Martin-Brower Co.

MARTIN-BROWER CO 803 Martin-Brower Co. and Truck Drivers and Helpers Local Union No. 728 and Sandra K. McGill. Cases 10-CA-19074-1, -2, and 10-CA-19400 14 December 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 22 February 1984 Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel 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, 1 and conclusions 2 as modified and to adopt the recom- mended Order as modified.3 The judge found that the Respondent's reasons for abolishing employee McGill's job were pretex- tual and her discharge violated Section 8(a)(3). We disagree. In March 1981, because of increased volume and inventory shrinkage, the Respondent created the warehouse clerk position and assigned McGill to the job. - According to Warehouse Manager Waters, the shrinkage problem was almost eliminated after McGill became warehouse clerk. Before the orga- nizing campaign commenced, the Respondent The Respondent has-excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent excepts to several misstatements in the judge's deci- sion For example, the judge suggested that a pickup order would have had a route number notation on it if it were for the Lemacks/Powell 8 March run because there are two weekly runs to Memphis, but the Re- spondent asserts that one Memphis run is on the weekend and therefore could not be utilized for pickup orders because pickups cannot be made on weekends Also, the judge stated that Lemacks told Powell in the presence of a dispatcher that their trip packet did not contain a pickup slip, in fact, the person present was an administrative clerk, not a dis- patcher We correct the misstatements, but we do not believe that they affect the judge's conclusions 2 We agree with the judge's conclusion that the Respondent dis- charged Fortner because of his protected activity The record supports the judge's findings that Fortner could not have taken Burdette's equip- ment on 27 February and that Fortner's preparing a hotel receipt was ac- cepted practice We believe the Respondent took advantage of Fortner's use of Burdette's equipment on 3 March to devise a justification for dis- charging him We find it unnecessary to adopt the judge's additional find- ings concerning questionable discipline and disparate treatment 3 In addition to modifying the judge's recommended Order, in accord with the amended Conclusions of Law, we modify the remedy, recom- mended Order, and notice to conform with the Board's standard rein- statement and expunction language began considering abolishing her job and hiring an- other checker. By the time the Respondent termi- nated McGill, many of her *duties had been discon- tinued or divided among remaining employees. The Respondent hired no one to replace McGill. Al- though previously offered a checker position, McGill had declined to accept it. We conclude that the Respondent had a legitimate business reason for abolishing the warehouse clerk position 4 and would have 'done so absent her alleged protected activity.5 AMENDED CONCLUSIONS OF LAW Substitute the following -for Conclusion of Law 4. "4. By discharging Stephen M. Fortner, Alvin Lemacks, and Billy E. Powell on 11 March 1983 because of their support of the Union and activities on its behalf, the Respondent violated Section 8(a)(3) and (1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below-and orders that the Re- spondent, Martin-Brower Co., College Park, Geor- gia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following- for -paragraphs 2(a) and (b). "(a) Offer Stephen M. Fortner, Alvin Lemacks, and Billy E. Powell immediate and full reinstate- ment to their former jobs or, if those jobs no longer exit, to substantiâlly equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make 4 The judge . tated that Waters was surprised by the abolition of McGill's job In fact, Waters admitted that the decision was cost effec- tive, and he knew that the Respondent was contemplating abolishing the job and hiring another checker Because McGill was terminated, rather than laid off, the Respondent had no obligation to hire her for a different position that unexpectedly opened soon after her discharge Member Zimmerman, for the reasons set forth by the judge, would find that McGill was unlawfully discharged He notes in particular that Supervisor Waters had told McGill that proumon employees' jobs could be eliminated—as McGill's was—and that "they never forgive and they never forget" Further, the majority's finding that McGill's duties had been discontinued or divided (for reasons found a pretext by the judge) is contrary to McGill's credited testimony that there was only a minimal reduction in her work, that business was increasing, and that she worked overtime Chairman Dotson and Member Dennis note that the judge ignored the fact that McGill's supervisor wanted to abolish her position, the judge Ignored the fact that the problem McGill was hired to correct largely had evaporated, and the judge Ignored McGill's own admission that the overtime she worked shortly before her discharge was due partly to sea- sonal inventory rather than to an Increase in her daily duties Because of these omissions, Chairman Dotson and Member Dennis do not find the judge's pretext finding persuasive 273 NLRB No. 108 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. "(b) Remove from its personnel records or other files any reference to the unlawful discharges of the above-named individuals and notify them in writing that this has been ,done and that the dis- charges will not be used against them in any way."' 2. Substitute the attached notice. for that of the administrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board , has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT tell employees that their jobs may be eliminated if we find out that they support the Union or any other labor organization. WE WILL NOT tell employees that we will never forgive and forget union supporters. WE WILL NOT tell employees that we know the names of employees who have signed union cards, and that the Union is going to lose an election. WE WILL . NOT tell employees that they had better get the Union in because we are going to fire them. • WE WILL NoT jell employees that there will be no raises if they vote 'for the Union, and that we will hold on as long as possible in litigation. WE WILL NOT _tell employees that we will move our plant, and that they will lose their jobs, if they select the Union as their representative. WE WILL NOT tell employees that We will, take away their telephone credit cards, holidays, uni- forms, or any other privilege, if they select the Union as their representative. WE WILL NOT discharge or otherwise discrimi- nate against employees because of their member- ship in or activities on behalf of Truck Drivers and Helpers Local Union No. 728, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL offer Stephen M. Fortner, Alvin Le- macks, and Billy E. Powell immediate and full re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify the foregoing employees in writing that we have expunged all reference to their unlawful discharges from our personnel records and other files, and that the discharges will not be used against them in any way. MARTIN-BROWER CO. • DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The charges in Cases 10-CA-19074-1 and-2' were filed on March 15, 1983, 1 by Truck Drivers - and 'Helpers Local Union No. 728 (the Union), and a complaint issued on April 29 The complaint in Case 10-CA-19400 was filed on July 14, by Sandra K. McGill (McGill), 2 and an amended consolidated complaint on August 5 As further amended at the hearing, the complaint alleges that Martin-Brower Co. (Respondent) solicited employees concerning grievances .and promised to adjust same fol- lowing the advent of a union' Organizational campaign; created an impression of surveillance of its employees' union activities, threatened its employees with loss of employment benefits, denial of wage increases, - and dis- charge if they engaged in union activities; and further threatened them with closing and removal of the plant if they selected the Union as their collective-bargaining representative—all in violation of Section 8(a)(1).of the National Labor Relations Act (the Act) Further, the complaint alleges that Respondent, on March 11, dis- charged Stephen M. Fortner, Alvin Lemacks, 3 and Billy E. Powell, and, on April 30, discharged McGill, because of their union activities, in violation of Section 8(a)(3) of the- Act. A hearing was conducted before me on these matters in Atlanta, Georgia, on August 29 through September 2. On the entire record, including briefs filed by the Gener- al Counsel and Respondent, and on my observation, of the demeanor of the witnesses, I make the following FINDINGS OF FACT - I. JURISDICTION Respondent is a Delaware corporation with an office and place of business located at College Park, Georgia, where it is engaged in the warehousing and transporta- tion of food products. During the calendar year preced- ing issuance of the complaint, a representative period, Respondent sold and shipped from its College Park, Georgia distribution facility finished products valued in 1 All dates are in 1983 unless indicated 2 McGill's middle initial, omitted in the charge, is set forth as stated by her at the heanng 3 The spelling of Lemacks' last name is that set forth in the transcnpt rather than the complaint MARTINAEIROWER CO 805 excess of $50,000 directly to customers located outside the State of Georgia. The pleadings established, and I find, that Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The pleadings established, and I find, that the'Union a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICE A. The Union's Campaign and the Representation Petition , About January -5, alleged discriminatee Stephen- M. Fortner asked the Union for assistance, obtained authori- zation cards, and began distributing them. He gave cards to alleged discriminatee Billy POwell and to Arthur L. Rogers, both of whom returned signed cards to Fortner. Fortner, Powell, and Rogers were the most prominent supporters of the Union. Powell had formerly filed a charge against Respondent, which was settled, while Rogers was the Union's observer in a forthcoming elec- tion. These employees organized a meeting of company clericals and truckdrivers at a restaurant in early Janu- ary, and thereafter arranged several meetings at . the union hall. Robert L. Wallace, a former truckdriver for Respond- ent who resigned about 4 months before the hearing, tes- tified that he was in the office of Respondent's transpor- tation manager George R Gertenbach when another em- ployee, Harlan Ford, came -into the office. Ford told Gertenbach that the Company did not need a union, and that one was being organized by three individuals be- cause they could not get along with the Company Ac- cording to Wallace, Ford identified the employees as Fortner, Powell, and Rogers. Gertenbach admitted talking to Ford in his office in the presence of Wallace, but denied that Ford ever men- tioned the leaders of the union movement Wallace was the more believable witness, and I credit his testimony. McGill attended all the meetings, while Lemacks at- tended at least two of them, and both signed union aii- thonzation cards. In addition, Lemacks asked other em- ployees to support the Union.4 The Union filed a representation petition on January 24, asking to be represented in one unit composed of office clericals, and another composed' of truckdrivers The elections were conducted on April 1, and the Union was defeated in both of them. No objections were filed. 4 On cross-examination, Lemacks appeared to testify that his pretrial affidavit affirms that he did not talk to other eniployees about the Union However, the transcript is ambiguous in that Lemacks may merely have been denying union activity "while at work" The affidavit is not in evi- dence, and Lemacks reiterated his attempts at solicitation after having read the statement I credit this latter testimony. B. The Alleged Independent -Violations of Section 8(a)(1) 1. The alleged solicitation to adjust grievances a Summary of the Evidence In late 1982, Respondent condUcted a meeting intend- ed to instruct drivers in the cOrrect preparation of their paperwork, including- "logs." On January 20, 1983, the Company issued a notice to drivers requiring them to attend a series of meetings to be held' the week of Janu- ary 31 to "get into the subjects that really concern you" (G C Exh. 4) Powell testified that he attended the- meet- ing on JanUary 31, and that Frank W. Quinn, Respond- ent's distribution manager, 5. told a group of truckdnvers that he wanted to hear about their complaints and prob- lems, and see whether the Company could straighten them Out. Thereafter, the meeting got "out of hand" ac- cording to Powell, with many complaints from employ- ees. Fortner and Lemacks were' "very vocal," and Powell also spoke up. Fortner attended the same meeting, and averred that Quinn and Transportation Manager Gertenbach said that the purpose of the meeting was to see what could be done about driver complaints A number of complaints were voiced, including unsafe working conditions and failure to provide copies of insurance policies. The last time such a meeting 'was held was in 1980, after the filing of a prior representation petition. Rogers also attended the first meeting, and testified that Quinn said that the purpose was to see whether the Company could "work out" some of the employees' problems. - Robert L. Wallace, a former employee who had re- signed, declared that 'he attended the second employee meeting, on February 2, and that Quinn-said that the Company brought the drivers together to , see whether it could "straighten out" some of their problems. Gertenbach testified that Quinn referred to , the repre- sentation petition, and told employees that he could not promise anything because of,the petition. Asked whether Quinn promised to adjust any of the grievances that he heard, Gertenbach denied it. "Like , I said, at the begin- ning of the meeting, he told them right up front he couldn't do that." According to Gertenbach, Quinn said the same thing at meetings on February 2 and 4. "Up front" he .advised them he could not make any promises or changes." '_ ,Quinn testified that he spoke at the meetings, and went into "three areas basically"—he could not make any promises which would tend to make employees change their vote, lie could not ask questions about their union actMties; and he could not make any threats against em- ployees. Quinn was asked whether he made any promises regarding employment conditions. He dented this, but as- serted that he told the drivers that the Company "would look into some things and see what could be done about it." However, Quinn denied that he made any promises that the Company "would get anything changed." 