Quality Transport Inc.

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quality Transport Inc. and Transportation Employees Association, a/w District 2, MEBA, AFL-CIO. Case 15-CA-4985 June 7, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 28, 1974, Administrative Law Judge Benjamin A. Theeman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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,I and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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, Quality Transport Inc., New Orleans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i We agree with the Administrative Law Judge's finding that Respon- dent's President McClure's speech to the employees, implying that if the Union won bargaining would be from "scratch," violated Sec. 8(a)(l) of the Act, when considered in the context in which the remark was made and in light of the numerous other unfair labor practices engaged in by the Respondent. DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Administrative Law Judge: The amended complaint ' alleged that Quality Transport, Inc. (Quality or Respondent) from on or about July 26, 1973, 2 has engaged and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151, et. seq. (the Act) among other things by (a) illegally interrogating its employees about their union activities ; (b) threatening employees on several occasions with (1) loss of certainjob benefits, including the loss of monthly and yearly bonuses and the furnishing of 'uniforms and (2) plant closure and removal from New Orleans to Dallas if the employees selected the Transporta- tion Employees Association a/w District 2, MEBA, AFL-CIO (the Union) to represent them; (c) illegally circulating an antiunion petition among its employees; and (d) terminating the employment of Jose King Jr., Benjamin F. Miles, and Pat Warren and refusing to reinstate them because of their union activities. Quality denied the commission of the unfair labor practices; and denied that certain dispatchers were supervisors within the meaning of Section 2(11)3 and (13) of the Act. As an affirmative defense Quality denied that the Board has jurisdiction of the allegations in the complaint .4 Pursuant to notice, a hearing in this case was held in New Orleans, Louisiana, on November 19 and 20. All parties appeared and were represented by counsel. They were given full opportunity to adduce evidence, examine and cross-examine witnesses, and present oral argument. All parties have submitted briefs that have been read and considered. Upon the entire record and from my observation of the witnesses,5 I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Quality is a Louisiana corporation with its principal place of business in New Orleans, Louisiana, where it is engaged in the bulk transportation of cement and chemical products. During the past year, a representative period, in the course and conduct of its business, Quality purchased and received goods valued in excess of $50,000 directly I The original complaint was issued October 24, 1973, on a charge filed September 4, 1973, and an amended charge filed October 3, 1973, by Transportation Employees Association, a/w District 2, MEBA, AFL-CIO During the hearing the complaint was amended to include additional allegations consisting of an antiunion speech by President McClure in October, and the Company's creation and circulation of an antiunion petition in November 1973. 2 All dates hereafter are 1973 unless otherwise indicated 3 Section 2( 11) defines a "supervisor" as. any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees , or responsible to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature , but requires the use of independent judgment. 4 This broad denial was made more specific by Respondent when it moved during the hearing to dismiss the Section 8(a)(1) allegations alleged in the amended complaint. The motion was denied . That denial is affirmed below in section C. 5 The determination of the facts herein has not been made simple by the devious testimony of witnesses . The many conflicts in testimony have necessitated many credibility resolutions set forth hereafter. In making credibility resolutions documentary evidence and the pertinent testimony of all witnesses as well as their demeanors have been considered. Inconsisten- cies and conflicting evidence were also considered. The absence of a statement of resolution of a conflict in specific testimony or of an analysis of such testimony does not mean that such did not occur See Bishop and Malco, Inc. d/b/a Walkers, 159 NLRB 1159, 1161. To the extent that a witness is credited only in part , it is done upon the evidentiary rule that it is not uncommon "to believe some and not all" of a witness' testimony N.L.R.B. v. Universal Camera Corporation, 179 F.2d 749, 754 (C.A 2) revised and remanded on other grounds 340 U.S. 474. 211 NLRB No. 27 QUALITY TRANSPORT INC. 199 from suppliers outside of Louisiana. Quality's home office is based in Texas. Quality operates as an essential link in interstate transportation that includes Louisiana, Missis- sippi, Alabama, and Florida. During the same representa- tive period, Quality received revenues in excess of $50,000 for performing its duties as a common and contract carrier among these states. It is found, as admitted, that Quality is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION It is found, as admitted, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues herein are adequately set forth in the statement of the case above. Two of them: (1) jurisdiction of the Board and (2) supervisory authority of the dispatchers are threshold items and are disposed of first. They are dealt with in sections C and D below. B. Background Information Quality transports cement via its own trucks or trailer trucks based in the terminal in New Orleans. In most instances, the driver started his run at the terminal, drove to a cement plant in New Orleans to pick up his load, and then delivered the load to the customer. The latter was located in Louisiana, or one of the neighboring states. After delivery the driver returned to the terminal. Raymond L. Tapp was the terminal manager. He reported to Burrell Tate, division manager based in Dallas, Texas, who in turn reported to O. B. McClure, president of Respondent. Quality operated on a 24 hours a day, 7 days a week basis. At the terminal, it generally employed 41 truckdri- vers and 10 mechanics. The mechanics were in the shop and maintenance department. Harold Lee was the shop foreman .6 The truckdrivers 7 were under the control of three dispatchers: Ray Bridges, Max DeVille, and Harold Bracey.8 Tapp, Lee, and the three dispatchers were salaried employees. Tapp and Lee worked from 8 a.m. to 5 p.m., 5 days a week and received no overtime.9 The dispatchers' work was divided into three shifts per day: morning from 5:30 a.m. to 1:30 p.m.; afternoon from 1:30 p.m. to 9:30 6 Tapp, Tate, McClure, and Lee are admitted supervisors. 7 The record does not give a name to the truckdrivers department. That group and their function will be referred to hereafter as truckdrivers. 8 Threshold issue (2) deals with the supervisory status of these individuals. 9 Tapp testified that he was always available by telephone or two-way radio; and that he and Lee sometimes came in Saturday a.m. 10 The dispatcher working from 1:30 p.m. to 9:30 p.m. came in the next morning for the 5:30 a.m. to 1:30 p.m . shift. Then, he was off till 1:30 p.m. of the following day. 'I Tapp testified that they get paid for overtime "if they work overtime." This does not seem to be in agreement with DeVille who testified that p.m.; and night from 9:30 p.m. to 5:30 a.m. The dispatchers alternated shifts 10 but did not work week- ends.11 Selected truck drivers were assigned as substitute dispatchers for the weekend. The shop mechanics were paid on an hourly basis. They worked a 48-hour week, getting time and a half after 40 hours. The truckdrivers were paid a percentage of the load handled.12 In addition, the drivers were paid certain extras on an hourly basis of $2.50 per hour; for delay time when loading or unloading, or when the truck was broken down or for shop time when they did repair work on or washing of the trucks and trailers. The Company maintained a policy of giving awards and benefits to the truckdrivers.13 Drivers get four free uniforms a year. A new driver was on probation for 90 days. After that he was eligible for a bonus of $25 a month if he was not late on delivery and kept the inside of his truck clean.14 The driver received a yearly bonus of $150 if during the preceding year he was accident free.15 In addition, the driver received a safety pin.16 Quality maintained group insurance for health and life. The cost was shared equally by Quality and the employees. Quality also maintained an educational fund that gave $1,000 at the rate of $500 per year to the child of an employee that went to college and maintained a C average or better. Free coffee was available at the plant at all times. The drivers received 1 week's vacation and $150 the first year; 2 weeks' and $160 a week the second year, and $175 a week the third year-17 Quality maintained a hunting lodge in Texas to which safety drivers were invited for 3 days. Each invitee got $20 plus expenses. Drivers were selected by lot. Quality also gave seniority pay to the drivers of 6 percent of the employee's gross earnings the first year. This increased yearly to a ceiling of 10 percent. Truckdrivers received their assignments on a daily or trip basis. The dispatcher usually assigned the trip between 7:30 p.m. and 9 p.m. by telephoning the driver. There existed a daily order of priority among the drivers. Low man was determined by a point system. A dollar earned was equal to a point. The driver who has made the least money (the low man) the preceding day was entitled to the best paying load the next morning. During the day, the first driver back at the terminal was the first one out. For missing a day's work a driver was given 20 points, 10 points for missing half a day. 20 points equaled $20 which as Tate testified "any body can make." He also stated that some drivers would "rather take 20 points a day and be a little bit low" the next day in order to "catch a good run out of town." The dispatcher on duty allocated the points to the drivers dispatchers got straight salary every 2 weeks and got no credit for overtime. 12 Quality charged the customer by the 100 pounds. A new driver started with 19.95 percent of the charge. The percent increased by 1 percent yearly thereafter until it reached 22.95 percent. 13 Not all the benefits are listed herein. 14 The bonus was lost if he was late, had an accident, blew a tire, did not show up for a load, etc. 15 The bonus increased with each accident free year thereafter. 16 Prior to August 31, 1973, a driver received a watch at the end of a years service. 17 Mechanics received vacation pay on a 44-hour week schedule. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and made all the assignments . It was the dispatcher's responsibility to make Tapp aware when a driver missed an assigned run. The dispatcher did this by putting the driver's card aside usually in the back of the box where the cards were kept. Tapp then talked to the driver before the dispatcher assigned him to another run. His card was then put back in the box. The dispatcher also filled out what was known as a "driver's report" relating any incident that had occurred affecting the driver's performance. Examples were lateness in reporting or delivery, accidents, etc.18 The dispatchers were equal in their ranking, i.e., no dispatcher had authority over the other. When the dispatcher made the assignment, he advised the driver of the customer, his place of business, reporting time at the terminal, the time he was to make delivery, and the place where the driver was to go to pick up his load. The driver was familiar with the roads in the area, and usually knew how long the assigned trip normally took to the customer and back to the plant. Management or supervisory employees of Respondent have been named above. Hourly employees 19 involved in this proceeding listed alphabetically are: Michael Danna, interrogated by DeVille. Benny James absented without leave, and interrogated by Tapp. Jose King Jr., an alleged Section 8(a)(3) dischargee. Benja- min Miles, an alleged Section 8(a)(3) dischargee. Carroll E. Neuman circulator of an antiunion petition drafted by Tapp. Gerald Vermeal interrogated by Tate and Tapp. Don Warner interrogated by Tate and Tapp and known as one of the main proponents of the Union. Pat Warren, mechanic, an alleged Section 8(a)(3) dischargee. C. The Board has Jurisdiction of Certain Section 8(a)(1) Allegations In its answer, at the hearing and again in its brief, Quality erroneously contended that the Board had no jurisdiction in this proceeding of the Section 8(a)(1) allegations. This erroneous contention was based on the following facts: a. On August 10, the Union filed a charge with the Board, Case 15-CA-4948, alleging that Quality had violated Section 8(a)(1) and (3) of the Act, in that: On or about August 7, 1973, Quality Transport, Inc. did by its officers, agents, and representatives, interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in section 7 of the Act and has used threats of employment condition changes to discourage membership in the Union. b. On October 3, with the approval of the Regional Director, Region 15, the charge in Case 15-CA-4948 was withdrawn by the Union. Quality was duly notified. The record shows nothing further with regard to the charge or any actions taken with regard to it. c. On September 4, the charge was filed herein alleging that Quality had violated Section 8(a)(1) and (3) of the Act in that: On or about the dates indicated below, the above- named Employer, by its officers, agents, and represent- atives, terminated the employment of BUDD PEDDICORD, JOSE KING, BENJAMIN MILES and PAT WARREN because of their membership and activities in behalf of the TRANSPORTATION EMPLOYEES ASSOCIATION, a/w DISTRICT 2, MEBA, AFL-CIO, a labor organization, and at all times since such date had refused and does now refuse, to employ the above-named employees: Budd Peddicord-August 25, 1973 Jose King-August 26, 1973 Benjamin Miles-August 28, 1973 Pat Warren-August 30, 1973 d. On October 3, the Union filed an amended charge that was the same as that of September 4 except that the name of Budd Peddicord was eliminated. e. The charge and the amended charge both contained the standard clause: By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act. Quality's erroneous contention as set forth in its brief is as follows: Under Section 102.9 of the Board's Rules and Regula- tions, it is provided that a charge may be withdrawn only with the consent of the Regional Director, with whom such charge was filed, or the Trial Examiner or Board, and that upon such withdrawal a complaint thereon shall be dismissed. The Respondent contends that the Regional Director, by withdrawing the 8(a)(1) charges in 15-CA-4948, and subsequently issued a complaint on which there is no operative charge concerning the 8(h)(1) violations. Charge No. 15-CA-4985 addresses itself only to alleged 8(a)(3) violations, and the Section 8(a)(1) violation alleged in it was most derivative in nature. In support of the Respondent's position, Respondent cites New York Shipping Assn., 112 NLRB 1047 (1955), and Harcourt & Co., Inc., 98 NLRB 892.20 The complaint in this proceeding stems from the amended charge dated October 3 which contain no specifically alleged Section 8(a)(1) violations. But the charge did allege that the named employees were discrimi- natorily discharged. Further, as quoted above, the charges do contain the standard clause alleging violation of the rights guaranteed by Section 7 of the Act. It is now well established that a general charge filed with the Board containing the standard clause quoted above is considered a valid foundation for particularized Section 8(a)(1) 18 Tapp admitted that when it was very busy, the dispatchers sometimes inapposite. Further, it is noted that unlike the cited cases, the complaint in failed to make out reports. this proceeding was bottomed on a different charge than that filed in Case 19 They are truckdrivers unless otherwise indicated. 15-CA-4948. 20 For the reasons stated hereafter, the cases cited by Quality are QUALITY TRANSPORT INC. allegations in a complaint issued by the General Counsel. See EFCO Corporation, 150 NLRB 1505, 1511, fn. 9, and cases cited therein. Quality is apparently contending that the withdrawal of the charge in Case 15-CA-4948 had some kind of res judicata effect on the issuance of the complaint in this proceeding. Quality does not explicate this theory in any way. The charge in Case 15-CA-4948 was withdrawn with the approval of the Regional Director pursuant to the authority vested in the Regional Director acting in behalf of the General Counsel in Section 102.9 of the Board's Rules and Regulations . That Section provides that where no complaint was issued, the charge could be withdrawn "only with the consent of the regional director with whom such charge was filed." 21 The record contains no evidence to show that in consenting to the withdrawal of the charge in Case 15-CA-4948 the General Counsel investigated the allegations in the charge, made any determination bearing on them, or took any action showing that the merits of the charges had been considered. These facts might have some weight in view of Section 3(d) of the Act, that gives the General Counsel exclusive control or disposition of the charge once it is filed and further gives him "final authority, on behalf of the Board, in respect to the investigation of charges and the issuance of complaints before the Board, ...." In any event, Quality's conten- tion is much too broad. The charge in Case 15-CA-4948 dealt with actions that were alleged to have occurred on or about August 7. The actions dealt with in the complaint included many that occurred after the first week in August. As a matter of procedure and fact, Quality did not object when the complaint was amended at the hearing to include an allegation concerning McClure's speech to the employ- ees about October 8, and the illegal circulation of an antiunion petition about November 1. 21 Respondent either miscontrues the facts or the Section when he states in his brief "and that upon such withdrawal a complaint thereon shall be dismissed " 22 Great Plains quotes from Texas Industries Inc v N L R B , 336 F 2d 128, 132 (C A 5, 1964) That quotation is particularly apt here It is established that this section [l0(b)] precludes the Board from issuing a complaint on its own initiative, and that a charge is a prerequisite to the institution of proceedings before the Board However, the charge is not a formal pleading, and its function is not to give notice to the respondent of the exact nature of the charges against him. This is the function of the complaint The charge rather, serves merely to set in motion the investigatory machinery of the Board It is largely for the benefit of the Board, not the respondent, so that it may intelligently determine whether and to what extent an investigation is warranted Consequently, the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation being that the Board may not get "so completely outside the charge that it may he said to be initiating the proceeding on its own motion " [Citations omitted ] 23 ". the dispatchers take orders from the customers and dispatch the loads to the drivers. They also write up late slips on drivers who are late or miss runs, but this is done under the direction of Ray Tapp, and no action is taken on them by the dispatchers The loads to the drivers are assigned by a point system which is determined by the dispatch sheet The assigning of such loads and the making up of the dispatch sheets is only routine in nature The dispatchers do not have any authority to hire, fire, or recommend increases " (Transcript references omitted ) 24 In response to a question from his counsel as to what the dispatcher's authority was, Tapp answered vaguely A Well, I don't know as they have any authority They have got a job to do just like the drivers have They have got to get them loads out They call and dispatch loads for me, but the only authority that I know 201 Under the above circumstances, it cannot be said as Respondent's motion indicates that the Regional Director issued a complaint on his own initiative as he is forbidden to do by Section 10(b) of the Act. See Great Plains Steel Corp, 183 NLRB 968, and cases cited therein.22 D. DeVille and Bridges Are Supervisors Quality contends that DeVille and Bridges are not supervisors . In its brief, Quality lists some of the responsi- bilities they have and do not have.23 The paragraph winds up with the statement "The only authority, according to Tapp, that the dispatchers have is if a driver gives them a bad time, they can put the driver's card in the back of the box until Tapp has a talk with the driver." 24 Quality in its brief has dealt insufficiently with the record as well as Tapp's testimony. The record shows that Tapp and Lee were present at the shop from 8 a.m. to 5 p.m. A dispatcher was there around the clock. Tapp testified that in his absence "the operation of the company" was normally run by "the dispatcher that's on duty dispatching." 25 Tapp also confirmed that in Lee's absence the dispatcher on duty ordered mechanics out on the road to take care of trucks that had broken down; and had the authority to assign a driver to the truck for a trip after it was repaired.26 Danna testified that when he was first hired about May 1971 he had had a conversation with Tapp. The latter told him to listen to the dispatchers and he would have no trouble. Danna understood the statement to mean the dispatchers had "authority." Danna testified further that there were occasions when dispatchers had "excused" him from working when he wanted time off. DeVille testified that his contact with the drivers was to "book them, call them and give them their load" and to they have got, is if a driver comes in there and gives them too rough a time, they don't have to dispatch them They can put them in the back of the box till they see me They can't fire them or hire them Nevertheless, it is noted that in that statement there is a clear admission of the dispatcher's supervisory authonty over the drivers, i e, when in the opinion of the dispatcher the going gets rough, or the driver gives the dispatcher a "rough time," the dispatcher "don't have to dispatch them." This is considered direct evidence that the dispatchers' use independent judgment 25 Tapp's testimony continued. Q. In your absence, Mr Tapp, who runs the operation of the company? A normally the dispatcher that's on duty dispatching Q The dispatcher handles things that apse in your absence? A Right Q. This would include receiving shipments and orders for the next day9 A. Right Q And assigning certain drivers to certain runs9 A Right Warren's undenied testimony was that Tapp had told him in 1971 when Warren was previously employed by Quality that "the dispatchers had the same authority he did " 26 This after-hour authority of the dispatcher over mechanics was confirmed by Warren from his own experience . Warren testified without refutation that he received work assignments while on duty at the shop from each of the three dispatchers and was called after hours at home by the dispatcher and given road assignments On one particular weekend, Warren received such an assignment from the substitute dispatcher then on duty Warren also testified that upon orders from the dispatchers he worked overtime and was paid for such work , that this had occurred "At least once a week " 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "send them out in the morning." He also testified that that he gave "emergency time off, like [when] they call and get sick." Further, DeVille testified that when a driver calls in asking for a day off, "If Ray Tapp's not there, and . . . he had a good reason, I can give him a day." 27 The record does not show that these matters were first referred to Tapp. Dispatchers had the authority to make out, did make out, and submit late reports on the drivers. Quality granted the dispatchers considerable leeway in the determination of what constitutes a late report, and permitted them to exercise independent judgment in that regard. Bridges testifie41 that late slips were not made out if the drivers were "less than 15 minutes one way or another" or "unless they are extremely late." According to DeVille the dispatcher had the authority not to report a driver when he was late in reporting because his car had had a flat or had a mechanical break down, etc. Dispatchers also had the authority to penalize a driver who missed a run by allocating points to him. This affected his income and rights to the next day's run. See Valley Transit Company, Inc., 142 NLRB 658, 659. Conclusion The above facts clearly show that the dispatchers including Bridges and DeVille exercised full authority over the terminal for approximately 16 of the 24 hours a day when Tapp and Lee were absent . They had no authority to hire or fire but they did have authority to use or not use drivers, to order mechanics to work on certain trucks, and under certain circumstances to give drivers time off, and to assess points against them. In making these determinations which were not infrequent, the dispatchers used their independent judgment. Each dispatcher also used his independent judgment in assigning runs and in filing late reports. The record contains other evidence of the supervisory status of the dispatchers. In light, however, of N.L.R.B. v. Metropolitan Life Insurance Co., 405 F.2d 1169 (C.A. 2, 1968), it would only lengthen this decision unnecessarily to itemize them. Metropolitan and Board decisions 28 hold that Section 2(11) of the Act speaks in the disjunctive; that to constitute a person a supervisor it is sufficient to show that the individual performs any one of the functions, or in the performance of his duties possesses one of the enumerated powers and responsibilities, set forth in that section.29 As set forth above, the record clearly shows such powers were within functions of Bridges and DeVille. Accordingly it is found that Bridges and DeVille at all times mentioned 27 About 1 1/2 months before the hearing, DeVille called James on a Friday night to assign him a dispatch the following day. James asked DeVille for the Saturday morning off because he was "going to Alabama . or Mississippi." The record does not show that DeVille said, "No." James did not show in the morning and was away for a week. 79 See Ace Tool Engineering Co., Inc., 207 NLRB No. 23, Great Central Insurance Company, 176 NLRB 475. sa Note the language in N.L.R.B. v. Riviera Manor Nursing Home, Inc., (C.A. 7), decided Nov. 16, 1973, *73-1339 [unpublished, see 487 F.2d 1405 ] wherein the court stated: But this does not make her any less a supervisor if she had any of the powers described in the statute . See Amalgamated Local Union 355 v. National Labor Relations Boars( 481 F.2d 996, 1000 (2d Cir. 1973). herein were supervisors within the meaning of Section 2(11) of the Act 30 E. The Union Campaign On July 26, Parks a representative of the Union met with a couple of Quality employees. They agreed to a meeting with a committee of 10 employees on July 29. At this meeting, the committee discussed