Commercial Cartage Co.

COMMERCIAL CARTAGE CO 637 Commercial Cartage Company and Automotive, Pe- troleum and Allied Industries Employees Union, Local 618, affiliated with International Brother- ood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 14-CA-15790 and 14-CA-15895 14 December 1984 DECISION AND ORDER 131". MEMBERS -ZIMMERMAN, HUNTER, AND DENNIS On 1 December 1982 Administrative Law Judge Michael 0. Miller issued the attached decision. The Charging Party Union filed exceptions and a sup- porting brief, and the Respondent filed cross-excep- tions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions 1 and to adopt the recommended Order. AMENDED CONCLUSIONS OF LAW - Substitute the following for Conclusion of Law 1. "1. By reprimanding 'and threatening its employ- ees with discipline for filing grievances or engaging in other union and protected concerted activities, the Respondent has violated Section 8(a)(3) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative, law judge and orders that the Respondent, Commercial Cartage Company, Fenton, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order. • The judge indicated in his Conclusions of Law that the Respondent violated Sec 8(a)(1) by issuing disciplinary warnings to employees for en- gaging in union and other protected concerted activities As the judge indicated earlier in his decision, however, this conduct violated Sec 8(a)(3) of the Act We shall amend the judge's Conclusions of Law ac- cordingly DECISION STATEMENT OF THE CASE, MICHAEL 0 MILLER, Administrative Law Judge. These consolidated cases were heard in St. Louis, Mis- souri, on September 13, 14, and 15, 1982, based on unfair labor practice charges filed by Automotive, Petroleum and Allied Industries Employees Union, Local 618, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of -America (Local 618 or the Union), 1 and complaints issued by the Regional Director for Region 14 of the National Labor Relations Board.F The complaints were consolidated for hearing. The complaints allege that Commercial Cartage Company (Respondent) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act), by is- suing disciplinary notices to and discharging Samuel A. Williams because Williams had filed an unfair labor prac- tice charge against Respondent and had engaged in other union and protected concerted activities and violated 8(a)(5) and (1) of the Act by unilaterally failing and re- fusing to implement scheduled wage increases. Respond- ent's timely filed answers deny the commission of any unfair labor practices and assert that the 8(a)(5) allega- tions should be deferred to arbitration -- All parties were afforded full opportunity to appear, to examine and to cross-examine witnesses, and to argue orally. The General Counsel and Respondent have filed briefs which have been carefully considered. On the entire record, including my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS—PRELIMINARY CONCLUSIONS OF LAW Respondent is a Missouri corporation engaged at Fenton, Missouri, in the interstate transportation of-liquid freight, including petroleum and chemical products, by tank truck. Jurisdiction is not in dispute. The complaints allege, and Respondent admits, that during the calendar year ending December 31, 1981, -Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $50,000 from the interstate transportation of freight and, during that same period, performed services valued in excess of $50,000 for enter- prises which meet the Board's retail, direct inflow or direct outflow jurisdictional standards. I find and con- clude that Respondent is, and has been at all times mate- rial, an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. ' The charge in Case 14-CA-15790 was filed on March 9, 1982, and the charge in Case 14-CA-15895 was filed on April 23, 1982 2 The complaint in Case 14-CA-15790 issued on July 14, 1982 The complaint in Case 14-CA-15895 Issued on June 3, 1982, and was amend- ed on July 15, 1982 273 NLRB No. 91 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaints allege, Respondent admits, and I find and conclude that the Union is, and has been at all times material, a labor organization within the meaning of Sec- tion 2(5) of the Act. , II. UNFAIR LABOR PRACTICES A. Background—The Collective-Bargaining Relationship For more than 10 years, Local 618 has represented Re- spondent's employees 3 Respondent is a member of the , Labor Relations Advisory Association (LRAA), and is party to the Central States Area Tank Truck Agreement (CSATTA), between that association and the Central Conference of Teamsters, of which Local 618 is an affili- ate. The CSATTA which was in effect at the time of the events herein had a term of November 15, 1979, through November 14, 1982. That agreement was supplemented and amended by the Teamsters Local 618 Missouri Rider to the CSATTA, effective for the same term. As dis- cussed in more detail infra, that rider was itself supple- mented and amended by a further addendum, the Com- mercial Cartage Co. Local Petroleum Addendum, effec- tive from November 15, 1980, through November 14, 1982. B. Case 14-CA-15895—The Alleged Refusal to Bargain ,l. Factual discussion The wage rates for the employees represented by Local 618 were set forth in the Missouri Rider Howev- er, in May 1981 4 Respondent and the Union negotiated a separate addendum for the purpose of providing econom- ic relief to Respondent Pursuant to that agreement, signed on May 5 by Lawrence Lewis, Respondent's vice president of administration, and on May 19 by Peter J Cavatoe, the Union's assistant business representative, Respondent was obligated to increase its employees' wages by 43 cents per hour on November 15. In the course of negotiations for the May relief agree- ment, Stanley Lewis, Respondent's president, told Cava- toe that he did not want to be in a position where subse- quent relief granted to other carriers, different from that granted to Respondent, placed Respondent at a competi- tive disadvantage. Accordingly, the following language was proposed by the Employer and included as part of the relief addendum:, .3 The applicable collective-bargaining agreement describes the bargain- ing unit thusly Section 1 f—Operations Covered The execution of this Tank Truck Agreement on the part of the Employer shall cover all over-the-road and local tank truck oper- ations of the Employer, within, into, and out of the Area and Tern- tory contiguous thereto Section 1 2-Employees Covered (a) The employees covered by this Agreement shall include any and all the employees of the Employer employed directly by and/or under the supervison and control of the Employer within the Juris- diction of the Union and who are represented by the Local Union or during the life of this Agreement may come to be represented by the Local Union IV. It is understood and agreed that any additional -relief frenn the current Central States Area Tank Truck Agreement accepted by the Union member- ship will also affect this addendum. Immediately on receipt of the relief addendum, Cavatoe responded, by letter dated May 20, addressed to Stanley Lewis, in an attempt to clarify his understanding of the above-quoted article IV. His letter stated: In regard to the re-negotiation Of your company ad-. dendum at Commercial Cartage Co., your front letter sent to me attached to the addendum, Section IV, should be clarified. Any changes in the entire Central Statei Area Tank Truck Agreement that can be effective or less than our settlement, must be presented to your employees and our members, and voted on . for approval in accordance with.,,recog- nized Central Conference procedures. „ Respondent received Cavatoe's clarifying lefter and did not respond The May relief addendum had been presented to the Union's membership prior to its 'approval. At that meet- ing, Stanley Lewis addressed the -members and urged their approval. According to employee Howard Guerber, Lewis promised the employees 'that if this relief proposal were accepted, Respondent would seek no fur- ther relief for the duration of the contract. Stanley Lewis denied giving the employees any such assurances. He tes- tified that the drivers were told that Respondent would expect that relief granted to other employers would be granted to them. On balance, I am persuaded to credit Stanley Lewis. It would, I believe, have been highly im- probable that Stanley Lewis would have assured the em- ployees that no further_ relief would be expected when Respondent was simultaneously seeking language -which would give it the opportunity, if not the right, to have additional relief granted if such relief were granted to Respondent's competitors. I note, additionally, the ab- sence of any testimony corroborating that of Guerber notwithstanding that Cavatoe, Samuel Williams, who was the Union's steward, and other employees, some or all of whom were presumably in attendance at that meet- ing, testified on behalf of the General Counsel. On September 14, the LRAA requested that the Cen- tral States Conference of Teamsters Tank Truck negoti- ating committee renegotiate the CSATTA because of the adverse efforts of industrywide deregulation, competition from nonunion and non-CSATTA carriers, and the gen- eral downturn in the economy. The request was predi- cated on article 33 of the CSATTA, which provides for reopening in the event of various circumstances, includ- ing "change in economic or competitive circumstances of the unionized tank truck industry on a. local, state or area level, which has a significantly adverse effect on the financial structure of the tank truck industry "5 On Sep- 5 That article further provides "Upon the failure of the parties to agree in such negotiations either party shall be permitted all lawful economic recourse to support its request for