Port East Transfer, Inc.

890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Port East Transfer, Inc. and Richard C. Shelley. Case 5-CA-17286 28 February 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 19 November 1985 Administrative Law Judge Mary Ellen R. Benard issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings," and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Port East Transfer, Inc., Rosedale, Maryland, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. Delete paragraph 2(e) and substitute the follow- ing. "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." " The Respondent has excepted to some of the judge's credibility fmd- 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 Cir. 1951) We have carefully examined the record and find no basis for reversing the findings 2 The judge has included in her recommended Order a visitatonal clause subject to the supervision of the United States court of appeals en- forcing this Order Under the circumstances of this case, we find it un- necessary to include such a clause Mark Carissimi, Esq., for the General Counsel. Warren M. Davison, Esq. (Littler, Mendelson, Fastiff & Tichy), of Baltimore, Maryland, for the Respondent. DECISION STATEMENT OF THE CASE MARY ELLEN R. BENARD, Administrative Law Judge. The original charge in Case 5-CA-17286 was filed on 24 May 1985 by Richard C. Shelley, an individual, against Port East Transfer, Inc., herein called the Respondent. On 3 July 1985 the complaint issued alleging, in sub- 278 NLRB No. 125 stance, that the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging Shelley because of his union activities." Subsequently, the complaint was amended to allege additionally that the Respondent violated Section 8(a)(1) of the Act by in- forming an employee that he was discharged because of his union activities. The Respondent has denied the com- mission of any unfair labor practices. A hearing was held before me on 22 August 1985 in Baltimore, Maryland. Following the hearing the General Counsel and the Respondent filed briefs, which have been considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Maryland corporation with an office and place of business in Rosedale, Maryland, near Baltimore, where it is engaged in the interstate transpor- tation of freight. During the 12-month period preceding issuance of the complaint, a representative period, the Respondent, in the course and conduct of its business op- erations, derived gross revenues in excess of $50,000. The answer admits and I find that the Respondent is an employer engaged in commerce within the meaning of the Act, and I further find that it will effectuate the pur- poses of the Act to assert jurisdiction herein. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is a trucking firm engaged in the busi- ness of hauling containerized cargo and was founded by Edwin Hale Sr., who is the president and principal stockholder. The other management officials whose status is undisputed are Executive Vice President Francis Smith, Terminal Manager Ronald Gartrell, and Dis- patchers Kenneth Lee (who is also operations manager), Patrick Saddler, and Steven Eichelberger. At relevant times Edwin Hale Sr.'s son, Edwin Hale Jr., also worked for the Respondent and had the title "dispatcher train- ee"; as discussed below, the parties disagree as to wheth- er he is an agent of the Respondent within the meaning of Section 2(13) of the Act. The Respondent employs 30 to 40 drivers; these em- ployees have never been represented by any labor orga- nization. The only attempt to organize the Respondent's drivers was in 1981 when a local of the International Brotherhood of Teamsters filed a petition for a Board- conducted election; the tally of ballots was 24 to 0 against union representation and the results of the elec- tion were subsequently certified. It is undisputed that Hale Sr. is strongly opposed to any union representation of the Respondent's employees. i Initially, this proceeding was consolidated with Case 5-CA-17272 However, the parties executed a settlement in the latter case prior to the hearing and therefore it is not before me PORT EAST TRANSFER 891 B. The Drug Testing Program 1. The rumored bragging about drug use Richard Shelley was hired by the Respondent in Octo- ber 1984 as an over-the-road tractor-trailer driver. Hale Sr. testified that in the spring of 19852 he heard rumors that some of the younger drivers were using drugs. Ac- cording to Hale Sr., the only driver identified by name as being involved in a specific incident was Shelley, who had allegedly "staggered around" outside his truck while at a customer's terminal in Pennsauken, New Jersey, and had then bragged over his citizens band radio about how "stoned" he was. Hale Sr. also testified that he believed he heard about the incident on a Friday, the day after it allegedly oc- curred,3 but that he did not ask Shelly if the rumors were true. With respect to whether he had in fact en- gaged in the conduct attributed to him, Shelley testified that he has joked about drug use over his radio but that he did not remember a specific incident such as that de- scribed by Hale Sr. Shelley further testified that the driv- ers use the radios to pass the time and joke about all sorts of matters over