the union organization campaign.31 When the meeting ended the employees took union cards with them to secure signatures. The next union meeting was on August 5 attended by about 19 or 20 employees about 5 of the original 10. Signed cards were turned in. Again, cards were issued to this group to obtain signatures. The next meeting was on August 19 attended by about 25 to 27 employees.32 The union campaign was low key. No union handbills were used. Employees talked the Union up to other employees and solicited other employees for signatures in and at the plant. As shown hereafter, there is no question that management knew that the union campaign was going on and generally knew who the union sympathizers were.33 It is noted that the dispatchers admitted they talked union to the employees during July and August. On August 10, the Union by telegram advised Respon- dent that it represented a majority and demanded recognition. On the same day, the Union filed a representa- tion petition with the Board which included the dispatchers as employees in the unit. The representation hearing was held on August 31. At the hearing, the Union amended its petition to exclude the dispatchers from the unit. The Decision and Direction of Election issued on September 25. It contained a finding by the Regional Director that the dispatchers were supervisors and excluded from the unit. The election was held on October 15. Of the 55 employees eligible to vote, 26 voted for and 24 against the Union. Five ballots were challenged. Thereafter, the Regional Director issued a report resolving the challenged ballots which included the three discriminatees. Respondent excepted to that decision, and the matter is now pending before the Board. F. Quality's Antiunion Activity in Violation of Section 8(a)(1) Quality's answer denied the commission of any inde- pendent Section 8(a)(1) violation. In this proceeding 30 This finding takes into consideration that the dispatchers were included in the unit in the petition for representation filed by the Union on August 10. Further, it has been noted that in the Representation Proceeding Case l5-RC-5220, the Regional Director in his Decision and Direction of Election dated September 25, 1973, determined that the dispatchers were supervisors and were accordingly excluded from the unit. $1 The names of the employees on the committee were not given. 32 At this meeting King jumped up and shouted "This is right, stand aside and give me some cards, and I am going to get the bunch of other guys signed." He left with a stackful of cards. There was no direct evidence that management was aware of this action. 33 DeVille testified that in July and August all there was around the terminal was "union talk." QUALITY TRANSPORT INC. Quality introduced little or no evidence to contravert that of the General Counsel.34 The findings hereafter made are based on the credited testimony of the employee witnesses, and are undisputed except where noted. 1. August 1973 Three supervisory personnel illegally interrogated em- ployees and made restraining and coercive statements to the employees during the month of August. They are Tate,35 Tapp, and DeVille. Their actions will be dealt with in that order. a. Division Manager Tate In August prior to the 4th, Tate spoke to Warren in the shop. Tate asked Warren if he knew anything about the Union and which one it was. Tate also asked if he knew what the complaints of the men were. Warren answered that he preferred a more orderly shop and with a union it might be obtained. Tate said he was not interested in Warren's position. About a week later Tate spoke to Warner. This occurred in the plant yard near the garage. Tate made the statement to Warner "that he heard [he] was heading this union business, and what did [he] know about it, and what were the men's complaints ...." Also early in August Tate talked to driver Vermeal. This conversation occurred in the driver's room in the presence of drivers Robert Friar and Norm Canis. Toward the end of the conversation Tapp walked in. According to Vermeal's credited testimony: I had come in off a run and was making out my paper work and Burrell Tate was in from Texas, and he walked out where I was sitting and asked me what the hell was this talk about union, and I told him it wasn't talk, it was fact, and he asked me what problems the men had, what grievances. I explained it to him ... . Ray Tapp then joined the conversation after me and Burrell Tate was talking, and Burrell asked me if I was aware the company gave us some benefits. I was aware of a couple but I wasn't aware of all of them, and he related them to me, which was specifically the hunting trip and the yearly bonus, safety bonus that we get, and he expressed that the company didn't have to give those to us, they didn't have to give us the watch. And Ray Tapp just more or less agreed to what he was saying. b. Terminal Manager Tapp In the first few days of August, Tapp talked with driver James. The latter's credited version of the conversation was: A. Well, he asked me what was going on and I asked him what did he mean, and he said about the union. And I told him I didn't know. I hadn't heard anything about the union at that time, and he took •i^ Not all the Section 8(a)(1) activity is listed Those found are considered sufficient to show the violation, the scope and depth of Quality's union animus, and to justify the order issued herein {"I Tate was present during the hearing but did not testify IS This conversation is placed during the 1st week of August because Warner stated that it occurred before his conversation with Tate that occurred about August 7, 8, or 9 'T King testified that Tapp spoke to him alone about the Union on August 28 See next paragraph Tapp denied he ever spoke to King about 203 some papers of one of the other drivers, some records, and showed me what the company had given this guy in a period of one year, and he asked me did I think we could get these benefits from the umon, and I told him I didn't know, and he said this guy had been working for Bulk Transport and he was in a union over there, and he didn't have anything to show for it. He also asked me could I keep him posted on anything I could hear about the union. Q. Was anything else said during this conversation, Mr. James? A. No, I just told him I would. He said if we voted the union in that we would probably lose our monthly bonus, our yearly bonus and our uniforms. About the same time, Tapp interrogated Warner.36 The conversation took place in Tapp's office. According to Warner's credited testimony the conversation went as follows: ..... Mr. Tapp had called me into his office, and Mr. Tapp kind of asked if I was also in with this union business and I replied that I thought he knew what I thought of the Teamsters union, and I wouldn't have anything to do with it, and that was about the end of the union conversation up there. On August 11, Tapp spoke to King37 and four other drivers while they were sitting in the driver's room. Tapp referred to benefits the drivers would lose if the Union came in. His address went as follows: A. Mr. Ray Tapp entered the drivers' room-this was on a Sunday . . . and he started talking about the union. It was, like I say, five drivers including myself sitting at the tables . . . . He said that the old drivers were trying to form a union and that it wouldn't be to our benefit to join the union because of the benefits that we would lose. He would name the benefits.38 ADMINISTRATIVE LAW JUDGE THEEMAN: Just contin- ue with the conversation. THE WITNESS: Named the benefits. Only three of them, to my knowledge that I can remember he named, were the monthly benefits, the yearly bonus-well, there were three bonuses. Monthly bonus, yearly bonus and-I don't remember the other one he said . . . and then a question rised up from one of the drivers, he had named what we would lose and he said, "Anything the company gives you, that they can take away." A. I was pretty concerned with the pulling out of the watch and I asked him about a watch and I said, "Do we still get a watch?" And he said, "Anything that the company gives you-" and he did mention all these things were given by the company. He said we would lose them all.39 the Union Tapp's denial is not credited 38 During cross-examination, King changed this conversation to substi- tute the word "could" for "would" whenever the latter appeared This change does not change the fact that Tapp was implying a loss of benefit if the Union came in 39 Also during this conversation Tapp asked King if he had ever been in a union before King answered he had Tapp stated, "he had been through a stage of hell in his time over union and he didn't want to see any more union " 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 28, a day before King was discharged Tapp spoke to King once more. He directed King to certain employees who would advise him better than Warner about union activities. The conversation follows: ... He told me these were two people that could definitely give me better information concerning the union, who were for the union at one time and had learned better and he told me if I would talk to these people, I would learn a little more about the union. Q. (By Mr. Boykin) Mr. King, how did the subject of the union come up? A. He just came completely out and wanted to know who I had been talking to about the union and I told him Don Warner. * Q. Do you recall Mr. Tapp asking you about your feeling in regard to the union? A. Yes, he did. Q. What did he ask you? A. Asked me how did I feel about the union and I told him that I was for it but the majority of the men in the company was for it. In other words, the majority win.40 On several occasions during August, Tapp spoke to employees in the presence of other employees. On one occasion, he spoke to Warren in the presence of Lee and others. He told them "he couldn't see how he had gotten anyone to hate him enough to where they would vote for the union." On another occasion Tapp told Neuman that he didn't want to see the Union come in because he was afraid of losing his job. It was his opinion that the Company would think that he as terminal manager was unable to keep the men satisfied. c. Dispatcher DeVille In the first week of August DeVille spoke to driver Danna in the presence of driver Alfred Parker. According to Danna's credited testimony the conversation went as follows: 41 A. ... I don't know what you fellow are pushing us for. Q. Pushing what? A. Pushing this union, and began saying you are going to lose all your bonuses, your percent, like you get a percentage, you lose all that, and you take a fellow like Don Warner, he come back with that, all he want to do is take and sit back and collect the money, the monthly dues, of course, if he gets you roped into this union. And let's see, what else. They were going to take and close the terminal down if the fellows continued to push this here, you know, send trucks back to Texas because the main office in Texas didn't' want this terminal down in New Orleans to begin with, .... He said now it was agreed with the Government where they can only make the maximum of 22.5, he says, and that's the agreement they have with the Government, therefore there is no more money that the union can get out from us. In the second week in August, King was among a group of drivers to whom DeVille was talking. According to King's credited testimony: 42 A. . . . it was a conversation being held in there when I arrived in there. Max DeVille, the dispatcher, was speaking to another driver and he was telling the other driver that if the company men did have a union and after they had won, that the company itself would find out who the men were that elected the union and if the union lost, that the company would find out who the men were, that they would be terminated. He also said that before the company would let a union come in, they would either sell the trucks or send them back to Dallas. Conclusions as to the August Actions Tate's interrogation of Warren, Warner, and Vermeal and Tapp's interrogation of James, Warner, and King43 all were made without any explanation as to purpose and without any assurance against reprisal or retaliation. The Board has said, "Questioning of selected employees about their union sympathies . . . without any assurance against reprisal, by its very nature tends to inhibit employees in the exercise of their right to organize." Engineered Steel Products, Inc., 188 NLRB 298. See also H. L. Meyer Co., Inc., 177 NLRB 565, enforced as modified 426 F.2d 1090 (C.A. 8, 1970); Standard Fittings Co., 173 NLRB 42, 46; Struksnes Construction Co., Inc., 165 NLRB 1062; N.L.R.B. v. Camco, Inc., 340 F.2d 803 (C.A. 5, 1965) cert. denied 382 U.S. 926 (1965); Jervis Corporation, Bolivar Division v. N.L.R.B., 387 F.2d 107, 109, 111 (C.A. 6, 1967); N.L.R.B. v. West Coast Casket Co., 205 F.2d 902, 904 (C.A. 9, 1953). Tapp's request of James that he keep him posted on anything he hears about union activities constitutes surveillance and an illegal invasion of employees' private union interests. Cf. P. R. Mallory Co., 175 NLRB 308, 309. Tate's statement to Vermeal and Tapp's statement to James and King44 that the employees will lose benefits they then enjoyed in the event the union came in was coercive and in reprisal for their union activities all in violation of Section 8(a)(1) of the Act. Cf. Brown Specialty Company, 174 NLRB 519, 520, where the Board found a violation for threats to take away much less valuable benefits. See also Bauer Welding & Metal Fabricators Inc., 154 NLRB 954, 962. DeVille's statements to Danna and King that Respon- dent will close its New Orleans plant and move it and the trucks to Texas are a clear retaliatory threat of what will 40 On direct examination King placed this conversation on August 28. On cross-examination King placed it on August 11. It is considered that King was confused and gave the wrong date on cross-examination 41 DeVille admitted having conversations with some drivers about the Union during July and August. He did not deny the Danna conversation. He professed not to remember one held with Miles in which the Union was mentioned, not listed herein. 