminal. The record shows that the practice of turning down loads was current in March 1969 when List became vice president of the special commodities division. It shows further that this practice continued thereafter, although List had raised this matter on several occasions with representatives of the Umon, telling them "a lot of times that they wanted [the drivers represented by the Union] to accept these loads." At such times, it was made apparent to List that, as Respondent did not have a "forced board,"- whereby the first man up would be required to accept the load designated for him, Respondent's drivers felt free to refuse a load. According to Chinchella, who was the regional manager from March 1971 to the first of February 1972, "the drivers [at the Irwin terminal] were very particular in what . . . type of freight they would handle, what direction it's going in, and so forth. Insofar as a direction, not taking northern Jersey and only taking southern Jersey freight ...: . And there is testimony by Joseph Grace, a driver in Respondent's employ,4 that he has refused a load because "[he] didn't want it," and this might have been because "it was an overload" or "possibly it wasn't going where [he] usually run[s] or there may have been circumstances c i r c u m s t a n c e s . 4 Grace succeeded Wilson as the union steward after the latter's separation 5 Local 429 did not take the grievance to the next level 6 The term written grievances as used herein does not include employee complaints or problems which were not reduced to the written or formal stage Once a grievance is reduced to writing, it is presented by the steward to the terminal manager, or the regional manager, as the case may be If not settled, the grievance goes to the Western Pennsylvania Teamsters and Respondent's drivers have been represented for collec- tive-bargaining purposes ever since Respondent initiated its special commodities division a number of years ago. From the inception of this division and until about January 1971, Respondent had a collective-bargaining agreement covering its drivers with a sister local of the Union herein; namely, Local 429. The offices of this local were in Reading, Pennsylvania, which is a considerable distance from the Irwin terminal. In January or February 1971, the employees transferred their membership to Local 30, with offices in nearby Jeanette, Pennsylvania, and Respondent entered into a contract with Local 30, which contract is still in effect. The changeover from Local 429 to Local 30 followed in the wake of (1) the denial in January 1971 by Respondent at the first level of a grievance theretofore filed by Local 429 on behalf of Alfred Babyak, Jr., a driver, alleging that Respondent had violated its contract with Local 429 by deducting from his earnings a sum of money to cover the cost of an accident in which he was involved; 5 (2) a strike in protest thereof; and (3) a court injunction staying the strike action. According to Wilson, who was elected as the union steward at the Irwin terminal on February 28, 1971, and was still the steward at the time of his separation, "the minute the Irwin terminal figured we weren't getting the proper representation that we should be getting out of Local 429 we transferred to Local 30 in Jeannette, Pennsylvania, where we could get more positive action on our grievances and the problems." It is noteworthy, in this connection, that Babyak's grievance was subsequently refiled and was processed by Local 30, and Local 30 prevailed. The record also discloses that, in contrast to the 12 written grievances filed by Local 429 between the period of January 1, 1968, and December 31, 1970, Local 30 filed 30 written grievances6 from January to December 1971, of which I 1 went to formal hearing. So far as appears, the aforesaid 30 grievances involved "pay claims and run arounds," a "run around" being a claim that Respondent allowed a driver to haul a load other than on a first-in-first-out basis. Wilson, who presented these written grievances at the initial stage was unable to indicate how many of them belonged in each category. And as to the payroll claims, it is clear from the record that Respondent was having problems in 1969, 1970, and 1971 with its payroll department on a divisionwide basis due to an expanding volume of business and the difficulties inherent in training new personnel to handle an increasing volume of paper work; that Respondent received com- plaints "quite often" from union representatives and from the drivers themselves about payroll errors; that, in June 1971, Vice President List ran a seminar for drivers at the Irwin terminal and explained the problems he was having straightening out the payroll department; and that, because the drivers still felt that it was taking Respondent Employers Joint Area Committee, Steel Sub-Committee, a body set up by the local unions and Joint Council 40 of the Teamsters and by the Western Pennsylvania Truckers Association This body will be referred to hereinaf- ter as the Joint Council Failing agreement at this stage, the grievance then goes to the "Eastern Conference of Teamsters" to be resolved The Joint Council meets once a month in Pittsburgh, Pennsylvania; the Eastern Conference of Teamsters meets once every 3 months at different places along the eastern seaboard of the United States 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD too long to take care of payroll mistakes, etc., written grievances were being filed. It is apparent from all the foregoing, and I find, that, during the year 1971, Local 30 demonstrated that it was more aggressive than its predeces- sor, Local 429, in its representation of Respondent's drivers at the Irwin terminal, and that Wilson, by reason of his role as union steward in handling employee grievances, complaints, and problems, was the personification to Respondent of such aggressiveness. As already noted, the instant charge was filed on March 17, 1972, and the unfair labor practices alleged herein date from about November 1971, which is well within the 6- month period before the filing of that charge. However, the General Counsel adduced testimony at this hearing of purported threats by Respondent's supervisors which antedated that 6-month period. While what occurred outside the 6-month period was not made, and could not be made, consistently with Section 10(b) of the Act, the basis of unfair labor practice charges, these purported threats, if established, are nevertheless available to the General Counsel as background to the events occurring during the statutory limitation period.? According to Wilson, in May 1971, he attended a second-step grievance meeting at Pittsburgh in his capacity as steward and, while there, he happened to run into List who told him, in the presence of Long and Chrzan, the business agent of the Union, "if you guys continue to cause problems at the Irwin terminal, we'll close it down and get rid of you people " Additionally, employee Grace testified to another incident, as follows: He attended a meeting on April 23, 1971, at the union hall at which Wilson's separation by Respondent because he refused to haul a load out of Cleveland was discussed.8 He was there as acting steward because of Wilson's separation. During an intermission, Long called him aside and said that List did not want Wilson back to work and that, as a matter of fact, Respondent was contemplating closing the Irwin terminal. I note, however, that List