Penn Yan Express, Inc.

PENN YAN EXPRESS Penn Yan Express, Inc. and Donald Henrique General Chauffeurs, Teamsters, Helpers, Warehouse- men, Miscellaneous Industrial and Production Employees Union Local 526 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and Donald Henrique. Cases 1-CA-21658 and 1-CB-5957 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 July 1984 Administrative Law Judge David L. Evans issued the attached decision. Re- spondent Penn Yan Express and the General Coun- sel filed exceptions and a supporting brief, and Re- spondent Union filed a brief in support of the judge's decision. Respondent Penn Yan Express also filed a motion to reopen record for the pur- pose of introducing the affidavit of Supervisor Manuel Coloura, and the General Counsel filed a motion in opposition to the motion to reopen record.' 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,2 and conclusions as modified herein. We agree with the judge that Respondent Penn Yan Express violated Section 8(a)(3) and (1) of the Act when it dis- charged Donald Henrique because of his internal union activity.3 We also agree with the judge that i We deny Respondent Penn Yan Express' motion to reopen record, as we find that Respondent Penn Yan Express has failed to state a reason for not offering the evidence at the hearing 2 Respondent Penn Yan Express has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge 's credibility resolutions unless the clear prepon- derance 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings 3 In so finding, we rely particularly on two aspects of the judge's deci- sion First, we rely on the judge's general demeanor assessment that Hen- rique was a truthful witness and his crediting of Henrique's testimony on that basis Second, we rely on the judge's finding that the testimony of Harold Huff, the Union 's incumbent secretary-treasurer, regarding his conversation with Colours about the reasons for Henrique's discharge, was not denied Huff testified that Coloura told him that he did not want any union problems and he had to let Henrique go We have examined the record and we find that Huffs testimony was, in fact, not addressed by Respondent Penn Yan Express Although, as noted , we rely on the judge's general assessment of Hen- rique's veracity in finding the facts occurred as Henrique related them, we do not rely on the judge's alternative finding that Henrique's testimo- ny that Coloura told him, in effect, that he was being discharged so Co- loura could avoid union problems, was not specifically denied We find that Coloura arguably denied Henrique's testimony, as Coloura claims that he told Henrique , in effect, that union considerations did not influ- ence his decision to discharge Henrique Nonetheless , Henrique's testimo- ny on that point is accepted based on the judge's more general demeanor assessment We also find it unnecessary to rely on the judge's finding that the alleged policy of James Carlton, Penn Yan Express' director of labor relations, of deciding whether to allow an employee to make the seniori- 449 Penn Yan Express violated Section 8(a)(4) and (1) of the Act when it refused to reinstate Henrique because he had filed the instant charges with the Board. The judge dismissed the 8(b)(1)(A) and (2) alle- gations on the ground that Alfred Andrade, who caused the discharge of Henrique, was not an agent of Respondent Union. Contrary to the judge, we find that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by causing Henrique's discharge. In so concluding, we note that Alfred Andrade visited Coloura on 12 December 1983, the day after he had been elected as the Union's princi- pal officer, its secretary-treasurer, and approximate- ly 2-1/2 weeks before he was to take office. The judge found that, although Andrade revealed during his visit that he did not like Henrique and wanted him to work elsewhere, there was no evi- dence of union responsibility for Henrique's dis- charge. We find, however, that Andrade acted with apparent authority on behalf of the Union during his visit with Coloura, as evidenced by his introducing himself to Colours as the Union's newly elected secretary-treasurer and his visiting Coloura for the "official" purpose of encouraging Coloura to hire more Respondent Union workers. Thus, Coloura could reasonably have believed that Andrade was acting on behalf of the Union, which is what the Board requires in finding apparent au- thority. Carpenters Local 1780, 244 NLRB 277, 279 (1979); Community Cash Stores, 238 NLRB 265, 266 (1978). Moreover, the Board has found that the holding of elective office is persuasive and substan- tial evidence that the officer is an agent, absent compelling contrary evidence. Electrical Workers IBEW Local 453 (National Electrical), 258 NLRB 1427, 1428 (1981). The fact that Andrade had not yet taken office is not determinative, particularly as he appeared to be assuming the responsibilities of his office in his visit with Coloura. Further, as there is no evidence that the Union disavowed An- drade's actions after Andrade took office, we find that the Union condoned those actions.4 NLRB v. Bulletin Co., 443 F.2d 863 (3d Cir. 1971), enfg. 181 NLRB 647 (1970). We accordingly modify the judge's remedy, order, and proposed notice to the extent consistent herewith. ty list before that employee worked over 96 hours, did not exist We find that, even if this policy did exist, it was not the cause of Henrique's dis- charge We also do not rely on the judge's assessment that Coloura's fail- ure to use the phrase "cool down" in his pretrial affidavit and in his direct examination was significant * Under all the circumstances, it is unrealistic to believe, and the Em- ployer certainly did not believe, that the "lame duck" secretary-treasur- er's support of Hennque established the Union's actual position 274 NLRB No. 57 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REMEDY Having found that Respondent Penn Yan Ex- press has engaged in unfair labor practices in viola- tion of Section 8(a)(1), (3), and (4) of the Act, and that Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, we shall order them to cease and desist therefrom and to take certain affirmative action de- signed to remedy their unfair labor practices and to effectuate the policies of the Act. Having found that Respondent Penn Yan Ex- press discharged and refused to reinstate Donald Henrique in violation of Section 8(a)(1), (3), and (4) of the Act, we