Silver Eagle Co.

SILVER EAGLE COMPANY 185 Silver Eagle Company and Daniel Suit . Case 36- CA-2518 October 22, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 3, 1974, Administrative Law Judge Rich- ard J. Boyce issued the attached Decision in this pro- ceeding. Thereafter, the 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 finds merit in the exceptions. Accordingly, it af- firms the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consis- tent herewith. The Administrative Law Judge found that Re- spondent laid off Daniel Suit because of his efforts to assure Respondent's compliance with certain con- tract provisions, in violation of Section 8(a)(3) and (1) of the Act. We disagree. Respondent and the Union are parties to the Na- tional Master Freight Agreement covering the drivers and warehousemen working out of Respondent's Portland terminal. Daniel Suit was employed by Re- spondent as a combination driver-warehouseman from August 6, 1973, until he was terminated on De- cember 11, 1973. He was considered by both Re- spondent and the Union to be a "casual" as that term is used in the contract. Respondent employs regular truckdrivers and dock employees and also uses casual employees. Ca- suals are used as replacements for the regular work- ers in increasing numbers from May through the summer season and in reduced numbers in the winter season according to seasonal business fluctuations. Casuals under the National Agreement are subject to termination at any time without explanation. They are not included in a seniority system with the regu- lar employees. Moreover, the Respondent has never applied seniority to casuals. For several weeks before December, Suit had been serving as a pickup and delivery driver on an estab- lished route in Portland, filling in for a regular driver on extended sick leave. About December 4, Suit was supplanted on this route by a regular driver. It is not contended that replacement of Suit was discrimina- torily motivated. Thereafter, Suit reverted to dock- work and overflow driving. On December 10, Respondent decided that be- cause of a decline in business four casuals should be laid off. Suit and three other casuals (two of which were also drivers) were selected for the layoff. The number of casuals was progressively reduced until in February there were none employed. Thus during the first half of December Respondent had 18 casuals who averaged 4.84 hours per day. In the last half of December, Respondent used only 11 casuals who av- eraged 4.36 hours per day. In the first half of January 1974, seven casuals were used averaging 2.86 hours per day. In the last half of January there were only three casuals averaging 4 hours per day. In February there were none. Suit had spent 90 percent of his time as a pickup driver, and the balance of his time as a dockworker. After Suit's layoff; Respondent made no use of a ca- sual employee as a pickup delivery driver. Two of the other drivers laid off with Suit were recalled for 2 days' work to do heavy-duty driving, which Suit had never performed for Respondent.' The casuals who were retained when Suit was laid off had been regu- larly working on the dock, unlike Suit who had been primarily a driver. Assuming, arguendo, that Respondent was dis- pleased with Suit's grievance activities, we are unable to agree with the Administrative Law Judge that this displeasure was the reason for his layoff. The Admin- istrative Law Judge himself found that Respondent "had valid business reasons for laying off casuals." Suit was one of three drivers laid off simultaneously. No other casual employee replaced him in his driving duties. The casuals retained performed dockwork. As stat- ed, Suit was primarily a driver, and only incidentally a dockworker. We can perceive no evidence of dis- crimination in the fact that Respondent chose to re- tain for dockwork those casuals who had regularly performed such work in preference to one who had only infrequently worked on the dock. The mere fact that an employer may desire to ter- minate an employee because he engages in unwel- comed concerted activities does not, of itself, estab- lish the unlawfulness of a subsequent discharge. If the employee would have been discharged, in any event, the circumstance that the employer welcomed the opportunity to discharge does not make it dis- criminatory and therefore unlawful.' At most that is all the evidence shows in this case. Accordingly, we 1 Suit had never driven tractor-trailers for Respondent, although he claimed that he had driven heavy trucks in the Army Reserve and had completed a course in heavy-duty driving at a driving school. 2 More Holt Company, 161 NLRB 1606 (1966). 214 NLRB No. 26 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find, contrary to the Administrative Law Judge, that the General Counsel has not proved that Respondent unlawfully discriminated against Daniel Suit. We shall therefore dismiss the complaint. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION 1. STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was tried before me in Portland, Oregon, on March 13 and 14, 1974. The charge was filed December 12, 1973, by Dan- iel H. Suit, an individual (herein called Suit). The com- plaint issued February 7, 1974, alleging that Silver Eagle Company (herein called Respondent) had violated Section 8(a)(1) and (3) of the National Labor Relations Act. Post- trial briefs were filed by the General Counsel and Respon- dent. II. ISSUE The issue is whether Respondent's layoff of its employee, Suit, on December 11, 1973, was prompted by Suit's ef- forts, and those of a union on his behalf, to enforce certain terms of the prevailing labor contract and otherwise to af- fect his conditions of employment, violating Section 8(a)(1) and (3) of the Act. III. FINDINGS OF FACT A. Business of Respondent Respondent is an Oregon corporation engaged in local and long-haul trucking in Oregon and Washington. Its an- nual gross income exceeds $500,000, over $50,000 of which derives from the transport of freight across state lines.. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, engaged in and affecting commerce within the meaning of Section 2(6) and (7) of the Act. B. Labor Organization Involved Line Drivers, Pickup and Delivery Local Union No. 81, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (here- in called the Union), is a labor organization within the meaning of Section 2(5) of the Act. C. The Evidence Respondent and the Union are party to a labor contract covering the drivers and warehousemen working out of Respondent's Portland terminal. The bargaining relation- ship began in' 1955. Suit worked for Respondent as a com- bination driver-warehouseman from August 6, 1973, until the layoff in question on December 11.1 Although he worked all but 5 of the 88 working days in that period, putting in a full 8-hour shift on all but 2 of the days worked, he was considered by both Respondent and the Union to be a "casual" as that term is used in the contract. That meant, among other things, that he had no seniority rights in the event of a reduction in force, and was subject to peremptory termination without reason or explanation.2 Suit's beginnings with Respondent were auspicious. On August 15, Don Shay, a regular driver, told Terminal Man- ager Orville Mooney that Suit was a "real good worker" and that Respondent should hire him. The term " hire" in this context means elevate from casual to regular status. On or about October 8, Mooney told Suit that he was doing his job "proficiently" and would be put on the se- niority list-i.e., become a regular-"in the very near fu- ture." About the same time, Norman Gouveia, another regular driver and the Union's shop steward, asked Moo- ney about Suit's prospects. Mooney answered that "as things looked . . . as business improved," Suit would be- come a regular.3 On October 11, having worked about 7 hours without a lunchbreak, Suit asked his supervisor, Mel Tibbs, if he could eat. Article 48 of the contract provides for a meal period between the fourth and fifth hours on shift. Tibbs replied that there was too much work to do, that Suit should keep working until told otherwise. Suit reported this incident to Gouveia and to Joe Powell, the Union's business agent, the same day..Suit also report- ed that Tibbs, to conceal breaches of article 48, had in- structed the employees not to clock out for lunch, but in- stead to pencil their timecards at the end of the shift to give the appearance that they had eaten at the prescribed time. Gouveia raised the problem with Tibbs, who insisted that he "wasn't about to abuse the contract"; and Powell visited the terminal to scrutinize the timecards and discuss the matter with Mooney. Powell was unable to discern any- thing improper from the cards, but did ask Mooney about the various penciled notations. Mooney in turn questioned Tibbs, crediting his denial of wrongdoing, but admonishing him to have the employees clock out when-they ate.' Nei- ther Gouveia nor Powell identified Suit as the complainant, 1 All dates hereafter are 1973 unless otherwise indicated. 2 Respondent uses up to 15 or 20 casuals on a given day. Its principal need for them falls between May and October, as vacation fill-ins. They also are used to augment the regular complement during busy times, and as sick leave substitutes. To guard against undue dependence on casuals , the con- tract requires the hire of an additional "regular" whenever the use of casuals exceeds so many. working beyond a certain number of hours, over so long a time. Respondent last hired a regular on September 19. While a regular thus hired need not be selected from among Respondent's casuals, each of the last six hired formerly was a casual. 3 Suit and Gouveia . are credited over Mooney 's denials that he spoke favorably of Suit's prospects. Suit's and Gouveia's versions, although des- criptive of separate conversations, bear a consistency tending to mutual corroboration. Further, as is more fully developed later, Mooney's testimo- ny leaned toward the self-serving in various important respects, impairing his overall credibility. Mooney testified of later learning that Tibbs' denial had been false. Tibbs left Respondent November 6 under unfriendly circumstances. He did not testify. SILVER EAGLE COMPANY 187 and Mooney denied that Suit was mentioned in his conver- sation with Tibbs.5 At about this time, having received complaints from others as well, Powell posted a notice on the employees' bulletin board in the terminal reminding them of their con- tractual right to a lunchbreak. On October 17, Suit was told by Lowell Smith, another supervisor, that