denied the above attribution to him by Wilson, that Long denied that he attended the meeting in question, and that Chrzan, who testified as a witness for the General Counsel, was not asked about this episode. Accordingly, I find that the evidence fails to preponderate in favor of a finding that List made the threat attributed to him by Wilson. And while Long's testimony that he had no recollection of having made a remark to Grace about closing the Irwin terminal falls short of a denial, I note that Grace's attribution to Long also falls short of constituting a coercive threat within the Act's meaning, as it neither appears that Long indicated that such closing would be for antiunion reasons, nor does an inference to that effect seem warranted here. Accordingly, I find, that the record fails to establish that the unfair labor practices alleged herein occurred against a background of threats by Respondent to close the plant for union- connected reasons. B. The Alleged Violations of Section 8(a)(1) Wilson testified that during October 1971, at the Irwin terminal, he discussed some employee grievances with Donald Chinchella, the regional manager, in the presence of committeemen Trapana and Joe Grayson, and that in the course thereof Chinchella said, "if we continue to cause problems at the Irwin terminal, they would close the terminal down." Neither Grayson nor Trapana testified in this proceeding, and Chinchella denied making any such threat. I am therefore unable to find, in the face of this denial and in the absence of any corroboration of Wilson's version of this episode, that the record preponderates in favor of a finding that Chinchella made the above attributed remarks. Wilson testified also that he had another conversation with Chinchella during December 1941, shortly after Respondent had hired Robert Poteste as its district manager. At the time, the information was current that Poteste, who was leaving his job as terminal manager at Associated Transport, another common carrier, had a following of drivers and that he was going to bring some of those drivers with him from Associated Transport to, work at the Irwin terminal. According to Wilson, when he told Chinchella during this conversation that "we would object to these drivers coming on because we didn't have enough work for our own people," Chinchella replied that "if we continued to cause problems at the Irwin terminal, it would be closed down." In contrast to the above, Chinchella testified that his remarks consisted only of saying that it was Respondent's prerogative to put on additional equip- ment and that Respondent was going ahead with it. In addition, he denied making any threats to close the terminal during this conversation. Here, too, I find that the record does not preponderate in favor of a finding that Chinchella made the remarks attributed to him by Wilson. Indeed, the logic and probabilities of the situation argue against Chinchella threatening Wilson with terminal closure at the same time that he was advising Wilson of Respondent's determination to assert its managerial prerogative and hire additional equipment. Wilson testified further that, after the last-mentioned conversation, a meeting, at which the projected hiring of additional drivers was discussed, was held around Christ- mas time at the Ben Gross' restaurant in Irwin, Pennsylva- nia, between Chinchella, Englehart, and one Bernie House, representing management, and Chrzan, Ostroff, and himself representing the Union. According to Wilson, the following took place: The first statement made at that meeting was by Chinchella who said that "Jones Motor Company was sick and tired of trouble that [he, Wilson] was causing at the Irwin terminal." Whereupon, he replied that he was not causing trouble but was acting as "the voice of the 40 people down there." At this, Chinchella said, "Well, if you continue to cause these problems, we will close the terminal down." It was his further testimony that Englehart made some statement but he could not recall its content. Testimony was also given as to this episode by Chrzan, Chinchella, and Englehart. According to Chrzan's version, the troublemaker remark by Chinchel- la did not occur at the outset but followed "a little dispute" 7 See Local Lodge No 1424, International Association of Machinists, light on the true character of matters occurring within the limitation AFL-CIO [Bryan Manufacturing Co J v N L R B, 362 U S 411, in which period " See also Azelson Manufacturing Company, 88 NLRB 761, 766 the Supreme Court pointed out that "earlier events may be utilized to shed 8 As a result of this meeting, Wilson went back to work JONES MOTOR COMPANY 127 between Chinchella and Wilson. In addition, whereas Wilson did not recall what Englehart said, Chrzan testified that Englehart called Wilson a troublemaker, too, and that Englehart then threatened to close down the terminal if the troublemaking did not.cease. Chrzan made no mention of such a threat by Chinchella. According to Chinchella, he did not threaten to close the Irwin terminal dunng this episode,9 and he did not hear Englehart make any such threat. He failed, however, to deny making the troublemak- er remark attributed to him by Wilson and Chrzan. Similarly, Englehart failed to deny the troublemaker remark attributed to him by Chrzan, but denied making any threat to close the terminal. Here again, because Wilson and Chrzan were at odds in their testimony as to who did the threatening, with Wilson naming Chinchella, and Chrzan naming Englehart, and because both Chin- chella and Englehart denied having made any such threat during this episode, I find that the record does not preponderate in favor of a finding that either Chinchella or Englehart made a threat to close the terminal at the meeting at the Ben Gross' restaurant. However, I do find, on the basis of Wilson's testimony, as corroborated by Chrzan, that Chinchella called Wilson a troublemaker because of his concerted activity in opposing the hiring of additional drivers by Respondent. The record shows that Wilson had a telephone conversa- tion with List on December 30, 1971, Wilson being in the office of the Irwin terminal and List being in his office in Spring City. At that time, as will appear in more detail in connection with the discussion of the 8(a)(3) allegations of the complaint, as amended, the following sequence of events had occurred: Wilson accepted a load from Guidas, the terminal manager, on December 29. Later that day Wilson told Guidas that he was refusing the load and was going on vacation and Guidas advised him that this would be alright. The following day, on List' s instructions, Guidas informed Wilson that his vacation was not valid and inquired whether Wilson was available for work, which was on hand, but Wilson refused to make himself available, assertedly because he was then on an approved vacation. Whereupon, Guidas relayed this information by telephone to List at his Spring City office and List told Guidas to call Wilson to the telephone so that he could talk to Wilson. Guidas thereupon summoned Wilson to the telephone. It was Wilson's testimony that, during that telephone conversation, List said to him, "You, son of a bitch, you. What are you doing over there? I'm going to get on the airplane, come over to Irwin, kick the shit out of you and close down the terminal and get rid of everybody." Whereupon, he answered that he did not have to listen to that, and hung up the