Sharron Motor Lines, Inc.

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sharron Motor Lines, Inc. and William E. Beard. Case 10-CA-10506 October 10, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 17, 1974, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Sharron Motor Lines, Inc., Birmingham, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to over- rule 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 Dry 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 DECISION STATEMENT OF THE CASE PAUL BISGYER, Administrative Law Judge: This proceed- ing, with all the parties represented, was heard on April 4 and 5, 1974, in Birmingham, Alabama, on the complaint of the General Counsel issued on February 8, 1974,' and the answer of Sharron Motor Lines, Inc, herein called the Re- spondent or the Company. In issue are the questions i The complaint is based on a charge filed by William E Beard on De- cember 11, 1973, a copy of which was duly served on the Respondent by registered mail on the same day whether the Respondent, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended,2 dis- criminatorily discharged employee William E. Beard be- cause of his protected union and other concerted activities; and whether it violated Section 8(a)(1) of the Act by inter- rogating Beard concerning the union activities and sympa- thies of another employee. At the close of the hearing, the parties waived oral argument but thereafter submitted briefs in support of their respective positions Upon the entire record,3 and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Alabama corporation with an office and freight terminal in Birmingham, Alabama, is engaged in the interstate transportation of freight by motor carrier. It annually furnishes motor freight services valued in ex- cess of $50,000 directly to customers located outside Ala- bama. The Respondent admits, and I find, that it is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is conceded that Teamsters Local Union 612, affiliat- ed with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction, Questions Presented The Respondent operates six terminals in Alabama and Mississippi, of which only the Birmingham terminal is in- volved. In the course of its organizational campaign, the Union on June 28, 1973,° filed with the Board a petition for an election to represent the Respondent's Birmingham city 2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an employer ..to interfere with restrain, or coerce employees in the exercise of the rights guaranteed in section 7 " Insofar as pertinent, Sec 7 provides that "[e]mployees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection Sec 8(a)(3), with certain qualifications not material herein, prohibits an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage member- shp in any labor organization - In his brief, the General Counsel moved to correct the transcript of testimony by changing the word "lesson" on p 13, 13, to "election " No objection to the proposed correction has been received For this reason and the fact that the word "election" is indicated by the sense of Beard's testi- mony and conforms with his subsequent testimony given under cross-exam- ination (p 25, II 13-15), the motion is granted and the transcript is accord- mply corrected All dates refer to 1973 unless otherwise indicated 214 NLRB No. I SHARRON MOTOR LINES drivers and dockworkers, numbering some 16 employees (Case 10-RC-9681). On July 23, the parties agreed to a Stipulation for Certification Upon Consent Election, which the Regional Director approved The scheduled election was held on August 2, resulting in the Union's defeat by a vote of approximately 12 to 2 On August 10, these results were formally certified. There is no evidence that the Union remained on the scene following its election defeat. About 4 months later, the Respondent had a reduction in force due to a seasonal slack in business. Together with two other employees, William Eugene Beard, referred to in the record as Gene Beard, was terminated on December 5 under the circumstances related below Beard, who had been in the Company's employ since January 4 as a city driver, had actively solicited union authorization cards during the organizational drive and participated in the election as the Union's observer It is the General Counsel's position that the Respondent utilized the reduc- tion in force as the occasion to get rid of a union supporter. In any event, the General Counsel argues that, if not for that reason, Beard's discharge was motivated by his other protected concerted activity. The Respondent, on the other hand, insists that Beard's termination was prompted solely by legitimate business considerations. Also to be de- termined is the lawfulness of the Respondent's admitted interrogation of Beard concerning the union activities of Mike Sharron, the nephew of the Respondent's president. We turn to the evidence. B. The Evidence 1. The reduction in force; the asserted decision to terminate Beard There is no question that in the middle of November, as in prior years, the Respondent was experiencing a seasonal slack in business,5 requiring a cutback in the number of drivers and dockworkers in its employ. According to its president, D. J. Sharron, when this became apparent he assembled the employees 6 on the dock and informed them that the Company was overstaffed. He further testified that to meet this problem he told the employees that they had the option of taking turns to be off until business improved and thus avoid the termination of any employee ' or else that he would be obliged to discharge some of them. Not receiving any response to his proposition, Sharron testified that he inquired whether any employee preferred resign- ing 8 to being discharged. Evidently, no one accepted this alternative either. 