the need for him had diminished, and that he thereafter should call in each day to see if there was work. Smith added that Suit would be working under John Reid, the chief dispatcher. Suit immediately talked to Reid, who told him that he would be working on the dock the first part of his shift, then either would drive or be sent home depending upon need. Reid said there would be no assurance of an 8-hour day. Suit that night informed Gou- veia of his seemingly impaired job standing, characterizing it as a layoff. Because of Mooney's favorable assessment of Suit in their conversation of perhaps 10 days before, Gouveia was surprised by this turn of events-"it kind of took me aback." First thing the next morning, October 18, he polled six employees who had worked with Suit. Each commented favorably on Suit's work. Then, when Mooney arrived, Gouveia asked him what had happened, noting that he had understood that Mooney was "going to put the man on." Mooney, in contrast to his earlier remarks, replied that Suit was unable to do the job, was too slow, and had been the subject of adverse comment by coworkers. Alluding to his poll, Gouveia said he had heard otherwise .6 As earlier mentioned, and despite the October 17 disclo- sures of Smith and Reid, Suit continued to work nearly every day until his eventual layoff, working full shifts all but 2 of the days. Whether Gouveia's intervention with Mooney was an influence cannot be determined. One of the days that Suit worked less than a full shift was the very day of Gouveia's intervention, October 18.' Smith told Suit to clock out after 4-1/2 hours. Suit com- mented that he was entitled to 8 hours' pay, regardless, since the contract's so-called "four-and-eight" provision 8 guarantees casuals 8 hours' pay for work in excess of 4 hours in I day. Nothing more was said at the time, and Suit clocked out as directed. But, the next day, October 19, he noticed on his card that he had been credited with only the 4-1/2 hours actually worked. He asked Reid if he should not be credited with 8 hours. Reid responded that it was pure oversight that Smith had not sent Suit home inside 4 hours, and suggested, rather than take advantage of the situation, that Suit mark his card "OBR"-off by request- to signify that he had clocked out early by his own choice. That way, the Company would be -excused from paying beyond time actually worked. Suit rejected the idea, -5 Once previously, on or about September 18, Suit had complained to Powell about the problem of lunch periods. Powell, without naming Suit, telephoned Mooney, who expressed doubt of the complaint's validity, but said he would look into it. Suit himself did not say anything to Tibbs on that occasion-"1 didn't want to say anything at that time to jeopardize my working relationship with him." 6 This is based on Gouveia's credited testimony. Mooney, while recalling a conversation with Gouveia in which he expressed doubt of Suit 's pros- pects, placed it in late September. The date given by Gouveia seems the more plausible in all the circumstances. 7 The other part-time day was October 22, when Suit worked 4 hours. 8 Art. 50, sec. 4(c). prompting Reid to say he would get the extra money if he "pushed for it," but his job would be eliminated.' Later on October 19, after working 4 hours without a break, Suit asked Smith if he might stop for lunch. Suit was unloading trailers. Smith told him to finish that before breaking, which took another 2 hours. Also on October 19, after his delayed lunchbreak, Suit had occasion to ask Mooney why he was being "laid off," whether his work was satisfactory, and if he was going to be put on the seniority list. Mooney answered that Suit's work was all right, but that a seasonal slowdown was com- ing and, consequently, he doubted that Suit would become a regular. To Suit's rejoinder that none of the other casuals was being laid off, Mooney remarked that Suit, as a casual, had "absolutely no rights," and he would work him as he saw fit.10 Suit promptly reported the several happenings of Octo- ber 19 to Business Agent Powell. Powell presently arranged with Mooney to check through the timecards for verifica- tion of Respondent's practices concerning both lunch- breaks and "four-and-eight." As before, Powell did not identify Suit as a complainant. Powell and an assistant from the Union reviewed 2 months' cards-50 to 60, cover- ing 25 to 30 casuals. They separated out four that seemed to show irregularities concerning the "four-and-eight" question, Suit's among them. Mooney, when confronted with those cards, pointed out that on three the employees had initialed "OBR" to go deer hunting. Suit's card, re- flecting the 4-1/2 hours on October 18, was the only one not so initialed. Apart from his card being placed before Mooney, with the other three, Suit received no special mention.t t On October 31, after Suit had worked more than 4 but less than 8 hours, Smith told him to clock out. Suit said that, as long as he was going to be paid for 8 hours anyway, he would just as soon finish the shift if there was anything for him to do. Smith referred him to Reid, who suggested that he "OBR" his timecard and go home. Suit declined, so Reid proposed that he drive his own car to Sites' Silver' Wheel Freight Line, where he could unload some trucks on the way home. Reid