Freeport Transport, Inc.

FREEPORT TRANSPORT, INC. 833 Freeport Transport, Inc. and Robert I. Carr. Case 3-CA-5664 September 29, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act; and also alleged certain other conduct in violation of Section 8(a)(1). Upon the entire record,' including my observation of the witnesses, and after due consideration of the brief filed on behalf of General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS On June 23, 1975, Administrative Law Judge Irv- ing M. Herman issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in support of the Decision of the Administrative Law Judge. 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. ' The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Watt Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This case was tried before me on January 8 and 9, 1975, at Buffalo, New York. The charge was filed May 8, 1974, by Robert I. Carr, an individual, and duly served on Respon- dent the same day. The complaint, issued November 12, alleged the Charging Party's discharge on or about May 6, 1974, because of his activity on behalf of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 538 (herein called the Union), was in violation of Section 8(a)(1) and (3) of the 1. RESPONDENT'S BUSINESS The complaint alleges, the answer (as amended at the hearing) admits, and I find that Respondent is a Pennsyl- vania corporation with its principal office and place of business at Freeport, Pennsylvania; that it operates as a Class I common carrier under Interstate Commerce Com- mission regulations, providing truck transportation and re- lated services in parts of the United States 2 and the prov- inces of Ontario and Quebec in Canada, with terminals located at Freeport and New Eagle, Pennsylvania, and Ni- agara Falls, Ontario;3 and that during the year immedi- ately preceding the issuance of the complaint Respondent derived gross revenues in excess of $50,000 from the trans- portation of freight or commodities directly between and among various States of the United States and between the United States and Canada. Respondent nevertheless contends, citing RCA OMS, Inc. (Greenland), 202 NLRB 228 (1973), that the Board lacks jurisdiction over its Ontario terminal where the Charging Party was employed. I find no merit in this con- tention. Carr, an American citizen residing in Niagara Falls, New York, was hired at and worked out of the On- tario terminal with about 20 other drivers, American and Canadian. Denman, the terminal manager, is in regular and frequent contact on a daily basis with Respondent's headquarters in Freeport to coordinate operations, main- taining a "Watts line" of direct communication for this purpose, i.e., in the words of Respondent's president, "to review the most effective way that the work is assigned to the equipment available and drivers available." All payroll records are kept in the United States, and the payroll is transmitted regularly from Freeport via company equip- ment. American citizens are paid in United States currency and have deductions made in accordance with American law, but the wages and fringe benefits of all employees who work out of the Ontario terminal are different from those applicable at the United States terminals. Carr's driving was confined to points within the United States or between the United States and Canada. Because he did not possess a Canadian work visa he was not al- lowed to drive between two Canadian points. About three- fourths of his driving time was spent in the United States. As a general rule his trips did not exceed 40 to 45 miles into i In the interest of clarification, the typewritten transcript of testimony is hereby corrected 2 Its operating authority extends to 42 States. 3 Respondent president's testimony adverted to an additional terminal at Frankfort, Indiana, evidently not involved in any organizational effort here under consideration 220 NLRB No. 125 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Canada as compared with 200 to 250 miles into the United States. He was under instructions to contact the Freeport dispatcher to receive his next assignment after dropping off a load in the United States in the absence of further orders in his original dispatch. Respondent's decision to discharge Carr came from its Freeport headquarters. In RCA OMS, the Board dismissed an IBEW petition to represent certain employees at five Distant Early Warning sites located in Greenland. The employer, a subsidiary of RCA and a Delaware corporation, operated the sites (a system of radar stations and a communications network feeding information directly back to NORAD headquar- ters in Colorado Springs) pursuant to a United States Gov- ernment security clearance, were hired in and paid from the United States, and on completion of their jobs were returned to their original hiring location. The Board held that "under all the relevant circumstances, particularly the fact that Greenland is a possession of Denmark and gov- erned as a county of that country . . . Greenland does not come with the jurisdiction of the Act." citing Benz v. Com- pania Naviera Hidalgo, S.A., 353 U.S. 138 (1957). In my opinion RCA OMS is quite distinguishable. The Benz case had involved a foreign crew on a foreign ship registered in a foreign country, and operating under an agreement made abroad under foreign law, " [t]he only American connection [being] that the controversy erupted while the ship was transiently in a United States port and American labor unions participated in its picketing." 353 U.S. at 142. In RCA, although the employer and employees were American and the hiring occurred in America, the employees worked entirely in Greenland and any contro- versy would occur in Greenland, so that the single element in Benz that might have provided a basis for jurisdiction was lacking in RCA. By the same token any resemblance between RCA and the instant case is purely superficial be- cause, although Carr was hired in Canada and worked out of the Canadian terminal, his work was regularly-indeed mainly-performed in the United States where he resides, where Respondent's principal place of business is located, and where the Union whose cause he espoused operates; his dispatch was constantly coordinated with Freeport through regular communication with headquarters there; his pay reflected deductions pursuant to American law; the decision to discharge him was made in Freeport; and the predicate for Board involvement here is, allegedly, Carr's participation in the Union's organizational cam- paign-by conduct virtually entirely in the United States- that included the Pennsylvania terminals.4 It may be that if this case concerned only a petition by the Union for certification as exclusive bargaining repre- sentative of all the employees at the Ontario terminal- even as part of an overall unit of all three terminals-the Board would lack jurisdiction because of the involvement of the working conditions of foreign employees, i.e., Cana- dian citizens. See Windward Shipping (London), Ltd. v. 4 Ultimately the Union excluded the Canadian employees from Its repre- sentation proceeding in the Pittsburgh Regional Office, and a sister local of the same International instituted a similar proceeding before the Canada Labour