5 The Respondent's president, D J Sharron, credibly testified without contradiction, that the slowest period for truck lines is from November 15 to the first part of the following March 6 Beard testified that he probably was on assignment at that time and that therefore he did not attend that meeting 7 Sharron testified that it was his policy to terminate excess employees rather than to lay them off temporarily because of the uncertainty of know- ing when they would be needed again However, despite termination he testified, he customarily recalls such employees for temporary part-time work, if they are available 8 Sharron testified that he usually gives an employee the choice of resigna- tion instead of discharge so as not to prejudice future employment, even though no stigma attaches to a layoff for economic reasons 9 Sharron testified that after this meeting he decided to terminate three or four employees but to leave it entirely to their supervisor, Dock Foreman Jack B. Robbins, to make the selection on the basis of the quality of their work per- formance He further testified that on November 26 he directed Robbins to submit to him a list of three or four employees to be the first ones to be terminated on the basis of job performance, without regard to seniority, in accor- dance with a memo 9 he thereupon handed to Robbins Sharron unequivocally denied discussing any individual employee with Robbins, although he (Sharron) was person- ally familiar with the work habits of the employees, includ- ing Beard whom he had known for 18 or 20 years, and although Robbins at this time had been in the Respondent's employ for approximately 7 weeks only. According to the testimony of Sharron and Robbins, the latter, in compliance with Sharron's instructions, there- upon prepared a list of 16 employees divided into three groups with the employees in group I being the poorest workers and the first ones recommended for termination. In that group were listed in that order employees Beard, Dickeson, Walker (also known as Kocomo), and Tyes. Sharron testified that, while he did not dictate the selection of these employees, he was in agreement with Robbins' designation. However, Sharron decided to terminate Beard, Dickeson, and Walker, but not Tyes, because the three employees were on the first shift on which most of the employees were employed while Tyes worked on an early shift. When questioned why Tyes' Job was not offered to Beard, an employee with greater seniority, Sharron testi- fied that Beard had once declined an assignment on that shift. Concerning his selection of Beard for discharge,10 Rob- bins testified that he relied on his personal observation of Beard's work performance and habits, as-well as informa- tion acquired from other drivers. Robbins, however, denied that he had conferred with Company President Sharron or other management officials in making his decision. Partic- ularizing the basis for his decision, Robbins testified that he had many complaints about Beard's use of profanity on customers' premises and in the presence of women. Yet, the only incident mentioned by Robbins had occurred at Harris Warehouse in July, which was about 3 months be- fore Robbins was employed by the Respondent. Beard readily admitted that Harris' superintendent once told him to control his language because the women in the office could hear him. Beard testified that he thereupon ex- pressed his regrets to the superintendent, explaining that he did not realize that he could be heard by the women. Beard further testified that he was not reprimanded by the Re- ' This memo, dated November 26 and signed by Sharron. read, as fol- lows Effective immediately, please arrange for lay-off of at least three employees in your department due to slack of business . In making this decision do not consider seniority or personalities but merely the quality of work done Carefully evaluate all employees be- fore making your final decision Thanks 15 Robbins also testified that he selected Dickeson for termination be- cause he was an elderly man who had physical and medical problems. had frequent absences, made many mistakes in his work, and was involved in wrecks Walker, according to Robbins, was selected because he had a drink- ing problem and lost much time from work on account of it 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent for this conduct and that, in fact, he returned to the Harris Warehouse several times after this