Ron's Trucking Service

736 r DECISIONS OF-NATIONAL LABOR RELATIONS BOARD Ronald Hackenberger d/b/a Ron's Trucking Service and William F. Brown, Sr. Case 8-CA-8622. May 2, 1975 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On January 29, 1975, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this pro- ceeding. 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 con- clusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as/its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Ronald Hackenberger d/b/a Ron's Trucking Service, Norwalk, Ohio, his agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This case was heard in Norwalk, Ohio, on December 5, 1974, upon a charge filed on September 25, 1974, an amended charge filed on October 31, 1974, and upon a complaint issued on Novem- ber 8, 1974, alleging that Respondent violated Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate William F. Brown, Sr., in order to discourage union member- ship. In its duly filed answer, Respondent denied that any unfair labor practices were committed. After close of the hearing, briefs were filed by the General Counsel and the Respondent. Respondent, at the hearing, made certain preliminary mo- tions. In its posthearing brief, Respondent seeks dismissal of 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 resolution 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 the complaint alleging error in my rulings denying said mo- tions. The request that the complaint be dismissed is denied, essentially for the various reasons already expressed,upon the record. However, further comment is necessary with respect to my dental of Respondent's motion for continuance. Said motion was made prior to the taking of any evidence, and based on the claim that Respondent was unable to complete his investigation and adequately prepare for trial. Insofar as that claim was based upon Respondent's pending motions for discovery, in the circumstances involved here, Respondent was not entitled to a continuance simply because he may have elected to forestall trial preparation while awaiting a ruling upon his request. There may indeed be circumstances where it is "reasonable" and "necessary" for a party to await dispo- sition of pretrial motions before preparation for a trial. See Sutherland Paper Co. v. Grant Paper Box Co., 183 F.2d 926 (C.A. 3, 1950), cert. denied 340 U.S. 906. However, this is not such a case. Respondent's pretrial effort to secure discovery was in a form universally denied under a long line of consist- ently applied Board authority. As an experienced practitioner before the Board, Respondent's counsel knew or should have known that his chances for favorable action on the discovery motion, either before or at the hearing, were nil. To honor a request for a continuance, in such circumstances, would rest upon acceptance of a view that the mere filing of pretrial motions licenses the moving party to defer pretrial prepara- tion, and to perfect such a choice, by invoking an automatic right to postponement at the hearing. Such a view would afford blind primacy to unsubstantiated assertions of due process rights in a manner prejudicial to the interests of the other parties to the litigation, as well as to the statutory policies encouraging that Board remedies be invoked, pro- cessed, and resolved, without unnecessary delay. Respondent's request for a continuance was also predi- cated upon grounds that, since the complaint was received by Respondent's counsel on November 11, 1974, with the hear- ing scheduled for December 5, 1974, Respondent in the in- terim did not have adequate time to investigate the facts and prepare his case. From my impression of the issue raised by the pleadings and following discussion, in that regard, with Respondent's counsel I could not conclude that the time alloted for preparation of the defense was inadequate. Though afforded an opportunity, Respondent's counsel could not specify why the time provided was insufficient. His sub- jective generalities furnished no basis for objective determina- tion that there was merit in his position. Nonetheless, denial of the motion was subject to the express reservation that I would reconsider, if at any point in the hearing it should de- velop that the issue presented by the complaint proved more complex and required greater preparation than was apparent at the time of ruling. At no time prior to the close of the hear- ing, did Respondent's counsel renew said motion. Further- more, from Respondent's presentation, during the course of the 1-day hearing there was no suggestion that the defense was in any sense handicapped by a lack of preparation, and, indeed, no specifics to the contrary were set forth in Respon- dent's brief. Upon the entire record, including my observation of the witnesses while testifying, and after due consideration of the posthearing briefs, I make the following: 217 NLRB No. 128 RON'S TRUCKING SERVICE 