telephone. Robert Poteste,l° who was present in the Irwin office at the time, testified that he heard Wilson say on the telephone, "that would be fine with him [Wilson] and maybe he would drive to the airport and pick him [List] up"; that he then saw Wilson hang up the telephone; and that Wilson thereupon said to him that List had said that he (List) was going to fly to Pittsburgh u and punch Wilson in the nose. During cross-examination by Respondent's counsel, Poteste added that Wilson told him, after the telephone call, that List had said he was "going to beat the shit out of him (Wilson)." Loretta Poteste, who is the wife of Robert Poteste and was then a clerk in the Irwin office, was also present in the Irwin office at the time. She corroborated her husband in the last-mentioned respect, and added that she heard Wilson say on the telephone, "You'll what. You just do that." In regard to the above, List testified that he discussed two matters with Wilson over the telephone: (1) he told Wilson that it was his decision that Respondent would hire the brokers and that "[he] wouldn't allow Wilson to continue to object, without [his] getting involved to the extent, if [he] had to, to come to Irwin, Pennsylvania, and help supervise the operation insofar as the hiring of brokers"; and (2) he told Wilson that he (Wilson) had accepted a load the day before and that he was not going to be granted a vacation and that he was, in fact, being requested to perform his work assignments. List testified that he "could not relay" any of the conversation by Wilson, except Wilson's answer, just before hanging up the telephone on him, that he (Wilson) was on vacation and intended staying on vacation. List denied that he had threatened Wilson either with physical violence or with closing down the terminal at Irwin. In addition to the Potestes, Wilson placed Guidas and Chinchella in the office at the time of this telephone conversation. However, Guidas, who was a witness for Respondent herein, did not testify as to this episode, whereas Chinchella did. Accord- ing to Chinchella, he remained in the restaurant while Wilson left for the office to take this telephone call,12 but heard from Wilson when Wilson returned to the restaurant that, "Bob List-or one threatened the other or whatever it was." Chinchella testified further, "exactly all the remarks, I really don't remember." It is apparent from the testimony of List that he was preoccupied at the time of this telephone conversation, not only with the fact that Wilson had refused to haul a load but also with the fact that he (List) had been hearing from Guidas that Wilson "objected very strongly" to the hiring of additional drivers away from Associated. In this latter respect, List testified that he had instructed Guidas to have Wilson call him if he (Wilson) "was going to continue to object to the decision that [he (List)] had made with regard to the hiring of other brokers." In view of this and my findings herein that Wilson was to Respondent the personification of the aggressiveness of the Union and was called a troublemaker by it, I am persuaded that this conversation was not, as List seemed to imply, a statement by List of a company position to Wilson, free of anger and without incident other than the abrupt hanging up of the telephone by Wilson; but, as Wilson indicated, one of vituperation by List against Wilson. I find also that the 9 Chinchella, like Englehart, testified that this episode occurred on January 3, 1972, rather than around Christmastime as Wilson testified However, in view of my findings hereinafter, I find it unnecessary to resolve this testimonial conflict 10 Robert Poteste was called as a witness by both the General Counsel and Respondent. At this point, he was testifying as a witness for the General Counsel ii It would appear that the air terminal nearest to Irwin is located in Pittsburgh i2 I find it unnecessary to resolve this conflict in the testimony of Wilson and Chichella, as even granting that Wilson was mistaken in this regard, it would not affect my ultimate finding herein 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vituperative tenor of this conversation is underscored by the credible testimony of both Potestes as to what they overheard Wilson say just before hanging up the telephone and immediately thereafter, and by the intimation in Chinchella's reluctant testimony that Wilson told him, when he (Wilson) returned to the restaurant after the telephone call, that List had threatened him. In all these circumstances, I find that List was less than forthright in his above testimony and that Wilson gave a more accurate account of what transpired. I therefore conclude, and find further, that, during this telephone conversation, List threatened Wilson with violence to his person and with closing down the terminal, plus the resultant discharge of all employees, because he and its drivers had engaged in the concerted activities of opposing the hiring of additional brokers or owner-operators. The foregoing discussion pertains to paragraphs 6(b), (c), and (d) of the complaint, as amended. There remain the allegations in paragraphs 6(a) and (e). Paragraph 6(a) alleges that, "in or about November 1971, Walter Guidas, at the Irwin terminal, threatened to discharge employees for engaging in protected and concerted activities." However, it would appear that the General Counsel abandoned that allegation as he adduced no testimony in support thereof. Paragraph 6(e) alleges that, "on or about March 6, 1972, Robert Poteste, at the Irwin terminal, threatened to close down Respondent's Irwin terminal if the Union persisted in filing grievances under its collective- bargaining agreement." Although, here too, the General Counsel adduced no evidence in support of this allegation during his case-in-chief, Poteste did testify in regard thereto during direct examination while a witness called by Respondent.13 It was his testimony that he told Grace, whom he described as the acting steward although Grace was then the steward at the Irwin terminal, that "[he] felt ... that if the men didn't want to maybe work a little bit more and quit causing as much trouble as they were, that [he] felt the Company probably would close the terminal sooner or later." It was Poteste's further testimony that he made clear to Grace that he was voicing his own feelings in the matter. In all these circumstances, I conclude, and find, that this testimony falls short of establishing a threat by Respondent to close down the Irwin terminal if the Union persisted in filing grievances under its collective-bargaining agreement. In sum, therefore, I conclude, and find, that the record fails to sustain the allegations of paragraphs 6(a), (b), and (e) of the complaint, as amended, but does sustain the allegations of paragraphs 6(c) and (d), pertaining to the telephone conversation between List and Wilson on December 30, 1971. Accordingly, it follows therefrom that, by threatening Wilson both with violence to his person and with closing down the Irwin terminal plus the resultant 13 As already noted, Robert Poteste also testified as a witness for the General Counsel 14 The record shows in this regard that in April 1971 Wilson hauled a load for Respondent to Cleveland, Ohio, that he telephoned Respondent's terminal there for another load to haul, and that, upon being told that the only freight available was a haul to Virginia, he rejected the load At this, the