said he would clock Suit out to give credit for the full shift. To Suit's observation that he al- ready had worked over 5 hours without lunch, Reid told him to eat en route to Silver Wheel. Suit then said that he had moved, that Silver Wheel no longer was on the way home, and that it would be just as simple for him to come back and clock out. Reid asked that he use his own car v This is based on Suit's credited testimony, Reid having testified that he discussed "four-and-eight" with Suit only on October 31. Suit's version gains credence from the fact that Respondent withheld payment of his 8- hour entitlement until the Union formally grieved the matter in January 1974. Beyond that, as is shown later , Reid's testimony , like Mooney's, was so suspect in certain critical respects as badly to damage his overall credibil- ity- is This is based on Suit's credited testimony. Mooney denied saying that Suit's work was all right, or referring to Suit's lack of rights as a casual. " This is based on Powell's credited testimony. Mooney testified that Powell laid more than 10 "OBR " cards in front of him, rather than only three . Mooney also testified that , while it was "possible" that Suit's was among those cards, he did not notice it. Had Powell been doctoring his testimony to advance Suit's cause, it hardly seems that its substance would have been so restrained. Mooney, on the other hand and as noted elsewhere, was given to testimonial excesses evincing a lesser concern for truth than for outcome. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anyway, since all the company vehicles were in use . That is what Suit did.l" Suit stopped at the union office on the way to Silver Wheel, informing Powell of Reid's asking him to "OBR" his timecard, telling him to eat lunch on the way, and ask- ing him to use his own car. Powell telephoned Mooney, saying he had proof of violations of the lunchbreak provi- sion. He did not raise the other items mentioned by Suit, nor did he mention Suit's name. Mooney replied, as was his wont, that he doubted any wrongdoing, but would look into it. On November 14, while driving a company van, Suit was involved in a two-vehicle accident. The van was not dam- aged, the other vehicle suffered $220 damage, and there were no personal injuries. The next day, November 15, his timecard was not in the rack when he arrived at work. He went to Mooney's office, whereupon Mooney asked about the accident. In the midst of Suit's recital, Mooney inter- jected that Respondent had no further use for him. Moo- ney mentioned that, in addition to the accident, the super- visors had reported that he was too slow, that he misplaced freight on the dock, that he had trouble finding his way around town, and that there had been too many public complaints about him. When Suit asked which supervisors, Mooney named Lowell Smith. Suit asked that Smith be brought in; Mooney demurred. Pressed by Suit to elaborate on the public complaints, Mooney admitted there had been only one, when someone telephoned the Company to report that Suit had changed lanes in front of the caller, nearly causing an accident.13 Suit knew the incident referred to, which had occurred in early November, so told his version. It included a verbal altercation in which he told the other driver to "get the hell out of here." Mooney, upon hearing that, said Respondent could not tolerate its employees speaking to the public like that; it conveyed a "bad image." The conversation at length reverted to the previous day's accident. Mooney sat- isfied himself that Suit had not been at fault, and declared that he had decided to give Suit "another chance."14 On November 30, Mooney told Reid to arrange for Suit to take a physical examination. The U.S. Department of Transportation requires a physical every 2 years for drivers under its jurisdiction, and Ben Heinz, Respondent's direc- tor of loss prevention, had become insistent that Suit meet that requirement as an aftermath of the accident. Reid ac- cordingly told Suit that he would schedule an appointment, but that Suit would have to pay for it. Reid said that, with- 12 Mooney is credited over Reid's denial that he proposed that Mooney "OBR" his timecard to evade the "four-and-eight" requirement, both be- cause of the credibility considerations elsewhere mentioned and because Reid did admit, on examination by Respondent's own counsel, that he had conversation with Suit on October 31 "concerning whether he should sign off a timecard at 4.5 hours." 13 Mooney testified that the call had been received by Respondent's trea- surer, Jack Rollowage, and that he, Mooney, did not assign great impor- tance to it "because of it being an anonymous phone call ." Rollowage did not testify. 