42 DeVille admitted he talked with King but didn't remember or think that he talked about the Union. 43 Refers to the August 28 conversation 44 Refers to the conversation with four other driers present. QUALITY TRANSPORT INC. occur in the event union activities continued . Such threats are coercive and violative of Section 8(a)(1) of the Act. See N.LR.. v "Gls3 l ` Ps c'Ring Co., `395 U.S. 575, 618-619 (1969); Jervis Corporation, Bolivar Division, supra at p. 110, 112. 2. October 1973 About October 8, 1973, Tapp held a conversation with Vermeal in the driver's room in the presence of two or three unnamed drivers. They were "hashing over the union" and Tapp said " . . . if the union was voted in that he was sure to lose his job, and I asked him why, and he said well, naturally the company would say it was his fault the men went union, and he wasn't satisfying the men, and I said it would be piss poor management to get rid of him." On October 12, 1973, there was a meeting of Respon- dent's officials, employees, and their wives. Dinner was included. President McClure addressed the assemblage after being introduced by Tapp: ... He stated his name, and his opinions about the union, that the company operated 25 years successfully without union representation, that he was going to do everything legally that he could do to forestall the election and the negotiations. Then he proceeded to, and he turned around to the blackboard which was there, listed the benefits that we have now, namely the uniforms, the monthly check. In the wintertime I understand we can borrow $200 around Christmas, you know, in case we are hunting, the 3 days of hunting, which I didn't know about until it was explained to me by Burrell Tate. In other words, he listed all the company benefits on the blackboard. He also drew a square table, and put a chair on one side and a chair on the other side, and he proceeded to tell us that this is what the company has to offer now, the benefits, and then with this same motion he turned around and said that the only thing we have to do is negotiate in good faith, that the union has nothing to offer, we have nothing to give. He then erased all the benefits. He drew a circle around an X in the middle of the table, and said that this is where we start, indicating the zero, nothing.45 In the same address, McClure stated he was going to forestall the election and negotiations as long as he could legally do so. Also, he stated he could promise nothing, nor was he there to threaten in anyway. But it was after he made these statements and as a closing statement and gesture that he erased the benefits, drew a zero around the X, and said "this is where we start." Conclusions as to McClure's Speech The foregoing shows clearly that McClure was threaten- ing the employees with the loss of their existing benefits if the Union came in. In effect, he told them that when bargaining with the Union began the bargaining would 45 According to the undisputed testimony of Vermeal and Neuman. 46 Lee had entered Tapp's office about this point. He corroborated Neuman's testimony. 47 At that time Tapp told Neuman that he did not think the employees could or would lose their benefits. 205 start from "zero" or "scratch." The implication is fully present the loss sustained was due to the presence of the Union. Such threats of bargaining from scratch and the attendant loss of benefits are proscribed by the Act and violative of Section 8(a)(1) of the Act. Bauer Welding & Metal Fabricators, Inc., supra; Tamper, Inc., 207 NLRB No. 142. 3. The antiunion petition, November 1973 On November 1, 1973, Neuman and Tapp were in Tapp's office. Tapp said "it would tickle the shit out of [me] if somebody would start a petition to try to keep the Union out" and Neuman said he would do it. Telling Neuman that he would have nothing to do with the petition Tapp wrote out the language of the petition for Neuman.46 He gave the same to Neuman folded in a sheet of Respondent's stationery. About 2 hours later, Neuman informed Tapp that he had spoken to two drivers about the petition; that they had said it was a good idea because they were afraid the employees would lose "all our company business if the Union came in." 47 Neuman told Tapp that he would get the petition up at home that night. Tapp responded that he would "check with Dallas and see what they thought." Tapp also told Neuman that the company attorney wanted the petition with the signatures on it by November 6. On November 2, Neuman brought the petition back in its completed form and started procuring signatures on it. The petition on a sheet of paper that was obviously Quality's stationery read as follows including the letter- head: 48 Quality Traiisport, Inc. P.O. Box 29247 New Orleans, La. 70189 NOVEMBER 1, 1973 To Whom it may concern We, the undersigned, Employees of Quality Trans- port Inc. wish to see if we can stop the Union , the AFL- CIO, from coming into our company. About noon, he told Tapp he had 10 or 12 names on the petition. Tapp said that sounded good, to keep trying and if they got a majority it might do some good. Neuman asked Tapp to speak to the company lawyers to find out if Neuman could get into personal trouble "carrying this petition around." 49 Tapp said he would. About 2 hours later Tapp told Neuman that he couldn't get into any trouble at all; that he had nothing to worry about. On November 3, Neuman had breakfast with Tapp at a truck stop away from the plant. Parker, a truckdriver, was present. Neuman told Tapp he was having some problems with the petition. Tapp responded that he wanted Neuman to have it ready to mail by November 5. Tapp left the 48 Tapp admitted that the language was his except for two words, "We, the undersigned." 49 Neuman testified that "Rumor had it that I could serve time in the Federal pen and a fine because this petition was illegal." +l^ 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition with Neuman who told him he had 25 names on it and that he would try to get "the majority of the names on it" by November 5. On November 6 about 5:30 a.m., Neuman left the petition on Tapp's desk in an unsealed envelope. That night on the two-way radio Tapp confirmed to Neuman that he had found the petition. Neuman left the petition with Tapp with 28 signatures on it that he had procured. Tapp testified that after he got to the office two employees walked in and wanted to sign the petition. He "throwed" it to them, they signed it, and left. The total number of signatures was 30. On November 9, about 5:30 p.m., Tapp told Neuman that the petition should be back from Texas the next day (Saturday), and that on Monday, November 12, it would be given to Parks, the union representative. Conclusion as to the Antiunion Petition The foregoing clearly shows that Quality in fact directed and assisted in the preparation and circulation of, and solicitation of signatures on, an antiunion petition by and among employees. Such actions constitute interference with and restraint of the rights guaranteed under Section 7 of the Act in violation of Section 8(a)(1) of the Act. Bauer Welding & Metal Fabricators, Inc., supra at 963; Standard Fittings Co., supra, 44, 45. G. The Discharges of Miles, King, and Warren 1. Benjamin Miles a. Introduction Miles was twice employed by Quality as a truckdriver. He first worked for 2 1/2 to 3 months in 1971. His second employment began February 10, 1972, and ended August 29, 1973. The General Counsel contends that Miles was discharged because of his union activities and affiliations, and that the reason for the discharge given by Quality is pretextual. Quality asserts that Miles was terminated because of absence from work. b. Quality had knowledge of Miles union activity and affiliations Miles testified that the only union "activities that I actually engaged in was talking to different men in the shop50 about signing up for the Union." The record does not show when this union activity occurred nor its extent. The indication is that the activity was small and happened about the time he signed a union card which was on August 5. Miles testified that the union campaign started "sometime in the latter part of July." He attended no union meeting before he was terminated. During the week of August 13, Miles had a conversation with Bridges in the drivers' room. Other unidentified drivers were present. Bridges came up and said "the 50 This constituted mechanics as well as drivers. 51 The report contained the statement "I talked to him and told him he was going to have to improve ." Miles testified the words were not on the report when he signed it. Tapp testified that the words were written in the report either before Miles signed it or while he was still in the room . In view dispatchers would be eligible to sign up for the union the same as drivers." Miles gave the opinion that "a salaried man was not included as a percentage man and would not be allowed to sign up." During the same week, Miles had a conversation in the drivers' room with DeVille and Bridges with Tapp sitting about 4 or 5 feet away. DeVille mentioned that the dispatchers would be able to sign up for the Union. Miles stated he didn't "think they were eligible on account of being salaried men," and he believed "a salaried man is a company man." During this week also there was a conversation in the drivers' room among Tapp, Miles, and a driver called Otis Smith. According to Miles the following occurred: During that conversation Mr. Tapp walked out, and he went back and he told Otis and I to wait a minute, he would show us the benefits that the company offered over the union, and he went in and brought out what we call the company Bible and started reading off the different benefits that the company could offer over the union, . . . and I asked at that point if that's what the company offered, work your life through with them to the end of your retirement, and then get a boot in the butt. From the foregoing, it is concluded that Quality had knowledge that Miles was a union member and participat- ed in its activities. c. Miles' employment history In October 1972, Miles became ill, complaining of pain in the chest and shortness of breath. Under doctor's orders he stayed away from work without objection from Quality from October 24 to November 19, 1972. On April 10, 1973, Miles became ill again and remained away until April 29, 1973. Again there was no objection from Quality for this absence of about 19 days. On July 27, 1973, Miles had an employee interview with Tapp. His past performance was discussed and certain qualities were rated on an Employee Interview Report by checking a box marked "Good, Fair, or Poor." Miles was rated "Poor" on "Dependability." Miles signed the report after the rating was done.51 One of the questions asked by Tapp was why had Miles taken so much time off. In response Miles stated that he and other drivers were "getting pretty blowed up about the way Buddy Boudreaux was doing the plant, so why should any body else give a damn." Tapp told him he shouldn't be using another driver as an example. Miles admitted that among the things discussed at this conference were the problems of his getting out there and doing a job for the employer; and that "he was unavailable for runs, unavailable for work, a great deal of the time." In early August, exactly how early in the month is not clear from the record, Miles told Tapp that Miles' brother would have to go to the hospital for an operation; that of Tapp's uncertainty, it is found that the words were not in the report when Miles signed it. Further, Tapp testified that at this interview he told Miles that "... if you don't improve, I have got to let .. you go." Whether Tapp actually made this statement or not is not significant in view of the fact that such a result was the full implication of the interview. QUALITY TRANSPORT INC. 207 Miles wanted time off for that purpose; that Tapp said, "that's all right. Let us know .... 