Redwing Carriers, Inc.

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Redwing Carriers, Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 991, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Ind Case 15-CA-5465 June 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 29, 1975, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed cross-exceptions and a brief in support thereof and in opposition to General Counsel's exceptions 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, only to the extent consistent herewith, and to adopt his rec- ommended Order, as modified herein A Independent Violations of Section 8(a)(1) of the Act We agree with the Administrative Law Judge that Terminal Manager Russell's remarks to employee LaMont that it had been reported to him that La- Mont was a "navigator" of the Union and that cus- tomers would withdraw business from Respondent and that drivers would be replaced by owner-opera- tors if the Union was voted in constituted a creation of an impression of surveillance and threat of job loss in violation of Section 8(a)(1) of the Act We likewise agree that Russell's solicitations of employees La- Mont and Cook to discourage other employees from supporting the Union were violative of Section 8(a)(1) of the Act We also agree with the Administrative Law Judge that Pensacola Terminal Manager Bass' actions in interrogating employee Edwards as to whether he had heard anything about the Union and the subse- quent statement to Edwards that if the Union were successful Respondent would convert to owner-oper- ators completely were violations of Section 8(a)(1) of the Act B The Discharges Respondent's actions in discharging employees Byron Duane Lowe, Joseph Turner, and Jack Ed- wards were alleged in the complaint to be violative of Section 8(a)(3) of the Act The Administrative Law Judge found a violation with respect to Lowe's dis- charge and failed to find violations with respect to the discharges of Turner and Edwards Contrary to Respondent's exceptions to the former finding, and in agreement with General Counsel's exceptions to the latter, we find all three discharges were predicat- ed on the employees' union activities and were, therefore, in violation of Section 8(a)(3) of the Act The Administrative Law Judge's findings with re- spect to Lowe's discharge are fully supported by the record and we find no basis in Respondent's excep- tions for reversing them 1 Joseph Turner's discharge The Administrative Law Judge, as well as our dis- senting colleague, accepts Respondent's contention that Turner was discharged on August 28, thus limit- ing his pretermination union activity to his signing an authorization card The facts, however, belie this conclusion Boshell's own testimony is explicit that on August 28 he told Turner that he could not make a final determination "one way or the other" on his status until he had checked out the complaint he had received on him from a customer Boshell further tes- tified that all he could do was stop him from running because "I can't terminate until I got all the informa- tion in " There is no evidence of record that Respon- dent did anything to terminate Turner's employment status from that date until Turner's conversation with Russell on October 7 During that period (Au- gust 28-October 7) Turner was unable to ascertain his employment status despite repeated questioning of dispatcher Robert Turner and Boshell Respon- dent admits that Turner was neither given a copy of the complaint letter, nor was the receipt of such a letter even communicated to him, even when, on Oc- tober 7, he was finally told that he had been dis- charged Our dissenting colleague's attempt to portray Turner's October 7 call as an effort by a discharged employee to see if his status had changed totally ig- nores the overwhelming weight of the evidence to the contrary Boshell's testimony was that it was Respondent's practice when a customer complained about a driver to withhold disciplinary action until all the facts could be investigated, while merely sus- pending the driver The Administrative Law Judge also impliedly found such a practice with respect to 224 NLRB No 73 REDWING CARRIERS, INC the incident referred to below concerning Crawford Moreover, Turner's testimony is undenied that on August 28 Boshell only told him that he could not run "till further notice," pending receipt of the com- plaint letter, that Boshell had told him that he did not know what the trouble was, and that "It might not even have been you " These facts do not support the dissent's version of Turner's October 7 call, which in fact had been precipitated by a call from one of Respondent's dispatchers the previous day, first scheduling Turner for another run and then re- voking the request as a mistake Likewise, Re- spondent's various actions, which have been found by the Administrative Law Judge and accept- ed by our dissenting colleague as violative of Section 8(a)(1) and (3), all occurred simultaneously with the incidents relating to Turner's discharge These are the material and decisive facts, which, though left unmentioned by our dissenting colleague, cannot be ignored in drawing conclusions with respect to Respondent's dealings with Turner We therefore find, based on all the evidence, that Joseph Turner was not finally terminated until Octo- ber 7, when he was so informed by Respondent Although not discussed by the Administrative Law Judge, the record contains evidence sufficient to show that Joseph Turner, prior to his discharge on October 7, before he was finally terminated, had en- gaged in union activities which were known to Re- spondent Thus, it is uncontested that Turner signed an authorization card on August 8, 1974,' and at- tended union meetings on September 14 and 29 He also accompanied fellow employee LaMont to Pen- sacola in September, where they picked up union cards that had been signed by employees at that ter- minal Respondent's knowledge of Turner's union activi- ty is established by his testimony that just after Bo- shell told him that he could not run until a customer complaint had been checked he was talking to anoth- er employee named Reed, telling him that he hadjust been laid off until further notice Reed asked if he thought it was because he had been helping organize The conversation took place beside the window be- tween the drivers' room and the dispatch room Su- pervisor Robert Turner interrupted the conversation by opening the window and stating, "You know, if you're successful in bringing the Union in, that Mr Russell is going to bring in lease operators to take your place " Neither Reed nor Robert Turner testi- fied, and Joseph Turner's testimony stands uncon- tested Moreover, the Administrative Law Judge credited dispatcher Harmon's testimony that on Au- I All dates hereafter are in 1974 531 gust 30 he had a conversation with Boshell wherein Boshell said that he knew that Joe Turner, Lowe, LaMont, and James Turner had signed union cards In light of the record, including the various inde- pendent 8(a)(1) violations found above establishing Respondent's union animus, as well as the timing of Turner's discharge only a week before the election, we find that General Counsel has made out a prima facie case that Respondent's discharge of Turner vio- lated Section 8(a)(3) of the Act We now turn to Respondent's claim of justification which the Ad- mimstrative Law Judge accepted Respondent introduced testimony from Remick, the plant manager of one of its customers, that he had discovered one of Respondent's drivers in his office after hours on August 20 He testified that, not recognizing the driver, the next day he had the office personnel check the bills of lading for the previous day and thereby determined that it