Bankers Dispatch Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bankers Dispatch Corporation and Walter Snook and Alvin Orr. Cases 19-CA-8745 and 19-CA-8829 November 4, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On July 6, 1977, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, Charging Party Snook filed exceptions and a supporting brief. Respondent filed objections to the exceptions filed by Charging Party Snook and a brief in support of its objections and 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, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).: 3 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 the Respondent, Bankers Dis- patch Corporation, Boise, Idaho, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order except that the attached notice is substituted for that of the Administrative Law Judge. Respondent's objections to the filing of exceptions by Charging Party Snook are without merit. 2 Charging Party Snook has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dri' Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A 3. 1951). We have carefully examined the record and find no basis for reversing his findings. In adopting the Administrative Law Judge's findings, we do not rely on his observations in fn. 5 of his Decision. : See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which participating parties had a chance to give evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause. WE WILL NOT in any other manner interfere with, restrain, or coerce employees with respect to these rights. WE WILL NOT discharge or otherwise discrimi- nate against any employee for engaging in activities of a concerted nature or on behalf of the Union. WE WILL offer Alvin "Red" Orr full reinstate- ment to his former or substantially equivalent position with full backpay plus interest. BAKERS DISPATCH CORPORATION DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This matter was heard by me in Boise, Idaho, on April 5, 6, and 7, 1977. The charge in Case 19-CA-8745 was filed by Snook on July 19, 1976, and was served on Respondent by registered mail on or about the same day.' The charge in Case 19-CA-8829 was filed by Orr on August 18 and was served on Respondent by registered mail on or about the same day. Thereafter, on September 16, an order consoli- dating cases and a consolidated complaint was issued by the Regional Director for Region 19 alleging that Bankers I The relevant events associated with the alleged wrongful terminations occurred in the year 1976. thus all dates shown hereinafter which do not carry the indication of a year will reler to the calendar y)ear of 1976. 233 NLRB No. 54 300 BANKERS DISPATCH CORPORATION Dispatch Corporation (herein Respondent) had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein Act). Allegedly, Walter Snook and Alvin Orr were discharged because they opposed the Union's labor contract proposal and because of their participation in other protected concerted activities.2 On February 18, 1977, pursuant to another charge by an individual, a new complaint was issued against the Respondent (Case 19-CA-9129). On the same date, an order was issued consolidating the new complaint with the complaint previously issued on September 16. On March 28, 1977, the Regional Director issued an order severing the most recent case (Case 19-CA-9129) from the previ- ously issued consolidated complaint, indicating that the parties had adjusted the matter raised in said case and the Charging Party had filed a withdrawal request. At the hearing the General Counsel moved to add an amendment to the consolidated complaint in Case 19-CA- 8745 alleging Respondent to have interrogated employees about their union activities on July 10 and during the month of July having created the impression of surveil- lance of employees' union activities. Over objections of the Respondent's counsel, the motion to amend the complaint was granted. Respondent's answer admitted the discharge of Walter Snook and Alvin Orr, but denied that in doing so it was illegally motivated in violation of the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Respondent. Upon the entire record of the case, and my observations of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 3 I. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a State of Illinois corporation with an office and place of business located in Boise, Idaho. Respondent is engaged in the business of transporting banking documents, audit and accounting media, and other high-priority data requiring rapid transmission from one location to another. During the past 12 months, which period is representative of all times material herein, Respondent performed services for its customers located outside the State of Illinois valued in excess of $50,000. During the same period of time Respondent, in the course and conduct of its business operations, performed services for its customers valued in excess of $500,000. On the basis of this admitted financial data I find Respondent to be, and at all times material 2 While this language is taken directly from the complaint I'm not sure it has been correctly phrased. There was some evidence indicating "complain- ing" by union members regarding the company proposals dunng negotia- tions, but no evidence to indicate the employees were "unhappy" with the Union's proposals. I The facts found herein are based on the record as a whole and on my observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N. L. R. B. v. Walton Manutarcturing Compan,y & loganville Pants herein to have been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The General Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 483, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (herein called the Union), is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. itI. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues Basically the only issue we are called on to resolve-as so frequently happens in this type of case-is one of perceiving from the conflicting and garbled testimony just what motivated Respondent in the discharge of Walter Snook and Alvin Orr. B. The Background Setting and Pre-lO(b) Period Activity Harry Emigh began his employment with Respondent in October 1964 and was terminated on December 5, 1975. At the time of his termination he was regional manager for the State of Idaho. On October 5, 1970, he hired his daughter, Jeanette Emigh, as a secretary and in the spring of 1972 she was promoted to operations manager. Until the summer of 1975, the State of Idaho seemed to have been excluded from the western zone and the Emighs apparently reported directly to Herb Bergman, who was president of the Company and regional zone manager for the State of Idaho.4 In June or July 1975 the employees started discussing the desirability of forming a union. This was a small operation, the total work force consisting of 11 drivers and 2 office personnel. There is little doubt from the testimony of Harry Emigh, Jeanette Emigh, Jolene Poe, Roxana Nash, Walter Snook, and Red Orr that during this period conversations regarding the Union were frequent .among all of the employees including the Emighs, who were in charge. It was a daily topic of conversation over the morning cup of coffee with no one being too concerned about expressing their feelings freely. The employees, as well as the Emighs, knew that Walter Snook, Alvin "Red" Orr, Carl Mills, and Bob Bacon were outspoken supporters of the Union. Jeanette Emigh's testimony makes it rather clear that for a period of time during the summer of 1975 neither she nor her father were certain as to who was in charge of the Idaho office. They were visited by Warren Wallin, vice Company, 369 U.S. 404. 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited. either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in light of the entire record. 4 Although not necessarily relevant or material to this proceeding, it became apparent during the course of the hearing that, during the critical period of union organizing of the Idaho drivers, there was also a certain amount of higher-level corporate "politics" taking place. Bergman is no longer with the Company. 301 DECISIONS OF NATIONAL LABOR RELATIONS BOARD president and general counsel of the Respondent, Don Barclay, who occupied a management position with one of the offices in Canada but who also appeared to have had some expertise in labor relations, as well as Richard Ashby, and received conflicting instructions. Regardless of who had authority, Jeanette Emigh testified that Ashby-who certainly assumed control over Idaho sometime in the late summer of 1975-told her that the Company would get rid of Bud Snook, Red Orr, Bob Bacon, and possibly Carl Mills by writing up everything no matter how minor. Jeanette Emigh further testified that it had been their custom to notify drivers of their mistakes but that Ashby told her that immediately after negotia- tions, they would start having the drivers sign the statements or reprimands. Jeanette Emigh said that Ashby returned to Idaho on or about September 11, 1975, and there she and Jolene Poe had a conversation at the Downtowner Motel with Ashby and Bill Fitzgerald, the national operations manager for Bankers Dispatch, during which Ashby repeated if the Union went in that we would get rid of all the drivers that voted the Union in, that we would do this by writing them up. The names of Red Orr, Carl Mills, Bob Bacon, and Snook again were mentioned. According to Jeanette Emigh, the necessity of writing everyone up and then being able to get rid of the drivers that voted the Union in was again repeated by Ashby during a meeting the latter part of October and again in November. Under cross-examination Jeanette Emigh testified that she was familiar with the Company's rules and regulations which call for a reprimand following the first violation, a layoff of I to 3 days following a second reprimand, and the third offense called for termination (see Resp. Exh. 5). Jeanette Emigh also testified that during the last 5 months of her employment with Respondent, it was necessary to reprimand Alvin Orr and Walter Snook between 10 and 15 times and that in her opinion Walter Snook should have been discharged; it was debatable as to whether or not Alvin "Red" Orr should have been discharged. She said this was not done because she had been told not to discharge anyone until after the labor negotiations were completed. Harry Emigh supported the testimony of his daughter and stated that he had heard Ashby say, "We will fire all the drivers that voted the Union in," and when asked how it was to be done Ashby said, "You're going to write up all their mistakes and after so many mistakes you'll be able to get rid of them." On cross-examination Harry Emigh testified that Bud Snook, Red Orr, Carl Mills, and Bob Bacon made most of the mistakes that were made during the union organizational period.5 Jolene Poe testified and stated that the primary purpose of the meeting which she and Jeanette Emigh had with Ashby and Fitzgerald at the Downtowner Motel on or about September 11, 1975, was to give her an opportunity to try and convince Ashby that Jeanette Emigh had