shall order it to offer him immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. As we have found that Respondent Union caused Respondent Penn Yan Express to discharge Henrique, we shall order that Respondent Union and Respondent Penn Yan Express jointly and sev- erally make Henrique whole for any loss of pay he may have suffered as a result of the discrimination against him by paying to him backpay, with inter- est. Backpay is to be computed on a quarterly basis in the manner prescribed by the Board in F W. Woolworth Co., 90 NLRB 289 (1950), with interest as established by the Board in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). ORDER The National Labor Relations Board orders that A. Respondent Penn Yan Express, Inc. Sekonk, Massachusetts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging membership in or activities on behalf of the General Chauffeurs, Teamsters, Help- ers, Warehousemen, Miscellaneous Industrial and Production Employees Union Local 526 a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging employees or by otherwise discriminating against employees in any manner with respect to their hire or tenure of employment or any term or condition of em- ployment. (b) Refusing to reinstate employees or otherwise discriminating against employees because they have filed charges or given testimony under the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them by the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act. (a) Offer to Donald Henrique immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or any other rights and privileges, and, jointly and severally with Respondent Union, make Henrique whole, with interest, for any loss of earnings and other benefits suffered by reason of his unlawful termina- tion. (b) Expunge from its files any reference to the discharge of Donald Henrique and notify said em- ployee in writing that this has been done and that evidence of his unlawful discharge will not be used as a basis for future personnel action against him. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Sekonk, Massachusetts terminal the attached notice marked "Appendix A."5 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by an au- thorized representative of Respondent Penn Yan Express, shall be posted by Respondent Penn Yan Express immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Penn Yan Express to ensure that the notices are not altered, defaced, or covered by any other material. (e) Post at the same places and under the same conditions as set forth in paragraph (d) above, and as soon as they are forwarded by the Regional Di- rector, copies of Respondent Union's notices marked "Appendix B." (f) Furnish to the Regional Director signed copies of the attached notice marked "Appendix A" for posting by Respondent Union in all its busi- ness offices, meeting halls, and places where no- tices to its members are customarily posted. Copies of the notice, on forms provided by the Regional Director, shall, after being signed by an authorized representative of Respondent Penn Yan Express, be returned forthwith to the Regional Director for disposition by him. 5 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 " PENN YAN EXPRESS (g) Notify the Regional Director in writing within 20 days from date of this Order what steps Respondent Penn Yan Express has taken to comply. B. Respondent Union, General Chauffeurs, Teamsters, Helpers, Warehousemen, Miscellaneous Industrial and Production Employees Union Local 526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Respondent Penn Yan Express, or any other employer, to dis- charge or otherwise discriminate against employees in any way because of their internal union activi- ties. (b) In any like or related manner restraining or coercing employees in the exercise of rights guar- anteed them by the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act. (a) Jointly and severally with Respondent Penn Yan Express make Donald Henrique whole, with interest, for any loss of earnings and other benefits suffered by reason of his unlawful termination. (b) Notify Respondent Penn Yan Express, in writing, with a copy to Henrique, that it has no ob- jection to the reinstatement of Henrique and that it requests Henrique's reinstatement. (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."s Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by an authorized representative of Respond- ent Union, shall be posted by Respondent Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customari- ly posted. Reasonable steps shall be taken by Re- spondent Union to ensure that the notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in paragraph (c) above, and as soon as they are forwarded by the Regional Di- rector, copies of Respondent Penn Yan Express' notices marked "Appendix A." (e) Furnish to the Regional Director signed copies of the attached notice marked "Appendix B" for posting by Respondent Penn Yan Express at its Sekonk, Massachusetts terminal, in places where notices to employees are customarily posted. Copies of the notice, on forms provided by the Re- gional Director, shall, after being signed by an au- thorized representative of Respondent Union, be 451 returned forthwith to the Regional Director for disposition by him. (f) Notify the Regional Director in writing within 20 days from date of this Order what steps Respondent Union has taken to comply. APPENDIX A 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 discourage membership in or ac- tivities on behalf of General Chauffeurs, Teamsters, Helpers, Warehousemen, Miscellaneous Industrial and Production Employees Union Local 526 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other union, by discharging employees or by otherwise discriminating against employees in any manner with respect to their hire or tenure of em- ployment or any term or condition of employment. WE WILL NOT discharge employees or otherwise discriminate against employees because they have filed charges or given testimony under the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Donald Henrique full reinstate- ment to the job he held before he was unlawfully discharged or, if that job no longer exists, to a sub- stantially equivalent position of employment with- out prejudice to his seniority or other rights and privileges. WE WILL, jointly and severally with Respondent Union, make Donald Henrique whole, with inter- est, for any loss of pay he may have suffered as a result of our discrimination against him. WE WILL expunge from our files any reference to the discharge of Donald Henrique and notify him in writing that this has been done and that evi- dence of his unlawful discharge will not be used as a basis for future personnel action against him. PENN YAN EXPRESS, INC 6 See fn 5, above 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To MEMBERS 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 cause or attempt to cause Penn Yan Express, or any other employer, to discharge or otherwise discriminate against employees on the basis of their internal union activities. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, jointly and severally with Respondent Penn Yan Express, make Donald Henrique whole, with interest, for any loss of pay he may have suf- fered as a result of our causing Penn Yan Express to discharge him. WE WILL notify Respondent Penn Yan Express, in writing, with a copy to Donald Henrique, that we have no objection to the reinstatement of Donald Henrique and we request Henrique' s rein- statement. plaints allege that, in violation of Section 8(b)(1)(A) and (2), Local 526 caused Penn Yan, in violation of Section 8(a)(3) and (1), to discharge Henrique because of his pro- tected intraunion activities. The complaint against Penn Yan was amended at the hearing to allege that the em- ployer further refused to reinstate Henrique for the addi- tional reason that he had filed the instant charges and/or had given testimony under the Act. Respondents filed answers to all complaints , and amendments thereto, in due course. The General Counsel and Respondents have filed briefs which have been carefully considered. On the entire record, and the briefs and arguments submitted, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Penn Yan is a corporation which has an office and place of business in Sekonk, Massachusetts, herein called the Sekonk terminal, where it has been, and is, engaged in the business of transportation of freight. In the course and conduct of said freight operations Penn Yan annual- ly derives gross revenues in excess of $50,000 from the transportation of freight between the Commonwealth of Massachusetts and other States of the United States. Therefore, Penn Yan is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED GENERAL CHAUFFEURS, TEAMSTERS, HELPERS, WAREHOUSEMEN, MISCEL- LANEOUS INDUSTRIAL AND PRODUC- TION EMPLOYEES UNION LOCAL 526 A/W INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMER- ICA DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This matter was heard before me on 2 and 3 May 1984, on charges filed by Donald Henrique, an individual, and complaints issued thereupon. The complaints allege that Respondent Penn Yan Express (Penn Yan) and General 'Chauffeurs, Teamsters, Helpers, Warehousemen, Miscel- laneous Industrial and Production Employees Union Local 526, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 526) had violated the National Labor Relations Act (the Act).' More particularly, the charges and com- ' The original charge against Penn Yan was filed in Case 1-CA-21658 by Henrique on 13 December 1984, the complaint based on that charge issued 25 January 1984 Henrique filed the original charge against Local 526 on 15 March 1984, the complaint on that charge issued 18 April 1984 An order consolidating the complaints was issued by the Regional Director on 19 April 1984 The complaint alleges, Local 526 admits, and I find that the Union is now, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts 1. Background From 1 January 1981 through 31 December 19832 Donald Henrique was president of Local 526. Harold Huff was secretary-treasurer of the Union for the 6 years ending 31 December 1983. The principal responsibility of the Local's president is to preside over monthly union meetings. The secretary-treasurer is the principal officer of the Local; he is in charge of negotiating contracts for the Local and oversees its day-to-day business. Local 526 held its biennial elections on 11 December; winners were to take office on 1 January 1984. Alfred Andrade op- posed Huff for the office of secretary-treasurer in that election. At one point during the campaign, Andrade so- licited the support of Henrique. When Henrique refused Andrade responded that he would get someone to run against Henrique for the office of president Alcino "Tex Barry" Costa opposed Henrique for the position of presi- dent during the election. Huff and Henrique supported each other during the election but they were defeated by Andrade and Costa, respectively. 2 All dates are in 1983 unless otherwise specified PENN YAN EXPRESS Penn Yan has operated truck terminals in the New York-New Jersey area for many years. In 1983 the Com- pany decided to establish five new terminals in New England They were all to open on 28 November The terminal at Sekonk was to be directly supervised by Manuel Coloura. Penn Yan recognizes various locals of the Teamsters Union in the New York-New Jersey area, and, on 7 and 17 November, James Carlton, Penn Yan's personnel director, met with Huff to discuss recognition of Local 526 at the Sekonk terminal . Accompanying Huff at both of these meetings was Henrique. As a result of the two November meetings, Penn Yan signed a con- tract with Local 526, and agreed that Henrique, who was then unemployed, would be the first employee hired if he passed the employer's prehire driving test and was otherwise satisfactory. As the first employee hired Henri- que would be the steward and would have seniority over all employees subsequently hired. Henrique passed his driver's test and began working as the senior employee on 28 November. Coloura subsequently hired two other employees with whom he had previously worked in Providence, Rhode Island. No other employees were hired by the employer at Sekonk until after Henrique was discharged on 12 December.' 