G & P Trucking Co., Inc.

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G & P Trucking Company, Inc. and General Drivers, Warehousemen & Helpers Local Union 28, affiliat- ed with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 11-CA-5670 February 18, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND KENNEDY On October 21, 1974, Administrative Law Judge Joseph I. Nachman issued the attached Decision in this proceeding. 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 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 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, G & P Trucking Company, Inc., Greenville, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions 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 JOSEPH I. NACHMAN, Administrative Law Judge: This proceeding tried before me at Greenville, South Carolina, on August 15 and 16,1 with all parties present and duly represented by counsel, involves a complaint2 pursuant to Section 10(b) of the National Labor Relations Act, as i All dates herein mentioned are 1974, unless otherwise indicated. 2 Issued May 14, on a charge filed March 11 , and amended March 15. 3 No issue of commerce or labor organization is presented. The complaint alleges and the answer admits facts which establish said elements. I find those facts to be as pleaded. 4 Terminal Manager Davis testified that Respondent averaged from 5 to 12 trips a day to Pilot's terminal to interline freight, mostly in broken loads, and a driver might be required to go to Pilot's premises several times in a workday, and might not be required to go there again for days or even weeks. amended (herein the Act), which alleges that G & P Trucking Company, Inc. (herein Respondent or Compa- ny), discharged Fleming C. Adair, Jr., on March 7, and James Dunn on March 14, and thereafter refused to reinstate them, because they assisted or supported General Drivers, Warehousemen & Helpers Local Union 28, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein Union or Local 28), or engaged in other union or concerted activities for the purposes of collective bargaining or other mutual aid or protection. The chief issues litigated are (1) were Adair and Dunn discharged, or replaced; and (2) did Respondent have adequate justification under the circum- stances, for requiring Adair and Dunn to clock out because of their refusal to cross a picket line established by the Union at the premises of Pilot Freight Lines (herein Pilot) at Greenville, and with whom Respondent there interlined freight. For reasons hereafter more fully stated I find that Adair and Dunn were discharged by Respondent, that the circumstances involved did not justify such discharges, and that Respondent thereby violated not only Section 8(axl), but Section 8(aX3) of the Act as well. All parties were afforded full opportunity to participate in the trial, to introduce relevant and material evidence, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the General Counsel and Respondent, respectively, have been duly considered. Upon the entire record, including the plead- ings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses while testifying, I make the following: FINDINGS OF FACT 3 Background Respondent is an intrastate carrier of motor freight, with a terminal at Greenville and other points in South Carolina. At Greenville, Respondent interlines freight with some 25 to 30 interstate carriers, including Pilot Freight Lines, which is one of the more important carriers with whom Respondent does business. At the time in question, Respondent had approximately 38 drivers employed at the Greenville terminal, who would as part of their duties deliver to or pick up freight at the Pilot terminal, as business might require .4 At time of the events here involved the Union was not the collective-bargaining representative of Respondent's employees, but it was engaged in a campaign to achieve that status, and a number of its employees had become members of the Union, of which fact Respondent was admittedly aware.5 The evidence leaves no room for doubt that Respondent was opposed to the organization of its employees. Thus, on 5 On January 25, the Union sent a telegram to Respondent advising that three men, including Adair, had formed a committee to organize Respondent's employees and requesting that they not be discriminated against. A few days later a copy of this telegram was observed by Adair posted on the bulletin board in the drivers room. Respondent makes no contention that it did not receive this telegram. By letter dated January 28, the Union advised Respondent that 30 additional employees , including Dunn, had joined the organizing committee, or had signed cards designating the Union as their bargaining representative. A copy of this letter, the receipt of which is likewise uncontested by Respondent, was also posted 216 NLRB No. 114 G & P TRUCKING CO. January 31 , Company President Byrd addressed a meeting of his supervisors at the Greenville terminal saying he had to keep the Union out, and the best way to do this was to get rid of the "trouble makers" whom he identified as the three