Hiller Trading Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hiller Trading Corporation and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Steel Haulers' Local 800. Case 6-CA-9535 September 26, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On April 18, 1977, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and the General Counsel subsequently filed a motion to reopen the record and to amend the recommended Order of the Administrative Law Judge.' 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 briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. While the Administrative Law Judge properly ordered that Respondent revoke its unlawful dis- charge of employee McCully, we find that he failed to adequately define McCully's employees status and related rights as of the date of his Decision. Since we find that McCully, upon application, would have been entitled to reinstatement as of the time of his unlawful discharge, we shall amend the Administra- tive Law Judge's recommended Order and notice to reflect that determination. We shall also order that McCully be made whole for any loss of pay he may suffer during the period commencing 5 days after his application for reinstatement.3 Any backpay shall be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation.4 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 as modified below and hereby orders that the Respon- dent, Hiller Trading Corporation, Dravosburg, Penn- sylvania, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 232 NLRB No. 60 1. Substitute the following for paragraph 2(a): "(a) Immediately notify Bertram G. McCully that it has no objection to his reinstatement and, thereafter, upon his unconditional application there- for, offer him reinstatement to his former job or, if such job is not available, to a substantially equivalent job, and make him whole for any loss of pay he may have suffered during the period commencing 5 days after the date of any such application, in the manner set forth in paragraph 2(b) below." 2. Substitute the following for paragraph 2(b): "(b) Upon his unconditional application for rein- statement, offer Bertram G. McCully immediate and full reinstatement for his former job, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any replacements, and make him whole for any loss of pay he may have suffered for the period commencing 5 days after the date of any such application and terminating on the date of Respondent's offer of reinstatement, such loss to be computed in the manner set forth in the Board's Decision and Order. 3. Substitute the attached notice for that of the Administrative Law Judge. I Upon due consideration, the General Counsel's motion to reopen the record and to amend the recommended Order of the Administrative Law Judge is hereby denied. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 Member Jenkins would order Respondent to reinstate McCully with backpay from the date of discharge, subject to normal offset considerations. See his dissenting opinion in Michael Muldoon Elder, d/b/a Vorpal Galleries, 227 NLRB 446 (1976). 4 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to give evidence, it has been decided that we have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you, as employees, these rights: To engage in self-organization To form, join, or help unions 358 HILLER TRADING CORPORATION To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. Accordingly, we give you these assurances: WE WILL'NOT discharge you or take any other reprisal against you because you have supported International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Teamsters Steel Haulers' Local 800, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them in the Act. WE WILL revoke our discharge of Bertram G. McCully and we will correct our employment records accordingly and, upon his unconditional application, we shall offer to McCully full and immediate reinstatement to his previous position, or, if such job is not available, to a substantially equivalent job, and make him whole for any loss of pay he may have suffered during the period commencing 5 days after the date of such application. WE WILL notify Bertram G. McCully, in writing, that he has not been discharged but is still our employee and WE WILL also notify him that our letter to him, dated August 30. 1976, advising him that he has been discharged, is rescinded. HILLER TRADING CORPORATION DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on December 14, 1976, at Pittsburgh, Pennsylvania, pursuant to a charge filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Steel Haulers' Local 800, hereinafter referred to as the Union, on August 30, 1976, and served on Respondent by registered mail on the same date; and amended charge filed by the Union on October 27, 1976, which was served on Respondent by registered mail concurrently with the complaint, and on a complaint and notice of hearing issued by the Regional Director for Region 6 of the National Labor Relations Board on October 29, 1976, which was also thereafter duly served on Respondent. The complaint alleges that Respon- dent has violated Section 8(aX3) and (1) of the National Labor Relations Act, as amended, by discharging Bertram G. McCully and thereafter refusing to reinstate him because of McCully's union or other concerted activities. In its answer to the complaint, which was also duly filed, Respondent has denied the commission of any unfair labor practices. For reasons which will appear hereinafter, I find and conclude that Respondent discharged McCully in violation of Section 8(a)( 1) and (3) of the