revisions" COMMERCIAL CARTAGE CO 639 tember 28, George Vitale, chairman of the Central Con- ference of Teamsters Tank Truck negotiating committee, responded, rejecting the request for reopene • negotia- tions but promising to discuss the proposed reopening at the November meeting of the Joint Area committee Vitale further stated that local unions were not author- ized, at that time, to conduct separate negotiations with individuals or groups of employers and that the employ- ers covered by the CSATTA would be expected to pay the November 15 wage increases, as scheduled. On No- vember 5, the Central States Tank Truck Joint Area committee met The minutes of that meeting indicate that carriers would be permitted to seek relief on a state or local basis, subject to the approval of the Joint Area committee. Carriers would be expected to pay scheduled wage increases, it was noted, where local unions or state conferences rejected requested relief. Thereafter, at least two carriers, signators to the CSATTA, were granted some form of economic relief by Local 618.6 On November 14, Richard Norsen, Respondent's vice president of operations, addressed a letter to Cavatoe. In that letter, Norsen noted that the LRAA had reopened the contract on September 14 His letter stated: The Commercial Cartage Co. addendum dictates that any changes in the Central States Area Tank Truck Agreement could be applicable to our agree- ment if accepted by the Union membership. Inasmuch as pending negotiations with the Cen- tral Conference of Teamsters could result in addi- tional relief from the current Central States Area Tank Truck Agreement which might be applicable to the Commercial Cartage Co. Addendum, Com- mercial Cartage Co is suspending all wage in- creases until such time as the L.R.A.A. concludes negotiations with the Central Conference of Team- sters. Respondent posted a copy of this letter on the employee bulletin board At some point shortly after the November 14 letter to the Union, Norsen verbally repeated to Cavatoe Re- spondent's desire for additional relief and, it appears, asked to meet with Cavatoe for negotiations toward such relief Cavatoe informed Norsen that he had been voted out of office, effective January 1, 1982, and told Norsen that he was not in a position to negotiate for his succes- sors Cavatoe suggested that negotiations with those who would replace him would be more appropriate. Norsen repeated Respondent's position that it was not going to put the scheduled wage increase into effect and was told by Cavatoe that Respondent should honor their agree- ment. 7 Respondent did not put the scheduled wage in- crease into effect On February 17, 1982, Norsen met with the Union's new officers, including Robert Miller, its secretary- treasurer/business representative, at a grievance meeting. In the course of that meeting, Miller asked about the No- vember 14 wage increase, stating his understanding that 6 Slay Transportation Co and Klipsch Hauling Norsen's testimony is not matenally different it had not been paid Norsen referred to Respondent's' November 14 letter, with which Miller was unfamiliar and acknowledged that Respondent had not put- the in- crease into effect. Norsen asked Miller to negotiate addi- tional relief on the basis of the relief which had been granted other employers. Miller requested Norsen to send him some specific proposals.8 Miller discussed Respondent's oral request for relief with the Union's stewards and, not having received any proposals from Respondent, wrote Stanley Lewis'- on March 5. In that letter, Respondent was advised that the Union did not desire to engage in negotiations to modify the current agreement prior to its expiration date. Re- spondent was requested to begin paying the scheduled wages and to pay the backpay due under the November 14 increase. . On March 9, 1982, Norsen replied. He disagreed with the Union's refusal to negotiate for modifications and re- ferred to the LRAA reopening of the CSATTA on •Sep- tember 14, to the relief granted to Illinois employers by the Illinois Conference of Teamsters (which allegedly consisted of waiving November 15, 1981 scheduled wage and cost-of-living increases), and to relief granted to two employers in the St. Louis area. Respondent asserted that it "desperately needs additional relief in order to remain competitive and to survive in these most trying times." A reference was made to a proposal prepared by Re- spondent (but apparently no copy was attached) The letter closed with the following: We urgently request a meeting with Local 618 and our employees to present this proposal for your members' approval - Please advise the most convenient time and place we can meet. Miller responded on March 11, 1982 He pointed out that the relief granted to the Illinois employers and that granted to at least one of the St. Louis employers only placed their wage scales at approximately what Responcj-', ent would be paying if it had put the November 15, 1981 increases into effect. Respondent's request for additional relief was rejected and the Union, once again, requested that Respondent comply with its agreement On March 12, Respondent sent the Union its propos- als 9 In those proposals, Respondent sought to eliminate certain workweek, seniority, overtime, uniform, and job classification provisions. In regard to wages, it sought to eliminate the November 15 Wage increase and to main- tain the then existing hourly wage rate and weekly guar- antee. Miller replied on March 16" Once again, Respondent's request for negotiations and a meeting with the employ- 8 At one point, Norsen testified that he believed that Miller had stated that he would take Respondent's proposal to the employees He was; however, not sure that Miller had made any such commitment and postu- lated that he may only have drawn such an inference from Miller's agree- ment to look at Respondent's proposal Norsen's pretrial affidavit states only that Miller told Norsen to put something down in writing which the Union would look at It further indicates that Miller did not agree to ne- gotiate or offer to set up a meeting 9 Respondent's letter was erroneously dated March 9, 1982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees was rejected. Miller pointed out that the major oil companies were paying considerably more than Re- spondent and that further , relief given to Respondent would adversely affect its members employed by those employees. Compliance with the contract was demanded. On April 24, 1982, Clifford Pyatt, the Union's steward, filed a grievance over Respondent's failure to pay the scheduled wage increase and the backpay since. Novem- ber 14. The record does not reflect what disposition was made of Pyatt's grievance. -On April 29, 1982, Respondent posted a memorandum to its Fenton drivers - regard to contract relief. The memorandum, to which were attached copies of the cor- respondence between the parties and the relief addendum signed by other local employers, reiterated Respondent's efforts to secure contract relief and refuted the Union's reference to wages paid by the major oil companies to their drivers. The letter urged the employees to review the circumstances and solicited their assistance by re- questing their union representative to meet with the Em- - ployer. • It was-stipulated that Respondent had requested that the relief issue be submitted for review and a vote by the employees and that the Union had declined to permit a vote on that issue. At hearing, Respondent stated that it was willing to arbitrate the question of whether it was obligated to pay the wage increase in the absence of such a vote and to abide by the decision of an impartial arbi- trator. The CSATTA provides for the final resolution of all controversies by reference to Joint State or Joint Area Committees, composed of equal numbers of labor and management representatives. The decisions of these committees are final and binding on all parties. 2. Analysis of the refusal-to-bargain issue— applicability of Collyer , Respondent contends that the refusal-to-bargain allega- tions of the General Counsel's consolidated complaint must _be dismissed pursuant to the Board's decision in Collyer Insulated , Wire, 192 NLRB 837 (1971), as modi- fied by General American Transportation Corp., 228 NLRB 808 (1977), and Roy Robinson Chevrolet, 228 NLRB 828 (1977), inasmuch as this is a dispute "arising over the application ,or interpretation of an existing col- lective-bargaining agreement" which should be decided by the method agreed upon' by the parties, i e., arbitra- tion. Collyer, supra at 840; LMRA, Section 203(d)." The General Counsel argues that Respondent's , conduct, about which there _ is little dispute, amounts' to a clear midterm modification of the parties' collective-bargaining agreement, undertaken without securing agreement from the Union, and thus establishes i violation of Section 8(a)(5) and (1) and Section 8(d) of the Act. The General Counsel asserts that the parties' collective-bargaining agreement, including the various addenda, does not lend itself to an interpretation which could arguably authorize Respondent's actions: 10 Respondent essentially concedes that if its conduct is not supported by the contractual language, it has violated Sec 8(a)(5) and (1) of the Act In Collyer (supra at 839), the Board, Members Fanning and Jenkins dissenting, held that where a "dispute in its entirety arises from the contract between the parties, and from the parties' relationship under the contract, it ought to be resolved in the manner which that contract pre- scribes." Under such circumstances, the Board found, dismissal of the complaint, with appropriate retention of limited jurisdiction, is the appropriate disposition.. Adher- ence to Collyer,.at least as to cases alleging violations of Section 8(a)(5); was reaffirmed by the Board majority in Roy Robinson Chevrolet, Members Fanning and Jenkins dissenting " , • In Collyer the Board, citing back to its earlier -decision in Jos. Schlitz Brewing Co., 175 NLRB 141 (1969), set forth four criteria for the application of Collyer deferral: (1) that the parties have a long-established and successful bargaining relationship; (2) that "no claim is made of enmity by Respondent to employees' exercise of protect- ed rights"; (3) that Respondent demonstrate its willing- ness to submit the dispute to resolution under a final and binding grievance-arbitration procedure applicable to that dispute; and (4) the issue arise out of the confines of the collective-bargaining relationship. The General Counsel here raises no contention that the first three cri- teria have not been met. Indeed,. the facts establish that there has been a long and presumably successful collec- tive-bargaining relationship between Respondent and the Union, Respondent's conduct here, while unlawful' if not authorized by the contract, does not appear to be moti- vated by an intention to disparage employee exercise of statutory rights, and Respondent has indicated its will- ingness to submit this dispute to the contractual griev- ance-arbitration machinery.' 