was Joseph Turn- er On that basis he called Boshell, complained of Turner's actions, and barred him from making fur- ther deliveries Respondent claims that this complaint was the sole reason for Turner's termination pursuant to a long- standing company rule making any driver barred by a customer subject to immediate discharge The Administrative Law Judge noted the fact that Turner's bill of lading and log for August 20 estab- lished that he arrived at Remick's plant at 10 30 a in and left at noon, but nevertheless dismissed the dis- crepancy as a mistake on Remick's part not render- ing the remainder of his testimony suspect In addi- tion, the Administrative Law Judge failed to mention other uncontested evidence which in our opinion un- dermines Respondent's defense to the extent that it must be rejected, especially in light of the evidence supporting the General Counsel's case Thus, Boshell testified that it was normal proce- dure to investigate complaints about drivers, and in- deed this practice is relied on by the Administrative Law Judge to distinguish a previous complaint wherein a driver named Crawford was barred but not discharged inasmuch as the investigation failed to substantiate the charge Nevertheless, it is uncontest- ed and unexplained that Remick's complaint about Turner was not investigated until after his discharge and he was never confronted with either the nature of the charge or the identity of the complainant Had Respondent followed its normal procedure in Turner's case, a simple check of his August 20 bill of lading would have either shown that Remick was mistaken about his obviously tenuous identification of Turner or at least led to a further investigation to determine if discharge was justified On the basis of the entire record, we find 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's defense to be a pretext, the actual mo- tivation behind Turner's discharge being his union activities In reaching our conclusion, we find it un- necessary to discredit Remick's testimony that he complained about Joseph Turner on August 20, inas- much as Respondent's actions in response to that complaint show that it was merely seized upon as a convenient way to get rid of a known union advo- cate We, therefore, find Respondent's action in dis- charging Joseph Turner on October 7, 1974, to be in violation of Section 8(a)(3) of the Act 2 Jack Edwards' discharge Edwards was terminated on September 23, the fi- nal day on which the consent election agreement was signed, purportedly because he failed fully to disclose his driving record in his application for employment The Administrative Law Judge found that Edwards had engaged in substantial organizing efforts prior to discharge and that Terminal Manager Bass, the man who effected the discharge, had prior knowledge of Edwards' union activities However, the Administra- tive Law Judge failed to find Edwards' discharge vio- lative of the Act, inasmuch as he found there is no evidence that Respondent had knowledge of Ed- wards' union advocacy when Respondent's safety di- rector, Mastrona, first discovered the discrepancy be- tween Edwards' application and the transcript of his driving record from the Motor Vehicles Department and ordered his discharge The Administrative Law Judge's findings as to Ed- wards would be more persuasive had Respondent discharged Edwards at the time Mastrona first or- dered the action taken However, as Mastrona him- self testified, in the usual situation involving a discre- pancy between a driver's application and his record, the ultimate decision as to whether an explanation would be sought and accepted was left up to the ter- minal manager Here Kelly, the terminal manager at the time, decided to allow Edwards to remain with Respondent, despite his incomplete application, in light of his ability as a driver We note that the Ad- ministrative Law Judge found that the evidence es- tablishes that other drivers with worse driving rec- ords who also did not completely disclose their past records in their applications were allowed to remain in Respondent's employ When asked, neither Mas- trona nor Bass could provide convincing testimony for the obvious inconsistency in the treatment of Ed- wards, and the Administrative Law Judge specifical- ly discredits their rationalizations In view of the Ad- ministrative Law Judge's findings concerning the Respondent's past practice, Edwards' lack of full dis- closure could not have provided a legitimate business reason for his discharge, particularly since Kelly, with full knowledge of the circumstances, permitted him to remain employed Where an employee is dis- charged in the context of established union animus as evidenced by our findings of violations of Section 8(a)(1) and (3) of the Act, at a time when his union activities are known, and the reason advanced for such action has been discredited, we conclude, con- trary to the Administrative Law Judge and our dis- senting colleague, that the discharge was illegally motivated We find that the record shows that the only other basis for distinguishing Edwards from drivers who were allowed to remain in Respondent's employ was his known union advocacy and the imminence of the election Accordingly, Edwards' discharge was viola- tive of Section 8(a)(3) of the Act 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, as modified below, and hereby orders that the Respondent, Red- wing Carriers, Inc, Creola, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied 1 Substitute the following for the Administrative Law Judge's paragraph 2(a) "(a) Offer Byron Lowe, Joseph Turner, and Jack Edwards immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges and make them whole for any loss of pay they may have suf- fered in the manner set forth in the section of the Decision entitled `The Remedy ' ' 2 Substitute the attached notice for that of the Administrative Law Judge CHAIRMAN MURPHY, concurring in part and dissent- ing in part I agree with my colleagues that Respondent violat- ed Section 8(a)(1) of the Act as alleged in the com- plaint, and that employee Byron Duane Lowe was unlawfully discharged However, I cannot agree with their findings, contrary to the Administrative Law Judge's, that the discharges of employees Joseph Turner and Jack Edwards were also discriminatorily motivated With respect to Turner, in order to sustain their finding of unlawful discharge, my colleagues are forced to engage in a fiction, namely, "that he was not finally terminated until October 7, when he was REDWING CARRIERS, INC 533 so informed by Respondent" For if Turner's em- ployment with the latter had been terminated on Au- gust 28 when he reported for work, as I believe the facts establish, there is no basis for finding his dis- charge unlawful, since at the time of that event Re- spondent had not yet learned of Turner's union ac- tivity (then limited, as it were, to his signing an authorization card 20 days earlier) Only after Turner was informed "he could not run," did the incidents occur on which my colleagues rely to establish such knowledge Hence, their position is clearly without foundation if Turner's discharge occurred on the ear- lier of the two dates In the discharge interview on August 28, Boshell, the dispatcher, made it plain to Turner that he could not drive again for Respondent because of two cus- tomer complaints lodged against him As Turner tes- tified, "Mr Boshell told me he had orders from Tam- pa not to work me anymore " While Boshell's remarks that he was awaiting a letter from one of the customers 2 confirming the latter's complaint may impart some ambiguity to the fmality of the dis- charge, as conveyed to Turner, the clear tenor of such remarks was that Turner was terminated as of then unless the letter