14 Mooney, although admitting in his testimony that he said he had decid- ed to give Suit "another chance," disputed Suit's testimony that he earlier had said that Respondent had no further use for Suit . Whether Suit's termi- nology was precisely accurate , it is evident from Mooney's "another chance" admission that Suit's testimony was correct in substance. out the physical, Suit would not be allowed to drive. Suit did not protest having to pay, but some employees who had overheard the conversation told Steward Gouveia about it. Gouveia immediately challenged both Reid and Mooney, arguing that article 47 of the contract explicitly places the cost of required physicals on the Company. Reid and Mooney countered that article 47 did not apply to casuals. Gouveia telephoned Powell, who shared his view that it applied alike to regulars and casuals. Mooney and Gouveia agreed to check into the matter further and get back together, but never did. Meanwhile, Suit took his physical December 4, observing Gouveia's advice not to pay for it. Nothing further was said about the matter. Re- spondent paid the $25 or so that it cost. For several weeks before the physical, an estimated 90 percent of Suit's work had been as a pickup-and-delivery driver on an established route in Portland, filling in for one Val Eaton, a regular driver on extended sick leave. Coinci- dent in time with the physical, Suit was supplanted on the route by Jerry Gilbert, a regular employee, Suit reverting to dockwork and overflow driving. Gilbert had become avail- able for the route through the consolidation of his former work with someone else's. Suit's competence was not a fac- tor in this decision. On December 8, the Company's accident review board convened to consider the previous month's accidents. The board, consisting of Mooney and Gouveia among others, unanimously concluded that Suit's accident of November 14 was "non-preventable" from Suit's point of view.15 On December 11, Suit reported to work at 4 a.m. as usual to find that his timecard had been pulled. His super- visor, Joe Walker, told him that there was no work, to go home. Suit returned at 8 a.m. to see Reid and Mooney. Reid told him that business was down and Respondent was laying off casuals. Mooney likewise mentioned the reduc- tion in business, which he described as predictable for that time of year. Suit asked why him, when there were other casuals with less seniority. Mooney answered that seniority had nothing to do with it, since they all were casuals, with- out seniority rights. Suit asked if the quality of his work had anything to do with it, to which Mooney said, yes, that-. both Smith and Al Engel, a dock foreman, had faulted his work. Suit then asked when he might be recalled; Mooney said probably never in light of the "problems" he had had with Suit. To Suit's suggestion that he leave his new address and telephone number, just in case, Mooney replied, sure, he could always use the names of casuals. As the conversation ended, Mooney said he supposed that Suit would "go run- ning" to the Union to report what had happened, then exclaimed that no union would tell him how to run the terminal , or whom he could and could not hire.16 Mooney and Reid jointly had decided, at about 3 p.m.; December 10, that economics dictated a layoff of casuals. They directed the PM dock foreman to select three from 15 Respondent nevertheless later paid $110 of the $220 damage to the other vehicle, upon being told by the attorney for the other driver that he had located a witness who would establish Suit's fault. 16 Based on credibility considerations discussed elsewhere , Suit is credited over Mooney's denial that the Union was mentioned "in any way whatsoev- er" during this conversation. SILVER EAGLE COMPANY 189 his group, and Mooney himself decided that Suit should go. Mooney testified that he decided on Suit because he did not regard Suit as qualified for heavy-duty or short-box driving, conceding that "possibly in the back of my mind, the problems we'd had" were an additional factor. He ex- plicitly denied that these problems included the complaints made by Suit or the Union under the contract. Asked to articulate what he meant by "problems," Mooney testified: The slowness on the dock, the dispatcher complaints, the standing around on the dock when he was sup- posed to be working, the problems with Ed Engel, and one thing about that was, you know, if you had a problem with Ed Engel out there on the dock, I knew he was going to have a problem on the AM or PM dock. Being responsible for the terminal, I've got to get the production. Although Mooney claimed sole responsibility for the deci- sion on Suit, Reid admitted suggesting to him that it might be well to get rid of Suit "due to the problems that had arisen in the past . . . , starting clear back in October." Two of those laid off by the dock foreman; Larry Thompson and Roy Pietrzyk,t7 worked again December 13 and 14, since then they have not been recalled. Mooney and Reid testified that those two were recalled, rather than Suit, because two heavy-duty drivers were needed to han- dle some Sears Roebuck cargo, and Suit was not consid- ered qualified.18 Respondent used 18 casuals during the first half of De- cember. They worked an aggregate of 872 hours over 10 days, meaning that each of the 18 averaged 4.84 hours a day. Eleven casuals were used the last half of December, working an aggregate 192 hours over 4 days-an average of 4.36 hours per casual per day. In the first half of January 1974, 7 casuals were used, working a total 180 hours over 9 days, or 2.86 hours per casual per day. Three casuals were used in the last half of January, working a total of 36 hours over 3 days-an average of 4 hours per casual per day. None was used in February. Regarding Suit's job performance, Mooney testified that Lowell Smith and Mel Tibbs complained "maybe a couple times" that "we ought to find someplace for him besides on the dock because he couldn't remember where he was going." Mooney said he instructed Smith and Tibbs to pre- sent their complaints to John Reid.19 Mooney further testi- fied that Suit had worked under Dock Foreman Engel on December 7, provoking Engel's displeasure. Mooney con- ceded on cross-examination that Engel was "a little upset" over the dock crew in general. Engel testified in corrobora- tion that Suit worked under him 2 hours that day, having difficulty locating a Sears Roebuck crate and generally not following directions well. Engel added that he told Mooney 17 Pietrzyk's name is erroneously spelled Peatrick in the transcript. 