not been responsible for the union organization. She further 5 It is a truism that during the period of union organization, where there are sharply divided opinions, mistakes, and accidents occur more frequent- ly.f See G. C. Exh. 3 which is dated July 7, 1976. There was testimony from testified that during this conversation Ashby indicated that it would be possible to get rid of any of the troublemakers by carefully writing up all of their mistakes. C. The Relevant Evidence Roxana Nash testified that she had been employed by Respondent from December 10, 1975, until terminated May 18, 1976. She testified that Mark Odom was the regional manager during a portion of her employment and on one occasion when Wallin and Mark Odom were talking to Dick Ashby in a telephone conversation, she heard them tell Ashby, "that before anything could be done they were going to have to get rid of the drivers that were causing problems, that were for the Union." When asked if any names were mentioned in this conversation, she replied-Red Orr, Bud Snook, and Louis Kelly. Nash also testified to an occasion believed to have been in April 1976 when she was engaged in a conversation with Dave Airhart and Clarence Batley "about general things and I asked Dave Airhart if he had been to the union meeting that weekend that the drivers were having I think in Twin Falls. And he said, no. And Clarence said that they were having problems with drivers and that they were going to have to get rid of them and he named Red Orr and Bud Snook." On cross-examination Nash acknowledged that she must have typed at least 10 letters regarding mistakes to Walter Snook during the 5 months that she was employed by Respondent. Walter Snook testified that he was first employed by Respondent in March 1968 and remained until his discharge on July 10, 1976. He testified that in July 1975 he had become interested in the Union, signed an authoriza- tion card, and attended all the union meetings along with some of the other drivers. After the Union was selected and negotiations were in process, Snook testified that he had expressed his unhappiness because Respondent was not offering enough money. On July 13 Snook testified that he was delivered a letter by Dave Airhart advising of his discharge and setting forth the reasons therefor. 6 The remainder of Snook's direct testimony was largely an explanation of the reasons listed in the termination letter which amounted to the witness disavowing responsibility for most of the mistakes listed. However, on cross-examination Snook was shown Respondent's Exhibit 18 which was a memorandum dated April 12, 1976, from Batley to Bud Snook relating to failure to make pickups and delivery on April 7, 8, and 9. Witness was also shown and identified Respondent's Exhibit 8, which was a memorandum from the office secretary to Bud Snook dated May 24, 1976, concerning his failure to properly identify a bill of lading. Witness also acknowl- edged having received Respondent's Exhibit 9 which was dated May 25, 1976, and was a memorandum from the office secretary to Bud Snook relative to his failure to attach a bill of lading. Snook acknowledged receiving a memorandum dated May 25, 1976, from Clarence Batley relative to his failure to make pickups and delivery from both Clarence Bailey and Roy Corson that Corson was given a copy of Snook's termination letter immediately after it was typed and Corson orally advised Snook of his termination at a union meeting held on July 10. 302 BANKERS DISPATCH CORPORATION Gem State Paper on May 20 and 24. Snook also identified Respondent's Exhibit 12, which was a memorandum from Dave Airhart, the operations manager, dated June 15, 1976, to Bud Snook calling attention to his misdelivery of a bank package. Although Snook disclaimed responsibility he testified that he never bothered to respond to the memorandum. Snook identified Respondent's Exhibit 13, which was a memorandum dated June 30, 1976, calling attention to his failure to pick up a package at Kimball's Electronics in Pocatello. Snook acknowledged that Batley had also called him regarding this particular memorandum, but that he was not too familiar with all of the stops in Pocatello. Snook acknowledged having received Respon- dent's Exhibit 14, which was a memorandum dated July 1, 1976, from Dave Airhart advising him that the deadline for the First Security in Rexsburg was 4:30 p.m. Snook also identified and acknowledged having received two other memorandums, one dated July 1 and one dated July 6, 1976 (see Resp. Exhs. 15 and 17). Snook acknowledged that he had received a great many memorandums pointing out mistakes during the past 6 months of his employment. On redirect examination Snook testified that he had no knowledge that he was supposed to supply route sheets to the Company and that he was never reprimanded for failing to notify Respondent in Boise of his route. Snook testified that his regular job with Respondent averaged between 10 and 13 hours per day and he acknowledged having a second job from May 5, 1976, until he was terminated, on which he worked an additional 4 hours per day. Alvin "Red" Orr testified that he was first employed as a driver for Respondent on July I, 1969, and worked until his discharge on July 16. Orr said that he signed a union authorization card and solicited other employees to sign union authorization cards, and attended all of the union meetings. Orr said that after he had completed his work on July 16 he was called into the office and handed a letter of termination (G. C. Exh. 16). In summary, the letter of termination indicates that he