did not confirm the gravity of the customer's complaint as orally communicated But notwithstanding this vague hint at a possible re- consideration of the discharge action taken against Turner, which depended wholly on the customer's written complaint setting forth something different than orally recounted, it seems clear that Turner, as well as Boshell, understood, as Turner's above testi- mony indicates, that he was no longer in the employ of the Respondent unless he heard otherwise 3 In other words, the impact of Boshell's discharge state- ments was, to put such in the vernacular of our times, "don't call us, we'll call you"-if ever Respondent subsequently received the letter con- firming the complaint, and insofar as it was con- cerned, the matter of Turner's employment with it stayed closed effective August 28, the day it refused to let him further drive for it Thus, when over a month later Turner called to ascertain if since that 2 Halby Division, Argus Chemical Corporation According to the testimo- ny of John Russell, the manager at the Creola terminal, a complaint against Turner from Contact Battery `was ignored ' 3 Boshell s testimony that he told Turner that he could not make any determination ` one way or the other" and "can't terminate until [he] got all the information in" is not inconsistent with this conclusion , as the majorit) implies To the contrary , such remarks are indicative only of the fact that as I have stated here, if the customer complaint was confirmed in writing the discharge would stand The crucial fact ignored by the majority is that whatever else Boshell said to Turner on August 28 he clearly stated and Turner just as clearly understood, that the latter could not run for Respon dent because of the customer complaint, and Boshell's testimony that he "discharged" Turner upon receipt of the letter about a week later without further ado only serves to emphasize the pro forma nature which this confir- matory step bore to the earlier discharge action date there might have been a change in his status as an ex-employee, the factual response simply was that there had not been,4 and it was in that context that this information, on which my colleagues erroneous- ly place their reliance, was received by Turner In view of the foregoing, and for the reasons set forth by the Administrative Law Judge as well, I can- not find a violation of the Act with respect to Turner's situation, and I would dismiss the complaint in that regard As for Edwards, the reasons for reversing the Ad- ministrative Law Judge are even less compelling The majority does not quarrel with the Administrative Law Judge's finding that there was no evidence to establish that Respondent had knowledge of Ed- wards' union sympathies when Mastrona, Re- spondent's safety director, on August 8, ordered his discharge upon discovering, during the course of a routine check on Edwards' safety record,' a discrep- ancy between the employee's driving application and the transcript of his driving record on file at the Motor Vehicles Department Instead, they seize upon the fact that the order to discharge Edwards was not then carried out by Kelly, the terminal manager, who subsequently was replaced by Bass 6 However, they ignore the following facts That Mastrona did not work out of the Pensacola terminal where Edwards was employed but out of the headquarters office in Tampa, that Mastrona was unaware of Kelly's fail- ure to carry out his order until about September 22 when he discovered from paperwork crossing his desk that Edwards was still employed, and that forthwith Mastrona called Bass and instructed him to carry out the order which Kelly had disobeyed In view of the above facts, I agree with the Admin- istrative Law Judge, for similar reasons, that the 4 The majority s finding that between August 28 and October 7 Turner was unable to ascertain his employment status despite repeated questioning of dispatcher Robert Turner and Boshell overstates the facts, to say the least and suggests a conclusion which is unwarranted On August 30 Jo seph Turner testified he called Robert Turner merely to find out if the letter had been received and was told that it had not been That was the extent of Turner s questioning on that occasion He testified that on September 3 he visited the terminal and spoke to Boshell who in answer to a similar question replied that the letter had not yet arrived in the mail That was the gist of that inquiry into his ` employment status ' The two incidents together constitute the entire efforts of Turner ` to ascertain his employment status until October 7 when he called to check out two calls he had received the day before from "Don' apparently a dispatcher who first had called to schedule him for a run and next to cancel it Turner on October 7 was told by Robert Turner that Don had ` called the wrong man He should have called James Turner (another driver on the Respondent s payroll) There- after Turner spoke to Russell who confirmed the fact that he had been discharged on August 28 because of a customer complaint 5 It was standard operating procedure to check out all new hires as Ed- wards was in this manner 6 The majority notes that in the usual situation the terminal manager is left with the ultimate decision to terminate after seeking an explanation for a driver s failure to submit an accurate application Whatever the `usual situation may be it is clear that Mastrona did not, in Edwards' case leave the decision to Kelly As Mastrona s uncontradicted testimony establishes his order to discharge Edwards was unequivocal and final 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel did not prove his case concerning Edwards Clearly, Mastrona, at the time he instruct- ed that Kelly dismiss Edwards, had no reason to ex- pect that his instruction would not be followed Just as clearly, when several weeks later, on September 22, he found out that Kelly had disregarded it, he took immediate action to have the discharge order implemented by Bass, Kelly's successor as the terminal's manager There is no evidence showing that Mastrona had found out before then that Ed- wards had not been discharged, as originally ordered, or that Mastrona subsequently learned of that other than as he testified In such circumstances, the lapse in time between the decision and initial order to ter- minate Edwards, both made on August 8, and the date the discharge finally was effected, September 23, is wholly explainable without the need to infer an unlawful motive as arising in the interim Certainly, Mastrona, whose authority was flouted and ignored by a subordinate without his immediate knowledge, had every right to insist that such author- ity be fully observed when the insubordination and its resultant inaction came to his attention Nor does the fact that in the intervening time Respondent gained the knowledge it lacked of Edwards' union adherence when first it ordered his dismissal alter that conclusion It is axiomatic that an employee's participation in union activities will not insulate him from discharge I Without affirmative evidence that is lacking here to show that Mastrona's reordering of Edwards' discharge was at least in part motivated by such activities, I cannot join my colleagues in their conclusion that he was discharged in violation of the Act I therefore dissent from their failure to dismiss the portions of the complaint on which they make such a finding WE WILL NOT threaten employees with loss of jobs or other reprisals for engaging in union ac- tivities WE WILL NOT create the impression we are spying on the union activities of our employees WE WILL NOT ask employees to speak to other employees against supporting a labor organiza- tion WE WILL NOT discharge or otherwise discrimi- nate