Overnite Transportation Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Overnite Transportation Company and Teamsters Local Unions Nos. 592 and Other Local Unions affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 5-CA-9284, 5-CA- 9601, et al.,' and 5-RC-10487 January 14, 1981 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 28, 1980, Administrative Law Judge Paul L. Harper issued the attached Decision in this proceeding. Thereafter, Respondent and the Charg- ing Parties filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Charging Parties filed a brief in answer to Respondent'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, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 In this proceeding, the Administrative Law Judge found that Respondent had engaged in nu- merous violations of Section 8(a)(1) of the Act and had discharged four employees and denied vaca- I The cases were originally filed: Cases 4-CA-9523; 9-CA-12544; 9- CA-12077; 9-CA-12244-2; 9-CA-12244-3; 9-CA 12244-4; 9-CA-12926; 9-CA-13029; 9-CA-13261; 9-CA-12457; 9-CA-12715; 9-CA-12767; 9- CA-13828; 9-CA-13812; 9-CA-7733; and 9-CA-7969, respectively. They are now designated as Cases 5-CA-10622; 5-CA-10623; 5-CA- 10624; 5-CA-10625; 5-CA-10626; 5-CA-10626-2; 5-CA-10626-3; 5 CA-10627; 5-CA-10628; 5-CA-10629; 5-CA-10630; 5-CA-10631; 5- CA-10632; 5-CA-10633; 5-CA-10634; 5-CA-10635; and 5-CA-10636, respectively. 2 Respondent, the General Counsel, and Charging Parties have except- ed 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 preponder- ance 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 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In adopting the Decision of the Administrative Law Judge, we hereby correct the following inadvertent factual errors. The Administrative Law Judge found that the employee who approached Charles Walker about accepting an authorization card was Herman Cox; in fact, it was David Allen. The Administrative Law Judge also found that the record did not reveal how many employees from the Louisville Terminal attended a union meeting in mid-December 1977. The record shows, however, that six employees attended that meeting. Finally, in adopting the Administra- tive Law Judge's dismissal of an alleged 8(a)(l) violation, based on a statement purportedly made by Supervisor Robert Darby to employee Wiggington, we do so solely on the basis of his credibility resolution in favor of Darby. We specifically disavow his further finding that "even if' the statement had been made, there would be no violation. tion pay to one employee for discriminatory rea- sons. The Administrative Law Judge found that these unfair labor practices had interfered with the election. He therefore recommended that the ob- jections to the election be sustained, the election be set aside, and that a new election be held.3 Respondent has excepted to all of the Adminis- trative Law Judge's findings of violations, and argues that even if the violations are sustained, these violations did not affect the results of the election so that a second election is necessary. We have carefully reviewed Respondent's exceptions, and the Administrative Law Judge's findings in this regard, and we have concluded that Respondent's exceptions are without merit. We have also careful- ly considered Respondent's claim that the viola- tions did not interfere with the election, and that, therefore, a second election is not necessary. As ex- plained in greater detail below, we agree with the Administrative Law Judge that a second election is necessary. In addition to Respondent's exceptions, the Gen- eral Counsel and Charging Parties have also ex- cepted to the Administrative Law Judge's dismissal of certain of the alleged 8(a)(1) and (3) violations. As discussed below, we find merit in certain of these exceptions. I. THE ALLEGED 8(A)( I) VIOLATIONS The General Counsel and Charging Parties have excepted to the Administrative Law Judge's dis- missal of certain 8(a)(l) allegations. In so doing, they except to his legal conclusions, not to his fac- tual findings. We find merit to certain of those ex- ceptions. Because the 8(a)(1) dismissals involve similar factual situations, we shall consider them to- gether. The Administrative Law Judge found that Su- pervisor Alvie Clark said to employee Russell Hester sometime in May 1978, "I hear you are in- volved with the Union." Supervisor Robert Cecil asked employee Ron Brown in July 1978, some weeks before the election, and the day after a union meeting which Brown had attended, "They won you over last night, didn't they?" Finally, Su- pervisor Robert Darby asked employee David Allen on February 7, 1978, "What's this I hear about your passing out union literature?" The General Counsel argues that these state- ments violated Section 8(a)(1) of the Act because 3 The Administrative Law Judge made specific findings on only one of the election objections. He also failed to make findings on an 8(a)(l) alle- gation concerning a conversation between Supervisor Alvie Clark and employee Goodwin. Since the objections and the unfair labor practice charge allege conduct which is remedied by other findings of the Admin- istrative Law Judge, we do not, except to the extent specifically noted in the Decision, pass on any of these matters as they are cumulative. 254 NLRB No. 11 132 OVERNITE TRANSPORTATION COMPANY they imply that Respondent has engaged in surveil- lance of the employees' union activities. The Ad- ministrative Law Judge found that Cecil's state- ment to Brown was not an unlawful interrogation since it contained no threat of reprisal or promise of benefit. He found Clark's statement to Hester to be lawful since he found that it was unclear wheth- er the employee, who had told Clark of Hester's activities, had volunteered the information or been solicited by Clark. Finally, the Administrative Law Judge found that Darby made the statement to Allen, but he failed to draw any legal conclusion about the statement. We find that all three statements violated Section 8(a)(1) of the Act because each implied surveil- lance of the employees' union activities. Plasticoid Company, Inc., 168 NLRB 135, fn. 3 (1967). Con- trary to the Administrative Law Judge, it is irrele- vant whether the statement implied a threat, or whether the supervisor learned about the meeting from an employee who volunteered the informa- tion. As we stated in American National Stores, Inc., 195 NLRB 127 (1972): We are not here concerned with whether this statement was true, or whether it proved actual surveillance. The significant fact . . . is whether [the supervisor's] statement had a rea- sonable tendency to discourage the employees in exercising their statutory rights by creating the impression that he had sources of informa- tion about their union activity. Applying this test to the instant case, we find that the three statements above violated Section 8(a)(1) of the Act. 4 The General Counsel also excepted to the Ad- ministrative Law Judge's finding that Respondent did not violate Section 8(a)(1) of the Act when, in mid-August, Supervisor Alvie Clark approached Russell Hester and asked him, "as a personal favor," to stop wearing a Teamsters T-shirt. The Administrative Law Judge reasoned that the state- ment was not unlawful since it contained no threat of reprisal or promise of benefit. We disagree. Clark was Hester's supervisor, and the request, even when phrased in terms of a "personal favor," was a directive to stop wearing a T-shirt which demonstrated Hester's support for the Union. Hester could reasonably believe that his failure to obey Clark would result in some kind of immediate or future discipline. We find that the statement co- 4 For the same reasons, we find merit to the Charging Parties' excep- tion that, contrary to the Administrative Law Judge, Supervisor Johnny Johnson's statement to Otha Jones was not only an unlawful interroga- tion but also a statement which implied surveillance. erced Hester in the exercise of his Section 7 rights, and therefore violated Section 8(a)(l) of the Act. Finally, the Charging Parties have excepted to the Administrative Law Judge's conclusion that their objections to the election based on a speech given by Vice President for Labor Relations A. M. Price to various groups of employees are without merit. 5 To the extent that the Charging Parties' ex- ceptions have challenged the Administrative Law Judge's credibility findings, we have adopted the Administrative Law Judge. Contrary to the Ad- ministrative Law Judge, however, we find merit to the Charging Parties' claim that in one part of his speech Price threatened that if the Union won the election, some employees would lose their jobs be- cause the Company would have to close some of its marginal terminals. It is uncontested that Price made the following statement in his speech to the employees: If the union were to come into our Company, think of all the employees who would be auto- matically put out of work, because a lot of our territory with one-way hauls is marginal at best. [Emphasis supplied.] This statement is not a prediction of the likely ef- fects of unionization on Respondent's business; it is a statement that, "automatically," regardless of the outcome of negotiations, some employees will lose their jobs. Thus, the statement constitutes an im- plied threat of employer action. Accordingly, we find that this statement was objectionable conduct which coerced employees in the exercise of their Section 7 rights. 11. THE ALLEGED 8(a)(3) VIOLATIONS We have reviewed all of the parties' exceptions concerning the alleged violations of Section 8(a)(3) of the Act. And, except as noted below, we adopt all of the Administrative Law Judge's findings on the alleged 8(a)(3) conduct, for the reasons given by him. In adopting his findings of four unlawful dis- charges, we recognize that at the time of the Ad- ministrative Law Judge's Decision, the Board's de- cision in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), had not yet issued. That decision clarified the Board's position with re- spect to the appropriate test of causation in 8(a)(3) cases and formalized a standard for the shifting of the burden of proof. We have reviewed the Ad- ministrative Law Judge's finding in light of the Wright Line standard, and we conclude that, in 5 Price gave basically the same speech at several other terminals before the election. 133 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weighing the evidence, he fully complied with the Wright Line test. Thus, with respect to Toombs, Wiggington, and Walker, he, in effect, found that the General Counsel had proved that the employ- ees were discharged because of their union activi- ties, and that the Employer had failed to demon- strate that the discharge was grounded in any le- gitimate reason. With respect to Morris, he found that Morris had, in fact, violated a safety rule, and that this violation of the rule was a legitimate basis for some disciplinary action. He further found, however, that the violation of the rule was not the motivating cause for Morris' discharge, and that "but for" Morris' union activity Respondent would not have discharged him.8 These findings satisfy the Wright Line test, that a violation is established where the General Counsel sets forth a prima facie case, and the employer fails to show that in the ab- sence of the union activity it would have taken the same disciplinary action that it took in the presence of the union activity. Thus, we have adopted the findings of the Administrative Law Judge that Re- spondent violated Section 8(a)(3) of the Act by dis- charging employees Toombs, Wiggington, Walker, and Morris. Respondent argues that, even if the 8(a)(3) find- ings are upheld, the remedy of reinstatement with backpay is inappropriate for employee Charles Walker, because Walker made material misrepre- sentations on his employment application. Thus, he omitted mention of his prior employer, and failed to indicate that he had been discharged by that em- ployer because of a motor vehicle accident. Based on the credited testimony, the Administra- tive Law Judge found that Walker told a company official, Alvie Clark, at his preemployment inter- view, that he had previously worked at Dealer's Transport and had been involved in an accident while employed there. Clark then told him he could omit the information on the ground that the prior employment and accident happened more than 2 years before. Thus, Respondent knew about the accident but, nevertheless, hired Walker. In fact, Respondent admitted that Walker was an ex- cellent employee, and that Respondent considered 6 The Administrative Law Judge also found that Morris' discharge was "in part" because of his union activities. While the Administrative Law Judge used both "in part" and "but for" language, we find, that his analysis, in the context of the Administrative Law Judge's factual find- ings, conforms with Wright Line. Thus, the Administrative Law Judge's findings establish a prima facie case, sufficient to support the inference that Morris' union activity was a motivating factor in Respondent's deci- sion to discharge him. In addition, the Administrative Law Judge in effect found that Respondent failed to demonstrate that it would have taken the same action against Morris, in the absence of his union activity. Accordingly, although the Administrative Law Judge utilized the terms "in part" and "but for," we conclude that his analysis is in harmony with the analytical objectives of Wright Line, and we, therefore, affirm his conclusion that Morris' discharge violated Sec. 8(a)(3) of the Act. him qualified for a supervisory position. In addi- tion, the record shows several other instances in which Respondent continued to employ drivers even though they had falsified their applications. For example, one employee failed to disclose the revocation of his driver's license, and a ticket for driving while intoxicated. Balancing Walker's "misconduct" against the need to undo the wrong perpetrated by Respon- dent, we find that reinstatement with backpay is the only appropriate remedy. Respondent had no firm policy of discharge for falsification of the em- ployment application, and, in fact, a company offi- cial told him to omit part of his employment histo- ry. On the other hand, Walker was an excellent employee throughout his employment. Under these circumstances, we find that Walker's reinstatement with backpay is essential to effectuate the policies of the Act. Standard Motor Products, Inc., 247 NLRB No. 47, enfd. J-9848 (2d Cir. 1980). Both the General Counsel and the Charging Par- ties excepted to the Administrative Law Judge's dismissal of that part of the complaint which al- leged that Respondent violated Section 8(a)(3) of the Act by discharging David Enix. For the rea- sons stated below, we find merit to these excep- tions. David Enix was hired in June 19777 and dis- charged in November, allegedly for punching the timecard of Russell Hester. Hester was a known supporter and organizer for the Union, and Enix and Hester were good friends. The union campaign started around October 1. On or about October 8 Enix attended a union meeting with a small group of drivers at Hester's home. He signed an authorization card at the meet- ing and later distributed about 20 cards to other employees. On more than one occasion he ex- pressed his support for the Union to Jerry Probus. Jerry Probus is the nephew of Sidney Probus, a su- pervisor at the Louisville terminal. Jerry Probus was strongly opposed to the Union. On the morning of October 31, Enix reported to work at the usual time. At 9:30 a.m. he punched in on his timecard. Later that morning, around 10 a.m., he punched a trip card and left on a routine dispatch. When he called in, he was told to return to the terminal and report to Terminal Manager Dickenson. At the terminal Dickenson accused Enix of having punched another employee's (Hes- ter's) timecard. Enix denied that he punched an- other employee's card. Nevertheless, Dickenson suspended him, pending an investigation. The next day he informed Enix that, although he could not 7 All dates hereinafter refer to 1977, unless otherwise noted. 134 OVERNITE TRANSPORTATION COMPANY prove Enix had punched Hester's card, he was sat- isfied with the information he had, and, according- ly, Enix was discharged. The information on which Dickenson based his decision to discharge was a statement by Jerry Probus that he had witnessed Enix punch another employee's timecard. The General Counsel showed that Respondent did not have a policy of discharging employees for a first-time offense of punching another employee's timecard; that no employee had, in fact, been dis- charged for that offense; and that, to the contrary, it was not uncommon for employees to punch the timecards of other employees, a fact known by Re- spondent. Respondent's animus toward union sup- porters was also established by the numerous state- ments made at the Louisville terminal in violation of Section 8(a)(1), as well as the unlawful 8(a)(3) discharges. The timing of the discharge-only 3 weeks after the Union informed Respondent of its organizational campaign-also suggested that the discharge was because of Enix's support for the Union, and not for punching someone else's time- card. In fact, the Administrative Law Judge found that Enix did not punch Hester's timecard. Despite this evidence, the Administrative Law Judge concluded that the General Counsel had failed to prove that Enix was discharged for his union activity. The dismissal was based on his find- ings that Respondent had no knowledge of Enix's support for the Union, and that Respondent did not discharge Hester, "an admittedly known and out- spoken Union activist." Contrary to the Adminis- trative Law Judge, we find that Respondent knew that Enix was a union supporter. Moreover, we do not believe that Respondent's conduct with respect to Hester is probative of Respondent's reason for discharging Enix. The Administrative Law Judge found that Enix had told Jerry Probus about his support for the Union, but he credited Sid Probus' denial that Jerry had told Sid about Enix's union sympathies. There was, however, other circumstantial evidence which supports the inference that Respondent knew about Enix's sympathies for the Union. First, Enix and Hester, an admittedly known and outspo- ken union ctivist, were good friends and neigh- bors. Respondent knew of their friendship, and could reasonably infer that Hester's friend would, to a certain extent, share his feelings about the Union. Riverfront Restaurant, a Corporation trading as Riverfront Restaurant & Dinner Theatre, 235 NLRB 319, 320 (1978). In any event, Respondent had other sources of information. Robert Darby, safety manager, ad- mitted that during the union campaign, Jerry Probus regularly reported to him about the union activities of other employees, and that he forward- ed that information to Terminal Manager Dicken- son. Moreover, Darby was a participant in Morris' discharge. He was present, along with Jerry Probus, when Enix punched his trip card, and he and Probus immediately discussed the alleged in- fraction. Darby then reported on the matter to Dickenson. Finally, when asked at the hearing if Probus had told him of Enix's support for the Union, Darby could only state that he could not recollect. The reasonable inference from all of this evidence is that Darby, through Probus, knew about Enix's support for the Union, and that, either on October 31, or before, he told Dickenson. This inference of knowledge finds further sup- port in the circumstances of the discharge. First, Enix's discharge was peremptory, and based on the alleged violation of a rule for which no other em- ployee had been discharged. Moreover, the record shows that employees had regularly punched in for their fellow employees, and this conduct was known to Respondent. Second, the decision to dis- charge was based on the one-sided accusations of Jerry Probus, even though Probus had only started working that month, he had already been warned for absenteeism, and Hester vehemently denied the accusation. The record evidence strongly suggests, and we find, that Respondent believed Probus over Enix because Probus opposed the Union and Enix supported it. 8 Finally, there is the timing of the dis- charge, only a few weeks after the Union began its organizational drive. The Administrative Law Judge concluded, that, however, if Respondent had discharged Enix for his union support, it would also have discharged Hester, and therefore the failure to discharge Hester supported an inference that Enix was dis- charged because of the alleged violation of the ti- mecard rule. The inferences of the Administrative Law Judge in this respect are unwarranted. In order for there to be a violation of Section 8(a)(3), it is not necessary that Respondent rid itself of all union adherents in one act. Flite Chief; Inc., 229 NLRB 968, 977 (1977). The General Counsel need only establish that Enix was discharged for his union activity. Here the General Counsel estab- lished that Enix supported the Union, that Respon- dent knew of his support, that Respondent had 8 Otherwise, Respondent had no reason to credit Probus' version of events over Enix's strong denial. Enix, at the time in question, had an unblemished record, while Probus had already been warned of absentee- ism. Probus proved to be a poor employee, who, according to Dicken- son, slacked off, and was "smart aleck." He received three written warn- ings from March 31 through June 19, 1978, for absenteeism and tardiness, and slacking off in his work. Probus was not discharged for those infrac- tions, however. He was discharged later for making threatening gestures at a supervisor. 135 DECISIONS OF NATIONAL LABOR RELATIONS BOARD animus towards the Union and its supporters, and, when presented with a possible violation of a minor rule, seized on it to discharge Enix. Respon- dent, on the other hand, failed to prove that, in the absence of Enix's union activity, it would have dis- charged Enix without prior warning, and for an in- fraction for which it had never discharged anyone else, and indeed had tolerated in the past. Under these circumstances, we find that Respondent vio- lated Section 8(a)(3) of the Act by discharging em- ployee David Enix because he supported the Union. III. THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, in addition to those found by the Administrative Law Judge, we shall order that it cease and desist therefrom, and take certain affirmative action to remedy the additional violation of Section 8(a)(3). Specifically, we shall amend the recommended Order of the Administra- tive Law Judge to include employee David Enix so that he shall receive reinstatement with backpay as prescribed therein.9 In addition, we adopt the Administrative Law Judge's recommendation that a second election be directed in this case because of the impact on the election of the unlawful discharges during the criti- cal period and the numerous statements made in violation of Section 8(a)(l) which coerced the unit employees in the exercise of their Section 7 rights. These drivers are regularly moving from terminal to terminal, and we agree with the Administrative Law Judge that the unlawful actions and state- ments of Respondent can reasonably be expected to have been disseminated and discussed among the employees. In addition, we note that the unlawful threat made by A. M. Price in his speech at several terminals was heard by large numbers of employees only a short time before the election. For all of these reasons, we shall direct a second election. 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 modi- fied below, and hereby orders that the Respondent, Overnite Transportation Company, Richmond, Vir- ginia, its officers, agents, successors, and assigns, 9 See Isis Plumbing d Heating Co., 138 NLRB 716 (1963), for rationale on interest. Member Jenkins would compute the interest due on backpay in accor- dance with the formula set forth set forth in his dissent in Olympic Medi- cal Corporation, 250 NLRB 146 (1980). shall take the action set forth in the said recom- mended Order, as modified: 1. Add the following as paragraph 2(h) and relet- ter the remaining paragraph accordingly: "(h) Telling employees to stop wearing T-shirts which have a union insignia on them." 2. Substitute the following for paragraph 2(a): "(a) Offer reinstatement to Thomas M. Toombs, Lewis Wiggington, Charles Walker, Jerry Morris, and David Enix to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole, with interest, for any loss of earnings they may have suf- fered as a result of the discrimination against them." 3. Substitute the attached notice for that of the Administrative Law Judge. [Direction of Second Election and Excelsior foot- note omitted from publication]. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist the Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, and any of its Local Unions, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. All our employees are free to become or remain members of this Union, or any other labor organization. WE WILL NOT interrogate employees con- cerning their union membership and activities. WE WILL NOT threaten to close any particu- lar terminal and re-route freight because of our employees' union activities. WE WILL NOT convey the impression of sur- veillance of union activities of our employees. WE WILL NOT solicit employees to report on the union activities of other employees. WE WILL NOT tell our employees that those employees who engaged in union activities in a prior union campaign at our Company were discharged for such activities. 