was being discharged because of (I) a threat he had made on May 5, 1976, to the airplane pilot for Respondent; (2) dragging his feet in the perfor- mance of his route, which was regarded as timecard falsification; and (3) causing dissention among the drivers by talking-up a wildcat strike. Orr acknowledged that after a union meeting when in the company of Bud Snook, Louis Kelly, and possibly Joe Smith, they were talking about the possibility of shutting the Company down and when someone commented about the airplane still being able to fly, he had said, "I guess we could knock him [the pilot] in the head with a pipe wrench. And then it went on to, well, we could cut an aileron cable, then it couldn't even fly." Somehow this threat was learned of by the Company and Orr said that he discussed the situation with Carl Mills when Mills was the operation manager. According to Orr's testimony, he also discussed the situation with Vic Spears, the pilot involved, and that seemed to end the matter. Orr testified that after he returned from his vacation on July 12 he was told by some of the customers that the I Mills filed charges with the National Labor Relations Board regarding his termination. These charges were dismissed. vacation relief drivers had been slower in servicing his route. Additionally, the stipulation entered into by all parties at the hearing regarding the time records of Orr and the timecards of the employees who substituted for him during his vacation, fail to support an accusation of malingering or falsification of time records by Orr. Moreover, Respondent counsel's brief conceded that the facts stipulated to as a result of the study of the timecards fail to support any charge of timecard falsification on the part of Orr. As to the third reason listed in Orr's letter of termination, Roy Corson testified that he advised Batley following the union meeting held on July 10 that he (Batley) might have problems on his hands because a number of the employees were talking in terms of not showing up for work. However, when Batley called Orr and asked if he intended to report for work on July 12 because he had heard rumors of a wildcat strike, there is no conflict in the record-Orr told Batley he would report for work and did continue to report for work until discharge. Carl Mills testified that he started as a driver on February 12, 1968, and in late November or early December 1975 he was named acting regional manager and served in that capacity until the following February. In February, Mark Odom was named regional manager and Mills stayed and worked in the office. Within a week or two after Batley arrived in Idaho (the latter part of March) Odom left and Batley became the regional manager while Mills continued in the office and worked as operations manager until sometime in May. After that, he returned as a driver and continued as a driver until July 16, at which time he was terminated.7 On cross-examination Mills testified that Mark Odom had started some route sheets but no one paid much attention to them and the only way a new driver learned the routes was by riding with a regular driver. He testified that after he had talked to "Red" Orr regarding Orr's threat to the pilot, he regarded the matter as a joke, however, Vic Spears, the pilot, was very much worried about the threat. Mills testified that during the time that he was in the office he never heard Batley express his feelings regarding the Union nor did he ever hear Batley threaten to discharge either Orr or Snook or any of the other drivers. Mills said that he was never instructed to carefully write up all mistakes made by employees so that they could be utilized for the purpose of discharging them. Mills said that in one conversation with Batley he (Batley) said: "It seems like he told me that Red Orr is an instigator and he hinted that he thought that some of the mistakes were due to union activity." When Mills refused to relate to Batley the threat which Orr had made regarding the pilot, he heard Batley say, "I'll fire him [Orr] right now if he did." Dave Airhart was called by the Respondent as a witness and testified that he was first employed as a part-time driver in July 1974 and remained employed with Respon- dent until the end of July 1976. In February 1976 he became operations manager. Airhart testified that between May and July 8 it was necessary for him to send several memos to Snook because of mistakes being made and that 303 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was not his custom to send a similar memo to all of the employees in the eastern part of the State. (This was in direct contradiction to Snook's testimony which was to the effect that no one in the office knew the routes of the eastern drivers and therefore, when a mistake was made, the same memorandum was sent to each one of them.) Airhart was of the opinion that Snook was responsible for making more mistakes than any of the other employees. Airhart acknowledged having delivered the letter of termination to Snook and said, "I felt badly about it because he [Snook ] had put in seven or eight years with the Company, but I felt like in order for the Company to be a success and to operate efficiently we needed to cut out the people who were, indeed, making mistakes continually." On cross-examination Airhart acknowledged that he had full knowledge of Snook and Orr being active in the Union because during the organizational campaign he was a driver and participated in the election. Airhart said that during the time that he worked in the office for Bankers Dispatch he never heard Clarence