employees mentioned in the Union's telegram of January 25. Byrd then stated that the way to get rid of the "trouble makers" was to send them home early so that they would have insufficient hours to earn meaningful wages; give them undesirable loads; and to try to get something on them that would be grounds for firing them. Byrd then commented on the Union's letter of January 28, saying that the fact that a great number of men supported the Union was no problem, because they would "back out" if Respondent could get the three who started the movement, and that, if the supervisors would assist him in achieving his purpose, he would make it "worth their while."6 On March 4, the Union, which represents the employees of Pilot Freight Lines at the latter's Greenville plant, went on strike against Pilot in support of contract demands. On that day pickets began to patrol Pilot's Greenville premises, located about one-half block from Respondent's premises, which picketing was continuing when the trial of this case concluded. When the picketing of Pilot com- menced that fact immediately became known to Terminal Manager Davis, and to Respondent's employees generally. THE UNFAIR LABOR PRACTICES ALLEGED A. Discharge of James Dunn Respondent's driver James Dunn reported for work on March 4 at his then scheduled starting hour of 1 p.m. His first assignment was to pick up freight at the J. P. Stevens plant, and on his return trip, deliver that freight to Pilot for transportation to Steven's customer. When Dunn got to Pilot's premises, he observed the pickets, and instead of going into Pilot, continued on to Respondent 's premises where he reported the situation to dispatcher Cehan. Although Cehan told Dunn that Pilot was not on strike, Dunn, after checking with the pickets, insisted that they were. Cehan then told Dunn to back his truck up to the dock. There the freight was unloaded from his truck and placed on another. What happened to this freight is not shown by the record. However, Dunn was never repri- manded nor otherwise disciplined 7 for this incident. Although Dunn worked each workday after March 4, the next occasion he had to go to Pilot was on March 14.8 On that day Dunn completed a number of assigned tasks, returning to Respondent's premises about 3 :30 p.m., and was in the drivers room doing his paper work when he was called by dispatcher Cehan and given a manifest which required him to take a tractor to Pilot where he would pick several days after its date on the employees' bulletin board in the drivers room . The record further shows that on January 29, the Union filed a representation petition ; a hearing thereon was held on February 20, which was attended by Adair; a Decision and Direction of Election issued on April 29; and on May 28, the Union withdrew its petition. e The foregoing findings are based on G .C. Exh. 2 and 3, and the credited testimony of Adair and Pace, which in this area is uncontradicted. 7 The evidence also shows that on March 6, driver Gilstnp returned to Respondent's premises with freight destined for Pilot, saying he was afraid to cross the picket line. Terminal Manager Davis then delivered this freight to Pilot, and upon returning told Gilstnp that there was no violence and 621 up an empty trailer and deliver it to the premises of a shipper. Dunn saw only the words "bobtail to Pilot," on his manifest, and promptly told Cehan that he could not do that, that a man could get killed crossing a picket line. Cehan then told Dunn to punch out, and when Dunn indicated some reluctance to do so, dispatcher Wright got Dunn's card and went to the office with it. Dunn followed Wright to the office and repeated to him the same statement he had made to Cehan, and also asked to see Terminal Manager Davis. Although Davis was in his office, Wright told Dunn that he could see Davis the following morning. Davis then left the premises. Cehan admitted that when he told Dunn to clock out, he meant for Dunn to quit work, and that he was acting pursuant to instructions from Davis that, if any driver failed to complete an assignment, he was to be told to clock out and see Davis. Davis admitted that it is Respondent's "sta- ndard practice" to fire any employee who refuses to perform an assigned task. The evidence also shows that when Cehan required Dunn to clock out, it had 35 drivers in its employ who had not refused to cross the picket line at Pilot, and that within 2 hours after Dunn refused to cross the picket line at Pilot, driver Wiley performed the work Dunn had refused to perform.9 The following morning Dunn, as directed by Cehan, talked with Davis in the latter's office. The conversation opened by Dunn asking Davis if he wanted him to begin work at Dunn's then normal starting hour of 1 p.m. Davis replied in the negative. According to Dunn there followed some discussion about his pay, but he did not recall whether he or Davis raised the subject. In any event, Davis told Dunn that he could pick up his check that afternoon, but Dunn requested that it be mailed to his home. When Dunn received the check several days later, it included his vacation pay and his accrued