18 Mooney defined heavy-duty driving as involving a tractor and a trailer. Suit disputed his alleged lack of heavy-duty qualifications, calling attention to his driving experience in the Army Reserve and to his completion of a heavy-duty driving school in November, which had been recommended to him by the Union. Respondent knew of his completion of the school. 19 Smith left Respondent about November 22 and did not testify. Tibbs, as earlier mentioned, left Respondent November 6, and did not testify. at the time, "If you want to give me any help, don't give me anyone like that." Mooney's testimony continued that the two dispatchers, Reid and Al Billings, also expressed dissatisfaction with Suit. Reid mentioned "a couple or three times a month," according to Mooney, that "this guy just can't cut the mus- tard"; and Billings mentioned three or four times in all that Suit's route work was slow. Mooney testified that his usual reply to Reid's observations was, "It's your baby, take care of it," by which he meant Reid could go so far as to stop using Suit if he wished. Nowhere in Mooney's testimony did he mention the alleged incidents, mentioned below, in which Coastal Sales told Reid and Huntington Rubber told Billings not to send Suit to them again if Respondent want- ed their continued business; nor did he mention the Port- land Electric & Plumbing-Sylvania cargo mixup attributed to Suit by Reid. Reid, called by Respondent, testified in general terms that he indeed made frequent adverse remarks about Suit to Mooney, elaborating that he told Mooney of Suit's twice in l day picking up the wrong-freight in September, and of later misdelivering some carpet. Reid could only "vaguely recall" this latter incident, believing it occurred in Novem- ber. Reid additionally testified of telling Mooney that Suit had in October misdelivered some cargo meant for Port- land Electric & Plumbing to Sylvania? and that someone from Coastal Sales had called in early November -to say that if Respondent wanted any more of its business not to send "that belligerent, blankety-blank-blank guy [Suit] back here again." Suit reputedly had lost his temper when the caller asked why a delivery was late. Reid testified that he made a point of talking to Suit in September when he twice picked up the wrong freight, but did not take the initiative thereafter to discuss his short- comings with him until the November accident, when he talked about driving safety. Reid also testified that he talked to Suit about his performance on the numerous oc- casions that Suit asked him how he was doing. Reid assert- ed and Suit denied that Reid ever mentioned the alleged Coastal Sales incident to him. Although Mooney testified of instructing Smith and Tibbs to tell Reid their complaints about Suit, Reid nowhere testified of receiving such com- plaints. Nor did he testify of learning of the alleged Hunt- ington Rubber ultimatum about Suit, of which Billings tes- tified, mentioned below. Billings, also Respondent's witness, testified that "most all" the route drivers seemed slow to him, but that Suit "seemed to be a little more slow." He conceded that Suit, as a casual, could not have been expected to negotiate a route with the same fluency as one who regularly worked the same one; but insisted, even so, that his dependence on the dispatchers-calling in every day, while twice a week was typical for the others-was unwarranted. "As a rule," Billings admitted, the others were not casuals. Respondent maintains a large wall map in the terminal for the dispatch- ers' reference in dealing with such calls. Concerning the incident earlier mentioned, in which someone complained of the way Suit had changed lanes, 20 Suit testified on rebuttal that he knew nothing about this alleged misde- livery to Sylvania. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Billings testified, contrary to Mooney, that it was he who received the call from the other driver. Billings stated that Respondent "once in a while" gets complaints like this, "and all I do is talk to the driver about it, and that's about as far as it goes." But, as fallout from that particular inci- dent, according to Billings, someone representing himself as a shipping clerk at Huntington Rubber also called, say- ing he "had had words" with Suit over the matter and not to "send him back or you will get no more freight." Billings testified that he discussed this incident with Suit, and that Suit never again made pickups at Huntington Rubber. Suit testified, contrarily, that he continued to make calls at Huntington Rubber; that Billings discussed the lane- changing incident with him only when he himself brought