against our employees because of their membership in, or activities on behalf of, Team- sters , Chauffeurs, Warehousemen and Helpers Local Union 991, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind, 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 to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organi- zation, to bargain collectively through represen- tatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities WE WILL offer Byron Lowe, Joseph Turner, and Jack Edwards immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings they may have suffered as a result of their discriminatory discharges with interest at 6 percent per annum 7 Tennessee Plastics, Inc, 203 NLRB 1 (1973), and Star News Newspapers Inc, 138 NLRB 1003, 1004 (1970) My colleagues look to the inconsistency of Respondent's treatment of Edwards vis-a vis other drivers who did not fully disclose their past driving records in their applications as proof that the discharge was discriminatorily motivated But that ignores the fact that Mastrona's order to discharge Edwards was as inconsistent with the treat- ment of those drivers when it was first given without knowledge of Edwards union activates as when it subsequently was reiterated with such knowledge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate our em- ployees regarding their union membership, ac- tivities, or sympathies REDWING CARRIERS, INC DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge Upon a charge and an amended charged filed by the above-named Union on October 7 and November 15, 1974, respectively,' a complaint, dated December 3, 1974, was issued against Redwing Carriers, Inc 2 The complaint, as amended at the hearing, alleged that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Joseph A Turner, Byron Duane Lowe, and Jack N Edwards The complaint further alleged independent unlawful conduct by the Respondent in violation of Section 8(a)(1) of the Act The Respondent Unless otherwise indicated, all dates hereinafter refer to 1974 2 The formal papers were amended at the hearing to show the correct name of the Respondent as it appears in the caption REDWING CARRIERS, INC 535 denied it has engaged in the alleged unfair labor practices Hearing was held before me on January 22-23 and April 1-2, 1975 Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the fol- lowing FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Based upon the pleadings, I find that the Respondent, a Florida corporation, is engaged in the furnishing of freight transportation services from its terminals in Creola, Ala- bama, and Pensacola, Florida During the 12-month period preceding the issuance of the complaint, the Respondent, from each of these two facilities, derived gross revenues in excess of $50,000 from its business of furnishing freight services directly to points located outside the States of Ala- bama and Florida, respectively Based on the foregoing, and as admitted in Respondent's answer, I find that the Respondent is engaged in commerce and in operations af- fecting commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 991, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction The Union has had a contractual relationship with the Respondent covering the employees at the Tampa and Taft, Florida, terminals The Union commenced an organi- zational campaign among the employees at the Creola, Al- abama,3 and Pensacola, Florida, terminals in July On Au- gust 30, the Union filed a representation petition seeking an election in a unit composed of the employees at both terminals Based upon a stipulation for consent election agreement executed by the Company and the Union on September 20 and 23, respectively, elections were then con- ducted on October 10 in two units (1) All truckdrivers and shop employees at the Creola terminal, excluding all office clerical employees, lease drivers, watchmen and/or guards and supervisors as defined in the Act (2) All truckdrivers at the Pensacola terminal, excluding office clerical employ- ees, lease drivers, watchmen and/or guards and supervisors as defined in the Act A majority of the valid votes cast were in favor of the Union in each election and on October 21 the Union was certified as the collective-bargaining rep- resentative in each of the two units The dispatchers were excluded from the units The Respondent is headquartered in Tampa, Florida, with terminals located in other cities in Florida and Ala- bama in addition to the two terminals involved herein Of the approximately 67 employees at both terminals, about 50 are drivers The Creola operation is a regular trucking operation with the dispatchers sending the drivers on over- the-road hauls The drivers receive as compensation a per- centage of the gross revenue of the load At the Pensacola operation, the drivers work in two-man teams, operating the same tractor-trailer rig on different shifts The drivers make three runs to and from the terminal and the sulphur fields, receiving a flat amount per run John Russell is the terminal manager of the Creola terminal, as well as opera- tions manager in charge of all Alabama and the Pensacola terminals Bill Boshell is the assistant terminal manager and chief dispatcher at Creola and his duties extend to the Pensacola operation At the Pensacola terminal Mr Kelly was the terminal manager until September 5 when he was succeeded by George Bass The maintenance operations for both terminals, in the main, are located at Creola under the supervision of Don Logan All the individuals above named are admitted supervisors The General Counsel contends, and the Respondent de- nies, the dispatchers at the Creola terminal are supervisors within the meaning of the Act The Creola terminal is in operation around the clock with a dispatcher on duty on each of the three shifts During the relevant period herein, Robert Turner was the dispatcher on the day shift and Marion Eubanks and Junius Harmon were the dispatchers on the other two shifts Boshell and Russell are normally at the Creola terminal only during the daytime hours and leave by 5 p in Thus, for more than half of the day's opera- tion, no admitted supervisor was present at the terminal Turner prepares the dispatch schedule for the following day and assigns drivers for specific runs When changes are to be made in assignments during one of the other shifts, the dispatcher on duty effects the change The dispatchers are salaried whereas the drivers receive a percentage of the gross revenue of the load There are approximately 30 driv- ers on the board at the terminal Dispatchers have the au- thority to send a driver home if he appears unfit for duty or refuses to take a specific load There is a conflict of testi- mony as to the authority of the dispatcher to discharge drivers, but I find it unnecessary to resolve this conflict It appears, based on the foregoing, the dispatchers exercise significant authority over the drivers and exercise mean- ingful independent judgment in the assignment of work to the drivers I find and conclude the dispatchers are supervi- sors within the meaning of Section 2(11) of the Act d B Independent Acts of Interference, Restraint, and Coercion I James LaMont, a driver at the Creola terminal, was injured in a job-related accident and was at home conva- lescing when he received a call on September 17 from dis- patcher Robert Turner to report to the terminal to see Rus- 3 Referred to sometimes in the record as the Mobile terminal 4 Groendyke Transport, Inc 171 NLRB 997 (1968) 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sells LaMont credibly testified Russell told him someone no longer connected with the Company told them LaMont was the "navigator" of the union campaign and was getting people signed up Russell said