136 OVERNITE TRANSPORTATION COMPANY WE WILL NOT threaten, and/or deny, em- ployees their vacation pay because they ex- press an intention to file, or file, unfair labor practice charges with the National Labor Re- lations Board. WE WILL NOT threaten to make more oner- ous work tasks to employees because of their interest or activity in the Teamsters Union, or any other labor organization. WE WILL NOT tell our employees to stop wearing T-shirts which have a union insignia on them. WE WILL NOT discharge, threaten to dis- charge, or take any other discriminatory action against employees for joining or assisting the Teamsters, or any of its Local Unions. WE WILL offer to reinstate Thomas M. Toombs, Lewis Wiggington, Charles Walker, Jerry Morris, and David Enix to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without preju- dice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings re- sulting from their discharge, with interest. OVERNITE TRANSPORTATION COMPA- NY DECISION STATEMENT OF THE CASE PAUL L. HARPER, Administrative Law Judge: Hear- ings in this consolidated proceeding were held on June 4-6, 11, and 12, 1979, in Richmond, Virginia; July 24-27, 31, August 1-3 and 10, 1979; January 21-24, 1980, in Louisville, Kentucky; August 28 and 29, 1979, in Phila- delphia, Pennsylvania; September 25-27, 1979, in Spar- tanburg, South Carolina; October 23 and 24, 1979, in At- lanta, Georgia; November 14, 1979, in Charleston, West Virginia; and December 11, 1979, in Huntington, West Virginia. On August 10, 1978, the Union filed 19 objections to the conduct of the election held on August 2-4, 1978. On February 12, 1979, the Board issued an Order remanding this proceeding to the Regional Director for Region 5 for the purpose of scheduling a hearing on Petitioner's Objections 1-8 and adopting pro forma the Regional Di- rector's recommendation to overrule Objections 15-19 in the absence of exceptions. Thereafter, the objections were consolidated with some 19 unfair labor practice complaints for purposes of formal hearings conducted as noted above. Pertinent Background In early October 1977, the Union began its organizing campaign among the Employer's employees, throughout its 60 or more terminals, located i about 26 States, situ- ated mostly in the eastern half of the country. Of a total employee complement of about 6,000, approximately 4,700 were included in the agreed on bargaining unit. Pursuant to a Stipulation for Certification Upon Con- sent Election, an election was conducted by both mail and onsite voting on August 2-4, 1978. Ballots were counted on August 5, 1978. Of approximately 4,674 eligible voters, 1,565 ballots were cast in favor of the Union; 2,451 ballots against; with 104 void ballots; and 389 challenged ballots. Timely objections were filed by the Union on August 11, 1978. The Regional Director for Region 5 filed his Report on Objections on October 27, 1978, finding Ob- jections 1-8 raised substantial and material issues that could best be resolved by the taking of record testimony, and also recommended the objections proceeding be con- solidated with the outstanding unfair labor practice com- plaints. On May 1, 1979, the Board issued its Decision and Order in Case 5-RC-10487 remanding the case to the Regional Director for scheduling hearings on the con- solidated cases. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Overnite Transportation Company is engaged through- out 26 States in the interstate transportation of freight by motor carrier. During the 12 months preceding issuance of the first complaint herein, Respondent received gross revenues in excess of S50,000 from its interstate oper- ations. Respondent admits, and I find, it is an employer engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. II. UNFAIR LABOR PRACTICES The issues 1. Whether or not the Employer unlawfully dis- charged or otherwise discriminated against employees Thomas Toombs, Sr., Herman Cox, Ronnie Brown, David Enix, Jerry Morris, David Allen, Lewis Wigging- ton, Charles Walker, Alton Cotton, Carl DeBoard, Grady Pirkey, Ted Darr, Jimmie Gause, Martin Hoover, Terry Motes, and Morris Adkins, because of their union interest and/or activity in violation of Section 8(aX3) of the Act, or for reasons asserted by the Employer. 2. Whether or not the Employer imposed more oner- ous working conditions on the employees known to be supporters of the Union, in violation of Section 8(a)(3) of the Act. 3. Whether or not the Employer engaged in acts of in- terference, restraint, or coercion as alleged in the con- solidated complaints in violation of Section 8(a)(1) of the Act, including issuance of a warning letter to Otha Jones and a written reprimand to Donald Barrett. 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Whether or not the Employer, by engaging in con- duct alleged in the consolidated complaints and the ob- jections, interfered with its employees' rights to a free and untrammeled choice during the election to such an extent that the election should be set aside and a new election be directed by the Board; conversely should the results of the election be certified by the Board. Findings Based on all the testimony of record, the briefs of counsel for all the parties herein, and the record as a whole, it is my opinion and finding that the credible evi- dence of record establishes that employees Toombs, Morris, Wiggington, and Walker were discharged, wholly or in part, because of their interest and/or activ- ity in the Union in violation of Section 8(a)(3) of the Act. Further, I find the Employer's denial of vacation pay to Terry Motes to have been in violation of Section 8(a)(3) of the Act. It is my further opinion and finding that the evidence of record is insufficient to sustain the complaint allega- tions that employees Allen, Cotton, Brown, Enix, De- Board, Pirkey, Cox, Adkins, Hoover, Darr, and Gause were discharged because of their interest and/or activity in the Union in violation of Section 8(a)(3) of the Act. I further conclude and find the evidence insufficient to sustain the complaint allegations with respect to Barrett and Jones. In reaching conclusions concerning the complaint alle- gations of unlawful discrimination against the individual employees discussed below, I have been guided by cer- tain criteria established by the Board and courts in cases involving similar violations and alleged violations of the Act. In attempting to follow such criteria, I have been mindful of the general rule that the General Counsel has the burden of proving discrimination, and that the Re- spondent does not have the burden of establishing the contrary. Indiana Metal Products Corporation v. N.L.R.B., 202 F.2d 613, 616 (7th Cir. 1953); N.L.R.B. v. Soft Water Laundry, Inc., 346 F.2d 930, 936 (5th Cir. 1965). Moreover, the burden of proof never shifts from the General Counsel, and the Respondent does not have the burden of proving it discharged or otherwise altered the status of an employee for the reason it asserts. The Em- ployer may discharge an employee for good, bad, or no reason at all. Edward G. Budd Manufacturing Company v. N.L.R.B., 138 F.2d 86, 90 (3d Cir. 1943). At the same time it is also true that an employer does not ordinarily discharge, suspend, layoff, warn, or repri- mand an employee for no reason at all, and support for a finding of unlawful motivation is augmented when the asserted reason or explanation of such actions does not stand up under scrutiny. N.L.R.B. v. Bird Machine Com- pany, 161 F.2d 589, 592 (1st Cir. 1947). In making credibility resolutions, where the testimony of various witnesses has been conflicting, I have consid- ered not only the demeanor of the witnesses while testi- fying, but also the internal consistency, or inconsistency, of their testimony, as well as external contradictions to testimony I have considered to be more reliable. The dis- crimination cases are discussed in the order stated above. Thomas Toombs The General Counsel's and the Union's Position and Supportive Evidence First employed at the Employer's Greenville, South Carolina, terminal in January 1972 as a warehouseman, Toombs was transferred to the Richmond, Virginia, ter- minal in mid-1973 as a straight truckdriver on a down- town route in Richmond. He was discharged June 16, 1978. The General Counsel and the Union contend that Toombs, from the inception of the union campaign in the fall of 1977 to the date of his discharge in June 1978, became the most active union supporter at the Employ- er's Richmond terminal. The evidence shows that Toombs signed a union card on October 10, 1977. There- after, he cooperated with representatives of the Union in obtaining names and mailing addresses of 20 or more em- ployees; distributed union authorization cards to other employees at the terminal; and mailed union literature to other employees. As early as December 1977 the Employer, through its supervisors, became aware of Toombs' interest in the Union. Former Safety Supervisor Campbell testified that Terminal Manager Gulledge in March or April 1978 told him ". . . that there were several . . . there were a few people he was aware of that had already either signed cards or were trying to get other drivers to sign," and he believed Gulledge "... mentioned Mr. Toombs, Mr. Cox, Mr. Walker." In any event, if the Employer was not aware of Toombs' interest in the Union before, it became so aware on or about March 8, 1978, when Toombs filed an unfair labor practice charge with the Board alleging that the Employer had discriminated against him ". . . by various acts of harassment because of his activities on behalf of International Brotherhood of Teamsters, Warehousemen & Helpers of America." The General Counsel and the Union contend that as early as December 1977 Toombs had been warned by then Supervisor Wesley Moody not to have anything to do with the Union, that ". . . all the company would have to do is follow a man, watch him for his mistakes, record each mistake and build a case against a man, about those words." Thereafter, according to the Gener- al Counsel and the Union, this prophecy was fulfilled. In January 1978, after a brief absence due to illness, Toombs drove his truck from the terminal without notic- ing a hazardous material placard on the front end of his truck, which had been used during his absence. James Campbell, a former safety and personnel super- visor, testified that OS&D supervisor, Spradlin, advised him that Toombs had a hazardous placard on the front of his truck which did not contain hazardous material and ". . . if we could get out there, we could catch him with it and write an observation report." The use of such a placard in the absence of hauling hazardous material is a violation of DOT regulations and would subject the 138 OVERNITE TRANSPORTATION COMPANY Employer to a possible fine. Campbell testified that he tried to prevent Toombs from leaving the premises with the placard but Toombs had already left to make his de- liveries. Later Spradlin caught up with Toombs and noti- fied Campbell who then proceeded to the scene and wrote out an observation report on the incident. On January 10, 1978, Toombs was found several miles off his regular route and given a 3-day suspension. Former Supervisor Campbell testified that prior to this incident Terminal Manager Gulledge advised him he be- lieved Toombs was eating lunch or running personal er- rands off his regular route. He requested Campbell to at- tempt to catch Toombs engaging in such prohibited practice. Campbell testified his attempts to do so were unsuccessful. Another incident occurred on January 30, 1978. On instructions from the dispatcher, Toombs picked up a gearbox machine from the terminal of another motor car- rier. When Toombs returned to the Employer's Rich- mond terminal his truck was again checked by Spradlin, who claimed the gearbox machine had not been pack- aged properly and that Toombs should not have hauled it in that condition. He again warned Toombs that such "poor judgment" in the future could result in his dis- charge. The General Counsel contends that after Sprad- lin reprimanded Toombs he allowed the gearbox ma- chine to be forwarded to its destination in the same pack- aging condition as it had been received by Toombs. Again, on February 3, Operations Manager Werner wrote an adverse observation report on Toombs for call- ing in his inability to report to work due to a heavy snowfall that day. The General Counsel noted that Toombs lived at the time in a rural area some 30 miles from the Richmond terminal. Toombs received his first writeup for a cross-delivery or misdelivery on February 8, once again by Supervisor Spradlin. The General Counsel and the Union argue that the delivery in question consisted of 20 cartons, 4 of them belonging to another customer. It is argued that Toombs did not load this particular freight on his truck and that the warehouse employees responsible for load- ing the freight in question were not disciplined in any manner. As stated above, the Union, on March 8, filed an unfair labor practice charge on behalf of Toombs alleg- ing the above acts of the Employer to constitute unlaw- ful harassment against Toombs because of his union in- terest and activity. On April 17, Toombs was reprimanded by both Ter- minal Manager Gulledge and Supervisor Spradlin for an- other alleged misdelivery of freight. On May 4, Tpombs received a "final" warning because of another alleged misdelivery on May 1. Toombs had delivered three boxes of freight to Raylass department store in Richmond, however it later turned out that two of the boxes should have gone to their Raylass store in Franklin, Virginia. After this latest incident Toombs testified that he no- ticed he was being followed on his route by Supervisor Spradlin more often than before. On May 23, he took note of this and recalled that he had seen Spradlin at 13 to 14 delivery stops out of a total of 20 stops during that day. On June 2, Toombs made a delivery to James River Paper Company of two skid loads of rejected paper. Un- identified warehousemen loaded the freight on Toombs' truck. Through error, not attributable to Toombs, two skid loads of paper were loaded at the Employer's Fay- etteville terminal and shipped to the Richmond terminal, one skid load destined to James River Paper Company in Richmond, Virginia, and one to Southern Specialty Company, Chattanooga, Tennessee. Both skid loads were unloaded at the Richmond terminal and reloaded on Toombs' truck without anyone catching the error. When Toombs delivered this freight, both he and James River Assistant Superintendent Larry Gibson again failed to notice any error in the shipment. Spradlin learned about the misdelivery about 10 days later. He testified in regard to this as follows: Q. What was the reason for your going to James River Paper? A. There had been a skid of paper delivered wrong to James River Paper Company. Q. Did you know that before you went out there? A. Chattanooga had got in touch with the Rich- mond terminal. In fact we had an extra skid of paper in the Richmond terminal for James River Paper. When Spradlin arrived at the James River Company, he contacted Gibson who had received the misdelivered freight from Toombs. Gibson testified that this was his first knowledge of the misdelivery. Gibson further testi- fied that Spradlin ". . . asked [him] if he [Spradlin] wrote a letter, would [he] sign it stating that Mr. Toombs had delivered the wrong material to James River Paper Corporation." "I said, no I wouldn't sign a paper saying that." Gibson said he never before had re- ceived such a request, and would not sign such a letter because he did not want to put anyone's job in jeopardy. When the matter was reported by Spradlin to Terminal Manager Gulledge, Toombs was discharged. The General Counsel and the Union contend that the reason asserted by the Employer for discharging Toombs was pretext to rid the Company of the most active union supporter at the Richmond terminal, in violation of Sec- tion 8(a)(3) of the Act. The Employer's Position and Supportive Evidence The Employer contends that Toombs was discharged as a result of a series of incidents ". . . properly charac- terized as reflecting an inability or unwillingness on Toombs' part to properly perform his duties." It is fur- ther argued that in regard to each such incident of "wrongdoing," Toombs admitted his error and it is the General Counsel's position that, while Toombs was guilty of each and every infraction, the use of such in- fractions as a basis of discharging Toombs was mere pre- text for discharging Toombs because of his union activi- ties. 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In regard to the placard incident, the Employer argues that the testimony of former Supervisor Campbell, ". .. a disgruntled former employee of Overnite," that Sprad- lin told him about the placard being improperly placed on the front of Toombs' truck and that it was a good op- portunity to writeup an adverse observation report on Toombs should not be credited; that Spradlin's testimony he observed the placard while performing his routine duties is the more reliable. As to the off-route incident the Employer argues that Toombs, after stating various excuses for being off his regular delivery route, admitted in his prehearing affida- vit that one of the main reasons he had gone off route was to try to prove he was being followed by the Em- ployer's supervisors; moreover, that Toombs admitted he never had permission from the dispatcher to be off his regular route. According to the Employer, Toombs' last effort to buttress his assertion of being subject to the Employer's surveillance of his actions was portrayed in his testimony concerning the events of May 23, 1978. Toombs testified, increduously according to the Employer, that Spradlin had followed him to 13 to 14 of a total of 20 delivery stops that day. Spradlin testified that he observed Toombs on only two occasions that day, the first at lunch, and the second at a s store where Toombs had asked for his assistance regarding a delivery problem. In regard to the gearbox incident, the Employer con- tends Toombs went to great pains to suggest the assign- ment was made in order to set him up for criticism by "... testifying that the dispatch carried him off route and across town, an unusual occurrence," but on cross- examination, admitted the pickup point was actually within two blocks of the terminal. Finally the Employer argues that "Whatever role Toombs' union activities may or may not be found to have played in his termination, it would be a novel situa- tion to hold that no matter that Toombs admittedly en- gaged in repeated acts of misconduct, his misconduct may not be punished because he was a Union supporter." Citing N.L.R.B. v. Threads, Inc., 308 F.2d 1-13 (4th Cir. 1962). Analysis and Conclusions It is my opinion, and finding, that the credible evi- dence of record establishes the Employer's asserted rea- sons for discharging Toombs are in fact pretextual, and that the Employer was motivated, in substantial part, by its desire to rid itself of an active union supporter. In arriving at this conclusion I have not considered in- cidents occurring prior to the unfair labor practice charge filed on March 8, 1978, although permissible, except to the extent that such incidents reveal a pattern of excessive scrutiny by the Employer of Toombs' ac- tions during the course of his employment after the advent of the union campaign. Moreover, I find the evi- dence insufficient to prove actual harassment of Toombs prior to March 8 although a great deal of suspicion exists, especially when such prior incidents are consid- ered in relation to events after March 8. Campbell's testi- mony that he "believed" Gulledge mentioned Toombs, Cox, and Walker as having an interest in the union is too doubtful to make a finding that this testimony establishes the Employer's knowledge of the union interest or activ- ity of these particular employees. In regard to the incident on April 17 regarding Toombs' failure to check certain freight loaded on his truck in error by unidentified warehousemen, I find the evidence insufficient to prove the resulting adverse ob- servational report was improper or discriminatory. Likewise, the adverse counseling Toombs received as a result of the misdelivery of two boxes of freight to the wrong address appears to have been justified and certain- ly the evidence is lacking of any discrimination. In regard to Toombs' testimony that he was the sub- ject of Spradlin's surveillance on 13 to 14 occasions on May 23, I find such testimony exaggerated beyond rea- sonable belief and less plausible than Spradlin's testimony that he saw Toombs on only 2 occasions that particular day. It is also my opinion and finding that despite the Gen- eral Counsel's possession of documents concerning the allegations that known union supporters were receiving more disciplinary reports than other employees, there is insufficient evidence to establish any such discrimination against union supporters in this respect. This finding ap- plies to the case of Toombs. Notwithstanding the above findings, it is my opinion and finding that the Employer's asserted reason for dis- charging Toombs, following his misdelivery of two skid loads of paper, under the circumstances surrounding that incident, was clearly a false reason for the discharge. The evidence reveals that the Employer had received no complaint from James River, which indeed was not even aware of the misdelivery until Spradlin told Gibson about 10 days after the delivery. It is not entirely clear in the record just how Spradlin discovered the error, but after doing so his actions clearly reveal an intent to remove Toombs from his job at Overnite. He even went to the rather extreme effort, in my opinion, to shore up his intent by asking Gibson to sign a letter Spradlin of- fered to prepare for the purpose of placing the sole guilt for the shipment error on Toombs. Gibson refused. The import of the error, which Spradlin attempted to blow up out of all reasonable proportion, is revealed in Gib- son's testimony that when asked if the error had re- mained undiscovered what use would have been made of the paper, Gibson replied, "It probably would have wound up either at the dump or our Sales Department might have gone through it and said, we could probably take this paper and maybe cut it down to another size and maybe cut it down to another size [sic] and supply it to another customer for another use." It is one thing for an employer to welcome the oppor- tunity to eliminate an active union supporter from its payroll. It is quite another to bide its time until such an employee makes a mistake and then seize on such an op- portunity to rid itself of an active union supporter. In the case of Toombs, I find that the reason asserted by the Employer for his discharge to be such a pretext and further find that the Employer herein was motivat- ed, at least in substantial part, by its desire to eliminate from its employee complement a known union supporter. 