2 Clearly" deferral is not warranted where contract lan- guage is clear and unambiguous and permits no construc- tion Which could legitimize the action taken. Struthers Wells Corp., 245 NLRB 1170 fn. 4 (1979). The initial question, therefore, is whether, as Respondent contends, this is a dispute which presents questions concerning the interpretation of the collective-bargaining agreement or whether, as the General Counsel contends, no fair read- ing of the relevant contract language would authorize Respondent's actions: The warrant for its actions, Respondent 'argues, is found in the interplay of CSATTA article 33, which provides that either p&ty may reopen negotiations when , "change in economic or competitive circumstances 11 See also Maine Yankee Atomic Power Co, 258 NLRB 832 (1981), where the Board reversed an administrative law judge's Collyer deferral involving the unilateral creation of a new job outside the unit and the transfer of unit work to that new position on the basis that the issue of deferral to arbitration had been neither pleaded nor raised, the Board noted that the employer had not requested deferral of the basic issue See also Standard Oil Co (Ohio), 254 NLRB 32 (1981), where the Board, Member Fanning dissenting, determined that an 8(a)(5) issue involving an employer's unilateral implementation of a voluntary program of physical examinations was appropnate for Collyer deferral 12. The contractual gnevance procedures, providing for resolution of all controversies by Joint State and Joint Area Committees made up of equal numbers of delegates from labor and management, satisfy the Board's standards for deferral See United Parcel Service, 232 NLRB 1114 (1977), and cases cited at fn 4 See also Campbell Sixty Six Express, 202 NLRB 1126 (1972) ,COMMERCIAL CARTAGE CO. 641 • . . has a significantly adverse effect on the financial structure of the tank truck industry" and article IV of Respondent's relief addendum, which provides that "any additional relief from the current Central States Area Tank Truck Agreement accepted by the Union member- ship will also affect this addendum" Respondent con- tends "that these articles obligate Local 618 to submit a wage relief proposal to its members for a vote prior to Respondent's obligation to pay such increases." Re- spondent relied on these _contractual provisions and the fact that relief was being 'sought by the LRAA and had been granted to at least two of its- competitors when it notified the Union that it was withholding the November 15 wage increase pending bargaining for additional relief. I cannot conclude, as the General Counsel would have me do, that the contractual language presented is so clear and unambiguous that Respondent's interpretation must be rejected out of hand. In particular, the words "accepted by the Union membership" might be interpret- ed as Respondent urges, particularly when considered in conjunction with the language of Cavatoe's May 20 letter. That letter, purporting to clarify article IV,- ap- pears to lend credence to Respondent's interpretation when it states that any changes in the CSATTA "that can be effective or less than our settlement must be pre- sented to your employees and our members, and voted on for approval." (Emphasis added.) One can argue that Ca- vatoe's letter can be construed as the Union's acknowl- edgment of its obligation to present Respondent's , pro- posals for relief to its members for a vote. One can also argue that it merely prohibits Respondent from imple- menting changes unless and until approved by that mem- bership Which argument is the more persuasive is a fit question for an arbitral panel. Accordingly, I must con- clude that Respondent's conduct raises a question of con- tract interpretation suitable for resolution by the parties' agreed-to method of dispute resolution. However, the General Counsel further argues ,that Re- spondent's conduct, withholding a scheduled wage in- crease, i.e., its "failure to implement the wage provisions. amounts to a repudiation of the contract and strikes at the very heart of the collective-bargaining relationship." From this, the General Counsel argues that it would be inappropriate to defer the dispute to the grievance-arbi- tration machinery, citing Oak Chff-Golman Baking Co., 207 NLRB 1063 (1973). Oak Chff-Golman, I 'believe, is distinguishable from the instant case. In Oak Cliff- Go/man, the employer had unilaterally modified the con- tract, reducing wages and salaries, as an alternative to closing its business when faced with dire economic cir- cumstances. At hearing, the employer asserted a defense based upon Collyer. The Board, in a panel consisting of Chairman Miller and Members Fanning and Jenkins, re- jected the deferral defense. The latter two Board Mem- bers held that they would not defer under any . circum- stances because they did nOt subscribe to the policy enunciated in Collyer Chairman Miller reasoned that de- ferral was inappropriate because there was "no claim,: and indeed no room for any finding, that the contract's terms even arguably authorized the action taken by Re- spondent." Thus, he noted, the _case did not turn on any underlying dispute over the meaning of a contract's terms 13 The employer in Oak Cliff:Golman further con- tended that ,its action was at most a breach of contract which should be remedied "by other processes and ulti- mately by the courts." It was in response to this conten- tion, not the Collyer defense, that the Board stated "that a 'clear repudiation of the contract wage provision is not just a mere 'breach of the contract, but amounts, 'as a practical matter, to the striking of a death blow to the contract as a whole, and is thus, in reality, a basic repu- diation 'Of the' bargaining relations-hip." In such circum- stances, the Board held, it was authorized and obligated "to protect the statutory process of collective bargaining against conduct so centrally disruptive to one of its prin- cipal functions—the establishment and maintenance of a viable agreement on wages." Even assuming that the language of Oak Chff-Golman, quoted above, is applicable to questions of Collyer defer- ral, I cannot find, in the circumstances of this case, that Respondent's refusal to implement the scheduled wage increase amounts to a "death . blow to the contract" or "a basic repudiation of the bargaining .relationship." Here, Respondent continued to apply all other terms of the collective-bargaining agreement, notified the Union of its intended action, and sought .bargaining with the Union. There is not the slightest indication that Respondent would' not have complied with the results of any negotia- tions or a vote of the membership had one been conduct- ed. Respondent, I must conclude, was not repudiating its contract; rather, it was complying with (or taking advan- tage of) what it believed were its rights to seek economic relief during the term of the agreement." Accordingly, I shall. recommend that the 8(a)(5) por- tion of this consolidated complaint be dismissed with the Board retaining limited jurisdiction, as hereinafter de- scribed. _ C. Alleged Discrimination 1. Factual discussion Samuel A. Williams commenced his employment with Respondent in 1967. Throughout his tenure he was a transport truck driver and a member of the Union. For approximately 11 years prior to his discharge on Decem- ber 9, 1981," he was the Union's steward. As steward, Williams filed an average of two or three grievances per month. During 1979, he had also filed two unfair labor practice charges alleging that Respondent was discrimi- nating against him because of his union or other protect- i3 See Roy Robinson Chevrolet, supra at 830 14 The General Counsel notes in brief that Respondent made no pro- posal for relief until. March 1982, by which time it was already 3 months delinquent in paying the scheduled wage increase This is, I believe, irrel- evant as Respondent was, at all times, relying on both the efforts of the LRAA to secure relief on an assoctationwide basis and on the relief sub- sequently granted to other employers in Respondent's geographical area Moreover, I note that as the relief Respondent sought included rescission of the scheduled.wage Increase, payment of that wage increase when the contract called for it would have essentially negated:the relief Respond- ent sought Recovery of those moneys from the employees after payment would have been impractical, if not impossible " As above, all dates are 1981 unless otherwise specified 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed concerted activities. 