2. Henrique's employment and discharge Henrique worked as a local delivery driver essentially4 without incident until the afternoon of 9 December, a Friday. On that date, Coloura told him that he had checked Henrique's employment application by tele- phone and found that Henrique had not included the fact that he had been involved in an accident on 24 March 1980. Henrique explained that he had forgotten about the incident because it was not an "accident " in the usual sense; a decayed tree limb had fallen on his truck after an ice storm . Coloura responded that what Henrique said about the incident was consistent with what he had learned by telephone . Coloura added that if Henrique had the police report at home he should bring it the fol- lowing Monday, and there should be no problem . Henri- que replied that he would be worried about the matter all weekend, according to Henrique's undenied testimony Coloura said, "Well, don't worry about it. The way Penn Yan wants you to be number one man and all, don't worry about it. Just bring in the accident report." As noted above, on Sunday, 11 December, both Henri- que and Huff lost their elections at the Local Union. On Monday, 12 December, Henrique punched in at 7:30 a.m. and handed Coloura the accident report. Co- loura read the report and, further according to undented testimony of Henrique stated: "There shouldn't be [any] problem with this . . . . It confirms everything that was said. . . . I will call the main office and explain it to them and there shouldn't be [any ] problem." Henrique asked Coloura to "get back to me" after that was con- firmed by the main office and Coloura replied that he 3 Penn Yan denies that Henrique was discharged , however, as dis- cussed herein, I find that to be the fact 4 On one occasion Henrique did get lost for 20 minutes , on another he failed to notice that a shipper failed to give him a correct bill of lading These were the only alleged derelictions in Henrique 's performance as a truckdriver and they will be discussed infra 453 would. Henrique then told Coloura that he had lost the election the day before. Coloura asked how Huff had made out and Henrique replied that he had lost also. After the above exchange, Henrique started on his run for the day. At his second stop the receiver refused the shipment. Henrtque telephoned Coloura to report the matter, and Coloura told him to return to the terminal At some point during that morning, between the time Henrique left on his run and the point at which he re- turned with the refused shipment, Coloura had ^a tele- phone conversation with Carlton who was then in New York City. According to Carlton, Coloura related the matter of the forgotten fallen tree limb and added that he did not believe that Henrique had intentionally tried to hide the accident. Carlton further testified: I tended to agree with him because it was some- thing of a minor nature, there was apparently no vehicle damage to any extent and, quite honestly, it was easy to understand how something like that could be overlooked in the context of vehicle acci- dent . . . . [I]f it had developed that the accident that he had had with the trailer had been a situation where he had been at fault, if he had been a charge- able accident, something of that nature, then we would have terminated (him) right then and there at that point But, due to the fact that it just wasn't substantiated by the evidence pertaining to the acci- dent, we just allowed him to continue his employ- ment. When Henrique returned to the terminal and unloaded the refused shipment , he asked Coloura if he had called the "home terminal ." Coloura stated that he had and that "they" told him the accident was not serious at all and it did not matter to "them," and "they" left the decision up him (Coloura) about retaining Henrique as an employee. Henrique asked Coloura what his decision was and, ac- cording to further undenied testimony of Henrtque: He says, well, after talking to Buddy and Billy [the other two employees who had been hired] they don't mind working with you He says, I think, I'm going to keep you. I said , "Really, Mannte?" He said, yes, there only one thing, Don. He said, you going to have to go for your physical today. I'll call and make an appointment. . . . If you don't pass your physical, there's nothing I can do about it. If you pass it, then everything 's all set I was really happy and thrilled. I shook his hand. I said, boy, you're really making my Christmas for me, and all. I said , you really won't be sorry, Mannie. He said, no, I don't think I will be sorry. He said , I think I'm making the right decision. . . . He said he would call and make [the appointment for the phys- ical] for some time in the afternoon and call me in so I could go for it. Henrique then left the terminal for his second rain of the day. Coloura at some time during the morning attempted to call a local physician's office to obtain an appointment 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Henrique's physical. He testified that he got a record- ing which stated that the doctor's office would not be open until 12:30. About 12:30 he called again and was told by the receptionist that there could be no appoint- ment; however, the office would attempt to see Henrique on a "work in"5 basis. The exact time is impossible to state, but around noon that day Andrade came to the terminal accompanied by James Roberts and Donald Cormier. Roberts was an ex- ecutive board member of Local 526; Cormier held no office with the Union According to Coloura, Andrade introduced himself as the newly elected secretary-treasurer, and asked that Penn Yan put more "526 workers" to work. First Co- lours testified that he told Andrade that he was working two employees who were members of Local 526, Don Henrique and Bill Robertson; then Coloura testified that he told Andrade he had "one 526 man right now, Don Henrique." Whether he told Andrade he had one or two employees who were then members of Local 526, An- drade, according to Coloura, replied that he knew Henri- que from their having worked together previously at Pilot Motor Freight Company.6 Further according to Coloura: And I said, I'm working Henrique right now at this place. As a matter of fact, I have a problem this morning which we had to resolve. He had an acci- dent [that] wasn't reported on his application. Further, according to Coloura, Andrade then replied that when he had worked with Henrique at Pilot Freight, some goods had disappeared from the platform Coloura further testified that Andrade said that "he pre- ferred to see him working over there, rather than at Penn Yan, but that was up to me." Andrade, Cormier, and Roberts denied many points of Coloura's testimony; however, in view of the allegations of the complaint against Penn Yan, Coloura would not have testified if it were not true. Additionally, I found Coloura more believable in his account of the exchange between him and Andrade, and I credit the above testi- mony. Shortly after Andrade left, Coloura