1152 On August 21, Miles became aware that the operation was to occur the next day. He asked for time off to attend to his brother.53 As shown in the footnote the record is not clear as to how and through whom Quality became aware of the fact that Miles wanted time off beginning with August 22. Nor is the record clear how much time Miles asked for. What is clear though is the fact that Tapp knew that Miles was taking off with permission for some unspecified period of time. The next time that Miles appeared at the terminal was August 23 or 2454 to pick up his paycheck. Then Tapp saw Miles and greeted him.55 That was the last communication between Miles and either Tapp, DeVille, or Bridges until Miles returned on August 29.56 During his absence, Miles' card had been kept in the drivers box. DeVille marked him off on August 22, 23, and 24 and assigned 20 points to him for each day. Another dispatcher marked him off for Saturday, August 25, and assigned 10 points for the half day. No notation was made for Sunday, August 26. Again, Miles was marked "off" for August 27 and 28 and assigned 20 points for each day. On Miles' return on August 29, Tapp discharged him because as Tapp testified, "I didn't hear anything else from him, . . . until the 29th, when he came back . . . I called him in and asked him where he had been, and he said he had been tending to his brother. I says, we tried to call you and you don't have a telephone57 ... I had to hire somebody to drive your truck, I needed a driver for the truck . . . I am just going to have to let you go ... I said the least you could have done was call us. I had to call you, the dispatchers tried to call you, and never received no answer." According to Miles on August 29 he arrived at the plant about 11 o'clock. Tapp was out to lunch. On his return Tapp spoke to Miles and told him he would have to let him go "for taking so much time off." Miles responded "that's a pretty damned poor way of doing it . . . a man can't even be off with a family member having a major operation, that he has to get fired over it." The record contains no evidence of dissatisfaction with Miles after the July 27 conversation. Tapp stated that there was one occasion prior to August 29 but after July 27 when Miles did not "show" because his car broke down. Tapp spoke to him about it, believed the story, and excused Miles' "no show." Conclusions with Regard to Miles Despite the varying stories among Miles, Tapp, Bridges, and DeVille, the record shows that Tapp, Bridges, and DeVille knew that Miles was taking off because of his brother's surgery and had stayed away in connection with that disability. The record also shows that for the last 3 or 4 days of that period Miles was not in touch with the terminal. But the record leaves no doubt that Tapp, et. a1., knew why he was away. Management offered no explana- tion why nothing was said to Miles on August 23 or 24 when he showed up for his check although Tapp, Bridges, and DeVille saw him that day. Nor does management offer any explanation for his card continuing to show that he was carried on the books through August 28. Management also offers no explanation for the difference in treatment of Miles when he was excused for his earlier absence in April 1973 and the absence in August when he was away because of his brother's illness. Nor does management offer any explanation for the difference in treatment of Miles and Boudreaux. The record does not show that after the July 27 talk with Tapp, Miles had stayed away, missed a run, or was otherwise up for report. Nevertheless he was fired on August 29. On the other hand the treatment given Boudreaux was different. Tapp knew Boudreaux and his reputation for undepend- ability. On July 17, Tapp had an employee interview with Boudreaux. His mark for dependability was "Poor" and his report contained the notation by Tapp "feel he will try to improve." Among the drivers and the dispatchers Bou- dreaux was known as one who would take local runs only and refuse out of town runs. Vermeal testified to the fact that in the early part of August, Boudreaux did not show for a run. Boudreaux was due to go out at 3:30. Boudreaux called the dispatcher Bracey several times to say he was coming in. He failed to do so and Vermeal took the run. There is no evidence that Boudreaux was spoken to about this failure. In the latter part of September, or early October, Boudreaux did not show up for a run necessitat- ing a substitute driver. Boudreaux's card was in the box when Tapp came in. That day Tapp held a long conversation with Boudreaux on the telephone. Since then, 52 This conversation is not denied by Tapp. 51 The record is somewhat confusing about how this occurred. Miles testified that on August 21 he notified Bridges who said , "Okay let us know when you are able to come back"; that Tapp was there and he believed Tapp overheard the conversation ; that he did not speak to Tapp. Tapp testified that on August 21 Miles asked him for "one day, may be , two off, and may be till the week end"; that Tapp responded "well one or two days, fine, but if you are going to have to be off longer than that, give me a call." Inconsistently with this statement Tapp stated in the termination report he filed on Miles that Miles asked for I day off .... Bridges testified that he did not remember the period commencing with August 21; that he remembered no conversation with Miles ; that for the period from August 21 to August 29, he saw Miles only once when the latter came in after August 21 to pick up his check . DeVille testified that on August 21, Miles told him about his brother's operation. DeVille told him to see Tapp and "Roy Tapp told him to come to tell me not to book him . I didn't." DeVille testified that Miles asked for "Wednesday off and may be Thursday for his brother's operation." Vermeal testified that he was present when Miles spoke to Tapp; that Miles asked for the rest of the pay period off, that Tapp said, "sure ... under the circumstances" and to make sure that Miles told the dispatcher to put him "in the back of the box." 54 Tapp testified it was 24. Vermeal and Miles testified it was 23. Bridges saw Miles but did not remember the date. Whether it was August 23 or 24 does not affect the conclusion hereafter drawn. 55 Tapp testified that he might have said "Hi Ben or something like that" and nothing more. Vermeal and Miles (the latter on cross-examination) testified that Tapp asked after Miles brother Miles also testified that at that time Tapp said, "Let us know when you are able to come back." It is considered unnecessary in light of the following facts to determine the exact statement made by Tapp. 56 Bridges reiterated the fact that he didn 't remember the period from August 21 to 29. Despite these statements he did testify that Miles' mother called while his brother was in the hospital. She asked that Miles call her. The record is not clear whether this call was received by Bridges or some other person in the terminal . Budges gave Miles the message. He did not specify how that was done . Budges also stated that he tried to contact Miles by telephone to give him a run but could not reach him. 51 An obvious misstatement according to DeVille's testimony. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD according to Tapp, Boudreaux "had made me a good employee." Finally, the record shows several instances where Quality employees were away from the plant a week or more without permission and were not discharged because of their absence. In particular, employee James was absent in July for 1 week during which Quality did not know his whereabouts. He did not contact Quality. They could not contact him. When he returned Tapp was told that he had spend a week in jail in Alabama. James missed several runs thereafter. The record shows that James is still employed by Quality. The record contains no evidence that James was reprimanded or warned, or received any sort of censure for this week's unauthorized absence without contact 5s As is stated more fully in section I hereafter, the difference in treatment between Miles and other employees equally delinquent, and the difference in treatment of employees including Miles, in July and later in August, stems from the existence of the union activities in the plant commencing late July. King if he had ever been a member of a union before and King answered, "yes I had." On August 28, the day before King's discharge, Tapp and King held another conversation. Tapp asked King about the people he had been speaking to about the Union. King mentioned Don Warner.61 Tapp told him that Warner "didn't know what he was talking about" and advised King to speak to Cox and Parker "who were for the Union at one time and had learned better ...... During this conversation Tapp also asked King how the latter felt about the Union. King told him he was for it, "the majority of the men in the company was for it ... the majority win." 62 Tapp testified that he heard King's testimony and denied that he ever spoke with King about the Union in his office. He specifically denied the "majority" conversation, but did not deny the Warner statement. He did not deny the August 11 conversation 63 On the record as a whole and under the above circumstances, it is found that sometime before August 29, 1973, Quality was aware that King was a union member. 2. Jose King, Jr. a. Introduction King began his employment with Quality as a truckdri- ver on July 17, 1973 . He was discharged on August 29, 1973. As with Warren and Miles, the General Counsel contends King was discharged because of his union activities and affiliation and that the reason stated by Quality was pretextual . Quality contends that the discharge was for cause. In its brief Quality states, "Tapp testified that on the 22nd of August he warned King that if he was late again he would be discharged. Subsequently, King was late for a run and was terminated by Tapp." b. Quality had knowledge of King's union activity and affiliation King's union activities were minor. He signed a union card on August 17. On August 19, he attended a union meeting at which, he "hollered" the Union was "right, stand aside and give me some cards , and I am going to get the bunch of other guys signed." 59 On August 11, Tapp spoke to King and four other newly hired drivers in the driver's room.80 Tapp told them of the benefits they could lose if the Union came in. King asked him if they would "still get a watch?" Tapp answered "Anything the company gives you . . . ." Tapp asked sa Both Boudreaux's and James' records are dealt with in greater detail in section H below. 56 There is no evidence to show that Quality was aware of this action. Parks, the union representative, told the union people to keep the campaign "low key ... [without) handbills . . . to talk to the guy ... they could trust" Despite this, there is no question as admitted by Quality, that the latter was fully aware of the existence of the union campaign and activity among the drivers and shop employees . As DeVille testified during July and August, union talk "was all there was." eO See section F,l,b, above: 61 Known in the plant as the most active union supporter. 62 As stated in section c below much of King 's testimony has not been credited . King testified that the conversation about majority occurred on August 28. He also stated it occurred on August 11. King could have been c. King's employment history Tapp hired King after a personal interview and a check on King's recommendations. King satisfactorily passed a prehiring driving test. At the interview Tapp told King that he had been told by King's previous employer that he had "a heavy foot and that he was fast." Tapp made King promise "he would slow down, and be real careful, with that $35000 piece of equipment."64 From July 17 to August 21, the record is free of evidence of action by King as an employee that was subject to criticism. For the period commencing August 21 through August 29 four late reports were filed: (1) On August 21, Bridges filed a report showing that King was due at the terminal at 6:30 a.m., but arrived at 7:35 a.m. The report stated he had a flat tire on his car. It is considered that this lateness was "washed out" for as Bridges testified, a lateness due to such a cause was not held against the driver.65 (2) On August 22, King was assigned a run to Houma, Louisiana, to leave at 4:30 a.m. DeVille was the dispatcher. By 5:30 a.m. King had not arrived and a standby driver was assigned the run. According to an IBM printout showing all the runs King had while employed by Quality, on August 22, he was assigned and drove another run to Morgan City, Louisiana. The record, however, is in a confused state as to the events that occurred on August 22 after King arrived at the terminal. They will be dealt with confused about the date. He testified though that this conversation occurred in his talk with Tapp. On August I I he had no direct talk with Tapp. In the light of the foregoing, it is found that the "majority" conversation occurred, and on August 28. 83 Tapp admitted as stated above that he talked many times with drivers about losing benefits. 