Relations Board, confined to the Ontario terminal, which it with- drew in March. American Radio Assn., 415 U.S. 104 (1974). What is in- volved here, however, is whether the Act's protection is available to an American citizen and resident allegedly dis- charged for participating in an American organizational campaign which for a time looked also to the organization of Canadians. If one of the drivers from Freeport or New Eagle had been discharged for signing a union card, the Board's jurisdiction could hardly have been questioned. That Carr's union activity was directed to securing collec- tive assistance at the Canadian terminal did not remove him from the Act's protection. His support must be deemed, for present purposes, to have helped advance the Union's protected area of operation. Besides, his joining the Union was protected even insofar as his own cause was concerned by providing a source of collective assistance short of exclusive representative status and hence in no way inconsistent, as far as the instant record shows, with Canadian law or otherwise likely to produce any adverse international reaction. In all these circumstances, I find the American connec- tion sufficient to establish that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and thus to warrant attachment of the Board's jurisdiction to this case. Cf. International Longshoremen's Local 1416 v. Ariadne Shipping Co., 397 U.S. 195 (1970). II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer (as amended at the hearing) admits, and I find that the Union is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Carr worked for Respondent out of its Ontario terminal for 6 or 7 months around 1969 or 1970 but quit. He re- turned in October 1973. Respondent's drivers are paid by the mile but also get overtime pay. Carr testified that when he was assigned a run he was given no specific instructions as to what route to take or where to sleep but that he was supposed to travel "the shortest and quickest way." Ac- cording to Andrew Smetanick, Respondent's president, while the general rule is to use the most direct route, the routing is subject to certain additional specific consider- ations, including Respondent's operating authority, partic- ularly as to points of entry to Canada; the varying propor- tions of its vehicles and the varying character of their loads which may bar them from certain routes; the need to file mileage reports in the various States for tax purposes; time requirements; the ability to maintain contact with the driv- ers at the known truck stops so as to communicate new pertinent information or orders, or to have one driver pro- vide needed assistance to another on the same route; and the substantially higher fuel costs in Canada. Smetanick further testified that when a driver receiveds his particular assignment he is asked if he is familiar with the route, and if he is not he is given a detailed routing and told the time he should reach his destination; and that a driver may be FREEPORT TRANSPORT, INC. rerouted or redispatched only by a dispatcher, the mainte- nance superintendent, a terminal manager, or an officer of the Company. Ontario Terminal Manager Denman testi- fied that when a driver is hired he is shown the routes he is to take and to disregard any prior routes he may have fol- lowed for another employer. He also testified that when a driver is assigned a run he is given the necessary toll tickets with instructions as to where to enter and leave the toll road. Respondent's detailed company rules, which Den- man testified have been posted on the bulletin board at least since he became manager over 4 years ago, and which he tells newly hired drivers to read s specifies, "Failure to follow routings as designated or instructed" as an infrac- tion punishable on the first offense by termination of em- ployment.6 Carr denied ever seeing these rules 7 He testi- fied, however, that if a driver had a flat tire at Ripley, New York, he would generally go to a truck station located only about 3 miles off the route to get the tire fixed "if it was authorized." Raymond Baker, secretary-treasurer and busi- ness agent of the Union, testified that during contract ne- gotiations with Respondent following the Union's certifica- tion in March 1974 he learned of Respondent's policy of discharge for going off route; that, although nothing on the point was put into the contract concluded in August, it was within the Company's prerogative; that, subsequent to the Union's certification, Frank Couch, who had been far more active in the Union's drive than Carr, was suspended for 3 days without pay for deviating about 20-25 miles from his route which enabled him to make the trip faster than by the assigned route, the Union's intercession having saved him from Respondent's initial purpose to inflict the ultimate penalty of discharge; and that most of the em- ployers the Union deals with have designated routes for their drivers. The Union instituted its organizational campaign in the fall of 1973 by holding meetings in the United States to which the Canadian employees were invited and obtaining membership card signatures in various Pennsylvania coun- ties, as well as at the truck stop in Ripley, New York. Nei- ther Carr nor any other employees from the Ontario termi- nal attended any of the meetings,8 but Carr signed a card S Essentially corroborated by Paul Cooper , a driver who had opposed the Union and who became an owner-operator in March 1974. 6 The list includes 30 other infractions similarly punishable , as well as 41 where termination is provided for the third offense and 21 others so punish- able only for the fourth offense. The only rule he admitted being aware of was one imposing a $100 fine for stealing and offering a $100 reward for information leading to the arrest of the wrongdoer. Carr testified on cross-examination as follows- Q. You have no knowledge if any of the Canadian employees came to the States to attend Union meetings? A. No. Q. Then it is your testimony that you in fact never came into the States to attend Union meetings; is that not a fact9 A. My... Q. Is that your testimony? A. I wish you'd straighten it out a little bit, sir . I don't understand. Q. Have you ever come into the States to attend a Union meeting, Teamsters Meeting? A. At anytime in my life, yes, sir. Q. Did you in 1973 and 1974? A. Attend the Teamsters Meetings? 