he could not understand why LaMont wanted a union and pointed out LaMont was the second highest paid man at the terminal despite not being high in seniority Russell said he knew if the Union became the bargaining representative the Respondent would lose business because their customers would then divert business to other carriers Russell stated the Respon- dent would replace the drivers with owner-operators Rus- sell said LaMont was respected by the other drivers and asked him to talk to the other drivers about the Union- "that he would appreciate anything I do to help defeat the union so it looked better for him if we defeated the union " Russell, in his testimony , admitted calling LaMont to the terminal for the purpose of discussing the union situation He admitted discussing LaMont's high earnings when compared to his seniority standing He indicated that with a union drivers would probably be dispatched by seniority, and his earnings, as well as those of others with low senior- ity, would be affected Russell admitted discussing loss of business and admitted this information was not imparted to him by customers He was not asked about bringing in owner-operators or about soliciting LaMont to talk to other employees I find Russell's remarks to LaMont that it had been re- ported LaMont was a "navigator" of the union campaign was of such character as to create an impression of surveil- lance in violation of Section 8(a)(1) of the Act 6 I find that Respondent threatened job loss in violation of the Act by Russell's statements that its customers would withdraw business from the Respondent and the drivers would be replaced by owner-operators if the Union was successful 7 Russell's solicitation of LaMont to discourage other em- ployees from supporting the Union was undertaken in the context of other unlawful acts and I find such conduct likewise violative of the Act 2 Willie Crook, a mechanic's helper still employed by the Respondent testified he was called to Russell's office together with another helper, Mickey Moore, on October 7 Russell first told him a story about "a dog and a bone " Russell then reviewed the raises Crook had received to date According to Crook, Russell told him "there wouldn't be any more raises period besides what the union gives you " Crook testified Russell also offered him $50 to solicit employees not to vote for the Union He testified the re- ceipt of the $50 was contingent upon the Umon losing the election The Union won, Crook did not get the $50 Rus- sell testified he did discuss the union campaign with Crook and Moore in his office and related the "dog and bone" story He testified he reviewed the history of the increases Crook had received during his employment He told Crook if the Union won the Respondent could not be as flexible as in the past with raises and it would be unable to give 5 LaMont returned to work in mid-December and was still employed at the time of the hearing 6 Pfasticord Company, 168 NLRB 135 (1968) 7 Blaser Tool & Mold Company, 196 NLRB 374 (1972) 8 Moore was no longer employed by the Respondent at the time of the hearing and was not called as a witness them any increases other than that which was negotiated with the Union Although he denied offering Crook any money in connection with the union campaign, he was not asked whether he solicited Crook to discourage other em- ployees from supporting the Union Crook did not impress me as a witness who related the substance of his meeting with Russell with certitude and conviction Rather, I believe Russell's account of his state- ments concerning future raises was the more reliable Nor do I believe Russell offered Crook money to solicit other employees On the other hand, in absence of a denial by Russell and since a similar appeal was made by Russell to LaMont, I find Russell solicited Crook to discourage other employees from supporting the Umon In light of my earli- er finding concerning unlawful conduct by Russell, I find his solicitation of Crook violative of the Act 3 The General Counsel has alleged the Respondent in- stituted a wage increase at the Pensacola terminal in an attempt to persuade the employees to reject the Union The Pensacola drivers are paid a fixed rate for each run At a meeting of Pensacola employees with management repre- sentatives on September 7, the primary purpose being to introduce Bass as the new terminal manager, an open dis- cussion ensued relating to working conditions, safety fea- tures, etc The Union was not mentioned at all9 Com- plaints were registered by employees about the amounts being received on runs, and employees commented they were entitled to higher compensation for certain runs Rus- sell explained the Company would first have to receive a rate increase from its customers so that it could pass on the added revenue to the employees Russell said he would try to get the rate increased The Respondent had, in the meantime, applied for an increase , and unbeknownst to Russell at the time of the meeting, the application had been approved, and the higher rate to the customer had been effected On September 17, the formal announcement was made of the increased driver rates for certain designated runs effective as of September 1 Under the circumstances described above, I find the evidence insufficient to estab- lish that the granting of the increase was motivated to in- terfere with the organizational campaign I shall recom- mend dismissal of this allegation 4 Edwards testified that several days before his dis- charge,10 en route back to the Pensacola terminal with Bass, they stopped at a restaurant Bass asked him if he had heard anything about the Umon Edwards replied he heard the petition had been signed and an election was to be held 11 Bass said if the Union was successful the Re- spondent would convert to owner-operators completely Bass denied any conversation with Edwards about the Union after he became terminal manager I credit Edwards and find, as alleged by the General Counsel, the Respon- dent here, too, threatened job loss if the Union became the bargaining representative of the employees, and engaged in unlawful interrogation in violation of Section 8(a)(1) of the Act s The Union s petition had been filed on August 30 10 He was discharged on September 23 11 The stipulation for consent election agreement was signed by the Re- spondent on September 20 REDWING CARRIERS, INC C The Discharges 1 Byron Duane Lowe Lowe had previously worked at the Creola terminal from February to September 1973 when he was terminated He was reemployed by Boshell as a driver at Creola in January 1974 He was discharged on August 28 The General Coun- sel contends Lowe was discharged because of his union activities whereas the Respondent contends he was dis- charged for tampering with the governor on one of the Respondent's tractors All tractors are equipped with governors to regulate the revolutions per minute which the engine turns The gover- nor is set by shop personnel at a maximum of 2,300 rpms and a seal is affixed to prevent tampering with the gover- nor If the governor is set at a higher rpm, the tractor will not only go faster but the engine will eventually blow On a number of occasions seals were reported by the drivers to be missing and the drivers were permitted to take out the tractors after an inspection to insure the governors were properly set Over a period of time, the Respondent ex- pressed concern because governors were set too high, but it had been unable to discover the drivers responsible A company rule (rule 62) states in pertinent part, "any driver who tampers with the, governor on a truck he drives is subject to dismissal " In July 1973 Russell issued a notice to all drivers stating that unknown drivers had been tam- pering with the