episode to receive shipments. It also appears that the use of profanity by drivers is not uncommon at this warehouse, as well as at other customer locations and terminals. Another reason Robbins claimed for recommending Beard for termination was that he made mistakes. To sup- port this assertion, Robbins testified to an episode in June, about 3-1/2 months before Robbins entered the Respondent's employ, when Beard inadvertently left be- hind 19 cartons of paint on the dock of Indurall Coatings, Inc., which was part of the freight shipment he was sup- posed to pick up.i' However, the 19 cartons were recovered the next day without any loss to the Respondent. Robbins conceded that mistakes of this nature are not uncommon among the drivers. Indeed, the Respondent has a depart- ment under George Sexton, the freight claim agent, which handles approximately 100 claims a month for overages, shortages, and damages arising out of the Birmingham terminal's activities. Moreover, Robbins admitted that he had never discussed this Indurall incident with Beard. A third incident to which Robbins testified as contribut- ing to his decision to terminate Beard involved Beard's fail- ure to obtain from Bowman Transportation Company a notation of an exception on a bill of lading sufficient to relieve the Respondent of liability for damaged goods re- ceived by the Respondent on interchange for shipment to a consignee. This incident occurred during the first week of Robbins' employment and resulted in an argument be- tween Beard and Sexton as to who was responsible for the wording of the exception noted on the bill which Beard had obtained from Bowman Transportation.12 Sexton sub- sequently secured a corrected exception and no problem of the Respondent's liability for the damaged goods ever de- veloped. It also appears that Beard was not disciplined or otherwise threatened with discharge by management for his alleged delinquency. As for Beard's other shortcomings which assertedly prompted Robbins to select him for discharge, Robbins testified that Beard was unable to get along with his fellow employees about whom he had nothing good to say. When asked under recross-examination to specify the respects in which Beard was having trouble with the employees and their identity, Robbins testified to uncomplimentary terms in which Beard referred to an employee, Johnnie Stewart, who was subsequently discharged on account of the large number of mistakes he regularly made. Robbins also testi- fied that he overheard Beard tell an employee that he was going to whip employee Buddy Langley. Robbins conced- ed that he was not aware of the cause of the friction be- tween those two employees. Robbins also testified that Beard did not have any use for a third employee, Jacob Wright. On the other hand, it appears from Beard's testi- mony that Langley was the only employee he disliked. Finally, Robbins testified that he found fault with Beard's standing around and talking while other employees 1' In the course of his testimony, Robbins stated that he heard that Beard once left some cigarettes behind at the Harris Warehouse 12 In view of my ultimate determination, the testimonial conflict relating to this subject need not be resolved were preparing shipments of merchandise taken from the pickup trucks. However, Robbins testified, he did not rep- nmand Beard but simply asked him to help, as he had done with respect to other employees when they failed to participate in such work. From a careful evaluation of all the evidence, I find the Respondent's testimony concerning Beard's asserted -in- adequacies grossly exaggerated It is clear that, whatever they might have been, Beard's shortcomings were not pre- viously regarded by the Respondent to be serious or excep- tional enough to warrant a reprimand or discipline, much less discharge. As I later find, I similarly doubt that these shortcomings significantly contributed, if they did at all, to his selection for termination in the subsequent economic reduction in force. 2. Beard's discharge On Tuesday morning, November 27, Sharron summoned Beard to his office. According to Beard, the following tran- spired: Sharron opened the conversation by telling Beard that he could do both of them a favor by resigning In reply, Beard stated that it was too close to Christmas for him to quit at this time and requested Sharron to let him work until after Christmas when they would discuss the matter further. Sharron was amenable to the suggestion. When Sharron commented that Beard could not get along with the men, Beard disagreed conceding, however, that Buddy Langley was the only one whom he disliked. Shar- ron then remarked that he did not want Beard in the termi- nal because he was unhappy working there. Beard denied that he was unhappy in his job. This elicited Sharron's ob- servation that the time was approaching for another elec- tion and added that he did not want Beard there. Sharron then proceeded to explain that 'the Company was over- staffed and had to cut back on the number of employees. Beard concurred that the Company had too many employ- ees. Returning to the subject of the