5 The pleadings establish, and I find, that Quinn was a supervisor within the meaning of the Act 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , b. Factual and legal analysis The testimony of the employees is consistent—Quinn said that the, purpose of the meeting was to ascertain the employees' complaints and to see whether something could be done about them. This evidence is not rebutted by the Company's witnesses, and I credit it. It is ,thus clear that ,Quinn solicited the expression of grievances from his employees. Under established . Board laW, this created an inference that he was implicitly promi ging to correct any inequities that he discovered, in violation Of Section, 8(a)(1). Ciitung, Inc., 255 NLRB 534 (1981), enfd. as modified 701 F.2d 659 (7th Cir. 1983) The inference is rebuttable, ,however, and the ' real, fac- tual issue is whether Quinn expressly said something which negated the inference. Crediting Quinn and Ger- tenbach, I, find that the former told employees that he could not make any promises. Under these circum- stances, I conclude that Respondent rebutted the infer- ence that it was impliedly promising to adjust grievances. Uarco Inc., 216 NLRB 1 (1974). Accordingly, I shall rec- ommend that this allegation of the complaint be dis- missed, 2. McGril's conversations with Warehouse Manager Waters - a: Summary of the evidence McGill testified that she had a conversation with Warehouse Manager Bill Waters 6 a few 'weeks after the petition had been filed (January 24). McGill was doing some work in Waters' office, and he remarked that "some things" were happening around the office When McGill replied that she did not know what-he was talk- ing about, Waters told her to close the door, and asked, "WhY does the office think' that they need a union?" McGill replied that the employees were 'concerned about job security, and would like to make more money Waters leaned- over if telling her a secret, and, ac- cording to McGill, said that he had heard' a rumor 'that an employee's job could be 'eliminated if "they" found out that' the employee favored the Union. When McGill denied that the Company could have such knowledge because of the secret ballot in Board _elections, Water's replied, "Believe me, .theY'll know. They know that the Union is going to lose the Vote." McGill argued'that the election was going to take place in the futrire, and Waters responded that "they already knew 'Who siined cards." He aiked McGill whether her husband knewS•that she was involved in union activities, adyis'ed her not get involved, and said that the Company was trying to keep, her from voting.7 6 The pleadings establish,. and I find, that Waters was supervisor within the meaning of the Act During the representation proceeding, the Employer (Respondent) contended that the clerical unit should Include customer seivice repre- sentatives, an inventory clerk, and an electronic data processor The Peti- tioner (the Union) contended that the warehouse clerk (McGill) should also be Included The Regional Director's Decision and Direction of Election, dated March 2, excluded McGill from the clerical unit (R Exh 3) ' McGill testified that she had a second conversation with Waters' in the warehouse during 'an inventory, at a time when the decision had been made that she would not be able to vote in the election. 8 McGill said to Waters that her job was "safe," whereupon the ware- house manager replied: "I don't know. They never for- give and they never forget." Thereafter, a few weeks before the election, according to McGill, she said to Waters, "I'm eliminated from the vote, now, so my job is secure, isn't it?" Waters merely replied, "Oh, yes." Waters acknowledged having a conversation with McGill in his office about ,the end of February, but gives a different version of it. He asierted that McGill was "shying. off' from him, and asked whether anything was worrying her. When she denied, this, he said that she was worrying, and that it affected her job. He told her that, if it:was "about the Union," she had nothing to worry about, since she was not a clerical employee. McGill said that she did not want to discuss the matter. Waters denied the other statements attributed to him by McGill. Although he acknowledged talking with McGill in May, he did -not specifically deny having additional conversa- tions with her prior to the election on April 1. b. Factual analysis Respondent argues that' it is not- credible to believe that Waters would have talked to McGill about the Union, since she was not part of the unit. However, this was not known until the Decision and Direction of Elec- tion issued Moreover, it is inconsistent with Waters' ad- mission that it was he who raised the issue of the Union with McGill, professing to believe that she was "wor- ried" about the matter. . MeGill's testimony is replete with realistic details which ,give it verisimilitude. Her averment that Waters said the Company was trying to keep her from voting is corroborated by . the record in the representation pro- ceeding. Waters' contention that McGill did not want to discuss the Union is inconsistent with McGill's personali- ty on, the witness stand, which was that of a candid and effusive individual. By Contrast, Waters' testimony is arti- ficial and contrived. He appeared to be a less credible witness than McGill. Although there is some inconclu- sive testimony 'on cross-examination about the dates of McGill's, conversations with Waters, it is insufficient to invalidate' her testimony on direct examination, and I credit that testimony. 3. Powell's conversation with Waters Powell testified that he had a conversation with Waters in the mailroom dunng February. The warehouse manager walked up to him and said, "This time you better -get the walked, in here. Frank's [Quinn] going to fire you." On' cross-examination, Powell testified that Waters said Frank was going to fire "all of them." , Powell was one of the principal union activists in a prior attempt to organize the shop. McGill placed this conversation "around the end of February" The 'Decision and Direction 'of Election did not issue until a few days later, on March 2 MARTIN,BROWER, CO , 807 Waters' testimony on this subject consists of a simple denial that he ever .talked to Powell about the union campaign Powell was not one of the employees whom he supervised. Respondent argues that Powell should not be credited because he changed his testimony on cross-examination, and because Waters was not his supervisor. Neither Of these reasons is persuasive. Powell amplified rather than contradicted his testimony on direct examination, and the fact that Waters was not his supervisor is irrelevant. Waters did not specifically deny threatening Powell with discharge. Powell was a more credible witness than Waters, and I accept his testimony 4. Robert L Wallace's conversations with Transportation Supervisor Holsumback Former employee Wallace testified that he had two conversations with Transportation Supervisor Carl R. Holsumback 9 while still employed. The first conversa- tion took place in Captain D's, a restaurant, about 2 weeks before the election (April I) Wallace had come to the office to pick up his check, and Holsumback asked him to go to lunch. They discussed the union campaign. Holsumback told Wallace that he had already seen the company budget, and that it included very good raises for the employees. However, "if the Union was voted in, there 'would be no raises at all," because of "contract liti- gation" which the Company would "hold as long as they possibly could." The second conversation occurred on a date closer to the election, in the dispatch office. Wallace was sitting at one desk, and Holsumback at another. The transportation supervisor said that the Company had aCquired an option to purchase land in LaGrange,'-GeOrgia, about 60 miles from Atlanta according to Wallace. If the Union was voted' in, it intended to move to this location, and the employees would lose their jobs: Holsumback testified that he participated in prepara- tion of the Company's budget, and acknowledged that he had lunch with Wallace at Captain D's. He stated that Wallace asked him what the budget-provided for drivers' raises, and that he replied that he could not tell Wallace the answer to this question. He denied any discussion of the union campaign or litigation or negotiations with the Union. With respect to a prospective company move to LaGrange,- Georgia, Holsumback testified that he heard a rumor to this effect from a driver, and informed his su- periors It was just a rumor, according to Holsumback, and he- denied telling any drivers that the Company would move to LaGrange if the Union won the election. Other company witnesses denied the existence of any such option.- Holsumback's testimony is improbable. There is ample evidence in , this proceeding that the Company was • op- posed to the union campaign, and it is therefore unlikely that Holsumback would have passed up an opportunity to answer an employee's question about forthcoming raises, if he could have done so in a lawful manner. He did not give the existence of the petition as the reason 9 The pleadings establish, and I find, that Holsumback was a supervi- sor within the meaning of the Act . for his asserted refusal to answer Wallace. In fact, Hol- sumback gave no reason.- Wallace was a candid and be- lievable witness, while Holsumback, as appears more fully hereinafter, was untrustworthy. I credit , Wallace's version of these two conversations. 5. Fortner's conversation with Holsumback- Fortner testified that he had a conversation with Hol- sumback in the equipment trailer on March 3 between 3 and 6 p.m. He had just come back from a' trip, and was returning some equipment (rollers) which belonged to another driver. Fortner's equipment had been used by still another driver, after a prior my:my to Fortner, had been retrieved by Holsumback, and was in the equipment trailer. Fortner's rollers were aluminum, and were pre-' ferred to the heavier steel rollers. This subject is one of the principal issues in connection with Fortner's dis- charge, and is More fully discussed hereinafter. Holsumback returned Fortner's rollers to him, accord- ing to the latter. When they were inside the equipment trailer, Holsumback said that he would be glad when the union vote was over. He said that it was getting on his nerves, and that all the drivers did was "bitch and com- plain." The transportation supervisor said that if the Union came in the Company would take away the driv- ers' privileges such as telephone credit cards, personal holidays, and uniforms. The drivers were "crazy as hell if they [thought] they needed a union." Fortner opposed this view, and the two men left the trailer. As Fortner was putting his rollers away, Holsumback asked him whether he thought the Union was going to win the election. Fortner replied, "If I have anything to do with it, it will." Holsumback acknowledged that Fortner's rollers were in the equipment trailer, and that he offered them to Fortner on March 3, just after Fortner had returned from a trip. However, Holsumback contended that Fortner declined to take them- back, saying that he would return the next day, but never did so. Holsumback denied having a conversation with Fortner in the equip- ment trailer, and denied the other statements attributed to'him by Fortner. It is unlikely that Fortner would have refused his alu- minum rollers, and, because of this improbability and other reasons more fully described in the discussion of Fortner's discharge, I conclude that he did take them back on March 3. I, therefore, infer that Fortner and Holsumback were in the equipment trailer on March 3. It is incredible that the two men went into the trailer to get Fortner's rollers in complete silence And, whether inside or outside the trailer, Holsumback admitted having a conversation with Fortner on March 3. Fortner was a more believable witness than Holsumback, and I credit his version of the conversation. 