governors and, if the identity of such driv- ers became known, immediate termination would result In a June 1974 memorandum issued by Russell to his terminal managers, Russell reminded them of the problem of drivers tampering with governors and discussed preventive mea- sures by spot checks and pretrip inspections Lowe was not assigned to any particular tractor As he testified, during a 1-month period he could drive as many as 15 different tractors On August 15 he went on a run in tractor #541 and returned to the terminal about 7 p in that evening Lowe testified that when he returned to the terminal from his run he reported to one of the mechanics the rpms were too high He was not certain who he reported this to, but thought it was Willie Crook, a mechanic's helper He testi- fied the mechanic checked the rpms in his presence but did not say anything The mechanic did not look under the hood to examine the seal Lowe testified that before he had gone out on his run he made a pretrip inspection and noted the seal was affixed He however, did not look to examine the seal when he returned All he reported to the mechanic was that the rpms were too high That was the last time Lowe drove #541 He thereafter drove other tractors On August 27 he called the terminal and asked Robert Turner if he was set up for a run Turner said he had no assign- ments for him but Lowe should come in the next morning to see Boshell The next morning Lowe came to the termi- nal Boshell was not there and he spoke to Robert Turner who told him he had orders to terminate Lowe for breaking a seal Lowe then spoke to Russell who told him he could come back the following day for his termination papers That same evening, Lowe telephoned Boshell at his home and asked why he had been fired Boshell replied it was for breaking the seal on #541 Lowe pointed out he had last 537 driven that tractor on August 15 and asked why it took so long to discharge him Boshell explained that he had been busy in Pensacola and had not had time to get around to it 12 Lowe testified he had never broken a seal or tampered with a governor He testified that once before, about June, he had reported the rpms were too high on another tractor He had reported broken seals a number of times Johnny Underwood, a driver still employed by the Re- spondent, was called as a witness by the Respondent He is the driver who regularly was assigned to tractor #541 On August 16 he inspected #541 before going out on a run He noticed the seal was missing and then raced the engine and discovered it was turning up to about 2,600 rpms He reported this to mechanic Phillip Nabb Underwood had last driven #541 on August 14 and did not work on August 15 Phillip Nabb, a mechanic still employed by Respon- dent, testified that when Underwood reported the defects to him he reported this to Russell The shop foreman, Lo- gan, was on vacation at this time Nabb said when he in- spected the tractor the governor was set at over 2,500 rpms and the seal had been broken That same day he replaced the seal and reset the governor Nabb testified that on some other occasion Lowe had reported the rpms were too high on another tractor However, on this particu- lar occasion, Lowe did not report the irregularity At the time Underwood reported the defect to him on August 16, Nabb was unaware Lowe had been the previous driver on the tractor Russell testified that Nabb reported the defects on tractor #541 He then checked and discovered Lowe had last driven the vehicle He alerted Boshell who was then in Pensacola of what had transpired They agreed ac- tion would be taken against Lowe when Boshell returned to Creola Boshell testified that when he returned to Creola he discharged Lowe Willie Crook, a mechanic's helper still employed by the Respondent, testified as a witness for the General Counsel He testified Lowe returned the tractor to the shop and re- ported to him the rpms were too high Crook said he then took the keys from the tractor and placed them on the foreman's desk According to Crook, it was not until the following Monday that Nabb and he reset the governor I do not credit his testimony His timecard introduced in evidence showed that on August 15 Crook had punched in at 6 42 a in and punched out at 2 41 p m It is undisputed Lowe did not return to the terminal until 7p m I find it was Underwood who reported the irregularities on #541 to Nabb on August 16 I do not credit Lowe's testimony that he reported the irregularity on the governor when he returned to the terminal on August 15 Prior to the discharge of Lowe, no driver had been discharged for breaking a seal or turning up the governor But seals had been broken in the past and governors had been turned up I must profess some skepticism as to Respondent's expla- nation for not taking any action against drivers in the past is The Respondent had experienced equipment and personnel problems at the Pensacola terminal and from the last week in July to about September 5 when a new terminal manager Bass was appointed there, Boshell spent most of his time at the Pensacola terminal He returned to Creola full time on September 5 but thereafter was off work from September I I to January 1975 because of illness 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shop Foreman Logan explained it as follows JUDGE NESS If the employee reported that the gov- ernor was turned up and the employee that drove be- fore him did not so report, would you blame the per- son before him even if he denied it9 THE WITNESS I think I would But I couldn't come up and fire him for it because I couldn't prove that unless I had known it had been checked out when he went out and when he came back in JUDGE NESS What was so convincing about Lowe as compared to other cases? THE WITNESS Well, the truck had been driven most- ly by one man and it was checked because the driv- er-one man had been driving-Underwood is a fast driver I mean, he just normally runs-he holds the maximum speed that he can get away with And I had kept an eye on his truck and the seal It had been on there approximately a year I knew he had not messed with it And there was just one day there that Lowe had drove his truck I had previous discussions with Mr Lowe about previous trucks he had driven being turned up And he denied it, which he told me he come in and told me before I believe it was 553 that the truck was turned up But he had been driving it a few days and he didn't report it before he went out but I couldn't prove the seal was on it before he went out with it Boshell also testified the Respondent couldn't "prove" it in the past On the other hand, Russell's memorandum issued in 1973 and another again in June 1974 clearly indicated a confession that the Respondent had been unable to discov- er the perpetrators Lowe had signed a union card on July 27 and had solic- ited several employees in early August LaMont and he had delivered union cards to the Pensacola terminal for drivers to sign in early August 13 On the morning of August 26, Lowe was at the fuel pump in the company yard to gas up the tractor prior to going out on a run Boshell at the time was in the dispatcher's office The intercom system allows a two-way conversation between the person near the pump and the individual in the dispatcher's office The intercom is turned on by the dispatcher in the office After the intercom was turned on, Lowe gave his mileage reading on the tractor and began fueling the tractor Lowe engaged in a conversation with a fellow employee, Mims, about the Union while they were standing about 15-20 feet from the pump Lowe asked Mims to sign a card At about the time they had finished talking and the tractor had been fueled, Boshell came up to them and, according to Lowe, in a rather abrupt way, told Mims