called Carlton. According to Coloura he called Carlton to report that he was not able to get a physical for Henrique and asked if he could work Henrique beyond "the 96 hours." To ex- plain this phrase a bit of digression is required. The con- tract signed on 17 November at article 43, section l(b)(1) provides in pertinent part: All new employees shall be hired on a thirty (30) calendar days' trial basis and shall work under the provisions of this Agreement, within which time they may be dismissed without protest by the Union. However, the Employer may not discharge 5 The transcnpt at various points states "working" and is accordingly corrected 6 At some time during the preceding 3 years Pilot Freight was suc- ceeded by Shuster Freight Company and the concern was referred to as "Shuster-Pilot," "Pilot-Shuster," or "Shuster" or "Pilot" at various points by the witnesses or discipline for the purpose of evading this Agree- ment or discriminating against Union members. After thirty (30) days' trial period they shall be placed on the seniority list as regular employees in accordance with their date of hire, provided, how- ever, that an employee must work a minimum of ninety-six (96) hours during his thirty days' trial period. However, any employee who completes the ninety-six (96) hours but less than thirty (30) calen- dar days who is then laid off by the Employer then rehired within the next ninety (90) calendar days shall be considered as having made the seniority list as a regular employee in accordance with his origi- nal date of hire. While the contract plainly states that only employees who have worked 96 hours and are still employed at the end of 30 days will be made "regular" employees (and protected by the grievance procedure), Carlton testified that "my personal policy" was that employees must have their physical and a decision of whether or not to retain them must be made before the employee reaches 96 hours. I do not believe any such "personal policy" exist- ed before Andrade visited Coloura , as I will explain later, but now I shall return to the sequence of events. Coloura gave his reason for his call to Carlton, in re- sponse to the following question: Q. When did you decide to discharge Henrique? A. Well, I wasn't sure, getting a physical on him that day. I had to call him with that, plus a few other items, to tell Jim Carlton. And, when I spoke with him, I happened to mention that I've got this individual, Henrique, who I'm not certain I'm going to be able to get a physical on today. Can I work him past the ninety-six hours? And, at this time, [Carlton] said, if you work him past the ninety-six hours, then he's on your list. And, I said I thought I could work him up to thirty days as well. That's part of the contract. And, he said, well, I don't want to go by that route. You could wind up in trouble that way. I want you to make your decision within ninety-six hours. And, if you're not comfortable with him before ninety-six hours, then you'd better let his hours cool off. And, at that time I told [Carlton] well, I'm just not confi- dent in him. I'm going to have to let his hours cool down. In his pretrial affidavit, Coloura did not mention the "cool down" or "cool off" phrase which is at the core of Penn Yan's defense, and Coloura could not explain why he had made no such mention. Huff, who had been the secretary-treasurer for the preceding 6 years, credibly testified that he had never heard the phrase "cool down" or "cool off" before I do not believe the term "cool down" was used in this Coloura-Carlton telephone call; however, I shall continue with the narrative. Coloura and Carlton testified that 96-hour problem was discussed first, then Coloura told Carlton that An- drade had been by to see him. On cross- examination Co- loura was asked and testified: PENN YAN EXPRESS Q. In the telephone conversation on the 12th with Mr. Carlton, the afternoon conversation, did you tell Mr. Carlton that Andrade and Mr. Henri- que didn't get along? A. Yes, I believe I did. Q. How did it come out in conversation with Mr. Carlton? A. Well, we were talking about Mr. Henrique and I had mentioned that Mr. Andrade had been in there that day and first we discussed the Henrique issue and then I mentioned that Andrade had been in there that day and I said, "And by the way, he doesn't seem to get along with Mr. Henrique." It was just a . . . . Q. How do you know that? A, Well, from what he had mentioned. I couldn't understand why he would mention-you know, if he was a friend of his. JUDGE EVANS: Why he would mention what? THE WITNESS: You know, that he would rather see him working over at Shuster than over here. At some point after Andrade left the terminal and after Coloura and Carlton conferred by telephone, Henrique returned to the terminal. Coloura was asked on direct ex- amination and testified. Q. Following that conversation [with Carlton] that did you do? A, Well, I was a little upset that I had to make a decision at that date. When Donald came in from his run I told him that I just had to let him go, I couldn't work him any more. That his hours were too close and I didn't have a good enough look at him. I needed a better look at him. And I was upset. I know that morning I told him we'd continue to work him but I thought that we had 30 days on him. So, I felt sorry but I had to make the decision for what I thought was the good of the company at that time. Q, And was he in turn upset? A. Yes, he was. Q. And what words did he use? To the best of your recall. A. Well, he asked me "why is this happening to me?" And I said, "I just need a better look at you.,, He said, "Is it because I lost the election?" And I said, "No, it has nothing to do with that." He asked if anyone's been in to see me. Yes, Mr. Andrade has been in to see me. And he said, "I knew it, I'm losing my job because of Mr. Andrade." And I said, "No, that's not the case. I just need a better look at you. I need a better look." But he was very upset. While Coloura testified that he told Henrique only that he was "going to let him go" in order to get a "better look" at him,7 Henrique's account of the stated basis for 7 Colours was first called as an adverse witness pursuant to Sec 611(c) of the Federal Rules of Evidence and testified that when Henrique re- turned he told him that he had to let him go so hours could "cool down " It should be noted that when called as a witness for Penn Yan, 455 the discharge contained a significant