6. Summary and conclusions Waters' statement to McGill that an employee's job could be eliminated if "they," i.e., the Company, found that the employee favored the Union, is obviously coer- cive under established Board law. After McGill had been excluded from the unit by the Decision and Direction of 808 DECISIONS OF NATIONAL LABOR kELAT1ONS BOARD Election, she announced to Waters that her job , was "safe." "I don't know," he replied. "They never forgive and they never forget." This clearly had reference to the prior conversation about the discharge of employees who favored the Union, and implied that employees who favored unions would be discharged without regard to their membership in the -Voting uhit. In this context, the statement was also unlawful, as was Waters' statement to Powell that Quinn was going to fire him. Waters' telling McGill that Respondent knew who had signed cards, and thus knew that the Union was going to lose the election, constituted the creation of an unlawful impression of suryeillance under well-established - Similarly, Holsumback's statements to Wallace that the employees would not receive raises if they voted for the Union and would' lose their jobs because the Company would move , the plant to another location are classic in- stances of coercion. Holsumback's statement to Fort- ner—that the employees would lose their privileges in the event of a union victory—is simply another unlawful variation on the same theme. C. The Alleged Violations of Section 8(a)(3) 1. The discharges of Powell and Lemacks a. Respondent's policy on pickups (1) Summary of the evidence Powell, Lemacks, and Fortner were discharged on the same day, March 11. However, Powell and Lemacks worked as a team on the same truck, running "Route 20," and the reasons asserted by the Company for their terminations are different from those advanced to sup- port the discharge of Fortner. , Powell and Lemacks had both been drivers for about 5 years. One of the principal, reasons asserted by the Com- pany for their discharges was their failure to make up a pickup when on a run. There were two kinds of pickups, the first where an order was taken by a driver on a long- distance run from a supplier on or near the driver's route to a location other the Company's College Park ware- house (designated a "linehaul" by company witnesses). The second kind of pickup was called a "backhaul", by company witnesses, and indicated a pickup to be deliv- ered back to the Company's warehouse. The record dis- closes that Respondent's drivers for the most part did not understand the distinctions- between linehauls and backhauls, , and referred to both as pickups . Since the drivers were paid partially on a mileage basis, they made more money on a run which included an off-route pickup, and there is evidence of drivers protesting the absence of a pickup on a run.. According to Transportation Manager Gertenbach, an order to a driver to make a pickup was formerly indicat- ed at the bottom of the driver's manifest. This proved to be inadequate. Accordingly, on September 8, 1982, Re- , spondent issued a written directive to drivers, reading as follows: Beginning immediately, there will no longer be a pick-up written on the bottom of your Driver's Manifest. A Copy of the PICK-UP REPORT FORM will be in your delivery 'packet Another copy of that form will be 'kept here if you should happen to lose or misplace the form. (See -attached copy.) This procedure is to help insure all pick=ups are made in' a timely fashion and to avoid an inven- tory shortage. Your help and cooperation ih this matter is [sic] greatly appreciated [G.C. Exh. 2]. Gerteribach acknowledged that the new directive did not instruct drivers what tip do -in event of the absence of a pickup -order in the delivery packet. He further affirmed that none of his supervisors had issued any such 'direc- tive. , Billy E. Powell testified that Transportation Supervi- sor Holsumback was responsible for the preparation of pickup orders and their insertion into the driver's packets containing the shipping documents. If a pickup order Was inadvertently omitted from the packet, Holsumback would- call the driver on the route, and give him a pickiip instruction and an order number. The Company knew the exact sequence of stops which the driver was scheduled to make, and the approximate time he would arrive at each stop. Powell stated that there were no pickup orders in his and Lemacks' packets on three or four of the seven runs prior to their discharges. On these occasions, Holsurnback called the drivers during the run and gave them pickup instructions. Wallace gave , similar testimony about ,his routes. Lemacks affirmed on direct examination that, (hiring the 8, or 9 weeks that he drove the same route with Powell, there were 3 or 4 . weeks in which there was no pickup." On one occasion, about Thanksgiving 1982, Dispatcher Hallman told Lemacks that there was a pickup on the , route. On arrival at his destination, Le- macks discovered that there was no pickup order in his packet. He, called Transportation Supervisor Holsum- ,back, and told him that there was no pickup order and nothing to pick up. Holsumback asked him why he was bothering to -call, ,and instructed him to come back. "Yes, sir," Lemacks answered, and that ended the conversa- tion. Thereafter, Lemacks never called the office when there -was no pickup order in his packet. Lemacks distin- guished drivers on , "bid" runs such as .Route 20, which included a pickup in the bid, from "unassigned" . drivers whose.run had been cut short. In such event, the drivers would normally call the office. . Transportation Manager Gertenbach testified that, after Powell and Lemacks had been discharged, he inves- tigated their drivers' logs and determined that there was a pickup in 6 of the last 7 weeks when they ran Route '° Lemacks' testiMony on direct examination' was unambiguous On cross-examination, he was asked the leading question as to' whether there was only 1 meek that he did not have a pickup He answered that It was 2 weeks "without Billy [Powell]," and I week that Lemacics did not have a pickup—a total of 3 weeks Counsel then asked whether there was only one pickup -(linehaul) "the last seven weeks" Lemacks drove with Powell, and the witness answered, "The last one, yeah" In light of the witness' clear testimony on direct and initial cross-examination, I con- clude that he misunderstood the last question, and that the substance of his testimony is that there were three occasions on Route 20 in which there were no pickups MARTIN-BROWER CO 809 20, i.e., there was no pickup on one run. Dispatcher Hullman affirmed that there was no pickup on this run "once or twice." The logs themselves are not in evi- dence. Gertenbach denied that a pickup order was sup- posed to be in the driver's packet every time there was a pickup, despite the contrary language in the Company's September 1982 memorandum (G.C. Exh. 2). He distin- guished between "possible" pickups and "designated" pickups (such as Rte. 20), and contended that, if a pickup order was absent in the latter case, it was standard policy for the driver to call the Company. However, Gerten- bach admitted that there was nothing in writing , that stated this policy. Transportation Supervisor Holsum- back in general corroborated Gertenbach's testimony. Herbert L. Fendley, one of Respondent's truckdrivers, testified that he called regularly from a Florida . run whenever there was no pickup order in his driver's packet. However, Fendley acknowledged that he had never seen a written order to this effect, nor had he heard an oral instruction applying to runs in general. On occasion, he would receive a specific order to call, on a. particular run. Vernon R. Burdette, a driver, gave_ simi- lar testimony. (2) Factual analysis There is nothing • in Respondent's September 1982 memorandum, which revised pickup procedure, to indi- cate that it was a driver's responsibility to call the office in the event there was no pickup order in his packet. Re- spondent's witnesses Gertenbach and Fendley admitted that no such order had ever been issued. I credit Le- macks' testimony that, on one occasion 'when he did call Holsumback about the absence of a pickup order in his packet, the transportation supervisor asked why he had called and told him to come back. I credit the testimony of Powell and Lemacks to the effect That it was custom- ary practice for the Company to call the driver on the road whenever a pickup order had inadvertently been omitted from the driver's packet, and to issue appropri- ate instructions It was not the driver's responsibility to call the office. I further conclude that there were no pickups on sev- eral, possibly three, of the Route 20 runs Which Powell and Lemacks made. Gertenbach and Hallman admitted that this was true with.respect to one or two of the runs, and the Company failed to introduce, the drivel's' logs for the last seven to nine runs. Accordingly, I credit the tes- timony of Powell and Lemacks. b. The DOT regulations and the drivers' logs Falsification of the driver's log was one of the reasons asserted by Respondent for the discharge of Powell, and the issue of drivers' logs and the Federal Department of Transportation (DOT) rules which governed , them are, therefore relevant. .„ Transportation Manager Gertenbach asserted that the drivers' lack of compliance with DOT rules on prepara- tion of their logs was one of the principal problems which he faced on taking office in August 1982. He ar- ranged for a company specialist in DOT rules, Bud Hargis, to speak to the drivers in October 1982. Gerten- bach thereafter prepared a form to advise drivers con- cerning mistakes in their paperwork (R. Exhs. 4(a)-(d)). All of the drivers received such letters, according to Powell and Lemacks. Some of the early forms contained the legend that continued violations might lead to disci- plinary action (R. Exh. 4(c)). However, on November 2, 1982, Gertenbach issued a memorandum reading in rele- vant part as follows: There has been a little confusion recently con- cerning the purpose of the new driver's "paperwork check-off" sheets. .Their purpose is to show individ- ual drivers their paperwork mistakes and not to be used as a disciplinary report . . . . We got this form from another center and didn't take out the discipline statement at the bottom of the form. That statement has now been taken out and replaced with the following statement: Please use this information to help you comply with D.O.T. and Company rules. Thank you for your cooperation, [G.C. Exh. 7.] According to driver Billy E. Powell, more than 15 hours of work in any 24-hour period, or more than 10 hours of driving, are illegal under DOT rules. However, Powell affirmed, emergencies such as flat tires or break- downs occasionally, made it impossible for the driver to finish the run within the DOT guidelines. In such event, Powell testified, the Company instructed drivers to pre- pare their logs • in a manner which complied with the rules, but did not comport with the actual facts. The General Counsel introduced several of Lemacks' logs to illustrate this practice (G.C. Exhs. 9(a)-(d)). The top part of the logs contain legends showing whether the driver is driving, on duty, off duty, or in the sleeper. The bottom part, however, reflects the actual hours worked, and it is on this basis that the driver is paid, according to Lemacks. Where the actual facts conflict with the "offi- cial" DOT report- on the top of the page, the discrepan- cy is noted on the bottom of the log by a reference to a. phone call with a Company supervisor authorizing the "illegal" work, according to Lemacks. These logs are dated in December 1982-2 months after Gertenbach brought in Hargis to tell the drivers how to 'maintain their logs. Powell testified that the drivers protested "il- legal" logging as late as their January 31 meeting with Quinn and Gertenbach, and Lemacks affirmed that the Company authorized improper_ logging after Hargis' talk. Fortner asserted that the DOT rules also prohibit log- ging more than 47 miles per hour. However, on occasion the Company needed a trailer out on the road for a "pre- load" prior to its scheduled arrival time. If the driver logged his actual arrival time, the result would show a violation of the 47-mile-per-hour rule. Accordingly, the driver logs in a later arrival time. If this results in his being out overnight—"on paper"—he gets paid for over- night lodgings. ,Gertenbach testified that Hargis told the employees that log falsification would no longer be tolerated. The transportation manager also denied telling drivers to 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engage in log falsification, and stated that he had never been present when ,a supervisor did so. Gertenbach's denials are obviously insufficient to rebut the preponderance of the evidence, which shows that the Company was willing to bend the DOT requirements whenever business purposes required it, .and to instruct drivers to prepare their logs accordingly. c Powell's and Lemacks' last run of Route 20 - (1) Summary of the evidence Route 20 was a "bid" run, and its initial stops were in Memphis, Tennessee It normally included a' pickup in Stuttgart, Arkansas, for delivery elsewhere on the route, or return to the warehouse in College Park (Atlanta). There are several factual issues, one of which is the ques- tion of whether Transportation Supervisor Holsumback placed a pickup order in the drivers' packet. Holsumback testified that the actual , scheduling of pickups is made in the Company's Chicago office, and is transmitted to the College Park warehouse by teletype. The responsibility for preparing the pickup orders and placing them in the drivers' packet is shared by Holsum- back and dispatcher Hallman. Holsumback identified a pickup schedule received from Chicago, dated March 7, containing the pickup lo- cations, purchase order numbers, and destinations for the following week when the drivers were discharged (R. Exh 19) Holsumback testified that he made