64 The last refers to Quality's trucks. The record contains no evidence that King's discharge is related to "a heavy foot." 65 Tapp testified similarly that a man would not be penalized for arriving late at the yard, if he was delayed by a flat tire in his own car. (Note also Tapp's excuse of Miles "no show" when the latter's car broke down. See section l ,c above.) Tapp added the proviso that there was no penalty, "if he didn't miss the load." The record does not show that on 8/21 King missed a load. QUALITY TRANSPORT INC. in detail in an attempt to arrive at what actually did happen. Three people (DeVille, Tapp, and King) testified concerning the events of August 22. Their testimony will be dealt with in that order. DeVille identified a late report dated 8/22/73 that he had made out. His testimony on the report in its entirety follows: Q. What is the date on it? A. 8-22-73. Q. What did you do with it? A. Gave it to Ray Tapp. Q. And is all of that writing on that report yours? A. No. The bottom is Ray Tapp's. Q. All right, sir. There is light blue ink and dark blue ink. Which writing is yours, sir? A. Light blue. Q. The light blue ink is yours? A. Yes.66 Q. And the initials in light blue is your signature? A. Yes. Q. Where did you get the information from or for that late report. A. Well, he was due in at 4:30 and at 5:30 he wasn't there. JUDGE THEEMAN: That wasn't the question. Q. (By Mr. Schoolfield) Where did you get the information for that report? A. I was dispatching. Q. Did you get it off your dispatch sheet? A. Yes. He was booked on a load, and I had to put another man on the load at 5:30 because he wasn't there. Q. Do you recall the incident? A. Well, I could look at the dispatch sheet, but I don't recall every man that's late, but I remember when he was late this time because that's when Ray called him in the office. Tapp's testimony on this subject follows: Q. (By Mr. Schoolfield) Let me refer to respon- dent's exhibit 9. There is some black writing on there. Can you tell me about that, please? A. Yes, sir, I wrote that on there. Q. What does it say? A. It says, called in the office and warned this was his last time, signed by myself. Q. What date was that? A. 8-22. King testified at length and with some contradiction and confusion about the events of this day. On cross-examina- tion the following testimony was first given by King. Q. I'm asking you. Didn't Mr. Tapp call you in the office and warn you that this was the last time that you would be late for work or you would be discharged, on August 22nd? es The late report was received in evidence . It showed in blue ink, the statement "Run Missed Houma ... I hour late had to put Stand-By man on it," in black ink the statement, "Called in office & warned that this was last time." 209 A. That is correct. Q. This is correct? A. Yes, it is. Q. August 22nd is a week prior to the 29th. What day was the 29th? A. The 29th was a Wednesday. Q. So, the Wednesday prior to that, you were called in the office, and warned that the next time you were late for work, you would be discharged, is that right? A. That's right. Immediately after this King denied that he had held any conversation with Tapp on August 22. King then admitted that he "only missed one run and that was to Houma" and he believed "it was the 25th." After he was referred to his IBM print-out to refresh his recollection King testified. A. I was scheduled for Houma and I missed the Houma run and I took a Morgan City in place of it. Q. What's the date you took the Morgan City run? A. That would have to be on the 22nd. Q. That's what I was trying to establish. So, it was the 22nd that you missed the Houma run, is that right? A. Yes, that is correct. Then, King denied that he spoke to Tapp on August 22. He stated that he received no warning on August 22, but did on August 28; that he had held three conversations with Tapp during the month of August on the 11th, 28th, and 29th and no others. After this statement the following question and answer took place. Q. All right. Now, let me ask you this . In the latter part of August, were you warned by Mr. Tapp that the next time you were late for work you would be discharged? A. I do remember being warned but I do not remember what date I was warned on and I do not-I believe-I don't believe it's the 22nd . It may be the 22nd. King then again admitted that he missed the run on August 22; 67 that it was mentioned by Tapp the latter part of August-this date was August 28 and it was on that later date Tapp told him that the next time he was "Late to my destination" he would be discharged. The conflict, contradiction, and equivocation in King's testimony make it difficult to credit him. Accordingly, on the basis of the foregoing, it is found that substantial evidence support a finding that on August 22, Tapp warned King that the next time he was late reporting he would be fired. (3) On August 25, King was dispatched to leave the terminal at 5:30 a.m. for a trip to Donaldsonville, 67 Later in cross-examination on the number of times he was late in August King admitted that he had "testified that on the 22nd of August [he was ] one hour late reporting and lost a run." 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louisiana. He left at 7 a.m. Bridges filed a late report on King.68 King flatly denied that he had worked on August 25. When it was pointed out that the day was a Saturday, King stated positively that this was the Saturday before his discharge and he neither took a run nor reported to the terminal . King's testimony is not credited. The dispatch sheet for August 25 showed that King had a run that left New Orleans at 7 a.m. and was completed at 12:30 p.m. The dispatch sheet data was confirmed by the data contained on the freight bill for this trip made out by King and the bill of lading for the same day made out in the name of the receiver of the freight 88 On Monday, August 27, King did not report to work because the motor in his car had burned up. Because of this Tapp spoke to him on Tuesday, August 28, and explained his absence. Apparently that explanation was accepted. The conversation then continued with the discussion of union matters detailed in section F, l,b above.70 (4) For August 29, Bridges filed a late report on King showing that the latter was due at the terminal at 5 a.m., arrived at 5:40 a.m., and left for his destination at 6:10 p.m.71 This late report was based on the dispatch sheet dated 8/29/73. After he had made it out, Bridges gave the late report to Tapp. When King returned Tapp terminated him. According to Tapp the conversation went as fol- lows: 72 A. I told him that I went as far with him as I could, and I warned him about being late, that he was still on a trial basis and I talked with him before, and didn't look like it done any good to talk to him, so I was going to have to terminate him. Q. What did he say? A. I don't remember his exact words. He didn't think it was fair. Said he hadn't never been late on a delivery, but on this particular morning he was late on that delivery. possibility that problems about King's driving might arise. Under these circumstances, it is reasonable to conclude that Tapp kept a careful watch over King's record. The record shows no complaint about King's work from July 17 when he was hired until August 21.73 King testified without denial that he had worked for Quality, long and often and never turned down a job. As shown by his IBM printout there was a period from July 23 to August 18 in which he worked every day including Saturdays and Sundays.74 As a matter of record Tapp and all the dispatchers admitted that it was not uncommon for a driver to miss a run. On such an occasion a standby driver would take over. Apparently, it was to provide for such occasions that drivers were assigned to standby duty. Under these circumstances, there appeared nothing unusu- al about King missing a run on August 22. A standby driver took it over and King was assigned a substitute run. King was given unusual treatment for a not unusual occurrence. He was told by Tapp that the next time it would occur, he would be terminated. The record shows no instance of any other driver who missed a run that was similarly treated.75 Why King? Because by this time the union campaign had full momentum and Tapp was showing union supporters what could happen to them. Having started the plan to terminate King for what seemed to be cause, it was no problem to select a pretext within a short time thereafter. No explanation is given why King was not terminated for his late report on August 25. Perhaps, the late report did not give a full semblance of cause. In any event, a better reason was found on August 29 when he left late and arrived at the customer 3Q minutes after schedule. The record does not show that the half hour's delay caused the customer any serious problems.76 In any event, King was terminated. It is of some significance that this occurred 1 day after King's talk with Tapp about Don Warner and the request for union information, and 2 days before the representation hearing before the Board. King admitted that he had been called by dispatcher 3. Pat Warren Bracey the night of August 28 to report the morning of August 29 at 5:30 a.m. King also admitted to being half hour late on his delivery to the customer. a. Introduction Conclusions with Regard to King When he was hired Tapp knew King had what he called "a heavy foot." No doubt this alerted Tapp to the ss Bridges testimony was based on the dispatch sheet dated 8/25/73 and a late report of the same day. 89 It was ordered at the hearing that the documents used to make the entries on the 8/25/73 dispatch sheet should be placed in evidence as posthearing exhibits. Respondent sent these to the Administrative Law Judge by letter dated November 29. They were the freight bill and bill of lading referred to above . The General Counsel had no objection to their receipt in evidence . Accordingly, both bills have been received in evidence as Resp. Exh. 12(a) and have been placed in Respondent's exhibit file. The correspondence with regard to the exhibits have been placed in the case file. In view of the foregoing it is found that the entry made on King's IBM printout of his trips which gave the date of 8/24/73 for this Donaldson trip was an error as testified to by Tapp. 70 King's IBM printout shows that he did not work on August 27. Tapp does not deny that he spoke to King on August 28 but generally denies speaking about the Union to King. On the record, King is credited that he held the conversation with Tapp on August 28. Warren was employed as a shop mechanic by Quality on two occasions: In 1971 he was employed for 3 months. He left because he did not wish to work on a certain shift. He was reemployed in February 1973 77 and terminated on 71 This is the time he left the terminal to go to the cement plant to pick up his load. He left the cement plant for the customer at 6:35 a.m. 72 King's version of the conversation is somewhat different . In view of the admissions hereafter stated that he was told to report at 5:30 a.m. and that he was 1/2 hour late at delivery, it is considered that Tapp's version is credible. 73 As shown above the August 21 late report was excused. 74 During this period he missed Monday, August 16. There is no claim by Quality that King was other than a competent and efficient driver. 75 Vermeal and James admitted they missed runs. The record does not show similar treatment. 76 It is conceded that Quality had the right to discharge King for arriving late if that was the cause. This comment goes only to the weight that may be given to the late arrival under ordinary circumstances. King testified that he had to wait at the customer about an hour to be unloaded. 77 His foreman was Harold Lee. QUALITY TRANSPORT INC. 211 August 30, 1973. The question to be resolved here is what caused the termination? 78 Quality asserts it was a voluntary termination by Warren. The General Counsel asserts he was discharged because of his union activities and affiliations. b. Quality had knowledge of Warren's union activity and affiliation As shown above, there is no question that Quality was aware that a union campaign was occurring at the plant. Further the record clearly shows that Quality had knowledge of Warren's union partisanship. Uncontrovert- edly the record shows that three management officials spoke to Warren about the Union during August prior to his termination. One or two days before Tate asked him if he knew anything about the Union and which one it was.79 Warren responded that with a union the Company might have a more orderly shop. In mid-August Tapp with Lee present spoke to Warren and some other mechanics in Tapp's office. Tapp told them that he did not "see how he got anyone to hate him enough to where they would vote for the union." In the latter part of August, Lee held three conversations with Warren .80 During one Graves, another shop employee, was present. The conversations were general. In effect Lee stated that after comparing wages and working conditions, the men were better off without the Union; and Warren answered that the men would have a better deal with the Union.81 c. Warren had an accident On July 31 Warren was sent to Houma, Louisiana, to work on a truck that was having a problem with an inoperative pressure hose. It was jammed with cement. In making the repair, a blast occurred that flung cement in Warren's face.82 He felt a burning sensation in his lungs. Warren drove the company truck back to the plant and reported the accident to the dispatcher on duty. At the latter's request, he waited for Lee to come in. Lee arrived at 8 a.m. With Lee's permission Warren went to see Dr. Segura, the company doctor. Dr. Segura examined Warren and gave him the following note: May RTW 83 if away from cement dirt for 24-48 hrs.-Recheck tomorrow. Warren returned to the terminal and showed the note to Lee who told Warren he could take as much time off as he wanted. Warren took off 3 days. He returned and with Lee's consent worked a reduced number of hours'for 2 or 3 days. Then he went back to his regular schedule. About 2 weeks later, Warren told Lee he was having trouble breathing and that he wanted to see his own physician, Dr. Russell. Lee had no objections. Dr. Russell was on a 2 weeks' vacation. On August 29, Warren visited 78 There is no question of Warren's capability. The record shows that Lee thought well of him as a mechanic and had recommended Warren for a raise. 78 See section F, l,a above. 80 No date is specified . Warren testified they occurred the week "prior to my discharge." 