it up; and that Billings told him "not to even think about it again, not to consider it, just forget it." Billings' testimony concluded that, while he "perhaps" discussed Suit's performance with Reid on occasion, since they worked side by side, he never did so with Mooney- "management has more to do than worry about things like that." This conflicts with Mooney's testimony that there were three or four such conversations. After Suit's layoff, Business Agent Powell asked Mooney the reasons. Mooney mentioned Suit's slowness and ten- dency to misplace freight on the dock. On December 17, Powell requested that the issue of Respondent's "refusal to hire Mr. David Suit" be placed on the grievance agenda, only to retract the request the next day in the belief that such matters, as they pertain to casuals, are not grievable under the contract. Powell testified that he routinely visits Respondent's premises every 2 weeks or so, plus whenever a problem warrants; and that the Union brings 35 or 40 complaints a year against Respondent, most of which are settled by a telephone call. Gouveia testified that perhaps 20 such com- plaints-"I'm speaking of little teeny-weeny grievances, all the way up to the ones I filed a formal grievance on"-are at the behest of casuals. The Union endeavors, when han- dling these matters, to preserve the anonymity of the com- plaining employee. D. Discussion I conclude that Respondent, in selecting Suit for layoff, was motivated by improper considerations; and that his layoff therefore violated Section 8(a)(1) and (3).Zl It is settled that an employee, when asserting a claim under a collective-bargaining contract, is engaging in activ- ities protected by the Act, and that his resulting layoff vio- lates Section 8(a)(1). E.g., Merlyn Bunney and Clarence Bunney, partners, d/b/a Bunney Bros. Construction Compa- ny, 139 NLRB 1516 (1962). And, if a union on behalf of an employee asserts a claim pertaining to conditions of em- ployment, whether or not under a contract, the employee's resulting layoff violates Section 8(a)(3) as well as (1). E.g., Victor Otlans Roofing Co., 182 NLRB 898 (1970), enfd. 445 21 The record is devoid of evidence to support the affirmative defense pleaded in Respondent's answer that the issue of Suit's layoff was resolved through the grievance-arbitration procedure of the labor contract. F.2d 299 (C.A. 9, 1971). The efforts by Suit and the Union to assure Respondent's compliance with the lunchbreak, "four-and-eight," and physical examination cost obliga- tions of the contract plainly came within one or the other, or both, of these principles; as did Steward Gouveia's Oc- tober 18 intervention with Mooney when a reduction of Suit's hours was imminent and he thought of himself as laid off. Nor can it be doubted, as a matter of fact and inference, that Respondent knew or suspected Suit to be the subject of, if not the moving force behind, each of the Union's efforts. He of necessity was mentioned in connection with Gouveia's intervention and the physical; and his own com- plaints to Tibbs about lunchbreaks, and to Smith and Reid about that and "four-and-eight" were juxtaposed so tightly with the Union's followup inquiries to permit no other con- clusion , even allowing for the Union's attempts at conceal- ment and crediting Respondent's actors with a lack of acu- ity wholly unwarranted by their witness stand performanc- es. Moreover, Mooney's comments at the time of the layoff, that he supposed Suit-would "go running" to the Union and that no union would tell him whom to hire, revealed both awareness and resentment of Suit's proclivity to do just that. The coupling of recurrent instances of protected activity with company knowledge and resentment of them, howev- er, does not a violation make. Three others were laid off at the same time as Suit, and it is not contended that any of those layoffs was unlawful. While two of the others shortly were recalled for 2 days' work, Respondent's casual force soon was drastically reduced. There is no disputing that Respondent had valid business reasons for laying off casu- als. Had Respondent explained Suit's layoff in those simple terms, it likely would have escaped detection. But it embel- lished. Mooney told Suit he probably would not be recalled because of the "problems" he had caused, and testified that "possibly in the back of my mind, the problems we'd had" had been a factor in Suit's selection. Reid admitted, on top of that, that he had suggested to Mooney that Suit be among those to go "due to the problems that had arisen in the past . . . , starting clear back in October." . Having broached the 'subject of Suit's "problems," Re- spondent was compelled further to embellish. Otherwise, the equation of that term with protected activities would be unavoidable. Unfortunately, for Respondent, the assorted embellishments of its several witnesses were so grand and divergent as to be mutually destructive rather than suppor- tive. To enumerate: 1. Although casuals, under the contract, are subject to summary dismissal without reason or explanation; al- though, according to Mooney, Reid repeatedly told him that Suit "just can't cut the, mustard" as a driver; and al- though, according to Mooney, Smith and Tibbs told him "we ought to find someplace for him [Suit] besides on the dock," Respondent nevertheless tolerated Suit both as a driver and on the dock for 4 full months. This suggests that Suit's problems of performance, and the comments of Reid, Smith, and Tibbs about them, were much overstated by Mooney on the witness stand. 