some of the entries on this form. Thus, he made the notation "Rt #53" on the first line, and testified that this showed that Route 53, in Florida, was to handle that particular pickup. At the same time, Holsumback averred, he pre- pared the driver's pickup order. The second pickup was in Florida, and Holsumback wrote "Rt. 52" on the pickup schedule and prepared the driver's pickup order. The third pickup source on Respondent's Exhibit 19 is a company called "Riceland," in Stuttgart, and was on the Powell-Lemacks run. There is no notation of a route number opposite this pickup. In explanation, Holsumback averred that there was no necessity to write down the route number, since the Powell-Lemacks run to Memphis was the only route which could make . the pickup. The Company in fact had two runs to Memphis. Nonetheless, Holsumback contended that he did write a pickup order for Stuttgart. - Dispatcher Hallman testified that he prepared -driver's pickup . orders on occasion. The procedure was to note, on the pickup schedule from Chicago, the route numbers which were making the pickups, and transfer the pickup information to a driver's pickup order Contrary to Hol- sumback, Hallman stated' that all the route numbers, in- cluding the one designating Stuttgart, were noted on the pickup schedule from Chicago. Then, on redirect exami- nation, Hallman contended that the absence . of a route number - on the pickup schedule sheet would not have any "impact" on whether the route was to be run. Powell and Gertenbach agiee that the former had 'a conversation with the transportation manager. a week before the final run, in which Powell asked whether there would be a pickup the following week. Powell's son, on duty with the Navy, was home visiting his father, and Powell wanted more time at home. Gerten- bach replied that he could not eliminate the pickup if in fact there was one, but that he could assign Powell dif- ferent work. Powell said that he spoke to Dispatcher Hallman the following Monday, March 7, and told him that he did not need a replacement for the Route 20 run because his son's leave had been extended. Hallman agreed that he had a conversation with Powell on Monday, but denied that Powell withdrew his request for a replacement. Instead, according to Hallman, he told Powell that there was a pickup in Stuttgart. However, Hallman testified that it was Holsumback who prepared the pickup order, and that he did not see it himself. Powell denied that Hallman said anything about a pickup during this conversation. Lemacks called Hallman the following day, March 8, and inquired about the run. According to Lemacks, the dispatcher gave Lemacks the tractor number and other details about the trip, and said that -there would "prob- ably" be a pickup. According to Hallman, his informa- tion about the pickup was definite. Lemacks informed Powell about this conversation. - Later the same day, March 8, Powell and Lemacks went to the truck rental agency used by the Company, and obtained their tractor. They then returned to the warehouse to' get their trailer and shipping documents Opening, the packet, Lemacks did not see a pickup slip, and commented to Powell in the presence of the dis- patcher that they did not have a pickup that week. Ger- tenbach, who testified that he later investigated the matter, said that he determined there had been a pickup slip in the drivers' packet He relied on Holsumback's af- firmation that such was the case Asked whether there were any, copies of the pickup order, Gertenbach replied that it was not company practice to make such copies "at that time," but that the practice later changed. (2) Factual analysis The central issue is whether Holsumback placed a pickup order in the drivers' packet. I conclude that he did not do so. Hallman, contradicting Holsumback, said that route numbers Were placed on the pickup schedule from Chicago in all instances, including the Stuttgart pickup, and that the information was transferred to a driver pickup order. The fact that there is no route number opposite the order for the Stuttgart pickup on the teletype from Chicago, while such numbers were written by Holsumback for the other pickups, suggests that no pickup order was written for Stuttgart. Nor is there any copy of the alleged pickup order. Gertenbach testified that the - Company did not make copies of pickup orders at the time, i.e.,',March 8,4983, and that the practice of making copies did not start until a later- time. However; Respondent's own memorandum changing pickup procedure states that a copy would be made of the pickup report form, in the .event the driver lost or misplaced - the original. That Memorandum is dated September 8, 1982 (G.C. Exh. 2) I infer that Re- spondent did what its own memorandum said that it, m- tended to do, and started making copies of pickup orders in September 1982. The fact that it did not produce at MARTIN-BROWER CO 811 the hearing a copy of a pickup order allegedly written in March 1983 suggests that no such order was ever writ- ten. Since drivers made substantially more money on runs with pickups, it is incredible that Lemacks and Powell would have passed up such an opportunity to their own financial detriment. Finally, Powell and Lemacks were inherently more credible witnesses than Holsumback and Gertenbach, and for this reason, in addition to the objective consider- ations set forth above, I credit their testimony that there was no pickup order in their drivers' packet on March 8. I also credit Powell's testimony that he told Hallman that his son's leave had been extended, and that he no longer needed a replacement for the run In addition, I accept Lemacks' testimony that Hallman told him on March 8 that he "probably" had a pickup,' rather than telling him definitely that this was so. Hallman acknowl- edged that he never saw the order, and was a less believ- able witness than Powell and Lemacks. d. The discharges of Powell and Lemacks Powell and Lemacks proceeded on i their route. There was no call from the office during the run, which , in itself was unusual according to Lemacks. They returned on Thursday, March 10, earlier than would have been the case had they made a pickup in Stuttgart. As they pulled into the yard, their truck was approached by Ger- tenbach, Holsumback, and Hallman. Gertenbach asked why they had not made a pickup, and Lemacks replied that they were not given a pickup (slip) that week. The three management officials then returned to the office. The drivers turned in their paperwork, and looked for their paychecks. They were not in their usual place, and Holsumback told them that Gertenbach wanted to see them, Powell first, and then Lemacks. Powell then had a conyersation with Gertenbach-in the latter's office. According to Powell, the transporta- tiOn manager said that he was giving Powell warning let- ters for losing a set of padlocks and for falsifying records. Powell had lost some company padlocks about 2 weeks before. Powell testified that he replaced the pad- locks at his own expense, informed Gertenbach of this fact, and never ran his truck without padlocks. Gerten- bach denied that Powell informed him of the latter's re- placement of the missing locks. Powell's testimony that he did' in fact replace the locks is unrebutted, and I credit it. It is unbelievable that he. would have failed. to inform his supervisor of the replacement at his own ex- pense in the face of company disthpline over the matter, and I credit his testimony that he did so inform Gerten- bach. The latter replied, according to Powell, that it "didn't matter." • The alleged log falsification had occurred back:in mid- January, when Powell's foot was injured by a falling case in the trailer, at a time when his log showed that he was in the sleeper Gertenbach acknowledged learning about the injury in January, and said that he .signed something about the matter in that month, but no warn- ing letter was ever produced by Respondent. In explana- tion of the approximate 2-month delay in administering this discipline to Powell, Gertenbach asserted that he had not seen Powell very often during that period of time. Powell testified that he asked to see the alleged warning letters, but that Gertenbach refused I credit Powell's testimony, conclude that Gertenbach's story is incredible, and find that there were in fact no such warn- ing letters. Powell testified, and Gertenbach admitted, that' noth- ing was -said during their March 10 conversation' about the alleged missed pickup from -Stuttgart, despite the fact that the conversation occurred immediately after Powell and Lemacks had returned from the trip, and after Ger- tenbach, Holsumback, and Hallman had approached- the truck and had questioned them about the pickup. In ex- planation of this omission, Gertenbach said that he had already told Powell the previous week that the pickup could not be canceled. This answer, of course, is not an explanation of the omission. Lemacks testified that he then went to talk to Gerten- bach, who asked him whether he had talked to Hallman prior to the run. Gertenbach asked whether Hallman had told him that there was a pickup on the run. Lemacks replied that Hallman had mentioned this, but said that he did not have the information on it, and that the paper- work would be in the "pouch." That terminated the con- versation. Gertenbach testified that Hallman had previously in- formed him that the latter had told Lemacks that the Stuttgart pickup could not be canceled. He then called Lemacks and Hallman . into his office together," and asked Lemacks whether Hallman had told him there was a pickup on the trip. According to Gertenbach, Lemacks said, "Yes." Gertenbach then asked Lemacks whether Hallman was his supervisor, and the employee again an- swered affirmatively. ' Gertenbach's version of this conversation is contrary lo the credited facts', since Hallman never saw any pickup order, and merely told Lemacks' that a pickup was "probable." Accordingly, I credit Lemacks' testimo- ny concerning his March conversation with Gertenbach. Powell was waiting for Lemacks when the latter was in the office with Gertenbach. The two employees left to- gether, and Lemacks told Powell that Gertenbach had mentioned the missed pickup. On the following day, March 11, according to Powell, Gertenbach called and asked him to come in to the warehouse about noon, and Powell replied that he could not make it until about 1 or 2 p m Gertenbach called back, and said that it was not necessary for him to come in, that he could be fired on the phone, and that Powell was, dismissed immediately. On direct examination, Powell testified that Gertenbach gave no reason for the discharge during the telephone conversation. On cross- examination, Powell was asked two questions in one— whether Gertenbach or Powell made the call, and whether Gertenbach told Powell that he was fired for missing a pickup "on the 1 1 th." "Right? Not the 10th, the 1 1 th," was counsel's last question. The witness an- swered, "Yes, sir, that's right." Powell later denied on " Gertenbach reversed the order of the interviews, asserting that he talked to Lemacks before Powell 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cross-examination that he was told he had been fired for missing a pickup. I interpreted the witness' answers on cross-examination as his affirmation that the conversation took place on March 11, and not as a contradiction of his direct testimony that Gertenbach gave no reason for the discharge. Gertenbach, on the contrary, asserted that he told Powell on the phone that he was discharged for failure to make the pickup in 'Stuttgart. Powell later called his office, asked about his pay,- and further requested the reason for his termination in writing. On the same day, March 11, Gertenbach wrote Powell a letter reading as follows: Pursuant to your request. we are notifying you in writing that your employment has been terminated due to insubordination [G C. Exh. 5]. I credit Powell's testimony on direct examination that Gertenbach did 'not give him the reason for the dis- charge during the March 11 telephone conversation. Gertenbach admitted that he did not raise the issue of the pickup during his March 10 conversation with Powell in the office. The only subjects he did mention— the alleged log falsification in January and the lost 'pad- locks—could not reasonably be considered "insubordina- tion," nor were they labeled as such by Gertenbach Powell continued to maintain at the hearing that, al- though Lemacks told him that a missed pickup was the reason for the discharges, the Company had never told him this. I credit that testimony," and,conclude that Re- spondent alternately gave no reason and inconsistent rea- sons for the discharge of Powell. Lemacks was discharged, on the same day, .March 11, in a very brief interview with Gertenbach and Quinn. Lemacks -said ,that Gertenbach stated that Lemacks was guilty of "gross negligence," and Gertenbach affirmed that he gave the failure to make the pickup in Stuttgart as the reason. The transportation manager admitted that Lemacks had a good record, his only prior deficiency having been an occasion when he inadvertently left his packet of documents in a truck which had broken down, thus causing the Company to send the documents to him in another vehicle. 