835 at Ripley on November 13 and, at the same time, accord- ing to his testimony, lent four or five other drivers from Ontario who were "broke" $2 each as a deposit required of Canadian nationals who signed cards.9 Carr admitted on cross-examination, however, that he had not been more "outspoken" for the Union than any other employee and would not deny "that there were numerous employees in Canada much more outspoken in reference to the union," stating, "I didn't associate that much with Canadian em- ployees over there." Baker, although not directly handling the campaign in Ripley, was in overall charge and familiar with the activists among the employees, but he had never seen Carr before the instant hearing or had any knowledge, prior to his discharge, that he had been a union supporter. On November 8, 1973, Respondent sent the following letter, over President Smetanick's signature, to its Pennsyl- vania employees: Dear Employee: It has come to my attention that the International Brotherhood of Teamsters is engaging in a campaign to have you sign a card appointing the union as your representative. In view of this action and purpose, I have decided to state the company's policy so that there will be no mistake or misunderstanding in anyone's mind. I do not feel or believe that this company's employ- ees want a union, nor that they need a union to get fair and just treatment. Therefore, I state positively that the company intends to oppose this union by every possible and lawful means available to it. If you are approached by anyone who wishes you to sign a union card, you are, of course, free to take any action which you desire with respect to exercising your right to sign or not to sign a card. While federal law protects employees' rights to engage in lawful union activities, the law is also quite clear that employees have the right to refrain from such activities, and that a labor organization or its agents who attempt to re- strain or coerce employees in the exercising of this right are in violation of federal law. If anyone is causing you trouble on your job or is trying to coerce you to sign a card or to join a union against your will, you should let the company know about it immediately and we will take steps to see that the matter is stopped. It is not uncommon for union organizers to tell you that signing a card means only that you can vote in an election later on and that signing a card in itself means nothing else. If you are told this, do not believe it. The card is a legal statement that you want the union to represent you and a union card can be used in such a way by the Teamsters under federal law that you may not get a chance to vote in an election. It is my firm belief that a democratic election, by secret ballot, conducted by the National Labor Rela- tions Board where employees are free to vote accord- Q. Yes A. No, sir. 9 No explanation has been given for such a requirement, and Business Agent Baker testified he knew nothing of such a requirement. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to their own conscience to what they think is best for their company, themselves and their family, is the only fair way to determine whether we should have a union here at Freeport Transport, Inc. You should realize, therefore, that signing a card is a very meaningful thing. It assigns your right of repre- sentation to the union . You should not sign a card unless you are willing to accept the consequences and the obligations of this representation. Should questions arise in your mind with anything connected in this matter , please feel free to ask any management official about it.10 Carr testified that around December, while sitting in his tractor in the company garage, Paul Cooper, a Canadian driver, came over with a petition for him to sign, saying it was to get a company union; that Carr refused, saying he favored the Teamsters; that Carr later discussed this peti- tion with Gil Therberg, the licensed mechanic at the Ontar- io terminal, who said that his (Therberg's) name had bet- ter not be on it, and Carr replied, "as far as that goes, he could have put my name on it. I never seen the petition. He could have put the president' s name on it, as far as that goes. I never seen it"; that he asked Therberg where O'Keefe (another driver) was, Therberg said O'Keefe had been fired for union activities, and Carr replied that he had been "led to believe that O'Keefe was let go because he had a bad heart"; that about an hour after Carr got home that night he received a phone call from Denman charging him in effect with "accusing one of my drivers of signing your name to . . . a petition that was against the Teamsters Union"; that Carr said he had not accused Cooper but only said that Cooper could have done it, and Denman said, in effect, "you people may do that over in the states, but I want you to understand, you do not do that over here in Canada." 12 Carr further testified that in mid-December the follow- ing conversation occurred while he was in the dispatch of- fice: Mr. Denman said to me, he said, "You signed one of those union cards, didn't you?" I said, "Yes, I did." he says, "Bob, you know what you are getting into?" I says, "Harry, look, all I know, I don't have hospitali- zation. I don't have any sick pay. I don't get any- thing like what the Canadian drivers are getting." I says, "They are getting all the benefits." I said, "They are dust laughing at us. At least if I go union, I'll end up having the benefits, the Teamsters benefits." He says, "Bob, this is not a union barn. As far as I'm concerned it will never be a union barn," and he says, "And if you want to work here," he said, "you cannot become a union member. So make up your mind." 10 The letter was not sent to the Canadian employees, nor was any other statement of Respondent's position communicated to them, according to Respondent's counsel, because Canadian law provides less latitude to em- ployers in this regard. Three other mechanics are employed there but are unlicensed 12 Asked on cross-examination when this conversation occurred, Carr said he "believe[dl it was in mid-December " Pressed to refresh his recollec- tion because "the time here is important ," he qualified it to "Between De- cember and February, approximately " After some prompting, he also recalled, as part of the same conversation: Harry, Mr. Denman had mentioned that Freeport Transport, Andrew Smetanick owned Lane Leasing, which is out of Freeport, Pennsylvania. He turned around and Harry says, "You know, Bob, there's nothing in the world stopping Andy from turning around and laying off all those American drivers down there, except for three or four of the men he wants to keep, and turning this equipment over to Lane Leasing and then leasing all this equipment out. That way they won't have to go union at all. All we have is the Canadian drivers and non-union men down there. What would you do then if that hap- pened?" So I didn't know how to respond to him. I just gave up on it then. But, he did mention that fact that Lane Leasing was a possibility of Andy turning the Freeport terminal over into Lane Leasing and get- ting rid of all the American drivers except for a few that he wanted. Carr then testified to still another conversation with Denman, as follows: THE WITNESS: This was on a particular time. I believe it was on a Saturday. It would have to be on Saturday morning. Mr. Denman and Mr. Cooper were down at the Lower Arch Bridge, checking, standard procedure to go down and check and see which equipment is down there, as far as trailers and loads and things like this, in the Government compound at the lower arch bridge. They were down there, I believe, stopped off and had breakfast, the way I understood, which they all do. When they got back, they didn't realize I was there. Before they got back, Flint 19 or Flintstone is the way I refer to him, he was in there and checked me out, as far as checking my logs and reevaluating my logs to make sure I wasn't out of hours or off hours or something, if I was off hours or anything. Either Mr. Denman or Mr. Flint would take and have me make out a new log to correspond, to allow