140 OVERNITE TRANSPORTATION COMPANY Therefore I find the discharge of Toombs to be in viola- tion of Section 8(a)(3) of the Act. Jerry Morris The General Counsel's and the Union's Position and Supportive Evidence Morris was first employed as a dock worker on Sep- tember 7, 1971, became a city driver in February 1972, and was discharged on December 16, 1977. The General Counsel and the Union contend that Morris was discharged because of his activities in the union campaign, and that the Employer's asserted reason for the discharge was a pretext to rid itself of an active union adherent. Morris became active in the Union early in its cam- paign in October 1977. Several early union meetings were conducted in his home. He had conversations in which he was outspoken in favor of the Union with at least two fellow employees who later became supervi- sors, namely, Robert Cecil and Sidney Probus. Cecil ad- mitted talking with Morris about the Union prior to his, Cecil's, promotion to driver-supervisor. The General Counsel and the Union argue that Cecil engaged in sub- stantial coercive conduct throughout the union campaign which demonstrates not only knowledge of Morris' inter- est and activity in the Union but also the Employer's hostility to the organizational efforts of its employees. Further, the General Counsel and the Union argue that Morris had been an exemplary driver for almost 5- 1/2 years, had received many commendations, and, with one exception, never received any driver observation re- ports by the driver-supervisor until almost immediately after he began his union activity and within the last 5 weeks of his employment with the Company. They fur- ther argue that the first such report was made several years before his discharge and the second and third re- ports revealed Morris to have been in conformity with the Company's safety rules. The fourth, and only one, which was in any way negative, resulted in his dis- charge. On December 16, 1977, while making a delivery at one of the Employer's customer's warehouse, while on his lunchbreak, Morris was asked by a driver for another company, also making a delivery at the same warehouse, to assist him in getting his truck out of a mud hole where it had become lodged. Morris obliged, first by placing his tractor against the rear of the other driver's trailer and attempted to push the equipment forward. This being unsuccessful the two drivers obtained a chain from the customer's shop, hooked it to the two vehicles, and thus dislodged the stuck vehicle. The other driver had accompanied Morris in his cab to the shop to obtain the chain. Morris returned the chain alone. Morris testified that he considered he was doing no more than a favor to a driver who worked for a good customer of the Em- ployer. This entire incident was witnessed by Supervisors Darby and Clark, both of whom testified they were making a routine observational check on Morris at the time and just happened on the scene at the time the inci- dent occurred. After observing the incident, Morris was called over to the car occupied by Darby and Clark, rep- rimanded for rules infractions, and an observational report prepared which was later turned in to Terminal Manager Dickenson. Upon receipt of the report Dicken- son called Morris to his office at the end of the day and peremptorily discharged him. The General Counsel and the Union contend the as- serted reasons advanced by the Employer to discharge Morris, one of the Company's more senior and satisfac- tory drivers, giving him no second chance as it had for many other drivers, is clear evidence of pretext and that the true reason for Morris' discharge was because of his known support of the Union, in violation of Section 8(a)(3) of the Act. The Employer's Position and Supportive Evidence The Employer contends that Morris was terminated for "violating 'various regulations and rules' governing safety and care in the use of company vehicles." More specifically, the reasons for discharge included ". . . use of his tractor as a wrecker to push and pull another Company's tractor-trailer unit, leaving his trailer unat- tended, hauling an unauthorized passenger, and failing to chock his unit." It is argued by the Employer that there is no real dis- pute regarding the essential aspects of the events which constituted violations of the Company's safety rules. Morris admitted using his tractor in an effort to push an- other vehicle out of the mud; permitted another driver to ride in the cab of his tractor; and finally pulled the other company's equipment by a chain, thus freeing it from its stuck position in the mud. During this chain of events, Morris left his trailer unattended and unchecked. As a result of such flagrant safety rule violations, Morris was terminated. The Employer further contends that the evidence is in- sufficient to establish that it had knowledge of Morris' interest or activity in the Union but, even so, the con- duct of Morris on this occasion fully justified his dis- charge. Analysis and Conclusions The evidence establishes, and I find, that Morris, on the occasion in question, did in fact use his tractor in an attempt to push another vehicle, and did allow the driver of such other vehicle to ride with him in his tractorcab to obtain a chain to use in pulling the other vehicle out of the mud. I further find that by doing so Morris violat- ed certain rules set forth in the Company's safety and op- erations manual. According to the Employer, Morris, on this occasion which led to his discharge, violated specifically the fol- lowing rules set forth in its safety manual: "General Rules" provide: Any violation or failure to comply with the safety rules and regulations as outlined in this booklet will subject the driver to disciplinary action or dismissal. Specific rules in question provide: 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drivers are not allowed to carry hitchhikers or any unauthorized personnel in a company vehicle at any time. (p. II, par. 8) No driver is allowed to drop a trailer and bobtail a tractor at any time unless given authorization by the proper personnel or in case of an emergency. (p. 15, par. 25) Company equipment must not be used to push or shove any other equipment. (p. 19, par. 57) Notwithstanding Morris' admitted rules infractions on this one occasion which resulted in his discharge, the question here to be resolved is whether or not the Em- ployer was motivated, even partly, by Morris' known ac- tivities in support of the Union. There is a fine line, espe- cially in the Morris situation, to be drawn between an employer welcoming a justifiable reason to eliminate a known union activist and an employer seizing on what apparently is a justifiable reason, but who is actually mo- tivated by unlawful considerations. In reaching my conclusion that the Employer was at least partly unlawfully motivated in discharging Morris, it is necessary to examine the entire history of Morris' employment with the Company as well as the specific in- cident which led to his discharge. At the time of the discharge Morris was the most senior of some approximate 60 city drivers. He had re- ceived an annual safe driving award during the approxi- mately 5-1/2 years as a driver. The record reveals Morris' driving record was subjected to only four obser- vational reports by the safety supervisor, the first occur- ring several years prior to his discharge. The second and third such reports revealed complete conformity with the Company's safety rules and regulations. The fourth, and only negative, report resulted in his discharge. Morris testified in a matter-of-fact and convincing manner, and I credit his testimony that his trailer was chocked on the occasion of the series of alleged infrac- tions on December 16 over the testimony of Supervisors Darby and Clark. Admittedly, his entire actions on this occasion were witnessed by Supervisors Darby and Clark. I credit Morris' testimony that he was aware of the presence of the two supervisors over their testimony that Morris appeared "shocked" when they signaled him to their car parked in the immediate vicinity. I also be- lieve Morris' testimony that he was unaware of violating any safety rules, but find this no excuse for such viola- tions as the rules are printed in booklet form and made available to all drivers. There is no question but that Morris deserved the rep- rimand of the safety supervisors and whatever disciplin- ary measure the Employer customarily and traditionally gave to an employee involved in similar circumstances. To determine whether or not the Employer, in the case of Morris, was consistent in meting out its discipline, in this case, discharge, it is necessary to examine the provi- sions contained in the safety manual itself. An examination of the safety manual reveals only 5 possible infractions of a total of about 76 calling for dis- missal for a violation of any I of the 5 specific rules. These are: (I) Three chargeable accidents within a twelve month period, as in the case of Cotton; (it should be noted that three (3) such accidents will result in dis- missal, while one () accident, depending on sever- ity, could result in dismissal. [Emphasis supplied.] (2) A driver consuming or possessing any form of alcoholic beverage while on company property. (3) A second or third offense of exceeding certain specified speed limits within a twelve month period. (4) Falsification of any part of employment appli- cation. (5) Blocking tachograph. Morris was not guilty of any of the above rules or reg- ulations. The record reveals that drivers guilty of safety rules violations more serious in nature than those for which Morris was discharged were given much less severe discipline. While it is not my function to pass on the harshness or severity of an employer's disciplinary actions, it is neces- sary to reach conclusions concerning whether the Em- ployer, in the case of Morris, was sincerely concerned about Morris' safety rule infractions to the extent of call- ing for discharge, or whether the Employer here was motivated, even partly, by the fact of Morris' known ac- tivities in support of the Union. The Employer argues, in its brief, that the record herein lacks "competent, probative proof that the compa- ny knew of Morris' union sympathies." I have credited Morris' testimony that he was outspoken in favor of the Union to both Robert Cecil and Sidney Probus before they became supervisors. Cecil admitted talking with Morris about the Union before becoming a supervisor. Moreover, Raymond Mackey, an individual still em- ployed as a driver by the Employer at the time of the hearing, testified that when he was employed in the posi- tion of dispatcher, Terminal Manager Dickenson made a remark to him clearly indicating that Dickenson knew about Morris' union activities. Although this remark was made in the context of Mackey being dismissed as dis- patcher (he was immediately transferred at his request to his present position as driver), Mackey testified in a forthright manner and I credit his testimony in this re- spect over Dickenson's denial, although I have credited Dickenson's testimony in regard to other aspects of the case. Based on the above considerations, I believe, and find, that but for Morris' union interest and activity, the Em- ployer would not have meted out its severest discipline of discharge to a driver of long standing with an exem- plary performance record. I find the Employer was moti- vated, at least in part, by the fact of Morris' known sup- port of the Union and, therefore, I find his discharge to be in violation of Section 8(a)(3) of the Act. It is not necessary that union activity be the only reason responsi- ble for Morris' discharge. It is sufficient in finding his discharge to be unlawful that his union activity was a motivating or partial ground for his dismissal. N.L.R.B. v. Lexington Chair Company, 361 F.2d 283, 295 (4th Cir. 1966); Betts Baking Company, Inc. v. N.L.R.B., 380 F.2d 199, 204 (10th Cir. 1967). 142 OVERNITE TRANSPORTATION COMPANY Lewis Wiggington The General Counsel's and the Union's Position and Supportive Evidence First employed as a city driver in January 1977, Wig- gington was discharged on April 19, 1978. He signed a union authorization card on September 26, 1977, at the outset of the Teamster organizational drive among the Employer's employees. Wiggington testified that the day after he had attended a union meeting he received a safety check by Safety Su- pervisor Darby and Supervisor Clark. During the safety check ,Wiggington's card slipped from his logbook in full view of both supervisors. Wiggington testified that Darby remarked ". . . the people that was for the Union was going to have to forget it." A portion of the safety report indicated Wiggington's chauffeur's license had ex- pired but Dickenson later indicated Darby had been mis- taken about this. Sometime around February 1, 1978, Wiggington, feel- ing he was receiving an excessive amount of handloads, proceeded, with the assistance of another person who had access to Personnel Director Clark's office, to check dispatch records in Clark's office for the purpose of com- paring his handload assignments with other employees. The following day Wiggington advised Dispatch Su- pervisor Rhoads that he had checked the records in Clark's office and the records revealed he, Wiggington, was in fact receiving a disproportionate share of hand- loads. Rhoades reported the incident to Clark. Later the same day Clark and Rhoades approached Wiggington, Clark first requesting, then demanding, to know who assisted Wiggington's entry into Clark's office and records. Wiggington refused saying he did not want to get that person fired. Thereafter Wiggington was called to Terminal Manager Dickenson's office. Again Wiggington refused to identify the person who assisted him in gaining entry to Clark's office. Dickenson then told Wiggington to go home and call in the next day, that he wanted time to think over the matter. Wiggington insisted on an immediate decision. Dickenson then told Wiggington to punch his timecard out and leave the premises. Wiggington considered he had perhaps been discharged at that point. That same evening Wiggington had attempted to see Dickenson in person to determine his employment status with the Company. Wiggington was advised that Dick- enson had gone to the company gym. Wiggington went to the gym only to find Dickenson had already gone home. While at the gym Wiggington got into a conversation with several other employees. Wiggington expressed his reasons for wanting to talk to Dickenson. Someone in the group remarked that Dickenson would not listen to him. Wiggington retorted, ". . . Yeah, he will listen, .. . I would either hold him down or whip his ass if I had to, but he was going to listen, that he was going to get it straightened out." The next day Wiggington phoned Dickenson to again ask about his status with the Company. Dickenson told him he had lost a day's pay but to come back to work the next day. Wiggington then told Dickenson he wanted Dickenson to know before he came back that he had been to the union hall to file charges with the Na- tional Labor Relations Board and that he had signed a union card and ". . . was going to be a Union promoter when I come back." Dickenson replied that he did not care if Wiggington signed a union card, just to keep his mouth shut and return to work. The first 2 days after Wiggington returned to work his timecard was not in the timecard rack and he had to go to Dickenson's office on each such occasion. On the first occasion Dickenson merely told him to go back to work and "keep my mouth shut." On the second occasion Dickenson complained to Wiggington that he had not dropped his trailer while parked in the terminal yard. Wiggington explained that the shop supervisor had re- quested that his trailer remain hooked for his conve- nience in working on it the next day. Dickenson told Wiggington to let his supervisor know about such cir- cumstances in the future. A third occasion involved a c.o.d. delivery for which Wiggington failed to collect. Wiggington explained to Dickenson that freight to that particular customer was usually made on a prepaid basis and that he had called the dispatch office before making the delivery. Dicken- son told Wiggington to always collect when freight was marked c.o.d. Wiggington testified that on an occasion in March or April 1978, during a regular delivery run he was accom- panied by Driver-Supervisor Cecil. During the trip Cecil asked Wiggington if he had his union card with him. Wiggington showed Cecil his card. Cecil then told Wig- gington that during a prior union drive some years previ- ously he, Cecil, had been a union promoter along with 8 or 9 other employees. All had been fired but Cecil. Cecil explained to Wiggington that Cecil's sister was Dicken- son's secretary at the time and her intervention with Dickenson is all that saved his job. On April 19, 1978, Dickenson called Wiggington to his office. Supervisors Clark and Cecil were present. Dick- enson told Wiggington that he had just heard Wigging- ton had threatened to whip him. Wiggington acknowl- edged his remarks to other employees at the gym back in February, but explained he was upset over the prospect of losing his job; did not really mean what he said literal- ly; and then apologized to Dickenson for his remarks. Dickenson called in employees Taylor and Thacker to confirm Wiggington's earlier remarks. Both did so. Taylor was the company observer at the election. Both were known to be antiunion. Dickenson then told Wig- gington he had not been able to eat or sleep since he heard about the threat and it was "worrying him to death." Dickenson then said he hated to do it but he had to terminate Wiggington. The General Counsel and the Union contend that the Employer's asserted reason for Wiggington's discharge, i.e., a threat of physical harm to Terminal Manager Dickenson, is mere pretext, and that the real reason for his discharge was his known union interest and/or activ- ity, in violation of Section 8(a)(3) of the Act. 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer's Position and Supportive Evidence The Employer contends that Wiggington was dis- charged solely "for addressing to a group of other em- ployees expressions of his intent to inflict physical abuse upon the Company's terminal manager." In its brief, the Employer describes the episode of Wiggington and another "person" gaining entry to Per- sonnel Director Clark's office and examining certain re- cords of the Company. The Employer argues that Wig- gington ". . . knew he had no business in that office, but aggravated the situation by claiming further that another employee at the terminal who had access to the office unlocked the door for him, "and further that Wiggington refused to identify the other "person" up to and includ- ing the hearing. Admittedly this incident had nothing to do with Wiggington's discharge. The Employer argues that Wiggington's remarks to other employees at the company gym where he had sought Dickenson (after Dickenson had sent him home over the office entry incident) were made "in very blunt and coarse terms, about how he was there to whip Tom Dickenson." Dickenson claims not to have learned about the threat until sometime in April. On learning about Wiggington's threat, Dickenson called Wiggington to his office and in the presence of Supervisors Clark and Cecil along with employees Taylor and Thacker, the latter two having heard Wig- gington's remarks at the gym in February. When Dick- enson confronted Wiggington about the threat Wigging- ton did not deny making the remarks attributed to him by Taylor and Thacker, but, according to the Employer "rather sought to excuse or obtain pardon for his con- duct." Dickenson explained to Wiggington why he would not tolerate such conduct and dismissed him. The Employer contends that Wiggington's discharge is consistent with its actions with respect to other employ- ees under similar circumstances and in any event that Wiggington was discharged for reasons unrelated to his union activities and therefore not in violation of the Act. Analysis and Conclusions Wiggington substantially admitted, and I find, that he made the remarks attributed to him by Taylor and Thacker. The question however to be resolved herein is whether Wiggington was discharged because of such re- marks or because the Employer became aware of Wig- gington's announced intention to promote the interests of the Union. The evidence establishes that immediately after Wig- gington announced to Dickenson his intention of being a "promoter" in the union movement, Dickenson called him into his office on at least three separate occasions over easily excusable offenses. Apart from these occasions of excusable mihor of- fenses, Dickenson appears to have had no reason to com- plain about Wiggington's work performance. It was not until sometime in April, the exact date being unclear in the record, that Dickenson received the message that Wiggington had made the threatening remarks back in February at the company gym in the presence of a group of fellow employees. Unfortunately for Wiggington, the remarks were over- heard by employees Taylor and Thacker. Taylor was company observer at the representation election and both were known to be antiunion. Even so, Taylor testi- fied that Wigginton appeared to be upset at the time he made the remark and seemed to think he might have lost his job. On learning about Wiggington's earlier remarks, Dick- enson called him to his office and confronted him in the presence of employees Taylor and Thacker as well as Supervisors Clark and Cecil. Wiggington did not deny having made the remark attributed to him by Taylor and Thacker but tried to explain to Dickenson that he was uspet at the time over his suspension and doubt as to whether he still had a job with the Company. He then apologized to Dickenson for his conduct but to no avail. Dickenson terminated his employment during the con- frontation. I find the Employer's asserted reason for discharging Wiggington untenable. Dickenson's actions in respect to Wiggington after his February conversation in which Wiggington stated his intention to promote the Union's cause are indicative of his effort to find an excuse to rid the Company of an active union adherent. I find equally untenable, Dickenson's claim to have lost sleep or to have been "worried to death" over Wig- gington's remark to employees 2 months earlier to the effect that he intended to whip Dickenson. I find Dick- enson's behavior towards Wiggington during the interim between the February conversation and the date of dis- charge as well as Dickenson's demeanor while testifying to belie any such contention. In view of the above considerations, it is my opinion, and finding, that the Employer gave a pretextual reason for discharging Wiggington which permits the logical in- ference, which I make, that the true reason for Wigging- ton's discharge was his overt announcement to Dicken- son of his intention to promote the interest of the Union. Accordingly, I find Wiggington's discharge to be in vio- lation of Section 8(a)(3) of the Act.' Charles Walker The General Counsel's and the Union's Position and Supportive Evidence Walker was employed by the Employer on January 10, 1978, and dicharged June 28, 1978. Walker was inter- viewed by both Personnel Director Clark and Terminal Manager Dickenson before being hired as a city truck- driver. It is undisputed that Walker was referred to Clark by Clark's sister with whom Walker had been dating. Clark agreed to the interview but testified it was the first time he had met Walker. Before completing the employment application Clark, according to Walker, asked if he had been connected with any unions. Walker replied that he had worked for Dealers Transport, a local car hauling I See Holly Manor Nursing Home, 235 NLRB 426, 447 (1978); Joseph Antell Inc. v. N.L.R.B., 358 F.2d 880, 883 (Ist Cir. 1966); Sterling Alu- minum Company, a Division of Federal Mogul v. N.LR.B., 391 F.2d 713, 723 (8th Cir. 1968). 