he wanted to see him in the office Immediately after, Lowe heard static on the inter- com and realized it had been open while Mims and he had been talking about the Union Mims is still employed by the Respondent but was not called as a witness by either party Both dispatchers Eubanks and Harmon credibly tes- tified that when the intercom was open the dispatcher in the office could hear employees at or near the pump con- versing I do not credit Boshell's testimony he did not over- 13 Corroborated by LaMont hear this conversation between Lowe and Mims I find that Boshell overheard Lowe speaking favorably on behalf of the Union and soliciting Mims to sign a union card On August 30, in a conversation between Boshell and dis- patcher Harmon about the Union, a conversation initiated by Harmon, Boshell said he knew Lowe, together with Joe Turner, also named as a discriminatee in the complaint, LaMont, and a James Turner had signed union cards I credit Harmon's testimony Boshell admitted discussing the Union with Harmon on this occasion He did not deny identifying the individuals as favorable to the Union His entire testimony as to this conversation follows Q Mr Boshell, have you ever had a discusssion with Jake Harmon concerning union leaders9 A I may have I probably have, yes sir Q When was that, sir9 A It was along about the first of September, the middle of September, something like that Q Was that the conversation to which Mr Harmon testified to yesterday? A That I knew there was talk of a union9 Yes, sir Q No Yes, sir Did he raise the subject or did you? A I believe he asked me about it, if I had heard anything on it Q Mr Boshell, did you tell him or indicate to him in any way that the company was going to fire any- body? A No, sir Q Are you positive of that9 A Yes, sir But yet at another point in his testimony, he denied any knowledge of the union activities of the alleged discrimina- tees Accordingly, I find that by August 26 the Respondent was aware of Lowe's support for the Union I am not persuaded the Respondent discharged Lowe because it believed he had tampered with the governor Rather, I believe the Respondent was seizing upon a pre- text to mask its real reason The incident concerning the seal and the governor was similar to many other instances when drivers reported such irregularities But yet Lowe was the only one who was ever discharged, allegedly, because he turned up the governor In the past when a turned up governor was reported by a driver the Respondent would then question the driver who had last driven the tractor The Respondent took no disciplinary action against any employee who denied breaking a seal or turning up the governor-because the Respondent couldn't "prove" it But here Lowe was not even given an opportunity to deny such conduct Nothing was said to him about the seal or the governor from August 16 to August 28 In the mean- time he continued to drive for the Respondent I am per- suaded the decision to discharge Lowe was not made when the governor incident was first reported on August 16 Rather I believe the decision was made after the Respon- dent became aware of Lowe's support of the Union It was on August 27 that Robert Turner told Lowe to come in to see Boshell I find unworthy of belief the explanations of Russell and Boshell that the delay in effecting the dis- charge of Lowe was because Russell left it to Boshell and Boshell was preoccupied at Pensacola Boshell did not REDWING CARRIERS, INC 539 spend all his time at Pensacola during this period He also was at Creola at various times during this same period It seems implausible that under these circumstances the Re- spondent would have waited 2 weeks to discharge Lowe I also find it implausible to believe that Russell, himself the Creola terminal manager, and on the scene, would not have discharged Lowe himself without waiting for Boshell to physically appear on the scene As it was, Robert Turner first told Lowe he was discharged, not Boshell According- ly, I find that the Respondent discharged Lowe on August 28 because of his support for the Union in violation of Section 8(a)(1) and (3) of the Act driver, Crawford Harmon reported this to Boshell but could not identify the individual who had called Crawford was not discharged But I find this incident dissimilar Bo- shell credibly testified that when Harmon reported this in- cident he called the customer and attempted to find out who had registered the complaint, but nobody there knew anything about it He therefore felt there was insufficient basis to take disciplinary action against Crawford I am satisfied that the Respondent discharged Turner because of a customer complaint not, as contended by the General Counsel, because of union activities Accordingly, I shall recommend this allegation of the complaint be dis- missed 2 Joseph Turner Turner commenced his employment as a driver at the Creola terminal in May 1974 Other than signing a union card on August 8 given to him by Lowe, he did not engage in any union activity prior to his termination On August 20 he made a run to Halby Division of Argus Chemical Corp in LeMoyne, Alabama The following day, Colby Remick, Halby's plant manager, called Boshell and said he did not want Turner on his premises again Boshell re- quested that Remick write him a letter to this effect Rem- ick confirmed this in a letter dated August 22, directed to Boshell at Creola Remick, called as a witness for the Re- spondent, testified he found Turner in his office after office hours and Turner offered no explanation for his presence there but just walked out 14 The next morning Remick checked the bill of lading and identified Turner as the driv- er He then called Boshell and explained why he did not want Turner on his premises When Turner reported to the terminal on the morning on August 28, Boshell told him he was waiting for a letter from a customer complaining about Turner and that until he saw the letter, Turner could not go out on a run 15 Turner questioned Robert Turner and Bo- shell about his status during the course of the next several days but was told the letter had not yet been received 16 Finally, on October 7, Turner called Russell who, after ex- amining the file, told Turner he had been discharged effec- tive August 28 because of customer complaints I Rule 17 of the Company's rules provides that employees are subject to immediate dismissal if they are barred by a customer from making deliveries at the customer's place of business The uncontroverted evidence disclosed the Re- spondent had uniformly terminated employees where a customer complained about an employee and asked that the driver not be sent again to the customer's premises The General Counsel, in his brief, argues this rule was not uni- formly applied He refers to the testimony of dispatcher Harmon, who testified a customer had complained about a 14 The record shows that Turner arrived at Halby at 10 30 a in and left at noon Turner denied being in Remick's office Remick was obviously mis- taken as to the time of day Turner was there I credit Remick in all other respects Interestingly, the record disclosed Remick had complained about another driver in May 1974 The employee was discharged (Resp Exhs 9 and 10) 15 Boshell had stopped at the Creola terminal to pick up equipment for Pensacola 16 Boshell said the letter came about a week later 17 It will be recalled Boshell became hospitalized back on September I i 3 Jack Edwards Edwards commenced his employment on June 6, 1974, as a driver at the Pensacola terminal He had been a Team- sters member about 6 years and signed a union card in about mid-August He gave cards to two other employees and spoke favorably about the Union to Bass both before and after Bass became terminal manager on September 