for hours and mileage. In other words, if I put down that I ran so many miles in X number of hours, he would say, "You couldn't run those many miles in those hours." He says, "Totally impossible." Well, he would take an ex- tra log book out from underneath the counter and have me remake the log again to correspond to his liking. Q. Why don't you describe the conversation between you and him? A. Anyways he cleared me all off on that, and took my toll tickets that I had, that I paid for, that I was supposed to be reimbursed for and added them all up. He says, "Harry, when he comes back he will give you the money." I waited for Harry. I was sit- ting out in the garage at Gil's desk out there, which is up against his wall, up against the dispatch wall there. I was sitting there and Cooper and Harry came back and they were talking. They came back 13 Denman's assistant. FREEPORT TRANSPORT, INC. 837 from the bridge and they were talking about .. . their conversation when they got into the dispatcher's office led up to the fact that Harry turned around, he told Mr. Cooper, he says, "Well, you can't word that thing that way. You have to turn around and record it, that the employees of Niagara Falls, Ontario Terminal do not want the union" and he was writing this out, and when I walked in the office, he was writing this out in long- hand, and he was sitting over at the secretary's, Harry, I believe you call her secretary or office girl; he was sitting at her desk where the typewriter was, and he was typing this stuff out on a piece of paper. I didn't see what it is, but the only thing I can as- sume that it ... . Q. Just describe what you saw and heard? A. Just that Mr. Cooper was sitting there at the type- writer typing out this piece of paper, and when I walked in, I said, "Harry, where did you get this new blond-haired secretary?" And everything was shuffled and they put everything underneath the blotter and Harry said, "Here's your pay check." He says, "I'll see you." I went home. On cross-examination, Carr testified as follows concern- ing the same incident: Q. Now, when one comes into the garage, how far would you say Mr. Gil's desk is to the entrance into the garage, how many feet; 150 feet? A. Two doors in the garage, so the drivers come from the exit, some of the drivers come from the other end of the garage. Q. How far would it have been from the point where you said Mr. Cooper and Mr. Denman came into where you were sitting behind Mr. Gil's desk? A. As close . . . with a wall between; I'd say as close as I am to your Honor, the Judge here. JUDGE HERMAN: About three feet. THE WITNEss: Allowing space, about a little bit more. It could be like from here to the lawyer; I don't know. Q. (By Mr. Cabot) Could it be about 150 feet, 200 feet, sir? A. I don't know. Q. There are partitions between the desk where you were sitting, allegedly sitting? A. Cinder block wall there. I believe a cement, cinder block. Q. Do those cinder block walls separate at that point, where you are sitting and Mr. Denman came in? A. Yes, sir. Q. How thick is the cinder block wall? A. I don't know. Q. Could you estimate, sir? A. No, sir. I might say a six inch block. It could be a 12 inch block. 12 inch block, 18 inch block. I have no recollection. It may be a 2 inch block; I don't know. 14 Cooper denied that the foregoing incident ever occurred or that he ever discussed the umon attitudes of any em- ployees with Demean or even discussed the Union with Denman. He testified that the antiunion petition had been drafted on the advice of certain named counsel retained by him and about four other employees at their own expense and with no guidance from Respondent, and that he had never discussed the petition with Carr. On direct examina- tion he said he did not "really know" whether Therberg signed the petition "because I didn't get all the signatures," but that he thought Therberg had not signed. On cross, he testified that he had asked Therberg to sign but Therberg had refused, saying "he signed a union card and wanted the union." About 40 percent of the employees did not sign the petition, according to Cooper. Cooper also testified that about 2 months before Carr's discharge Carr came up to him and said in effect, "You know I did work at this fucking place before. It ain't any fucking better now than it was before. I don't know why I come back"; that Cooper replied, "The easiest solution for you, if you don't like it, don't let the door bang you in the ass on the way out"; and Carr rejoined, "The company isn't any better now. I will fuck them for everything I can whenever I do leave." Carr denied any such conversation, saying he does not use "that kind of language." Denman denied ever discussing the Union or the peti- tion with Cooper or Carr or asking any employee to circu- late an antiunion petition, or discussing Lane Service Com- pany with Carr. He denied knowing that Cooper was circulating a petition and testified that he informed Coop- er, Carr, and other drivers that he was neutral on the union matter. He also testified to having measured, on the previ- ous evening with company counsel, the garage area men- tioned in Can's testimony; that the door leading to Denman's office, which is entirely enclosed and separated from the garage proper by an 18-inch concrete wall, is about 16 feet from Therberg's desk in the garage; and that the entrance to the building is about 40 feet further away. On Saturday, March 9, the day of the election, notwith- standing that the Canadian-based employees had been ex- cluded from the unit, Carr, who was off from work, drove to Freeport, apparently to attempt to cast a ballot. He ar- rived after the polling hours. According to Can, Cecil Saye, who, despite his prounion attitude, was the company observer, informed Carr that he was too late; Paul Hind- man, Respondent's corporate secretary and operations su- pervisor, added that he could not have voted anyway; Saye asked why not since Can had signed a union card, and Hmdman replied that the Company knew he had signed but that he was ineligible because he worked out of the Canadian terminal. Hindman testified that he was alone when Carr arrived, about a half-hour after the polls had 14 Carr also testified on cross-examination that the desk was about 6 feet from the other side of the wall separating the dispatch office from the ga- rage proper. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closed, and that no one else was present during their brief conversation in which he simply informed Carr of his ineli- gibility and the reason therefor; that Carr did not indicate how he had intended to vote; and that no one had ever indicated to him that Carr had signed a card for any union, nor did he have any knowledge prior to the filing of the instant charge that Carr was interested in any union. The following Monday, according to Denman , Carr informed him of his visit to Freeport, without disclosing how he had intended to vote, and Denman reminded him of his desire to be neutral and declined to discuss the matter. Carr admitted on cross-examination that on April 23, 1974, he was suspended for 3 days without pay for having been too drunk to perform an assignment . He complained to no one about such punishment . He denied, however, having been warned by Denman, as Denman testified, that any further breach of rules would result in his dismissal.15 On the last day of his suspension, a Thursday , Denman called him and said he had a dispatch for him the next morning. Carr refused it, saying that he had not worked all week and would not be available until Monday, April 29. On the morning of April 29, Carr was dispatched to the Freeport terminal with two empty trailers for the state in- spection. He testified that Denman told him to get his trac- tor fixed,16 and when he arrived he parked his tractor near the garage doors, shut it off, and went in to see John Wes- tendorf, the maintenance director ; that Westendorf told him to put the trailers somewhere else, but that he was unable to start the tractor and had to be towed to get it started. '7 He then asked Westendorf to see what was wrong with it, but Westendorf demurred, according to Carr's di- rect examination, saying they were all tied up with inspec- tions and that if it was not critical Carr should get it fixed at another time.18 Carr confirmed this on cross , stating, Mr. Westendorf didn't try to route me any place. Mr. Westendorf said he didn't have the time and couldn't fix the tractor at that particular time. On redirect, however the following emerged: Q. Did Westendorf give you any instructions as to where you may or may not take the truck for repair? A. Mr. Westendorf was very busy, which you could see and Mr. Westendorf said, "We can't fix the truck here, Bob. See if you can't get it to your own terminal and see if they can do something for it up there." Westendorf denied telling Carr that they did not have time to fix the truck. In any event, the tractor required inspection by April 30, and it was left there until late afternoon of April 30 while Carr was lent another tractor to work with pending the return of his. Parts of 2 days were thus spent inspecting IS Denman advised Freeport headquarters of the incident by telex mes- sage. 6 Presumably for the problems appearing infra. 17 Westendorf did not recall the towing but conceded "it could have been." 18 The engine had been tuned and other engine work done about 15,000 miles earlier ; the normal period between tuneups is about 75 ,000 to 100,000 miles. Carr's tractor and, in Westendorf's words, making it "road- worthy." However, nothing was done with the starter, the engine, the fuel system, or the electrical system affecting the engine despite Carr's having informed Westendorf of problems in starting and lack of power. The only repair work' done was that required by the state inspection. After completion of the inspection and related repairs, the truck was returned to Carr who was dispatched to Newell, West Virginia,19 to pick up a load for Sault Ste. Marie, Ontario. After making his pickup, Carr testified on direct examination, "the tractor acted the same way as when [he] brought the tractor down to Freeport," so he telephoned the dispatch office at Freeport at about 10:30 p.m. on April 30, a man answered, identifying himself only as "a mechanic" and saying no one else was there, and, when Carr explained the trouble, told him to "bring it back here and we'll fix it in the morning," but that when Carr voiced doubts as to how they could do that since they had not fixed it in the previous 2 days the man said, "Well, take it back up to your own terminal then"; and Carr did so, admittedly going 140 miles out of the way 20 On cross-examination, Carr's testimony as to this con- versation was as follows: Q. Is there any reference on Page 14 of your affidavit that some mechanic told you to go take the vehicle that you were driving to the Canadian Terminal? A. No, sir, not that I see there. Q. Is there a statement in your affidavit which says, "I then decided to take the rig to Niagara Falls Termi- nal to get it fixed." You took it upon .. . A. Yes. Q. You took it upon yourself to make the decision? A. In a form, yes. JUDGE HERMAN: What do you mean, "in a form." THE WITNESS: I was down there and they told me I ... they could not fix the vehicle, that they didn't have time to fix the vehicle. I was stuck out on the highway with it and at that time I went through two or three different breakdowns and never received breakdown time . I'm not going to get stuck out in the middle of the highway and stay here all night and not get paid again. I decided to take the truck to Niagara Falls, Ontario.21 Carr arrived at the Niagara Falls terminal on the morning of May 1 where, he testified, a mechanic found one of his fuel filters "full of gunk" and that his starter had been "hot lined," i.e., some makeshift device had been used to bypass the ignition switch. President Smetanick happened to be at the Ontario ter- 19 About 75 miles west of Freeport. 20 Carr admitted that no driver had ever gone as much as 100 miles off route. 21 Smetanick testified that following Carr's testimony concerning his al- leged conversation with the Freeport mechanic he spoke via telephone with each of the seven Freeport mechanics whose timecards indicated that they had been on duty on the night involved (April 30, though frequently re- ferred to as May I) as well as with the dispatcher then on duty, that none indicated any conversation with Carr, that there was no record of any call from Carr, and that there was no one on duty with authority to redispatch him to Niagara Falls. Respondent's counsel, who was with Smetanick throughout these conversations , verified the substance of Smetanick's testi- mony by a statement on the record. FREEPORT TRANSPORT, INC. minal at that time for 3 days of meetings with certain cus- tomers, and, when he learned Carr was there instead of on his way to Sault Ste. Marie by a totally different route, he sent for him to report to the dispatch office. According to Carr, Smetanick asked Carr what he was doing there, and Carr replied that he could not get the tractor fixed in Free- port, that Westendorf had said he lacked the time or men because they were "busy with inspection," and had told him, "See if the truck won't run right. If it doesn't, take it down to Niagara Falls terminal and see if they can get it fixed for you. There must be something minor wrong with it." Carr testified further on direct examination that Sme- tanick said he could not believe that Westendorf would have told Carr to go 140 to 150 miles off route entailing a substantial additional fuel cost 22 and further complica- tions,23 to get the truck fixed at Niagara Falls, but Carr insisted that it had happened, and Smetanick said he would be fired if it recurred. Smetanick testified that his conversation with Carr end- ed with Carr's informing him that he was there at Westendorf's direction, and that the only reason he did not fire Carr "on the spot" was that he wanted to check out Carr's story with Westendorf despite his incredulity that Westendorf would have suggested such "a very costly way to attempt to make a repair" which either could have been done at any truck stop on the way up to Sault Ste. Marie or was something more than the kind of "running road re- pair" that was within the Niagara Falls terminal's capacity at all 24 Smetanick testified that he returned to Freeport on Fri- day, May 3, and met that weekend with Westendorf who told him that he had not instructed Carr to go to Niagara Falls; that he then discussed the matter with Denman by telephone and reviewed Carr's prior record, including his 3-day suspension and his frequent requests to have his de- liveries completed by other people, and they agreed to dis- charge Carr. This was confirmed in general by Denman's testimony. Smetanick testified he had the earlier 3-day sus- pension in mind when he made the discharge decision be- cause it had happened so recently, but that he deemed the going off route as sufficient in itself to warrant discharge. He denied knowledge of Carr's union activity or of that of any employee, saying that as a matter of policy, he made himself "unavailable" for discussion of such activities. Denman also denied knowledge of his employees' union activities. Meanwhile, on May 1, Carr had asked to have someone 22 Besides the extra mileage, the planned route would have been virtually entirely in the United States where fuel prices are much lower than in Cana- da, 23 Like the prevailing fuel shortage and the "far inferior" roads involved in the rerouting, according to Smetanick. 