144 OVERNITE TRANSPORTATION COMPANY company in Louisville, where the employees were repre- sented by the United Auto Workers. He testified that he also told Clark he had been involved in an accident while working for Dealers Transport which had resulted in his termination from that company. Walker told Clark he thought that accident had occurred more than 2 years previously. Clark then told Walker, according to Walk- er's testimony, "Well, don't put that Dealers (employ- ment) down because it has been a two year period." Walker omitted the history of his employment with Dealers Transport and also the history of certain prior accidents. Later, in his interview with Dickenson he ca- sually mentioned a brief history of "hauling cars." Thereafter, Clark took Walker to see Terminal Man- ager Dickenson to finalize the employment arrangement. Walker testified that on the way to Dickenson's office Clark turned to him and cautioned Walker not to say anything to Dickenson about the application which might get him, Clark, in trouble. Walker testified that Clark told him, "Now, I told Tom (Dickenson) that you are a very good friend of mine and I know you and I want you to back me up on it. Don't get me into an trouble." During the interview with Dickenson, in Clark's pres- ence, Dickenson, according to Walker, also asked if Walker had been connected with any unions, noticing on the application that Walker had been previously em- ployed at Ford Motor Company (organized by UAW). Walker continued that Dickenson remarked "Well, that has been some time ago and we really don't get along with Ford Motor Company anyway. Since you were recommended by Alvie (Clark), that's good enough for me." Walker was then hired as a city driver, attended the Company's driver training school, and worked at the Louisville terminal until his discharge. Walker testified that on an occasion while riding with Supervisor Robert Cecil in late January or early Febru- ary 1978, Cecil asked him what he thought about unions and if he had been asked to sign a union card. Walker replied that ". . . some black guy had approached (him) on signing a card shortly after (he) went to work there." Cecil then asked Walker if he could identify the man. When they arrived back at the terminal Cecil pointed to a certain person on the dock and asked if he was the man. Walker replied it was not. Cecil then asked Walker to let him know ". . . if (he) ever heard anything about unions . . ." because (the company) needed men on the company's side .... "Later on Walker determined the person who had earlier approached him about signing a union card was David Allen. Still later, Walker had oc- casion to ask Cecil why Allen had been discharged and Cecil replied ". .. he was a troublemaker and had a bad attitude and they just got rid of him." About mid-February 1978, Walker went to Clark's office to see about a raise he understood he had been promised. During this conversation Clark asked about the general attitude of employees toward the Union. Walker assumed this included him and he replied "Well, Alvie, I kind of play both ends on that." It is undisputed that Walker made "an unusually good employee" and further that about mid-April Clark called Walker into his office and asked if he was interested in a supervisory job, "night foreman, or something like that." Walker declined the offer saying he was happy as a driver. The day before his discharge on June 28 Walker com- plained to Dispatch Supervisor Rhoades about his feeling that he was getting an excessive amount of "hand- loads."2 Handling freight.by hand is obviously less desir- able than by machine, in this case by tow-motor or fork- lift device. Rhoades immediately reported this "sudden change of attitude" by Walker to Dickenson. Dickenson admitted that when Rhoades informed him of Walker's complaint on June 27, the first thing he did was to check Walker's employment application. Dickenson testified: Q. What's the first thing you did after you heard about that complaint? A. Checked his application because it was still a vague description of what he had done prior to his employment with Overnite. Dickenson testified that in discussing the matter with Clark they recalled Walker having mentioned in his preemployment interview that for a short period of time in the past he had done some hauling of cars. Dickenson and Clark immediately concluded that since Dealers Transport was the only car hauling company in Louis- ville, Walker must have worked for that company. When asked why he did not pursue the lead about Walker's car hauling employment before hiring him, Dickenson replied he ". . . was in a hurry and I needed a driver and I didn't talk to him that much about it." Asked if Woods said the Union had anything to do with Walker being the "worst" employee, Dickenson re- plied that Woods said he tried to get rid of Walker a number of times ". . . but the Union was involved." Dickenson further testified that he knew nothing about Walker's union sympathy, "Not before my conversation with Mr. Woods." The General Counsel and the Union contend the Em- ployer's assertion that Walker was discharged because of an ommission of former employment on his employment application was mere pretext and practically admittedly Walker was discharged because of his suspected renewed interest in the Union, in violation of Section 8(a)(3) of the Act. The Employer's Position and Supportive Evidence The Employer contends that Walker's omission of prior employment with Dealers Transport from his em- ployment application was a deliberate and calculated misrepresentation of fact in order to obtain employment with Overnite. Furthermore, that Walker admitted as much in his testimony on cross-examination. It is further urged by the Employer that Walker's testi- mony describing a preemployment conversation with Su- pervisor Clark in which Walker claims to have told Clark about his Dealers Transport employment and 2 "Handload" refers to the handling of freight by hand rather than by machine (tow-motor or forklift) which latter are sometimes called "skid- loads " - 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clark's advice to omit this information, is utterly false and concocted "solely for use at the hearing in these proceedings." Further the Employer points to certain discrepancies between Walker's prehearing affidavit and his testimony at the hearing. Also noted, is Walker's "evasive testimo- ny and shifting positions" regarding the number of motor vehicle violations he had in the past and his reasons for not listing them on his application. The Employer argues, in its brief, that it knew at the time Walker was hired he had been a member of the United Auto Workers at the Ford plant in Louisville. However, apart from this, the Employer contends there was no reason to believe Walker was a supporter of the Teamster's organizing drive at overnite. Although admittedly "an unusually good employee," Walker's complaint, the day before his discharge, about excessive handloads, represented a "sudden, pronounced and (to Dickenson and Rhoades' at least) a very disturb- ing change in attitude." Finally, the Employer argues that even assuming, as the General Counsel and the Union contend, Walker's complaint about getting excessive handloads raised in Dickenson's mind a suspicion of Walker's involvement with the Union, this fact would not render Walker's dis- charge unlawful; that the company policy mandated Dickenson to discharge Walker for concealing and mis- representing significant information from his employment application, information that related to the safety of op- eration of the Employer's equipment. Accordingly, Walker's discharge, the Employer asserts, cannot be found to have been violative of the Act." Analysis and Conclusions The testimony of Walker and Clark regarding the preemployment interview is mutually contradictory. The resolution of the relative credibility of each witness in this affair is made more difficult because each witness ap- peared from time to time in giving their testimony to be less than candid and forthright. While such resolution is difficult, but all the same desirable, it may not be neces- sary at all in determining the issues presented herein. The undisputed fact, even by Walker's own admission, remains, that he deliberately falsified his employment ap- plication by omitting a history of prior employment with Dealers Transport from which company he had been dis- charged because of his accident record. Even if Clark, according to Walker's testimony, entered into the con- spiracy to falsify Walker's application, it hardly excuses Walker's conduct or lessens responsibility for his deliber- ate and conscious acts. Nevertheless, the only real question to be resolved in this proceeding is whether Walker was discharged be- cause he falsified his employment application or if the Employer was motivated, even partly, by its newly dis- covered knowledge, or even suspicion, of Walker's ap- parent reawakened interest in the Union. The evidence clearly establishes, by the Employer's own witnesses, that Walker had been an above average employee throughout his employment with the Company until the very day before his discharge. The evidence also establishes that on learning of Walker's complaint about handloads, clearly a condition of employment, Terminal Manager Dickenson and Dispatch Supervisor Rhoades became disturbed about Walker's "change in at- titude." Incongruously they immediately undertook an investigation into Walker's employment application. Al- though both were extensively questioned on the witness stand about their reasons for checking the employment application and just how they anticipated the application to assist in resolving Walker's complaint about hand- loads, neither could offer a logical response. Dickenson attempted to explain his decision to check the employment application by testifying that it was prompted by recalling a remark made by Walker during his preemployment interview that he had in the past en- gaged in some "hauling of cars." Dickenson admitted however there was nothing on the application about "hauling of cars." Nevertheless, he concluded that from Walker's remark he must have worked at Dealers Trans- port. Although not controlling in resolving the issue of whether or not Walker's discharge was in violation of the Act, the foregoing review of undenied facts lends a great deal of credence to Walker's testimony that he did, in fact, mention his Dealers Transport employment to Clark at the preemployment interview. Dickenson's continued investigation into Walker's pos- sible employment at Dealers Transport led to conversa- tions with Dealers Terminal Manager Woods, from whom Dickenson learned a great deal. As noted above, Woods told Dickenson that Walker was the "worst" em- ployee he ever had. Dickenson admitted Walker's union connection was mentioned and that he then and there de- cided to discharge Walker. Dickenson further admitted Walker's complaint about handloads represented to him a disturbing change of Walker's attitude and that it was this fact alone that triggered his investigation into Walk- er's previous employment history. Although Dickenson must have known of Walker's union background from his employment at Ford Motor Company, as shown on the employment application, he testified it was not until Rhoades reported Walker's com- plaint about handloads the day before Walker's discharge that his suspicions were aroused about Walker's possible sympathy with the Teamsters' organizing efforts. The representation election was only 4 to 5 weeks away. Dickenson decided to remove Walker from the scene. Based on all the above considerations, it is my opinion, and finding, that the Employer's assertion Walker was discharged for falsifying his employment application is entirely pretextual and that instead the Employer, in dis- charging Walker, an exemplary employee, was motivated in substantial part because it suspected Walker's apparent interest and/or activity in the Union's organizational ef- forts among the Employer's employees. Accordingly, I find the evidence of record supports the allegations of the complaint with respect to Walker, and that he was discharged in violation of Section 8(a)(3) of the Act. 146 OVERNITE TRANSPORTATION COMPANY The Denial of Vacation Pay to Terry Motes Motes worked as a road driver at the Macon, Georgia, terminal of the Employer for about 7 years until his res- ignation on June 15, 1978. On June 15, 1978, Motes was being processed for ter- mination. The reason is not in issue. Terminal Manager Davis testified, without contradiction, that he asked Motes to resign and Motes expressed willingness in order not to be discharged. Motes being instructed to take a 3- day vacation he was due. To bring in his written resigna- tion on June 22; Motes being instructed to take a 3-day vacation he was due. When Motes returned to the termi- nal on June 22 he told Davis he had decided not to resign whereupon Davis told Motes he would prepare his termination papers, and about an hour or so later fur- nished Motes a separation notice containing reasons for the discharge. Motes then left the terminal. During that same afternoon Motes phoned Davis in- forming him he had contacted the Labor Board where an agent told him he was immediately due all pay to date as well as vacation pay, and that he intended to file a charge. Davis acknowledged he had earlier told Motes to come by the office the Thursday of the week follow- ing his discharge, apparently a regular pay day, to pick up the vacation check. During the conversation with Motes, Davis testified at the hearing, that when Motes said, ". . . the State told him that he was entitled to his pay the minute he was dismissed," he responded by saying to Motes ". .. he was a damn liar." At this point Davis' prehearing affida- vit was introduced into the record. In his affidavit Davis stated that after he told Motes he was a "damn liar," he .... "also told him he'd just screwed himself out of three days' pay with Overnite and he'd never get another dime from Overnite." Davis stated further that he notified Overnite's payroll depart- ment and "told them to forget about the 3-days' vacation pay." Although Davis was later overruled by higher man- agement, and Motes subsequently received his vacation pay, it is clear that there was some delay in making the payment resulting from Davis' conduct. I find this brief interval of withholding Motes' vacation pay to constitute a violation of Section 8(a)(4) of the Act." I further find that Davis' threat to Motes not to pay him his earned vacation benefits because Motes expressed his intention to file an unfair labor practice charge with the Board to constitute a violation of Section 8(a)(l) of the Act. David Allen The General Counsel's and the Union's Position and Supportive Evidence Employed in late October 1977, Allen was discharged February 10, 1978. He signed a union authorization card for Teamsters Local 89 on December 27, 1977. Allen testified that prior to being hired and during his employment interview with Personnel Director Gayle Dean and Dean's prospective successor, Alvie Clark, that he was asked what he had done with his union card, apparently referring to his union membership in another Teamster local while working for Pepsi-Cola Bottling Company in Louisville. Allen replied that he ". . . had tore up (his) union card." He testified that the supervi- sors asked him how he felt about the Union then trying to organize the employees at the Employer's Louisville terminal. Allen replied ". . . there were good unions and bad unions . . . that he had worked for union and non- union companies and that it didn't make any difference to (him)." He was hired the same day as a dock or warehouse worker. On February 7, 1978, 2 days before his discharge, Allen, according to his testimony, had a conversation with Safety Supervisor Robert Darby who approached him on the dock and said "Dave, what is this I hear about your passing out Union literature?" Allen feigned surprise and replied that whenever an employee tried to talk to him about the Union he ". .. let it go in one ear and out the other." On February 8, 1978, Allen did not work and did not call in to report his intended absence from work. The next day, Terminal Manager Dickenson called Allen to his office and, according to Allen, told him whenever he had to take off from work he ". . . was supposed to inform the company about being off from work .. ." He was then told to go back to work. When Allen reported to work the next day, February 9, his supervisor, Sidney Probus, reprimanded him for being late. There was a short argument but Allen was in- structed to return to his regular duties. About 15 minutes later Probus sent Allen to Dickenson's office. Allen testi- fied that Dickenson remarked to him that he ". . was glad he didn't have anybody else like me because he would have to close the place up." Allen asked why, ". .. Because a man stands up for his rights he has to be in the wrong?" Dickenson replied, according to Allen, that "... (he) was determined to do what (he) wanted to do and not what (he) was instructed to do by (his) su- pervisors. .... further that Dickenson didn't want to see him in his office again and that he ". . . was going back to work or else he was going to send me home . ." Allen once again returned to work. Shortly thereafter Dickenson approached Allen and in- structed him to punch his timecard. Allen then asked for his paycheck and Dickenson told him to first punch his timecard and then he would receive his paycheck. After punching his timecard, Allen became engaged in a con- versation with several employees on the Company prem- ises. As instructed by Dickenson, Operations Manager McDaniel escorted Allen from the company premises. The General Counsel and the Union contend that the evidence establishes that Allen was discharged rather than that he voluntarily quit as urged by the Employer; and that he was discharged because of his interest and activity in the Union, in violation of the Act. The Employer's Position and Supportive Evidence The Employer contends Allen was separated from its employment payroll on February 10, 1978, because the day before on February 9 ". . . Allen voluntarily quit his job without prior notice." 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer argues, in its brief, that "Allen was ca- pable of performing good work, and at times clearly did so, there were other times when his performance on the job was quite unsatisfactory." The dissatisfaction with Allen's work appears to have begun during the last 6 weeks or so of his employment under supervision of Su- pervisor Sidney Probus. Terminal Manager Dickenson and Operations Manager McDaniel both confirm several occasions of calling Allen to Dickenson's office over Probus' complaints about his work performance, absence without calling in, and tardiness on one occasion. On the last occasion Allen was called to Dickenson's office on February 9, and at the end of the conference Dickenson told Allen he could either go back to work, ". .. and straighten it out, or he could quit." According to Dickenson, ". . . Allen, stood up and rolled his eyes at me, and he-said 'I believe I'll just quit." Allen then walked out of the office. Dickenson testified he also started to leave his office when he met Operations Manager McDaniel coming in his direction. He told McDaniel that Allen had just quit and instructed McDaniel to see that Allen clocked out, got his belongings, and left the premises. It is company policy not to allow an employee who has quit or been discharged to remain on the company premises for fear of possible disruption of the work of other employees. The Employer argues that the credible evidence of record establishes beyond question that Allen resigned his employment rather than being discharged as contend- ed by the General Counsel and the Union. Allen ad- mitted, so argues the Employer, that Dickenson told him, during his conference with Terminal Manager Dickenson on February 9 concerning Probus' complaints about his work performance, ". . . Either go on back to work and do your job or go home." It is further contended by the Employer that Allen's testimony that Dickenson followed him to the dock office where he, Allen, had returned to resume work, is patently untenable. Both McDaniel and Probus confirm Dickenson's testimony that he did not leave his office and follow Allen, and further that they were the only su- pervisors who spoke to Allen from the time he left Dick- enson's office until he left the company's premises. Moreover, the Employer points out that as a result of Allen's claim for unemployment insurance, the Kentucky Department of Human Resources advised him that his claim had been denied because his termination from Overnite had resulted from his "voluntary quitting" his employment. Further the Employer notes that Allen, when he received such notice, just "set it aside" and did not "inquire anymore about it." Thus, the Employer con- tends the evidence amply demonstrates that Allen was not discharged but instead voluntarily quit his employ- ment with the Employer. Analysis and Conclusions From the conflicting testimony it is difficult to deter- mine with a desirable degree of accuracy whether Allen was discharged as contended by the General Counsel and the Union, or voluntarily quit his employment as urged by the Employer. Although desirable that a choice between the conflict- ing positions be made, it seems to me that the primary issue or question of whether or not Allen was discrimi- nated against in violation of Section 8(a)(3) of the Act is not to be answered by a resolution of the conflicting the- ories concerning his termination. In other words, if it is shown that Allen was in fact discharged it is still encum- bent on the General Counsel to establish the discharge to be for unlawful reasons. For reasons stated below, I believe, and find, that Allen did in fact quit his employment, but even if he had instead been discharged, it is my opinion, and finding, that such action did not result from Allen's union interest or activity, and, thus would not have been in violation of the Act. Allen's testimony concerning his final conference with Dickenson on February 9 is in direct conflict with the mutually corroborative testimony of Dickenson, McDan- iel, and Probus. Allen testified on direct examination that after the conference he left Dickenson's office and re- turned to the dock office; that Dickenson, after telling Allen to go back to work or, according to Allen, "... else he was going to send me home," immediately fol- lowed him to the dock office, handed Allen his timecard and told him to punch it. Allen testified he asked for his paycheck and that Dickenson told him to punch his ti- mecard and ". . . then (he) would get (his) paycheck." Allen then punched his timecard, ". . . got (his) pay- check" and a few minutes later was told by perations Manager McDaniel to leave the premises. An analysis of Allen's testimony regarding the events in question indicates a very improbable series of actions by Dickenson besides being in direct contradiction to the testimony of the three supervisors involved. The testimo- ny indicates Dickenson followed Allen from his office to the dock office almost immediately, with Allen's time- card in hand. Allen testified. " . . I had no sooner than walked into the (dock) office when he came in behind me and handed me my timecard and said 'Punch it." In reply to the question "And he was right behind you with your card?" Allen testified, "When I walked through the door he was right behind me." However when asked where his timecard was kept, he testified, "In the time- card slot in the driver's room on the other side of the office, the dock office." Besides the physical encumbrances Dickenson would have encountered, if Allen's testimony is accurate, there are logical encumbrances as well to overcome. If Dick- enson had intended to discharge Allen it seems to me only logical that he would have done so at the confer- ence in his own office with Allen. There is no logical ex- planation why he would have waited and then followed Allen to the dock office to discharge him. In view of the improbable and illogical sequence of events described in the testimony of Allen, I credit Dick- enson's testimony that he did not discharge Allen on February 9 and that instead Allen voluntarily quit his employment. It is at least noteworthy that after Allen was notified of the rejection of his claim for unemployn- ent compensation on the basis of his having voluntarily quit his employment at Overnite he made no attempt to 148 OVERNITE TRANSPORTATION COMPANY appeal such decision although fully aware of his rights to do so. Allen testified he ". . . could either make an appeal in writing or appear before the Board." ".. Which I didn't do neither one." As stated above, even if Allen was in fact discharged on February 9, the evidence is insufficient to establish he was discharged unlawfully because of his union interest or activity. Allen had been summoned to Terminal Man- ager Dickenson's office on February 9 for the third time in about a 6-week period over complaints by his immedi- ate supervisor about his work performance. During his entire employment with the Company, even Allen's own testimony about conversations with supervisors about the Union reveal nothing to indicate Allen was interested or active on behalf of the Union. Indeed the contrary is true. On each occasion of such conversations Allen ex- pressed his disinterest in the Union. When, for example, Supervisor Clark asked what he had done with his union card, presumably referring to Allen's membership while employed elsewhere, Allen replied he had destroyed the card. When later asked by Clark how he felt about the Union he replied there were good unions and bad unions, that he had worked for both union and nonunion em- ployers and that in either case it made no difference to him. With respect to his conversation with Safety Director Darby about 2 days before his discharge in which Darby asked him about distributing union literature, Allen re- plied "that's news to me," that whenever approached about the Union by other employees he let such talk, "go in one ear and out the other." Based on the above considerations it is my opinion, and finding, that the evidence herein is insufficient to support, the complaint allegation that Allen was dis- charged because of his interest and/or activity in the Union in violation of Section 8(a)(3) of the Act. Accord- ingly, I recommend such complaint allegation be dis- missed. Alton Cotton General Counsel's and Union's Position and Supportive Evidence Cotton began working as a city driver for the Employ- er in August 1976. He was one of about eight employees employed by Overnite when it bought out Southern Fordwarding Company. Cotton was a member of Team- sters Local Union No. 89 at that time. He signed a Teamsters "pledge" card on October 26, 1977. He was discharged by Overnite on August 28, 1978. The General Counsel and the Union produced evi- dence revealing that Cotton received a "Go Teamster" T-Shirt at the union hall in July 1978. Cotton testified that he wore the shirt to work the day after the union meeting, and while at work Supervisor Cecil approached him and remarked "I see they won you over." Cotton replied that the T-shirt was free to which statement Cecil remarked that Cotton would be surprised how much it would cost him, that Cotton had waited kind of late in life to start working from the extra board.3 On February 23, July 31 and August 8, 1978, Cotton was involved in 3 separate accidents with his equipment. All three accidents were classified by the Employer as "preventable" or "chargeable," indicating the driver was at fault. All three accidents resulted from Cotton striking a fixed object with his equipment; and all three occurred within a 12-month period. After the third accident Cotton was discharged. The General Counsel and the Union contend that the Employer did not adhere to its established policy in Cot- ton's situation in that he was never put on notice that the second accident had been classified as "preventable" or "chargeable,"and, therefore, Cotton was denied the usual opportunity to appeal this decision by management. That in view of the Employer's overt hostility to the Union, the fact that Cotton made known to the Emplover his support for the Union by wearing a Teamsters T-shirt to work shortly before the representation election in early August 1978; that the inference from these circumstances should be drawn that Cotton was discharged because of his union support, in violation of Section 8(a)(3) of the Act. The Employer's Position and Supportive Evidence The Employer does not deny being aware that Cotton wore a Teamsters T-shirt to work on one or more occa- sions shortly before the representation election. The Em- ployer argues that Cotton's discharge resulted solely from the undisputed fact Cotton had three preventable accidents in a 12-month period. Further, the Employer contends there is no real con- troversy about the fact that Cotton's accidents were pre- ventable in that on each such occasion Cotton's equip- ment struck a fixed object. As to the General Counsel's and the Union's position that Cotton was denied his right to appeal management's coding of such accidents as preventable, the Employer argues that Cotton was well informed of such rights, es- pecially since his first accident in February when he was given a letter of explanation from the Company, regard- ing his appeal rights. Further, that Cotton made no at- tempt to make such an appeal on the first occasion or as a matter of fact on any of the three accidents; and still further that Cotton, a driver of some experience, was ad- mittedly aware of the Company's method of classifying accidents as well as the Company's rule of automatic dis- charge for three preventable accidents within a 12-month period. Analysis and Conclusions Most of the testimony of record regarding Cotton's discharge is undisputed, with minor exceptions as noted. I credit Cotton's testimony, corroborated by Brown, over Cecil's denial, that Cecil made the remarks attribut- ed to him and further that such remarks constitute a 3 Refers to an out-of-work list of employee-members posted at the union hall from which such members obtain work from various employ- ers from time to time. 