Batley express animosity or opposition toward the Union. He said the only person he ever heard express the opinion that prounion drivers would be discharged was Jeanette Emigh. Airhart testified that an employee named Arnold Eldridge was discharged because of continuous mistakes and he [Airhart] was of the opinion that it was just standard policy under a union contract that when a driver made mistakes and received warnings that thereafter he would be discharged. Richard Ashby testified that he had started with the Respondent Company as a driver, was promoted to supervisor, assistant regional manager, regional manager, and currently is a senior vice president and the western zone manager. The western zone is comprised of the States of Missouri, Kansas, Minnesota, Nebraska, Idaho, Utah, and Colorado. Ashby testified that the State of Idaho had been excluded from the western zone and was under the direct supervision of Herb Bergman, the company presi- dent, until June or July 1975, at which time Idaho was assigned to Ashby. Ashby testified that Respondent has approximately 70 offices and that approximately one-half of these are unionized. Ashby has been directly involved with two offices that are unionized. Ashby testified that he never told Jeanette Emigh, Jolene Poe, or Harry Emigh that there were ways to get rid of prounion drivers or instructed them to get rid of prounion drivers or any other statements to that effect. Ashby said what he told the Emighs was, "Now that you're faced with the Union you're going to have to clean up your act. You're going to have to reprimand drivers. You can't walk up anymore and terminate a driver because you don't like him. You're going to have to get the Union to agree with you that this man needs to be discharged, and the only way you can do that is to write reprimands when he makes a mistake or when he does something wrong. You have to have a record on him or the Union will not allow you to terminate the man. That is what I told them." Ashby said there was a company policy of notifying employees in writing of mistakes that were made. According to Ashby, from the time he took over in I Ashby also included Kaufmann, Mills, Edwards, and White as other interim regional managers dunng this period of turmoil, who were instructed to write up drivers for their mistakes. July 1975 until December 1975, when the Emighs were discharged, that policy was not being enforced, but after January 1976 it was enforced. According to Ashby, the meeting with Jeanette Emigh, Jolene Poe, and Bill Fitzgerald was never intended but appeared to have been surreptitiously arranged by Harry Emigh (it should be recalled that Jeanette Emigh and Jolene Poe had testified that they met with Ashby and Fitzgerald at the Downtowner Motel in Boise on or about September 11, 1975). Ashby said he and Fitzgerald arrived in Boise for a meeting with Harry Emigh, who picked them up at the Boise Airport and after making an excuse concerning a prior appointment, he dropped them off at the Ramada Inn, where they (Ashby and Fitzgerald) found Jeanette Emigh and Jolene Poe waiting in the lobby. Ashby said he could not recall the exact conversation but, as best he could remember, both girls were concerned with informing him that Harry Emigh was doing a good job and that he (Ashby) was treating Harry badly. (It should be remembered that Jolene Poe testified that her main concern at this meeting was to convince Ashby and Fitzgerald that Jeanette Emigh was doing a good job and was not responsible for the Union.) Ashby acknowledged that he instructed the Emighs, as well as Odom and Batley, that they were to write up drivers for their mistakes,8 but denied that he ever instructed anyone in management not to fire employees during the period of labor negotiations. He suggested that he had told Harry Emigh not to terminate any employees without just cause. Ashby stated that the work rules for the entire company are the same at all locations, whether the operation is unionized or nonunion, but that he did not feel these rules were enforced until after January of 1976. On cross-examination Ashby acknowledged that during his first visit to Boise, Idaho, he had had several conversations with Bob Bacon and he was certain that during that period of time the Union was discussed. Ashby also acknowledged that at the August 1975 meeting he had solicited the employees' gripes and complaints concerning their working conditions. (The union conversations with Bob Bacon and the solicitation of employees gripes and grievances at the August 1975 employee meeting both occurred nearly I year before the charge or charges were filed in this consolidated case.) In response to a cross- examination question, Ashby said that his only explanation as to why the work rules were not enforced between July and December 1975 was Harry Emigh's reluctance to do anything about it, but he (Emigh) did complain about the errors that several employees continued to make. Roy Corson testified that he was the Teamsters business agent for Local 483 and that Clarence Batley had discussed with him the threat made by Orr on the airplane pilot of Respondent. Corson identified Respondent's Exhibit 19, a letter sent to him by Victor Spears regarding the threat Red Orr had made on the person of Spears and/or the Respondent's plane. It was Corson's testimony that he remembered Batley advising him that as soon as he (Batley) got confirmation from Chicago, he was going to have to terminate Red Orr because of the threat that had 304 BANKERS DISPATCH CORPORATION been made. Corson said the company rules and regulations