safety bonus, neither of which was yet due. There was, however, a deduction of $78 for uniforms which Respondent apparently had provided for Dunn.10 At no time was Dunn given a notice of termination. During his conversation with Davis that morning, Dunn asked the latter for a letter of recommen- dation, but Davis refused saying it was not his policy to give such. Davis did not tell Dunn that he was being replaced, nor did he ask Dunn if he was now willing to make deliveries to Pilot. Dunn did tell Davis that he was afraid to cross the picket line at Pilot, and Davis replied that he had been watching the picket line but saw no danger in crossing it. Although fear was the only reason Dunn gave Davis for refusing to cross the picket line, he testified that he in fact entertained no such fear, and that his real reason was that he respected what the men at Pilot were striking for and did not wish to do anything that might hurt them. Since March 14, Dunn has not requested that he was expected to deliver to Pilot . Gilstnp agreed to do so. This incident is not involved in this case. 9 Dunn testified that this was on March 13, but the great weight of the evidence shows that he was mistaken, a fact which Respondent does not question. 8 The findings up to this point are based on the credited testimony of Dunn, which in this area is not in material dispute, and on the admissions of Davis and Cehan. 10 There is no evidence in the record of the precise arrangement between Respondent and its employees regarding uniforms. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor has Respondent offered him employment." B. Discharge of Fleming C. Adair, Jr. Adair began working for Respondent as a driver in September 1972, and continued in that employment until the events of March 7, as hereafter detailed. It was Adair who on January 25, solicited the Union to represent Respondent's employees, and he was one of the three employees mentioned in the Union's telegram of January 25 to Respondent. Adair was active in soliciting Respond- ent's employees to sign authorization cards for the Union, and attended the representation hearing on February 20. For some time prior to about March 4, Adair's work day started at 8 a.m., and he worked irregular hours.12 Beginning a few days before March 7, Adair's reporting hour was changed from 8 a.m., to 1 p.m., and he reported at 1 p.m., on the crucial date of March 7. Adair learned of the strike and picketing by Local 28 against Pilot when the picketing began on the morning of March 4, but until March 7, he had not been assigned to deliver to or pick up at Pilot's premises. Between 2:30 and 3 of the afternoon of March 7, Adair was dispatched to deliver interline freight to Smith Transfer, Johnson Motor Lines, and Pilot. Adair made no comment about the assignment and left Respond- ent's premises, apparently to perform those duties . He went first to Smith where , while unloading, he' attempted to identify and segregate the freight destined for Johnson, but was unable to locate it. After completing delivery at Smith, Adair talked by phone with dispatcher Cehan to advise that he had completed his delivery at Smith, but was unable to find the parcels destined for Johnson, and was proceeding to Pilot. Cehan said, O.K. Shortly before reaching Pilot's premises, Adair called Cehan again on the phone in his cab, and asked about the picket line at Pilot. Cehan replied that driver Wylie as well as Terminal Manager Davis had crossed the line, and that there had been no problem. About this time Adair amved at Pilot's premises and started to turn in, but observing two pickets with "on strike" signs, and being so close to his own terminal, concluded that he would go there and discuss the matter further with Cehan. There Cehan again referred to the fact that Wylie had crossed the picket line without any i 1 Based on the credited testimony of Dunn as to which there is no real dispute. Davis claimed that in his conversation with Dunn on March 15, he did not tell the latter that he was not to perform his duties that day, but merely stated that unless Dunn could perform all duties assigned him, Respondent had nothing for him. He admitted that he did not ask Dunn if the latter was willing to go to Pilot , and claims that Dunn did not volunteer to do so. He did not deny that he caused Dunn to be fully paid for his services to that date, including his vacation pay and safety bonus. i2 Regulation of the Interstate Commission, prohibits employment of drivers for more than 60 hours in a week . Apparently there is no requirement for the payment of overtime. 