Act. At the hearing the General Counsel and Respondent were represented by counsel. All parties were given full authority to examine and cross-examine witnesses, to introduce evidence, and to file briefs. At the conclusion of the hearing General Counsel and Respondent presented oral arguments on the record. A brief has subsequently been received from Respondent which has been consid- ered. Upon the entire record in this case including the brief and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Connecticut corporation with its principal office located in Dravosburg, Pennsylvania, owns trucking equipment which it leases to certified interstate motor carriers of property. During the 12-month period immedi- ately preceding the issuance of the complaint, Respondent derived gross revenues in excess of $50,000 from its operations and received in excess of $50,000 for services performed for individuals or companies which are directly engaged in interstate commerce. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Relevant Hierarchy At all times material herein, Frederick R. Hiller, Respondent's vice president, and Robert A. Patterson, its general manager, have been, and are now, agents of Respondent acting on its behalf and are supervisors within the meaning of Section 2(1 1) of the Act. B. Background and Sequence of Events As previously noted Respondent owns equipment which it leases to certified interstate motor carriers of property. Among other customers, Respondent leases equipment to Pittsburgh and New England Trucking Company (PNE). Frederick R. Miller, who is vice president of Respondent. is also executive vice president of PNE. The president of Respondent and of PNE is Frederick T. Hiller, father of Frederick R. Hiller. Frederick T. Hiller is the sole stockholder of Respondent and PNE. PNE performs billing services for Respondent but it performs the same 359 DECISIONS OF NATIONAL LABOR RELATIONS BOARD services for other independent owners who lease equipment to PNE. Respondent and PNE are both located in Dravosburg, Pennsylvania, but in different buildings; Respondent and PNE are separate corporations, maintain separate books, ledgers, and records, and maintain sepa- rate business accounts. Dale Tomb, vice president for PNE, inspects Respondent's trucks periodically but he performs the same functions in respect to trucks leased to PNE by other companies because of PNE's responsibilities in this regard under ICC regulations and the leases. The Union was certified as the exclusive representative for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and/or other terms and conditions of employment of all of Respondent's truckdrivers on April 21, 1976. The Union was also certified as the exclusive representa- tive for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and/or other conditions of employment of all office clerical employees employed by PNE on May 14, 1976. McCully has been employed by Respondent on at least three occasions, the most recent one being from 1974 until his suspension on August 25, 1976. He was terminated by Respondent on August 30, 1976, at which time he was on strike. It does not appear that he has since been reem- ployed and, as I understand the General Counsel's concession at the conclusion of the hearing herein, McCully has been participating in the strike since August 30, 1976. McCully also has an earlier history of union activities. In 1970 or 1971, during a prior period of employment with Respondent, he solicited other truckdrivers to sign union authorization cards. On January 13, 1976,' a charge was filed by the Union against Respondent in another case (Case 6-CA-8916) alleging that Respondent had refused to pay McCully for sick leave because of his activities on behalf of the Union. This charge was subsequently withdrawn after Respondent made a settlement with McCully. Respondent's vice president, Frederick R. Hiller, who ultimately made the decision to discharge McCully, was aware of this charge. In May, McCully was handed a document by Respon- dent General Manager Patterson, in connection with McCully's suspension on May 21.2 When Patterson gave McCully this document in Respondent's parts room, Patterson told McCully, "Watch it, they're out to get you."3 On August 20,4 McCully was driving one of Respon- dent's tractors (a Mack), attached to an unloaded trailer, from Respondent's place of business in Dravosburg, Pennsylvania, to pick up a load at Neville Island about 36 miles away. After traveling some 16 miles the truck lost power on a parkway near Pittsburgh and McCully pulled it to the side of the road in a safety zone. McCully got out of the tractor, opened the hood, and noticed oil coming from t All dates appearing hereinafter occurred in 1976 unless otherwise noted. 