additional element; the desire to avoid "union problems." According to Henrique: So, I said, Manure, I says, is there something wrong? He looked at me, he said, yes, Don, there is. I says, what is it? He says, I'm going to have to let you go. I said, "what?" He said, I've got to take a better look at you, Don, he said, I'm going to have to let you go. I said , Mannie, I said, my job was secure this morning. You tell me my job is secure. Now, you're going to have to let me go? I said, Mannie, was Freddy Andrade here today? He put his head down, and he looked up at me with a sad face, and said, yes, Don, he was. And, I said, and that's the reason you're going to get rid of me? . . . He turned around and he says, I have to work with Freddy Andrade for the next three years, like I would have to work with Donald (sic) Huff. He said, I can't afford union problems. I said, Mannie, I said, don't be afraid of Freddy. I said, I know enough about the union that he can't do nothing to you Mannie turned around and said that's the problem. If I knew enough about the union, maybe things would be different. I said, "Mannie, this is discrimination, please don't do this to me. Reconsider this, Mannie. No, I mean, this is my job, my livelihood. I did nothing wrong." He said, I know, Don, but I'm sorry. So, he automatically walked away and went into his office. Coloura did not specifically deny the testimony of Henrique that he had stated that he had to work with Andrade for the next 3 years and that he could not afford "union problems." Henrique was a most impres- sive witness and I credit this testimony completely over Coloura's version. Henrique asked Coloura for permission to use the tele- phone. Henrique called Huff at the union hall. Henrique explained what had happened and Huff asked to talk to Coloura. According to Huff: Mr. Coloura knew that I had just finished talking to Don Henrique on the telephone Mr. Henrique had just handed the phone to Mr. Coloura, and I asked Mr. Coloura what's going on. Mr. Coloura said that he has to let Don Henrique go and I said, what reason are you letting him go. He said, I just have to terminate him at this time. He said, I can't keep him on. And, I said . . . Don Henrique said that Mr. An- drade was there to see you. And, Mr. Coloura said to me that he has not been a terminal manager there for a very long period of time. He didn't want to have any problems or any union troubles. And, at this point he had to let Don Henrique go. Coloura related the exchange with Henrique without use of that phrase (which, as I have noted , was also left out of his affidavit) 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coloura did not deny any of this testimony of Huff which I credit Although there exists this undenied testimony that Henrique was discharged to avoid troubles with the Union during the period of Andrade's incumbency, Penn Yan insists that its action was based on a preexisting, in- flexible policy. Carlton testified that he explained this policy to Coloura in their second telephone call of 12 December thusly- Q. And what did you advise Mannie? A. I advised Mannie that it would be necessary to make a decision whether or not he wanted to allow Mr Henrique to make the seniority list or not prior to the end of the 96 hours. I was concerned that he be aware of that because apparently Mannie was under the impression that he could go the full 30 days Q And was that not the case) A. Contractually Article 43 provides that the em- ployee would gain seniority on completion of 30 days provided he worked the 96 hours However, even if we were to discontinue using Mr. Henrique on the 29th day, if we were to use him at any time the following 90 days, he would automatically gain seniority. I have not had good success with that language in my past experience in New England and I have seen occasions where a man will have his 96 hours, be discontinued before the end of the 30 days and through a lack of communication with a dispatcher or whoever, the individual is called back in by that dispatcher or by someone who doesn't know all the facts, within the 90-day period and the company had been forced to accept someone on their seniori- ty list that they dust were not prepared to accept. So, I guess to answer your question, that was my own personal policy on the thing and the compa- ny's policy in New England I felt constrained to interrogate Carlton about this "policy." As the record reflects: JUDGE EVANS: I have a question You said that Mr. Coloura expressed some reservations in view of Mr Henrique's prior experience regarding the acci- dent report and the pick up and all. After he said that, what did you say? THE WITNESS: I more or less pushed Mannie to the point of making the decision, whether he wanted to accept him as a seniority employee or discontinue using him for a period of time in order to cool his hours down so he could have another opportunity and get a better look before making his decision. JUDGE EVANS- Did you tell him to discharge him? THE WITNESS- No. JUDGE EVANS: Did he say he was going to dis- charge him9 THE WITNESS: The word was never used. JUDGE EVANS. Do you know why he was dis- charged? THE WITNESS He wasn't discharged JUDGE EVANS- All right, what happened? THE WITNESS- He was told by Mannie on the 12th that we only wanted to cool him off. He was told he did not have sufficient experience, we wanted to take a better look at him and that he would be used in the future. He was told that. JUDGE EVANS- Do you know why he wasn't used in the future? THE WITNESS: Well, because of the proceeding we're involved in right now it was thought best not to. I mean, he immediately went to the Board. Per- haps we were wrong but that's the impression he was giving. JUDGE EVANS' So that's the reason? THE WITNESS' Sure. Upon hearing this testimony counsel for the General Counsel moved to amend the complaint to include an al- legation under Section 8(a)(4) of the Act that Penn Yan continued to discriminate against Henrique for the addi- tional reason that he filed charges or gave testimony under the Act The amendment, over objection, was al- lowed and then Penn Yan filed a denial of the additional allegation. After Carlton gave his testimony Colours was recalled by Penn Yan and testified that the reason Henri- que was not recalled after his hours "cooled down" was that in the meantime work had decreased and Coloura had found better employees to perform what work there was