13 Based on the credited testimony of Adair which is in most respects not in conflict with that of Cehan. The one area in which there is a material conflict is that according to Cehan when he told Adair that if he refused to make the delivery at Pilot as he (Cehan) had directed, Adair would have to punch out and see Davis the following morning, and that he did not tell Adair that refusal meant that he would be fired, because he did not know at that point what the result of Adair's refusal would be. Although Adair did not attribute such a statement to Cehan in the affidavit he gave the Board agent, I have credited his testimony in that regard, rather than the contrary testimony of Cehan, because of the admission by Terminal Manager Davis that it was standard company practice to discharge an employee who refused to perform an assigned task, and Cehan's admission that he had problem. Adair replied, "that doesn't mean that I won't get hurt," and stated that he would not cross the picket line at Pilot. Cehan then told Adair to put the trailer in the yard and detach his tractor. After doing so, Adair went to the drivers' room to await another assignment. At the time three other drivers were in the drivers' room awaiting assignments. Shortly thereafter Cehan called Adair from the drivers' room to the platform. There Cehan, who had a manifest in his hand, told Adair that he had just talked to Plant Manager Davis and that the latter had instructed that Adair should be required to deliver the freight to Pilot, and that if he refused, he should be required to clock out. Adair asked if this meant that he had to cross the picket line. Cehan replied "that is what it means." Adair then asked, "if I don't go, am I fired?" Cehan again replied, "that is what it means." Adair then announced that he would not go. Cehan told Adair to punch out and see Davis the next morning. Adair did so, leaving the premises about 5 p.m. At that time the trailer Adair had left in the yard that afternoon was still there, and the evidence shows that within about an hour thereafter, it was delivered to Pilot by driver Chafin. At that time, Respondent had in its employ 36 other drivers none of whom had refused to deliver to Pilot.13 During the evening of March 7, Adair telephoned Davis at his home, and asked whether he (Adair) was fired. Davis replied that Adair had refused to perform an assigned task, having refused to carry out a load; and that he had nothing further to say to him.14 The following morning Adair met with Davis at the latter's office. What was said at this meeting is somewhat in dispute. According to Adair, the meeting opened with his asking if he were fired; this question was repeated several times, but Davis would tell him only that he (Adair) had refused to perform an assigned duty, and that Respondent had nothing further for him; he then asked for a termination notice, but Davis refused, saying that it was not his policy to give such; he then asked what his record would show, and Davis replied that it would just show that he (Adair) had refused to perform an assigned task; he (Adair) then asked if his record would show that he had refused to cross a picket line, and Davis replied in the negative; he then told Davis been instructed by Davis to require any employee who refused to perform an assigned task to clock out and see Davis . Cehan's testimony that he was unaware what action Davis might take against Adair for his refusal to deliver to Pilot, I reject as incredible. 14 There is a conflict in the evidence as to whether Davis was aware of what had happened when he spoke that evening with Adair. The latter testified that while he did not ask the question of Davis, the latter seemed to know what had happened. Davis , on the other hand, testified that he was not aware when he spoke with Adair the evening of March 7, that the latter refused to take freight to Pilot, and that he learned what happened when he telephoned Cehan after he spoke with Adair. Cehan testified that he talked to Davis about an hour after he required Adair to punch out, to inform Davis of what had occurred . Cehan, however, did not fix the time of that call, but said that based on his conversation with Davis, he assumed that Davis had not yet talked with Adair. Adair fixed the time of his punch out about 6 p.m., but did not fix the time of his call to Davis. Although I deem it unnecessary to resolve the conflict, were I required to make a finding in that regard, I would find that Davis was fully informed concerning what had occurred when he spoke with Adair during the evening of March 7. 1 think this is made evident by the fact that Davis told Adair that he had refused to deliver at Pilot. If he did not get this information from Cehan, the evidence fails to explain where he got it. G & P TRUCKING CO. that he assumed he was fired, and asked about the pay due him; Davis telephoned the main office and directed that Adair's pay be computed, and to include what might be due Adair for vacation pay and safety bonus; he picked up his check the next day , and it included the aforementioned items. Davis admitted that on the morning of March 8, Adair did ask if he were fired and all he would tell him was Respondent had a duty to perform service for its customers or it would lose them, and unless Adair was willing to perform all work assigned to him, Respondent had nothing for him. I have the definite feeling that Davis deliberately evaded an answer to Adair's question. Admittedly, Davis did not at this time ask Adair if he would be willing to deliver to Pilot. Davis also admitted that delivering to Pilot was the only duty Adair refused to perform, and that it was