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat of reprisal in violation of Section 8(a)(1) of the Act. Nevertheless, it is undisputed that Cotton was in- volved in three accidents within a 12-month period; that the safety department at the Employer's Richmond, Vir- ginia, headquarters classified all three accidents as "pre- ventable"; that Cotton had been advised in writing after his first accident of his appeal rights, that he failed to do so; and that he did not appeal any of the three classifica- tions made by the Richmond office. The company rule regarding accidents is set forth in the Employer's Safety and Operating Rules and Regula- tions on page 12, paragraph 2, as follows: Three chargeable accidents in any twelve month period will result in the driver being dismissed. Cotton testified he was aware of the rule although he denied reading it in the rule book. Also, as the Employer points out in its brief, it is the safety department in Rich- mond, and not the various terminal managers, which maintains a running account of the numbers, types, and dates of all accidents system-wide, and classifies or codes such accidents as "preventable" or otherwise. The safety department has consistently coded acci- dents involving a company vehicle striking a fixed object as "preventable." Likewise, there is no evidence in this record to show that the Employer has ever failed to dis- miss an employee involved in three preventable accidents within a 12-month period, nor any evidence that the Em- ployer took any inconsistent action in Cotton's case. Moreover, the evidence indicates that safety department supervision in Richmond was unaware of Cotton's inter- est or activity in the Union. Based on the above considerations, I find the evidence herein insufficient to support the complaint allegation that Cotton was discharged because of his interest and/ or activity in the Union in violation of Section 8(a)(3) of the Act and therefore recommend this portion of the Complaint be dismissed. Ronnie Brown General Counsel's and Union's Position and Supportive Evidence Employed as a city driver in October 1976, Brown was discharged August 31, 1978. Brown testified that he signed a union authorization card in early October, 19 about the time the union cam- paign began; attended a union meeting at the home of employee Russell Hester, together with employees Die- trich and Enix and two Union representatives; attended a second union meeting at the Teamsters Hall in Louis- ville, Kentucky, sometime in July 1978 where he, among others, received 3 or 4 "Go-Teamster" T-shirts. He testi- fied he thereafter wore the T-shirt to work "almost every day." A day or so after the July union meeting Supervisor Cecil, according to Brown, approached him and observ- ing the Teamsters T-shirt said, "They won you over last night, didn't they?" From the factual circumstances, the General Counsel and the Union contend that the Employer discharged Brown because of his union interest and activity and that the reasons asserted for the discharge by the Employer, i.e., Brown's "unsatisfactory . . . attitude regarding his attendance and obligation to report in case of absence in accordance with company policy" is entirely pretextual. The General Counsel and the Union argue that the Employer's "original" reasons for discharge, "absentee- ism and Brown's job at the 'Den,"4 must be rejected be- cause several other employees were absent more than Brown; that the only reason for discharge advanced by Terminal Manager Dickenson in his pretrial affidavit "was running a bar when he was supposed to be work- ing for us" does not stand scrutiny as the Employer has no rule limiting outside business interests or employment; and that the Employer, through its supervisors who ob- served Brown at the Den, attempted to "build a case" against an identified union adherent. The General Coun- sel further argues that Brown was not reprimanded or put on notice that his job was in jeorpardy as were other employees who had been disciplined or discharged. The Employer's Position and Supportive Evidence The Employer contends Brown was discharged be- cause of his unsatisfactory attitude "regarding his atten- dance and obligation to report in case of absence in ac- cordance with company policy." The Company rule book provides: No driver or employee will allow other persons to call in for him when he desires to be relieved of duty because of sickness, business matters, etc., unless physically unable to reach a telephone. The evidence of record reveals that Brown was never physically unable to call in and explain his reasons for being absent. The Employer argues that according to Brown's own testimony he was reprimanded for these very infractions of the rule in May or June 1978, after being cautioned on other occasions as far back as De- cember 1977. Brown admitted further that on July 14, 1978, he was again reprimanded by Dickenson for the same infraction of the rule. When interrogated about in- fractions after July 14, Brown, after some hesitation, ad- mitted there had been "a few" such occasions. The Em- ployer notes the following testimony of Brown. Q. And your wife continued to call in each time that you were out; is that your testimony? A. No, I didn't say each time. I said she called before and after, (July 14) but there was never any- thing said about it. .Before and after what? A. My conversation with Mr. Dickenson in his office. Q. In other words, after July 14 your wife con- tinued to call in for you? A. Probably a couple of times, yes. ' A local bar in Brown's hometown of Shelbyville, Kentucky, about 25 miles from Louisville. 150 OVERNITE TRANSPORTATION COMPANY Q. And you were always able to use the tele- phone after July 14, were you not? A. I would say so, yes. Q. There was never a time when you weren't able to get around to go to the Den and do book work; is that right? A. Right. Q. And sometimes neither one of you would call? A. Most of the time one or the other of us would call. Analysis and Conclusions Although the Employer became aware of Brown's union interest from the fact of his wearing a Teamsters T-shirt to work on several occasions, his remaining activ- ties were rather minimal. Brown signed a union authori- zation card back in 1977, when the Union first com- menced its campaign, attended a union meeting in Janu- ary 1978, and a second meeting in July 1978. None of these activities were known by the Employer. The Employer asserts the reason for Brown's dis- charge was absenteeism and failure to report such ab- sences personally as he had repeatedly been instructed and required to do according to written company rules. The General Counsel and the Union attack the Em- ployer's asserted reasons for discharge on several grounds but emphasize "shifting and additional reasons;" disparate treatment from other employees with similar or worse absentee records; and failure to give notice to Brown as it did to several other employees. In regard to the contention that the Employer gives "shifting and additional reasons" for the discharge, I find it to be without merit. It is true that in answer to exhaus- tive interrogation on both direct and cross-examination, Terminal Manager Dickenson expressed as part of his reason for the discharge Brown's newly found interest in an outside business enterprise, i.e., the "Den." However, contrary to the General Counsel's and the Union's posi- tion, I find this testimony is directly related to the assert- ed reason for discharge, that is, absenteeism and failure to report properly. Brown's outside business interest merely provided an additional reason, besides his various illnesses, for what the Employer already considered ex- cessive absenteeism. Also I find without merit the fact that Brown was not given sufficient notice that his job was in jeopardy. Brown admitted that as early as May or June 1978, before he wore the Teamster T-shirt, and before he became active in the outside enterprise, that Dickenson reprimanded him for having his wife phone in to notify the Company of his absence due to illness. Moreover, the evidence reveals that Brown had been cautioned about such an infraction of the reporting rule as early as De- cember 1977. Again on July 14, 1978, Dickenson again reprimanded Brown for not calling in sick, personally. This time a memorandum was placed in Brown's personnel file. Again, on August 31 Brown once again did not phone in sick personally and this time Dickenson terminated his employment. A day or so beforehand Dickenson had confirmed rumors that Brown was engaged in outside business interests and this fact indeed, according to Dick- enson, convinced him that Brown was at certain times working at his own enterprise when he reported in sick to Overnite. while the General Counsel's and the Union's argument that Brown was able to perform light duty at his own business while unable to perform heavy duty at the terminal might be convincing in a different context, such as whether or not just cause existed for the dis- charge, the question here is whether or not the General Counsel has produced sufficient evidence to support the complaint allegation of unlawful discharge. While there may have been some disparity in disciplin- ary measures taken against various employees, the evi- dence of record does not establish such disparity was in- tentionally applied because of any employee's interest or activity in the Union. Also the circumstances involved in such cases where disparity existed were not described by any testimony of record. Nor does the evidence show any abuse of managerial discretion which violated the statutory rights of employees. Brown was repeatedly absent from work and repeated- ly either failed to report his absence or had someone else to phone supervision on his behalf-a clear violation of the company rule concerning reporting personally an in- tention to be off work sick or any other reason. His own testimony, as noted above, reveals that he continued to disregard this company rule and, further, that even after several reprimands Brown continued to disregard the rule. Based on the above considerations I find that Brown's discharge resulted from reasons asserted by the Employ- er and was unrelated to his union interest or activity. Accordingly, I recommend this portion of the complaint be dismissed. David Enix The General Counsel's and the Union's Position and Supportive Evidence Employed in June 1977 as a road driver, Enix became a city driver in July 1977 and was discharged about 4 months later on November 1, 1977. The union campaign started about October 1, 1977 and Enix, on or about October 8 attended a union meeting with a small group of drivers at the home of employee Russell Hester. He signed a union card at this meeting, and later distributed about 20 cards to other employees. Although there is no evidence that the Employer was aware of any of these activities, Enix, on one or more occasions, spoke to another employee at the Louisville terminal, Jerry Probus, in which Enix spoke about the Union in favorable terms. According to Enix, Probus reacted negatively to Enix's remarks in favor of the Union. Jerry Probus is the nephew of Supervisor Sidney Probus who worked at the same terminal with Enix. It was Jerry Probus' statement to the Employer that he witnessed Enix punch another employee's timecard on October 31 that resulted in Enix's discharge on November 1, 1977. 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Enix reported to work on October 31 at his usual starting time, punched his timecard about 9:30 a.m., and waited in the drivers' dispatch room, where the time clock is situated nearby, until the dispatcher prepared his delivery dispatch paper for the day. He testified that he waited about 30 minutes, received the dispatch papers to- gether with his trip card which he punched out about 10 a.m. When he called in to the dispatch office about noon as was his custom, he was instructed to return to the ter- minal and report to Terminal Manager Dickenson. When Enix reported to Dickenson he was confronted with the accusation that according to Dickenson's infor- mation he had punched the timecard of another employ- ee. Later he was informed it was Hester's timecard. Dickenson then suspended Enix the rest of the day and told him to call in the next day. Enix did so and was in- formed by Dickenson that although he, Dickenson, could not prove it, he was satisfied with the information at hand and was then and there discharging Enix for punching the timecard of another employee. The General Counsel and the Union argue that no em- ployee up to that time had been fired for punching an- other employee's timecard, that it was not an uncommon practice, and that the Employer's reason for the dis- charge was merely pretextual in order to eliminate a union supporter. The General Counsel and the Union take the position that the Employer must have become aware of Enix's in- terest in the Union through his conversation with em- ployee Jerry Probus, known to be antiunion and a nephew of a supervisor, Sidney Probus. Therefore the General Counsel and the Union conrtend c Enix was ter- minated in violation of Section 8(a)(3) of the Act. The Employer's Position and Supportive Evidence The Employer contends Enix was discharged solely because he was guilty of punching another employee's ti- mecard; that in any event, even if not guilty of such of- fense, there is nothing in the record to contradict Dick- enson's belief, based on information supplied by Jerry Probus, that Enix was guilty of the offense; and further that there is no evidence that the Employer was aware of Enix's sympathies or activities pertaining to the Union. Analysis and Conclusions Enix testified that he did not punch Hester's timecard or the timecard of any other employee. Other than an outright plot by Jerry Probus to vent his antiunion feel- ings against Enix, it is suggested in the arguments of both the General Counsel and the Union that Probus may have mistaken Enix's action in punching his trip card, which is very similar in appearance to a timecard, 30 minutes after he had punched his timecard when he first came to work. In any event Enix testified in a straightforward and convincing manner, and I credit his testimony that he did not punch the timecard of any other employee. The Employer argues, as noted above, that even if Enix was not guilty of this accusation, that there is nev- ertheless no evidence to contradict Dickenson's pro- fessed belief, based on Probus' statement, that Enix was involved in punching Hester's timecard. Moreover, the Employer argues, there is no evidence that the Employer was motivated by or even knew of Enix's interest in the Union. As already noted, the only possible link to establish such knowledge of Enix's union involvement is the hear- say conversation between Enix and Jerry Probus. Enix testified that he talked in favor of the Union to Probus who responded in a negative fashion. I credit Enix in this respect. Nevertheless, to establish that the Employer learned about Enix's union activity from this one conver- sation it is necessary to find that Jerry Probus told his uncle, Supervisor Sidney Probus, about the conversation, and that supervisor Sidney Probus then relayed this in- formation to Terminal Manager Dickenson. To do so would require an improper inference from hearsay testi- mony. Sidney Probus denied that his nephew Jerry Probus ever spoke to him about his alleged conversation with Enix, much less that he relayed such information to Dickenson. While Sidney Probus was not the most candid witness and there is some suspicion Enix may have been the victim of some internal plot to get rid of him, suspicion is not a substitute for evidence. I am influ- enced in my decision herein somewhat by the fact that Hester, an admittedly known and outspoken union activ- ist, while being accused by Dickenson of complicity with Enix in the timecard episode, was nevertheless not dis- charged. The burden of establishing the complaint allega- tions rests with the General Counsel and in the case of Enix's discharge this burden has not been met. I find the evidence of record herein to be insufficient to establish that Enix was discharged in violation of Section 8(a)(3) of the Act, and therefore recommend this portion of the complaint be dismissed. Carl DeBoard The General Counsel's and the Union's Position and Supportive Evidence DeBoard was employed as a truckdriver at Overnite from June 1976 until his discharge on July 20, 1978. The General Counsel contends DeBoard was dis- charged because of his known Union activities. The Union contends, additionally, that the discharge oc- curred in the critical period just before the election in August 1978 and thus had an impact on the results of the election. According to the testimony of the General Counsel's witnesses, the following factual circumstances occurred on July 19, the day before DeBoard's discharge. Deboard testified that on July 19 he returned to the Pottstown, Philadelphia, terminal about 6 p.m. and almost immediately engaged in conversation with two or three other drivers about the Union. DeBoard spoke in favor of the Union, at least two others against. An argu- ment ensued. Voices were raised. Operations Manager Paul Care yelled at DeBoard from an adjacent office to keep his voice down and to stop using objectionable lan- 152 OVERNITE TRANSPORTATION COMPANY guage in the nearby presence of a female clerical, Alice McLaughlin. At this point DeBoard testified he told Care he had known Alice (a cousin-in-law) longer than Care, punched his timecard and then told Care he was "off the clock" and could say whatever he pleased. Care then asked DeBoard to step outside, handed him a 2-year safe driving award, and asked DeBoard how he really felt about the Union. DeBoard gave Care several reasons why he favored the Union. Care then told DeBoard a nearby company was hiring if he was dissatisfied at Overnite. DeBoard protested he was not dissatisfied. Care told DeBoard at this point that if he voted for the Union the Employer could make it hard on him. De- Board further testified that Care told him the Employer had been aware of his union activities for the past 10 months. The next day DeBoard was summoned to the office of Terminal Manager Ruediger. Ruediger asked Care and DeBoard to step outside his office momentarily. He asked for a report on the events of the day before. To his question as to what happened DeBoard replied "nothing." Care at this point called DeBoard a liar. Reu- diger asked Care to go back into the office. DeBoard then explained to Ruediger that he considered the events the day before to be a matter strictly between Care and himself and that he had been "off the clock" during his discussions with Care. Ruediger told DeBoard being off the clock did not excuse talking about the Union on company property which was grounds for discharge. DeBoard asked Ruediger if he was discharging him be- cause of his work performance. Ruediger replied no but that he had warned DeBoard in April he would be fired if he had any more disagreements with management, that DeBoard had an "attitude" problem. DeBoard was dis- charged the same day. The Employer contends that DeBoard was discharged because of insubordination;that his conduct on July 19 constituted a direct refusal to obey a reasonable order of his supervisor; that punching his timecard and announc- ing to the supervisor he was then "off the clock" and could say whatever he pleased was a manisfestation of his insubordinate attitude toward management; and that his conduct on July 19 was a culmination of similar con- duct on other occasions during his employment with the Employer. It is the further contention of the Employer that it was not motivated in any way in discharging De- Board because of his known union interest or activity as alleged in the complaint. Analysis and Concluding Findings DeBoard's demeanor as a witness can only be charac- terized as one almost completely lacking in candor and forthrightness. It is also internally inconsistent to the ex- treme and contradictory to testimony of other witnesses I find to be much more reliable. An example of the internal inconsistency of DeBoard's testimony can be found in his responses to questions about his initial interest and activity in the Union. He first testified he signed a union card at a union meeting in April 1977, changed at a later point to April 1978, and then again to July 17, 3 days before his discharge. From this point DeBoard's testimony portrays a scenario of an almost perfect unfair labor practice. He joined the Union July 17; had an argument with other employees at his workplace regarding the Union which he played the part of a proponent; was called down by his supervisor for discussing the Union on company property, although ad- mitting the supervisor objected to the loud talk and pro- fanity which might be heard by a female employee in an adjacent or nearby office; interrogated about how he felt about the Union; threatened with discharge; the next day he was summoned to the office of the terminal manager and after discussion of the events the previous day was discharged. Despite strenuous efforts by Counsel for the General Counsel, DeBoard stuck to his third story that he had nothing to do with the Union until July 17, throughout direct examination. It was only after being confronted with his prehearing affidavit did DeBoard finally relent and admit he actually signed the Union authorization card early in September 1977, when the Union first began its organizational drive. He then again recanted earlier testimony and admitted he had openly supported the Union from the time he signed the authorization card throughout his entire employment with the company. He testified on cross-examination as follows: Q. Do you deny that you were openly for the union throughout all of the period of time from the time you signed the card, no bones were made about it, it was talked about all the time and you in- cluded? A. That I agree to. The above admissions by DeBoard conform to credi- ble testimony of other witnesses. Terminal Manager Rue- diger testified he knew about DeBoard's interest in the Union 8 to 10 months before DeBoard's discharge. DeBoard's testimony concerning his admittedly one conversation with Supervisor Care is tenuous in the ex- treme. After describing the argument about the Union with fellow employees in the driver's room on July 19, DeBoard testified as follows: Q. Now, Mr. Care was present in the next room? A. Yes. Q. Did he have a conversation with you at that point? A. He hollered through the window at me and I said "what," and I took my timecard out and punched out and put the papers through the window and he came through the door and asked me to come outside. The above testimony is in direct conflict with another of the General Counsel's own witnesses, Peter Chicarelli, a driver still employed by Overnite at the time of the hearing. Chicarelli testified that he was present at the ar- gument in the driver's room when ". . . Paul Care told Ed (DeBoard's nickname) to stop cussing and using bad language. Asked to give some of the words he heard he replied "Son of a bitch' bastard, fuck this . . . I don't know. Just cuss words, you know DeBoard had testified 153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he didn't recall using any such words other than "damn." Chicarelli further testified that after Care told De- Board and the other drivers to stop using profanity, De- Board punched out his timecard and told Care "Now, I'm off the clock, I'm punched out." Care and DeBoard then went outside the office out of hearing range from Chicarelli. Chicarelli testified that Care asked DeBoard to stop using profanity because Alice McLaughlin, a female clerical, was in his office; that DeBoard responded by telling Care he had known Alice for a long time and "... He (DeBoard) would say whatever he wanted to. He had known her longer than Paul had." Chicarelli also testified that he had used profanity on occasions in the office and that he recalled on one such occasion Care called him down about it and told him to stop using such language in the office. He was asked: Q. Did you receive a warning for using that lan- guage? A. Yes, he told me to stop using