2 The document was withdrawn from evidence by the General Counsel on the basis of the concession of Respondent's counsel that McCully's suspension of May 21, 1976, had nothing to do with McCully's discharge on August 30, 1976. :' McCully credibly so testified. Patterson did not testify. a high pressure hose on the pump on the engine. He then got a ride to the Mack repair garage, called PNE, and left a message for his dispatcher, Bill Hart, in which McCully reported the incident. After this call McCully and a serviceman from Mack returned to McCully's truck on the parkway bringing with them hoses and a case (24 quarts) of oil. The serviceman replaced the hose from which oil had been leaking and gave the old hose to McCully. McCully also put 14 quarts of oil in the truck, leaving the remaining 10 quarts in cans in the cab. After the serviceman tried unsuccessfully to start the motor of McCully's tractor, McCully and the serviceman returned to the Mack garage and again called Hart. Hart stated that Hart would send out another tractor. McCully then returned on a Mack tow truck to where his tractor and trailer were still parked on the parkway. When McCully arrived, he found a second tractor waiting for him.5 After the tow truck operator unhooked McCully's tractor to tow it in, McCully hooked up the second tractor and continued on to Neville Island to pick up his load. On August 23, the tractor on which the problem had developed on August 20 was brought to Respondent's place of business in Dravosburg. On the morning of August 25, McCully was interviewed by Ginger Mroziak, Respondent's office manager, and Grant Tissue, Respondent's shop foreman, about the incident of August 20. During the late afternoon of August 25, Mroziak gave McCully a letter suspending him from employment for 5 days "for failing to perform your job duties." The letter stated that Respondent would post a letter on August 30 advising McCully of its decision whether additional discipline would be imposed. On August 27, McCully attended a union meeting at the Riverside Hotel in Dravosburg, Pennsylvania. Also present at this meeting were Robert Todd, the Union's president, and 16 office clerical employees of PNE. Although a strike vote had been taken some weeks before, it was finally decided at this meeting that the PNE clerks and Respon- dent's truckdrivers would go on strike. No other Respon- dent truckdriver besides McCully was present, however, at the meeting of August 27. On August 28, a Saturday, McCully telephoned several of Respondent's drivers but was only able to contact Bill Barron and Junior Conway. McCully told the latter two individuals that they were going to be on strike the following Monday, August 30. On August 30, the strike commenced in the morning with a picket line near the premises of Respondent and PNE. The clerical employees of PNE participated in this strike as did McCully. No other Respondent driver joined them. At 3 o'clock on the afternoon of August 30, Porterfield, a lawyer of Respondent, went out to the picket line and handed McCully a letter notifying him that he was being discharged effective the next day. 4 McCully was unsure if this incident occurred on August 19 or 20. However, a service bill related to the incident was dated August 20, the same date the incident was reported to Fredenck R. Hiller, hence I find it occurred on the later date. 5 The truck had been brought and left there by Douglas Frederick, another Respondent dnver. 360 HILLER TRADING CORPORATION As previously noted, McCully apparently remained on strike from that day until the hearing herein and has not returned to work for Respondent. Concluding Findings The General Counsel's proof establishes that Bertram McCully was a union adherent, this fact was well known to Respondent, and Respondent was disposed to seek reprisal against McCully. Thus, a charge was filed by the Union on McCully's behalf with Region 6 of the National Labor Relations Board. This charge was later withdrawn after a settlement was made between Respondent and McCully. Respondent's vice president, Frederick R. Hiller, who made the decision to discharge McCully, admitted that he was aware of this charge.6 In May 1976, when McCully was handed a letter by Robert Patterson, Respondent's general manager, which letter dealt with Respondent's discipline of McCully in another matter, Patterson told McCully to watch it, because "they were out to get you." Inasmuch as the letter was from Respondent and dealt with the suspension of McCully at that time, the "they" obviously referred to Respondent. Were there any other explanation, Patterson could have supplied it at the hearing. However, he did not testify.7 The question for me to decide is whether Respondent discharged McCully because of his adherence to the Union or whether - since Respondent has elected to advance this sole affirmative defense - McCully was discharged because of the incident on the parkway involving his truck, heretofore described, which occurred on August 20. In this incident, it may be recalled, the motor of McCully's tractor ceased operating. More precisely, the #6 main bearing "galded" (apparently welded itself) to the shaft, causing the motor to lock up. The reason for the galding was lack of oil. And the cause of the bearing not receiving enough oil to lubricate it was that oil escaped from the oil line through a hole in a high pressure hose. None of the foregoing is disputed, nor is it disputed that discharge would be the normal discipline in this industry for a truckdriver who was responsible for a truck motor freezing up due to lack of oil. What is disputed is whether or not McCully is responsi- ble for what occurred. I conclude that he was not. To begin with there is no showing that McCully was accountable for the maintenance of the hose. This is 6 McCully also attended a representation case hearing in December 1975, a fact of which Frederick R. Hiller was also aware. I His failure to testify gives rise to an inference against Respondent, which I draw, that his testimony would have been unfavorable to Respondent. Avon Convalescent Center. Inc.. 219 NLRB 1210, 1213 (1975). The General Counsel also presented evidence that an admitted supervisor of PNE, Ronald T. Beckman, told PNE employee Mary Geer, on August 27, 1976, that some unidentified person had told Beckman that McCully had been suspended because he had been passing out cards to the other drivers. The General Counsel