Union, Sharron re- marked that the last time the Union appeared at the termi- nal Beard "had him on the verge of selling the company." Sharron then inquired whether his nephew, Mike Sharron, who worked at this terminal, had helped Beard solicit union cards. When Beard answered in the negative, Shar- ron stated that he.had heard otherwise Beard thereupon retorted that Sharron had heard wrong but added the com- ment that Mike was in favor of the Union until the Union secured cards when Mike backed out without helping at all. Apparently on this note the conversation ended. On Friday, November 30, the end of the workweek, Dickeson and Walker were terminated. The following Wednesday, December 5, Beard's timecard was pulled from the rack and he was again summoned to Sharron's office. This is Beard's account of this meeting. Declaring that he had given Beard a chance to remain at the terminal, Sharron accused him of not keeping his mouth shut. In answer to Beard's inquiry what he had done, Sharron stat- ed that he told Dickeson to go to the Labor Board to com- plain about his layoff Beard replied that Dickeson asked him for his opinion and that he told Dickeson "if I was in his shoes, I would go down to the Labor Board and see what they could do about it." Sharron thereupon declared SHARRON MOTOR LINES that it was Beard's "fault" and he was "fired" and directed him to pick up his check any time after lunch. Sharron also told Beard that he was thus giving him "a chance to go see Sam Webb" (evidently intending a named union official) or the Labor Board. Beard replied that "Sam" could not do him any good as the Union had lost the election. In the course of this conversation, Sharron also remarked that he had nothing against Beard's work, which was satisfactory. Sharron did not specifically contradict Beard's testimo- ny concerning their first conversation on November 27. Nor did he specifically deny the details of the discharge conversation on December 5 as related by Beard, although he gave the following version: 13 In the week after the ter- mination of Dickeson and Walker, probably the first week in December, Sharron told Beard that he had to lay off somebody else and that Beard was the one and offered him the option to resign.14 On this occasion, Sharron informed Beard that the layoff was necessitated by economic reasons and that he was one of those designated by Robbins to be cut off.15 Beard declined to resign with the result that Shar- ron told him he was discharged and that his final check would be ready after lunch. On direct examination, Sharron admitted that he asked Beard questions about his nephew, Mike Sharron, some- time between July and Beard's termination. Under cross- examination, Sharron was equally uncertain about the date except that he thought it was "some time after the election" (which was held on August 2), on which occasion he told Beard that he had heard that Mike had accompanied Beard to the employees' homes to get cards signed and that he (Sharron) wanted Beard to tell him the truth whether or not Mike did it. After specifically denying that the conver- sation regarding his nephew occurred on December 4 or 5, Sharron was shown an affidavit he had executed for his attorney in which he stated that the inquiry was made in the discharge conversation on December 4. Under further examination, Sharron thereupon conceded that it was very possible and that he was not denying that the questioning of Beard occurred on December 4. He, however, also testi- fied that he had asked Beard the same question about his nephew before December 4 but that Beard refused to an- swer him at that time. Moreover, Sharron explained at the hearing that it was important for him to have the informa- tion concerning his nephew because "when you are work- ing relatives, you are in an embarrassing position to start with." I find Beard's account of his two conversations with Sharron thoroughly reliable and persuasive. His recollec- tion of the details of these conversations impressed me as being much better than Sharron's and not imagined. Ac- cordingly, I credit Beard's testimony related above. 13 Although Sharron was not clear on dates, his testimony apparently relates to his final discharge conversation with Beard 14 Admittedly, neither Dickeson nor Walker was given the option to re- sign at the time of their termination 5 Sharron testified that at first he tried to keep Beard on the job and to lay off only two employees but later realized he had to make a further reduction in force 16 N L R B v Solo Cup Company. 237 F 2d 521, 525 (C A 8. 