dispatcher told Wilson he had to haul the load to Virginia, as the Spring City office had issued orders to that effect, or he would be considered a voluntary quit Wilson again refused to haul the load and went on to Respondent's terminal at Girard, Ohio There he asked the terminal discharge of all employees because he and its drivers had engaged in the concerted activities of opposing the hiring of additional brokers or owner-operators, Respondent violated Section 8(a)(1) of the Act. C. The Alleged Violation of Section 8(a)(3) of the Act 1. The employment history of Glenn H. Wilson Wilson's tenure of employment with Respondent spanned the period from 1967 to a time in January 1972, when he was allegedly terminated by Respondent. During that period, he left Respondent's employ for an interval, not specifically delineated herein, in order to engage in his own business of hauling marble. Thereafter, in April 1971, there was a second interruption of his employment, apparently for a short period, because Respondent deemed him a voluntary quit when he refused to haul a load.14 As already indicated heretofore, Respondent relented, upon the intercession of the Union in Wilson's behalf, and allowed Wilson to return to work.15 Wilson was a member of Local 429 before he transferred his membership, along with the other drivers at the Irwin terminal, to Local 30 in January 1971. Shortly thereafter, in February 1971, Wilson was elected as union steward for the drivers at the Irwin terminal. So far as appears, Wilson processed all of the 30 written grievances which were submitted to him by the Irwin drivers during 1971. Wilson's role in this regard was to present the grievances to the terminal manager or to the regional manager, as the case might be, and to try to settle the grievance without going to a formal hearing. If he failed at this level, the grievance was then heard by the point council in Pittsburgh which met once a month. And failing agreement at that level, the grievance was presented before the Eastern Conference of Teamsters, which met once every 3 months at different locations. Wilson was required to be present and participate at all levels of the grievance procedure. It is noteworthy that the first grievance processed by Wilson involved the above-men- tioned Babyak case. As heretofore found, Babyak had filed a grievance concerning the matter with Local 429; and when it was denied at the first level, Local 429 did not proceed to the next step in the grievance procedure. Upon Local 30 becoming the bargaining agent of the drivers, Babyak refiled the grievance with Local 30, and it was Wilson who took the grievance to the third step in the grievance procedure, i.e., to the Eastern Conference of Teamsters, where it was resolved in favor of Babyak. The record shows that Wilson , in his capacity as union steward, took an aggressive stand in December 1971 in opposition to the projected hiring by Respondent of additional owner-operators or brokers. This opposition manager if he had any freight and was told by the terminal manager that he (the terminal manager ) had a load going to Mechanicsburg, Pennsylvania, but he could not let Wilson have it because of orders from Spring City that Wilson had to go back to Cleveland and haul that load to Virginia. Wilson, thereupon, called the Union in Pittsburgh and was told to return home The morning after Wilson returned home, he received a telegram from Respondent informing him that he had voluntarily quit hisjob 15 As already found during a recess in the proceedings on April 23, 1941 Long told Acting Steward Grace that Vice President List did not want Wilson back JONES MOTOR COMPANY materialized when, as already found, Respondent hired Robert Poteste, the then terminal manager at Associated, on December 22 or 23, 1971,16 as its district manager, and Poteste was to bring with him from Associated to work for Respondent some of his following of drivers. Upon hearing of the projected hiring, the drivers at the Irwin terminal became concerned because, in their view, there was not enough work for the existing complement of dnvers; they were then averaging one "round" a week instead of the customary two "rounds" a week, largely because they were hauling mostly steel and the steel industry was then experiencing a slump. The drivers expressed their objec- tions to management through Wilson. As found above, List testified that he learned from Guidas that Wilson "object- ed very strongly" to the hiring of more drivers or brokers. In this connection, Wilson testified that he was approached by Guidas concerning these additional hirings and was asked, "Are you people still going to object [to such hirings]?", and that he responded in the affirmative. Also as found above, Wilson conveyed to Chinchella, the regional manager,17 during December 1971, that the drivers of Respondent at the Irwin terminal would object to the hire of additional drivers because there was not "enough work for our own people." The record shows further, in this regard, that the aforesaid aggressive role by Wilson caused Respondent openly to voice its displeasure therewith, witness the fact, as I have also already found, that Chinchella told Wilson, during the meeting of management and the Union convened in order to discuss the problem generated by the projected hiring, that he was a troublemaker. In addition, there is testimony by Loretta Poteste, which I credit, that Guidas told her during the week after Christmas 1971 that, "Jones Motor felt that Glenn was a troublemaker and that Bob List himself had been trying to get rid of Glenn Wilson for quite some time but had not been able to get anything on him," and further that, "the Company felt that Glenn Wilson was the instigator of the problems that arose whenever we brought a truck from Associated and assigned them over to Jones Motor." The record also shows, as heretofore indicated, that in the midst of this projected hiring, another critical develop- ment occurred. The details of this development are as follows: On the morning of Wednesday, December 29, 1971, in consequence of a telephone call from Guidas, Wilson accepted a load to Cleveland, Ohio, which was to be picked up by him at 1:30 that afternoon. Before pickup time, while Wilson was still at home, Wilson heard, via 16 Poteste had previously worked for Respondent from 1963 to March 3, 1969 17 Chinchella served in this capacity during his tenure of employment which spanned the period from April 1971 to "the first of February" 1972 He was required in the course of his duties to become involved in dealings with the union steward and representatives of Local 30 11 The sale was effectuated later that afternoon 19 As Guidas gave ambivalent testimony in this regard, saying, under direct examination by Respondent's counsel, that he did not give his approval, and saying, under cross-examination by counsel for the General Counsel, that he did, I credit Wilson's testimony in this regard, which was corroborated by the testimony of Robert Poteste, the district manager, and that of Loretta Poteste, his wife There is also uncontradicted testimony by Robert Poteste that the normal procedure in the business as to driver's vacations is that the driver indicates to management that he is taking "X amount of days of absence" and it is 129 telephone from one Jay Poole, who had talked to Wilson prior thereto about buying his tractor, that he (Poole) wanted to purchase Wilson's tractor that