737 FINDINGS OF FACT I RESPONDENT'S BUSINESS Respondent is a sole proprietorship with its sole facility located in Norwalk, Ohio, from which it is engaged in the transportation, by motor carrier, of stone, lime, sand, and other aggregates. Respondent, in the course of its trucking operations in the State of Ohio, annually derives gross income in excess of $50,000 for services and operations performed for the Federal Lime and Stone Company, Cleveland, Ohio, which business enterprise annually ships goods valued in ex- cess of $50,000 from its Ohio facilities directly to points located outside of that State. The complaint alleges, the answer admits, and I find that Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the amended answer admits, and I find that International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 20, is now, and at all times material has been, 4 labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Issue The sole question presented in this case is whether William Brown, Sr., was discharged because of his union activity, as the General Counsel claims, or because of successive failures to show up for work, a history of vehicle abuse, and other misconduct, as Respondent claims. B. Concluding Findings Respondent is a small family-held trucking concern which operates about 18 trucks through a work force ranging from 15 to 20 employees depending upon seasonal demands. There is no bargaining history for Respondent's employees. Ronald Hackenberger is the sole owner of the operation and he and his wife, Eunice, are its sole managers. Respondent's only operating facility shares the same premises with the Hacken- berger's home. At the rear of the house there is a parking area and a garage where the trucks are maintained and repaired. The office, which is run by Eunice Hackenberger, is located in the house. Respondent hauls sand, stone, lime, and coal for various consignors, including Republic Steel, Huron Lime, and Federal Lime and Stone. William Brown, Sr., was hired by Hackenberger as a driver in July.' Brown, in late August, contacted representatives of Local Union No. 20, International Brotherhood of Team- sters, in furtherance of his interest in union representation. In consequence, a union offical agreed to meet with Brown, and any other interested employees of Respondent, at a location referred to herein as the Horseshoe Bar. Thereafter, Brown informed various employees of the meeting that had been set I All dates referred to 1974 unless otherwise indicated up. Hackenberger admitted that prior to the meeting one of his drivers, Bob Runyon, told him that the men were going to have a union meeting. On the evening of September 6, two representatives of Local Union No. 20, Ben Paullen and Robert Robaszkjewicz, arrived at the Horseshoe Bar, and asked to be directed to employees of Respondent. Brown subsequently arrived and sat at a table with the union representatives. They discussed organization of Respondent, and Brown was given union membership cards, instructed to get them signed by a majority, and then to contact the Union. Also present at the Horseshoe Bar that evening was Clois Skaggs, another of Respondent's drivers. When the union representatives entered, Skaggs telephoned Ron Hacken- berger, advising him that two union men were at the Bar, asking for employees of Ron's Trucking.2 Hackenberger in- formed Skaggs that he would come down to the bar. About one-half hour later, Hackenberger appeared at the Horseshoe Bar. The union representatives had left prior to his arrival and, according to Hackenberger, Clois Skaggs and Brown were present. Skaggs told Hackenberger that Brown had been sitting with the union men. Brown testified, without contradiction, that Hackenberger, on arriving at the bar, ap- peared angry and, though Hackenberger spoke to Skaggs, Brown was ignored by Hackenberger when Brown attempted to speak to him. After this meeting, Brown discussed the Union with vari- ous employees in an effort to enlist their support. He also distributed authorization cards and solicited employee signa- tures thereto. Some 3 weeks after the meeting at the Horsehoe Bar, and on Tuesday, September 24, Brown was terminated. On the previous day, Brown had a conversation with a newly hired driver, Terry Reddix, in which Reddix was asked if he was interested in having a union. On the day prior to Brown's discharge, Monday, September 23, Reddix, after returning from a trip, told Eunice Hackenberger that he had seen Brown and asked her if Respondent was a union shop. She said, "No."3 On Tuesday, September 24, Brown reported for work, but found that he had not been assigned a trip. He approached Ron Hackenberger, who questioned Brown as to his failure to report for work the previous Sunday. After Brown at- tempted to explain, that he had received no assignment for Sunday, Hackenberger stated that since the incident at the bar Brown had been a "union agitator." Brown asked