16 Williams received several rep- rimands between 1973 and 1975, but had a clean discipli- nary record for approximately 5 years prior to May 1981. On March 19, Williams (as an individual) filed an unfair labor practice charge, Case 14-CA-14829, alleging that Respondent, by refusing to pay a wage increase due on November 15, 1980, by threatening employees with the closure of its Fenton terminal, and by soliciting em- ployees to operate as independent .contractors, had dis- criminated against its employees, and had engaged in other conduct in an attempt to discourage membership in the Union." Williams served this charge on Respondent, and it was seen by both Stanley and Lawrence Lewis, at the beginning of a March 19 meeting held for the pur- pose of negotiating Respondent's relief addendum. Ac- cording to Williams' unconiradicted testimony, Stanley Lewis, on receiving a copy of the charge, asked Business Representative Cavato,e what it was all about ' Cavatoe stated that Williams had merely exercised his right to file a charge with the NLRB. That meeting continued fol- lowing Williams' service 'of the charge and broke up sev- eral hours later when Williams questioned the veracity of Stanley and Lawrence Lewis and accused the company of presenting forged-_ documents to Justify its economic position 5 8 . On March 20, Williams returned to the Fenton termi- nal, clocking out at 4:13 p.m. He was told that Lawrence Lewis wanted to see him and was directed to wait. He waited approximately 15 . to 20 Minutes and was then brought in to Lawrence Lewis' office. There, according to Williams' testimony, Lewis referred back to a conver- sation held a week earlier, wherein a reference had been made to how much various people were worth at Com- mercial Cartage, picked up a copy of Williams' unfair labor practice charge, threw it across the desk and told Williams "this is the limit . you're done at Commer- cial Cartage . from now on you'd best watch yourself around here." Lewis' tone of voice, 'according to Wil- liams, was not "quite normal"; Lewis was allegedly yell- ing "to a certain extent." Lewis unequivocally disputes and denies Williams' version of this conversation: He tes- tified, in a version which I- deemed to be the more accu- rate for the reasons set forth below, that he made no ref- erence to the charge filed and served on March, 19. He " Williams referred to these as "discrimination charges" and, It ap- pears, drew a distinction between such charges and his subsequent charge, which he knew to be an "unfair labor practice charge" Contrary to Respondent's contention, find no basis' to' discredit Williams arising from the fact that he denied filing "unfair labor practice charges" prior to March 1981 His error was one of terminology, not credibility i7 record does not reflect the disposition of Case 14-CA-14829 I note that in the relief addendum ultimately agreed to, Respondent agreed to pay all back wages due from November 15, 1980 18 Lawrence Lewis' version of the course of this meeting was not dis- puted or contradicted by either Williams, 'who testified in the General Counsel's case in chief and on rebuttal, or by Cavatoe I credit that ver- sion notwithstanding that a letter from Respondent's former attorney, set- ting forth Respondent's position on this case during the' investigative stage, apparently misstated that the meeting had broken up in part be- cause of the service of that charge That statement, as well as a statement that Lawrence Lewis subsequently spoke to Williams because Williams' charge filing had put "a fly in the ()Intl-gent," appear to be in error Re- spondent terminated its relationship with the attorney who drafted that letter also denied yelling at Williams or throwing a copy of the charge across the desk. According to Lewis, his conver- sation referred not to that charge but rather to Williams' accusations of the previous evening concerning alleged forgeries of company documents and to his attacks on the character and veracity of Stanley and Lawrence Lewis. Lewis told Williams that such behavior was not appropriate and not conducive to substantive negotia- tions, that negotiations could not proceed without an at- mosphere of. trust and confidence, and that claims of for- gery did not lend themselves to a successful conclusion of the negotiations.19 On May 23, Williams erred in the quantities of differ- ent grades of gasoline to be delivered to a customer He reported his error to the dispatcher and another driver was dispatched to provide the customer with the correct quantity of product ordered for the holiday (Memorial Day) weekend. On May 28, Williams received a written reprimand, signed by Norsen. This was the first disci- pline given Williams since the alleged threat in March. He filed no grievance or unfair labor practice charge in regard to it, notwithstanding that he testified to consider- ing this discipline the start of Lawrence Lewis' efforts to effectuate the alleged threat, because he admitted resfion- " Williams' credibility in regard to this conversation is weakened, rather than strengthened, by the attempt to support his version through the testimony of Clifford Pyatt Pyatt, called as a corroborating witness by the General Counsel, testified that after he "came in from work about 5 in the afternoon," he walked back to Lewis' office to report a problem with his truck There, at "around 5 00 or just a few minutes after," he allegedly heard Lewis state, in a voice both loud and mad, something to the effect that Williams was "through" or that Lewis would get Williams "one way 'or another" Pyatt subsequently testified that he had returned to the terminal at about 445 pm and had spent 10 or 15 minutes com- pleting his paperwork before he went to Lewis' office The clerical em- ployees who worked outside Lewis' office, he testified, were gone for the day when he walked by their work stations, the conversation which he allegedly overheard must have occurred, he said, between about 5 and 5 03 p m and he left the building within about 3 minutes after allegedly hearing, this threat However, documentary evidence, including Pyatt's delivery tickets and his timecard, establish that it would have been virtu- ally impossible for him to have been present when the conversation be- tween Lewis and Williams occurred Thus, while the testimony of Lewis credibly indicates that the conversation occurred shortly after 4 30, which testimony is essentially corroborated by Williams' timecard and the order of events which Williams described, Pyatt's delivery tickets es- tablish that he was approximately 45 miles and 1 hour's driving time away from the terminal at 4 10 p m He did not clock out that evening until 5 28 p m Moreover, the secretarial area outside Lewis' office would not have been devoid of employees at the hour Pyatt allegedly walked through it because, according to Lewis' uncontradicted testimony, those clericals worked on flextime and some would have been there beyond the 5 o'clock hour I note, too, that Williams testified that he believed he had walked past various secretaries on his way to Lewis' office I additionally note that Williams' affidavit, given on March 27, makes no mention of Lewis yelling at him or raising his voice and describes their conversation as "short, sweet, and to the point" Moreover, Williams claimed that he learned that Pyatt had overheard this conversation within a week or 10 days after It allegedly occurred Notwithstanding that he had filed a charge and given affidavits in support thereof, he claimed that he did not deem the existence of such corroborating evidence to be sufficiently im- portant or relevant to warrant reporting it to the Board Similarly, I note inconsistencies between Pyatt's testimony and his pretrial affidavit Con- sidering all of the foregoing, and my observations of the witnesses and their demeanor, I must conclude that Lawrence Lewis' denials of the conversation as attributed to him by Williams and Pyatt are more credi- ble than the versions of that conversation presented by Williams and Pyatt COMMERCIAL CARTAGE CO. 643 sibility for the 'mistake charged against him." Lawrence Lewis played no role in the events of May and Norsen denied that Williams' union or other protected activities motivated him in issuing this reprimand. In August, Williams and a number of other employees signed a petition addressed to the Fenton police depart- ment wherein they complained that Respondent was un- lawfully deducting money from their paychecks. When the police refused to act on the basis of a - petition, Wil- liams signed a formal complaint, charging larceny in excess of $150; making these same _allegations on behalf of himself and his fellow employees. The police contact- ed Respondent and informed Norsen of the role that Williams had played in filing the complaint. On August 15, Norsen wrote Williams, charging that he had made unfounded accusations which were "an act of dishones- ty" in violation of both that portion of the CSATTA which defined his authority as a job steward and , the contract's discharge and suspension provisions. Williams was suspended and warned that if his complaint against Respondent was not resolved by August 21, he would be discharged. Other involved employees were warned' that their support of the Complaint could subject them to dis- charge; they were advised to notify Norsen, by August 19, of their intentions with respect to that complaint. On August 20, Williams withdrew his complaint. On August 24, Norsen notified Williams, by letter, that his charges were "incorrect and, as such, an act of dishones- ty" which • could have resulted in discharge. However Respondent waived the discharge option and left his sus- pension, from August 16 through August 20, to serve as disciplinary time off.