same day.18 According to Wilson, he decided to sell the tractor and not haul the load to Cleveland because one did not find a buyer with money every day Whereupon, he telephoned Guidas before noon that day, and requested first to be relieved of his load and then to be allowed a 2-week vacation. Guidas gave his approval to both requests.19 Wilson testified that he told Guidas that he had sold his tractor at the time he asked to be relieved of his load on December 29, and that on the morning of December 30 he asked Guidas to note both the sale and the fact that he was going on vacation on the daily log. I am satisfied, however, on the basis of the testimony of Guidas, as corroborated by Robert Poteste during his testimony as a witness for the General Counsel, that Wilson did not advise Guidas of the sale at either time. Rather do I find, on the basis of Guidas' and Poteste's testimony, that it was rumored around the terminal that there was such a sale to Poole and that, during the afternoon of December 30, Guidas was able to reach Poole on the telephone and to ascertain from him that he had purchased the tractor from Wilson.20 It is apparent from the record that List learned about the above December 29 developments involving Wilson the very same day via a telephone call to Spring City by Don Diggan, a district manager. In addition, List also spoke to Chinchella, the regional manager, concerning this matter. The next morning, i.e., on December 30, he also learned from Guidas that "there was a good chance that Mr. Wilson had sold his tractor." In consequence of the above, Guidas was instructed by List "to get hold of Wilson and tell him that his vacation was not valid and that there was work available for him,21 was he available for work." During the afternoon of December 30, Guidas spoke to Wilson, who was then at the Big T Restaurant, and told him what List had said. Wilson, in turn, answered, in effect, that he would not accept any work as he had been granted a 2-week vacation.22 When Wilson's answer was relayed to List at Spring City soon thereafter, List told Guidas that he wanted to talk to Wilson. This was communicated to Wilson by Guidas and there resulted that afternoon the heretofore described telephone conversation between List and Wilson in which, as I have found, List threatened Wilson with violence to his person and with closing down the terminal, with the resultant discharge of all drivers, because he and its drivers had engaged in the "normally" granted He also testified that he does not know of a single instance during his employment by Respondent where a vacation request was denied In regard to drivers' first accepting a load and then asking to be relieved of the load, Poteste testified that this happens "quite often," adding that, "I don't think there's a day that goes by that this hasn't happened " 20 Guidas had heard before December 29 of Poole's interest in Wilson's tractor 21 So far as appears, Respondent was not then in need of Wilson's equipment to handle available loads 22 1 have set forth above Guidas' version of this conversation While Wilson testified that he gave, as part of this reason, that he had sold his tractor, I find it unnecessary to resolve this credibility issue because it is apparent from the record that at or about this time Respondent learned from Poole of the sale of the tractor to him 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities of opposing the hiring of additional brokers or owner-operators. The next development of consequence in Wilson's employment history occurred on January 3, 1972. On that date, Wilson was at the Irwin terminal and signed off the lease on his tractor at the instance of Chinchella. At the time, Chinchella told Wilson that he (Chinchella) needed the decals and plates which were on the tractor. Although Wilson promised to bring them to the terminal on January 4, the record shows that, during the afternoon of that day, Respondent dispatched a telegram to Wilson, under Chinchella's signature, saying that Respondent had not received the plates, permits, and door placards for the tractor and that "unless these items are received immedi- ately further action will be necessary." Respondent did thereafter receive these items from Wilson on January 5. It was List's testimony that once Wilson had signed off the lease on his tractor, "he terminated the employment at Jones Motor, he had no equipment to work with." However, it is clear from the record, as will appear more in detail hereinafter, that Wilson still had under lease to Respondent the trailer which he had operated in conjunc- tion with the aforesaid tractor; and it is further apparent that Wilson was not then of a mind to terminate his employment. Thus, according to Wilson's uncontroverted testimony, which I credit, when he signed off his lease on the tractor, he refused Chinchella's request to sign off the lease on his trailer on the ground that he intended to replace the tractor and return to work. Additionally, according to the mutually corroborative testimony of Wilson and Lloyd Lingle, one of Respondent's owner- operators, which testimony I also credit, at about that time, Wilson had contacted Lingle and had arranged with him to drive one of his two tractors then under lease to Respondent. The tractor in question had been put under lease to Respondent by Lingle less than a month before, the occasion therefor being that Lingle's other tractor, which was then the only one under lease to Respondent, was going in for repairs. Lingle's understanding with Wilson was that the tractor he (Lingle) was then driving was to be made available to Wilson as soon as the repairs on the other tractor were completed, which was estimated to be about two weeks, and that Wilson would use this tractor in combination with his own trailer. The record shows that Wilson's above efforts to continue in the employ of Respondent were unavailing. Thus, under date of January 5, Respondent sent him a registered letter signed by Chinchella in which it notified him that the "effective lease" on his trailer was canceled on that date. Of significance in this regard is Robert Poteste's testimony, which I credit, that company policy then provided that "if a man sells a tractor and he is going to purchase another tractor, the trailer is normally not canceled. If a man sells his tractor and he says he's going completely out of business,23 then they would cancel the entire unit and the individual." Additionally, with respect to Wilson's arrange- ment with Lingle, it is apparent from List's testimony that, upon learning from Guidas, via telephone, that Guidas understood that Wilson was going to drive one of Lingle's two tractors,24 he initiated action which resulted in a telegram being sent to Lingle canceling the lease on that tractor. The cancellation , which was made effective as of January 10, was sent to Lingle's home on January 6.25 Lingle was not at home that day as he had theretofore accepted a load from Respondent and was en route making the delivery with the very tractor which was the subject of the cancellation notice . Of significance here is the following : List testified, in explanation of his action, that he was advised erroneously that the instant tractor of Lingle had been dormant for more than 30 days, implying thereby that, but for the error, he would, in canceling the lease, have acted consistently with company policy respecting dormant equipment . However, assuming, but