2. The discharge of Fortner a. The visit to the union hall and the telegram-to Respondent On leaving Gertenbach's office after having been dis- missed, Lemacks saw Fortner in the outer office, and the two employees decided to visit the union hall. They stopped on the way, and Lemacks called Powell. In the middle of this conversation, Powell put Lemacks _"on 2 Powell's 'pretrial affidavit, Introduced by Respondent, is not incon- sistent with this finding (R Exh 8) Although Powell testified that he initialed a statement in the state unemployment office indicating that he had been fired for missing a pickup, he affirmed that it was the CompanY, rather than he, that told this to the state official The finding of the State's administrative heanng officer was that Powell was discharged for failing to make a pickup, but that he could not be held at fault because he had been given any bills to make the pickup, and therefore could not have known that they were to be made (G C Exh 6) hold," and later returned to Lemacks' line to inform him that Powell had just been fired by Gertenbach. Fortner and Lemacks proceeded to the union hall, where they were joined by Powell and Rogers. They consulted a union lawyer, and the Union attempted to send the fol- lowing telegram, dated March 11, to Center Manager Frank Quinn, in care of Respondent: • Please be advised that your drivers of their own free will and choice volunteered to help support and actively assist Teamsters Locál Union No. 728 . . . in the organization of your company and in general to 'exercise all their legal rights guaranteed them under Section 7 of the National Labor Rela- - tions Act. Listed below are some of the employees that will be active on the Union's behalf: Stephen W, Fortner and Arthur Rogers [Signed] G. B. Profitt, Assistant Business Agent [R. Exh: 9]. The parties stipulated that the manager of the Western Union office, if called as a witness, would have testified that Western Union` attempted to read the message to Quinn over the telephone, but that 'he refused to accept any further reading after 72 words. When a Western UniOn messenger later attempted physical delivery of the telegram, a comPany representative first signed for it, then scratched out, her name, and returned the telegram to the messenger (R. Exhs. 9, 10). Quinn acknowledged that he stOpped the attempted telephonic reading of the telegram at the point where the operator said she was going to list some names of em- ployees. He also agreed that the attempted physical de- livery of the telegram was blocked by the Company. The reason, he said, was that he did not want to know the names of hiS employees engaged in union -activities. Accordingly, Quinn maintained, he did not know on March -11 that the, names of Fortner and Rogers were listed in the telegram. b.,Rogers' trip to Charleston on March 6 As indicated above, Rogers was one of the union ac- tivists, and was the union observer during the April 1 election. He had a route to Charleston on Sunday, March 6. -This run,rhad a possible pickup, and the usual departure time was 4 p.m. on Sunday. In the event the run had 'no pickup, Rogers could leave at 12:30 a.m. Monday, since the elimination of the mileage for the pickup made it possible to complete the run "legally" within the DOT regulations. This would also save the Company money, since it would not be required to pay him overnight expenses. On Sunday, March 6, Rogers called Warehouse Super- visor Kirk Kitchens and asked him to look in Rogers' packet to determine whether there was a Pickup. Rogers did this in order to get an additional 8 hours at home if possible. Kitchens reported to Rogers that there was no pickup order in his packet, and, accordingly, Rogers left at 12:30 a.m. MARTIN-BROWER CO 813 On his return, there was a message for him to call Transportation Supervisor Holsumback. The latter asked whether Rogers . had made a pickup at Savannah Foods When Rogers replied in the negative, Holsumback asked the reason, and Rogers replied that there was no pickup slip in the packet. The transportation supervisor replied that there was a pickup slip, since he had personally put it there the preceding Friday Rogers replied that this was not possible, because pickup slips are not placed in the drivers' packets until Saturday or Sunday Further, Rogers told Holsumback that Rogers called Warehouse Supervisor Kitchens on Sunday, and had been informed that there was no pickup. order in his packet of docu- ments. According to Rogers, Holsumback's reply was, "Ah, ah, ah, you talked to Kirk, huh?" "Yes, sir," Rogers re- plied, "sure did Rogers further affirmed that Kitchens told- him that Center Manager Quinn asked Kitchens whether Rogers in fact had inquired about the pickup on Sunday. Gertenbach corroborated Rogers' testimony Holsum- back testified on both sides of the issue First, he asserted that he did place a pickup order in Rogers' packet of documents. Then, he was asked why Rogers continued to be employed at the Company after missing a pickup, and replied that Rogers had called Kitchens and had dis- covered that there was in fact no pickup order. Holsum- back's contradictions of himself, Gertenbach, and Rogers are substantial factors in my determination that he was a completely unreliable witness, and would testify to any- thing which he thought might aid Respondent's cause There was in fact no pickup order in Rogers' packet on March 6. The following week, when Powell and Lemacks were discharged, Rogers made a run fo Macon on March 10. On his return, Gertenbach asked him whether he had ob- tained permission to leave at midnight On the preceding run to Charleston. When Roger§ replied that there was no pickup, but that he had not received permission to leave at midnight, Gertenbach required him to sign a "warning letter," without giving him a copy Rogers protested this to Quinn, who told him that it was a minor matter. This was the first time that Rogers had ever been reprimanded over a departure time, according to his tes- timony. Rogers was a trustworthy witness, and I credit his testimony in its entirety. c. Fortner's injury and loss of equipment (1) Summary of the evidence In November 1982, the refrigeration unit in Fortner's trailer failed to function, resulting in -damage to food products, and Fortner was reprimanded. In December 1982, he received a 3-day suspension with loss of pay, and a 3-month probationary period ending March 9, 1983, because of customer complaints (R Exh 24) On December 31, 1982, there was a fuel leakage at the fuel pump in the company yard, and Fortner's boots became oily. He slipped and fell backwards while getting into the tractor, and was injured and hospitalized for 5 days. Gertenbach reprimanded him for failure to observe safety regulations. As indicated above, when Fortner left the hospital about January 5, he became a leader of the union movement. - According to Fortner, when he was taken to the hos- pital, his equipment, consisting of a handtruck, stands, and four rollers were left unattended. Holsumback vis- ited him in the hospital to inquire about his paperwork, and at that time Fortner asked the transportation supervi- sor to check on his equipment However, when Fortner returned to work, his equipment was missing. It had been stamped with Fortner's clock number, and he testified that he located , his rollers in the bin, of another_ driver, Jimmy Mitchell. In late January or early February, ac- cording to Fortner, he took Holsumback to Mitchell's bin and showed him the rollers. Holsumback promised to get the equipment back from Mitchell and return it to Fortner, but did not do so according to the latter. In- stead, Holsumback placed Fortner's equipment in the utility trailer, for which Holsumback had the key Fortner had a conversation with Holsumback about his equipment a short time before making a run to Charles- ton on February 27, but Holsumback claimed that he had not yet seen Mitchell. It was not until Fortner's March 3 conversation with Holsumback in the utility trailer, de- scribed above, that he obtained his equipment. Holsumback gave a different chronology of events According to him, Fortner did not return to work 'after his injury until about the last week of January, and at that time reported that his equipment was missing. Hol- sumback does not deny Fortner's averment that the latter told Holsumback about the equipment during a hospital visit, in early January. Continuing with Holsumback's version, when Fortner reported the loss in late January, Holsumback offered him a handtruck, stands, and steel rollers, which Fortner refused because his own were aluminum Fortner did not need the equipment at that time, since he was making runs with another driver, and the latter's equipment was sufficient. Holsumback also contended that he investigated on re- ceiving Fortner's report, and located Fortner's hand- truck, stands, and two of his -(aluminum) rollers "scat- tered out in the yard." Fortner came by and reported that he had located two of his rollers. At that point, Fortner and Holsumback went to the bin of another driver, where Fortner identified two of his rollers. Fortner did not say whose bin it was, although the bin had an employee's clock number. Holsumback knew it was Mitchell's bin, but did not tell this to Fortner, ac- cording to his own testimony. He asserted that Fortner took his handtruck and three stands, but would not take the two aluminum rollers which Holsumback had found in the yard until the other two rollers were retrieved from Mitchell's bin Holsumback contended that he reached Mitchell, then on a trip, and the latter asserted that he had found the two rollers in the yard, had ,placed them in his bin for safekeeping, and had reported the matter to his supervi- sor. Holsumback reminded Mitchell of a company letter warning drivers that use of another driver's equipment warranted immediate termination (R Exh. 12). Holsum- back asserts that he checked with Mitchell's supervisor, 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who corroborated the latter, and Holsumback then gave Mitchell a "verbal warning." The transportation supervi- sor then took the two aluminum rollers out of Mitchell's bin, -and placed them in the utility trailer, together with the other two rollers which he had found in the yard. Thereafter, , as recited above, Holsumback contends that he offered Fortner his four aluminum rollers on March 3, and that the latter declined. , (2) Factual analysis . Holsumback is not explicit on the time that he recov- ered the two rollers from Mitchell, but the context of his testimony suggests that it took place in late Janaury or early February. This is consistent with Fortner's testimo-, ny' that he took Holsumback to Mitchell's bin at that time and showed him Fortner's rollers As indicated above, Holsumback's position—that Fortner continued to reject his own aluminum rollers, for one -reason or another, until after March 3—is incred- ible. I credit Fortner's. testimony, and find that - Holsum- back placed Fortner's equipment in the ' utility trailer about early February and, when Fortner questioned him in late February, denied having seen Mitchell. I credit Holsumback's testimony that the discipline administered to Mitchell for having taken Fortner's equipment was a verbal, warning.. • d. Fortner's trips to Charleston and Macon, and his discharge , (1) Fortner's testimony , ' -On February 27, Fortner made his first single run since returning to work. The destination was Charleston, and Fortner did not have his own equipment. However, the Company allowed some equipment left by former drivers to be stacked in the yard, while assigned equip- ment was 'supposed to be kept in the drivers' bins. Fortner picked up some equipment in the yard for this trip. He did not know whose equipment it was, if any- body's. According to Fortner,. he left at 3:30 p.m. on Sunday, February 27, and replaced the equipment on his return. - On March-3, Fortner made a trip to Macon. Again, he picked up' equipment in -the yard. He discovered that it belonged to another driver, Vernon Burdette, because of the clock numbers on the equipment. When returned the --same day, Holsumback offered Fortner his own equipment, and Fortner said that Burdette would prob- ably be glad to get his back. Holsumback inquired whether he had Burdette's equipment, and Fortner re- plied affirmatively. Fortner returned it. • -- According to FOrtner, March 10 was "bid" day, and Fortner was in the office examining his options for the next routes to be bid. He took his bids into Gertenbach's office, and the latter asked whether he had used Bur: dette's rollers. Fortner replied affirmatively, explaining that Holsumback had Fortner's equipment locked up in the trailer. "Is there a problem?" Fortner asked Gerten- bach, "No," replied Gertenbach, "[T]here's no problem. I just wanted to ask you about them." Lemacks later came out of Gertenbach's office and said that he had been fired. As this actually took place on March 11, Fortner's March 10 date is erroneous. Later in the afternoon of March 11, Fortner and Rogers were at the union hall, as described above, and caused the telegram to be sent to Quinn which the latter rejected. Gertenbach called Fortner that afternoon and said, "Per our conversation this morning, this is to inform you that you have been terminated with - the Martin-Brower Company." He then hung up. Fortner re- ceived a telegram from Gertenbach reading as follows: This is a confirmation copy of a telegram addressed to you. This is to confirm that your employment with the Martin-Brower Company was terminated effective today as we discussed on the phone [G.C. Exh. 10]. Fortner filed a claim for unemployment compensation benefits, and, a few days later saw the Company's re- sponse, alleging that he was discharged for unauthorized use of another employee's . equipment, and for falsifica- tion of records (G.C. Exh. 11). 