what Hackenberger meant by those terms, but no clarification was afforded. Brown denied saying anything to anyone. Hacken- berger then said, "That's the reason you are losing your job because you haven't said anything to anyone." Brown asked, "Does that mean I'm fired?" Hackenberger said, "Yes." 2 Ron Hackenberger initially testified that he could not recall whether Skaggs referred to the two men as "union men" during this telephone conversation Based upon Skaggs' testimony and the plausibihhes, I cannot imagine that Skaggs in the course of this telephone conversation did not identify the strangers as "union men " When Skaggs called Hackenberger, he knew their union status. Apparently that knowledge, and the desire to communicate it to Hackenberger, is precisely what prompted the phone call 3 Based upon the credited uncontradicted testimony of Reddix, who at the time of the hearing remained in the employ of the Respondent 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown then collected his belongings and left the premises." Aside from the foregoing, Ron Hackenberger, during ex- amination by his own counsel, admitted that Brown's union activity affected Hackenberger's discharge decision.' . Said admission is significant in two major respects. First, it confirms that Hackenberger knew or suspected that Brown was an employee organizer. Second, it discloses Hackenber- ger's animus towards the organizational effort and Brown's role in it. Hackenberger's opposition to union representation and the discharge of Brown, the principal employee organ- izer, within 3 weeks of Hackenberger's discovery of the union meeting at the Horseshoe Bar, and on the day after his wife received the report that the dischargee had discussed the Union with a new hire, give rise to an inference that the discharge was predicated upon unlawful antiunion considera- tions, and suffice to establish a prima facie case. Accordingly, at this juncture, the question that arises is whether Respon- dent's evidence as to legitimate considerations prompting the discharge is sufficiently compelling to overcome the inference of legality that arises from the facts set forth above. By way of defense, Respondent contends that the major or dominant reason and the precipitating cause of the discharge was Brown's failure to report for work, which caused him to miss scheduled loads on September 22 and 23. Respondent further argues that other factors contributing to the discharge were Brown's history of damaging equipment, his interfering with the work of the mechanics, his violation of company rules, and other work-related deficiencies. Of the various con- siderations offered in justification of Respondent's action, only one is material. Hackenberger's testimony, if it does not concede, unmistakably implies that he would not have dis- charged Brown had Brown not failed to show up for loads which allegedly were assigned to him for September 22 and 23. It would be difficult for Hackenberger to contend other- wise, for the secondary considerations set forth above which were known by Hackenberger at the time of the discharge had, till then, been condoned. Therefore, a proof of failure as to Respondent's alleged dominant reason for the discharge " Hackenberger denied that, in discharging Brown, he accused Brown of being a "union agitator " Instead, according to Hackenberger he told Brown that he would be fired for not showing up for work and secondly for "agitat- ing" a couple of dnver mechanics. I credit Brown, and the above account of the discharge conversation is based upon his testimony Hackenberger's testimony, through which he attempted to explain away the term "agitating" as having no intended reference to Brown's union actitity, was unpersuasive Thus, Hackenberger related that he used the term either "aggravating" or "agitating" because Brown had been talking to on-duty mechanics. This attempt to mitigate is hardly believable when considered against Hackenber- ger's own admission that he recalled telling a Board investigator that the term "agitating" was used because Brown had approached employees Terry Reddix and James Koch about joining a union Furthermore, as shall be seen infra, I was not impressed with the reliability of Hackenberger's testimony generally and regarded Brown as the far more credible witness 5 The above admission appears in the following excerpt of a colloquy between Respondent's counsel and Hackenberger Q. Did you have any knowledge, as a matter of fact, that Mr. Brown was engaged in union activity9 A Through hearsay, yes Q. Did that effect your decision to discharge William Brown in any way? A. I would say in a minor portion I won't say that would in any way, but I have heard- Q. What was the primary factor? A. The missing of work would impel the finding of a violation, and a valid defense, in that event could not be salvaged from aspects of Brown's work performance which would not alone have prompted