regarding the conduct of drivers were discussed at the negotiations and incorporated in the union contract without major modification or change.9 Corson testified that after the contract was signed on June 5 he began receiving copies of memorandums or reprimands directed to the employees. Corson specifically recalled having received copies of memorandums sent to Snook, Orr, Louis Kelly, and Mills as well as Arnold Eldridge. Corson acknowledged telling Snook that because he (Snook) had received so many warning letters regarding mistakes, the Company felt they had to let him go-to terminate him. Corson acknowledged having told Snook that "the Company set him up, shot him down and you [Snook] couldn't do anything about it." Clarence Batley testified that he first came to Boise, Idaho, as operations manager in March 1976 after the Union had been voted in and he had nothing to do with the organizational campaign. Batley said that at a meeting in March 1976 shortly after his arrival he was introduced to all of the employees at which time Odom, the outgoing regional manager, made a speech about the company rules and the records required by the Company to be made out daily. Corson testified that some drivers regularly made out their route sheets and other drivers, among them Snook and Orr, refused to make out the route slips. Batley testified that he talked to Snook in April regarding the necessity of completing the route sheet forms, at which time Snook promised that he would do so but failed to deliver. Respondent's Exhibit 20 was identified as a master route sheet that he (Batley) had one of the other drivers make out by riding with Bud Snook because Snook refused to make out the route sheet. Batley denied ever having been instructed by any of his superiors at Bankers Dispatch to terminate union drivers. He said that the decisions to terminate Snook and Orr were his own and that participation by those individuals in the Union had absolutely nothing to do with their discharge. Batley explained that he was much disturbed by the threat which had been made by Orr against the company pilot and/or airplane but that the discharge of Orr was delayed because he wanted a full investigation and "another reason I did not, was because at this particular time we was [sic] in serious union negotiations trying to get a union contract negotiated, trying to bring peace and harmony amongst the administration and the drivers and at that time I did not feel that it was the wisest thing to do." Batley denied that he ever told Corson that he was deferring the discharge of Orr until he heard from Chicago, and denied that Chicago had any knowledge of the entire affair. Batley said that Ashby was in charge of negotiations and that he (Batley) did not need any further authority to discharge an individual. 9 There was a sharp conflict between the testimony of Smith and Corson on one hand, and Batley and Ashby on the other, regarding the removal of prior memorandums or reprimands from an employee's file. This conflict does not become critical in this dispute. If this were an arbitration heanng the issue would be cntical, but in this dispute we are primarily concerned with the motivation factor precipitating the discharge: i.e.. was it because of employee mistakes being made or was it because of the employees' protected union or concerted rghts. Batley said he had a conversation with Roy Corson on or about July 10 during which he was advised by Corson that there had been talk among some of Respondent's employ- ees of a wildcat strike. Following this conversation with Corson, Batley contacted "Red" Orr and asked him if he intended to report for work on the following Monday because he had heard rumors of a wildcat strike. Orr advised that he was going to report for work and he did report for work as scheduled until discharged on July 16. When Batley was questioned as to why he delayed for 6 weeks after the union negotiations were completed (June 5) before discharging Orr (July 15), he gave the following response: At that particular time, your Honor, the reason it took me six weeks to make up my mind is the fact, if I can use the word, the fact is that other things was [sic] culminated. At this time I was having quite a few problems with the other side of the eastern side of the state with my operations manager and me running back and forth. I did not feel at this time that I wanted to go through anything else while I had so many problems going on already. I think the real possibility in back of my mind was that I would get everything straightened out, I would be able to settle everything. I think the real thing that caused me at this time, at the end of weeks, to change my mind was the threat of not knowing whether tomorrow was going to have my drivers at work or not or whether they was going to be out on a wildcat strike. Analysis o1 While I regard Jeanette Emigh as a competent and articulate witness, nevertheless it was equally apparent that she carried a certain bitterness and resentment against this particular respondent because both she and her father had been discharged. Without attempting to pass judgment on the discharges of the Emighs (their resentment or bitterness may have been entirely justified but it unmistakably warped her testimony), I am more inclined to believe Airhart's statement who testified that "the only person he ever heard express that prounion drivers would be fired was Jeanette Emigh." Because of the small size of the Idaho office of Respondent and because of the acknowl- edged free expression by all employees regarding their feelings toward