also presented some evidence to show that Respon- dent and PNE are a single employer within the meaning of the Act, obviously with the purpose of making Beckman's foregoing statement binding upon Respondent. I find no relevance in Beckman's statement because its source, for all this record shows, may well have been a rank-and- file employee whose utterances - absent a special showing of agency not present here - would be binding on neither PNE nor Respondent. Having so concluded, it becomes unnecessary for me to determine whether Respondent and PNE are a single employer within the meaning of the Act. apparently a function of Respondent's mechanic person- nel. Respondent's defense thus narrows to the contention that, after the hole in the hose occurred and after oil started to escape through the hose, McCully should have known oil was escaping and had time enough to stop the truck before the aforementioned damage occurred to the motor. In urging this defense, Respondent contends that McCully might have known oil was escaping if the indicator on the oil gauge dropped, if a red light on the dashboard showing lack of oil had gone on, or from a rough engine noise or from the smoke or fumes of oil. As the General Counsel pointed out, there was, of course, only one witness to what happened immediately preceding the freezeup of the motor on McCully's truck. And that witness was, of course, McCully himself. McCully presented a somewhat uncooperative demeanor on the stand and there were a number of inconsistencies in his testimony.8 I have therefore examined his testimony as to what occurred with considerable care. His testimony was consistent that his first knowledge of any problem was when he started losing power. At that time he noticed that the pressure showing on the oil gauge dropped a little and then "went like that on me." He then looked out the window and saw oil escaping from under the hood on to saddle tanks on the outside of the tractor. He turned his flashers on, coasted about 300 yards to a safety zone on the side of the road (from the middle lane where he had been driving) when he came to a stop. He did not notice the red light (showing an oil problem) go on until he got to the side of the road. At no time did he notice any smoke or fumes. Respondent seeks to make much of McCully's repeated testimony that, from the time he first noticed the oil gauge dropping until he finally stopped, 10 minutes had expired (he eventually testified it might not have been that long and that the 10 minutes was only an approximation). He also testified consistently and crucially that he did not notice any loss of oil pressure until he noticed the loss of engine power.9 It was after he became aware of the loss of engine power that he looked out the window, saw oil escaping, then began coasting to the safety area at the side of the road. An effort was made by Respondent to counter the effect of McCully's testimony by presenting an expert-type witness, David Schlessinger. Schlessinger had some 3 years' experience in the repair of Mack trucks such as that McCully was driving, attended a Mack truck repair school 8 E.g., at one point he testified no one talked to him about the truck breakdown, whereas later, on cross, he admitted he was interviewed about this subject by Mroziak and Tissue on August 25. He stated he considered this a casual conversation. At another point in his testimony he said he put four quarts of oil in the truck the night before the accident, elsewhere ire said he put seven quarts in at that time. On direct he testified he never saw the red light go on, on cross he said he noticed it lit for the first time after he pulled over to the side. Also, he was uncertain as to the precise spot where he first became aware that he was having trouble with his truck. 9 The matter of the oil pressure showing on the oil gauge was initially raised by Respondent on its cross-examination of McCully. The first time the question was presented to him McCully stated that he noticed a drop in oil pressure when the truck first began losing momentum. After the matter had been gone over a number of times he continued to tell the same story at the conclusion of his examination. 361 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for some 3 weeks, and had also driver trucks for a year and a half. Schlessinger testified that as soon as oil would begin to escape through a hole such as that in the high pressure hose in McCully's truck, the truck would start losing oil pressure within seconds to a minute and that the oil gauge would reflect this. Schlessinger further testified that it would then take 12 to 15 minutes to pump out all of the oil. He further testified that this loss of oil would cause changes in the engine sound. Another witness for Respondent, Dale Tomb, PNE's vice president for operations, testified that he has been in this industry for 28 years and has repaired trucks. He testified that he inspected McCully's truck when it was returned to Respondent on August 23 and noticed oil still adhering to the left side of the engine. He stated that this escaping oil should have caused smoke and fumes when it hit the engine which would have been warm by the time the incident occurred (McCully testified he had been driving about a half hour). Tomb also testified that it would have taken 10 to 20 minutes to pump out all of the oil once it started to escape. He also stated that there should have been an immediate indication on the oil pressure gauge that the oil pressure was dropping; he testified that after the red light went on there should still have been time to stop