-The letter stated that it was a "final warning that any further violations of the Contract or Company Rules will result in your discharge." The em- ployees who had signed the petition but not the com- plaint were issued reprimands and warnings that further violations of the contract or rules would "result in severe disciplinary action up to and including discharge." Williams filed a grievance concerning his suspension but no timely unfair labor practice charge. He also filed a grievance restating his allegations concerning Respond- ent's unauthorized deduction of time and money from his wages. Norsen had come to Respondent and -become its vice president of operations in late April. He was, according to testimony, a , stickler for the enforcement Of`company rules. On May 15, he had issued a .memorandum to the drivers directing them to complete driver operational re- ports "on "on 'all operational and sales incidents" including "spills or mixtures (cargo loss), persbnal injury," and "trip-related incidents." On May 20, he issued a memo- randum informing the drivers of new forms for request- ing paid or unpaid time off. About September 10,. Williams' - grievance over his August suspension was discussed but not resolved at the first step of the grievance procedure. At that -time, ac- cording to _Williams, , Cavatoe informed Noisen and Law- rence Lewis that the grievance would be added to the 20 While Williams ' did not consider his mistake serious or costly, Norsen testified that the Company's efforts to rectify this mistake cosCit 8 hours' holiday pay agenda for the next meeting of the Joint State commit- tee, to be held on September 17 Williams testified that he told Lewis and NorseOhat he would be in attend- ance to present his grievance. Norsen-testified that verbal notice given at that time would have been satisfactory notwithstanding that written notice of time off for union business was required under article IV of the CSATTA. However, he denied hearing Williams say that he would be attending the next step of the grievance procedure.21 It is conceivable that Williams made the statement, 'as he claimed, and that neither Norsen nor Lewis heard it. Whether they heard- it or not, I find it difficult to believe that they would not have expected Williams to absent himself from work to -attend a grievance meeting where- in his own grievance would be discussed . and possibly re- solved. When Williams reported for work on September 16, he informed the dispatcher that he would be absent the following day. The dispatcher said he would write .it on the dispatch sheet and Williams observed him making some notations thereon Williams ,then took out his first load for the day and, while making that delivery, was sprayed with gasoline. According to Williams, no more than one-half gallon escaped from the I-lose and all of it fell on him, soaking his trousers. None of the spillage hit the ground. -Williams reported the, incident to the dis- patcher, stating that he would complete the load, return the truck to the terminal, and go home to shower and change. - On Williams' feturn to the yard, he found two mes- sages and forms in his mailbox. The first requested him to sign a leave-of-absence form for the following day. Williams refused; he wrote on -the form, "This is ncit leave of absence—this is union business." The second re- quested that he till out a driver operational report "for cargo loss for coverage of possible complaint from term or customer" Again, Williams refused, writing his own note 'which stated, "There was not spill only what went on me. One half to one gallon. Sam." On September 22, Williams received his third repri- mand since March 1981. That reprimand, a letter signed by Norsen, referred to his refusal to complete both forms and to his poor attendance for the week It alluded to the cost of health and welfare benefits incurred by Re- spondent and stated. . We cannot tolerate poor ,attendance or failure to fill out required requests for time off or explanation of why you cannot complete a days' work We pay an enormous amount of fringe benefits on each em- ployeee and must have complete attendance and job performance if we hope to remain in business. This letter is a warning that you must make ar- rangements in advance if you intend to be off work for any reason and that' you will fill out required re- ports as requested or disciplinary action will follow. 21 Although Cavatoe testified on behalf of the General Counsel, he was not questioned and did not testify concerning Williams' alleged verbal notice Lewis, however, corroborated Norsen's testimony 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams testified that company policy, as he under- stood it, did not require the ,completion of a spill report unless 5 or more gallons of gasoline were spilled Pyatt, attempting to corroborate Williams, testified that no spill report , was required unless 5 or more gallons were spilled Spills of 3 to 5 gallons, he said, were merely noted on the delivery slip which was signed by the sta- tion managers or attendants. He, too, had had an incident where 1 or 2 gallons of gasoline spilled on his person, but that occurred approximately 2 years earlier. The only report Pyatt made of that incident, other than ver- bally informing the dispatcher, was to "make a notation on the delivery ticket. Norsen testified that he made no exceptions in the requirement for 'completion of driver operational reports based on the size of a spill: He knew of no other incidents where a spill had occurred where a driver was requested to complete a report and did not do so. Respondent's exhibits, driver operational reports sub- mitted both before and after Williams' September 22 rep- rimand, establish that drivers did submit reports of spills The smallest spill rePorted, however, was 5 or 6 gallons Williams also testified that his attendance record was good and no evidence was offered to refute that testimo- ny. ' On September 22, Williams received a letter from Re- spondent which reviewed the claims of improper pay- ment alleged in his grievance. In that letter, Norsen as- serted that no instance of pay shortage could be found, that Williams' claim was unfounded, that the review which Respondent undertook had been time consuming and expensive, and that most of his problems were due to improper or incomplete logging of off-duty time and rest or lunch stops. That letter concluded with a remind- er that pay requests must be completed in accordance with company policy and with a warning stating that "all lunch and rest stops must, be logged according- ly. . . . Failure to properly complete your log or trip re- ports could subject you to disciplinary action." A copy of that letter was placed in his personnel file and that fact was noted in the letter Since at least some time prior to November 1979, Fed- eral and state laws have required that vapor recovery systems be used when deliveries of gasoline are made to retail outlets. Such systems prevent the escape of gaso- line fumes into the atmosphere. Respondent has endeav- ored to comply with these legal strictures. As early as November 30, 1979, Lawrence Lewis issued .a memoran- dum to all of Respondent's drivers wherein he referred to deliveries being made Without effecting the vapor re- covery connections and stated, inter alia, "this disregard for the Federal and State laws, as well as Company policy must cease immediately. We intend to 'comply with the law as much as possible." Lewis also referred in the letter to the possibility of lost business resulting from driver failure to use vapor recovery. Williams described his understanding of Respondent's policy regarding the use of _vapor recovery: Its use was required, he said, "at all times if and when possible." Other employees de- scribed it in even stronger terms. Thus, Howard Guerber testified that the policy was "to always use vapor recov- ery unless . . . it's impossible and then you call in." John Kronmueller testified that its use was mandatory and Clifford Pyatt similarly testified that impossibility was the only justification for failure to effect the vapor re- covery hookup, that this was strict company policy, that violation of this policy would subject any employee to discharge and that Norsen was "a stickler for the rules." Each of the employees, however, testified that there were instances when vapor rebovery hookup could . not be made and that, in such circumstances, they were ex- pected to call the dispatcher and secure authorization before making a delivery without using vapor recovery. Each also testified thaf at various sites where vapor, re- covery was impossible, they had ceased calling after re- peatedly requesting and being granted such authoriza- tion Respondent also had a' policy which required that drivers not leave' the hoses unattended while gasoline is being delivered 'into the underground tanks. Gasoline, it was pointed out, is an extremely hazardous Product, both toxic and-highly explosive.. On,, the morning of December 9, Williams was dis- patched on two loads, the second being to a Skelly sta- tion across from, the airport where he had been making deliveries several times each month for a number of years. After completing his first delivery, he picked up the second load and drove to that station According to his testimony, when a driver would pull into that station to make a delivery into the 10,000 gallon regular gasoline tank in the manner directed by the station manager, vapor recovery hookup was impossible because the rear wheels of .the trailer would be immediately over the con- nection to the vapor recovery system Williams testified that he had never used the vapor recovery system on that tank 'and had initially