because of such refusal that he told Adair that he had nothing further for him. Davis further admitted that at the time Adair refused to deliver to Pilot, Respondent had 36 other drivers whom he had no reason to believe would refuse to cross the picket line at Pilot. The evidence, of course, shows, as Davis admitted and as above indicated, that within an hour after Adair refused to go to Pilot, driver Chafin made the delivery that Adair refused to make. There is no evidence that, except for Adair on March 7 and Dunn on March 14, any of the Respondent's drivers refused to cross the picket line at Pilot. With respect to his reasons for refusing to cross the picket line at Pilot, Adair testified that in his conversation with Cehan, he gave the latter no reason for refusing to cross the line, but that his reasons were two fold; first his fear that he might get hurt, and, secondly, that as one of the leaders in the effort to get the employees to support the Union, he could not cross the Union's picket line at Pilot, and that he had made up his mind not to do so, when the picketing at Pilot started . In his testimony before an appeals referee of the South Carolina Employment Security Commission, on May 8, Adair testified that his reason for refusing to cross the picket line at Pilot on March 7 was fear for his personal safety. On May 21 , and at another time not fixed by the record, Adair returned to Respondent's terminal and told Davis that he was there to "get me a job." Davis replied that there were no openings available for Adair-15 Contentions and Conclusions In support of the contention that the facts do establish a violation of the Act, Respondent contends (1) that Adair and Dunn were merely "replaced," and that neither was "discharged," as the complaint alleges, and (2) that in any event Respondent's action against Adair and Dunn was required by the necessity of maintaining the proper operation of its business. Turning to the first question, I must and do fmd and conclude that both Adair and Dunn were discharged by Respondent for refusing to cross the picket line at Pilot. I do so based on the following considerations: 15 Based on the credited and uncontradicted testimony of Adair. le Enfd., as modified in respects not here material sub nom. Truck Drivers 623 1. As the Board made plain in Overnight Transportation Company, 212 NLRB 515 (1974), relying on Redwing Carriers, Inc., 137 NLRB 1545 (1962), ". . . in distinguish- ing between `replacement' and `discharge,' substance rather than the precise wording is important." 2. On March 7, when Adair asked Dispatcher Cehan if his refusal to cross the picket line at Pilot meant that he would be fired, Cehan replied that Adair's statement was correct. 3. Davis admitted that it was Respondent's "standard practice" to discharge any employee who refused to perform an assigned task. 4. On the morning of March 8, when Adair asked Davis whether he was fired, Davis did not answer the question directly, but instead gave Adair a lecture about the nature of Respondent's business and that it required the prompt forwarding of freight it interlined with other carriers. 5. Respondent promptly paid Adair in full for wages due him, without requiring the latter to wait for his next regular payday, and included in such payment appropriate allowances for vacation benefits and safety bonus, none of which was payable at the time. 6. When all of this is added to the fact that Respond- ent, as I have heretofore found, had deliberately embarked on a campaign to invent reasons to dismiss those employees responsible for the attempt to organize Re- spondent's employees, which it well knew included Adair, the attempt to completely terminate the latter's employ- ment status, seems clear. It is true that Dunn does not fall in exactly the same category as Adair so far as union activity is concerned, but the record shows that Respond- ent was aware that Dunn had authorized the Union to act as his collective-bargaining representative. Moreover, having discharged Adair for refusing to cross the picket line at Pilot, consistency required it to treat with Dunn in the same way when he later engaged in the same conduct. Based on the totality of the foregoing I fmd that Adair and Dunn were discharged by Respondent on March 7 and 14, respectively . This conclusion, however, does not dispose of the central issue presented by this record, because as the Board held in Overnight Transportation Company, 154 NLRB 1271, 1274 (1965),16 an employer who terminates an employee that has engaged in protected concerted activity by respecting a picket line established at the premises of another employer, does not violate the Act by such termination if he acts "only to preserve efficient operation of his business, and . . . only so [that he] could immediately or within a short period thereafter replace them with others willing to perform the scheduled work " What such a situation requires is a balancing of thg right of the employees to engage in protected concerted activity with the right of the employer to continue his business operations, "... and it is only when the employer's business need to replace the employee is such as clearly to outweigh the employee's right to engage in protected activity that an invasion of the statutory right' is justified." Overnight Transportation, supra. The burden of and Helpers Local No. 728 v. N.LRB., 364 F.2d 682 (C.A. D.C., 1966). 