it and I stopped. On cross-examination Chicarelli testified that after Care told DeBoard and the other drivers to stop arguing in loud voices, the others obeyed but DeBoard kept ar- guing with Care. When Care instructed DeBoard to stop using profanity, DeBoard, according to Chicarelli, retort- ed "I've known Alice longer than you have and I'll talk anyway I want to." DeBoard then punched out his time- card and, according to the testimony of Chicarelli con- tinued to argue with Care until DeBoard and Care left the driver's room. In regard to DeBoard's testimony that after he and Care left the driver's room, Care, right in the middle of the continuation of the argument with DeBoard, in es- sence reprimanding DeBoard for the use of profanity in the nearby presence of a female employee, stated "OK, just between me and you, how do you really feel about this union thing," strains credulity beyond the breaking point. Likewise, DeBoard's testimony that during this same conversation Care said ". . . that if you vote the union in things could be made hard for me around there," is beyond belief. According to DeBoard's own testimony he was out- spoken in favor of the Union from the inception of the union campaign and the terminal manager admitted he had known of DeBoard's interest in Union 8 to 10 months prior to his discharge. Certainly Care, who worked more closely with DeBoard in the small terminal at Pottstown also was aware of this fact. DeBoard's almost complete lack of candor, the inconsistencies and contradictions in his testimony as a whole, persuades me to give no credence whatever to his testimony that Care interrogated and threatened him on this occasion. The fact that DeBoard was interested and even active on behalf of the Union does not grant him immunity from discipline for nondiscriminatory reasons. It is my opinion, and finding, that DeBoard was grossly insubor- dinate to his supervisor on the occasion in question and further that his discharge was fully justified. According- ly, I recommend the complaint allegation that DeBoard was discharged because of his union activities in viola- tion of Section 8(a)(3) of the Act. Grady Pirkey The General Counsel's and the Union's Position and Supportive Evidence Pirkey worked for the Employer from about March to June 30, 1978. Prior to being employed, Pirkey was in- terviewed by Jerry Lee. According to Pirkey, Lee told him he had ". . . heard rumors that the Union was trying to come in, that they didn't particularly like the Union, and asked me in the process how I felt about the Union." Pirkey responded he didn't ". . . know one way or the other." He was then hired as a dock worker or warehouseman. During his brief employment, Pirkey attended several union meetings and his name was submitted to the Em- ployer as being a union committeeman. The Employer admits it had knowledge of Pirkey's union interest and activity. Pirkey testified he attended two meetings with man- agement about the Union before his discharge. The first was with Terminal Manager Nolley with about six em- ployees in attendance. Nolley, according to Pirkey "Just talked about how they didn't want the Union in, and they hoped that we would go with the Company if they did try to come in Overnite." The second meeting with Nolley occurred after Pirkey signed the committeeman sheet. Pirkey testified that Nolley ". . . told us we wouldn't receive any favoritism whatever, that we'd be expected to do the same job that we'd been doing, and he gave a letter stating the same thing." Pirkey testified that on the day of his discharge he asked Supervisor Barnhill, a substitute for Pirkey's regu- lar supervisor, if he could get off work at 8 o'clock that morning. The conversation took place at Pirkey's work station about 2:30 a.m. Pirkey testified that Barnhill "told (him) that he would see if (he) would be out of the next truck by 8." Thereafter, Barnhill passed near Pirkey but said nothing. Pirkey finished work on the truckload as- signed to him, turned in certain invoices to the office, and passed Barnhill on the steps leading out of the office. Neither spoke at the time. Pirkey then clocked out at about 8:15 a.m., and left the premises. Pirkey reported for work the next day at his regular starting time. His timecard had been removed from the rack. A few minutes later he was told by Supervisor Turner that his card was in the office and to report there. Turner and Barnhill came into the office and Turner informed Pirkey that Barnhill had told Pirkey the day before ". . . he would get back with (him) if (he) could get off at 8:00 a.m." as requested. Pirkey replied that if Barnhill had made such a remark he must have said it "while he was walking away from me and (he) (Pirkey) did not hear him." Pirkey then volunteered the statement, "Well, I guess that means I'm fired." Turner replied he had no more work for him. Barnhill, accord- ing to Pirkey, said nothing during the exit interview. 154 OVERNITE TRANSPORTATION COMPANY The Employer's Position and Supportive Evidence The Employer argues that the unrefuted evidence in the record establishes the fact that it maintains and uni- formly enforces a strict policy that any employee who leaves work without permission is automatically dis- charged. The Employer notes that the facts surrounding Pir- key's discharge are largely undisputed. Barnhill was sub- stituting for Collins, Pirkey's regular supervisor. Shortly after Pirkey came to work on June 29 he asked Barnhill if he could get off early that day at 8 a.m. Barnhill, being a substitute supervisor decided to check with Terminal Manager Turner. Barnhill checked with Turner on two occasions before 8 a.m. On the first occasion, Turner told Barnhill that freight was unusually heavy that day but he would get back to Barnhill and let him know if Pirkey could be released as requested. Barnhill not having heard from Turner contacted him again about 7:30 a.m. Barnhill testified that he got busy and let the time slip by before checking back with Pirkey between 8:15 and 8:30 a.m. Not being able to locate Pirkey, he checked Pirkey's timecard and found he had checked out. Barnhill reported the matter to Turner who decided to discharge Pirkey for leaving work without permission. Pirkey was so informed the next day. It is admitted by the Employer that it knew about Pir- key's union interest because his name appeared on the Union's committeemen's list. The Employer contends Pirkey was discharged for violating a company rule Pirkey was fully aware of. Analysis and Concluding Findings It is my opinion, and finding, that the evidence does not sustain the complaint allegation that Pirkey was dis- charged because of his union activities, in violation of Section 8(a)(3) of the Act. There are portions of Pirkey's own testimony which influence this conclusion. Pirkey testified that when he made his request to Barnhill to get off work early, Barn- hill told him ". . . that he would see if I would be out of the next truck by 8:00." Counsel for General Counsel, in his brief, states that "Barnhill replied that he would see that Pirkey was out of the next truck by 8:00." I believe this to be an unintentional misrepresentation of Pirkey's testimony. Barnhill testified that he told Pirkey he "... could not give him a definite answer at that time, it would depend on the movement of freight." Pirkey testified if Barnhill made such a statement he must have been going away from him at the time because he did not hear it. There is little likelihood that Barnhill would have said he would see that Pirkey would be out of the next truck by 8 a.m. and then say he could not give Pirkey a definite answer on his request at that time. I find Barnhill's version of the conversation the more plausible, but, even accepting Pirkey's version, it is clear to me that Barnhill did not then and there grant Pirkey's request. The "if" in Pirkey's testimony leads me to be- lieve that if Barnhill made the statement attributed to him by Pirkey the implication is clear that Barnhill merely conveyed to Pirkey that he would act on his re- quest, that is, he would see "if" Pirkey could leave early. There is another part of Pirkey's testimony which in- fluenced me in reaching the conclusion above. Pirkey testified that when he was summoned to Turner's office on June 30, Turner told him that Barnhill had advised him the day before that ". . . he would get back to (him) if (he) could get at 8 . . . Pirkey stated to Turner that if Barnhill made such a statement ". . . he said it while he was walking away from me and I did not hear him." Asked if he recalled anything further that was said, Pirkey testified "I looked at him and I said, Well, I guess that means I'm fired." Turner and Barnhill con- firmed this part of Pirkey's testimony. It seems to me that if Pirkey was sure that he had been given permission to be off work as requested or that he was being unjustly discharged he would have said so at this conference with Turner and Barnhill. To make this remark, "he guessed that means I'm fired," leads me to believe Pirkey was less than sure that Barnhill had given him permission to take off early. It also leads me to be- lieve Pirkey was well aware of the company rule about leaving work without permission and furthermore that he anticipated being discharged because of his actions the previous day. I find that the evidence is insufficient to prove Pirkey was discharged because of his union interest or activity, in violation of Section 8(a)(3) of the Act, and recom- mend this portion of the complaint be dismissed. Herman Cox The General Counsel's and the Union's Position and Supportive Evidence Cox began work with the Employer in 1968 as a dock worker or warehouseman. After about 2 years on this job, he became a straight truck driver. On April 10, 1978, he became a certified tractor-trailer operator. On November 14, 1977, Cox signed a union authoriza- tion card. Thereafter he attended about 3 union meetings and distributed 15 to 20 union cards to other employees, mostley at the Employer's parking lot. The General Counsel and the Union contend that until February 3, 1978, Cox had never received an unfavor- able "write-up" concerning misdeliveries or cross deliv- eries; that on February 3, Cox received an adverse disci- plinary report for a misdelivery of 1 of 19 pieces of freight to a customer of the Employer, but that the Em- ployer appears not to have suffered any claim resulting from this incident. On February 20, Cox received another adverse report regarding his work performance, this time because he signed a receipt for a carton of freight which he had de- livered to another customer of the Employer. The Gen- eral Counsel again argues that the Employer did not suffer any financial loss from this incident. The General Counsel contends that in March or April 1978, according to the testimony of former Supervisor Campbell, Terminal Manager Gulledge made the state- ment that after Toombs and Cox, among others, were certified as tractor-trailer drivers, they might forget to 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD install discs (tachograph charts) in their equipment and thereby afford the Employer an opportunity to discharge them. Cox was certified as a tractor-trailer driver on April 3, 1978. On or about April 10, Supervisor Werner told Campbell not to make an offsite observation on Cox that same week, as he planned to do with respect to all other newly certified tractor-trailer drivers, but to wait until the following Monday when Cox might forget to install his disc. Campbell made the inspection on the date sug- gested by Werner but found Cox had installed his disc properly. However, Campbell did discover that Cox had failed to chock the wheels of his parked vehicle as was required by company written instructions, and so noted this infraction on the observation report. Terminal Man- ager Gulledge followed this with a memorandum to Cox. Cox received a final warning in writing on May 30, and a 3-day suspension over a shipment and delivery of freight to the wrong consignee. The dispatch papers called for 151 pieces of freight. Cox delivered 149 pieces and marked the bill 2 short. However the 2 pieces actu- ally were destined to another shipping point outside Cox's regular delivery route. The General Counsel notes that Cox later that same day picked up the misdelivered freight, and again points out that the Employer suffered no claim loss because of Cox's error. The Employer also issued written reports on 3 warehousemen involved in this misdelivery of freight. When Cox reported to work on June 7, he was sum- moned to Gulledge's office and terminated because of another incident involving a shipping error by Cox which had occurred on June 5. Cox had delivered a piece of freight at an Employer's customer's place of business for which delivery of freight he erroneously gave a receipt. The General Counsel and Union contend that Cox was discharged because of his interest and activity in the Union in violation of Section 8(a)(3) of the Act. The Employer's Position and Supportive Evidence The Employer contends that Cox was discharged be- cause of a series of incidents involving mistakes in making deliveries and pick up of freight. In any event, the Employer argues, it had no knowledge of Cox's in- terest or activity in the Union prior to his discharge. It noted inconsistencies in Campbell's testimony that termi- nal manager Gulledge allegedly identified Cox as a Union supporter on two occasions. The Employer fur- ther points out that Campbell's pre-hearing affidavit never once mentioned Cox as being identified as a Union supporter even though he named other employees who were allegedly known union adherents. Analysis and Conclusions There are two principal questions to be resolved in the case of Cox. The first, whether or not the Employer's as- serted reasons for the discharge were shown to be false and pretextual, and secondly, whether the evidence es- tablishes that the Employer had knowledge of Cox's in- terest or activity in the Union prior to his discharge and was motivated because of this knowledge, even in part, in making its decision to discharge him. The evidence is insufficient to establish the Employer's asserted reasons for the discharge are false. Cox admit- tedly had committed a number of shipment and delivery errors as described above. Unlike in the case of Toombs, there is no evidence revealing an attempt by the Em- ployer to seize upon a mistake by Cox as a pretext to dis- charge him where the true reason must be found else- where. The incident described by Campbell regarding Werner's instructions to make offsite inspection of newly certified tractor-trailer drivers included all newly certi- fied drivers, not just Cox. Campbell's testimony that Werner singled out Cox for a later inspection is not cred- ited. A close examination of the record reveals that Campbell attempted elsewhere in his testimony to some- how identify Cox's situation with that of Toombs in order to buttress Cox's claim of unlawful discrimination. I find it significant that neither Cox, nor the Union, sought to challenge the Employer's action in suspending Cox for 3 days over his continued misdelivery of freight. Cox also admitted he had been suspended twice before for various reasons during the course of his employment. Moreover, in regard to the incident involving the suspen- sion, Cox testified on cross examination as follows: Q. "He (Gulledge) said Fred Neese, the manager at Cody had called him and said I cursed him and said I didn't care whether he got the right freight or not"-isn't that correct? (reading from prehear- ing affidavit) A. That's correct. The evidence is likewise insufficient to establish that the Employer had knowledge of Cox's union interest or activity before his discharge. As already noted above, Campbell's testimony that he, Campbell, "believed" Gul- ledge mentioned the names of certain drivers, including that of Cox, as having an interest in the Union, is too tenuous to base a finding that the Employer, in fact, had such knowledge. There is no other credible evidence to establish this essential ingredient to the General Coun- sel's case. Walker's testimony regarding his conversation with Supervisor Cecil also does not provide the avenue to supply this essential evidence in order to establish the Employer's unlawful motivation in making the discharge. Walker, it may be recalled, testified Cecil asked him if anyone had approached him about signing a union card. Walker replied that a black employee had asked him to sign a card but he did not know his name. Cecil then asked Walker if he could identify the man or point him out when they returned to the terminal. When they ar- rived back at the terminal Walker was unable to point out the employee who had approached him about sign- ing a union card. It later turned out, according to Walker, that this employee was Cox. Such evidence falls short of establishing the Employer came to know about Cox's union interest prior to his discharge. Based on the above considerations, it is my opinion, and finding, that the evidence of record is insufficient to 156 OVERNITE TRANSPORTATION COMPANY prove Cox was discharged because of his union interest and activity as alleged in the complaint. Accordingly, I recommend that this portion of the complaint be dis- missed. Morris Adkins Adkins was employed at the Employer's Prestonburg; Kentucky, terminal from May 1 until his discharge on November 23, 1977. On a return run from Williamson back to the.terminal in Prestonburg, Adkins was clocked by Terminal Man- ager Rowe as speeding in excess of 70 miles per hour. Adkins was discharged for this offense the same day. The Employer contends it had no knowledge of Ad- kins's union interest or activity prior to his discharge. Adkins testified that he was first contacted by a busi- ness representative of the Teamsters some time in Sep- tember 1977; that on several occasions he received au- thorization cards from a representative; that he attempt- ed to distribute 20 to 30 such cards to other employees at the terminal; later testifying he attempted to distribute cards to about 60 employees in all. There is no evidence that any of the above alleged union activity came to the attention of supervisory per- sonnel. There is no evidence of any conversation about such activities between Adkins and any supervisor. During his discharge interview with Rowe, Adkins denied he was speeding at 70 miles per hour, stating to Rowe he was traveling at about 60 to 62 miles per hour. Rowe apparently had checked Adkins tachograph and found it had been tampered with but did not accuse Adkins of doing the tampering. The evidence before me leaves some doubt as to whether or not Adkins was guilty of speeding as charged by Rowe. Nevertheless the burden of proving the com- plaint allegations rests upon the General Counsel and the evidence in this record is inadequate to support the alle- gation that Adkins was discharged because of his union activities. Accordingly, I recommend this portion of the complaint be dismissed. Martin Hoover Hoover was employed by Overnite at its Nitro, West Virginia, terminal as a driver from April 1976 to May 19, 1978. The issue regarding Hoover's discharge once again in- volves credibility resolutions. The Employer contends Hoover was discharged for speeding 70 miles per hour or more, an offense uniformly calling for discharge. During cross examination Hoover became very eva- sive, and so much of his testimony is selfcontradictory, I find most of it unreliable. He testified in regard to the speeding incident on May 17, 1978, which resulted in his discharge that his truck never exceeded 60 miles per hour; that he recognized the Overnite safety patrol car following him a distance of 30 to 35 miles and was there- fore cautious not to exceed permissible limits. When fi- nally stopped by Safety Supervisor Fine for speeding and confronted by Fine about his tachograph being blocked, he denied any responsbility for it. Later he admitted blocking or manipulating the tachograph on other occa- sions in such a manner that it would show speed no greater than 60 miles per hour regardless of actual speed in excess of 60 miles per hour and testified it was a common practice at Overnite. When accused by Fine of speeding in excess of 70 miles per hour, Hoover denied he was traveling in excess of the 58 to 60 miles per hour registered on the blocked tachograph, yet he asked Fine to show 69 miles per hour on his report as he knew going 70 or over would result in automatic discharge. In regard to his conversations about his interest or ac- tivity in the Union, Hoover's testimony is not only con- tradictory but self defeating. Hoover testified that in late November 1977, he telephoned terminal manager Galli- more at his home and "asked him where he heard the rumor was that I was soliciting for the union in Nash- ville and he said they (sic) wasn't any .... ""That he hadn't heard any (such) rumor from people from Nash- ville. .. ." Hoover testified that a day or so after the phone con- versation with Gallimore that he went into Gallimore's office and, despite Gallimore's earlier disavowal of hear- ing any rumors about Hoover's alleged union solicitation, again confronted the terminal manager with the same question. This time, incredibly, Gallimore replied, ac- cording to Hoover, ". . . yes, he had received a tele- phone call that I was soliciting for the union, he could not mention the names . . . but he knew I had signed a card, and other employees had signed a card." Gallimore testified that the only time he recalled talk- ing to Hoover direct about the Union was on the occa- sion Hoover came into his office and ". . . wanted to know what son-of-a-bitch was out starting rumors of him harassing Overnite people (presumably about the Union) throughout our system. He wanted to whip his ass. He wanted to know who he was and wanted to whip his ass. I had not heard of anything like this. I asked Hoover if he was not out harassing Overnite people why was he worried about who was starting rumors and to forget about it and go out and do his job..." For reasons al- ready stated I credit Gallimore's version over that of Hoover. It is clear to me that on the few occasions Hoover conversed with supervison of the Employer about the Union the gist of Hoover's remarks can only be interpre- tated as an attempt to persuade such supervisory person- nel that his feelings about unions in general and the Teamsters in particular were not influenced by his fa- ther's union background. Hoover admitted Gallimore told him he had known for a long time that Hoover's father was a Union official. He also admitted telling Gallimore he did not want the fact his father was a union official hanging over his head. Incredibly, he testified that by making such remarks his intent was to prove he was for the Union. Hoover testified in contradiction to his prehearing affi- davit about his conversation with Operations Manager Thompson at the time of his discharge. He testified in reply to a question on cross-examination if he threatened to "whip" Jerry Thompson when he was discharged as follows: A. No, sir. Q. Did you made any threat to him at all? 157 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. No, sir. I told him I was going to get him but I meant in a Court of Law. He is the one who threatened me. Hoover acknowledged on further cross-examination his affidavit contained neither a statement that Thomp- son threatened him physically, or otherwise, and nothing about a "Court of Law." Hoover attempted to correct these deficiencies by testifying that he made the state- ments to the investigating Board agent "... but he never wrote it in there." I find the evidence of record insufficient to support the complaint allegation that Hoover was discharged be- cause of his union interest or activity in violation of Sec- tion 8(a)(3) of the Act, and accordingly recommend this portion of the complaint be dismissed. Ted Darr Employed as a warehouseman on or about March 15, 1976, Darr last worked for the Employer on August 21, 1978. The General Counsel and the Union contend that he was constructively discharged because of his Union activities. The Employer contends Darr was injured on the job, off work more than 1 year, and separated from the Employer's payroll in August 1979 in accordance with established procedures. The Employer further con- tends that at the time of his last workday it had no knowledge of Darr's interest or activity in the Union. The uncontested facts show that from March 1976 to about the first part of 1977 Darr worked on the dock pri- marily in breaking freight. Thereafter, for about a month he engaged in stacking duties, then went back to break- ing duties on the first shift. In April 1977, in lifting a box of freight, he ruptured a disc in his back; was sent to the hospital for about 10 days; then was referred by to a second doctor, a specialist and again hospitalized on June 23 and remained hospitalized until July 1, 1977. Darr testified that during his last hospitalization Per- sonnel Director Jerry Lee visited him on several occa- sions. On one such occasion, in discussing his concern over possible adverse results from his upcoming oper- ation Lee told him, according to Darr's testimony, "... not to worry about my back, just to get well, concen- trate on getting well, and I'd have a job at Overnite even if they hed to let me pull empty trucks around the yard Jerry Lee denied promising Darr light duty when re- leased