13 Fortner testified that this was the first time he 'knew the Company's reasons for discharging him. (2) The Company's position Respondent's witnesses contended that Fortner falsi- fied his 14 by showing that he left on the February 27 trip at 3:30 p.m., whereas he did not really leave until after midnight. Respondent supports this position with evidence that Burdette last saw his own rollers about midnight on February '27, as he was leaving on a trip with another driver utilizing the latter's equipment. Ac- cordingly' , the Company argues, Fortner could not have left at 3:30 p.m_ with Burdette's equipment, 'and must have left after midnight When asked to produce a motel receipt, Fortner could only produce a form receipt with- out the name of any motel, and could not recall where it was that he stayed that night. His niotive, the 'Company argues, was to obtain expenses for a night's lodging to which he was not ,entitled (3) Gertenbach's testimony Gertenbach testified that Burdette reported to him on March 1 that his equipment was missing- since February 28, after having been secured in the trailer The transpor- tation manager asserted that Holsumback told him on March 4 that the latter had obtained Burdette's equip- ment from Fortner the prior day, March 3. Gertenbach stated that he called Fortner's house on March 4, but that the call was not returned until Sunday, March 6, to the Company's answering service. Gertenbach returned the call, and Fortner's wife informed Gertenbach that her husband was ill. Gertenbach asserts that he finally reached Fortner on Monday,. March 7, and that Fortner then told him that he had taken Burdette's equipment on February 27, with Holsumback's permision. Gertenbach said that he questioned Holsumback, who denied giving 13 The State's claims examiner allowed the Company's defense, -on the ground that Fortner had falsified his logbooks MARTIN-BROWER CO. 815 Fortner permission to take Burdette's equipment Gerten- bach asserts that he concluded that the "timing was off," since Fortner was supposed to have left for Charleston on Sunday afternoon, whereas Burdette had reported seeing ins equipment about midnight. Gertenbach testi- fied that Fortner's log showed an arrival in Summerville, South Carolina, at 10:30 p.m, and that the driving time is 5-1/2 to 6 hours. The log actually shows that Fortner left at 3 .30 p.m. on February 27, arrived in Columbia, South Carolina, at 8 p.m. ("20.00"), was off duty an hour, left at 9 p.m., drove until 10:30 p.m.;' and Was then "off duty" (R. Exh. 22). The next log shows him arriving at Summerville, South Carolina, at 6 a.m. on February 28, remaining there 15 minutes, and arriving at Charleston, South Carolina, at 8:45 a.m. Fortner worked until 6 . 15 p.m. on February 28 (R. Exh. 23). According to Gertenbach, Fortner was told to come into the office to make his bid for the next route. Also, Gertenbach wanted to talk to him about Burdette's roll- ers. Fortner did so, but on March 11, rather than March 10. Fortner was first given his bids, and then had a con- versation with Gertenbach. The latter told -Fortner that he had said "on Monday the 27th" [sic] that he had taken Burdette's equipment with Holsumback's permis- sion." According to Gertenbach, Fortner denied this, saying that he had told Gertenbach that he took the equipment on March 3 on a solo run to Macon. Gerten- bach asked Fortner the name of the town and motel where Fortner had stayed on February 27, and Fortner could not remember. Gertenbach, on the assumption that it was February 27 that Fortner took Burdette's rollers—and therefore could not have left at midnight—testified that he conducted an investigation to determine when it was that Fortner actu- ally left. The alleged investigation was singularly incon- clusive. None of the warehousemen remembered seeing Fortner leave on February 27. The supervisor on duty (Kitchens) could not remember seeing Fortner that after- noon Although there is a dispatch sheet, the departure time is not listed. Although Fortner was hauling a refrig- erated trailer, whose temperatures were supposed to be recorded every 2 hours by a security guard,,Gertenbach did not investigate any such records. He , asserted that Warehouse' Manager Waters had supervision over the se- curity guards, and that he .did not talk to Waters about the matter. Accoidmg to Gertenbach, a driver could simply walk in, get his papers, hook up the trailer to his tractor, and leave without talking to a security guard. The truck itself, or tractor, was rented by Respondent from a rental company (Ryder). Gertenbach asserted that he called Ryder, but did not know whether it had a log on the time, that Fortner picked up the tractor on Febru- ary 27. As far as Gertenbach could determine from Ryder, the keys are left in the ,ignition, and Fortner simply arrived, got in, and drove off without talking to anybody. On Gertenbach's theory, this took place some 14 The transcript is erroneous at this point . since Gertenbach's actual testimony was that Fortner told him on Monday, March 7, that it was on February 27 that Fortner took Burdette's equipment time after midnight, February 28. Fortner then drove to Respondent's warehouse, hooked up a trailerload of re- frigerated merchandise, and again drove off without talk- ing to anybody, and without any record of departure time Gertenbach testified that he discussed the matter with Quinn, and that the decision was made to terminate Fortner. The first reason Was log falsification—Fortner's claim that he had a layover on February 27, whereas in fact he drove straight to his first stop. Gertenbach con- ceded that the question about the rollers and the layover money was "a bit shady," but gave major consideration to Fortner's prior discipline and the probationary period. However, if Fortner had been able to come up with the name of a motel where he stayed on February 27, this would have indicated that he could not have taken Bur- dette's equipment on that day. Quinn communicated with his own superior in Chica- go, and Fortner was informed of his discharge by tele- phone about 3 p.m., Friday, March 11, followed by a telegram. (4) Burdette's testimony Burdette asserted that his rollers were imprinted with his clock number, and were locked up in his bin at mid- night on February 27, when he left with another driver using the latter's rollers. Burdette's rollers were missing when he returned on February 28 (R. Exh. 26) He said that Holsumback told him about 3 days later that he had found them, i.e., about March 3. However, it was not until about a week and a half later that Burdette got his rollers back, and was told that it was Fortner who had them. (5) The General Counsel's evidence on motel receipts The actual motel receipt which Fortner submitted to the Company is in evidence. It is a printed form without the name of the motel. Fortner's name and address are printed on the form, together with an indicated arrival date of February 27, and a departure date of February 28. The room number is "16," and the room rate is $26 (R. Exh. 13). Fortner testified that he could not remem- ber the name or motel, or the name of his first stop. He returned to the Warehouse on Tuesday, and submitted two expense vouchers for layovers in the amount of $32 each. He testified that he had turned in similar receipts in the past, and none had been questioned. The General Counsel elicited additional evidence on this point. Thus, Powell testified that the nightly layover rate at the time he was employed was $32, and that no motel bill was required to substantiate the charge. Powell turned in receipts which he made up himself, and most of the drivers have their own "receipt book" for this purpose At one point, Gertenbach said that he was trying to eliminate the receipts completely, and "just pass the money up front." Wallace testified to similar effect, and said that expense receipts were never investi- gated. Lemacks made similar averments, and stated that Holsumback explained the Company needed something on file for "tax purposes." Rogers, currently an employ- 816 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD ee of Respondent, identified a blank receipt form which is the same as the one Fortner submitted, and testified that he is routinely paid by the Company .on submission of such a form (G.C. Exh. 13). (6) Factual analysis • The distance from Atlanta to Columbia, South Caroli- na, is 214 miles and from Atlanta to Charleston, South Carolina, is 289 miles. 1 At the "legal" DOT speed of 47 miles per hour, the trip from Atlanta to Charleston would have required more than 6 hours of driving time alone, exclusive of rest stops, meals, etc. Fortner's log shows that he reached Charleston' at 8:45 a.m. On Febru- ary 28. Respondent has submitted nothing to cast doubt on this arrival time. Burdette asserted that his rollers were locked in his bin at midnight on February 27. In order for Fortner to have taken Burdette's rollers on that night, as Respondent asserts that he did, Fortner would have had to arrive at the warehouse some time after mid- night, take the time necessary fo break the locks on Bur- dette's bin, take out the rollers, place them in his tractor or trailer, hook up the trailer to the tractor, and then start out for Charleston, with stops at Columbia and Summerville on the way. It may have been possible for a determined driver in a passenger car to have reached Charleston by 8:45 a.m by sacrificing rest stops and meals. It is highly improbable that a commercial driver, with a relatively cumbersome tractor-trailer combination, would have started out after ,midnight, somehow raced to Charleston by 8:45- a.m., and then would have worked throughout the day without any rest whatsoever. Gertenbach's alleged investigation of the time that Fortner left on February 27 resulted in conclusions which are unbelievable. According to that investigation, an individual was able to walk into the Ryder yard, find a tractor with gasoline in the tank and a key in the igni- tion, drive off without being seen, go to the Martin- Brower warehouse sometime after 'Midnight, break the locks on a bin, hook up a trailer loaded with -valuable re.- fngerated perishables, and drive off again without being seen and without any records. This attains the height of incredibility. Because of the foregoing improbability of the time factor, the incredibility of Gertenbach's investigation, and the fact that Fortner was a more believable witness, I accept his testimony that he left on Sunday. afieroon, February 27, as recorded in his log.. I also find that Fortner stayed at a motel the night of February 27. The fact that he could not remember the name of the motel is of no moment, since only a driver with computerized recall could remember the name of every motel where he stayed. The fact that Fortner could not supply a, motel receipt with the, name of the motel imprinted on it is also irrelevant, since the General Counsel supplied abundant evidence,. which I accept, that it was company practice to accept personalized re- ceipts without such names. 16 I take Judicial notice of the mileage- figures set forth , in "Standard Highway Mileage Guide," p 36, published by, Ran McNally & Company (Chicago, New York, San Francisco, 1978) I conclude that ,Fortner in fact did not take Burdette's rollers on February 27. There is no reason to question his testimony that he found them in the Yard on March and took them on his -trip to Macon, , and I credit that testimony. How Burdette's rollers came to be in the yard on March 3 is unknown Since Fortner did not .take the Toners on February 27, would he then have told Gertenbach that he took them on that date with Holsumback's approval? This assertion by Gertenbach is also, incredible, and ,I reject Gerten- bach's testimony that,,, during ., his conversation with Fortner on .March 11, he asserted, and Fortner denied, that the latter had admitted in a prior conversation on March 7 that , it was on February 27 that he took Bur- dette's rollers. Like Hamlet,- Gertenbach staged a play within a play. His object was to. justify his false accusa- tion that Fortner had logged his departure time inaccu- rately on February 27.. Gertenbach was , tied into this date by Burdette's testimony. reject Gertenbach's1 account of his conversation with Fortner on March 11, and accept Fortner's version, with the correction that it took place. on March 11 instead of March,. 