2. Although Mooney testified instructing Smith and SILVER EAGLE COMPANY Tibbs to tell Reid their complaints about Suit, Reid no- where testified of receiving such complaints. The suspicion thus is reinforced that the complaints attributed by Moo- ney to the dock foremen received witness stand gilding. 3. Contrary to Mooney's testimony that Billings com- plained to him about Suit three or four times, Billings testi- fied that he never once raised the subject with Mooney- that "management has more to do than worry about things like that." 4. Contrary to Mooney's testimony that Treasurer Jack Rollowage received the call from the disgruntled driver with whom Suit had clashed, Billings testified that he re- ceived the call. While Mooney honestly could have been mistaken, this conflict nevertheless causes one to doubt that such a call ever was made, and instead to suspect that Billings, having heard about the incident from Suit, and Mooney, having heard about it through the company grapevine, made up their own separate stories in their zeal to discredit Suit. 5. Although Reid testified that someone from Coastal Sales called him to stop sending Suit if Respondent wished Coastal's continued business ; although Billings testified similarly about a call to him from Huntington Rubber; and although, according to Mooney, both Reid and Billings freely complained to him about Suit, Mooney nowhere in his testimony mentioned matters of this character. Simi- larly, although Reid and Billings supposedly discussed Suit's performance at their side-by-side dispatching sta- tions, Reid never once mentioned the Huntington Rubber ultimatum Billings claimed to have received. This lack of testimonial dovetailing, given the gravity of the matters asserted, compels the conclusion that these in- cidents were of witness stand manufacture. That Billings' story was untrue, considering its intrinsic seriousness, was further indicated by his saying, as mentioned above, that that none of his problems with Suit was worth management's bother. 6. To like effect, although Reid described an alleged car- go mixup of Suit's doing between Portland Electric & Plumbing and Sylvania, Mooney failed also to cite this in- cident in his litany of Suit's failings. Again, the probability is raised that the incident did not occur and that Reid in- dulged in witness stand improvisation without first check- ing signals with Mooney. 7. Despite Suit's alleged foulups, cascading one over the other in unrelieved succession the whole 4 months of his tenure, and despite Reid's professed great concern that Suit do well,22 Reid testified that he did not take the initiative to discuss Suit's problems with him between the time in late September when Suit picked up the wrong freight and the 22 Reid testified : "I worked real hard, I tried real hard, you know, to offer the instructions and suggestions and whatever was needed." 191 accident in November . This again indicates that those foul- ups were not so frequent or flagrant as Respondent would have us believe. 8. Finally, and perhaps most revealing , although Reid made much in his testimony of Suit's picking up the wrong freight in September, he dated Suit's "problems" to Octo- ber when urging to Mooney that he be laid off. It will be recalled that Suit's "coming out" as a protected activist was on October 11, when he had words with Tibbs about lunchbreaks . It also will be recalled that, while Mooney spoke favorably of Suit's prospects only 2 or 3 days before that coming out, he had nothing but criticism when Gou- veia inquired about Suit a mere 10 or so days later. It was in October, too, that the "four-and-eight" problem arose. Respondent's witnesses, in short, were not exemplars of rectitude as they testified of Suit 's job performance. Their pervasive dissimulation , together with the protected nature of the activities by and for Suit , and Mooney's resentment of those activities as shown by his remarks during the lay- off conversation , convinces me that the real problems trou- bling Mooney and Reid, when selecting Suit for layoff, had to do with those protected activities . To quote from Shat- tuck Denn Mining Corp. v. N.L.R. B., 362 F .2d 466, 470 (C.A. 9, 1966): [T]he trier of fact may infer motive from the total cir- cumstances proved. . . . If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference.23 CONCLUSIONS OF LAW 1. By unlawfully laying off Daniel H. Suit as found herein, Respondent engaged in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY To effectuate the policies of the Act, it is recommended that Respondent be ordered to cease and desist from the unfair labor practices found, and to take the affirmative action set forth below in the recommended Order. [Recommended Order omitted from publication.] 23 In the total context, one also must seriously question Respondent's purity of motive when it replaced Suit with Jerry Gilbert on Val Eaton's former route, that having coincided with the hassle over the physical exami- nation , as well its good faith in contending that Suit was unqualified for heavy-duty driving.