the Union, I have no doubt that manage- ment pretty well knew which employees were prounion and which were opposed to the Union. However, based on all the testimony and with full knowledge that witnesses- particularly in heated labor disputed matters-are inclined to jump to unwarranted conclusions and to substitute words, I am more inclined to feel that Ashby's early references to troublemakers (meaning employees who were constantly making mistakes) was wrongfully interpreted as 'o Lee Porter and Shannon Corson were called by the General Counsel and Roberta Groesbeck was called by the Respondent. I have not set forth thieir bnef testimony herein because these employees were employed after Snook and Orr were discharged and their testimony did not directly relate to Snook or Orr, but tended to establish or deny union animus. Even if the events the General Counsel sought to establish by these witnesses (and the Respondent to deny) were true, it would not, in my opinion, be meaningful or probative of the motivating cause for the discharges of Orr and Snook. 305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning only prounion sympathizers. To summarize, I believe Ashby's testimony to be more accurate in that he did tell the Emighs that they were going to have to face up to the Union and would have to have written, supportable reasons before the Union would permit a discharge. In any event, all of the testimony of the Emighs as well as Jolene Poe related to a period of time almost 1 year before the discharges and can only be used as background evidence, and not as a basis for finding a violation in the instant cases. The only evidence in the record which might be used to show union animus within the 10(b) period came from Roxana Nash who testified that she overheard a conversa- tion in which Ed Wallin and Mark Odom told Ashby, "before anything could be done they were going to have to get rid of the drivers that were causing problems, that were for the Union." During that conversation "Red" Orr and Bud Snook's names were mentioned, she said. Nash was not a party to this conversation but merely overheard a portion of one end of the telephone conversation. Nash acknowledged a total lack of understanding of union affairs and under the circumstances of only overhearing a portion of one end of a telephone conversation I cannot give her testimony great weight or regard it as significantly probative of the issues at hand. The ineffectiveness of her testimony is marked by the fact that neither Wallin nor Odom worked in the Idaho office at the time of the discharge or were parties to the decision to discharge either Orr or Snook. Dave Airhart-whom I regard as perhaps the most candid and honest witness that appeared before me in this matter-testified that he never heard Clarence Batley express animosity or opposition toward the Union, but to the contrary seemed to welcome the Union as a "partner" with whom he would be able to work in order to get rid of those employees who were not doing a good job. Carl Mills who had been active in the union organiza- tional campaign, but who was later promoted to regional manager and worked as operations manager under Batley, testified that he had never heard Batley (I) express antiunion feelings; (2) threaten to discharge Orr, Snook, or any of the other drivers; nor (3) had he (Mills) ever been instructed to write up employees for their mistakes so that it could be utilized for the purpose of discharging the employees. Moreover, Mills certainly had no reason to testify in a manner that would be helpful to the Respon- dent in that he was of the opinion that he had been wrongfully discharged by Respondent. It would appear that while Respondent may not have welcomed the Union in its Idaho operation, nevertheless having lost the election they were large enough and had unions in enough other locations to realize that it was not an incurable disease but could be lived with and might even become an ally in improving the quality of its employees. The evidence seems overwhelming and I am convinced that Walter Snook was discharged by Clarence Batley because of his numerous and consistent mistakes and refusal to follow established reporting procedures. Even Jeanette Emigh, whom I have indicated earlier certainly did not intend to do or say anything that would be helpful to the Company, was of the opinion that Snook should have been discharged in 1975 because of his numerous and frequent mistakes. As found earlier herein, Dave Airhart appeared to be a totally honest and candid witness with no inherent prejudices and he expressed the opinion that the frequency of Snook's mistakes had become intolerable. While there is no doubt that Respondent was well aware of Snook's interest and activity on behalf of the Union, participation in union activities did not insulate him from discharge. H. L Meyer Company, Inc., 426 F.2d 1090, 1094 (C.A. 8, 1970); N.L.R.B. v. Hanes Hosiery Division, Hanes Corporation, 413 F.2d 457, 458 (C.A. 4, 1969). Snook's mistakes were too numerous over a substantial period of time to be brushed aside lightly. He acknowledged the receipt of memorandums which he ignored, he refused to complete route sheets, and I seriously question the accuracy of much of his testimony. He was adroit at making excuses. I am convinced from all the testimony that he was an incompetent employee during the last year of his employment. I shall recommend dismissal of the complaint insofar as a wrongful discharge of Walter Snook is concerned. The evidence regarding Alvin Orr, however, is quite different. While there was some