the engine before any damage had been done. The General Counsel met the testimony of these two witnesses with an expert of his own, George Jordan. Jordan testified that he has operated a truck repair facility for 25 years and has driven trucks for 15 years. He has repaired all kinds of Mack trucks. He testified that the left side of the Mack engine like that on McCully's truck is called the "cold side" of the engine, that there is only about 5-10 degree difference between the oil temperature and the temperature of the water and the engine block and consequently there would be no smoke or fumes. He further testified that the oil circulation system could pump dry before there would be any drop in oil pressure and before the red light would go on -- that is, not until air began to come through. He said, insofar as any change in the noise of the engine is concerned, the engine could lock up before any change could be heard. He disagreed that the oil pressure would drop as soon as oil began escaping from the hose and he further opined that the oil pressure might not drop for 10 minutes thereafter. As can be seen from the foregoing there is a considerable clash in the testimony of these experts. I am more persuaded by the testimony of Jordan than that of Tomb and Schlessinger because Jordan's testimony seems to make more sense in the light of certain undisputed facts on which much of it was based. Thus, Jordan made the point that the left side is the cold side of the Mack engine and that the heat of that side would not be so high that it would "' Tomb testified that along the oil lines there are high pressure areas and low pressure areas, hence, it is apparent that the pressure cannot be consistent along the whole line even while the line is functioning perfectly. Hc further testified that the hose which developed the hole in this case is a high pressure hose coming after the oil pump. This obviously leads to the question as to the location of the point along the oil line where the oil pressure is measured (and fiom which a wire leads to the oil pressure gauge on the instrument panel to record that pressure). If the pressure measure- ment was made at a point along the oil line right after the high pressure hose which sprung the leak herein, the possibility that pressure loss would quickly show up on the indicator would be apparent. If, however, the pressure cause oil spurting on it to fume or smoke. While the various witnesses pointed out that the Mack truck does not continually utilize all of the 38 quarts of oil needed to fill the system, Jordan mentioned that as many as 18 quarts will be in the pan (sump) while the truck is in operation. This means that there is much reserve oil to draw on to operate the system. It would also follow that as long as the system is capable of drawing oil through the lines there would be enough reserve oil available to maintain oil pressure for a period of time, despite a substantial leak along the line. It further follows that said pressure would not necessarily diminish 10 until air (instead of oil) began to be drawn through the line. The fact that no oil was being pumped through the line just before McCully actually stopped in the safety zone is verified by McCully's testimony that he saw no oil under the truck when it first stopped and the testimony of Respondent's witness, Frederick (who brought the replacement tractor to the scene that morning), that no oil appeared on the road for at least 50 yards behind the point where McCully's truck stopped. In brief, I conclude from this state of the evidence that it has not been established that the oil gauge would indicate any loss of pressure until air came into the system and the motor had already had cause (from oil starvation) to cease. I further conclude that McCully - as soon as he noticed any problem on the gauge in the operation of the truck - got to the side of the road as quickly as he could - bearing in mind that he was coasting, as he testified. In reaching the latter conclusion, I rely not only on the testimony of McCully as to what happened and the supportive testimo- ny of Jordan, but also upon the fact that McCully's testimony as to what he did is consistent with the conduct of an individual desiring to react promptly to preserve his own safety after discovering a mechanical problem in a truck he was driving on an expressway. By the same token, I reject the suggestion in testimony adduced at the hearing by Respondent that McCully could be faulted for not stopping his truck on the expressway itself. I do not believe it would make sense to criticize McCully for pulling the truck over to a safety zone, for the incident occurred at 6:30 on a weekday morning on an expressway near one of the nation's largest cities and, while the road was approximately level without turns for some distance behind where the incident occurred, the danger of accident to property and life in incipient rush hour traffic was more to be avoided than possible damage to Respon- dent's truck. Had there been any such accident (because McCully had stopped in the middle of the highway) Respondent's liability might have been considerably greater. measurement was made at a point prior to the hose - for example, at the pump itself which seems more likely - the loss of pressure would not show up until air started coming through the pump. But since the location of the point of pressure measurement along the oil line is vitally related to Respondent's affirmative defense and Respondent presented no evidence on the matter, I will not draw any conclusion in this regard which is favorable to that