not deciding, that List did get erroneous information, the fact remains that he acted precipitously in the matter. For, the normal procedure , as I have heretofore found, is first to contact the ownet of the equipment and advise him to put the equipment into service, and only if he fails to do so will Respondent take the equipment out of service and cancel the lease on the equipment. Significant, too, is List's admission that he was not particularly interested in having Wilson drive Lingle's tractor. He added, in this connection, that Wilson had not been a good operator. "He has been one that, without regard to our customers, would turn down freight and not concern himself with the fact that we are a service oriented company and that this is the sole purpose of our existence and this was far from his concern. And the prime example of that , of course, we go back to December 29." It is evident from the record that, notwithstanding his unsuccessful attempt to drive Lingle's tractor and thus get back to work, Wilson took further steps to get back on Respondent's payroll, which also proved unavailing. Credited testimony establishes the following : About the middle of January, Wilson approached Chinchella, on one occasion, and Robert Poteste, on another occasion, to inquire as to whether he could get back to work if he purchased another tractor . Both of them made clear to him that Respondent would be interested in seeing his equipment . Thereafter, on January 20, Wilson met Poteste at the restaurant near the terminal and informed him that he was in the process of purchasing a tractor, and inquired whether Respondent would put him to work. Poteste told Wilson to "bring the truck up" and in the meantime he would get an answer for Wilson . Wilson then indicated he had to take care of some business and Poteste told him to return in about an hour for an answer . Poteste soon told Guidas that Wilson approached him saying that he was buying a truck and would be ready to go back to work. Thereupon, Guidas telephoned List in Spring City. Upon concluding this telephone conversation , Guidas told Poteste that the answer was "no." At this, Poteste inquired as to what reason he was to give to Wilson and was told by Guidas to tell Wilson that Respondent was not hiring equipment at this time . Poteste then went to the restaurant 23 This, I find, was clearly not the situation with Wilson 25 Although the telegram bears date of December 6, the parties 24 Wilson testified that he made his transaction with Lingle known to stipulated that this was an error Guidas and Chinchella JONES MOTOR COMPANY 131 adjacent to the terminal and told Wilson that he could not put him (Wilson) to work for the above reason.26 On the issue of whether Respondent was, in fact, not hiring additional equipment at the time, credible testimony establishes the following: Later, the same day, Robert Poteste was in the restaurant near the terminal talking to one Vincent Christifano, an owner-operator, who was asking about employment with Respondent. Wilson overheard the conversation, came over to Poteste and Christifano, and asked Poteste how he (Poteste) "could be discussing hiring equipment when he had just previously told him (Wilson) that Respondent was not hiring equipment."27 Poteste's answer, according to the uncon- tradicted and credible testimony of Wilson was, "We just aren't putting you on." Noteworthy, in this latter respect, is Poteste's testimony that it was part of his job to seek to hire equipment and that at no time during his employment tenure with Respondent were orders given to him personal- ly by management not to hire equipment. In addition, the parties stipulated that, after January 20, 1972, Respondent hired the equipment of one Lloyd D. Oblak, of Christifano, and of one William Konkus on January 21 and February 7 and 16, respectively. While it is also true, as the parties further stipulated, that, of these, Oblak and Konkus were from Associated and were part of the following of Poteste, the fact remains that, contrary to the representation by Respondent to Wilson on January 20 that it was not then hiring equipment, Respondent did continue to do so, albeit, in two of the three instances above, the owners of the equipment came from Associated and were part of Poteste's following. I find, in all these circumstances, that Respondent misrepresented to Wilson that it was not then hiring equipment. Wilson made no further approaches to Respondent about getting back on its payroll. Although, so far as appears, Wilson did not complete the transaction to purchase a tractor, which was in process when he made the overtures to Poteste on January 20, it is evident from all the foregoing that to have done so to get back to work would have been a futile act. That this is so is further apparent from Business Agent Chrzan's credible testimony that, on January 27 or 28, he asked Vice President Long over the telephone if Wilson could go back to work and was told that, "under no circumstances will [Wilson] be back to work." The last development herein occurred on February 1. At that time, Wilson and Chrzan appeared at the Irwin terminal for the purpose of tendering a resignation. Present at the terminal were Guidas, Robert Poteste, and Bergey. The nature of the resignation is in dispute, with Chrzan and Wilson saying that Respondent's representatives were told that Wilson was resigning as union steward and that Grace was taking his place, with Guidas saying that Wilson 16 The above credited testimony as to what Guidas told Poteste right after the telephone conversation was given by Poteste Although Guidas gave a different version, saying only that he reported to Poteste that List wanted to talk to Wilson before anything further was done, and denying that he told Poteste that Respondent was not putting any trucks on, his testimony in this regard did not have the ring of truth and I do not credit him Similarly, I do not credit the testimony of Hilda Bergey, a clerk in the Irwin terminal, that shortly thereafter she overheard a conversation between Poteste and Wilson in which Poteste told Wilson that he had to call List and resigned only from his job at Respondent, with Poteste saying that Wilson told him that he had "officially resigned as of today or something to that effect ," and Bergey saying that Chrzan made the statement that Wilson was tendering his official resignation from Respondent and, on the way out, added, "oh, by the way, [Wilson] also resigns as steward." In view of the above divergencies in the testimony of Guidas, Bergey and Poteste , who testified in behalf of Respondent in this regard , and the unlikelihood that ( 1) Wilson would have opted to resign from Respon- dent at this point, and (2) Chrzan, the business agent of the Union, would have been on this mission with Wilson if the purpose thereof was to tender Wilson 's resignation from Respondent, I find that the mutually corroborative testimony of Wilson and Chrzan more closely resembles the truth . Accordingly , I credit Wilson and Chrzan and find that Respondent was then notified only of Wilson's resignation as union steward and of his replacement by Grace. 