from the hospital. He testified he discussed work- man's compensation and ". . . among other things, his job, the fact that I wished he'd get better and pick up on his duties again. There was no promise of any kind of special job . . ." Lee further testified he had no author- ity to make such a promise; that no light job existed at the time; that various jobs are obtained by a bidding system and that Darr never made any bid for another job. After release from the last hospitalization about the first of July 1977, Darr testified that he returned to work on September 25, 1977; turned in to the office a release from his doctor with the notation he was released for light duty. The General Counsel was unable to produce this release and the Employer contends it does not exist. In any event, Darr, according to his testimony, went to his regular work station ". . . to my breaking station where I'd been breaking, and my supervisor (Bill Brit- tain) stopped me." Brittain, according to Darr, ordered an employee off a tow-motor and instructed Darr that he "..... was driving the lift from now on .. ." that Brit- tain told him. ". . . not to do any lifting, he didn't want me to hurt my back .... " Thereafter, Darr operated the tow-motor almost exclusively, except for occasional- ly assisting other employees in handling freight or hook- ing special vehicles on the freight conveyor belt. Darr testified that about mid-July 1978, Brittain re- moved him from his tow-motor job and informed him he would be breaking freight as before; that Darr tried to do his job but found he was unable to because of his back injury; that Brittain remarked he knew he could not break freight but that the order ". . . came from the top.After about 2 hours, Darr received permission to see Terminal Manager Nolley. He asked Nolley why he had been taken off his job on the tow-motor. Nolley replied that it was company policy to rotate employees on the tow-motor and that the change was just temporary. Darr continued working several days. Just prior to the elec- tion, beginning August 2, 1978, Darr complained to Lee about being unable to break freight. According to Darr, Lee told him if he could not break freight ". . . to get the hell out." Darr then confronted Lee with his alleged remarks at the hospital that he would make an easy job for Darr, if that became necessary. Lee denied to Darr that he made any such remark. Darr then asked Lee if he was fired and Lee replied no he would have to quit if he could not do the job. On or about August 11 Darr again visited the medical specialist who provided a slip stating that Darr would be unable to go back to work until August 21, 1978. Darr returned to work that day, worked several hours, then reported to Brittain that he was physically unable to per- form the job. Brittain took Darr to Lee's office. Lee ad- vised Darr he could not make an exception in his case because other employees would expect the same treat- ment. Darr left the premises and did not return to work thereafter. He was removed from the Employer's payroll on or about August 21, 1979. Analysis and Concluding Findings The General Counsel contends that Darr was con- structively discharged on or about August 21, 1978, be- cause of his union activities. The General Counsel argues that the Employer, until about mid-July 1978, considered Darr a "company" man but on or about July 10 Darr was called into Terminal Manager Nolley's office. Darr testified that Nolley and he ". . . mostly we just talked about deer hunting, fishing and stuff." When Darr start- ed to leave the office Nolley, according to Darr, said "Ted, sit back down . . . we know you're working for the Teamsters." Darr started to respond but Nolley con- tinued, "No, don't say anything, I don't want to know nothing. I'm not going to treat you any different, it makes no difference whether you're a Teamster or not." Darr testified that they talked awhile longer, and then, 158 OVERNITE TRANSPORTATION COMPANY incongruously, Nolley said ". . . he felt I'd make the de- cision to talk it up for Overnite .. . ." In a conversation several days later with Brittain, Darr testified that Brittain asked him if he was a "Company man" to which Darr replied, "No, I'm a Ted Darr man. I do what's best for me and my family." The next Monday following this conversation on Friday, Brittain, according to Darr, advised him, "O.K., Ted, you won't be driving, you'll be breaking freight. As stated above, it is uncontested that Darr was in- jured on the job in April 1977 returned to work in Sep- tember 1977, and continued to work until August 21, 1978. Darr testified, as noted above, that Personnel Di- rector Lee promised to make a light job for him on his release from the hospital. Lee denied this, and testified further that he had no such authority. Furthermore, the Employer contends no such light duty job was available when Darr returned to work in September 1977. Besides his lack of candor as a witness, Darr's testimo- ny contains so many internal inconsistencies that reliabil- ity cannot be given to much of his testimony. I credit Lee's testimony that he made no such promise to Darr. The evidence reveals there were about 400 employees employed at the Employer's Gaffney terminal at all times material herein. About 100 of this number were over-the- road drivers. A large part of the remainder were ware- housemen. There were only 14 tow-motors available at the terminal and not all of them were in operation all of the time. Despite the General Counsel's efforts to show that the operation of a tow-motor was a separate job, the evidence shows to the contrary. About 50 to 60 employ- ees were certified to operate the tow-motors and the evi- dence clearly establishes such operation was rotated among the certified employees. Furthermore the credible evidence reveals that even while operating a tow-motor the operator frequently, but at quite varying times, would assist in other duties such as breaking, stacking, and hooking freight to the conveyor belt vehicle. There are suggestions in the General Counsel's argu- ment that the Employer could have placed Darr as a bill runner or flagger, jobs requiring less physical exertion than breaking or stacking freight. But the evidence re- veals there are only about six bill runners for the three shifts and about three flaggers. It is unreasonable to expect the Employer to replace these employees, who require some training, to accommodate an incapacitated employee. Moreover, there is no evidence such a job va- cancy existed at the time Darr claimed he could no longer break or stack freight. There also is no evidence that Darr sought such a job or in fact even got back in touch with the Employer after August 21, 1978. Darr testified that he signed an authorization card in the Union in April 1978, thereafter, attending several union meetings and handing out union cards to other em- ployees. There is no evidence these activities came to the attention of management. Darr testified that on several occasions he wore a "Go Teamsters" T-shirt to work. He testified he had only the two conversations with management about the Union as already noted above. Admittedly, there were no coercive remarks made in the first conversation with Nolley. In the second conversa- tion with Brittain, Brittain asked Darr "are you a Com- pany man?" Darr replied he was a "Ted Darr" man. Even if Darr were credited over Brittain's denial there is no hint that Brittain suspected Darr was a union support- er. Yet the General Counsel argues that after these con- versations Darr was removed from his tow-motor job be- cause of his union activities. Further, because the Em- ployer was aware of Darr's physical incapacity to per- form breaking or stacking duties, this action constituted a constructive discharge. It is my opinion, and finding that the evidence does not support such complaint allegations. If the Employer was aware of Darr's union interest or activity it was so aware before these conversations with Nolley and Brit- tain in mid-July 1978. Darr testified he wore the union T-shirt "around June." Even this testimony is suspect. On cross-examination Darr admitted he did not know whether his conversations with Nolley occurred in March, April, May, June, or July. Nolley's testimony, documented by a memorandum of his discussions with Darr, shows the conversation oc- curred on May 10, 1978, and concerned subject matter relating to loading and unloading freight, the Union not being mentioned at all. For reasons already stated, I credit Nolley's testimony wherever it contradicts that of Darr. Further, I credit Brittain's testimony that he never re- ceived any slip notation from Darr's doctor to the effect that Darr should be given light duty. This conforms gen- erally to the General Counsel's inability to produce such a document covering this particular period of time. I also credit Brittain's testimony that he did not tell Darr not to lift anything heavy or anything to that effect; that warehousemen, when operating tow-motors, are required to do some hand-lifting of freight during the course of a normal day's work, and that it is almost impossible to es- timate how much lifting is required of any warehouse- man from hour to hour or day to day. Moreover, I credit Brittain's testimony that he never removed Darr from the regular pattern of rotating employees on the tow-motor. In sum, the evidence is insufficient to establish that Darr was either constructively discharged on August 21, 1978, or discriminatorily removed from the Employer's payroll on August 21, 1979. Accordingly, I recommend this portion of the complaint be dismissed. The Termination of Jimmy L. Gause Gause's case turns strictly on credibility. The uncon- tested facts show Gause was employed by Overnite as an over-the-road driver sometime in 1968. In February 1976, as a result of an on-the-job injury, he was placed on disability leave status. Within several months, Gause returned to work at the Atlanta terminal but aggravation of his injury forced him to be off work and again on dis- ability leave from February 1977 until his termination on June 22, 1978. The General Counsel's case rests almost entirely on one phone conversation. Gause testified that he talked by phone with Terminal Manager Holcombe some time in early June 1978, to check on vacation pay he considered to be due him. He testified that Holcombe said he would 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be "put in for it," after which he stated, according to Gause, "By the way, have you signed anything for the Union?" Gause replied in the affirmative whereupon Holcombe retorted, according to Gause, "(You) will not get any vacation or any damn thing." About 2 weeks later, Gause received notice of his termination. Holcombe denied having any conversation with Gause about the Union, or even that he knew Gause was in- volved with the Union. He testified that Gause had put in a claim for permanent disability after not being able to continue work after February 1977. Further Holcombe testified he never expected Gause to return to work after claiming permanent disability. Gause had not worked from February 1977 to June 1978, a period of some 16 or so months. Holcombe testified that he did not know why Gause had not been removed from the company's pay- roll records after 12 months leave of absence as was cus- tomary unless it was due to oversight. I credit Holcombe's testimony over that of Gause whose demeanor as a witness was less than forthright. Gause testified he engaged in activities in support of the union campaign during a period of time some 8 months before the campaign began. He attempted to correct this obvious inaccuracy by later changing the date of his ac- tivities to sometime in 1978. This testimony is likewise in error since Gause had already testified he did not work at the terminal after February 1977. The evidence does not support the complaint allega- tion that Gause was discharged because of his union in- terest or activity in violation of Section 8(a)(3) of the Act, and I therefore recommend such allegation he dis- missed. Alleged Discriminatory Reprimand of Donald Barrett Employed as a warehouseman at the Gaffney terminal on March 14, 1978, Barrett quit his employment in June 1978. The case of Barrett rests on whether or not the Em- ployer was discriminatorily motivated in issuing a cor- rective action report as a result of Barrett's failure to follow the company rule to see the Company's doctor in the event of injury on the job. On or about May 1978, Barrett stuck a splinter in his thumb while at work. Barrett testified his supervisor asked him if he wanted to see the company doctor or his own. Barrett chose to see his own doctor who treated his injury. Supervisor Collin testified Barrett asked him for permission to see his own doctor and at the time he thought the injury was minor he granted the request. Within a few days Barrett's hand became swollen and in- fected causing him to be absent from work. When Bar- rett called in the second day he was told by Collins to get in touch with Personnel Director Lee. Barrett failed to do so. When he returned to work terminal manager Turner reprimanded him for not going to the company doctor and issued a corrective action report documenting the incident. The Employer knew of Barrett's union interest from his signature appearing on the committeemen's list fur- nished by the Union. There is no evidence to support the complaint allegation that the Employer was discrimina- torily motivated in issuing the corrective action report. The company rule that requires employees to utilize its established medical procedures in case of injury on the job appears in the Company's safety and operating rules and regulations and also posted on the employee bulletin board. In fact Barrett, on cross-examination, admitted he knew about this rule, had utilized the proper procedure on a prior occasion when he was injured on the job. The evidence does not support this allegation of the consolidated complaint and I recommend such allegation be dismissed. The alleged discriminatory warning to Otha Jones The General Counsel contends the Employer's written warning to Jones on June 13, 1978, over changing to work clothes on company time was discriminatorily mo- tivated in violation of Section 8(a)(1) of the Act. Sometime around mid-June 1978, Jones was observed by Supervisor Leonard changing into his work clothes. Jones admitted that he had already punched his time card. Leonard, at the time, was looking for another em- ployee, Jerry Stovall. Leonard reprimanded both Stovall and Jones for "goofing off" and asked Jones if he was "on the clock." Jones admitted that he was. Leonard then told Jones he had already taken about 10 minutes on company time to change clothes and expressed con- cern that if Jones was allowed such a privilege it might have to be extended to all employees at the terminal. The next day Jones received the warning letter from Terminal Manager Gullege. The letter reads in pertinent part as follows: On June 12th you punched the time clock at 3 p.m. to go to work. At then (10) minutes after 3 p.m. you were observed talking with Jerry Stovall and changing clothes in the furnace room. This letter is to advise that it is not permissable to change clothes after you have punched in to go to work. Future occurrences of this nature may result in disciplinary action. According to Jones, he signed a union card in October 1977; attended three union meetings, one each in April, May, and June 1978. In May, Shop Manager Johnson called Jones to his office and told Jones he had been told by another employee that an employee named Jones had attended a union meeting and that he hoped it was not Otha. Otha Jones replied that there were other employ- ees named Jones working at the terminal. I have found elsewhere that Johnson's statement violated Section 8(a)(1) of the Act. However, Jones' reply to Johnson on this occasion hardly establishes Employer knowledge of Otha Jones' union activities. The Employer contends that Jones, besides changing clothes on company time, was "goofing off" chatting with another employee who also was supposed to be working. It seems to me the warning letter which merely states a future occurence of such offense "may" result in disciplinary action is commensurate with the nature of the offense. In any event I find the evidence insufficient 160 OVERNITE TRANSPORTATION COMPANY to base a finding of a violation of Section 8(a)(l) of the Act. Alleged discriminatory work assignments The "handload" versus "skidload" issue" The General Counsel and the Union contend that the Employer, during certain periods of time, especially just a few weeks before the election in August 1978, assigned known union activists an excessive amount of "hand- loads" compared to those of other employees. The Gen- eral Counsel describes such assignments as more "oner- ous working conditions" and contends such actions by the Employer constitutes discrimination with respect to working conditions in violation of Section 8(a)(3) of the Act. The consolidated complaint alleges such discrimination occurred primarily in June and July 1978 with respect to employees Walker, Vest, Hester, and Brown; Wigging- ton during February, March, and April 1978, Enix also testified that he received excessive handloads, although not named in the complaint. Notwithstanding a voluminous amount of subpenaed documents concerning this issue none of this material was utilized by counsel for the General Counsel in pre- senting his case. Instead, the Employer used much of this material through the testimony of its witness to refute the General counsel's contentions. A review of such testimony reveals that during the pe- riods of time in question the alleged discriminatees re- ceived, generally speaking, fairly balanced assignments of both types of loads, including mixed loads. There is a complete absence of credible evidence to establish that any discrimination was practiced by the Employer with respect to such assignments respecting any employee, or group of employees, much less any evidence of discrimi- nation against union employees. The testimony of the alleged discriminatees, and others, reveal that such assignments vary from one type to the other, sometimes simultaneously mixed, during each and every workday. It also indicated that any im- balance in such assignments with respect to any particu- lar employee, or among various employees, might take several days or sometimes several weeks before balanc- ing out. The testimony coming anywhere near proving possible discriminatory work assignments was that of Raymond Mackey, former dispatcher, an over-the-road driver at the time of the hearing. Mackey testified that while he was still working as a dispatcher, sometime in October 1977, Terminal Manager Dickerson instructed him to assign more "handloads" to Ernie Thomas. Mackey testi- fied: 6 "Handloads" required the employee to load and unload freight by hand. "Skidloads" constitute freight which is loaded and unloaded by forklift or tow-motor vehicles. Obviously "handloads" call for more physical exertion and are less desirable than operating a tow-motor. Mr. Dickerson told me that he heard that Ernie Thomas had signed a card and would I give him handloads. A. I said O.K. Q. Now, what did you do thereafter as to assign- ments of Ernie Thomas? A. I proceeded to give him handloads . . . ap- proximately four or five days. When asked if Thomas ever complained about such as- signments, Mackey testified he did not. Mackey then tes- tified that Operations Manager McDaniels approached him later and said, ". . . to forget what they said, that they were wrong about Ernie Thomas." Mackey testified he then "Proceeded to do a normal dispatch." Mackey went on to explain the procedure he used in making such assignments. Interestingly enough, Mackey, on cross-examination, testified that in the course of a week it was his best esti- mate that drivers would average spending about "half" of their time working handloads and skidloads. His testi- mony also reveals that the distribution of the types of loads to drivers depends largely on the kind of freight being warehoused and transported at any given time; that in the case of pickups at other terminals it was almost impossible to determine whether such freight would need to be handled by tow-motor or by hand. Mackey also testified that, except for this one occasion involving Thomas, he never intentionally tried to favor any driver with reference to dispatch assignments. As stated earlier, Mackey was a dispatcher at the time of his conversations with Dickenson and McDaniels re- lating to Thomas' work assignments. Counsel for all par- ties agreed that the status of dispatchers had not been re- solved in the representation proceedings. Counsel for the General Counsel announced that the "General Counsel is making no contention and we have not raised the issue." Counsel for the Union stated, "It is the union's conten- tion throughout that dispatchers are supervisors, but I don't believe it is relevant to these proceedings." Thus, the supervisory or nonsupervisory status of dispatchers were not litigated in this consolidated proceeding. Mackey, who was still employed by the Employer at the time of the hearing, testified in a straightforward and convincing manner, and I fully credit his testimony. I find that Dickenson and McDaniel made the statements attributed to them by Mackey. As it is impossible to determine from this record whether Mackey, as a dispatcher, was, at the time such statements were made to him, either a supervisor or an employee, no finding can be made of an independent vio- lation of Section 8(a)(1) of the Act. 6 Obviously, if Mackey was determined to be a rank- and-file employee, Dickenson's intimidating statement would constitute a violation of the Act. 6 Since a violation of Sec. 8(a)(3) has been found, it follows that a re- sidual violation of Sec. 8(a)(1) has been incurred 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There remains the question of whether the combined statements of Dickenson and McDaniels to Mackey to assign more onerous work to Thomas, and then, several days later, to again instruct Mackey to refrain from such action because the Employer had been mistaken about Thomas's connection with the Union, constituted a viola- tion of Section 8(a)(3) of the Act. Although I have found the evidence in this record in- sufficient to sustain the complaint allegation that certain other known supporters of the Union, namely, Hester, Brown, Wiggington, Cotton, Walker, and Vest, were subjected to more onerous working conditions, it is my opinion, and finding, that Mackey's credited testimony establishes that by instructing the then dispatcher to assign more onerous work to a suspected union activist, even for the short period 5 days, constitutes discrimina- tion with respect to an employee's condition of employ- ment in violation of Section 8(a)(3) of the Act. This is so even though Thomas never complained about the oner- ous assignments and even if Thomas may not in fact have been interested or active in the Union. Several speeches were given by the Respondent-Em- ployer's supervisors to various groups of employees in different terminals shortly before the election. The Gen- eral Counsel makes no contention that any of the speech- es were coercive or violative of Section 8(a)(1) of the Act. The Union argues, in its brief, that a speech given by A. M. Price, vice president for labor relations, departed from the printed text on several occasions and in so doing made remarks constituting threats of reprisals should the employees vote in favor of the Union. To support this contention the Union presented the testimony of employees William Irby, Barron Ingraham, and Paul Davidson (former employee). The gist of their testimony is that during his speech Price would occasionally look away from the printed matter, gesticulate with his hands, during which times he made remarks which the Union contends to be coercive. Some of their testimony merely tracts the substance of the written text, but where the testimony concerns Price's alleged off-cuff remarks it is mutually inconsistent and contradictory. The manner of each of these wit- nesses lacked the required deliberation and thoughtful- ness to be convincing. When asked on cross-examination if Price just came right out and said ". . . we're just going to fire people if the Union comes." Irby quickly replied, somewhat antagonistically, "Yes." I find this tes- timony to be unbelievable. Either Irby's recollection was inaccurate or he was being entirely too careless in at- tempting to recall the truth of the matter. Price, an expe- rienced labor relations manager, would hardly have made such a blatant and obviously unlawful statement. I credit Price's denial in this respect and find this evidence insufficient to establish a violation of the Act. The conduct of Robert Cecil Cecil was prompted to the position of driver supervi- sor sometime in the summer of 1977. Included in his re- sponsibilities from about January 1977 is that of hazard- ous material supervisor. As Driver Supervisor Cecil would ride with the various drivers ". . . to instruct them, and if they needed assistance, (he) would help them." "... to see that they knew how to handle the bills properly...." He admitted that on such occasions he would engage in general conversation with the driv- ers, some of them former coworkers and friends. Cecil testified on direct examination