the air, and that "nothing was sacred."4 2. The drug testing Hale Sr. testified that after hearing the rumors about Shelley's behavior in New Jersey he checked whether he could legally require the drivers to submit to tests for drug use and it is undisputed that the following Friday, 26 April, certain of the drivers, including Shelley, were told to go to a clinic for tests . Shelley testified that when he came in off the road about 5 p.m. Gartrell told him that he was to have a urinalysis for drugs and alcohol and that he protested, saying that he did not think the test should be required, and asked Gartrell why he had to take it. According to Shelley, Gartrell did not answer his question, but told him that Hale Sr. had said that if Shelley refused to submit to the test he was to be fired immediately. Shelley eventually agreed to take the test and did so that evening, along with four other drivers. There is no evidence why the other four were selected to take the test at that time. It is undisputed that Shelley's drug test was negative and that the test results of two of the other drivers indi- cated that they had used marijuana . Those two drivers were given the choice of resigning their employment or being terminated; one quit and the other was fired. Shelley testified that the Tuesday after he took the drug test Smith called him over and told him that his test had come back negative and that he was surprised at that result. Shelley told Smith that he thought that the test violated his constitutional rights and that he did not think he would submit to it again if told to take a retest, and Smith responded that the Respondent had checked a All dates hereinafter are 1985 unless otherwise indicated. 8 It appears from a composite of the testimony of Hale Sr . and Shelley that Hale learned of the matter on 19 April. * Hale Sr.'s and Shelley's accounts are not inconsistent on the bragging incident, and they both appeared to be credible when testifying about this matter. with its attorney and had been told that the testing re- quirement was legal. Shelley also testified that a week after he was tested, apparently 3 May, Smith called him into Hale Sr.'s office, where Hale Sr. told him that he had been re- quired to take the test because he had been heard brag- ging over his radio about how intoxicated he was while driving. Shelley denied being intoxicated and Hale Sr. told him that the test results were negative and that that would "be it for now." In any event, Shelley was never directed to take another test. That same afternoon Hale Sr. held a meeting of all the drivers who were at the terminal and told them that they would all be required to submit to testing for drug use because he did not want anyone driving the Respond- ent's trucks under the influence of drugs or alcohol. Hale Sr. also advised the drivers that he had fired two men that day because their tests disclosed that they used mari- juana. According to Hale Sr., he did not recall that anyone objected to taking the test. However, Shelley tes- tified that driver John Shamanski said that he thought the testing violated his rights and that the reason there were rumors about drug use was that more senior drivers were upset because the newer drivers worked harder and made them look bad. Neither Shamanski nor any other driver except Shelley testified . Nonetheless, I credit Shelley on this point, for he appeared more straightfor- ward and candid when testifying on this issue than did Hale Sr., and I therefore find that Shamanski raised the points that Shelley described. Shelley credibly testified that he was angry about the drug testing because he considered the tests an intrusion on the personal lives of the drivers and that what they did on their own time was none of the Respondent's business. Shelley further credibly testified that he felt that if the drivers were represented by a union their rights would be protected, and that he discussed with other drivers his views of both the drug tests , which he called a "witch hunt," and union representation. C. The Graffiti in the Men's Room The restroom used by the male drivers contains two urinals and a toilet stall . Shelley testified that ever since he had started working for the Respondent the walls of the stall had been covered with graffiti, much of it "vulgar" and "obscene," and including such items as a cartoon depicting Smith and a driver performing what Shelley described as "perverted sex acts." Shelley further testified that sometime during the week beginning 6 May he went into the restroom and saw a recent addition to the graffiti which said, "Port East Transfer, good equip- ment, good benefits, low pay and no down time. Vote for a union here." Near this injunction two columns were drawn, one for the drivers to mark a "yes" and the other for a "no" vote. According to Shelley, he used a ballpoint pen to write on the opposite wall the following: "Damn right, we need a union. It would stop things like Ed Hale's drug testing," and under the last two words, "witch hunt." According to Shelley, he also wrote something similar to Shamanski's comment about the rumors of drug use 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being attributable to the more senior drivers, but he did not include any threatening