81 Warren signed a union card on August 4. Daily thereafter he talked to him. After an examination Dr. Russell gave Warren the following note: Mr. Pat Warren was seen by me today, complaining of dust pain and shortness of breath. I would recommend that he avoid environmental irritants for approximately one week. The morning of August 30, Warren went to Dr. Segura again and showed him the above note. Dr. Segura gave him another note reading: Able to return to work-But believe above is allergic to dust particles. May have to find other job. The Events on August 30 According to Warren On direct examination Warren testified that he arrived at the plant at 10 a.m. and gave Lee both notes. Lee said, "We will see what Ray Tapp has to say about this." When they got to Tapp's office, Tapp read the notes and told Warren, "If that's the case, we don't need you any more." Warren responded, "he would come back in a day or so to get his tool box." Tapp told him he could finish out the pay period if he wanted to. Warren rejected that offer because there was one day left84 and he was not feeling well. After much searching inquiry on cross-examination Warren admitted that after Dr. Russell gave him the note he intended to ask for a week off; that on August 30 when he showed the two notes to Lee he did ask for "a week off." The record does not show any response from Lee other than the one about going to see Tapp. Also, on cross- examination Warren testified with less certainty that he thought Lee told Tapp about the request for time off when the three met shortly thereafter. The Events on August 30 According to Lee Lee stated that on August 30, when Warren brought the two doctor's slips to him, Warren asked what Lee wanted to do about it. Lee had nothing to tell him but that they would have to see Tapp. Lee explained that it was out of his authority. According to Lee the following took place in Tapp's office. A. Well, Ray read the slips, not being able to quote the exact words, but Pat asked us what we wanted to do about it. I said, Pat, that is going to have to be entirely up to you. You are the man to be the judge. I have a mechanics job open. I need a mechanic and the job is yours if you feel like you can handle it, fine. If you don't, you are going to have to be your own judge about it. Q. What did Mr. Tapp say? A. Mr. Tapp told him essentially the same thing. drivers about the Union when they came up in their trucks. He attended a union meeting on August 19. 82 The blast occurred at 2 a.m. 83 Return to work. 84 Actually, there were 2 days left. The second was a Saturday when Warren did not normally work. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said you are going to have to decide whether you feel like you can work in this condition or not. Q. What did Mr Warren say? A. Pat said, he felt like, well, he just couldn't work in the dust and conditions that we had. Q. Did Mr. Tapp say anything else? A. And Ray asked him, he said, well, we have got 2 days to the end of the pay period. Do you want to look for another job? Do you want to continue to look for a job or do you want to take off now and find this job. It is up to you what you want to do. Q. And what did Mr. Warren say to that? A. Mr. Warren said that he would just go ahead and find him a job. Q. Is that the end of the conversation as you recall? A. That's the end of the conversation as I remem- ber it. Q. What did Mr. Warren do then? A. He shook hands with us and we shook hands with him, and he left, and we wished him well, hoped he found a_good job. I wished him well and hoped he would find a job, a good job, that he could work in. The Events on August 30 According to Tapp Tapp stated that the first he knew about Warren not being able to work for Quality was when Warren and Lee came to his office on August 30 and handed him the two notes. Lee told him that Warren had brought them in; and that Lee wanted Tapp to look at them. Tapp did and told Warren "it looks like you got a problem." Warren said: ... yeah. Looks like I am allergic to dust, and I said, well, you know that dust is all we got around here, and I said, what's your intention? What are you going to do? And he said, well, I guess I am going to have to find me another job. I said, well, do you want to finish out the pay period? Work as long as you want to til you find something or whatever you want to do, and he said, well, I said it makes no difference to me. You are the one that's got to live with this thing. And he stuttered a minute, and said, well, I just got one or two' more days in this pay period. He says, I might as well go ahead and try to find me something, and get started on it, and I will come back in a day or two and pick up my tools. I said, well, I hate to lose you but that's the way it is. So he left at that time. Q. Did Mr. Lee say anything during this conversa- tion? A. No, he spoke before I did. Q. In your office? A. Yes. Q. What did he say? A. He told me that he hated to lose Pat, but Pat said it was looking like he was going to have to find another job, and that he felt like, Pat felt the same way that I did, he could go ahead and work a few more days if he wanted to till he did find something, but Pat took it on himself to say he thought he had better go on, since there was just a day or two left in the pay period, he might as well go ahead and find him something and get something started, so we all shook hands and he left. Conclusions with Regard to Warren Warren's admission that he asked Lee for "a week off" when he showed Lee the doctor's notes dated 8/29 and 8/30 is undisputed. The request was made in Lee's office before Warren and Lee went in to see Tapp. Such a request appeared to be in keeping with Warren's intentions stemming from the recommendation of Dr. Russell that Warren "avoid environmental irritants for approximately one week." There is some doubt that Warren renewed his request in Tapp's office. In any event, the record does not conclusively show that "a week off request" was discussed. The failure of such a discussion to occur lends support to Warren's testimony that Tapp came up with a brusk decision, "we don't need you any more." It appears reasonable that having made the request of Lee earlier, Warren would repeat that request in Tapp's presence had he been given the opportunity. This request would have been a reasonable response to Lee and Tapp when they asked Warren, "what was he going to do about it" had they actually asked that question. Certainly the request would have been more reasonable than the response "I guess I am going to have to find me another job" that Lee and Tapp stated was the answer Warren gave. It would have been a more reasonable response if the discussion was as friendly as Lee and Tapp stated it was. In any event, Warren appeared a reliable and impressive witness and his testimony is credited. On the other hand, that much of the testimony of Lee and Tapp that stated that Warren said, in effect, that he would go ahead and find himself another job is not credited. It follows from the admission elicited from Warren that he did not quit his job as Tapp and Lee aver. Neither Tapp nor Lee offer any other reason for Warren's severance from Quality except that he quit voluntarily. This reason having been shown false, the conclusion is inescapable that Warren was discharged. Neither Tapp nor Lee give any cause for the discharge. Thus, it is reasonably concluded that Warren was discharged for his union activities and affiliations. Several factors support this last conclusion. Warren's accident occurred on July 31. On that day with Lee's assistance he went to the company doctor and then reported to Lee with the doctor's note. He asked Lee for time off and Lee told him he "could take as much time off as [he] wanted." As noted Warren took 3 days off and then worked half days for the next 2 or 3 days, without comment or question from Tapp or Lee. On the other hand, on August 30, Warren faced an entirely different and hardened attitude. Lee told him the matter was out of his authority, he didn't know what to do about it, and they should go and talk to Tapp. This change and these actions do not square with Lee's earlier actions and attitude of July 31. The climate was sharply different in early August from that in late August. What significant events had occurred that caused the change? In early August, the union campaign was dust coming to life. Warren had not yet signed up with the Union and management was not yet aware of his union sympathies. By August 30, the lines QUALITY TRANSPORT INC. between Union and management were sharply drawn. The union campaign was in bloom. Quality actively carried out its antiunion operations. Warren's union sympathies were known to Lee and Tapp. It can readily be concluded that these interim events affected the relationship between Warren and Lee and Tapp and led to his discharge. Finally, as noted above in the case of Miles, the record shows that employee James was absent in July for 1 week during which Respondent did not know of his whereabouts nor had James been in contact with Respondent. Since that time James has been late for several runs . The record contains no evidence that James has been warned, reprimanded, or censured in anyway. James is still employed by Quality.85 H. Quality's Treatment of Other Employees The record shows clearly that there are employees still employed by Quality whose employment record contained lapses in employment behaviour similar to that of King, Miles, and Warren. 1. Boudreaux received a poor dependability rating On July 17, Boudreaux had his annual employee interview with Tapp. As in the case of Miles, he was rated poor on dependability. Tapp included a statement on Boudreaux's report that he felt Boudreaux would try to improve. Vermeal testified without refutation that in early August he took a run that Boudreaux did not show up for. On that day, Boudreaux was on standby. Bracey was the dispatcher. Boudreaux's run was scheduled to leave at 3:30. By 4:30, Boudreaux had not showed and Vermeal was assigned to his run. During the interval, Bracey called Boudreaux several times and was told that he was on his way. Boudreaux never called in. Tapp testified that there were several occasions after his interview with Boudreaux when Boudreaux refused to take runs assigned to him because they were local runs. The other drivers complained of these actions. The last of these refusals, according to Tapp, occurred in the latter part of September or the early part of October. Boudreaux refused a run and Bridges was required to assign it to another driver. At that time, Tapp spoke to Boudreaux on the telephone, "and had a good long conversation with him." The record shows that nothing more drastic than that was done. 2. James was away a week unheard from James was employed by the Respondent for about 2 1/2 years. The latter 1 1/2 years he was a driver. In the month of July, James was away a week and Respondent neither knew where he was nor did they hear from him. He was gone from one Saturday to the next. During his absence, Tapp tried several times to get him on the telephone but got no answer. On his return he reported to Bridges who told him to see Tapp the following e5 Warner, a truckdriver, testified that in September 1972 (9 months before the union campaign started) his mother had a slight stroke. He asked Tapp for time off. The latter said, "go ahead and just report in when [you ] come back." Warner took 4 or 5 days off. Nothing was said when he returned. Miles was off sick with company leave from April 10 to 29, 1973. This is in accord with Lee's testimony that within the past 9 months he 213 Monday. Tapp told him that they had "been hurting around here" because of his absence. Tapp sent him out that Monday. Since then, James missed three or four runs.86 Tapp spoke to him about them. The last time that Tapp spoke to him was about October 19 or 20, when James did not show up at all. Since the talk with Tapp, James missed two more runs, the last one occurring in the month of November. The record does not show that Respondent has taken any punitive action to James for these delinquencies. 3. Treatment of other employees by Respondent on August 25 Bridges testified that there were drivers employed by Respondent at the time of the hearing against whom late reports had been filled out. He gave the number as "maybe 5" and that they were the "older drivers." He personally had made out several drivers' reports on one of the drivers. Bridges also testified that he makes out as many as five drivers' reports a day in the regular course of business. On August 25, a driver by the name of Pierce was shown on the dispatcher's sheet to have been 45 minutes late in reporting. The dispatcher's sheet showed that he was scheduled to leave the terminal at 1 but did not arrive until 1:45. Bridges testified he did not make out a late report. He could not testify why he did not do so, nor the reason for Pierce's lateness. It is noted that Bridges made out a late report on King for that date because he left the terminal at 7 a.m. when he was scheduled to leave at 5:30 a.m. Vermeal admitted that he had reported late many times in August. 4. Dissimilar treatment given other drivers the day King was fired On August 29 a driver by the name of Jackson was scheduled to leave the terminal at 12:30 and did not do so until 1 hour later. Bridges could not recall if he had made a late report for Jackson. The same day driver Friar was 25 minutes late. He was scheduled to leave the plant at 7 a.m. and arrived at 7:25 a.m. As with Jackson no late report was filed nor was any excuse for his lateness shown. 5. Other drivers had been late There existed among the drivers a feeling that the reporting time given to them by the dispatcher was usually too early. The key to the action was that the delivery should not arrive late at the customer. It was generally conceded that many of the drivers knew the roads to take and approximately how long certain runs would take.87 Based on this knowledge they would report at the plant to start the run in order to give them a reasonable time to arrive at the customer without being late. In many of these cases, the time they reported at the terminal was later than the time given them to report by the dispatcher. This granted time off to other mechanics because of illness and those employees are still working for Quality. 