that he learned about the union campaign involved in this proceeding sometime in October 1977; that there were drivers still employed that he knew when he was driving and before he became a supervisor; that after he became a supervi- sor he had conversations with individuals ". . about the (Union) campaign." Alton Cotton testified that after receiving a T-shirt from a union meeting sometime in July 1978 he wore this shirt to work, and while waiting for a work assignment in the drivers' room Cecil spoke to him from the dis- patch window commenting "I see they've won you over. Where did you get that shirt?" Cotton replied he had ob- tained the shirt at the union hall and that it was free. Cecil, according to Cotton, replied that it was far from being free, that Cotton was going to be surprised how much it was going cost him. Cecil then said to Cotton that he had "waited kind of late in life to start working all over, to start working the extra board again." Cotton then replied "Well, Cecil, that's the way it goes. Some- times you get the bear and sometimes the bear gets you." Cecil admitted the conversation occurred but denied he said "I see they've won you over," but did admit he said "Where did you get that shirt?" In response to counsel's questioning Cecil testified he knew he did not make the remark about Cotton being won over because he "... already knew that he was-or, you know, I thought that he was in the union, because he came from a union carri- er." He did not explain why he asked Cotton where he got the T-shirt with the Teamsters name emblazened on the front of it. Cecil further admitted to commenting "Well, nothin's free" but said "We all laughed about it; even the people in the dispatch office laughed about it." Cecil denied he made the remark about Cotton waiting until late in life to start over on the extra board. In this connection he first testified "I can't recall saying that," and then "I recall that I didn't." I credit Cotton's testimony over Cecil's denial and find that Cecil's statements to Cotton on this occasion constituted not only unlawful interroga- tion but also a threat of reprisal as well. I further find such conduct violative of Section 8(a)(l) of the Act. Charles Walker testified that sometime in January or February 1978, on a return trip to the terminal and while accompanied by Cecil, that Cecil asked him what he thought about unions and if anyone had asked him to sign a union card. Walker told Cecil he had been ap- proached by a black employee but did not know his 162 OVERNITE TRANSPORTATION COMPANY name. Cecil asked Walker "Do you think you can point him out when we walk back on the dock?" Walker said he possibly could. When they arrived at the terminal dock Cecil saw a black employee on the dock and asked Walker if that was the man. Walker said it was not. Cecil then said to Walker ". . . if (he) ever heard anything about unions to let him know because we needed men on the company's side . . ." Walker also testified that Cecil stated to him in this conversation that "We know the people that signed the cards." I credit Walker's testimo- ny wherever it contradicts that of Cecil and find that Cecil's conduct on this occasion constitutes unlawful in- terrogation and also that it creats an impression of sur- veillance of the employees' union activities. I further find such conduct to be violative of Section 8(a)(1) of the Act. Lewis Wigginton testified Cecil accompanied him on a trip sometime in April 1978 and asked Wigginton if he had a union card. Wigginton replied that he did and showed the card to Cecil. Cecil then told Wigginton that during the last union campaign while he was a driver, that he had been a union supporter; that about 8 or 9 other employees involved in supporting the union had been fired and that all that saved him from being fired was the intercession by his sister to Terminal Manager Dickenson, his sister being Dickenson's secretary at the time. Cecil denied questioning Walker about the Union and all of the remaining remarks attributed to him by Wigginton. He admitted however that during this trip with Wiggington the subject of the Union came up. Cecil testified Wigginton asked him if he knew he was in the union. When Cecil replied "no" Wigginton proceed- ed to reveal his union authorization card. Cecil took the card, examined it, and ". . . when we came up to the next red light, I handed it back to him." Cecil testified he did not recall anything else being said about the Union during the remainder of the trip. I find Wigging- ton's testimony the more plausible and further find that Cecil's statements constitute unlawful interrogation in violation of Section 8(a)(1) of the Act; further that Cecil's statements about employees who supported the union in an earlier campaign being discharged constitutes an implied threat that current supporters of the Union would likely receive the same discipline. I find this im- plied threat to be violative of Section 8(a)(l) of the Act. Wigginton, testified that in this same conversation de- scribed above, Jerry Morris's name was mentioned and Cecil told Wigginton that Morris had been fired because of his union activity and 4 or 5 other employees were scheduled to be fired for the same activity; further that Wigginton himself would be fired if higher management discovered his interest or activity in the union campaign. I find such conduct to be a threat of reprisal to employ- ees who support the Union and that such conduct vio- lates Section 8(a)(l) of the Act. Robert Vest testified that a few days before the elec- tion Cecil approached him and stated to Vest that he did not think Vest was "one of them." At the time Vest was wearing a Teamsters T-shirt. Cecil asked Vest what he was going to do and where was he going to work if the Union didn't win the election. Vest replied he was going to continue working at Overnite. Cecil then said to Vest, ". .. you really don't believe that, do you?" I find Cecil's statements to Vest to be an implied threat of re- prisal in violation of Section 8(a)(1) of the Act. Employee Ronnie Brown testified regarding two con- versations with Cecil. The first conversation occurred sometime in July 1978, a few weeks before the election. Brown, at the time, was wearing a Teamsters T-shirt. Cecil remarked to Brown "they won you over last night, didn't they?" Brown made no reply. A few weeks later, but still before the election, Cecil asked Brown why he felt the way he did about the Union. The General Coun- sel contends the Employer violated the Act by unlawful- ly interrogating Brown about his union sympathies. I find no threat of reprisal or promise of of benefit in Cecil's remarks to Brown. Brown was wearing a Team- sters T-shirt at the time which clearly reflected his sup- port and sympathies for the Union. In these circum- stances, just to ask Brown why he felt as he did about the Union merely invited Brown to further propagandize on behalf of the union cause, as he was already doing by publicly displaying his feelings in wearing the Teamster shirt. I therefore recommend this part of the case be dis- missed. Employee Russell Hester testified that sometime in July 1978, while he was wearing a Teamsters T-shirt at work, Cecil told him if he took off the shirt something to the effect his work would be made easier. Hester had al- ready complained about excessive handload assignments and took Cecil's comment to refer to this. He replied to Cecil that the handloads were not hurting him and he would continue to wear the union shirt. I find this remark of Cecil's to Hester to constitute promise of benefit if Hester would abandon his support of the Union and therefore a violation of Section 8(a)(1) of the Act. The Conduct of Alvie Clark Walker testified that sometime in mid-February 1978, during a conversation with Clark, he was asked by Clark of his assessment of the attitude of other employees to- wards the Union. Such probing interrogation is in viola- tion of Section 8(a)(1) of the Act. The General Counsel contends that sometime in March 1978, Clark engaged in surveillance of Wiggin- ton's activities. Wiggington testified he noticed Clark fol- lowing his truck on a particular day while he made sev- eral delivery stops. This evidence reveals nothing to indi- cate Clark was doing anything beyond the scope of his duties as safety and personnel supervisor. The evidence is insufficient to prove unlawful surveillance and I rec- ommend this portion of the complaint be dismissed. Hester, a driver still employed with the Employer at the time of the hearing, testified that sometime in May 1978, during a conversation with Clark about a hospital- ization claim, Clark stated that he had learned about his involvement with the Union from another employee. Hester replied that he did not know what Clark was talking about. The General Counsel contends Clark's statement to Hester amounts to implied surveillance of Hester's union activities. The evidence does not reveal whether the other employee's information to Clark was solicited or volunteered. I find this one statement insuffi- 163 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cient to prove unlawful implied surveillance and recom- mend this allegation be dismissed. In a later conversation, sometime in mid-August 1978, Clark, according to Hester, approached him and asked Hester to refrain from wearing a Teamsters T-shirt as a "personal favor." As the statement contained no threat of reprisal or promise of benefit I find the statement short of an unfair labor practice. Former employee Goodman testified that Clark ap- proached him several times and asked if anyone had spoken to him about the Union. Goodman replied "no" on each occasion. I find Clark's interrogation violative of Section 8(a)(1) of the Act. The Conduct of Robert Darby The General Counsel contends that about mid-Decem- ber 1977, Darby singled out several drivers for safety ob- servation reports because of thin union activities. This in- cluded Wigginton and Morris, two alleged discrimina- tees, among a total six employees. All had attended a union meeting the night before. The record doesn't show how many other employees attended the meeting. Darby's report on Wigginton and Morris included a note on the condition of their cab and the fact their trailers were not properly chocked. Wigginton admitted having a half full can of beverage in his cab. There is dubious evidence by another employee having heard Wigginton say he would chock his trailer "again," implying perhaps someone had unchocked the trailer before the inspection. Wigginton also testified that during the inspection his Union card fell into view of Darby who remarked that "the people that were for the Union was just going to have to forget it." Darby, at the time in question, was the safety supervisor, and I find it unlikely that he would make the remark in the manner attributed to him by Wigginton. Even so, if he in fact made the remark, I find it ambiguous and lacking any threat of reprisal. There- fore I find the evidence insufficient to base a finding of a violation of Section 8(a)(1) of the Act. The Conduct of Sidney Produs Hester testified that sometime in about mid-November 1977 he overheard Probus remark to several employees that if the Union was voted in Overnite would close its doors and route the freight around Louisville. I credit Hester's testimony over Probus' denial and find such remark to contain a threat of reprisal towards employees who might support the Union, and therefore in violation of Section 8(a)(l) of the Act. The Conduct of W. A. Johnson Otha Jones, a long time employee with Overnite, and still employed there at the time of the hearing, testified Johnson, an admitted supervisor, called Jones into his office sometime in the latter part of May 1978 and said to Jones that he had heard an employee named Jones had attended a union meeting and he hoped it was not Otha. Jones replied there were other employees at the terminal named Jones. Johnson then asked "which" Jones. Jones answered he could not recall the employee's first name. Jones testified in a straightforward manner, and I credit his testimony concerning this conversation. I find such interrogation to be violative of Section 8(a)(l) of the Act. However, contrary to the General Counsel's contention, I do not find this remark as implying unlaw- ful surveillance. The Conduct of Wesley Moody The General Counsel alleges Supervisor Moody, during December 1977, threatened to discharge Thomas Toombs because of his activities on behalf of the Team- sters. Toombs testified that his conversation with Moody occurred on the loading dock at the Richmond terminal; that Moody said to him "If I were you, I wouldn't talk about the Teamsters around here or even mention the union, that if the company wanted to fire someone, all it needed to do was to follow the employee and wait for him to make enough mistakes to build a case against him. I credit Toombs' testimony over Moody's categorical denial the conversation ever occurred. I find the state- ments of Moody to be a clear threat of reprisal in viola- tion of Section 8(a)(1) of the Act. The Conduct of Gayle Dean The complaint alleges and the General Counsel con- tends that former Personnel Director Dean, sometime in October 1977, told employee Donald Dietrich that in a former union campaign at the Employee's Louisville ter- minal employees who were known to have signed union cards were fired. Dietrich so testified without contradic- tion, and further testified Dean told him to let him know the names of employees who were active in the current union campaign. I find such conduct clearly violative of Section 8(a)(1) of the Act. Former employees John Smith and Fred Richardson testified that on the occasion of wearing their Teamster shirts to work sometime in July 1978, Terminal Manager Melton asked them where they got the shirts; asked why they were wearing them; and then mentioned the names of two other employees and asked Smith and Richardson if they had received the shirts from these other employ- ees. I find such testimony to be implausible. The Team- ster name appeared in large letters on the shirts. To ask where the employees got the shirts or why they were wearing them in the face of the obvious seems too im- plausible for belief. Melton admitted making a comment about the shirts saying to Smith, somewhat in jest, "that the shirt he was wearing looked mighty becoming .... " I find this evidence insufficient to establish an unfair labor practice or objectionable preelection con- duct. Robert Vest, a former employee, testified that when he was first interviewed by Terminal Manager Dickenson in February 1978 he was asked by Dickenson how he felt about the union. He further testified that after he started wearing a Teamster shirt before the election he began being assigned more handload than normally. I find much of Vest's testimony selfcontradictory and unreli- able. For example, on cross-examination he was asked: Q. Before you started wearing your (Teamsters) shirt, how much of your work was handloads? 164 OVERNITE TRANSPORTATION COMPANY A. I have no way of telling you that. Implausibly, he testified that after he started wearing the Teamster shirt all of his assignments were handloads. This is in contradiction to documentary evidence in the record. Dickenson testified he knew about Vest's union affiliation from his application showing prior employ- ment with a union carrier. I credit Dickenson's testimony that he did not ask Vest how he felt about the Union during the employment interview. I find the evidence in this respect insufficient to establish a violation of the Act or objectionable conduct affecting the election. The General Counsel presented testimony of former employees Roy Crist, Dean Howlett, Terry Smith, and Robert Ingle. All testified that at the time they were hired Personnel Director Lee asked them how they felt about the union. Smith testified that just before the elec- tion, Terminal Manager Nolley approached him and asked "Are you going to vote for the Company?" Smith replied he did not know. Nolley responded with the remark, according to Smith, "Well, you better have your payment paid up on your truck or you'll be gone by Tuesday." Ingle testified, in addition to Lee's interroga- tion about how he felt about unions, that on an occasion when he was wearing his Teamster shirt, supervisor Ad- dington approached him and remarked ". . . he seen I'd made up my mind, and if the Union didn't get in that I'd be sorry." All four of the above witnesses had been discharged, filed charges with the Board, and all such charges had been dismissed. All four testified in an unconvincing manner. Ingle's oral testimony was inconsistent with his prehearing affidavit. In his affidavit there is no mention of Lee's interrogation about his feeling towards unions. I find this testimony too unreliable to base a finding of a violation of the Act or of objectionable preelection con- duct. The Objections to the Election Inasmuch as I have found that Respondent-Employer engaged in substantial unfair labor practices between the date of the filing of the petition in 5-RC-10487 on May 23, 1978, and the election on August 2, 3, and 4, 1978, including violations of Section 8(a)(3) and (1) of the Act, I find such unfair labor practices interfered with the em- ployees' free and uncoerced exercise of their right to vote as they chose in the election.7 I further find that the unfair labor practices prior to the election may be considered insofar as they lend "meaning and dimemsion to related postelection con- duct."8 Moreover the Board has, under certain circumstances, considered unfair labor practices both before, during and after the critical period. Willis Shaw Frozen Express, Inc. 209 NLRB 267 (1974), and it is within the province of the Board to set aside an election in order to protect the basic values of the Act, even though all the objection- able conduct occurred before the petition was filed. 7 Dal-Tex Optical Company Inc., 137 NLRB 1782, 1786 (1962). I M & W Marine Ways Inc., 165 NLRB 191 (1967); Stevenson Equip- ment Company, 174 NLRB 865, 866, fn. 1 (1969); Warren W. Parker, d/b/ a Parke Coal Company, 129 NLRB 546. Baker Machine and Gear, Inc., 220 NLRB 194, 207 (1975). Generally, it is the normal policy of the Board to direct a new election whenever an unfair labor practice occurs during the critical period since "conduct violative of Section 8(a)(1) is, fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election." (Dal-Tex). The Board stated in Super Thrift Markets, Inc. t/a Enola Super Thrift, 233 NLRB 409 (1977): The only recognized exception to this policy (enun- ciated in Dal-Tex) is where the violations are such that it is virtually impossible to conclude that they could have affected the results of the election. This determination is based, inter alia, on the number of violations, their severity, the extent of dissemina- tion, the size of the unit, and other relevant factors. In Super Thrift the bargaining unit included some 24 employees, 2 of whom were subjected to statements vio- lative of Section 8(a)(1). The Board concluded the elec- tion should be set aside although coercive statements were directed to only 2 employees in a unit of 24. It is true that, in the subject case, most of the coercive interrogations and threats occurred prior to the critical preelection period. However, two of the four discharges found to be unlawful occurred within the critical period. An unlawful discharge is certainly one of the most seri- ous of unfair labor practices, and if it occurs within the critical preelection period it is most likely to have more serious impact on the results of an election that it would otherwise. I have taken into account that most of the objection- able conduct, including the four unlawful discharges, oc- curred at only about a half dozen of the Respondent-Em- ployer's some 60 odd terminals, involving a bargaining unit of some approximately 4700 employees. However, I have also considered the fact that the Stipulation of Con- sent Election provided an agreed upon systemwide bar- gaining unit. It must be presumed from this that there is considerable interchange and intermingling of employees, especially the over-the-road drivers, among the various terminals. As the Board said in Super Thrift it has ". . . long held that statements made during election cam- paigns (certainly the fact of discharged employees) can reasonably be expected to have been disseminated and discussed among the employees." 9 Based on all of the above considerations I recommend that the objections to the election be sustained and the election set aside, and that a new election be held at a time the Regional Director for Region 5 of the Board finds appropriate. CONCLUSIONS OF LAW 1. Respondent is an employer within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. 9 See, e.g., Standard Knitting Mills. Inc., 172 NLRB 1122 (1968). 165 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent violated Section 8(a)(1) of the Act by coercively interrogating employees concerning union matters; threatening shutdown and rerouting of freight for union reasons; threatening discharge, and other eco- nomic reprisals for union activities; conveying the im- pression of surveillance of union activities; soliciting em- ployees to report on the union activities of other employ- ees; and telling employees that those employees who en- gaged in union activities during a prior union campaign had been discharged for their union activities. 4. Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Toombs, Wiggington, Walker, and Morris because of their interest and/or ac- tivity in the Union 5. Respondent violated Section 8(a)(4) and (1) of the Act by its denial of vacation pay to employee Motes. 6. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not violate the Act by discharging employees Cox, Allen, Cotton, Brown, Enix, DeBoard, Pirkey, Adkins, Hoover, Darr, and Gause. 8. Respondent did not violate the Act by allegedly giving discriminatory reprimands or placing disciplinary memoranda in the personnel files of employees Barrett and Jones. 9. Objections 1, 3, 4, 5, 6, 7 and 8 are established in Case 5-RC-10487 and such conduct by Respondent (Employer in the representation case) warrants setting aside the election of August 2, 3, and 4, 1978. THE REMEDY Having found that Respondent-Employer has engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act, including the posting of the appropriate notice to Employees. The recommended Order will require Respondent-Em- ployer to offer reemployment to employees Toombs, Wiggington, Walker, and Morris to their former jobs, or if such jobs are no longer available, to substantially equivalent jobs, and to make them whole for any loss of earnings they may have suffered as a result of their dis- charge. Backpay computations are to be made in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB N651 (1977). Upon the foregoing findings, conclusions, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 0 The Respondent, Overnite Transportation Company Richmond, Virginia, its officers, agents, successors, and assigns, shall: 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the Natonal 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. 1. Cease and desist from: (a) Coercively interrogating employees concerning union matters or organizational activities. b) Threatening to close certain facilities and reroute freight around certain of our terminals. (c) Threatening discharge, and other economic repri- sals, because of your union activities. (d) Conveying the impression of surveillance of em- ployees' union activities. (e) Telling you that employees who engaged in union activities in a prior union campaign at our company had been discharged for such activities. (f) Threatening, and/or denying, employees their vaca- tion pay because they express an intention to file, or file, unfair labor practice charges with the National Labor Relations Board. (g) Threatening to make, and/or making, more oner- ous work tasks to employees because of their interest or activity in the Teamsters Union, or any other labor orga- nization. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under the Act. 2. Take the following affirmative action: (a) Offer reinstatement to Thomas M. Toombs, Lewis Wiggington, Charles Walker, and Jerry Morris to their former jobs or, if their jobs no longer exist, to substan- tially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them. Backpay computations regarding all discriminatees are to be made in accord with F. W. Woolworth, Company, supra and Florida Steel Corporation, supra. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its freight terminals systemwide, copies of the attached notice marked "Appendix,"' and mail a copy thereof to each of its employees. Copies of said notice, on forms provided by the Regional Director for Region 5 shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IL In the event the Order is enforced by a Judgment of the United States court of Appeals, the words in- the notice reading"Posted By Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 166 OVERNITE TRANSPORTATION COMPANY IT IS FURTHER RECOMMENDED that the election of August 2, 3, and 4, 1978, in Case 5-RC-10487 be set aside and that the matter be remanded to the Regional Director for Region 5 for the purpose of conducting an- other election when he deems that the circumstances permit the free choice of a bargaining representative. 167