called the dispatcher on each occasion to inform him of that impossibility prior to making his delivery After months of securing authoriza- tion to make the delivery without vapor recovery, Wil- liams stopped calling He had not been 'making such calls for the last 6 months 22 - 22 Williarns' testimony is corroborated by that of Kronmueller and both corroborated and contradicted, to some extent, by the testimony of Guerber and Pyatt Thus, Guerber initially testified that the vapor recov- ery on that tank could be used when only one type of gasoline was being delivered He said it could not be used on most occasions when two types of gasoline were being delivered because the dnver could not get lus.truck and trailer Into the station correctly, that cars would block the access On 'cross-examination, Guerber admitted that it was possible to use the vapor recovery system on that tank but that its use required addi- tional work including the moving of the truck However, he further testi- -Tied that the system on that tank had been changed since December 1981 and that prior to that date that tank did not have a working vapor recov- ery system This latter testimony is not corroborated by any other wit- nesses, was not mentioned in an earlier -affidavit given by Guerber, and is not credible Pyatt testified that if a driver pulled into the airport Skelly station the way its management wanted him to, the trailer would be on top of the vapor recovery system, its wheels would prevent access to the connections, and, if there was enough room to 'reach them, the hoses were not long enough to make the connection His testimony about the length of the hoses was credibly disputed by Respondent He further tes- tified, in what was clearly an exaggeration, that the plate over the con- nection was a- half-inch thick sheet of steel 4 feet square which could not easily be lifted All three drivers corroborated Williams' testimony that they, had ceased calling the dispatcher for permission to make deliveries at that station without effecting vapor recovery some 6 months or so ear- lier COMMERCIAL CARTAGE CO 645 According to Williams, he pulled into the station on December, 9 in the way he normally did, and began un- loading into the 10,000 gallon regular gasoline tank with- out attempting to- hook up the vapor recovery system. At some point during his dellyery, he allegedly shut off the flow of gasoline and went into the station to speak with a Skelly official about changing the type of hookup being used from a 2-point connection- to a single-point system. That official, Charles Rand, agreed with Wil- liams, according to Williams' testimony, and promised that he would speak to the Company's engineering de- partment about changing the system. As Williams was then completing the delivery into this tank, Lawrence Lewis drove up, stepped out of his car with a camera,2-3 and asked him Why he was not using the vapor recov- ery Williams explained the situation to Lewis, showed him why the vapor recovery system could not be used, and told him that he had pulled into the station in the manner requested by the customer. Lewis took some pic- tures, went inside the station, and spoke with Rand while Williams completed that delivery, moved the truck to the next set of tanks, hooked up the yapor recovery system, and completed his delivery. When Lewis came out of the station, he told Williams that Williams was being suspended and would be driven back to the termi- nal in Lewis' car After a brief wait , at the ternimal, hams was palled into Norsen's office Norsen asked him whether he had failed to use the vapor recovery system and whether, he had left the trailer unattended while gas- oline was being delivered Williams explained the impos- sibility of using the vapor recovery system from the posi- tion the equipment was in and his reason for so, position- ing the truck. 24 He denied admitting that he had made a mistake warranting his discharge, as contended by Norsen and Lewis, discussed infra. Norsen told Williams that inasmuch as he "was on a final warning from the Fenton police incident . . . they had no alternative but to discharge" him. As Lawrence Lewis described the incidents of Decem- ber 9, he had been driving to a business aripointment and passed the airport Skelly station. On doing so he noticed one of the Company's trucks with the product hose con- nected from the truck to the tank but no driver in at- tendance. From -that vantage point he could not observe whether gasoline was actually, being delivered When he drove around the back of the station he saw gasoline fumes emanating from vents at the rear of the station which, established that gasoline was being delivered and that the delivery was being made without vapor recov- ery. As he pulled around the front of the station he ob- served Williams coming out of the station, going to his truck., He watched Williams complete his delivery and move the hose to the next tank, again without making a vapor recovery hookup Lewis then approached Wil- 23 Credible testimony established that all company officials carry cam- eras for the purpose of photographing accidents, competitors who fail to make appropnate vapor recovery hookups, and other incidents 24 Williams acknowledged, under questioning by me, that it would have been possible to pull his truck in in a different way so as to effect yapor recovery but stated that to do so would have blocked a portion of the front of the station It was this obstruction to which the customer objected hams and asked whether he was going to hook up the vapor recovery system. Williams protested that-he could not reach it but, when Lewis asked him to try, was able to make the connection. Lewis asked Williams why the connection had, not been used on the first tank and Wil- liams told him that it was not possible, that he had dis- cussed the problem, with the customer's representative, had suggested that they utilize a different kind of hookup, and said the customer's representative had agreed with him. After speaking with the customer's representative, Lewis called the terminal and told Norsen what he had observed. Norsen told him to suspend Williams and bring him back to- the terminal. After watching Williams complete his delivery, and proving to Williams that the plate over the vapor recovery system could easily be re- moved, Lewis took some photographs and then drove Williams back to the terminal. At the terminal, according to both Norsen and Lewis, Williams was asked why he had not used the yap& recovery' system. Williams, ad- mitting that he- had not used' it and had made a mistake in' not doing so, claimed that the position of the rear wheels on the trailer prevented access. to the vapor re- covery system Norsen then- asked why he had allowed product to be delivered without attending the hoses. To this, Williams responded that he could see the hoses from inside the station but admitted that he had made a mistake. Norsen then told Williams that Respondent could not condone his violations of company policy, that what he had done were dischargeable offenses and that he would be suspended pending probable discharge. Wil- liams left the meeting sayingsomething to the effect that Respondent would never get 'awaywith discharging him. On December 9, Respondent,. in a letter signed by Norsen, discharged-Williams That letter described the events of December 9 and charged him with both un- loading without use of the vapor recovery system and leaving his unit while product was being discharged. It went on to state as follows: Your actions are in violation of the Uniform Rules and Regulations" Governing Employees of Tank Truck Carriers Signatory to the Central States Area Tank Truck Agreement, Sections 3(g) "Fla- grant disobeying of orders. First offense—repri- mand," and 3(j) "Leaving equipment unattended when loading, cfr unloading.. First offense—repri- mand." You were issued a final warning on August 24, 1981 that any further violations of the contract or Company Rules would result in your discharge. In view of 'the final warning and the nature of your conduct and attitude during what should have been a routine delivery, we feel we have no alterna- tive except to discharge you for continued viola- tions of the contract and Company rules. Notwithstanding the language of the discharge letter, Norseti testified that Williams would have been dis- charged for his December 9 conduct whether or not he had received the August 24 final warning. The reference to that warning, according to Norsen. was only to satisfy the procedural requirements of the contractual grievance 646 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure. The grievance committees request employers to furnish prior disciplinary records at the grievance pro- ceedings, he said. Williams filed a grievance -over his discharge and that grievance was heard at several levels, culminating in a hearing before the Joint Area committee in Hollywood, Florida, on February 9, 1982. At that hearing, Stanley Lewis, speaking for •RespOndent, stated in the course of his summation that William's had disagreed with him in regard to economic relief for the employer in the March negotiations and "that since that time period [Williams] had tried to become a knight in shining armor and take up all the troubles of the rest of the drivers."25 Several employees, including Kronmueller, provided affidavits to Williams for his use in regard to his griev- ance, which affidavits purported to show that the vapor recovery system could not be used at the airport Skelly station. Kronmueller's statement was brought out at the Two and Two (Joint State Committee) hearing and, on the following day, according to Kronmueller, Norsen ap- proached him, looked at him with what Kronmueller de- scribed as "the evil eye" and