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establishing such facts rests with Respondent, and in my view that burden has not been met in the instant case. Just as in Overnight Transportation, supra, the drivers here are not basically assigned to a particular route. Although Pilot is a carrier with whom Respondent does a large volume of interlining, as Davis made clear in his testimony, a particular driver may go to Pilot's premises several times during a day, and may not go there again for days or even weeks. In such a situation adjustments ip the schedules of particular employees must be commonplace. Davis admitted that on March 7, when he discharged Adair, there remained 36, and on March 14, when he discharged Dunn, there remained 35 other drivers out of a total driver force of 37 , who had not refused to cross the picket line at Pilot, and whom he had no reason to believe would engage in such refusal. Indeed, as the pvi4ence shows, the duties which Adair and Dunn refused to perform at Pilot were within an hour or so thereafter performed by another driver to whom Respondent as- signed such tasks. As indicated above, the picketing at Pilot was continuing at the time of the trial, and there is no evidence that any driver refused to cross the picket line in the 5-month period between March 14 and August 16. The availability of other drivers to do the work which those who refused to cross a picket line failed to perform, has been considered by the Board in passing on the merits of an issue of "business necessity." See Overnight Transporta- tion Company, 212 NLRB 515 (1974), where Braswell Motor-Freight Lines, 1$9 NLRB 503 (1971), was cited with approval. The most that Respondent has shown is that it was put to some inconvenience in rearranging schedules in order to get its work done . But as the Board stated in Overnight, supra, 154 NLRB at 1274: ... if the protected right of employees is to have any meaning at all, then the employer who would justify a discharge on the basis of an overriding employer interest must present more than a mere showing that someone else may have to do the work . That fact is inherent in every situation where employees fail to perform a portion of their assigned tasks by respecting a picket line. To accept it alone as conclusive proof that their services were terminated solely to preserve efficient operation of the employer's business would be rendered illusory any finding that the employees engaged in protected concerted activity . It would leave the refusal to cross a picket line without any protection at all. Respondent additionally argues , based on NLRB. v. Union Carbide Corporation, 440 F.2d 54 (C.A. 4, 1971); opinion modified and rehearing denied 440 F .2d, 58, cert. denied 404 U.S. 826, that as Adair and Dunn both told Respondent (and Adair also so testified at the unemploy- ment hearing), that their reason for not crossing the picket line at Pilot was fear for their personal safety, the complaint must be dismissed because neither of them engaged in concerted activity. I find the argument without merit. In the first place, as hereafter set forth, I fmd that the discharge of Adair and Dunn violated not only Section 8(axl), but was at leasit in part, discriminatorily motivated, and therefore violated Section 8(aX3) of the Act, as well. Thus, even assuming that the conduct of Adair and Dunn did not constitute protected concerted activity , this case is distinguishable from Union Carbide, supra, on that ground. Secondly, even assuming that Union Carbide is not so distinguishable, the Board has made it clear that it does not agree that Union Carbide represents a correct statement of the law. See Overnight Transportation Company, 212 NLRB 515, fn. 6, and Congoleum Industries, Inc., 197 NLRB 534, 546-548 (1972). As an agent of the Board, it is my duty "to apply established Board precedent which the Board or the Supreme Court has not reversed," regardless of the views I may entertain on the subject . Insurance Agents' Internation- al Union, 119 NLRB 768, 773 (1957); Iowa Beef Packers, Inc., 144 NLRB 615, 616 (1963); S.N.C. Manufacturing Co., Inc., 147 NLRB 809, 821 (1954). Accordingly, on the facts of this case I find without merit Respondent's contention that Union - Carbide, supra, requires dismissal of the complaint in this case. On the basis of the foregoing, I find and conclude that Respondent's interference with the protected right of Adair and Dunn to respect the picket line at Pilot, outweighs the business justification which Respondent urges as its reasons for discharging them. Accordingly, I find and conclude that by discharging Adair and Dunn, Respond- ent violated Section 8(axl) of the Act. Additionally, in view of Respondent's union animus herein above set forth, I further ford and conclude that it is reasonable to infer, as I do, that