86 James testified that in late October or early November, he was late three times in I week in reporting to the yard. Each time he was about 35/40 minutes late. 87 Tapp admitted that these were the facts 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice was known to Tapp and the three dispatchers. While it was not condoned entirely, it was recognized as a matter that did -exist. Vermeal testified that about 99 percent of the truckdrivers were late. In his own case he stated that his arrival at the terminal late or on time depended upon the dispatcher. If it was DeVille, he would be prompt, because DeVille "knows how long it takes you to get to the destinations." If it was Bridges, Vermeal came in when he felt it was proper. Bridges did not know the area and did not "know how long it takes you to get there." Vermeal mentioned the names of various drivers that reported in this manner including Friar and Boudreaux. In keeping with the foregoing, Tapp admitted that insofar as the Respondent is concerned, the time the customer is scheduled to get the product was most important. DeVille testified that he had made out late reports on "pretty near everybody. I don't think there is any man in the company that don't have one in their files." He has made out several reports on a driver called Rice who started employment with Respondent later than King and was still employed by Respondent. DeVille also stated that there are a number of drivers still employed by the Company who have passed up runs on occasion even though they "are not supposed to pass them up." The "passing up" action occurs once or twice a week. Usually, a report is made out on the driver. Tapp stated he was aware that "driver reports" are not filled out by the dispatcher in all instances. 1. Conclusions about Miles, King, and Warren The conclusions in this decision have not easily been reached. Respondent, except for Warren, has set forth facts which under other circumstances might be considered just cause for discharge if those facts were in fact the cause for the discharge. But under all the facts of this case and the analysis hereafter, it is concluded that the moving or primary cause for the discharge was the union organization campaign; that Miles, King, and Warren were selected for discharge as union adherents as an example and warning to other employees that termination is the reward for supporting the Union. There is no question, as shown, that Quality was opposed to the Union and did not want the terminal unionized. This is clearly evident from the illegal antiunion campaign that started early in August and was continued through November as shown by the antiunion petition. It is reasonable to conclude that the antiunion motive was not 88 It is recognized that these conclusions are an inference but it is considered that under the circumstances herein the inferences are well founded and permissible. Shattuck Denn Mining Corporation v NL.R.B., 362 F.2d 466, 486 (C.A. 9, 1966). It is also considered that the evidence upon which the inferences are based are substantial , go beyond suspicion, and amount to more than a scintilla . Dubin-Haskell Lining Corp v. N LR B., 375 F.2d 568, 573 (C.A. 4, 1967). Note particularly the language of the Second Circuit Court of Appeals when dealing with knowledge and antiunion motivation in connection with a discharge . The Court in N.L R B v. Long Island Airport Limousine Service Corp., 468 F.2d 292, 295 (C.A 2, 1972), stated: More important, there is no good reason why the two factual propositions-employer knowledge of general Union activity and employer anti-Union motivation in discharging a particular employer -need be proved by different types of evidence. As to each, direct evidence may not be obtainable and circumstantial evidence and "inferences of probability drawn from the totality of other facts," confined strictly to actions that were independently violative of Section 8(a)(1); that such strong union animus must and did permeate and pervade the actions involving the discharge of the three employees in question. Especially significant in this area is the fact that the alleged reasons for the discharge of Miles and King only became cause for discharge after the campaign started. The record is replete with testimony both of the employees and management that Tapp for a long period prior to July 1973 had maintained a lenient policy in dealing with absences whether explained, unexplained, or caused by illness; that the same leniency was shown to drivers who were late on arrival at the plant or who missed their runs entirely; that the chief punitive measure used by the Company as a deterrent was the point system. It is especially significant that prior to the commencement of the union campaign (a) there is no evidence that Respondent adopted a policy of calling in drivers after a late report and warning them that the next time they were late they will be discharged as was done with King; (b) there is no evidence that an unexplained absence for a period of a week was considered case for summary discharge as was the case with Miles. To the contrary, such an absence was condoned entirely as was the case with James; and (c) there is no evidence to show that missing a run was cause for discharge even though the person who missed the run had previously missed several, or was a person like James who had absented himself for a week without explanation and then again missed some runs. It is also significant that the termination of three union people occurred within a 2-day period, August 29 and 30, and immediately before the day set for the representation hearing. The termination of three known union members within a 2-day period was bound to receive special attention and notoriety among the employ- ees and it can easily be concluded that the impact of the termination of three union adherents for causes that had not previously been causes for termination was not lost upon the other employees even though the employees were not union leaders. The conclusion follows that under all these circumstances, Respondent selected Miles, King, and Warren for termination knowing that they were union members with the intention that their termination should act as a deterrent to other employees in their support of or adherence to the Union.88 A termination under these circumstances is unlawful under Section 8(a)(3) of the Act.89 In any event, even assuming that Miles and King were [Citations omitted.] are perfectly proper. 89 Colonial Lincoln Mercury Sales, Inc, 197 NLRB 54, 58 of the memorandum decision where the Board in adopting Judge Silberman's Decision stated: Unlike violations of Section 8(a)(1), unlawful motive normally is an essential ingredient to an 8(a)(3) finding. An employer may discharge an employee for any reason whatsoever , or for no reason-so long as the discharge is not related to the employee's union membership or activities. A corollary of this proposition is that union membership does not immunize an employee from discharge or other employer discipline. But an employer violates the Act if he discharges an employee because of the employee's union membership or activities, even if another contemporaneous reason for discharge exists It matters not that the employee may have been incompetent or otherwise may have deserved discharge ; if the efficient, proximate reason for the employee's discharge is his union membership or activities the discharge is unlawful. Likewise , an employer also acts unlawfully if, QUALITY TRANSPORT INC. 215 guilty of the different actions charged by Tapp when he discharged them, the Board and the courts have long recognized "that discriminatory treatment of employees by their employer, motivated in whole or in part by their union or protected activities, violates Section 8(a)(3) and (1) and that `the mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity.' " Singer Company v. N.L.R.B., 429 F.2d 172, 179 (C.A. 8, 1970). See also Arbie Mineral Feed Co. v. N.L.R.B., 436 F.2d 940, 942-943 (C.A. 8, 1971); A. P. Green Fire Brick Company v. N.L.R.B., 326 F.2d 910, 916 (C.A. 8, 1964); N.LR.B. v. Solo Cup Co., 237 F.2d 521, 524-525 (C.A. 8, 1956). See also Filler Products, Inc. v. N.L.R.B., 376 F.2d 369, 377 (C.A. 4, 1967), where it was held "a justifiable ground for dismissal of an employee is no defense to an unfair labor practice charge arising out of such dismissal if such ground was a pretext and not the moving cause for the dismissal." Also see N.L.R.B. v. Hanes Hosiery Division, Hanes Corporation, 413 F.2d 457, 458 (C.A. 4, 1969), and cases cited therein where it was held that if a desire to stifle union activity was a factor in the company's decision to discharge the employees, the discharges were discriminato- ry and hence unlawful. It is concluded from the entire record herein that Miles, King and Warren were discharged because of their union affiliation and activities. IV. THE EFFECT UPON COMMERCE OF QUALITY'S UNFAIR LABOR PRACTICES The activities of Quality set forth in section III, above, occurring in connection with Quality's operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Quality Transport, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Transportation Employees Association a/w District 2, MEBA, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, Quality has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. For the reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. 5. The aforesaid conduct are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. By discriminating in -regard to the hire and tenure of employment of employees Miles, King, and Warren, thereby discouraging membership in or activities on behalf of a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, the following recommended order shall be issued. It having been found that Quality has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Having found that the Respondent unlawfully dis- charged Benjamin Miles and Jose King, Jr., on August 29, 1973, and Pat Warren on August 30, 1973, it is recom- mended that the Respondent offer each of these employees 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 each of them whole for any loss while actively opposing a union's organizational drive , he indiscrimi- nately terminates employees (rather than seeking out and selecting for discharge those who were leading the union 's drive) for reasons which otherwise would not have prompted such action-even if by chance the employees who are discharged did not support the union The employer's object in such case is to demonstrate to the employees that the union will bring them harm, not benefits, and thereby to "chill" the employees' self-organizational interest. Such chilling effect can be RECOMMENDED ORDER90 Quality Transport, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union sentiments and activities. (b) Threatening its employees with cessation or reduction of benefits in the event they chose the Union. (c) Spying on the union activities of its employees or creating among its employees the impression that it is engaging in surveillance of their union activities. achieved (and in some cases more effectively) by haphazard discharges as well as by selective terminations of the union leaders. 90 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order , and all objections thereto shall be deemed waived for all purposes 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Instigating, initiating, and circulating an antiunion petition among employees or soliciting employees to sign such antiunion petition, or assisting in the instigation, initiation, circulation, and solicitation of employees' signatures upon an antiunion petition. (e) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in other 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 is necessary to effectuate the policies of the Act: (a) Offer to Benjamin Miles, Jose King, Jr., and Pat Warren immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in New Orleans, Louisiana, copies of the attached notice marked "Appen- dix."91 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleged any unlawful conduct other than that as above found. 91 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the Recommended Order of an Administra- tive Law Judge of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employ- ees that: As the result of a trial before the Administrative Law Judge of the National Labor Relations Board, it was found that we violated the Act in the respects set forth in his Decision, and to remedy these unfair labor practices, he has recommended that we advise you that: WE WILL NOT coercively question any employee regarding his own or other employees ' lawful union activity. WE WILL NOT threaten any employee that he or she will suffer the loss of any existing benefits or conditions of employment or will be treated less favorably because of union activity. WE WILL NOT spy on the union activities of our employees nor create among our employees the impression that we are engaging in surveillance of their union activities. WE WILL NOT instigate, initiate, or circulate an antiumon petition among our employees or solicit our employees to sign an antiunion petition, or assist in instigating, initiating, circulating, or soliciting signa- tures to such a petition among our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of his or her right to join or assist Transportation Employees Association a/w District 2, MEBA, AFL-CIO, or any other labor organization to bargain collectively through their representatives, or to engage in other concerted activity, or to refrain from such activity, except as such right may be affected by some agreement as provided in Section 8(a)(3) of the Act. WE WILL offer to Benjamin Miles, Jose King, Jr., and Pat Warren immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without prejudice to their seniority and other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimi- nation against them. All our employees are free to support or to become or remain members of Transportation Employees Association a/w District 2, MEBA, AFL-CIO, or any other labor organization, or to refrain from such activity, subject to Section 8(a)(3) of the Act. Dated By QUALITY TRANSPORT, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Plaza Tower, Suite 2700, 1001 Howard Avenue, New Orleans, Louisiana, 70113, Telephone 504-527-6361.