2. Analysis and conclusions It is apparent from all the foregoing that Wilson's refusal to accept a load on December 29, 1971, within a few hours after he had accepted that load, which refusal was occasioned by his having agreed in the interim to sell for delivery that day the tractor which he used, in combination with his trailer, to haul loads for Respondent, set in motion a series of events resulting in Wilson's separation. The General Counsel contends, in his brief, that Wilson's separation was a discharge and that it occurred on January 6, 1972, when Respondent cancelled out the lease on Lingle's second tractor, after Wilson had obtained the right from Lingle to use it in hauling loads. Respondent, on the other hand, takes the position, in its brief, that Wilson was not discharged but voluntarily quit his employment at the time he sold and signed off the lease on his tractor, and that the General Counsel failed to establish that Respon- dent did anything which prevented Wilson from leasing another tractor to it. The above contentions are to be evaluated in the following context: (1) Wilson refused Chinchella's contem- poraneous request to sign off the lease on his trailer, as well, on the ground that he intended to replace the tractor and return to work. (2) Notwithstanding Wilson's express indication that such was his intention, Respondent disregarded its normal policy of not disturbing the lease on the trailer of an owner-operator who sells a tractor and is going to purchase another tractor by precipitously cancel- ing the lease on his trailer by registered letter to him dated January 5, 1972. (3) Wilson proceeded on or before the that Wilson refused I note that this testimony, which was given during direct examination by counsel for Respondent , followed her earlier testimony, viz, "Now what they had said, I don't really know You could overhear them talking but you couldn' t make out what they were saying " 27 According to the credible testimony of Christifano, he told Poteste that he wanted to go to work for Respondent Poteste then asked if his equipment was ready and he answered that he needed a trailer Whereupon, he told Poteste he would be back as soon as he got his trailer and Poteste replied, "that's fine, as soon as you're ready you come back " 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD latter date to make arrangements to drive one of Lingle's two tractors,28 in conjunction with his own trailer, and alerted Respondent to his plan to drive this equipment in its service. (4) This attempt by Wilson was thwarted when Respondent precipitously canceled the lease on the tractor of Lingle which he (Wilson) was to drive. (5) Even assuming, without deciding, that Vice President List was erroneously advised that one of Lingle's two tractors had been dormant for more than 30 days, Respondent, by canceling the lease on such equipment, violated its normal practice of giving notice to the owner thereof of its intention to cancel the equipment unless he activated it. (6) Wilson thereupon sought to arrange for the purchase of a tractor and, on January 20, 1972, notified Respondent that he was acquiring a tractor and would be ready to get back to work. (7) This attempt by Wilson to get back to work was also thwarted by Respondent when it misrepresented to him that it was not hiring any equipment at that time. The aforesaid conduct of Wilson is clearly inconsistent, I find, with Respondent's contention that Wilson was a voluntary quit. Indeed, it argues strongly that Wilson regarded himself throughout as temporarily out of service and still in the employ of Respondent. While it is true that he did not formally tell Respondent that he was temporari- ly out of service, his insistence that he was then on a 2- week vacation with Respondent's approval, plus the above statement by him to Chinchella of his intention to replace his equipment were tantamount thereto. Noteworthy in this connection is (1) Respondent's admission that if a driver wants to update his equipment-a parallel situation, I find-its policy is to cancel the old lease on the equipment and permit the driver to take whatever time he needs to acquire replacement equipment, and it will, when that happens, execute a new lease; and (2) its further admission that the driver retains his employee status during the transition period On the other hand, Respondent's above conduct of thwarting Wilson at every turn, namely, by canceling on January 5, 1972, the lease on his trailer, by canceling the next day the lease on the tractor belonging to Lingle which Wilson had arranged to drive and thereby get back to work for Respondent, and by misrepresenting to Wilson on January 20, 1972, when he advised Respondent that he was purchasing a tractor, that there was no available work, establishes, and I find, that Wilson's separation was effected by Respondent rather than by Wilson himself. As heretofore noted, the General Counsel contends that Respondent effected Wilson's separation or termination on January 6, 1972. Supporting this contention are: (1) On December 30, 1971, during the telephone conversation with Wilson, initiated by List, List threatened, inter aha, "to close down the terminal and get rid of everybody." (2) On December 30, after this telephone conversation, according to the credible testimony of Loretta Poteste, Guidas told her that "under no circumstances was he to cut a new lease for Glenn Wilson if he bought another truck to be put on." (3) Thereafter, before the end of the day on January 4, 1972, despite Wilson's representation to Chinchella the day before that he would return on January 28 As already found, Lingle then had the tractor, which Wilson was to drive, under lease to Respondent because the one he usually drove was 4 the plates and decals which were on the tractor he had sold, Respondent sent Wilson a telegram demanding the return of these items "immediately" or "further action will be taken." (4) On January 5, the day on which Wilson returned the plates and decals, Respondent canceled the lease on Wilson's trailer by registered letter to him, notwithstanding his express indication to Chinchella on January 3 of his intention to replace the tractor he had sold and to return to work. (5) And lastly, on January 6, after learning of Wilson's plan to drive one of employee Lingle's two tractors in its service and thus return to work, Respondent precipitously canceled Lingle's lease on the very tractor which Wilson was to drive; and although it claimed that it was erroneously advised that the equipment was dormant for more than 30 days, it had nevertheless violated, by such cancellation, its normal practice of notifying the owner of such dormant equipment of its intention to cancel the equipment unless he activated it. Noteworthy, too, is the undenied testimony herein of Thomas B. Donnelly of the Bureau of Employment Security of the Commonwealth of Pennsylvania that Respondent advised the bureau in the course of answering the bureau's "Request for Separation Information" as to Wilson, who had filed an unemployment compensation claim with the bureau, that Wilson's last day of work was January 6, 1972. It follows from all the foregoing, and I find, that Respondent was determined to rid itself of Wilson and that it realized its objective on January 6, 1972, with the cancellation of the lease on one of Lingle's two tractors, thus precluding Wilson from having another tractor to drive in its service. Accordingly, I conclude, and find further, as the General Counsel contends, that Respondent discharged Wilson on January 6, 1972. I have also found heretofore that, upon learning on January 20, 1972, that Wilson was in the process of arranging to acquire a tractor so as to be ready to return