his discharge. Turning to the merits of Respondent's claim that Brown was terminated because of his failure to report for work on September 22 and 23, I note at the outset that, as is true in the case of any successful business venture, Respondent had a legitimate concern to assure that its customers were pro- vided efficient and reliable service. To this end, Respondent had every right to expect that its drivers would be available to haul scheduledloads, or to report in if they could not make a scheduledrun. Brown conceded that the drivers, at the time of their hire, are informed as to the importance of these matters. In addition, a notice is posted in the garage that drivers will be subject to a $5 fine for missing a day's work without reporting in. On the other hand, it is also clear, that Respondent's dri- vers worked no fixed shifts and have no regular daily starting times. They receive no hourly rate or guarantee, but are paid exclusively on a percentage-of-haul basis. Their driving as- signments are made on the afternoon of the day preceding the trips. Shortly before Brown's discharge, Respondent changed its method of assigning loads to the drivers. Under the old system, the runs would be assigned by direct communication with Eunice or Ron Hackenberger, either in person or by telephone However, on Sunday, September 15, that system was replaced by another, apparently designed to relieve the Hackenbergers from effecting trip assignments through di- rect communication with drivers. Under the new system, each afternoon between 2 and 3 p.m., Eunice Hackenberger would prepare a card for each driver, indicating his assign- ment for the succeeding day. She would then place the card in a manila envelope, which, in turn, she deposited in a box in a telephone booth located on Respondent's premises. The drivers in the evening after returning from their daily runs would check that box for their next day's assignments. According to Brown, on Saturday, September 21, he re- turned from his last run late in the evening somewhere around 7:30 p.m. He checked the work assignment box and found it empty, with no work assignments at all. Brown therefore assumed that there would be no work for him on Sunday and he did not come in. This assumption on Brown's part was not lacking in prudence, for Ron Hackenberger admitted that only half of the dnver complement was neces- sary to cover the normal Sunday workload at that time of the year. Brown next reported for work on Monday, September 23, at about 6 a.m. According to Brown, his work assignment for that morning was in the box in the telephone booth, and, accordingly, Brown, on his own, took his truck and pro- ceeded to deliver his loads. Brown's first run required him to report at 2 a.m. that day, and it was missed. During the second run, Brown's truck broke down. Brown stayed with the truck from 1 p.m. until 6:30 p.m. that evening when Eunice Hackenberger picked Brown up. She took Brown to Huron Lime where he picked up another truck and was assigned another run. Brown did not complete his work that evening until 2:30 a.m., Tuesday morning. At that time he returned to Respondent's premises, but found no work as- RON'S TRUCKING SERVICE signment in his box. The next day Brown reported for work at about 9 a.m. and it was on this occasion that he had the conversation with Ron Hackenberger, previously set forth in the text, which culminated in his discharge. In contrast with Brown, Eunice Hackenberger testified that on Saturday, September 21, she made out the job assign- ments for the drivers between 2 and 3 o'clock that afternoon. She claims that she assigned Brown two separate runs out of Republic Steel for Sunday morning, with a reporting time of 7 a.m. She claims that she, herself, put this assignment in the appropriate box in the telephone booth. She testified that she did not return to retrieve the materials on deposit in the telephone booth until the following Sunday, around noon- tmae. She further testified that since Brown did not show up on Sunday his loads were distributed to other drivers who were on the premises.6 That afternoon, while preparing the Monday schedule, she claims to have discussed Brown's situation with her husband and, pursuant to his suggestion, she gave Brown three loads on Monday, the first of which would require him to report in at 2 a.m. Monday morning.' If Mrs. Hackenberger's testimony is to be be- lieved, it would be a fact that Brown missed three scheduled loads in succession on Sunday and Monday. Mrs. Hacken- berger concedes that on Monday afternoon after Brown's truck broke down she picked him up, but did not at that time say anything to him concerning his failure to report for any scheduled loads. Ron Hackenberger testified that when he woke up on Sun- day, September 22, he discovered that Brown had not re- ported for work. Brown's truck was still on the premises, so Brown's assignment for that day was rescheduled and given to other drivers. Hackenberger testified that he did not dis- charge Brown at that time because he felt that, perhaps, Brown might show up to wash his truck that day and relates that he decided that he would give Brown a second chance by assigning him a job for Monday morning at 2 a.m. How- ever, when Brown did not show up for the 2 a .m. trip, and Hackenberger woke up at 9:30 a.m. on, Monday and discov- ered this, according to Hackenberger, he at that time decided to fire Brown. However, Hackenberger did not see Brown that day and hence the discharge did not occur until Tuesday morning. The validity of Respondent's primary reason for terminat- ing Brown rests critically on the credibility of the Hackenbergers.$ I do not believe them. Brown impressed me as the far more trustworthy witness. His testimony was stnaightforward,and candid, and he openly admitted without detectable coloration various aspects of his employment his- tory that were unfavorable to him and ultimately cited by Respondent as secondary reasons for his termination. Ron Hackenberger, in contrast, was evasive, contradictory, and reflected a lack of recollection as to certain matters of such importance as to create the impression that he tended to 1' These drivers, though identified, were not called in corroboration of Eunice Hackenberger. Brown credibly testified that he normally was assigned two trips per day, bul sometimes was given three. e, The trip ticket, allegedly placed in Respondent's telephone booth-on Saturday afternoon, and allegedly bearing Brown's work assignment for both Sunday and Monday, placed in evidence as Resp. Exh 5 is of no greater force than the parole testimony of Eunice Hackenberger and her credibility 739 inject memory lapses as a shield to cover matters prejudicial to the defense. Consistent with my observation in this respect, Hacken- berger testified as to a lack of recollection that Skaggs told him that the two strangers at the Horseshoe Bar were "union men." In the light of Hackenberger's interest during the phone conversation in what the two men were doing at the bar, as well as his action in immediately going to the bar to investigate, I cannot believe that Hackenberger could not recall so significant a fact. Contributing further to my belief that Hackenberger deliberately attempted to conceal the full extent of his knowledge of union activity and Brown's in- volvement in the Union was his initial testimony that he had no direct knowledge of Brown's union activity and that he did not take seriously reports from employees that Brown was so engaged. Also part of this pattern was Hackenberger's at- tempt to explain away, as nonunion-related, his remark to Brown, during the discharge interview, that Brown was agi- tating other employees. In contrast to these efforts to dimin- ish the significance of Brown's known or suspected union involvements, Hackenberger, on subsequent examination by his counsel, admitted that Brown's union activity had some influence upon the discharge decision. Respondent in its brief describes this admission as candid. Perhaps it was, but in the circumstances the admission confirms, rather than puts to rest, my doubt as to Hackenberger's trustworthiness. The admission came too late, and involved no more than what was already inferrable from testimony then in the record, which included Hackenberger's reluctant concession that he re- called telling a Board agent that he accused Brown of agitat- ing because Brown had reportedly discussed the Union with Koch and Reddix. The admission that Brown's union activity had something to do with his termination confirms that Hackenberger, in his earlier testimony, deliberately at- tempted to downplay his knowledge or suspicion of Brown's union activity, the importance he attached to reports of Brown's union activity, and that union activity was involved in the discharge decision. Additional grave questions concerning the testimony of Hackenberger are based on my impressions garnered from observing him testify. Overall, he impressed me as a man on the witness stand, laboring under the strain of relating facts in defense of a pretextual discharge. My disbelief of Ron Hackenberger extends to Mrs. Hackenberger. Her testimony that she placed Brown's work assignment in the telephone booth on Saturday afternoon and retrieved said assignments as 12 noon Sunday, and her testimony as to having placed the markings on Respondent's Exhibit 5 with respect to these assignments, are all essential to support her husband's as- serted ground for discharging Brown. As a comanager of Respondent, and wife of the owner, it was her natural inclina- tion to corroborate Hackenberger's testimony. I do not be- lieve the testimony of either and they are discredited based upon my general mistrust, as set forth above, as well as the further highly questionable aspects of their testimony as set forth below. Firstly, based on Brown's credited testimony, I find that there was no assignment of Sunday work in his box on Satur- day evening when he quit for the day. I further find that 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had no fixed procedures whereby the various drivers who were not scheduled for Sunday work were re- quired to call in to obtain their next work assignment.' Thus, Brown's reporting for work at 6 a.m . Monday morning was not unusual or improper. Indeed that Brown's action in this respect entailed no breach of company rules or practices explains the failure of Eunice Hackenberger to mention any missed loads to Brown during her confrontation with him as late as 6:30 p.m. Monday evening. Considering the fact that Mrs. Hackenberger was responsible for making work assign- ments, I cannot believe that she would not have mentioned the three successive missed loads by Brown, if he in fact had in any sense been derelict under established company proce- dure. Mrs. Hackenberger not only failed to mention the missed loads to Brown at 6:30 p.m. on Monday evening, but she, at that time, assigned him an alternate load thereafter. Other questions which emerge from Ron Hackenberger's testimony contribute to Brown's credibility and further sup- port the inference that the missed Sunday hauls were never in fact assigned. Thus, Hackenberger testified that, as a mat- ter of policy, the failure to report for work and the missing of loads was a serious offense, and that in the period proxi- mate to Brown's discharge some six other drivers were ter- minated on this very ground. Considering this testimony, against Hackenberger's portrayal of Brown as a poor driver with a record for an abuse of trucks and violation of other company rules, it is difficult to understand why Hacken- berger, after Brown had missed two loads on Sunday, decided that afternoon, when Brown had still not appeared, to give Brown another chance. No explanation was offered as to the reasons behind such leniency in the light of Brown's work history and the seriousness of this most recent alleged offense. But the puzzling nature of Hackenberger's alleged actions does not end there. For, in giving Brown a second chance, the Hackenbergers indicate that between 2 and 3 p.m. on Sunday afternoon Brown was assigned a load which would have re- quired him to report on Monday morning at 2 a.m. There is no evidence that assignments, requiring a driver be present at such an unusual hour, are regularly incident to Respondent's operations. The inherent unfairness of this assignment, as a so-called "second chance," suggests that it was not that at all. My disbelief of Respondent's testimony that Brown was assigned, or missed, any loads on September 22 suggests that the events of that day were contrived by the Hackenbergers, who, probably, were mindful of the likelihood that Brown 9 I discredit Ron Hackenberger's testimony that under established proce- dures a driver who receives no work assignment is required to contact the Hackenbergers. Hackenberger, on questioning by his own counsel, testified that, under the old method of assigning trips, it would be normal for either of the Hackenbergers to call an employee, or for an employee to call them, concerning his next day's work schedule. Hackenberger, on examination by the General Counsel, testified that under the new system if a work assign- ment card was not in the box a driver was required to check with the Hackenbergers to see what he would be doing on his next tour of duty. The origin however of this requirement was muddled by the fact that the old system included no such requirement, and also by implication rising from Hackenberger's subsequent testimony, the sense of which is that drivers were never told of any such requirement. This is highly significant, for Brown's failure to call in on Sunday was apparently the first incident of its kind under a system that had been in effect for but 1 week Aside from my reservations, already expressed concerning Hackenberger's credibility, this aspect of Hackenberger's testimony suggests that he was not above tailoring facts to meet the needs of the defense. would miss his first assignment on Monday-,, and did not regard this incident as sufficiently serious to warrant his dis- charge. Contrary to this analysis, Ron Hackenberger would have me believe that he decided to discharge Brown early Monday morning upon discovery that Brown had missed the 2 a.m. load. However, had that been the case, a question would anse as to why Mrs. Hackenberger, at 6:30 p.m. Mon- day evening, assigned Brown another load, without referring to the decision or any irregularities on Brown's part. In my opinion, the truth lies elsewhere. Thus, as will be recalled, Reddix, a newly hired driver, credibly testified that, after returning from a trip that same Monday, he made Mrs. Hack- enberger aware of Brown's having discussed union represen- tation with him. Other considerations point to the strong probability that it was this latter conversation which prompted the discharge, and that the actual decision to do so was made by the Hackenbergers sometime after Reddix has spoken to Mrs. Hackenberger. Thus, Ron Hackenberger ad- mitted that Brown's union activity had some influence upon his decision. Yet, according to Mrs. Hackenberger's tes- timony, the report from Reddix was his sole source of direct knowledge, prior to the discharge, of Brown's union involve- ment. That the decision was made with the benefit of this information is further suggested by Hackenberger's having made an admission that the accusation he directed to Brown, at the time of the discharge, that Brown was agitating was intended as a reference to Brown's having discussed the Union with Reddix. Hackenberger, quite obviously, would have had no knowledge of the Reddix-Brown conversation at the time he alleges to have made the discharge decision. In sum, as the General Counsel's prima facie case has not been countered by credible evidence establishing a lawful basis for the discharge, the illegality thereof has been estab- lished without necessity for further findings. However, in the interest of clarity, I shall go beyond that in this decision, for, upon application of the probabilities to the testimony as a whole, a picture of what actually occurred emerges. Accord- ingly, it is my opinion, based upon the total record, that it was the Reddix's report to Mrs. Hackenberger which triggered and provided the dominant cause for the discharge; and that the Hackenbergers, in search of a pretext, were, for obvious reasons, reluctant to rely upon the missed 2 a.m. Monday assignment, and therefore contrived the Sunday missed loads to lend an aura of respectability to the discharge decision and to further mask the true reason for the termination of Brown. In any event, I find that Respondent has failed to substantiate the defense, and accordingly I find that the General Counsel has established by a preponderance of the evidence that Re- spondent violated Section 8(a)(3) and (1) of the Act by dis- charging Brown because of his union activities. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging William F. Brown, Sr., because of his union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. RON'S TRUCKING SERVICE 741 REMEDY Having found that Respondent has engaged in certain un- fair labor practices, I shall recommend that it be ordered to cease and desist therefrom, and to take certain affirmative action necessary to effectuate the policies of the Act. I shall recommend that Respondent offer immediate rein- statement to William F. Brown, Sr., to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against hirn 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 a valid offer of reinstatement, less his net earnings during that period. Backpay shall be computed with interest on a quarterly basis in the manner prescribed by the Board in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and conclu- sions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the fol- lowing recommended: ORDER10 the Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary or useful in analyzing the amount of backpay due under the terms provided by this Order. (c) Post at its Norwalk, Ohio, facility the attached notice marked "Appendix."" Copies of said notice on forms pro- vided by the Regional Director for Region 8, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days there- after in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. " In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Ronald Hackenberger, d/b/a Ron's Trucking Service, Norwalk, Ohio, his agents, successors, and assigns, shall: 1 Cease and desist from: (a) Discouraging membership in any labor organization, by discharging employees or in any other manner discriminating against them in regard to their hire or tenure of employment or with respect to any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights -guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Offer William F. Brown, Sr., immediate and full rein- statement 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 the unlawful discharge, in the manner set forth in the section of 10 ][n 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 4 8 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. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any employee or otherwise discriminate against him because of his membership in, or activities on behalf of, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 20, or any other labor organi- zation. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer William F. Brown, Sr., immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position with- out prejudice to his seniority or other rights and privi- leges, and WE WILL make him whole for any loss of earn- ings suffered by reason of his unlawful discharge. RONALD HACKENBERGER, d/b/a RON'S TRUCKING SERVICE