defense. Indeed, if Jordan's testimony in respect to the "oil pressure line" refers to the wire going to the oil pressure gauge, it would rather be apparent that the pressure is, in fact, measured at a valve located just after the oil pump. 362 HILLER TRADING CORPORATION I, accordingly, conclude that, insofar as the record shows, McCully was not responsible for the injury to the motor of Respondent's truck which McCully was driving on the morning of August 20, when the incident occurred. But the failure to establish his responsibility is not the only problem with Respondent's defense. The sequence of events after the incident further suggest that the damage to the truck does not supply Respondent's real motivation for discharging McCully. Thus, Frederick R. Hiller first learned of the incident on August 20 but, it may be recalled, the truck was not returned to Respondent's shop until August 23. On the latter date, Hiller admitted, Tomb and Grant Tissue, Respondent's shop foreman, determined that the red light on the oil indicator of the truck was operating. Since Hiller also testified that it had been determined that the oil gauge itself was also operating (but did not say when this latter determination was made) I conclude that this check was performed on the same date because it seems logical that the proper performance of both these items would be the first thing investigated. On the afternoon of August 23, Tomb gave his opinion as to whether or not the engine had to be replaced. As of August 25, Hiller admitted, he suspected that the engine would have to be replaced, hence instructed Tissue and Mroziak to talk to McCully and get his version of what happened. On the afternoon of August 25, McCully was given his suspension letter. Hiller explained that McCully was suspended for 5 days, after consultation with Hiller's counsel, Porterfield, to determine to what extent the engine was damaged (it had not yet been torn down). Hiller said he allowed 5 days because it would take at least 2 days to investigate the motor and the following 2 days were on the weekend. During the balance of the week Respondent's machine shop foreman, Bill Brimacombe, did in fact check the engine and told Hiller that the engine was so scored that it would probably have to be replaced but that he would attempt to grind it down and repair it. (As it turned out there was enough leeway for the engine to be ground down and it did not need to be replaced.) Hiller then testified that on August 29, he called his lawyer, Porterfield, discussed the damages and the causes of the damages, and determined that discharge would be in order. He testified that, at that time, he had not been advised there would be a strike nor that pickets would be "out in view" the following morning. Hiller's account of the suspension and discharge of McCully raises any number of questions. To begin with, as of August 25, Hiller already knew that McCully was the driver of the truck, that the engine was frozen and (the thinking at that time) it would probably have to be replaced, and that the red light and oil pressure gauge were working. There remained only - according to him - the question as to the actual damage to the motor, which would be investigated during the 5-day suspension. " Hiller also testified that Respondent had rehired McCully in 1974 after McCully in 1970 or 1971 had attempted to organize Respondent's drivers into a union. However. McCully's efforts in 1970 or 1971 were unsuccessful. The Union herein, on the other hand, was certified to But the news he got during that 5-day suspension from Brimacombe was better than Hiller's previous information - to wit, that the engine might be able to be repaired. Consequently, from August 25 to 29, when Hiller claims he called Porterfield and decided to discharge McCully, the picture had improved rather than worsened. The only other relevant events that had occurred during that period was that, on August 27, the employees finally decided to go on strike and McCully, on August 28, had tried to get other drivers of Respondent to join that strike. While Hiller claimed that he was not apprised as of August 29 that there was going to be a strike on August 30, he did not say he was not apprised that McCully was attempting to get the other drivers to go on strike nor did he explain why he found it necessary to talk to Porterfield on Sunday night when his original plan for the suspension of 5 days was to make allowance for the intervening weekend. His making of this allowance clearly suggests that he expected nothing would develop in respect to McCully during that weekend. He testified that his decision to discharge McCully was based upon "the facts that if McCully would have been observing the oil pressure gauge, the red warning light, that he would have had adequate time to stop to pull over to the side or even stop on the highway and not have damaged the engine." There is no indication that Hiller consulted any expert (during that period August 23 to 30) on the question of the time McCully had to stop except Tomb or Tissue who, as I found, had checked out the red light and the oil pressure gauge. But this was accomplished on August 23. Further, there is no showing that Hiller learned anything new about the damage to the truck after August 25 and before August 30 except that the damage might be less than originally expected - a factor favorable to retaining McCully. Hence, it is clear and I find that Respondent learned nothing new about the truck damage during the period of McCully's suspension from August 25 through 30, except factors which, if anything, were