I discredit this testimony of Coloura and find that the real reason for not calling Henrique back for any work after 12 December was as indicated by Carlton. B. Analysis 1. Employer violations The undenied testimony of Henrique and Huff clearly establishes a prima facie case that Penn Yan discriminat- ed against Henrique in the discharge of 12 December 1983 Coloura told each of them that Henrique was being "let go" because he had to "work with" Andrade for the next 3 years and did not want "union problems" or "union trouble " The admission demonstrates that Co- loura feared trouble once Andrade took office if Henri- que were still employed. Coloura acknowledged that it was apparent that Andrade did not like Henrique. Since Andrade was visiting the terminal the day after the elec- tion to announce his victory over Huff, Coloura would necessarily have concluded that Andrade's expression of dislike for Henrique was sourced in positions taken in that election. Therefore, discharge of Henrique to avoid potential trouble would necessarily be a discharge be- cause Henrique engaged in the protected union activity of not supporting Andrade against Huff. The activity of Henrique in supporting Huff was union activity in its purest form. Therefore, a discharge for such activity would necessarily violate Section 8(a)(3). Accordingly, I conclude that the General Counsel has made out a prima facie case of the discrimination. Respondent contends that it took its action because, according to Carlton's "personal" policy, a decision had to be made about Henrique on 12 December and as of PENN YAN EXPRESS that date Coloura could not decide whether he wanted to keep Henrique According to Coloura the only reservations he had about Henrique were spawned in two alleged misdeeds. The first was that once Henrique got lost and was 20 minutes late for a pickup; the second fault was that a shipper gave Henrique the wrong bill of lading and Hen- rique failed to notice it. The first incident is a common experience to truckdrivers at some point in their careers; additionally, being lost for 20 minutes was not a real ob- jection to Henrique's ability to be a truckdriver because nothing was said to Henrique at the time by Coloura other than that the employee should get a map of the specific area in which he had gotten lost. In the second incident, the shipper personally called Coloura and apologized for the mistake made by its dispatcher and no loss of business accrued to Penn Yan because of Henri- que's failure to notice the shipper's mistake. But addressing these petty criticisms of Henrique as- sumes that under Carlton's personal policy some decision had to be made on 12 December. If an employer has an established policy which an employee violates or at least fails to satisfy, there is no violation of the Act for a dis- charge based solely on that reason However, the issues in this case are whether Penn Yan had any such policy and whether that policy legitimately would have com- pelled the discharge of Henrique. The policy, as Carlton explained it, was a self-imposed probationary period of 96 hours. It is unlikely, although theoretically possible, that an employer could adopt such a policy. Assuming such policy existed, Coloura told Henrique early in the morning of 12 December that he would be made a permanent employee if he passed the physical examination. Then Andrade visited; then Co- loura talked to Carlton; then Henrique was told he would not be made a permanent employee; in fact, he was immediately "let go," or discharged. Henrique's per- formance as a probationary employee, or Penn Yan's evaluation of that performance, could not have deterio- rated so quickly because of anything Henrique had done that day.8 Therefore, assuming the 96-hour probationary period existed, Henrique passed it. However, I do not believe a policy of such an abbrevi- ated probationary period existed The contract clearly gave Respondent 30 days to evaluate Henrique, or any other probationary employee, before deciding whether he would be retained as a "regular" employee. There is no suggestion by Penn Yan that it could not, after the 96th hour of employment and before the 30th day of em- ployment, terminate any probationary employee it found to be unsatisfactory. Penn Yan had a contractual 19 days left to decide about Henrique and it suggests no cogent reason for the precipitous discharge on the 11th day of Henrique's employment.' 8 Indeed , Penn Yan does not contend that Henrique made any errors such as getting lost for 20 minutes or accepting an incorrect bill of lading on the day he was "let go" in order to "get a better look" at him 9 Relying on the last sentence of the above-quoted portion of sec 43 of the contract , Carlton did suggest that if any unsatisfactory employee was laid off within the first 30 days of his probationary period and then called back within 90 days, Respondent may be contractually compelled to retain him thereafter as a regular employee The case of accidental recall 457 In summary, I find that the policy upon which the dis- charge was purportedly premised did not exist, if it did exist, it did not apply to Henrique, who was informed that he would become a permanent employee before the visit by Andrade to the terminal on 12 December Fur- thermore, I find to be a complete sham Coloura's state- ment that Henrique was "let go" to get a "better" look at him Equally a sham is the "cooling off' theory which Coloura left out of his pretrial affidavit and his direct ex- amination. The defense that Henrique was "let go" to "cool off" his hours was obviously concocted after Co- loura's affidavit was taken. If there was any truth to the claim, it would have been mentioned in the affidavit and would have been remembered on direct examination I find and conclude that the sole cause for the dis- charge was the desire by Carlton and Coloura to avoid future "union problems" or "trouble" with the Union by ending the employment of employee Henrique who had failed to support Andrade in the union election of 11 De- cember. When Henrique left the terminal the morning of 12 December, he was assured by Coloura there was nothing standing in the way of his continued employ- ment except a routine physical. Then Andrade visited to announce his victory. In response to the victory an- nouncement Coloura replied that Henrique was working that day and he (Coloura) had a problem which had to be resolved. This was a reference to the forgotten