10. I, therefore, find that. Gertenbach asked Fortner whether the latter had- used Burdette's rollers, and. that Fortner replied affirmatively, explaining that Holsumback had locked up Fortner's rollers in the trail- er. Fortner asked whether there was any "problem," and Gertenbach replied that there was none. Later that day, Gertenbach called Fortner; discharged him, and sent him a telegram advising him that he- was terminated per that conversation. , 3, Legal conclusions on the discharges of Powell, Lemacks, and Fortner. Respondent's animus against the union movement is es- tablished by its violations of Section 8(a)(1) described above. The Company threatened employees with loss of privileges, pay raises, plant removal, and discharge for favoring or voting -for the Union, and engaged in other unfair practices showing its hostility to the union move- Merit: A 'The Company also knew' that Powell, Fortner, and Rogers Were the leaders of the union niovement, Since Ford informed Gertenbach of this fact Quinn's 'rejection of the union telegram, identifying Fortner and Rogers as union supporters, was a calculated stratagem. Fortner's conversation with Holsumback on March 3 showed that he 'was a itrong' union supporter. Waters told McGill that the Company knew who had signed cards. Powell spoke up at the employee meeting on January 31, and Waters flatly told him that he had 'better get the Union in, - because Quinn was going to fire him. Lemacks, to- gether' with Förtner, was "very vocal" at the employee meeting: Although not identified by Ford a's one of the leaders of 'the union movement, -Lenfacks also attended union meetings, asked other emploYees to support the Union, and was known by management to be the co- driver with known union activist` POwell. The General Counsel has thus established a strong prima facie case that . Respondent discharged Powell, Lemacks, and FOrtner because' of their union activities. MARTIN-BROWER CO 817 Respondent has not rebutted this case. With respect to Powell, Respondent wandered from one excuse to an- other for his discharge. On March 10, after the missed pickup, all that Gertenbach talked about was fog falsifi- cation and lost padlocks. The former concerned a pica- yune matter 2 months before, where Powell's log showed that he was in the sleeper when in fact he was in the trailer. The Company, despite the lecture from Hargis on accuracy of logs, tacitly or explicitly advised drivers to alter their logs to make them "legal" when business circumstances required it Nor has Respondent advanced any convincing reason why it waited 2 months to mention this infraction to Powell. As for the lost pad- locks, Powell told Gertenbach that he had replaced them at his own expense, but the transportation manager said that that fact did not make any difference. On the next day, March 11, Gertenbach fired Powell on the telephone without giving him any reason. He fol- lowed this with a letter saying that the discharge was for "insubordination." Although this reason was never ex- plained to Powell, it apparently referred to the company theory that Powell and Lemacks had defied direct orders from Gertenbach and/or Hallman to make a pickup in Stuttgart As the facts show, however, there were only conjectural statements from Gertenbach the week before, and from Hallman just before the last trip, but no direct order, and there was no pickup slip in the drivers' packet of documents. Although the route was supposed to have a pickup, on several prior runs there was none. With respect to Lemacks, Respondent explicitly gave the missed pickup as the reason for the discharge, calling it "gross negligence." However, as the facts show, Re- spondent's new policy was to order pickups by means of a pickup order in the driver's documents, and to call them on the road when such an order had inadvertently been omitted. There was no written or verbal order re- quiring drivers to call the office on long-distance runs to inquire about pickups, despite Respondent's recent publi- cation of a memorandum on the subject. When Lemacks on one occasion did not make such a call, after having been told by Dispatcher Hallman that there was a pickup and after discovering that there was no pickup order, Holsumback asked him why he was bothering to call. It is obvious that Respondent's charge of "gross negli- gence" under these circumstances is itself gross exag- geration: This is especially so in light of Lemacks' good record, which the Company admitted. The case of union activist Rogers, still employed by the Company, is the same as that of Powell and Le- macks, with one .important difference. Like the latter two employees, Rogers was charged with missing a pickup. Unknown to Respondent, however, Rogers had called the warehouse manager and had determined that there was no pickup order in his packet, thus disproving Holsumback's assertion that he had prepared one: The Company reluctantly withdrew its case against Rogers, on learning this, and charged him only with changing his scheduled departure time. The General Counsel suggests that the Rogers case indicates that Respondent was fol- lowinj a policy of entrapment by prearranging reasons for the discharges of Powell, Lernicks, and Rogers. I need not decide this issue, but merely find that the stated reasons for the discharges of Powell and Lemacks were obviously pretextual under established Board criteria. The fact pattern in Fortner's case is different, but with the same result. After Fortner showed Holsurnback his missing equipment in Mitchell's locker, Holsumback re- trieved the equipment, but locked it up in the utility trailer instead of returning it to Fortner. When Fortner went on his first solo run and needed equipment, he picked it up in the yard, first on February 27, and again on March 3. Discovering on the latter occasion that he had Burdette's equipment, he returned it to the Company which thereupon invented the concatenation of absurdi- ties and contradictions, outlined above, to justify Fortner's discharge I have carefully considered Fortner's record, which Respondent states was important in its decision to dis- charge him. The 3-month probationary period was ap- parently grounded on customer complaints, but had ex- pired 2 days before Fortner was discharged. The repri- mand to him for violating safety regulations, when it was a leaky fuel pump which made his boots oily and caused him to slip, seems to have been rather questionable disci- pline. In any event, the Company discharged him in part for using Burdette's equipment, and gave Mitchell merely a verbal warning for using Fortner's equipment. The disparate nature of the discipline is evidence of dis- criminatory motivation in Fortner's case. I conclude that Respondent has not established that it would have discharged Powell, Lemacks, and Fortner even if they had failed to engage in protected activity. Accordingly, Respondent has not rebutted the General Counsel's prima facie case, and its discharge of those em- ployees on March 11, 1983, was violative of Section 8(a)(3) and (1) of the Act. NLRB v. Transportation Man- agement Corp., 462 U.S. 393 (1983); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir 1981), cert. denied 455 U.S. 989 (1982). 4. The discharge of McGill a. McGill's hiring and employment history McGill started working for Respondent in 1979 She was first classified as a temporary employee. However, Respondent moved into its new facility in College Park about March 1981 and began experiencing problems. One of these was increased volume, and another was invento- ry shrinkage. Accordingly, Respondent created the posi- tion of warehouse clerk, and assigned McGill to the posi- tion. This permitted Warehouse Manager Waters to spend more time on the floor, and resulted in a general tightening of receiving procedures. • Waters testified that the inventory shrinkage problem improved "almost 90 percent" after the hiring of McGill. In November 1981, McGill received a performance eval- uation which rated her as "proficient" in six categories and "more than proficient" in three categories. There were written comments on the evaluation report, such as "very good, catches a lot of receiving errors," and "always on top of her functions and helps out the Inven- tory Control Coordinator (ICC)." The report described her as "real good" in learning ability, with no complaint 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about learning new procedures. She volunteered her services when needed, and manifested initiative to assure the accuracy of receiving reports. McGill had a "real good- attitude towards the Company and employees, and [got] along well with everyone." She was "a very intelli- gent and conscience [sic] employee" (G.C. Exh 14). • In August 1982, McGill received another performance evaluation almost the same as the first one, although her overall performance rating was raised from "proficient" to "strong proficient" This evaluation was signed by Warehouse Manager Waters and Center Manager Quinn (R. Exh. 29). A few months thereafter, McGill received a pay raise. As already described, McGill attended the union meet- ings in early 1983. She also had the conversations with Warehouse Manager Waters about the union campaign and about her own job, set forth above. On April 29, Quinn told McGill that she was laid off because her job no longer existed. b duties In addition. to Waters as warehouse manager and McGill as warehouse clerk, there were three warehouse supervisors and various warehousemen and checkers. There was also an inventory control coordinator (ICC). He had overall responsibility to maintain . compliance with the Martin-Brower inventory control system, and various specific responsibilities 16 McGill was in an office on the warehouse floor, and performed a variety of functions. Drivers from vendors delivering merchandise to Martin-Brower would bring freight bills to her, and McGill would check to see that the Company had received exactly what the warehouse- man reported. Thereafter, she stamped the vendor's doc- ument "Received " These drivers came in at various times scattered throughout the day until 3 p.m., when re- ceiving was stopped. The Company never knew at what time a product was being delivered to it, and McGill was therefore required to be on a standby basis much of the time. She started at 7:30 a.m., and handled up to 30 or more inbound carriers daily. The number of such carriers fluctuated on a daily basis. When there were about 15, it was a "slow" day but, when the number reached 30, it was a-"hectic" day.. McGill also answered the telephone in Waters' ab- sence from the warehouse office, and made truck-driver appointments She brought incoming mail upstairs. On occasion in the late afternoon, she did typing for compa- ny officials upstairs Quinn said that McGill's typing for him only took 15-30 minutes, and not on a daily basis. McGill, however, testified- that she also typed for other company officials, and that the total time ran to half an hour to an hour a few times a week. The Decision and i6 ICC was required to prepare "receivers," i e, receiving docu- ments, on a daily basis, prepare them for mailing, coordinate with trans- portation to assure proper credit for backhaul-linehaul allowances, check receiving records for accuracy, transfer Information from receiving records to the proper purchase order, teletype all purchase orders daily, check the daily inventory -against purchase orders,-transmit them to Re- spondent's office in Chicago, maintain "cycle counts" of products, co- ordinate with the purchasing department, and "assist in all phases of in- ventories" (R Exh 15 and testimony of Waters) Direction of Election states that about 10 percent of warehouse clerk's time was spent upstairs doing copying and typing (R. Exh 3), but McGill said that it was more like 20-25 percent. Waters admitted that McGill stayed upstairs after 2 or 2:30 p.m. For a time, McGill was also "logging product codes for Red Lobster." She was relieved of this work, and as- signed the duty of assisting the ICC with "receivers," e., a tally sheet containing detailed information on in- coming freight. McGill prepared this document, checked it with other records, made copies, and transmitted them to Chicago. She also did some filing for the ICC and some checking of linehaul-backhaul allowances. c. The replacement of the ICC , Waters testified that the ICC during 1982, an employ- ee named Garland Smith, was doing unsatisfactory work, and Waters began interviewing other individuals to re- place him. McGill asked Waters for the job, but he did not consider her qualified because she did not have a col- lege degree, and because of his belief that she could not "take the pressure." Smith was replaced by Mark McCormick on January 3, 1983. Waters contended that the hiring of McCormick re- duced McGill's duties. Thus, the warehouse manager as- serted that McGill did not "do receivers" after the hiring of McCormick. He stated that McGill continued "to make Xerox copies and put them together for mailing," but denied that she -had any telecopying responsibilities. In fact, Waters argued, McGill used the telecopying equipment only 5-10 times after the release of Smith. Unlike Smith, McCormick did his own typing, and had a better attendance record than the former. His office was moved downstairs. McGill testified to the contrary. McCormick did- not do any more than Smith did with "receivers." He took the purchase order and made an entry of the number, but it remained- for McGill to make the copies, send them to Chicago, and make entries in the receiving log. McGill continued to check linehaul-backhaul allowances with transportation. She checked the daily inventory analysis (DIA) against the purchase orders under both Smith and McCormick. Smith's attendance had actually improved during his last months at Martin-Brower The only dif- ference in McGill's work after McCormick was hired is that she had less filing to do. Waters was less credible than McGill. I accept her tes- timony and find that the replacement of Smith by McCormick resulted in only a minimal reduction in McGill's duties. d. The increase in Respondent's business McGill testified that, during the last 3 months of her employment, she was required to type a weekly report for Quinn justifying overtime for various employees. The • explanation invariably was that the warehouse was breaking receiving and shipping records. Waters admit- ted that McGill prepared such reports. McGill said that she and other administrative employees were busier during the last 3 months than during the preceding months. McGill, who normally worked a 40-hour week, MARTIN-BROWER CO 819 earned over $250 in overtime from January to mid-April, just before she was laid off. (G.C. Exh. 15.) Waters testified that the Company had attained a record volume of business during the 9-month period ending in August 1983. However, Waters contended, the volume of business in April 1983, when McGill was