the union sympathy of Adair and Dunn, as evidenced by their assistance to and support of the same union in seeking to gain organization of Respondent's employees, was a contributing factor in Respondent's decision to discharge them . Conduct even in part so motivated tends to discourage union membership. For these reasons, and having heretofore found that Respondent did not discharge Adair and Dunn for justifiable business purposes, I fmd and conclude that by such discharges Respondent violated not only Section 8(axl) of the Act, but also Section 8(aX3). Overnight, supra, 1275-76. H. THE REMEDY Having found that Respondent interfered with the right of Adair and Dunn to engage in protected concerted activity by discharging them for refusing to cross the picket line at Pilot, I shall recommend that it be required to cease and desist from such conduct, and that it be required to offer Adair and Dunn immediate, full and unconditional reinstatement to their respective former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by reason of their discharge by Respondent. Loss of pay, as aforesaid, shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall bear interest at the rate of 6 percent per annum , as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The record showing, as I have found , that Respondent maintains an attitude in opposition to the purposes of the Act with respect to the protection of employee rights, an order requiring it to cease and desist from in any manner G & P TRUCKING CO. infringing on rights guaranteed employees by Section 7 of the Act, is appropriate. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Adair and Dunn on March 7 and 14, respectively, for engaging in protected concerted activity, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 Respondent G & P Trucking Company, Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interfering with the rights of employees to engage in protected concerted activity or discourage membership in any labor organization by discharging employees for refusing to cross a picket line at the premises of another employer, without justifiable business reasons, in violation of Section 8(aXl) and (3) of the Act. (b) Discouraging membership in General Drivers Ware- housemen & Helpers Local Union 28, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousilmen & Helpers of America, or any other labor organization of its employees by discharging or in any other manner discriminating in regard to their hire or tenure of employment, or any other term or condition thereof. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of the rights to self- organization, to form, join, or assist the aforementioned, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action found neces- sary and designed to effectuate the policies of the Act: (a) Offer Fleming C. Adair, Jr., and James Dunn immediate, full, and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them each whole for any loss of pay suffered as a result of his discharge, as provided in the section hereof entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its authorized agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all 625 other records necessary or useful in determining compli- ance with this Order, or in computing the amount of backpay due under the terms hereof. (c) Post at its terminal in Greenville, South Carolina, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms provided by the Regional Director for Region 11 of the Board (Winston-Salem, North Carolina) shall, after being duly signed by an authorized representative of Respondent, be posted by, it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter , in conspicu- ous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the date of receipt of this Order, what steps it has taken to comply herewith. 17 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. Is In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to 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 After a hearing at which all parties had the opportunity to present their evidence, it has been decided that we, G & P Trucking Company, Inc., violated the National Labor Relations Act, and we have been ordered by the National Labor Relations Board to post this notice. We intend to carry out the order of the Board, the Judgment of any court enforcing the same, and abide by the following: The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from any such activities. WE WILL NOT in any manner interfere with our employees in the exercise of those rights. All our employees are free to become or remain members of Teamsters Local 28, or not to become or remain a member of that or any other union. WE WILL OFFER Fleming C. Adair, Jr., and James Dunn immediate, full, and unconditional reinstatement 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to their former or substantially equivalent position, pay suffered by reason of their discharge, respectively, without prejudice to their seniority or other rights and together with 6-percent interest. privileges, and make each of them whole for any loss of G & P TRUCKING COMPANY, INC.