24 According to Smetanick's uncontradicted testimony, Respondent em- ploys 4 mechanics at Niagara Falls, I each at Frankfort and New Eagle, and 22 at Freeport, although, according to Westendorf, only 19 were working at Freeport during the period here involved. Smetanick also testified that the Canadian terminal , lacking parts, tools, and staff, is not equipped to make repairs other than change of tires , lubrication, oil change, and small electri- cal running repairs, and, in the case of a starter, something very minor like a loose wire; and that the employees are aware of this because they see where the work is actually performed . This was generally corroborated by Denman. 839 else drive his load to Sault Ste. Marie, but Denman re- quired him to complete the dispatch. He then drove a load from Sault Ste. Marie in Portsmouth, Ohio, where he picked up another load for Ontario, arrived with it at Niag- ara Falls on Saturday, but was unable to clear customs because of the weekend, so he left it there and brought the tractor to the terminal.25 On Monday, May 6, Denman asked Carr into his private office where he discharged him. According to Denman, with Carr's file on his desk, he spelled out his accidents, "went right down the line on what a poor employee he had been," and said that in view of his two grave infractions in a short period of time he could be tolerated no longer; Can said he thought he was being dismissed because Denman had learned of a phone call to Can from Business Representative Marinelli of the Canadian Teamsters' local; and Denman denied this, say- ing he knew nothing of Carr's union activity and that any such activity had no bearing on his discharge. Carr's version of the discharge was that Denman told him he did not "fit in this organization anymore," that he asked what Denman meant, and Denman said, "You can't come over here and tell me or my men that they have to go union," referring to the $2 loans Can testified he had made at Ripley; that Can said O'Keefe had done the same thing a few days before he had, and Denman replied, "Yes. You know where O'Keefe is." Following a lunch recess after concluding his direct examination, Carr resumed the stand on direct to testify that Denman had raised Marinelli's name, accusing Can of talking with him; and to testify further that Denman had said Carr and O'Keefe were the two "thorns in [his] side" or the "two biggest [union] trou- ble makers." Denman denied that O'Keefe's name came up in that conversation, or in any other business conversation, and testified without contradiction that O'Keefe had not been fired but left voluntarily to undergo open heart sur- gery. Can initially denied that Denman ever opened up his "portfolio" or "dossier" during the discharge interview or adverted "at all" to his going off route or to his work being unsatisfactory. On redirect examination, however, he re- sponded affirmatively to the question, "Only on the day of discharge was anything said about going off route?" And he confirmed this on cross-examination in rebuttal, after having reiterated his denial on direct, but he hedged on it on redirect, asserting a memory lapse. The drivers are obliged to call a terminal when they en- counter mechanical problems, and if they are closer to Freeport than to Niagara Falls they are supposed to call Freeport. Can testified in this connection, however: Q. And when you called Freeport Terminal, who did you generally talk to? A. You got a hold of the Dispatcher first and you explained your trouble and if it was serious enough, he'd get a hold of John Westendorf or one of the top mechanics and explain your trouble to him. Q. When you had a problem at night, who was the terminal you could talk to? A. Niagara Falls Terminal only; Harry. 25 Carr encountered no further mechanical difficulties, but the starter problem had evidently still not been cured because shortly after his dis- charge the truck had to be returned to Freeport for such repair. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. He was there at night? A. He lives above the terminal. Q. Who was at Freeport, who was there at night? A. Freeport Terminal, to my knowledge, only the me- chanic on duty, I'd say from 10:00 o'clock. I don't know what hour he comes on. He is there in the evening. Yet he stated that his call to Freeport on the night of April 30 accorded with "general procedure." In any event, ac- cording to Denman's uncontradicted testimony, if the driv- er calling Freeport is from the Canadian terminal and is unable to reach someone in authority at Freeport he is obliged to call Denman who, as Carr stated, is available at any hour because his apartment is directly over the termi- nal. Denman so advised Carr in February, shortly after Carr's involvement in an accident. Depending on the na- ture of the problem, the driver might be directed to a near- by truck stop or told to await the arrival of needed parts or of a mechanic dispatched by the terminal, or of another tractor to replace the damaged one, and on the rare occa- sion when no dispatcher is on duty, and the terminal man- ager of the maintenance superintendent is not available and no officer can be reached, the driver will be instructed to get some sleep and call in the following morning. The complaint was amended at the hearing to add a new subparagraph (e) to paragraph 6, alleging that Respondent told Carr that it was opposing his unemployment compen- sation claim because he had filed the instant charge. A hearing was held on October 29 in Niagara Falls, New York, on Can's claim which Respondent opposed on the ground that the discharge had been for cause, i.e., for going off route.26 After the conclusion of that hearing, according to Carr, he asked Denman why Respondent opposed his claim and Denman replied it was because Carr had filed the instant charge.21 Denman denied mentioning the filing of the charge. His testimony as to that conversation was that Carr said he had been unable to get a job and accused Denman of not giving him a good recommendation, and that he replied that he had merely told the truth when any- one inquired about Carr, and that Carr then repeated that he thought he had been discharged for