helpful to McCully. It is also clear that, during this same period, the Union decided to go on strike, McCully participated in that decision and tried to get other drivers to join, and, on August 30, McCully actually went on strike - the only Respondent driver to take such action. I have already concluded that McCully was not responsi- ble for the damage to Respondent's truck motor which occurred in the incident of August 20. In the light of this conclusion, all of the facts previously recited and the logic of events including the timing of McCully's discharge, I attach no weight to the conclusion- ary and self-serving testimony of Hiller that Hiller's decision to discharge McCully had nothing to do with the latter's union activities." I rather conclude that,t 2 as Patterson had warned McCully in May, Respondent from that time on was out to get McCully and, when McCully went on strike, Respondent used the truck incident as a pretext to rid itself of him. I therefore conclude that represent Respondent's truckdnvers in April 1976, about a month before Patterson told McCully that Respondent was out to get McCully. 12 I found Hiller, in any event, to have presented a smug and somewhat argumentative appearance on the stand. 363 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent discharged McCully on August 30, 1976, because of McCully's union activities and that Respondent thereby violated Section 8(aX I) and (3) of the Act.13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations of Respondent 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. V. THE REMEDY The recommended Order will contain certain of the conventional provisions for cases involving unlawful discharge in violation of Section 8(a)(l) and (3) of the Act. This will require Respondent to cease and desist from the unfair labor practice found and to post a notice to that effect which will also state the affirmative action Respon- dent will be required to take to remedy its discharge of Bertram McCully. The affirmative aspect of the remedy will not contain the conventional provisions for reinstate- ment of McCully with backpay because he was on strike at the time he was discharged and, as I understand the General Counsel's closing statement, McCully was still on strike at the time of the hearing.t 4 There is no indication that he has ever made an unconditional offer to return to work. On the other hand, since Respondent has discharged McCully, I shall require it to revoke that action. I shall further require Respondent to notify McCully that he has not been discharged; that he remains Respondent's employee and that Respondent's letter dated, August 30, 1976, informing McCully that he has been discharged, has been rescinded. Finally, it will be recommended, in view of the nature of the unfair labor practice in which Respondent has engaged (see N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941), that Respondent be ordered to cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. 1' The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (C.A. 7, 1969); Cornelius American, Inc., 194 NLRB 909, 915 (1972); The Ma! Department Stores Company, 184 NLRB 878, 881-885 (1970); see Shattuck Denn Mining Corporation (Iron King Branch) v. N.L. R. B., 362 F.2d 466. 470 (C.A. 9, 1966), where the court, in speaking of the evaluation of an employer's motive for discharge, held: Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases. the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive would be brought to book. Nor is the trier of fact - here the Trial Examiner - required to be any more naif than is a judge. If he finds that the stated motive for discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal - an unlawful CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By discharging Bertram McCully because of McCul- ly's union activities, Respondent has violated Section 8(aX)(1) and (3) of the Act. 4. The aforementioned unfair labor practice is an unfair labor practice 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 in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 15 The Respondent, Hiller Trading Corporation, Dravos- burg, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, activities in behalf of, or sympathies toward International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Steel Haulers' Local 800, or any other labor organization, by discriminating in regard to hire or tenure of employ- ment or in any other manner in regard to any term or condition of employment of any of Respondent's employ- ees in order to discourage union membership, activities, or sympathies. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Revoke its discharge of Bertram G. McCully and correct its employment records to reflect that McCully remains its employee. (b) Notify McCully, in writing, that McCully has not been discharged but is still Respondent's employee and that Respondent's letter to him dated August 30, 1976, advising him that he was discharged, is rescinded. (c) Post at its place of business in Dravosburg, Pennsyl- vania, copies of the attached notice marked "Appendix." 16 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by motive - at least where, as in this case, the surrounding facts tend to reinforce that inference. i4 In the absence of any claim and showing to the contrary I conclude that, as of August 30, 1976, the strike was an economic strike. i' 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. 16 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." 364 HILLER TRADING CORPORATION Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 365