1956) 3. Subsequent offer of part-time work Il After Christmas, Dock Foreman Robbins telephoned Beard and offered him temporary work for that day. When, in response to Beard's inquiry, Robbins informed him that it was not an offer of regular employment, Beard declined the job for the stated reason that he had already committed himself to work for Bowman Transportation Company that morning. However, Beard made it clear to Robbins that he was ready to return to his formerjob with the Company if offered. Although Sharron testified that he had instructed Robbins to call Beard whenever extra work was available, this was the only time Beard heard from the Respondent. Admittedly, Dickeson, one of the other two employees who were terminated before Beard, has been working on a part-time basis for the Respondent since the middle of De- cember. On several of these occasions, Dickeson worked a full 40-hour week. Walker, the other terminated employee, also worked part-time for the Respondent until he re- signed. Moreover, there is testimony by Robbins that a month before the hearing in this case he hired two employ- ees who were then serving a 90-day trial period. C. Concluding Findings 1. With respect to Beard's discharge The question whether an employee was illegally termi- nated because of his protected union or other concerted activities is not susceptible of easy determination as it largely involves an inquiry into an employer's state of mind. In resolving this question, therefore, all the facts and circumstances surrounding the separation must be careful- ly evaluated with due recognition being accorded to the settled principle that an employer may terminate an em- ployee for any reason, good, bad, or indifferent, provided the employee's union or other concerted activities do not enter into the decision. To be sure, it is equally well settled that the existence of a "justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." 16 From a careful review of the evidence, I find that, while a reduction in force at the Birmingham terminal was neces- sitated by legitimate business considerations, the Respon- dent utilized this occasion to discharge Beard because of his protected union and other concerted activities, as the General Counsel contends, and not because of his unsatis- factory work performance and other deficiencies, as the Respondent urges. At the outset, there can be no doubt that the Respondent was aware of Beard's involvement in the Union's organizational campaign culminating in the Board-conducted representation election on August 2, 1973. Not only did Beard act as the Union's election ob- server but, as shown, above, Company President Sharron admittedly questioned him concerning the assistance Sharron's nephew gave Beard in soliciting employees to sign union cards. That Beard's known union and concerted activities en- tered into the Respondent's discharge decision is plainly 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manifested in Sharron's remarks to Beard on November 27 and December 5 when Sharron notified him of his termina- tion. In the first conversation, Sharron told Beard that he did not want him to be around, noting that the time for another election was approaching 17 and that when the Union last appeared at the terminal Beard "had him on the verge of selling the company." On the same occasion, Shar- ron questioned Beard whether Sharron's nephew, an em- ployee, had assisted him in soliciting employees to sign cards. Moreover, as if to avoid liability for Beard's termi- nation, Sharron at this time also offered Beard the alterna- tive of resigning. This was not an option personally given to employees Dickeson and Walker when they were in- formed of their separation as a result of the reduction in force. With respect to the December 5 episode, when Shar- ron precipitately discharged Beard in the middle of the workweek, Sharron bluntly stated that it was for the reason that Beard had advised Dickeson to complain to the Labor Board about his (Dickeson's) termination. It is not without significance that, in firing Beard, Sharron cynically in- formed Beard that he was also thereby giving him a chance to confer with a named union official, as well as the Labor Board. Further supporting an inference of unlawful discrimina- tion underlying Beard's discharge is the unconvincing na- ture of the reason advanced by the Respondent for its se- lection. As indicated above, whatever errors Beard had made or shortcomings he possessed, they were not excep- tional or substantially different from those made or pos- sessed by other drivers. Indeed, it is quite clear that the Respondent never considered these deficiencies serious enough to warrant a reprimand or other discipline, much less a warning that he risked discharge if his work perfor- mance and habits did not improve. Moreover, the Indurall and Bowman incidents upon which Dock Foreman Rob- bins purportedly relied, in part, in selecting Beard for dis- charge did not even result in any loss sustained by the Respondent. In short, it is a fair assumption that the reason why the Respondent did not discipline or warn Beard be- fore his discharge is that it did not honestly believe that Beard was the inadequate and unsatisfactory employee he was depicted to be at the hearing. In fact, betraying the pretextual nature of the Respondent's asserted reason for the discharge is Sharron's admission to Beard upon his ter- mination that his work perfomance was satisfactory. Another factor which persuades me that Beard's dis- charge was discriminatorily motivated is the studied effort on Sharron's part to avoid even the appearance that he might have dictated or participated in the