his union activity, which Denman denied. Carr admitted that his testimony at the unemployment hearing did not mention that a Freeport mechanic had told him to go to the Canadian terminal, saying he "was not asked this question." B. Concluding Findings The General Counsel's entire case rests on Carr's credi- bility. Because I am not satisfied that the confidence thus reposed is justified, I find that the General Counsel has 26 The transcript of that hearing was referred to the appropriate authority in Pennsylvania where the claim had been filed and to which Respondent is subject. A preliminary decision of December 30, allowing the claim, was on appeal in Pennsylvania as of the date of the instant hearing. appeal Carr's testimony also linked Denman's alleged statement concerning the filing of the charge to Carr's asking Denman why he was giving bad recommendations to employers to whom he had given Denman's name as a reference. This testimony was stricken as beyond the scope of the com- plaint. failed to sustain his burden of proof. Can's manner on the witness stand was unimpressive and evasive, and his testi- mony was frequently evasive and self-contradictory, as well as generally unconvincing. Hence, although I am not completely satisfied with the candor of Respondent's wit- nesses,28 I find that Carr's overall account of the events, particularly as to the essentials involved, rings sufficiently less true to defeat his claim. A meaningful starting point is the alleged linkage of Re- spondent to the antiunion petition. Carr's testimony would have it that he just happened to go to the Niagara Falls terminal on a Saturday morning to get reimbursed for his toll expenses and so was able to overhear an incriminating conversation between Denman and Cooper which fortui- tously had been delayed until they entered the garage. Numerous flaws in the account render it unbelievable. First, the determination of the amount due required some calculation on the part of Flint, Denman's assistant, who for some unexplained reason could not give Carr the mon- ey but made him wait for Denman. When Carr then sur- prised Denman and Cooper in the act of redrafting the petition, Denman, flustered, handed him his "pay check" which was evidently all prepared, and Carr went home. Now, if "pay check" meant the toll money, it does not appear how it got into Denman's possession or how it bore an authorized signature since surely Flint, who had com- puted the amount, had no authority to sign checks. On the other hand, if "pay check" referred to Carr's regular pay, then it would appear that Carr went home without protest although he had not been reimbursed for his toll expenses, the only reason for his continued presence in the terminal. Second, when Carr walked into the office, Denman was rewriting the petition "in longhand," which suddenly trans- formed into "typing," and just as suddenly shifted Cooper to the typewriter. Third, when on cross-examination Respondent's counsel sought to elicit some pertinent de- tails concerning Carr's ability to overhear the conversation he had testified to on direct, Carr estimated the distance between Therberg's desk, where he had been sitting, and the point where Cooper and Denman had entered the ga- rage, at about 3 feet or perhaps "a little bit more," but replied he "d[id no]t know" when asked if it could have been as much as 200 feet; similarly, he variously estimated the thickness of the cinderblock wall separating the office from the garage proper at between 2 inches and 18 inches, 281 am unable, for example, to credit President Smetanick's testimony that he was not aware of the union tendencies of any of the emloyees (he did not limit this to Canada) because it was not his policy to discuss union matters with the men and he "made [himself] unavailable" therefor. In my opinion, this is entirely belied by the last sentence of his letter of November 8, which is a virtual invitation of such discussion. Nor is credence to be given to Denman's denial of knowledge of any organizational attempt by the Teamsters prior to the notice from the Canada Labour Relations Board on February 4, 1974, of the Canadian local's filing a petition. Since the Union's petition to the Board initially extended to the Canadian terminal, it passes belief that Denman would not have been informed thereof by the Freeport officials. Again, I note the inherent inconsistency between the clear implication in Cooper's direct examination that he had not solicited Therberg's signature on the antiunion petition and his testimony on cross- examination that he had solicited it. I also have in mind Respondent's fail- ure to supply a promised copy of the transcript of testimony in the unem- ployment compensation proceeding to support Denman's testimony here that Carr had there testified that he had only gone 40 or 45 miles off route. But Respondent's testimonial lapses do not go to the heart of the case. FREEPORT TRANSPORT, INC. 841 which latter figure was correct; and finally, after stating on direct examination that Therberg's desk was "up against the dispatch wall," he conceded on cross that the desk was about 6 feet from that wall. Carr's alleged conversation with Therberg , also related to the antiunion petition , likewise taxes credulity, for de- spite the fact that the conversation supposedly occurred sometime after O'Keefe's cessation of employment Carr testified that he asked Therberg where O'Keefe was, as though he was still employed. Most telling, however, is the infirmity in the General Counsel's position in respect to the incident precipitating Carr's discharge. Carr's direct testimony of his conversa- tion with Westendorf upon his arrival at Freeport on April 29 made no mention of Westendorf's telling him to take the truck to the Canadian terminal. Indeed, on cross, Carr confirmed this, saying, "Mr. Westendorf didn't try to route me any place." All that he testified Westendorf told him, again essentially reiterating his direct examination, was that "he didn't have the time and couldn 't fix the tractor at that particular time." By contrast, Can testified on direct that when he arrived at Ontario on May 1 he told Smetan- ick that Westendorf had told him that if the truck did not run right he should take it to the Niagara Falls terminal to see if they could fix it because the trouble "must be some- thing minor." Somehow a transference occurred thereafter, with Carr testifying on redirect for the first time that Wes- tendorf had told him to get his truck fixed at the Canadian terminal. Strangely, however, Can never told Smetanick of the alleged telephonic authorization from the Freeport me- chanic on the night of April 30, to go to Niagara Falls, on which authorization he now relies . Moreover, this omission was consistent with its absence from Carr's statement to the Board's investigator. Nor did Can mention such a con- versation in his testimony at the unemployment compensa- tion hearing. His expressed reason for this lapse-that he had not been asked the question-hardly suffices since it offers no explanation for his failure to provide a relevant response to Respondent's contention there of a discharge for cause. The instant hearing, then, constituted the first occasion for Carr's shift to this tack. However, he also tes- tified here that he decided to go to Niagara Falls because he was "not going to get stuck out in the middle of the highway and stay here all night and not get paid again." But whether he took it upon himself to decide or acted at the suggestion of the alleged mechanic-and I am inclined to the view that no such call was ever made 29 -such be- havior was not in keeping with applicable requirements. Carr himself testified that night calls were to be made only to Denman. But assuming his proximity to Freeport war- ranted a call to that terminal instead , and assuming he spoke with the mechanic , as he testified, he knew or should have known that the mechanic lacked authority not only to 29 In this connection I deem it unnecessary to rely on Carr's official log for April 30 which shows him almost in Niagara Falls at the time he suppos- edly made the call from Newell . Having some doubt on this record as to the accuracy of the hours reflected by the logs in evidence, I have relied thereon in only one respect, i.e., for my finding that Carr left Newell for Freeport on April 30, a matter unaffected by the questions of accuracy raised and which finds independent corroboration in the record. reroute him to Niagara Falls but even to reroute him back to Freeport and that, failing to reach someone with greater authority in Freeport, which he did not even attempt, he should have called Denman before undertaking on his own to travel some 140 miles out of his way. Even if he had had to make a choice between the two terminals, Freeport would seem to have made more sense in view of its vastly greater service capacity. Carr's alleged concern that if they had not been able to make the necessary repairs in 2 days the prospect was bleak for the next day ignores the fact that the inspection period (the reason for the tieup at Free- port) was due to expire about an hour after his alleged phone call. I find the convolutions in Carr's account so complex and devious as to manifest a cover for another purpose of his. I believe that Can wanted to get back to Niagara Falls soon- er than events permitted and chose this way to do so. I find this evidenced by his request at Niagara Falls on May 1 to be relieved of the obligation to complete delivery of his load to Sault Ste. Marie, a request fairly typical of Carr's practice. I credit Respondent's evidence, supported by Business Agent Baker, that going off route was a capital offense, and Smetanick's further testimony that the Carr episode was a particularly outrageous example, and the only reason he did not fire him "on the spot" on May I was the need to check out Carr's story with Westendorf.30 I also credit Denman's testimony that he used the discharge interview to mention Can's failings as an employee over Carr's far less likely initial testimony that Denman confined himself to Carr's union activity which Can himself conceded was not outstanding and which the evidence as a whole estab- lishes to have been minimal.31 In the first place, Carr subse- quently changed his testimony to admit that Denman had indeed mentioned his going off route.32 Secondly, the union activity to which Carr attributed his status as a "thorn in [Denman's] side," and which allegedly constitut- ed the reason he did not "fit in this organization anymore," consisted merely of his alleged $2 loans to a few employees so as to enable them to join the Union which, it must be presumed, they would have done anyway as soon as they had the money, to wit, on their next trip, assuming the existence of such a requirement. Evidently aware that such activity did not quite make him either the Robert Morris or the Chaim Salomon of the Freeport Revolution, Can attri- buted the same activity to O'Keefe, long separated from Respondent, and on Denman's lips, in reply to Can's men- tioning the event, placed the words, "Yes. You know where O'Keefe is." In view, however, of the general belief mani- fested by Carr's own impression that O'Keefe's departure 30 I specifically discredit Carr's testimony that Smetanick told him at the time that he would be fired if it happened again. This would have made no sense at all because, as Smetanick explained, if Westendorf had told Carr to make the trip Carr would not have been at fault, and surely Smetanick would not have threatened Carr with discharge for a recurrence at his supervisor's orders. Carr's testimony could hardly have been more evasive in leading up to his concession that he had not attended any union meetings during its re- cent campaign. Moreover, his testimony that he "didn't associate that much with Canadian employees over there" marks him as somewhat less than the "strong" supporter of the Canadian local and the organizational threat that the General Counsel's brief calls him 32 And changed it twice again before pleading a loss of memory. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was voluntary and on account of his health, and the ab- sence of any allegation by the General Counsel regarding O'Keefe, I credit Denman's uncontradicted testimony that O'Keefe had quit to undergo open heart surgery, and find that this statement attributed to Denman by Carr, like much of Carr's testimony, was pure fabrication. Finally, the probabilities of the situation compel rejection of Carr's account. There can be no question that the discharge was precipitated by Can's going off route. The sole issue is whether this constituted the real motive or only a pretext for Respondent's action. In either event it would seem in- credible that Denman would have failed to mention it in effecting the discharge. I believe Carr had difficulty work- ing this out in his mind, and it was his uncertainty as to which would be the more effective approach rather than loss of memory that produced all of his testimonial shifts in this regard. What this case boils down to is the highly dubious story of a single individual, with an undistinguished work record at best, wholly uncorroborated, and unsupported even by allegations by the General Counsel of unfair labor practic- es directed to any other employee, including far more ac- tive unionists, who was discharged almost 2 months after the Board's certification of the Union he had supported and the withdrawal of the Canadian petition in which he had played no role whatever, for conduct strictly pro- scribed as a capital offense by this Employer as well as the industry generally, less than 2 weeks after the employee's suspension over another serious offense as to which he failed to protest despite the absence of any union activity in the interim. Of such gossamer are unfair labor practices not proved. Accordingly, I shall recommend dismissal of the entire complaint. CONCLUSIONS OF LAW 1. Freeport Transport, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 538, is a labor organization within the meaning of Section 2(5) of the Act. 3. General Counsel has failed to establish by a prepon- derance of the credible evidence that Respondent violated the Act as alleged in the complaint. RECOMMENDED ORDER 33 Upon the foregoing findings of fact and conclusions of law, it is recommended that the complaint be dismissed in its entirety. 33 In the event no exceptions are filed as provided by Sec . 102.46 on 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.