5 Edwards was discharged on September 23 When a driver is initially hired he is required to fill out, together with his employment application, a report listing all accidents and traffic convictions within the preceding 3 years After the driver is hired, the Respondent's safety department in Tampa then verifies the employee's driving record by obtaining a transcript of his record from the Florida Department of Highway Safety and Motor Vehi- cles Safety Director Mastrona received Edwards' tran- script from the state agency on August 8 Several accidents and convictions listed on the transcript were not shown on Edwards' employment application On this same date he called the Creola terminal and told Eubanks he had Ed- wards' driving record and Edwards was to be terminated 18 Eubanks relayed the message to Kelly who was then termi- nal manager at Pensacola Kelly told Edwards of the direc- tive to discharge him but said he was a good driver and everything would work out Kelly did not discharge Ed- wards 19 According to Edwards, sometime in mid-August he picked up a copy of the transcript at the Creola terminal and told Boshell one of the accidents listed in the transcript did not involve him and was incorrectly listed Boshell told him not to worry about it Boshell returned to the Creola terminal full time on September 5 but then was hospital- ized September 11 On or about September 22, Mastrona called Bass and wanted to know why Edwards had not been discharged Mastrona testified he had noticed from some paperwork crossing his desk that Edwards was still employed at Pensacola Bass, who was then terminal man- ager less than 3 weeks, said he would discharge Edwards On September 23, Bass told Edwards he was discharged because of his driving record and gave him a copy of the transcript received from the State Edwards disputed the 18 Although Mastrona was generally unconvincing and self-contradictory in other areas of his testimony, the above finding is made based upon Eu- banks corroborating testimony and the transcript received from the State with Mastrona s notations appearing thereon (G C Exh 3) 19 Based upon Edwards' testimony Kelly, no longer employed by the Respondent, was not called as a witness 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accuracy of the report Shortly afterward, Bass checked with the highway patrol and noted the information regard- ing Edwards' driving record was identical to that on the transcript received by the Respondent earlier Sometime after the discharge, Edwards himself cleared up his record with the Florida Department of Highway Safety and Mo- tor Vehicles and obtained a copy This copy did not list the accident shown on the earlier transcript received by the Respondent and which Edwards claimed was not his But Edwards never notified the Respondent of this correction Documentary evidence introduced in the record dis- closed other drivers had been retained by the Respondent despite their having records at least as bad as that of Ed- wards and where they failed to list accidents and convic- tions Mastrona had not ordered their discharges when the transcripts were received from the state agency Although I am not satisfied with Mastrona's explanations for the in- consistency in the treatment of Edwards, I am not con- vinced Mastrona directed the discharge of Edwards on Au- gust 8 because of Edwards' union activity For at that time Edwards had not even signed a union card, union activity was in its infancy stage, and there is nothing to indicate the Respondent had any reason at that time to believe Ed- wards supported the Union Although the timing of Ed- wards' discharge itself on September 23 is somewhat suspi- cious, being effected just days after the Respondent executed the stipulated consent election agreement, I be- lieve Mastrona's explanation for his call to Bass and the resulting discharge effected by Bass entirely plausible I find that the General Counsel has not proved by a prepon- derance of the evidence that Edwards was discharged be- cause of his union activities Accordingly, I shall recom- mend this allegation of the complaint be dismissed CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By engaging in the conduct described above in sec- tion III, B, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act 4 By discharging Byron Lowe for engaging in union ac- tivities, Respondent violated Section 8(a)(1) and (3) of the Act 5 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act 6 Except for the foregoing, Respondent has committed no unfair labor practices under the Act THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act It having been found that Respondent discriminatorily discharged Byron Lowe, it will be recommended that Re- spondent be ordered to offer him full and immediate rein- statement, without prejudice to his seniority or other rights and privileges and to reimburse him for any loss of pay he may have suffered Backpay shall be computed on a quar- terly basis, plus interest at 6 percent per annum, as pre- scribed in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962), from the date of discharge to the date reinstatement is offered Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed ORDER 20 Respondent, Redwing Carriers, Inc, Creola, Alabama, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening employees with reprisals or loss of jobs because they engage in union activities (b) Soliciting employees to dissuade other employees from supporting a union (c) Creating the impression of spying on the union activ- ities of employees (d) Coercively interrogating employees about their union activities (e) Discouraging membership in Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 991, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind, or any other la- bor organization, by discriminatorily discharging its employees or by discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment (f) In any other manner, interfering with, restraining, or coercing employees in the exercise of the 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) Offer Byron Lowe immediate and full reinstatement to his former position or, if his job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered in the manner set forth in the section of this Decision entitled "The Reme- dy" (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Order (c) Post at its terminals in Creola, Alabama, and Pensa- cola, Florida, and at all other places where notices to em- ployees are customarily posted, copies of the attached no- 20 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 REDWING CARRIERS, INC 541 tice marked "Appendix " 21 Copies of the notice, on forms thereafter, in conspicuous places, including all places provided by the Regional Director for Region 15, after where notices to employees are customarily posted Rea- being duly signed by Respondent's authorized representa- sonable steps shall be taken by the Respondent to insure tive, shall be posted by the Respondent immediately upon that the notices are not altered, defaced, or covered by any receipt thereof, and be maintained for 60 consecutive days other material (d) Notify the Regional Director for Region 15, in writ- 21 In the event the Board's Order is enforced by a Judgment of the United ing, within 20 days from the date of this Order, what steps States Court of Appeals the words in the notice reading "Posted by Order the Respondent has taken to comply herewith of the National Labor Relations Board" shall read "Posted Pursuant to a IT IS FURTHER ORDERED that the complaint be dismissed Judgment of the United States Court of Appeals Enforcing an Order of the insofar as it alleges violations of the Act not specifically National Labor Relations Board " found herein