to work, Respondent misrepresented to him that there was no available work; and that Long told Chrzan, during a telephone conversation about a week later, that, "under no circumstances will [Wilson] be put back to work." It follows therefrom, and I also find, that Respondent made manifest thereby its refusal to reinstate Wilson. I come now to the remaining contention of the General Counsel that Respondent discharged and failed and refused to reinstate Wilson because of his activities in behalf of the Union and because of his concerted activities with other drivers. In view of my findings heretofore (1) that List, in violation of the Act, threatened Wilson with personal violence and with closing down the Irwin terminal, with the resultant discharge of its employees, because he and its drivers had engaged in concerted activities of opposing the hiring of additional brokers or owner-operators away from Associated; (2) that, during the Ben Gross' meeting, at which the hiring of these additional drivers was discussed by representatives of management and the Union, Chinchella called Wilson, who was present in his capacity as union steward, a troublemaker because of his activity in opposing the hiring of these additional drivers; (3) that Guidas told Loretta being repaired JONES MOTOR COMPANY Poteste that Respondent felt that Wilson was a trouble- maker and the instigator of the problems that arose whenever it "brought a truck from Associated and signed them over to Jones Motor," and that Vice President List "had been trying to get rid of Wilson for quite some time but had not been able to get anything on him"; and (4) that Wilson, by reason of his role as union steward in handling grievances , complaints, and problems was the personifica- tion to Respondent of the Union's aggressiveness, I infer, and find, that, in effecting Wilson's discharge and refusing and failing thereafter to reinstate him, Respondent was motivated by a desire to rid itself of a union steward who was a thorn in its side by reason of his union -connected and concerted activities in opposing its hiring of additional drivers away from Associated . And this is so, even assuming, without deciding, that, at the time of the discharge, Respondent justifiably harbored resentment against Wilson for (1) accepting a load from Respondent and then rejecting the load within several hours thereafter; (2) failing to tell Respondent of the sale of his tractor on December 29, 1971 , and thereby putting Respondent to the trouble of seeking to find out for itself about the sale; and (3) not agreeing to make himself available for work after he was told on December 30 that he could not have a vacation at that time, which vacation, I have found, had been approved the day before. For, nowhere does it appear that Respondent took any steps to warn or discipline Wilson because of any of the foregoing. I am also cognizant , in this connection , of Vice President Long's testimony that Wilson was not given any work on January 20 because he had no equipment under lease , and further because he "certainly was not what we consider a good broker." However, I am unable to credit this testimony because, as heretofore found with respect to Wilson's not having any equipment, Respondent thwarted Wilson in his efforts prior thereto to replace the tractor which he had sold and to return to work for Respondent ; and, on January 20, Respondent went so far as to misrepresent to him that it was not hiring additional equipment .29 And as to the quality of Wilson's work, Long admitted that, in his prehearing affidavit to a Board agent,30 he swore that, "I had no complaints with [Wilson's] work ; and if he had not cancelled his lease, he would probably be working with us." In addition , there is uncontradicted testimony by Wilson, which I credit, that, in March 1972 , Regional Manager Chinchella told him , during a conversation concerning the aforesaid discharge and failure to reinstate, "You boys are a bunch of good brokers up there .... If I had another terminal , I would put all of you to work ... . It wasn't me who fired you. It was Spring City's decision not to rehire you." Accordingly, I conclude, and find, that by discharging Wilson on January 6, 1972, and thereafter failing and refusing to reinstate him, Respondent violated Section 8(a)(3) and ( 1) of the Act. Upon the basis of the entire record, I make the following: 19 See N L R B v Malone Knitting Company, 380 F 2d 880, 883 (C A 1), enfg 152 NLRB 643 CONCLUSIONS OF LAW 133 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Glenn H . Wilson with violence to his person and with closing down its Irwin, Pennsylvania, terminal , plus the resultant discharge of all employees, because he and its drivers had engaged in the concerted activities of opposing the hiring of additional brokers or owner-operators, Respondent has interfered with, re- strained, and coerced employees in the rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Glenn H . Wilson on January 6, 1972, and thereafter failing and refusing to reinstate him, because of his union-connected and concerted activities in opposing its hiring of additional drivers away from Associated , Respondent has discriminated in regard to the hire or tenure of employment of its employees thereby discouraging membership in the Union , and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) of the Act. 5. Respondent has not violated the Act in any other respect alleged herein. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act , I shall recommend that Respondent cease and desist therefrom and that a broad order issue designed to protect the employees of Respondent , and that it affirmatively take such action as will dissipate the effects of its unfair labor practices . In the latter connection , having found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Glenn H . Wilson, and thereafter failing and refusing to reinstate him, I shall also recom- mend that Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered during the period of this discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of Respondent 's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I hereby issue the following recommended: 31 30 The affidavit is in evidence as G C Exh 3 31 In the event no exceptions are filed as provided by Sec. 102 46 of the (Continued) 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with personal violence and with closing down the Irwin, Pennsylvania, terminal, with the resultant discharge of its employees, because they engaged in protected concerted activity. (b) Discharging employees because they engaged in union-connected and concerted activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Glenn H. Wilson immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he has suffered in the manner set forth in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes Board or its agent, for examination and copying, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary or useful to determine or compute the amount of backpay due, as herein provided. (c) Post at its terminal in Irwin, Pennsylvania, copies of the attached notice marked "Appendix." 32 Copies of said notice, on forms provided by the Regional Director for Region 6, after being signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint, as amended, be dismissed insofar as it alleges violations of the Act not found herein. 32 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "