Martin-Bower Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Martin-Brower Company and Earnest J. Ingram. Case 9-CA-10799 December 1, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 19, 1977, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 her recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, the Martin- Brower Company, Columbus, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended order. I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1961). DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed on November 11, 1976,1 by Earnest J. Ingram, an individual, the General Counsel, by the Regional Director for Region 9 (Cincinnati, Ohio), issued a complaint and notice of hearing on December 30. The complaint, as amended at the hearing, alleges in substance that The Martin-Brower Company, herein called the Respondent, interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended, by interrogating and threatening employees regarding union activities and by creating the impression that it was keeping the union activities under surveillance; and discriminated in regard to hire and tenure of employment by discharging Ingram on or about November 5, and at all times thereafter failing and refusing to reinstate him, because of his membership in and activities on behalf of, and in order to discourage membership in, Teamsters Union Local 413, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union; and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The Respondent, in its answer duly filed, admits some of the factual allegations of the complaint, but denies that it has engaged in conduct violative of the Act. Pursuant to due notice, a hearing was held before me at Columbus, Ohio, on March 29 and 30, 1977. All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. Subsequent to the hearing, on or about May 2, 1977, the General Counsel and the Respondent filed briefs which have been duly considered. Upon the entire record in this proceeding and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation engaged in the wholesale distribution of food and miscellaneous products at its Columbus, Ohio, location. During the past 12 months, which is a representative period, the Respon- dent had a direct outflow of goods in interstate commerce, valued in excess of $50,000, which it sold and caused to be shipped from its Columbus, Ohio, location directly to points located outside the State of Ohio. The complaint alleges, the Respondent in its answer admits, and I find that the Respondent is, and at all times material herein has been, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting com- merce as defined in Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent in its answer admits, and I find that the Union is, and at all times material herein has been, a labor organization as defined in Section 2(5) of the Act. The parties stipulated at the hearing that, pursuant to a petition filed by the Union on November 17 in Case 9-RC-11808, and a Stipulation for Certification Upon Consent Election entered into on December 28, an election was held among the drivers of the Respondent on January 22, 1977, and the Union was certified by the Board as the representative of these employees on February 3, 1977. III. THE UNFAIR LABOR PRACTICES A. The Issues The issues herein are whether or not certain supervisors of the Respondent interrogated employees about their activities on behalf of and sympathy for the Union, threatened employees with loss of benefits and closing of I All dates hereinafter refer to 1976 unless otherwise indicated. 233 NLRB No. 130 876 THE MARTIN-BROWER COMPANY the Columbus operation if the employees chose the Union as their collective-bargaining representative, and created the impression that the Respondent was keeping the union activities of its employees under surveillance, in violation of Section 8(a)(1) of the Act; and whether the Respondent discharged Ingram because of his membership in and activities on behalf of the Union and in order to discourage membership in the Union, in violation of Section 8(a)(3) and (I) of the Act, or discharged him for cause and in accord with its established policies and procedures. B. Organization of the Union There are distribution centers at various locations in addition to the one at Columbus, which began operating in or about January 1975 with Rainer Hock as distribution center manager. Robert Mohrhusen was transferred to Columbus as transportion manager on April 1, 1976. Curtis Gaddis, a business agent of the Union's local which represents employees at the Louisville, Kentucky, distribu- tion center, began contract negotiations with company officials on October 5. He told these officials, including John Whitney, who was eastern regional distribution manager and Hock's immediate superior, at negotiation sessions on and after October 5, of his intention to organize the Columbus terminal. Gaddis made a couple of orga- nizing trips to Columbus in November, did some handbill- ing, and handed out cards. He discontinued these activities after a trip on December I when he learned that another local was organizing the Columbus employees and had filed a petition on November 17. Harold Wicker, who was a driver for the Respondent over a year, testified that he and others discussed the Union in the drivers' breakroom, that a number of drivers became interested in the Union and signed cards after Ingram was discharged on Novem- ber 5, and that the petition was then filed. Some of the drivers, however, had been talking about organizing long before these November activities. They discussed it when they met at truck stops or in the drivers' breakroom or elsewhere on company premises after completing their runs. Shortly after Mohrhusen, who supervised the drivers, was transferred to Columbus, some of the drivers became concerned that trucks were being overloaded to an extent that made unloading at their various delivery points hazardous. They discussed orga- nizing because of this and other employment problems. In late June some of the dnvers met about 7 p.m. in the warehouse cafeteria. Ingram saw them there when he returned from a run, joined the group, and indicated to the others for the first time that he was in favor of the Union. Some of the drivers present were surprised as they had thought of him as a company man who was opposed to the Union. Hock and Mohrhusen also believed him to be uninterested in a union. The group selected Ingram and Robert Griglek, who was a driver for the Respondent more than 2 years, to go to the Union the next day, when both had the day off, to get union cards. On the next day, 2 The complaint, alleging that Mohrhusen engaged in certain conduct violative of Sec. 8(a)( ) of the Act beginning in September. was amended at the hearing to allege this conversation, in or about early July. within the 10(b) period, as an additional incident constituting unlawful interrogation. however, Griglek was unavailable and Ingram decided not to go alone. C. Interference, Restraint, and Coercion 1. Background evidence The General Counsel presented as background evidence testimony about certain pre-Section 10(b) events. Griglek testified that Hock, in January 1975, said that if the employees voted union they would lose employment benefits and that certain management officials did not like unions. Griglek also testified that Hock called him into the office in late November 1975 and said the Union would do no good and would not get the men better benefits; that Hock asked if he had a release card from the Union, and he said he and most of the drivers did; that, after more discussion about the Union and work problems, Hock said if the Union did get in, the Respondent would close the plant and move; and that he always made a prounion response. Hock testified that he did not recall the conversation in November 1975 described by Griglek; that he never said he would close down or move, or employees would lose benefits, if the Union came in; and that "whenever the subject of benefits or salary or holidays or vacation pay or anything else came up ... I told anybody that I talked to that if we were in a union situation, we would sit down and negotiate everything that would be in that agreement." Griglek testified that William Spivey, who was a driver for the Respondent since January 1975, asked him, in March 1976, if he was interested in the Union, and he said he was; that he was called to Mohrhusen's office at about this time; that Mohrhusen said he understood Griglek was trying to get the Union in, but refused to answer how he knew that; and that he said he did not like to be blamed for something he did not start, and it was Spivey who first spoke to him about the Union. Mohrhusen testified that he did not recall telling Griglek he understood Griglek was trying to get the Union in, or Griglek stating in response that it was Spivey. 2. 8(aXI) allegations Ingram testified that he usually went to the distribution center on his day off to check his runs for the next day; that when he did so about a week after the drivers' meeting in the cafeteria, Mohrhusen called him to the office and discussed driving accidents generally; that Mohrhusen then asked if he knew anything about the union movement, and he said he did not; that Mohrhusen, referring to a list, asked if he knew whether certain named drivers were involved in the Union, and he said he did not and did not want to be involved in this questioning; and that Mohrhu- sen thanked him and he left.2 Mohrhusen testified that he did not recall in July asking Ingram about a list of drivers and the Union, and that he did not recall Ingram saying he did not want to get There was no reference in Ingram's pretrial affidavit to a conversation about the Union on this date. Ingram testified that he recalled it after the affidavit was prepared. 877 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD involved in these questions. Mohrhusen also testified that Ingram came to the office about the time there was an OSHA inspection; that they were then on a cordial basis; that when he told Ingram of the inspection, Ingram said Griglek made the report to OSHA and "he also implied that Bob Greglek was involved in some organizational activity, or he was suggesting that we should go to a union, and I just tried to ascertain why he was going there," whether it was based on the OSHA report which was about heavy loads; and that was the entire conversation. Mohrhusen testified further that: "My first exposure to the union? Okay. Anyone talking about the union that I can recollect was when Mr. Ingram confronted me the day that we spoke about the OSHA report, and he mentioned Mr. Greglek's name." He testified also that the name of Spivey or other employees "never came up and I never at anytime tried to ascertain any names as far as the union involve- ment was concerned. I just was primarily concerned with the whys." Mohrhusen also testified that his office was next to, and had "a big glass window" overlooking, the drivers' room, "so, therefore, anytime there was traffic in or out . . . it would naturally meet my eye .. ."; that he made it a point at this time to call the drivers, including Ingram, to his office almost daily, before or after their runs, "in order to determine what problems they might have or what are areas of any disenchantment that they might have"; and that these conversations were not about unions "other than maybe, you know, an academic approach to unions in that what would be gained by a union." Meetings of drivers and management were held for rebidding of routes every 13 weeks on a Saturday morning, not normally a workday. In or about mid-July, Hock held a meeting of drivers at which other management personnel present were Mohrhusen, James Dahlem (transportation supervisor), and Neil Huntley (vice president of operations of national accounts division).3 At this meeting, Hock described existing and new company benefit plans and Huntley discussed the retirement plan. Raymond Bass, who was a driver about 14 months, testified that he asked to be excused from going to this meeting so he could attend his brother's wedding; that Hock and Mohrhusen asked to talk to him before the meeting; that in this conversation Hock asked how he felt about the Union, and he replied he did not think a union was needed unless for job security; and that Hock said, if the operation went union, it would close. Bass also testified that Mohrhusen knew he was prounion. Phillip Osborne, a driver over 2 years, testified that Hock at this meeting, after describing a new health plan, asked for employee complaints; that when a question was raised about the meal allowance on layover trips, management agreed to look into the matter; and that Hock said the Union would not help the drivers, the Union could not guarantee job security, and if the employees brought in the Union they would lose some privileges. He also testified that after the meeting Hock asked how he would vote if there was an election, and he answered it was none of Hock's business; and that Hock then said, if the Union came in, Hock would cut the pay and hours of work. 3 There was some confusion in the testimony as to the date of this meeting. No records were introducted by the Respondent that establish the date. Dahlem and Huntley were not called to testify. Ingram testified that Hock, after the discussion of company benefits, said there was a rumor everyone wanted to go Union, and asked that the employees discuss their problems at the meeting. Ingram requested an increase in the meal allowance on layover runs, and Hock agreed to see what could be done about it. The meal allowance was raised after this meeting from $17 to $20. Spivey testified, as a witness for the Respondent, that he favored the Union at one time because he felt, like the others, that the loading was sloppy, but he was actually against unions in the 22 years he has been a driver; that he was at the meeting when Hock spoke of the new benefits plan; that Hock "asked if anybody had any complaints about anything, now would be the time to air them, and I had heard rumor of the union going around. .... I said, I've heard rumors of the union going around. I said, I'm getting tired of hearing the bitching. Let's bring it out in the open", that Hock did nothing then as far as he knew; that he thought Hock discussed the Union, but could not recall what Hock said; and that he did recall "there were no threats at all" then or at any time since then, and no promises based on employees being against the Union. Roger Kreps testified, as a witness for the Respondent, that he attended the meeting at which management discussed the new insurance program; that Hock "asked if anybody was discontent or anything, and he had heard that there was rumblings of bringing a union in, and he said, well, let's get it out in the open and discuss it, what the problem is and maybe we can cure it"; and that Hock made no threats or promises of benefit with reference to a union then or at any other time that he heard. Charles Young, a driver since September, testified, as a witness for the Respondent, that Hock, after presenting the new health plan, said there were rumors of union talk that should be discussed at the meeting, and asked for employee complaints; that no complaints were raised; and then that he recalled that someone spoke of meal money and Hock said he would try to remedy that complaint. Young denied that any threats or promises were made about the Union, but admitted that he left the meeting with the clear idea the Respondent did not want the Union at the Columbus terminal. Hock testified that Bass was given permission to leave the meeting early but was present during the discussion of benefits; that before the meeting he said Bass had raised problems about loading and other matters and would not be present for the open discussion, so "I asked him if he had anything that he wanted to tell me at that time"; that he was "not really sure" about what Bass told him and did not recall whether they discussed going union; but that he did not threaten to close down. Hock testified that he invited employees at the meeting to present any problems they had because drivers had requested a meeting for this purpose; that the only matter raised was travel money; that, although reminded by the question that Spivey claimed to have brought up the subject of the Union, he knew there was a discussion of the Union but was not sure how the subject was brought up or what he said except that "The general nature wasn't much 878 THE MARTIN-BROWER COMPANY different - it was basically the same as our corporate philosophy on unions"; and that Huntley said after the meeting "He had thought that it had gone very well and he thought that it had been productive." Asked then if he "ever threatened to close the Columbus Plant if a union came in," he answered "No." Hock testified that he did not recall asking Osborne or any other employee how he would vote and no vote was pending in July; and that he did not recall making certain remarks about reduced pay and hours, and was not likely to say such things because, while he makes area wage surveys and recommendations, the final decisions are made by a management committee of which he is not a member. Mohrhusen testified that Spivey, without naming any drivers who were "disenchanted," had urged a meeting at which to discuss the drivers' problems and "see what we could do to get them corrected"; that he and Hock discussed this and decided to hold the meeting to determine what "elements of disenchantment are floating around and what we could do to correct any problems"; and that "disenchantment" referred to the fact he heard the drivers had some reasons for complaint, this disenchant- ment "had led to rumors of potential union activities," and he had heard rumors of potential union activities. Mohrhusen also testified that he recalled Hock talking to Bass that day but did not recall "whether it was before or after the meeting"; that "we said that the subject of disenchantment might be introduced during the meeting and since he [Bass] wasn't going to be there, would he like to . . . tell us about any of the problems or gripes that he might have at that time.... I don't recall that he had any"; that he did not recall that Bass made any comment about job security; and that he did not recall making certain remarks Bass attributed to him in another conver- sation. Mohrhusen testified further that at the meeting, after benefits were discussed, Spivey "spoke up and said that he would like to request that while all the drivers were there at that meeting, we talk as a group about some of the disenchantment of union problems. .... Not union problems.... Any problems that the drivers might have which would cause a potential organizational attempt"; and that several complaints were raised but the only one he could recall was layover expense. Mohrhusen answered "No" to questions whether Hock, at the meeting or at any other time, said "the plant would be closed or shut down or anything like that if the union came in" or made "any other threats about a union coming in." Mohrhusen testified that, as a distribution center operations manual, outlining steps to be taken so that employees will not seek union representation, requires that "Any organizational activity should be reported immediate- ly, by telephone, to the Regional Manager and the Director of Industrial Relations," he would have made such reports. Ingram testified that, about a week or two after the Hock meeting, he came in from a run about 7 p.m. and saw Hock talking to Mohrhusen in the drivers' room; that Hock asked if he had any problems, and he said he did not, but Hock said he did and asked him to come to the office; that in the office Hock mentioned hearing he wanted to go Union and asked if that was so, and he said he was ready; that Hock suggested discussing his problems, and he spoke of trailers loaded so full they could not be unloaded safely, and of going through channels personally to raise this matter five or six times over a period of several months, but nothing was changed; that he also said a majority of the drivers wanted to go Union; that Hock admitted knowing that and said if the Union came in he would lose pension benefits and take a wage cut; that Hock took some folders out of the desk and explained it was a survey showing other companies doing similar work paid less than the Respon- dent; that he said it was not the money but the loading that was the problem; and that Hock said if there were further problems, he should come to the office, and he said he would. Hock testified that there was such a conversation but it was in late August; that Mohrhusen had said Ingram was upset and, as Ingram had never been a complainer, he was upset, so he asked Ingram to come to the office to talk; that he said the personnel procedure is to take problems to the immediate supervisor and on up the managerial staff; and that they discussed certain problems, including the loading, which he agreed was a problem that management was trying to solve. Hock also testified that, although he was not sure how the subject was raised, Ingram said some of the drivers were thinking of going to the union hall and he, Ingram, was thinking of going with them; that "I told him that based on the things that he had come to me, that the problems that he talked about, I didn't feel that a union situation would resolve those problems for them," and that the drivers would not necessarily receive the rates in the union master freight agreement because "whatever the pay would be, would be negotiated between the company and the union"; that he showed Ingram a survey he had taken demonstrating that many companies in the area that were organized were not paying the master freight rates to drivers; and that Ingram suggested he make this explana- tion to the other drivers "or else, if you don't tell them or if you don't do something, you are going to have union." Hock also testified that, while he did not make "the same pitch" to the other drivers, he thought, when Ingram walked out, they were on good terms, and their relationship continued to be excellent up to the time of Ingram's terminations. Hock denied that Ingram had done anything up to the day he was terminated that caused him to believe Ingram "was a leader or active in the union organization." Hock also denied that he made any threat to close down in his conversation with Ingram. Concluding Findings Ingram and other witnesses of the General Counsel, although confused and inconsistent in some particulars, impressed me as generally candid and straightforward witnesses trying to recall and relate what was said, what occurred, and when. Hock and Mohrhusen, however, appeared from their demeanor to be vague, evasive, and unconvincing witnesses, and much of their testimony is, in all the relevant circumstances, implausible. Moreover, Hock and Mohrhusen explicitly denied threats to close down or move the Columbus operation but, as to other conduct ascribed to them by the General Counsel's witnesses, stated only that they could not recall, and both 879 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted engaging in some of the conduct in issue. Accordingly, in view of the demeanor of the witnesses and the nature of the testimony they presented, I discredit in large part the testimony of both Hock and Mohrhusen. Further, I find the conclusionary statements by witnesses for the Respondent that no threats were made do not refute the testimony that certain remarks were made which the Board finds coercive within the meaning of the Act. On the basis of the testimony that I credit, of the admissions made in the testimony of Hock and Mohrhu- sen, and of the evidence in its entirety, I find that Hock and Mohrhusen, on various dates during the period approxi- mately of July through September, called Ingram and other drivers to the office and questioned them about the organizing activities of themselves and of other employees; that Hock at a meeting of drivers raised the subject of union organization, related the existing and new employ- ment benefits, asked about employee complaints, promised to consider the meal allowance complaint raised by Ingram, and did later increase the amount; that Hock told employees that, if the union campaign were successful, the Columbus operation would be shut down or moved, or that employees would lose certain employment benefits; and that, by remarks Hock made to employees indicating knowledge of their interest in the Union, he created the impression that the Respondent was maintaining surveil- lance over the union activities of the employees. Accord- ingly, I find that the Respondent, by the foregoing conduct, interrogated employees concerning their activities on behalf of and sympathy for the Union, threatened employees with loss of employment benefits and closing of the Columbus operation if they designated the Union as their collective-bargaining representative, and created the impression that the Respondent was keeping the union activities of its employees under surveillance, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, in violation of Section 8(a)(1) of the Act.4 D. The Discharge of Ingram 1. Driving accident rules Company rules provide, in a section of the operations manual5 entitled "Driver Safety Award Program," that the company follows the guidelines of the National Safety Council, of which it is a member, in determining whether an accident was preventable; that an accident is classified as preventable if it is found that the driver failed to do everything he "reasonably" could to prevent the accident, not on the basis of cost or liability; that 20 categories of accidents are set forth "as a guide in determining questions of preventability"; and that a driver who has three preventable accidents within a 12-month period is disquali- fied from driving. The manual also provides that - C. Decisions with regard to accident preventability will be made by the Distribution Center Personnel 4 Central Power & Light Company. 173 NLRB 287, 293 (1968). Schwab Foods, Inc., d/b/a Scotts IGA Foodliner, 223 NLRB 394 (1976). 5 Hock testified that the Chicago office prepares the manual and sends (please contact the Corporate Fleet Administrator for help if needed). D. Drivers may challenge a ruling in writing, including their reasons for the challenge. The Distribu- tion Center will forward this letter together with all supporting data to the Corporate Fleet Administrator where the accident will receive a special review. Mohrhusen admitted that no written rules as to accidents were given to the drivers, who are advised about this only by word of mouth. Ingram maintained he was never officially told of the three-accident rule but heard of it as a rumor among the drivers. Donald Jones, who had been transportation supervisor before he left the Respondent's employ in July, testified that he was told of the three- accident rule but did not know if the drivers were aware of it then, and that he did not know who made the preventable determinations or on what they were based. Bass testified that he has been aware of this rule since Ingram's discharge, that he was never previously informed of it by a supervisor, and that he did not recall any discussion of it at a meeting with management. Osborne testified that Hock told him of the rule about the time he was hired, and that a few other drivers knew of it, but that it was not common knowledge among the drivers. Of the employees called as witnesses for the Respondent, Kreps testified that he knew, since his hire as a driver in January 1975, of the rule that a driver who has three accidents in a year is terminated, and that when the operation began, at meetings of the new drivers at which Ingram was present, management said it was "a company policy that if you have 3 accidents within a 12-month period, you'll lose your job. You'll lose your driving rights, anyway"; Spivey testified that Hock told all the new drivers of the rule at a meeting about the time he started to work for the Respondent in January 1975, and that Ingram was at this meeting; and Young testified that he learned when hired of the rule that three preventable accidents within a year meant discharge, but that he did not know if other drivers were aware of it. 2. Ingram's employment history Ingram had been a truckdriver and did some warehouse work for years with the Army and with other employers, and had driven about 400,000 miles without an accident, before going to work for the Respondent on January 6, 1975. His experience was set forth in his employment application filed with the Respondent. He was highly regarded by the Respondent as a driver, had never been reprimanded or disciplined, and in March 1976 received the "Driver-of-the-Year" award for 1975. It was signed by James Bryan, then transportation manager, and stated that it was based on Ingram's driving over 42,000 miles for the Respondent "with no accidents or violations of any kind. He delivered to a total of 961 units with a service reliability of better than 99 percent. John has performed in a superb manner in all areas of his job responsibility. His attention to detail, safety consciousness, neat, complete paperwork and his appearance and attitude all reflect a superior the Respondent four looseleaf copies, and that he and Mohrhusen each has one of the copies. 880 THE MARTIN-BROWER COMPANY degree of professionalism. In the area of customer service, John has developed and maintained the kind of close working relationship with each of his scheduled delivery units which is such an important asset to the Company." 3. Ingram's first accident Ingram had his first accident at a delivery unit in Milwaukee on February 12. He testified that he was driving to the unit's freezer carefully because of low-hanging wires but the exhaust stack caught on one; that he got the wire off the trailer and then called Bryan and reported the accident; that he said that the unit manager had called the Chicago office, and that he had written up these low- hanging wires the 2 previous weeks; that Bryan said he should make out an accident report at the scene 6 and give it to Bryan when he returned the next day; and that he offered to pay for the damage to keep it off his record, and Bryan said they would discuss it the next day. Ingram testified that Bryan commented the next day that he had had some bad luck but did not mention anything about it being preventable or nonpreventable, that about a month later Bryan asked for a more detailed form report on the accident, and that he never received a warning letter or suspension for this accident. Hock testified that the Chicago office received a report from Milwaukee about the first accident and notified him, that he questioned Bryan who had heard nothing about it, and that the Respondent's telephone records showed no credit card call from Milwaukee on February II. He conceded on cross-examination, however, that the accident in fact occurred on February 12, that Ingram was the only driver in Milwaukee then, and that the telephone records showed a charge for a Milwaukee call on that date. 4. Ingram's second accident Ingram had his second accident at a delivery unit in Logan, Ohio, on June 10. He testified that he was pulling into the delivery area in back at the lunch hour when the lot was crowded; that he turned too sharply and hit the roof overhang at a corner of the building with the rear of the trailer; and that it put a rip in the trailer but did no damage to the overhang. Ingram testified that he called Don Jones, transportation supervisor at the time, and reported, with reference to a joke between them, "that I had drove into their kitchen"; that as he was describing what occurred, Jones switched the call to Mohrhusen, and Ingram described what occurred to Mohrhusen. Ingram was told to fill out an accident report and submit it when he returned. He testified that he made one out and gave it to Mohrhusen when he returned the same day, and that Mohrhusen "just said a little bit of bad luck. That was it." Ingram testified that Mohrhusen asked about a week later for a report for the company from which the Respondent leases its tractors; that he did not make out such a report after the first accident, but Mohrhusen said this was needed for the insurance company; and that he was not reprimanded or suspended for this accident, and Each truck had a supply of small accident reports that dnvers made out at the scene. They made out more comprehensive reports on their return. Mohrhusen did not tell him, in the telephone conversation or later, that it was preventable. Ingram testified that in late June, Mohrhusen told him of a letter from the Chicago office about preventable accidents that said the Columbus drivers were having too many accidents involving low-hanging wires and fender- benders, that three could be cause for discharge, and that he had had two accidents.7 He also testified that Mohrhu- sen said the Respondent would never discharge Ingram for such minor accidents because it cost so much to train a driver. Jones testified that as Transportation Supervisor he received numerous calls about minor incidents, that he recalled the call from Ingram on about June 10 because Ingram joked about it, that Ingram was not sure if there was any damage and was told to continue his run, and that he instructed Ingram to fill out the report that he would leave on his desk, and then turned the telephone over to Mohrhusen. Mohrhusen testified that his office had a window overlooking the dock, and that he learned of the second accident when he saw from that window, within a week of the accident, a trailer with a gash in it; that he questioned Jones, who did not know how it happened; that he questioned each driver who had operated the trailer in the past week and learned of the accident in Logan which Ingram admitted to him; and that he then told Ingram to fill out a report, and Ingram did. Mohrhusen's testimony as to the location of the damage was confused. He testified that he saw it in the daytime but did not know if in the morning or afternoon, that the particular trailer was used every day and it was unusual for it to be at the dock in the position he described, and that he did not recall the name of any driver he questioned about it except Ingram. Mohrhusen testified that Ingram pointed out the damage was not severe but was concerned about whether it would be found preventable, that he said a report had to be made and it looked to him as if it was preventable, and that, when Ingram admitted running into a delivery unit, he said it would be found preventable. Mohrhusen testified that this second accident was not submitted to the National Safety Council, that not all accidents are submitted to the Council as the Respondent makes its own rulings on preventability, but that every accident is reviewed by the Chicago office. Ingram testified that he did not receive his expense check when he left on an Akron run on a Friday in late July, that he called from his first stop and spoke to Dahlem who insisted he had enough money, that the call was transferred to Mohrhusen who asked what was in his craw and then agreed to send him some money, and that Mohrhusen asked if he still wanted to go union, and he answered that he did not know. Mohrhusen testified that at this time Ingram's cordiality with him had waned, and that he asked what was in Ingram's craw as he was concerned with Ingram's attitude at that time. Asked if he said anything about the Union or if Ingram said anything about Mohrhusen's attitude having changed since Ingram became interested in the Union, I Ingram's testimony was self-contradictory as to whether Mohrhusen said he had two accidents or two preventable accidents. 881 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mohrhusen answered that there was "nothing about union, no, other than the fact that some attitudes had changed ... I was saying that the attitudes had changed . . . Nothing was said about a specific attitude, no." 5. Ingram's third accident Ingram had his third accident on Sunday, September 12, in Pulaski, Virginia. He testified that he was driving up a steep incline in the parking lot of a motel where he was going to check in; that, as he turned, a car behind him was so close he did not see it, and the tractor hit the left fender of the car as the driver tried to pass him; that he called the police and then Mohrhusen, who said he should submit an accident report when he came in, and should call to report what the police said, but made no mention of preventabili- ty or discharge; and that the policeman at the scene reprimanded the driver of the car for passing Ingram's truck on the right but did not make a police report as it occurred on private property. Ingram made out the small accident report at the motel and turned it in when he got back from his run on September 13. He also made out the more detailed report in longhand. That report was later typewritten. He testified that there was no reference to this accident until mid- October when he came in from a run; that Mohrhusen asked to discuss the accident in detail and requested a better diagram because another report might be needed; that, after he drew another diagram, Mohrhusen said the additional report was not needed; that Mohrhusen said he would try to get a nonpreventable ruling from the Chicago office; that no reference was made to the National Safety Council or to discharge; and that he continued to drive a truck. Hock testified that he was told by Mohrhusen about Ingram's third accident, he did not know how long after it occurred; that he and Mohrhusen agreed to rule it was nonpreventable; and that he thought there was enough "gray area" that the ruling would stand. Mohrhusen testified that Ingram called him about the third accident and asked if it meant termination; that he replied they would wait until Ingram returned to determine this; that he had Ingram's report typed by Dahlem and went over it with Hock, and they decided to classify it nonpreventable because of the "gray area"; and that he sent Ingram's report to the Chicago office with a handwrit- ten note, of which he had no copy, as to the nonpreventa- ble decision he and Hock reached. Hock and Mohrhusen admitted that, despite the direc- tives from the Chicago office, it was local policy not to discipline a driver for the first or second accident, but to disqualify him from driving for a third. Mohrhusen also testified that the Respondent advises a driver who has had a second accident that a third within 12 months "would be grounds for disqualification"; that he so counseled Ingram in the drivers' room on June 16, the date on which Ingram signed his report; and then that it was Ingram who said, on turning in the report, that it was the second, and the third could result in dismissal, and he concurred. s The parties stipulated at the hearing that Town, if called as a witness, would testify that eight named drivers, three at Toronto, two at Atlanta, two R. W. Coker of the Chicago office notified Columbus, under date of October 4, in part as follows: I received the accident report for E. Ingram of 9/12/76, where he was turning in a parking lot and collided with a car. Your ruling was nonpreventable because you felt that because our vehicle was moving I or 2 miles per hour, and the other vehicle should not have been so close to our vehicle. Corporately, I am recording a preventable ruling because a professional driver always checks his mirrors before turning, and the car would have been visible had he done so. I am sending copies of the National Safety Council's Accident Reports and you can have the driver complete them, and the ruling of the National Safety Council Committe [sic] is final and binding. Have the driver carefully complete the forms, completing all blanks, and return all six copies to me. According to Corporate ruling, three preventable accidents in a 12 month period calls for termination. Let me know what you decide. Hock testified that Dahlem notified him of this letter. Hock did not respond to the request in the letter that Coker be notified of what the Respondent decided. He testified that Whitney, the Regional Distribution Manager, called and asked what was done about this matter, and that he replied he was waiting for Ingram to complete the Council forms and for a council decision "so we could make a final decision." Mohrhusen testified that Dahlem put the council forms in Ingram's box together with a copy of part of the Coker letter, but that they omitted the part of the letter stating the third accident was preventable because seeing it might affect Ingram's driving which had not been curtailed. Mohrhusen also testified that he agreed that Ingram could hold up completing the council forms until there was local review. C. E. Town, manager of national transportation,8 sent distribution center managers a communication dated October 13 that provides in part as follows: Judging of Accidents - Preventable or not Preventable Section 503.8 of the Distribution Center's Operations Manual contains a guide to help you judge accidents. If you are in doubt about a preventable or nonpre- ventable ruling of an accident please: I. Refer to Section 503 of the Operations Manual and/or 2. Call National Transportation You should endeavor to investigate each accident and rule as soon after the accident as possible, and at St. Louis, and one at Orlando, were discharged for having preventable accidents during 1976 and January 1977. 882 THE MARTIN-BROWER COMPANY issue a warning letter to the drive in the case of a preventable accident ruling. Obviously you do not want a driver in a tractor after his second or third preventable accident in a 12 month period, so a timely ruling is needed. The following Corporate guidelines have been published previously: One preventable accident in a 12 month period - warning letter Two preventable accidents in a 12 month period - warning letter and three days off without pay. Three preventable accidents in any 12 month period - termination Please send a copy of any warning letters to the Fleet Administrator in Chicago. . . . Here-to-for National Transportation has not upset the centers' ruling in so far as the drivers record. In the future, if National Transportation disagrees with the centers' ruling, the National Safety Council Acci- dent Report forms will be sent to the center for completion by the driver. The N.S.C. report will then be sent to the National Safety Council via Bob Coker for the final and binding ruling, with the drivers' record to be marked accordingly. A procedure change is forthcoming. [Sic.] Hock testified that Respondent officials, including himself and Mohrhusen, reviewed the record and company policy, including the Chicago office preventable ruling; that the policy had been vague to him when the accident occurred but on review he agreed with the Chicago ruling; that he and Mohrhusen decided that "if we examined the accident and the accident alone and nothing else, it would have to be a preventable ruling"; and that they decided to give Ingram a termination letter when he returned from a run. Mohrhusen testified that he is familiar with council standards on preventability and the company definitions of certain types of accidents; that he evaluates each accident as to preventability while the insurance company deter- mines liability; that the manual provides that a driver is not charged if there was nothing he could "reasonably" do to prevent the accident; and that it is his duty to investigate thoroughly and to consider all the relevant factors. Mohrhusen also testified that Hock delegated to him the investigation of Ingram's third accident; that he had Ingram's written and oral reports; that he did not inquire as to damage as that would usurp the insurance company authority; and that he did not know that there was no company liability for the third accident, but it would have had no effect on the determination as the company rule is that preventability and liability are unrelated. Mohrhusen testified that he reviewed the accident and company policies with Dahlem and Hock and talked to Coker, then recalled that he reviewed them himself at this time but reached no decision until Hock reminded him, about 3 weeks after the October 4 letter from Chicago, it had to be decided. He testified, on cross-examination, that in this 3-week interim he had "evaluated" and discussed the accident and company policies with Coker, and decided the accident was preventable under the manual classifications of preventable accidents if a liberal interpre- tation were given to category 10 which is entitled "Traffic Lane Encroachments," but admitted there were no traffic lanes on the open parking lot, that the factors set forth in category 10 were inapplicable, that Coker did not agree with this evaluation, and that Coker did not, in the October 4 letter finding the accident preventable or in discussions with him, specify any of the listed categories. Mohrhusen, who never drove a truck, also admitted that in his 3 weeks' research he found no accident like the one in question. Mohrhusen testified that, after this period of evaluation, he reviewed the accident with Hock and Dahlem and they decided it was preventable, that he then prepared a letter disqualifying Ingram as a driver, and that he told Ingram who was returning from a run to come to the office the next day. 6. Ingram's discharge On November 4 Ingram was on a run and called in about a flat tire and a shifter that had become loose. Mohrhusen told him where to get the repairs, and told him to come to the office the next day. When Ingram went to the office on November 5, almost 2 months after his third accident, Dahlem, Mohrhusen, and Hock were there, and Mohrhusen gave him a letter of dismissal. The letter, signed by Mohrhusen, states in part that "A preventable accident is one in which the driver failed to do everything he reasonably could have done to prevent or avoid it. On the following occasions, your judgement [sic] in this respect has been missing and each accident has met with a preventable ruling." The letter lists the accidents, commenting as to the second that it "went unreported and revealed only after an inquiry by us," and describing the third as "Collision with a second party's automobile in a Pulaski, West Virginia motel parking lot."9 The letter concluded: "John, as you are well aware, three preventable accidents in a seven month period, regardless of severity, is a terminable offense. Therefore, as a responsible company, sensitive to the miseries suffered by others due to negligence by our personnel, we are disqualifying you from driving for Martin Brower effective immediately." The letter said nothing about availability of other work during the disqualification as a driver. Ingram testified that he read the letter and got up to leave when Hock said he should sit down and talk about it as Hock did not want him to leave on a bad note; that he said some other drivers had had costlier accidents whereas his first two accidents totaled $372 and he did not know the cost of the third; and that he also pointed out Mohrhusen had stated he would not be discharged for some minor accidents, but Mohrhusen said he did not recall that. Ingram also testified that he said that in his last accident the car hit his truck, that the only damage was to the car and none to the truck, and that, if he was discharged because of it, there was another reason behind it, but Hock said that there was no personal vendetta against him. 9 Ingram's report shows the accident location as "Pulaski, Va." 883 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ingram had been employed as a driver almost 2 years at the time of his discharge. Hock testified that when Ingram read the letter and got up ready to storm out, he asked Ingram to come back and talk, and said he was sorry and did not want to lose Ingram who always did a fine job with customers. At a later point he testified that he also told Ingram he had no other work available, and that management had discussed keeping him as a desirable employee but there was no available work. He testified that he asked if Ingram preferred to resign and, when Ingram agreed, Mohrhusen wrote that at the top of the letter, but Mohrhusen told Hock the next day that Ingram called and wanted it changed to a dismissal. Hock testified that Ingram asked, a few days later, about a rumor that he was terminated because he was suspected of theft, but that, as he told Ingram, he had never questioned Ingram's integrity, and Mohrhusen testified that no one accused Ingram of stealing. Mohrhusen testified that he told Ingram the letter was "what our disposition was as a result of his three accidents"; that Ingram questioned this disposition in view of the minor nature of the accidents "and the method of the decision," and argued there must be another reason; that he gave Ingram an opportunity to resign; that Ingram was to let him know and he wrote "resigned" on the letter, he thought the next day; but that Ingram asked later to appeal to the council and he gave Ingram the council forms to fill out. 7. Events after the discharge a. The safety committee Kreps, a witness for the Respondent, testified that Ingram was the first driver to lose his job on the ground of three preventable accidents, and it "shook up" the other drivers including the employee members of the safety committee. He also testified that the committee, composed of management and employee members, was supposed to meet monthly, but in fact met very infrequently, and, when it did, Mohrhusen or Hock described the accident and read the accident report, and the committee voted. Ingram testified that, although there had been no safety committee meeting for 7 or 8 months, at the request of some of the drivers he telephoned Mohrhusen on Novem- ber 11 and asked to have the safety committee pass on his third accident, and Mohrhusen promised to look into it. Ingram testified that Mohrhusen also said he should come in and fill out a National Safety Council report that would be sent to Chicago to get a final and binding answer, and if the third accident was found nonpreventable by the council he would be taken back immediately. Ingram testified this was the first time he was asked to make out such a report. Ingram went in that day and made out the report in longhand which was later typewritten by someone else. Ingram testified that he had a conversation on this visit with Hock in which Hock said there were some large new accounts and "We hate to let you go at this time because we need you." Later on the same day Ingram filed the charge herein. 10 Neither Hock nor Mohrhusen ever worked as a truckdriver. 1 As pointed out above, the Respondent maintains that money liability does not determine preventability. A safety committee meeting was held on November 13. Its minutes, prepared by Hock, show that those present were Hock as chairman, and Mohrhusen, Dahlem, Kreps, and Osborne as members, and that it considered Ingram's third accident as well as accidents of two other drivers that occurred on July 6 and 12. None of the three drivers was present. 10 Kreps testified that the committee was at odds over what happened; that they reenacted the accident two or three times on the parking lot, which was flat, to determine the visibility of the car; that he knew the accident occurred on a steep slope as he had stopped at the same motel but thought there was no committee discussion as to the effect thereof on visibility; that Hock drove his car and Osborne drove a truck, while he and Mohrhusen stayed on the ground; that he did not check with Ingram, with the other driver, or with the policeman who was at the scene, and did not even know the police were called; and that he voted the accident was preventable. The committee found, by a vote of 3-1, that the accident was preventable "(Assuming front of rig hit)," with the word "Verified" followed by a line that was blank. Ingram heard of this result from Osborne. Hock testified that the safety committee meeting of November 13 was held at the request of Ingram and other drivers; that he did not vote but prepared the committee minutes; that in the reenactment to check visibility he drove his car, Mohrhusen sat with Osborne who drove the tractor, and Kreps watched; that they repeated the test four or five times with the car at different distances from the trailer; and that the committee also reviewed Ingram's original report and the one prepared for the council. He testified that the note "Assuming front of rig hit" was affirmed later by Ingram's diagram in the council report. Hock also testified that it was the policy to review all the facts as to an accident particularly the third, and Ingram was "Driver-of-the-Year" and a valuable man. He admit- ted, however, on cross-examination, that he did not know if anyone talked to the police or the other driver, or checked the money damages, if any; i" that the safety committee review was futile in any event as the Respondent would not have changed the Ingram discharge whatever the vote was; and that its purpose was, not to determine if the accident was preventable, but only to show other drivers how a preventable determination is made and to let Ingram know how the committee would have ruled. Mohrhusen testified as to the safety committee review, on cross-examination, that Ingram requested a review by his peers; that "I told Mr. Ingram that at that point, as far as I was concerned, that my ruling on preventability stood, and that we would reengage in another review by his peers and that we would reconsider"; and that, as the committee is made up of management and employee personnel, he considered that he and Hock were Ingram's peers. As to the reenactment, he testified that he and Kreps observed it done four or five times, that Hock drove his car and Osborne drove the tractor, that he got in the tractor as a passenger to test the situation, that in the reenactment the car was at times out of view, that the vote was 3-1 with Osborne voting the accident nonpreventable, and that he 884 THE MARTIN-BROWER COMPANY did not for this review communicate with the policeman or the other driver involved. He also testified that no consideration was given to the fact that the test was on level ground while the accident occurred on a steep incline. b. The National Safety Council Ingram called Mohrhusen on November 22 and asked about an answer from the council. He testified that Mohrhusen said the answer made no difference as Mohrhusen and Hock then had it as a matter of record that he was terminated for three accidents. The Respondent did not send the National Safety Council "Report of Opinion of Accident Review Committee," dated December 1, to Ingram, but furnished a copy to the General Counsel. It states as to the accident of September 12 the "opinion" that it was "preventable" and the "remarks: Because of the professional driver's failure to make frequent mirror checks he was unaware of the other vehicle and thus couldn't anticipate improper driving behavior. Furthermore, park- ing lots require additional caution because of the often confused, haphazard driving behavior of others." 12 Hock admitted that he did not know how the National Safety Council operates or if any drivers participate in its determinations. Mohrhusen testified that he is familiar with Council standards on preventability as well as the company definitions of certain types of accidents based thereon. c. The insurance company Ingram inquired of the insurance company as to any claim paid on the accident. He was notified by letter of March 22, 1977, that the insurance company made an investigation that included a report from the policeman who was called to the accident, and that he "substantiated your statement and advised would have been almost impossible for you to have avoided this accident as Mr. Teitsworth had improperly passed you on the right. Advised Mr. Teitsworth had plenty of room to both the left and the right of you to pass, but he failed to do so. Rather he passed to your immediate right.... We denied Mr. Teitsworth's claim for damages as feel he contributed to this accident by improperly passing you on the right." d. Availability of other employment The Respondent's evidence in some instances indicates that a driver with three preventable accidents in 12 months is terminated, and in others that he is disqualified from driving for a year but may be assigned to other work. William Waters, who was employed first as a warehouse- man, was given an opportunity to drive at his request. He had two preventable accidents during his probationary period, and was put back in the warehouse. A few weeks later drivers were needed and he was given another chance. He had a third accident. Although it was minor he was put back in the warehouse.1 3 He was a warehouse supervisor at the time of the hearing herein. I: Ingram's report of the accident states that "The mirrors were checked before making my turn...." Ingram testified that the Respondent's drivers under- stood that those who had accidents would be put to work in the warehouse for a time as the Respondent had spent so much to train them, that there was at this time a good deal of overtime work in the warehouse; that the Respondent's new accounts would increase the warehouse work; and that, as the Respondent knew, he had considerable experience in warehouse work. A number of new drivers were hired shortly after Ingram was terminated, and additional drivers as well as several warehousemen were hired in the next few months. Ingram was never offered anotherjob with the Respondent. 8. Accidents of other drivers Jones, the former transportation supervisor, testified that in that position he had received many calls about minor driving incidents. Griglek testified that he tore down some wires on the street in or about February, and tore down more wires later that evening; that he telephoned and was told by Davis, the dispatcher then, not to worry about it; that he was never asked to turn in a written report and never did so; and that no one ever told him if it was preventable or ever mentioned it again. Griglek, a member of the safety committee, testified also that Spivey pulled down wires causing damage of $3000; that he said it should be ruled preventable to be consistent but the Respondent ruled it was nonpreventable; and that the Chicago office reversed that months later, after Ingram was discharged. Osborne testified that he had an accident in May 1975 when he backed into a car belonging to the manager of the delivery unit; that he had another accident in July 1976 when he ran into a car on his right; that he had heard nothing for about 2 months after turning in his report on this accident and, when he asked about it, was told by Mohrhusen it was nonpreventable; that when the driver of the car sued him and the Respondent, Hock promised to take care of it, but he hired a lawyer to represent him because the Respondent, which was to take care of the first accident, had not done so a year later; that Hock and Mohrhusen said he jumped the gun in hiring a lawyer; and that Hock also said if the Respondent found the third nonpreventable but Chicago reversed and said the driver should be discharged, he, Hock, had the final say. The safety committee that passed on Ingram's third accident found Osborne's July accident preventable by a vote of 3- 1. Wicker testified that he had two accidents. The first, in Detroit where he rammed into a car on his right, occurred in February or early March, during his 60-day probation- ary period. He testified that he was told by Bryan to fill out a report on his return and did so, and that he was never reprimanded for it nor told whether it was preventable. Wicker testified that in his second, in Detroit in or about July, he tore down some wires; that he did not call in as it was a Saturday but told Mohrhusen when he returned that he tore down a set of wires; that Mohrhusen told him to fill out a report, but he did not do so because he had '3 Hock estimated the damages for Ingram's three accidents as $500. and for Waters' three accidents as upwards of $2,000. 885 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously been through the alley where the wires were torn down but the unit he was driving in July was higher, and he therefore felt this accident was not his fault; that Mohrhu- sen told him again about a week later to fill out a report, and he said he would but did not; that Mohrhusen said a week or so later the report was needed; that when he explained why he was not at fault, Mohrhusen said the report was needed only to give to the insurance company that would cover the damage to the trailer; that he never did fill one out; and that he was never told if the accident was preventable, and was never reprimanded for failing to fill out the report or suspended for having a second accident. Spivey testified, as a witness for the Respondent, that he had one accident in 1975 when he pulled wires loose from a shop; that he did not know what it cost but assumed the Respondent paid for it; that it was ruled nonpreventable and he expected a safety award for 1975; and that, when he did not receive one, he inquired a few times before he learned from Mohrhusen, months later, that the Chicago office changed the ruling. Concluding Findings It was admitted that Ingram, the first driver terminated on the basis of three accidents in the almost 2 years the Columbus center was in operation, had been considered by the Respondent to be an exceptionally well qualified employee with regard to his driving ability and customer relations, as set forth in his "Driver-of-the-Year" award for 1975 and in testimony of Hock and Mohrhusen. The grounds advanced for his termination were that he had three preventable accidents in less than a year, that this disqualified him as a driver, and that there was no other work available for him. The record shows, however, and I find, that the Respondent did not follow company policies and proce- dures as to Ingram or other drivers, and that the Chicago office did not follow its established review procedures as to Ingram. The Respondent admittedly did not promptly determine preventability and notify the driver, send the driver a warning letter after a first preventable accident, or issue a warning letter and a 3-day suspension for a second preventable accident. In at least one instance a driver who had pulled down overhead wires never submitted a report. Further, I find, as Ingram testified and Mohrhusen could not recall, that Mohrhusen told Ingram he would not terminate him for minor accidents in view of what it cost to train a driver. The evidence also shows, and I find, that determinations as to preventability are made by the center and reviewed by Chicago on appeal by the driver. The indication in the communication from the Chicago office dated October 13, a month after Ingram's third accident, that National Transportation will upset rulings of a center with which it disagrees also states that "A procedure change is forthcoming." There is no evidence of the issuance of such change. Hock and Mohrhusen found Ingram's third accident nonpreventable, and Ingram continued to drive the Respondent's trucks. The reversal by the Chicago office, and the reviews by Hock and Mohrhusen, were based on erroneous facts including, for example, that Ingram failed to report his first or second accident, and that Ingram was at fault in his third accident in failing to check his mirrors. There were also differences of opinion as to the basis of the reversal, Mohrhusen relying on an accident category not in fact applicable, and Coker disagreeing as to this category but not specifying any other of the 20 listed categories. The safety committee review of the third accident involved no inquiry of the other driver, of the policeman called to the scene, or of company liability; the safety committee's reenactment to determine visibility of the car was performed on a flat parking lot whereas the accident occurred on a steep slope; and the committee review was a sham in any event as the Respondent admittedly would not have changed its decision to terminate Ingram whatever the committee found. The council decision was based on a finding of "failure to make frequent mirror checks," with no indication as to how frequent or infrequent the council found them, nor on what this finding was based. Finally, the record shows that nondriving work was available after Ingram was terminated, that it was company policy to offer such work to a driver who was disqualified from driving, but that there was no offer of such work to Ingram. As found above, the Respondent was opposed to organization of employees at its Columbus operation. The evidence shows that Hock and Mohrhusen were aware of the early organizing activities but were of the opinion, as were many of the drivers, that Ingram was loyal to management and unsympathetic to union organization. Hock and Mohrhusen learned, however, that Ingram had become interested in organizing the Union. Mohrhusen testified about Ingram's changed attitude and their less cordial relations, and Hock admitted questioning Ingram in the office because Mohrhusen had said Ingram was "upset" and this upset him. Hock admitted that in this conversation, which he said occurred in late August, they discussed work problems, which Hock said should be taken up through the supervisory chain; that Ingram said some employees were going to the union hall and he was thinking of going also; and that Hock told Ingram he did not believe the Union would solve his problems. I therefore do not credit Hock's testimony that he did not think Ingram was prounion and that Ingram did not do or say anything to show he was prounion. In September Mohrhu- sen asked Ingram how he felt at that time about the Union. And during October, representatives of the Union's local negotiating a contract at the distribution center in Louisville told the company representatives including Whitney, Hock's superior, of the plan to organize the Columbus operation. I find, based upon the evidence in its entirety, that Mohrhusen told Ingram the Respondent would not terminate him for minor accidents, that Ingram was given no written warning or suspension for the first two accidents, and that the Respondent first ruled the third nonpreventable. Hock and Mohrhusen learned, however, that Ingram had become interested in union organization as he admitted to them, and evidently resented this change in allegiance on the part of an employee who was theretofore believed to be loyal to management and unsympathetic to a union. Moreover, it was his complaint about meal rates that resulted in an increase. 886 THE MARTIN-BROWER COMPANY The Respondent found Ingram's third accident of September 16 nonpreventable, Chicago on October 4 changed the ruling to preventable, the Respondent adopted this reversal as its ruling and terminated Ingram on November 5, and thereafter made gestures of reviewing this ruling with no intent to change its decision to terminate Ingram. The Respondent terminated Ingram on the asserted ground of established company policies as to accidents, policies which were never formally communicat- ed to employees,' 4 and which had admittedly been almost wholly disregarded at Columbus.' 5 Without derogating from the Respondent's unquestioned right to adopt and apply its own rules as to accident preventability, and to terminate drivers on the basis of such rules, I am convinced, and find, that the Respondent in the present circumstances would not have terminated Ingram, an admittedly excellent employee,' 6 because of his accidents were it not for its resentment of his switch to prounion sympathy. I find that the discharge was therefore discrimi- natory.'7 While the Respondent argues that other employ- ees known to be prounion were not discharged, it is not necessary that all prounion employees be discharged to establish the discriminatory nature of Ingram's discharge-.' I find, on the entire record, that the Respondent terminated Ingram because of his expressed desire for union organization and to discourage membership in and activities on behalf of the Union, and that the asserted cause for discharge, three preventable accidents within 12 months, was, in view of the disregard of established company policies and procedures as to preventable accidents, pretextual.' 9 Accordingly, I find, in conclusion, that the Respondent terminated Ingram on November 5, and failed and refused at all times thereafter to reinstate him, because of his membership in and activities on behalf of the Union and in order to discourage membership in the Union, and has thereby discriminated in regard to the hire and tenure of employment of its employees, in violation of Section 8(a)(3) and (I) of the Act.20 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 14 Ajax Magnethermic Corporation, 227 NLRB 477 (1976)}. IS The Terminal Taxi Company d/bra Yellow Cab Co., 229 NLRB 643 (1977); Mission Petroleum Carriers. Inc., 229 NLRB 1276 (1977); Melody Oldsmobile-GMC, Inc., 230 NLRB 440 (1977). 16 Montgomery Ward & Co., Incorporated, 220 NLRB 373, 391 (1975), enfd. 554 F.2d 996 (C.A. 10, 1977); Eubank Tire Sales, Inc., 226 NLRB 1103 (1976); The Terminal Taxi Company d/b/a Yellow Cab Co., supra. 17 Eubank Tire Sales, Inc., supra; Viele & Sons, Inc., 227 NLRB 1940 (1977); The Terminal Taxi Company d/b a Yellow Cab Co., supra. 'a Melody Oldsmobile-GMC, Inc., supra. 19 Eubank Tire Sales, Inc., supra; Ajax Magnethermic Corporation, supra; V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)( 1) and (3) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights,2 ' and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent discharged Earnest J. Ingram on November 5, 1976, in violation of Section 8(a)(3) and (1) of the Act. Accordingly, I shall recommend that the Respondent be ordered to offer Ingram reinstate- ment to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of the discrimination against him, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed 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 the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, The Martin-Brower Company, is an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. 2. Teamsters Union Local 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization as defined in Section 2(5) of the Act. 3. By terminating Earnest J. Ingram on November 5, 1976, and at all times thereafter failing and refusing to reinstate him, because of his membership in and activities on behalf of, and to discourage membership in, the above- named Union, the Respondent has discriminated in regard to the hire and tenure of employment of its employees, in violation of Section 8(aX3) and (1) of the Act. 4. By interrogating employees concerning their activi- ties on behalf of and sympathy for the above-named Union, by threatening employees with loss of employment benefits and closing of the Columbus operation if they designate the above-named Union as their collective- bargaining representative, and by creating the impression that it was keeping their union activities under surveillance, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights Viele & Sons, Inc., supra; Mission Petroleum Carriers, Inc., supra. Melody Oldsmobile-GMC, Inc., supra; B d P Motor Express, Inc., 230 NLRB 653 (1977). 20 N.LR.B. v. Sencore, Inc., 558 F.2d 433 (C.A. 8. 1977); Midwest Regional Joint Board A malgamated Clothing Workers of America, A FL-CIO v. N. LR.B., 564 F.2d 434 (C.A.D.C.. 1977); The Terminal Taxi Company d/b/a Yellow Cab Co., supra, Melody Oldsmobile-GMC, Inc.. supra. Edgewood Nursing Center, Inc., 230 NLRB 886 (1977). 2i N.LR.B. v. Express Publishing Company, 312 U.S. 426, 437 (1941); N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4. 1941); Bob Henry Dodge, Inc., 203 NLRB 78 (1973). 887 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed by Section 7 of the Act, in violation of Section 8(a)(l) of the Act. 5. 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, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 22 The Respondent, The Martin-Brower Company, Colum- bus, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Terminating or otherwise discriminating against any employees in regard to their hire or tenure of employment because of membership in or activities on behalf of, or to discourage membership in, Teamsters Union Local 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) Interrogating employees concerning their activities on behalf of and sympathy for the above-named Union, threatening employees with loss of employment benefits or closing of the Columbus operation if they designate the above-named Union as their collective-bargaining repre- sentative, creating the impression that it is keeping their union activities under surveillance, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Earnest J. Ingram immediate and full reinstatement 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. (b) Make Earnest J. Ingram whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its premises in Columbus, Ohio, copies of the attached notice marked "Appendix." 23 Copies of the notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 22 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. 23 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT terminate or otherwise discriminate against employees in regard to hire or tenure of employment because of membership in or activities on behalf of, or to discourage membership in, Teamsters Union Local 413, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion. WE WILL NOT interrogate employees concerning their activities on behalf of and sympathy for the above- named union, threaten employees with loss of employ- ment benefits or closing of the Columbus operation if they designate the above-named union as their collec- tive-bargaining representative, create the impression that we are keeping their union activities under surveillance, or in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL offer Earnest J. Ingram immediate and full reinstatement 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 WE WILL make him whole for any loss of pay he may have suffered as a result of the discrimination against him. THE MARTIN-BROWER COMPANY 888