evidence and testimony indicating that Orr had made several mistakes requiring a memorandum, or notice of correction, nevertheless this was not listed as a reason for his termination (see G. C. Exh. 16). Certainly the threat which Orr admittedly made regarding the airplane pilot and/or the airplane itself warranted discharge. I also think some delay for purposes of a thorough investigation might be expected and should be permitted. I can also understand the practicality of not wanting to move too hastily in the discharge of Orr with the labor negotiations pending. However I cannot under- stand the vague and imprecise reason for delaying the discharge of Orr after the labor negotiations were conclud- ed on June 5. The long undue delay between June 5 and July 16 when Orr was actually discharged amounted to condonation and I am convinced this reason was pretextu- al. The second reason advanced by Batley as to why Orr was discharged was admittedly not proven at the hearing. Mere conversation about a wildcat strike which never occurred is much too tenuous to warrant discharge. Had an actual illegal strike (perhaps better phrased as a breach-of- contract strike) actually occurred it would have provided a sound basis for discharge. However, Orr continued to report for work each day until discharged. I am convinced that the widely differing and weak excuses, set forth in the discharge letter, provide a reasonable inference that Orr was discharged because he was a known union member who frequently and freely expressed opposition to the Company's policies. A discharge motivated by an employ- ee's union activities violates Section 8(a)(3) and (1) of the Act. American Ship Building Co., 380 U.S. 300 (1965). Even if a legitimate reason may exist for a discharge it does not negate a violation of the Act if the discharge is actually for a different and illegal reason. N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229 (C.A. 8, 1966). I shall find the discharge of Alvin Orr to have been motivated by his union activities and therefore violative of Section 8(a)(3) and (1) of the Act. 306 BANKERS DISPATCH CORPORATION The amendments to the complaint permitted at the hearing relating to interrogation on July 10 and creating the impression of surveillance of the employees' union activities are without merit and shall be dismissed. The only evidence relating to interrogation had to do with Batley's call to the employees after he had been informed by Roy Corson that some of the employees were talking about a possible wildcat strike. Batley needed to have a full complement of employees report for work, so he called each individual and in asking if they intended to report for work he indicated that he was calling because he had received word of talk regarding a wildcat strike. There is no evidence that these telephone conversations to the various employees interfered with, restrained, or coerced the employees in the exercise of their Section 7 rights in any manner. Nor does it seem reasonable that the ordinary reasonable person would be coerced by such a question from his boss. Nor can I interpret this conduct as either an actual surveillance or creating the impression of a surveil- lance. Clarence Batley's information regarding the possibil- ity of a wildcat strike had come directly from Roy Corson, undoubtedly in the interest of avoiding a complete disruption of business. There was nothing unlawful in Clarence Batley's efforts to make certain that he had a full crew to carry on the normal business. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The discharge of Alvin "Red" Orr on July 16, 1976, was a violation of Section 8(aX 3) and (I) of the Act. 4. All other allegations contained in the complaint are found to be without merit and are to be dismissed. THE REMEDY Having found that Respondent engaged in and is engaging in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Respondent having unlawfully dis- charged Alvin "Red" Orr in violation of Section 8(aX3) and (I) of the Act it will be recommended that Respondent offer him immediate and full reinstatement to his former, or substantially equivalent, position without prejudice to his seniority or other rights and privileges and to make him whole for any loss of earnings or any other monetary losses he may have suffered as a result of such discrimination from the date of his discharge until reinstated. I 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. Any backpay will be determined in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER l The Respondent, Bankers Dispatch Corporation, Boise, Idaho, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other terms and conditions of their employment in order to discourage membership in any labor organization. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary in order to effectuate the policies of the Act: (a) Offer to Alvin "Red" Orr immediate and full reinstatement to the position formerly held by him or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges. (b) Make Alvin "Red" Orr whole for any loss of earnings he may have suffered by reason of Respondent's unlawful discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Perserve 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 data necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its place of business in Boise, Idaho, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 19, 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 by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 12 In the event that this 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." 307