told him "I'll get you for that." Norsen admitted knowledge of Kronmueller's affi- davit in support of Williams, admitted making notations as to which employee had- given such affidavits, and ad- mitted speaking to Kronmueller about it. He claimed that he only told Kronmueller that Respondent was going to see to it that the people who had signed affidavits indi- cating that they could not _make the vapor recovery hookup at the airport Skelly station were . assigned to make ,deliveries to that station so that Respondent could establish that their statements were untrue." On January 14, pursuant to Norsen's directions, Kronmueller was as- signed to make a delivery to the airport Skelly station and to call, Norsen as he was leaving for that site so that Norsen could meet him there. When Kronmueiler called in, he asked Norsen why Norsen was coming out to the station. Norsen told him that it was to take his picture and prove that his affidavit supporting Williams was a lie. Norsen did meet Kronmueller at that station and took his picture using , the vapor recovery system "in every way imaginable' including on the 3 10,000 gallon regular gasoline tank. Considering that Norsen did what, according to his testimony, he stated he would do when he spoke to Kronmueller, and also considering both their demeanors andY inconsistencies between Kronmueller's testimony and his affidavit, I. must credit the testimony of Norsen over that of John Kronmueller., e 2. Analysis and, conclusions The General Counsel contends that Respondent bore animus against Williams because of the unfair labor prac- tice charges he had filed 'in March 1981, and other; union or protected activity he had engaged in, and "engaged in a systematic effort -to build a case against Williams in 95 Stanley Lewis acknowledged ,that; in response to an inquiry about the grievances filed by Williams, he had referred to Williams as consider- ing himself "a knight in shining armor" • 96 The General Counsel , offered this evidence solely to establish Re- spondent's animus toward employee exercise of protected rights, the in- tention to allege this as a separate violation of Sec 8(a)(1) was expressly disclaimed ' order to eventually justify its intention to discharge him" Both the September 22 disciplinary warnings and the December 9 discharge are alleged as violative of Section 8(a)(1), (3), and (4) of the Act:27 Each of The ac- tions taken against Williams by Respondent, according to the General Counsel, was in fulfillment of the threat - al- legedly uttered by Lawrence Lewis on March 20. The discharge incident resulted, according to the General Counsel, 'from an elaborate multistage scheme whereby Williams would be dispatched to a station at which Re- spondent knew that the drivers "could not and did not" use the vapor recovery system, in such a way that Re- spondent would know when he was there, with Lewis positioned and camera equipped so as to catch him in,the alleged transgression. Respondent denies that there Was any scheme to discipline and ultimately discharge Wil- liams and asserts that the conduct in which Williams en- gaged on December 9, in and of itself, warranted and brought about that discharge. The alleged March 20 threat by Lewis to Williams is the linchpin, in the General Counsel's theory, holding a wheel consisting of four disciplinary actions to an axle of unlawful motivation The General Counsel's failure to es- tablish the threat by a preponderance of credible evi- dence has withdrawn that linchpin. I cannot find, in its absence, 'that the discipline which followed Williams' filing of Case, 14-CA-14829 on March 19 was part of any systematic effort to build a case against him or was otherwise motivated by animus-toward Williams' charge- filing activity. Accordingly, I shall recommend that the 'General Counsel's complaint, insofar as it 'alleges a viola- tion of Section 8(a)(4) of the Act, be dismissed." The failure of the General Counsel to credibly estab- lish the March threat, or to convince me that its "sys- tematic scheme" theory is valid, does not preclude a finding of merit as to some of the complaint's allegations. It is clear on the face of the August reprimand and sus- pension letters_ that Williams, by filing the complaint with the Fenton police, had engaged in an activity both concerted and protected 29 Similarly, it ,is plain, from the 27 Inasmuch as the charge in Case 14-CA-15790 was not filed until March 9, 1982, Sec 10(b) of the Act precludes any unfair labor practice finding in regard to the alleged March 20 threat, the May repnmand, or the August reprimand and suspension • , 28 •With respect to the reprimand which Williams received in May, I can find no evidence which would warrant a conclusion that Williams was disciplined at that time in repnsal for his charge-filing activities, even assuming that Sec 10(b) of the Act would permit such a conclusion See Machinists Local 1424' (Bryan' Mfg) v NLRB, 362 U S 411 (1960), and Greenville Cotton' Oil Ca, 92 NLRB 1033 (1950), enfd sub nom Grain Millers v NLRB, 197 F 2d 451 (5th Cir 1952), discussed Infra Williams admitted making the mistake for which he was reprimanded and Re- spondent's action in reprimanding him may as rationally be explained by the presence of Norsen, a stickler for ngicl adherence to company rules and newly arrived on the Commercial Cartage scene, as by any implica- tion of animus Moreover, It must be noted that Williams had filed previ- ous charges without any hint of employer animus toward such activity and that Lawrence Lewis, the alleged perpetrator of the threat, was not involved in the May discipline Rejection of the General Counsel's con- tentions that the May discipline was unlawfully motivated and evidenced animus ffirther negates the General Counsel's'contention of a long-range scheme to eliminate Williams from the scene ' 29 See Ambulance Services of New Bedford, 229 NLRB 106 (1977), enfd 564 F 2d 88 (1st Cir 1977) Therein, much like here, the employee com- Continued 'COMMERCIAL CARTAGE CO 647 face of the disciplinary letters issued to Williams and his fellow employees, that Respondent strenuously objected to this exercise of their statutory rights. This animus, al- though displayed by Respondent in actions taken outside 10(b)'s limitation period, may be considered to explain and "shed light on the true character" of Respondent's actions within that statutory period which may consti- tute, in and of themselves, unfair labor practices. As the Supreme Court more fully stated in Bryan, supra, 362 U.S. at 416-417: It is doubtless true that § 10(b) does not prevent all use of evidence relating to events transpiring more than six months before the filing and service of art unfair labor practice charge. However, in ap- plying rules of evidence as to the admissibility of past events, due regard for the purposes of § 10(b) requires that two different kinds of situations be dis- tinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices There, earlier events may be utilized to shed light on the true character of mat- ters occurring within the limitations period; and for that purpose 10(b) ordinarily does not bar such evi- dentiary use of anterior events. The second situation is that where conduct occurring within the limita- tions period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the =earlier unfair labor practice is not merely "evidentiary," since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with ille- gality that which was otherwise lawful. And where a complaint based upon that • earlier event is time- barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice. The two disciplinary letters issued to Williams on Sep- tember 22 fall within the ambit of the first situation de- scribed by the Court in Bryan. They may, and I find that in part they do„ constitute unfair labor practices in and of themselves on which Respondent's pre-10(b) conduct sheds light, helping to establish Respondent's animus, an element necessary to a finding of violation. Such animus is similarly shown by thé remarks of Stanley Lewis at Williams' February 1982 grievance hearing wherein Stanley Lewis, in seeking to persuade the grievance panel to sustain Williams' discharge,. derogatorily re- plamed to the police that the employer was is.sumg checks which were not being honored and filed a crimmal-complann against the signer of the checks, his employer's president For that he was discharged The Board found that the employee's conduct therein constituted protected concert- ed activity The merits of Williams' complaint, moreover, are irrelevant to this conclusion so long as his complaint was not made in bad faith Wagner-Smith Go, 262 NLRB 130 (1982), OMC Stern Drive, 253 NLRB 486 fn 2 (1980), enfd 676 F 2d 698 (7th Or 1982), John Sexton & Go, 217 NLRB 80 (1975) There is neither evidence nor implication of bad faith in this record ferred to Williams as a "knight in shining armor" taking up the causes of other employees 30 More strongly evidencing the discriminatory nature of the reprimand issued to Williams for his refusal to com- plete a leave-of-absence request and -the warning issued to him for alleged absenteeism and improper logging of off-duty time is the 'obvious pretextual nature of those reprimands. Neither the collective-bargaining agreement nor the rules as announced by ,Norsen required that a union officer take a leave of absence to attend to union business and Respondent ,knew or should have known that his September 17 absence was for official union busi- ness. Indeed, the simple fact is that Williams was repri- manded for taking time off, to attend to union business, itself a protected activity. Additionally, Respondent in- cluded totally unwarranted references to absenteeism in the warning. , Similarly, the second September 22 warning