selection of the candidates for termination. It is difficult for me to believe that Sharron, who was familiar with the employees' per- formance, particularly that of Beard whom he had known for 18 or 20 years, would not offer his opinion, at least, to Robbins to guide him in his appraisal of the employees to be designated for discharge. As shown above, Robbins had been in the Respondent's employ less than 2 months at this time and professedly relied upon the information he se- cured from the drivers in making his selection. Moreover, 17 In view of the 1-year rule between elections (Sec 9(c)(3) ). Sharron's apprehension conceivably might have been premature what is perhaps more incomprehensible is Sharron's al- leged instruction to Robbins to ignore seniority in de- termining the employees to be terminated . Admittedly, Beard had more service with Respondent than a number of employees While it is true that an employer , not bound by a collective-bargaining agreement to observe seniority in a layoff, may ignore length of service if he so desires , it, nev- ertheless, is not normal for him to disregard completely this factor and the experience and reliability which length of service normally connotes . In fact, the importance of se- niority becomes more apparent where, as at the Respondent's terminal , a turnover problem exists. Thus, Sharron testified that "[w]e have more [of a turnover] than we want" and attributed this problem to the "type of peo- ple that we have to deal with . They just don't stay any- where long." Also suggesting that Beard was discharged for impermis- sible reasons is the fact that he was offered temporary part- time employment by Robbins after such work was made available to Dickeson and Walker. From the reasons given by Robbins at the hearing for the discharge of the latter two employees, their work performance and habits were by far less desirable than Beard's. Obviously, it was not these qualities which prompted the Respondent to prefer Dicke- son and Walker over Beard for temporary part-time em- ployment Moreover, no convincing explanation was pre- sented why Beard was not offered temporary employment subsequent to the only time Robbins had offered him a day's work and Beard informed him that he had already committed himself to work for Bowman Transportation that morning. Nor, for that matter, was the Respondent's employment prior to the hearing of at least two new em- ployees without first recalling Beard explained . All facts being considered, it was undoubtedly the Respondent's displeasure with Beard's union and other concerted activi- ties which accounts for the treatment accorded to him. The Respondent argues, in effect , that no inference of discrimination could be drawn in view of the fact that 4 months had elapsed since the Union's defeat before it dis- charged Beard in a reduction in force and in view of the absence of a past anti-union history. While these consider- ations might militate against a finding of discrimination under other circumstances , they do not preclude such a finding here in light of the record evidence 18 In sum, I find that Beard's discharge was on account of his union sympathies and activities and that his purported unsatisfactory work performance and habits were but a pretext to hide its true motivation. Such conduct clearly constitutes discrimination in employment to discourage union membership and the exercise of employee rights in violation of Section 8(a)(3) and ( 1) of the Act In any event, I find that the Respondent's abrupt termination of Beard on December 5 for advising employee Dickeson to go to the Board to complain about his (Dickeson 's) discharge independently violated Section 8(a)(1) of the Act. Beard's conduct, designed as it was to seek vindication of statutory rights to which he believed Dickeson was entitled, was a form of concerted activity for mutual aid and protection 18 For the same reason . I accord no weight to Company President Sharron'\ self-serving denial of union animosity or to the fact that he was once a union member for 15 or 18 years SHARRON MOTOR LINES which the Act safeguards.19 Finally, even were it assumed that Beard's purported deficiencies to some extent entered into the Respondent's decision to terminate him, I find that his protected union and other concerted activities were a substantial cause of his discharge and that therefore the same statutory provisions were violated.20 2. With respect to interrogation It is admitted that Company President Sharron ques- tioned Beard whether Sharron's nephew, Mike Sharron, had helped him in soliciting employees to sign union cards. As Mike Sharron was a rank-and-file employee of the Re- spondent and as there is no evidence that he enjoyed a special status in his fob which allied his interests with those of management, I find that the interrogation amounted to an infringement of employee statutory rights violative of Section 8(a)(1) of the Act. IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that the Respondent be ordered to cease and desist from engaging in the unfair labor practices found and to take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent unlawfully dis- charged employee Beard because of his protected union and other concerted activities. To remedy this unfair labor practice, it is recommended that the Respondent offer Beard immediate and full reinstatement to his former job or, if that fob no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earn- ings he may have suffered by reason of his unlawful dis- charge by payment to him of a sum of money equal to that which he normally would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during the said period. Backpay shall be com- puted with interest on a quarterly basis in the manner pre- scribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). To facilitate the computation, as well as to clarify the named employee's right to reinstatement, the Respondent shall make available to the Board, upon re- quest, payroll and other records necessary and appropriate for such purposes. The posting of a notice is also recom- mended. In view of the nature of the discharge for engaging in protected union and other concerted activities which "goes to the very heart of the Act," 21 there exists the danger of the commission by the Respondent of other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent be ordered to cease and desist from in 19 Ertel Manufacturing Corporation, 200 NLRB 525 (1972) 20 See, for example, J P Stevens & Co, Inc v N L R B, 380 F 2d 292. 300 (C A 2, 1967), cert denied 389 U S 1005 (1967), N L R B v Jamestown Sterling Corp, 211 F 2d 725, 726 (C A 2, 1954) 21 N L R B v Entwistle Manufacturing Company, 120 F 2d 531536 (C A 4, 1941) 13 any other manner infringing upon the rights guaranteed employees in Section 7 of the Act.22 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of William E. Beard to discourage member- ship in, and activities on behalf of, the Union, the Respon- dent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By discharging Beard for engaging in protected con- certed activities for mutual aid and protection, the Respon- dent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By interrogating Beard whether employee Mike Shar- ron assisted him in soliciting employees to sign union cards, the Respondent interfered with, restrained, and coerced employees in the exercise of their statUory rights within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed- ORDER 23 The Respondent, Sharron Motor Lines, Inc., Birming- ham, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Local Union 612, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discharging or laying off employees or in any other manner discrimi- nating against them in regard to their hire or tenure of employment or any term of condition of employment. (b) Discharging employees or otherwise disciplining them for engaging in concerted activities for mutual aid or protection guaranteed them in Section 7 of the Act (c) Coercively interrogating employees concerning the union activities of their fellow employees. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, 22 N L R B v Express Publishing Company. 312 U S 426. 433 (1941) 231n the event no exceptions are filed as provided by Sec 10246 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 it'. findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer William E. Beard immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge, 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 pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary or useful in analyzing the amount of backpay due and the right to reinstatement and employment under the terms of this recommended Order. (c) Post at its terminal in Birmingham, Alabama, the attached notice marked "Appendix." 4 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 10, after being duly signed by the Respondent's au- thonzed representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places where notices to employees are customarily posted. Rea- sonable 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 10, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 24 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all of those activities. WE WILL NOT discharge or lay off any employee or otherwise discriminate against him because of his membership in, or activities on behalf of, Teamsters Local Union 612, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. WE WILL NOT discharge any employee or otherwise discipline him for engaging in concerted activities for mutual aid or protection guaranteed employees in Sec- tion 7 of the Act. WE WILL NOT coercively interrogate our employees concerning the union activities of their fellow employ- ees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer William E. Beard immediate and full reinstatement to his former job or, if that job no lon- ger exists, to a substantially equivalent position, with- out prejudice to his seniority or other rights and privi- leges, and make him whole for any loss of earnings suffered by reason of his unlawful discharge. All of our employees are free to become, remain, or re- frain from becoming or remaining members of any labor organization. SHARRON MOTOR LINES, INC.