fallen tree limb "accident" which he and Carlton had pardoned before Andrade's arrival. It is clear that by this resurrec- tion of a resolved problem Coloura was inviting some sort of cnticism of Henrique, the election-loser. But whether Andrade responded by making only a passing reference to his dislike for Henrique, or he made a table- pounding demand that Henrique be discharged, it is clear that Coloura and Carlton discharged Henrique, and thereafter refused to reinstate him, in order to curry An- drade's favor, or avoid his wrath, once Andrade had taken office on 1 January 1984.10 This action was a patent violation of Section 8(a)(3) and (1) of the Act, as I find and conclude. Furthermore, I find and conclude, upon the admission of Carlton (and the fact that Henrique had been found as late as the morning of 12 December to be a satisfactory employee) that Penn Yan refused to reinstate Henrique for the additional reason that he filed the instant charges. This action was a violation of Section 8(a)(4) and (1) of the Act, as well 2. Union responsibility The complaint alleges that the Union, by the conduct of Andrade, caused the discharge of Henrique. While it of an unsatisfactory employee (in this three-employee-one-supervisor shop) is impossible to envision Furthermore , Carlton's hypothetical pre- supposes that the hiatus which began before the 30th day of the hypo- thetical employee's tenure was caused by a layoff and the employee had worked almost 30 days when the layoff came In this case Henrique was 19 days short of working 30 days, and he was not laid off, he was dis- charged 10 The degree of Penn Yan's desire to avoid "union problems" is fur- ther reflected by its signing of a collective-bargaining agreement with Local 526 before its first employee was hired at Sekonk (Apparently no charge under Sec 8(a)(2) was filed over that matter ) 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is true that by his visit Andrade made it clear that he dis- liked Henrique, and wanted him to be elsewhere, there is no evidence of union responsibility for Henrique's dis- charge Coloura knew that Andrade would not be taking office until 1 January 1984 While Penn Yan may have feared that,Andrade would abuse his powers of union office once he was installed, there is no evidence that the Union at that time" i sponsored or thereafter condoned anything that happened during Andrade's visit of 12 De- cember. The General Counsel cites several cases in which agency of former elected or appointed union rep- resentatives is found because of prior conduct by the al- leged agent or subsequent condonation by the union in- volved. Here Andrade had never before been a union representative who had dealt with Penn Yan, and there is nothing to reflect that the Union, subsequent to 1 Jan- uary 1984, did anything to ratify or condone what hap- pened on 12 December 1983. Accordingly, I find that the General Counsel has failed to prove that Andrade acted as an agent of the Union. In his brief the General Counsel urges alternatively that union responsibility can be found in the fact that Roberts, who accompanied Andrade on 12 December, was then an executive board member of the Union. The General Counsel contends that Robert's failure to repudi- ate Andrade's actions constituted a condonation by the Union of Andrade's conduct. As the cases in the General Counsel's brief indicate, there is no authority for the proposition that an executive board position, per se, es- tablishes agency. The issue depends on the facts of each case. There is insufficient factual basis for any such find- ings herein; the issue was not litigated because Roberts was not alleged in the complaint to have been an agent of Local 526, and the parties had no reason to believe his status was in issue . Therefore, I must reject this conten- tion of the General Counsel. Accordingly, I shall recommend that the allegations of the complaint, as they relate to Respondent Union, be dismissed. CONCLUSIONS OF LAW 1. Penn Yan Express is an employer within the mean- ing of Section 2(2) of the Act and is engaged in com- merce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2 General Chauffeurs, Teamsters, Helpers, Ware- housemen, Miscellaneous Industrial and Production Em- ployees Union Local 526, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of i i In fact the chief executive of Local 526, as of 12 December, was Huff who was doing everything he could to keep Henrique employed America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By its conduct in discharging, and thereafter refus- ing to reinstate, employee Donald Henrique because of his activities on behalf of General Chauffeurs, Teamsters, Helpers, Warehousemen, Miscellaneous Industrial and Production Employees Union Local 526, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Respondent Penn Yan Express has discriminated against an employee in violation of Section 8(a)(3) and (1) of the Act. 4. By refusing to reinstate employee Donald Henrique for the additional reason that he filed charges or gave testimony under the Act, Respondent Penn Yan Express further has violated Section 8(a)(4) and (1) of the Act 5. Respondent General Chauffeurs, Teamsters, Help- ers, Warehousemen, Miscellaneous Industrial and Pro- duction Employees Union Local 526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has not violated the Act as al- leged in the complaint. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Penn Yan Express, set forth above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent Penn Yan Express has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act, I shall recom- mend that it be ordered to cease and desist from engag- ing in such unfair labor practices. I shall further recom- mend that Respondent Penn Yan Express be ordered to offer reinstatement to Donald Henrique and pay to him backpay, with interest. 12 Backpay is to be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Co, 90 NLRB 289 (1950), with inter- est thereupon as established by the Board in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.] 12 The Board should reject any contention made at the compliance phase of this case that Henrique would not have been reinstated, or that his backpay should be reduced, because there was not enough work for a third employee Absent the unlawful discrimination against him, Henri- que, as the senior employee, would have worked if there had been any work for any employee