appears to have been motivated by animus directed toward Wil- liams' filing of the grievance to which the September 22 letter purported to respond. That very response sought to discourage similar recourse to the grievance proce- dure by emphasizing Respondent's displeasure at having to investigate claims of improper wage payments and warned that further discipline might result if such griev- ances brought to light what Respondent deemed to be the grievant's errors rather than-Respondent's. Accordingly, I must conclude that by reprimanding Williams for his refusal to submit a leave-of-absence re- quest for his union business related absence on Septem- ber 17, and its threat of discipline for filing a grievance concerning his wage payments, Respondent has violated Section 8(a)(3) and (1) of the Act." Notwithstanding that I have found that Respondent bore animus toward those who would exercise their stat- utory rights, and particularly toward Williams, I am con- strained by both the facts 'and the law from finding a vio- lation in Williams' discharge. Williams was caught at the Skelly station in flagrante delicto, in violation of two well-established and significant rules I cannot subscribe to the theory, propounded by the General Counsel, that this event was the result of an elaborate scheme wherein Respondent set up Williams for discharge, for the fol- lowing reasons (1) I have discredited the evidence of the threat which allegedly set the ground work for such a plot; (2) the evidence does not establish that Williams' as- 30 Stanley Lewis was certainly not, by these remarks, attempting to persuade the gnevance panel of Williams' virtues I note, further, that to a lesser extent even the credited versions of the March 20 conversation between Lawrence Lewis and Williams and the conversation between Norsen and Kronmueller concerning Kronmueller's affidavit in support of Williams tend to indicate Respondent's displeasure with employee ex- ercise of protected rights 3i reaching this conclusion I have rejected the General Counsel's contention that the September 22 repnmand, to the extent that it related to Williams' refusal to submit a dnver operational report concerning the "spill" of gasoline, was also discnminatory Respondent's policy, requir- ing the submission of such reports, contained no exceptions based on the amount of the spill and the evidence of any policy negating such a re- quirement for small spills was too vague, contradictory, or outdated to negate the plain language of the rule Moreover, unlike the leave of ab- sence and grievance response matters, Williams' refusal to submit a inci- dent report did not involve any protected nghts 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD „. signment to two trips in succession was made so that Re- spondent would know when he would arrive at the air-, port Skelly station; (3) in view of the fact that the em- ployees had not been calling in to report difficulties with the vapor recovery hookup at the airport Skelly station for 6 or more months, it cannot be established that Re- spondent would have had reason to believe that Williams would not utilize the vapor recovery system when making that assigned delivery; (4) similarly, in view of the importance Respondent attached to the use of vapor recovery systems, I cannot believe that it would know=: ingly have permitted the nonuse of vapor recovery for any 'significant length of time, as would necessarily be implied by the General Counsel's theory; (5) considering all Of the evidence, including both the testimony of van= ous witnesses and pictures 'introduced into evidence, I must conclude that Williams could have made the vapor recovery hookup on the 10,000 gallon regular gasoline tank, albeit with some extra effort, by stationing his truck somewhat differently, either a few feet back or ahead and by using extra hoses; and, (6) I further conclude that the evidence establishes Williams' failure to attend the vehicle while gasoline was being unloaded or, at the least, Respondent's reasonable belief that he had so failed. Williams had thus placed himself in breach of the - established rules of conduct and exposed himself to Justi- fiable discipline. Respondent contends ,that Williams' -December 9 con- duct warranted and would have brought about his dis- charge even absent any prior warnings. This self-serving assertion is contradicted. by the very language of the dis- charge letters. Therein, each of his actions on that day is described as a violation, for which reprimand is the ap- propriate first offense penalty. The letter goes.on to refer' to the final warning of August 24 and states , that his dis- charge results from that final warning and from his con; duct on December 9. The letter, not Respondent's testimony, accurately .de- scribes the reason for discharge. The set of facts . put - forth in the letter, lbelieve, presents the second situation described by the Court in Bryan, infra, wherein the . Court referred to "conduct occurring within the, limita- tions, [which] can be charged to be an unfair , labor prac- tice only through reliance on an earlier [time-barred] unfair labor practice." To establish that Respondent's 're-. liance on the August 24 final warning renders the, dis- charge unlawful one would have to find that warning, itself, to have been unlawfully issued. This is preciiely- what Section 10(b), as analyzed by the Court in Bryan; prohibits. See also Greenville Cotton Oil, supra, cited with approval by, the Court in Bryan. Therein, strikers who had •been. permanently replaced demanded reinstatement on the ground that the strike had been caused or pro- longed by unfair labor practices committed by the em- ployer prior to the hiring of the strike replacements. However, since the alleged unfair labor practices took place more than 6 months prior to the filing and the' service of the charge, the Board held that Section 10(b) barred any reinstatement orders. See also Davis Fire Brick Co., 131 NLRB 393 (1961). Williams' discharge was therefore premised on discipline validly assessed for breach of Respondent's . rules and a final disciplinary warning, ,the_ validity of which is beyond attack. Under such circumstances, even evidence of Respondent's animus toward those who would engage in statutory pro- tected activities is insufficient to sustain the General Counsel's ultimate burden of proving the discharges dis- cnminatory. It cannot be said, on this record, that Re- spondent would , not have discharged Williams on De- cernber 9 whether or not he had engaged in , union or other protected concerted activities. See Wright Line, 251 NLRB 1083 (1980). See also Klate Holt Co., 161 NLRB 1606 (1966), wherein the Board noted that the circumstance that the, employer may have welcomed the justified opportunity to discharge an unwelcome activist does not make the discharge discriminatory and unlaw- ful. Accordingly, I shall recommend that the consolidated complaint, to the extent that it alleges that Williams was discharged in violation of Section 8(a)(3) and (1) of the Act; be dismissed. • THE REMEDY Having found that Respondent has engaged in certain unfair labor ,practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed,to effectuate the policies of the Act.. CONCLUSIONS OF LAW - 1: By reprimanding and threatening its employees with discipline-for filing grievances or engaging in other union and protected .concerted activities, Respondent has vio- lated Section 8(a)(1) of the Act. 2. -The- aforesaid unfair labor practices affected com- merce withinahe meaning of Section 2(2); (6), and (7) of the Act. 3. Respondent .has, not engaged in any unfair labor practices other than those described above. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed32 . ' ORDER The Respondent, Commercial Cartage Co., Fenton, Missouri, its officers,' agents, successors, and assigns, shall 1. Cease and desist from (a) Reprimanding or otherwise threatening employees with discipline for filing grievances or engaging in other union and protected concerted activities. '(b) In any' like -or related manner interfenng with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Remove the September 22 warning and reprimand from Samuel A. Williams personnel file. 32 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order , shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses COMMERCIAL CARTAGE CO 649 (b) Post at its Fenton, Missouri 'facility copies of the attached notice marked "Appendix." 33 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Resiiondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the Board shall retain jurisdiction of this proceeding for the purpose of entertaining an appropriate and timely motion for further consideration of the dismissal of the 8(a)(5) allegations of the consolidated complaint upon a proper showing that either (a) the dispute has not, with reasonable prompt- ness after the , issuance of this decision, been either re- " If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing ad Order of the Nation- al Labor Relations Board" solved by amiable settlement in the grievance procedure or submitted promptly to arbitration; or (b) the grievance or aibitratiOn procedures have not been fair and regular or has reached a result which is repugnant to the Act. IT IS ALSO FURTHER RECOMMENDED that the consoli- dated complaints be dismissed insofar as they allege vio- lations of the Act not specifically found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT reprimand or otherwise threaten with discipline any of our employees who file grievances or engage in other union or protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. WE WILL remove the September 22 reprimand and warning issued to Samuel A. Williams from his personnel file. COMMERCIAL CARTAGE COMPANY