re- leased, was about the same that it had been in the fall of 1982. The import of Waters' testimony is that the Compa- ny's volume of business stayed about the same level from the end of 1982 through April, and then suddenly in- creased. This assertion is contradicted by the statistical reports prepared by McGill for Quinn, by the document- ed evidence of McGill's overtime, and by McGill's more credible testimony. I find that the Company's business in- creased during the first 4 months of 1983, and that McGill worked overtime. e. Waters' analysis of McGill's productivity Waters testified that McGill spent some of her time reading newspapers, magazines, and books in the receiv- ing office, and that Garland Smith complained that she was twiddling her thumbs. The warehouse manager ana- lyzed her duties, contended that each of the functions she performed took only a few minutes a day, and con- cluded that she had only 2 hours of "productive time" out of an 8-hour workday. This had been the case for "a pretty good while" before she left the Company. McGill agreed that she read a. newspaper at work, but affirmed that this took place only on breaktimes. She never "shirked" her work. Other employees, customer service representatives (CSR's), listened to the radio when they were finished with their work for the day. McGill denied that she only worked productively 2 hours a day during her last months of employment. In fact, her work picked up because of the increased volume of business. Since the Company never knew the exact arrival time of incoming freight, part of McGill's work was to be on a standby basis. This is simply the nature of one of her jobs. However, Waters' assertions are almost ludicrous in light of the documented record that Respondent was paying McGill overtime for working more than 40 hours a week, when, according to Waters, she was really Working only 10 hours. The warehouse manager's con- tentions are implicitly contradicted by Respondent's evaluations of McGill For these reasons, I reject Waters' analysis of McGill's productivity. f. McGill's "layoff' About the end of the day on April 29, McGill was called to the conference room. Quinn told her that she knew that the warehouse clerk's job was a "created" job, because there was no other position like it in the Martin- Brower system. That position no longer existed. McGill asked whether she had been laid off, and Quinn replied affirmatively. He said nothing about recalling her to work Waters corroborated McGill on this latter point. Waters testified that the abolition of McGill's job came as a surprise to him. He had made no recommendation in the matter, and the decision was made by "higher au- thority." Waters said that he would have liked to retain McGill, since he thought highly of her as a worker and an employee. g. Availability of other work McGill testified that another checker position was cre- ated after she left the Company. This was filled by a new employee, Mike Shelton. In addition, Cindy Hogan, one of the customer service representatives (CSR), resigned a week or two after McGill left. This position was filled by another new employee, • Mickey Rich. McGill said that she was familiar with the product codes which would have been helpful in the checker's position, and that she was familiar with the paperwork requirements of the CSR position Waters said that he had hired a checker in late 1982, and that McGill knew about this and did not apply for the job. A .checker had to be able to lift 74 pounds, ac- cording to Waters, and all of his checkers were men. However, on cross-examination, the warehouse manager refused to affirm that a woman was unable to perform the job of checker. He had made no decision on the matter. He also refused to deny that McGill was quali- fied for the CSR job, and his testimony suggests that "with training" she could perform this job. 'The "Red Lobster book," which McGill maintained for a time, was maintained by a CSR before and after McGill's tenure with the Company. Quinn asserted that there were no job openings in the CSR department on April 29. On May 1, he took on Mickey Rich as a "temporary" CSR. Fifty percent of Cindy Hogan's work was done on the Burger Chef ac- count, which Quinn knew that the Company was going to lose, and which it did lose in July. Hogan resigned without notice on May 5. Quinn interviewed some people for the job, kept Rich on as a temporary employ- ee for some time, and offered her the CSR job in mid- June She accepted. I conclude that, after McGill's "layoff' on April 29, work became available for which she was qualified. This was clearly the case with respect to the CSR job which Rich obtained, and Waters had not ruled out the checker position as a job for women. It is also clear that Re- spondent did not offer McGill either of these jobs. h. Legal conclusions As described above, McGill attended union meetings and signed a union card and Waters told her that the Company knew who had signed cards. After McGill had been excluded from the voting unit, and said to Waters that her job was "safe," he replied. "I don't know. They never forgive and they never forget." This clearly estab- lishes Respondent's animus against union supporters in general, and against McGill in particular I conclude that McGill in fact was discharged, rather than laid off, on April 29. She was never recalled, al- though work for which she qualified became available. I also conclude that the General Counsel has established a prima facie case that her discharge was discriminatorily motivated. This case is established by the specific evi- dence of Respondent's animus against her as a union sup- 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porter, and is buttressed by her record of good work, and by the fact that her immediate supervisor, Waters, was not consulted concerning her discharge, and, indeed, wanted to retain her. Respondent has not rebutted the General Counsel's case. The reasons given by Respondent for the alleged abolition of her job are pretextual. The need for the warehouse clerk position was clearly recognized by Re- spondent when it created that position, and that need, became even greater as Respondent's business increased in early 1983. The reason given to McGill by Quinn on. April 29 for elimination of the job—that it was the only one in the Martin-Brower System—is irrelevant, since Respondent was obviously aware of that fact when it created the job in the first place. Waters' attempt to demonstrate that there was no real need for the job, and that McGill really worked only 2 hours a day, was un- persuasive for the reasons set forth above. I, therefore, conclude that Respondent has not estab- lished that it would have terminated McGill even if she had not been a union supporter Accordingly, the Gener- al Counsel's case is unrebutted, and I find that, by dis- charging McGill on April 29, because of her support for the Union, Respondent thereby violated Section 8(a)(3) and (1) of the Act. NLRB v. Transportation Management Corp, supra, Wright Line, supra. In accordance with my findings above, I 'make the fol- lowing CONCLUSIONS OF LAW 1. Martin-Brower Co. is an employer engaged in coin- _ therce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Local Union No. 728 is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the following conduct, Respondent committed unfair labor practices .in violation of Section 8(a)(1) of the Act: (a) Telling an employee that her job could be eliminat- ed if Respondent found out that she favored the Union. (b) After a union supporter said that her job was "safe" following her exclusion from the voting unit, re- plying to her "I don't know. They never forgive and they never forget." (c) Telling an employee that it knew who had signed union cards, and that the Union was going to lose the election. (d) Telling a known union supporter that he had better get the Union in, since Respondent was going to fire him. (e) Telling an employer that if the employees voted for the Union, there would be no raises, only litigation, and that the Company would "hold as long as they possibly could." (f) Telling an employee that Respondent had pur- chased an option to buy land elsewhere, and that if the employees voted for the Union, Respondent would move its plant to this new location, and the employees would lose their jobs. (g) Telling an employee that Respondent would take away the employees' telephone credit cards, holidays, and uniforms, if they voted for the Union 4. By discharging Stephen M. Fortner, Alvin Le- macks, and Billy E. Powell on March 11, 1983, and by discharging Sandra K. McGill on April 29, 1983, because of their support of the Union and activities on its behalf, Respondent thereby violated Section 8(a)(3) and (1) of the Act. - 5. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not violated the Act except as here- inabove set forth. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease, and desist therefrom and to take cer- tain affirmative actions designed to effectuate the pur- poses of the Act. It having been found that Respondent unlawfully dis- charged Steven M. Fortner, Alvin Lemacks, and Billy E. Powell on March 11, 1983, and Sandra K. McGill on April 29, 1983, it is recommended that Respondent be or- dered to offer each of them immediate and full reinstate- ment to his or her former position or, if such position no longer exists, to a substantially equivalent position, with- out prejudice to his or her seniority or other rights and privileges, dismissing if necessary any employee hired to fill the position, and to make him or her whole for any loss of earnings he or she may have suffered by reason of Respondent's unlawful conduct, by paying him or her a sum of money equal to the amount he or she would have earned from the date of his or her unlawful discharge to the date of an offer of reinstatement, less net earnings during such period, with interest thereon to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). 17 In addition, it is recommended that Respondent be required to ex- punge from its personnel records all references to its aforesaid unlawful discharges, and to notify each em- ployee in writing that this action has been taken and that evidence of its unlawful discharge of him or her will not be used as a basis for future personnel action against him or her. I shall recommend that Respondent be required to post appropriate notices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed18 " See generally his Plumbing Co, 138 NLRB 716 (1962) 18 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 MARTIN-BROWER CO. 821 ORDER The Respondent, Martin-Brower Co., College ' Park, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees that their jobs can be eliminated if Respondent finds out that they favor the Union. (b) Telling known union supporters who have been ex- cluded from the voting unit, and who then affirm that their jobs are safe, that Respondent never forgives and never forgets. (c) Telling employees that it knows who signed union cards, and that the Union is going to lose the election. (d) Telling a known union supporter that he had better get the Union in, and that Respondent was going to fire him. (e) Telling employees that if they voted for the Union there would be no raises, only contract litigation and that the Company would "hold as long as they possibly could." (f) Telling employees that Respondent had purchased an option to buy land elsewhere and that, if the employ- ees voted for the Union, Respondent would move its plant to this new location, and that the employees would lose their jobs. (g) Telling employees that Respondent will take away their telephone credit cards, holidays, and uniforms . if they voted for the Union. (h) Discouraging membership in Truck Drivers and Helpers Local Union No. 728, or any other labor organi- zation, by discharging or otherwise discriminating against its employees with regard to their hire, tenure of employment, or any term or condition of employment. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the purposes and policies of the Act. (a) Offer Stephen M. Fortner, Alvin Lemacks, Billy E. Powell, and Sandra K. McGill immediate and full rein- statement to their former positions or, if any such posi- tion no longer exists, to a substantially equivalent posi- tion, without prejudice to his or her seniority or other rights and privileges, discharging if necessary any em- ployee hired to replace him or her, and 'make him or her whole for any loss of earnings he or she -may have suf- fered by reason of Respondent's discrimination against him or her in the manner described in the section of this decision entitled "The Remedy." (b) Expunge from its personnel records or other files of the above-stated individuals, any reference to his or her unlawful discharge, and notify him or her in writing that this action has been taken and that evidence of his or her unlawful discharge will not be used as a basis for future personnel actions against him or her. (c) Preserve and,-- on request, make available to the Board or its agents for exanimation and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in College Park, Georgia, copies of the attached notice , marked "Appendix." 19 Copies of the notice, on forms provided by the Regional ,Director for Region 10, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places niCluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) 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 ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found herein. 19 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 an Order of the Nation- al Labor Relations Board "