comments. Shelley also testi- fied that his writing covered an area about 2 feet wide and 1 or 2 feet high, and was one of the largest items of graffiti, but was no larger than the aforementioned car- toon of Smith. It is undisputed that Hale Sr . did not normally use this restroom and that on 14 May Smith told him about the graffiti on the walls and Hale Sr. went to look for him- self. According to Hale Sr., he saw "a large paragraph" on the wall containing a "very elaborate account" with various expletives about the drug tests and the Respond- ent's "snitches," which the writer was going to "get"; the paragraph closed with the comment , "Ed Hale's witch hunt drug tests." Hale Sr. conceded that there was other graffiti in the men's room, but emphasized that the references to the drug tests and the "witch hunt" were what angered him most. According to Hale Sr., as soon as he saw the para- graph he ordered someone to bring samples of the driv- ers' handwriting to compare to the graffiti to determine the authors. That comparison showed that Shelley had written the paragraph about the drug tests but, according to Smith and Hale Sr., management was unable to ascer- tain who had written the other graffiti . I do not credit either witness on this point, for they did not seem to tes- tify candidly about this entire incident, and, although Smith testified that it was difficult to identify who had drawn pictures, he did not explain his failure to deter- mine the authors of the written items. Hale Sr. initially testified that he also saw some writ- ing about unions but in a different handwriting from Shelley's, that he thought he saw something similar to "Damn right, we need a union," but was not sure, and that he was not sure whether the comment "good trucks, good benefits, but we need the union here" was in Shel- ley's handwriting or not, but that he thought it was de- tached from the comments about the "snitches" and the "witch hunt." Later in the hearing, Hale Sr. testified that when he first saw the graffiti in the men's room there was a reference to a union in Shelley 's handwriting. Nonetheless, Hale Sr. denied that he tied the graffiti ref- erences to a union to Shelley, testifying, "We have that kind of thing that's been written on the walls . . . on oc- casion . . . to a very small degree . . . in the past. I hear about that kind of thing . There is no way I can do any- thing about that." Similarly, Smith testified that graffiti is found "occasionally," but that he was surprised on 14 May to see how much graffiti there was. However , earli- er in the hearing when Hale Sr. was asked by the Gener- al Counsel whether graffiti was common in a truck ter- minal, he responded, "Not in my truck terminal it's not." Smith also testified about the content of the graffiti, and stated that the paragraph about the drug testing took up most of one wall, and that another item, the reference to having good equipment and so on but needing a union, was on the same wall but appeared to be in a dif- ferent handwriting. Smith further testified that as far as he could tell there was nothing about a union in Shel- ley's handwriting. I credit Shelley as to the content of the graffiti he wrote, for he seemed to testify candidly and to the best of his recollection on that point. In addition, neither Smith nor Hale Sr. impressed me as a straightforward witness, and, as noted, Hale Sr. contradicted himself about whether some of the comments about a union were in Shelley's handwriting and about how common graffiti was at the Respondent's facility. I further dis- credit the testimony of Smith and Hale Sr . that they did not notice any comments about a union in Shelley's handwriting, and conclude that when they ascertained that Shelley had written the comments about the drug testing, they also realized that he had written the state- ment about a union that appeared on the same wall. D. The Discharge of Shelley Hale Sr. testified that he was very angry when he saw the paragraph he described, and was especially so be- cause the driver who had written the graffiti was the one who had prompted the drug tests in the first place. I do not credit this testimony . As noted earlier, I was not fa- vorably impressed with Hale Sr .'s demeanor. In addition, as also noted, although Hale Sr. testified that the New Jersey incident caused him to require the drivers to take drug tests, he did not mention the incident to Shelley until a week and a half after he learned of it, which belies the contention that he considered it a very serious matter. Further, four other drivers were tested at the same time as Shelley . If Shelley's behavior was the only reason the Respondent undertook the testing, there would have been no reason to insist on the other drivers undergoing the test as well. When Shelley arrived at the Respondent's terminal later on 14 May, Hale Sr. accused him of writing the graffiti and Shelley denied doing so. According to Shel- ley, Hale Sr. then said that he was reasonably sure that Shelley was responsible for the graffiti and that "normal- ly around here we give people three strikes and they're out, but you're out the door now . Go clean your truck out." Shelley said that he could not believe that Hale Sr. was firing him, and Hale Sr. replied , "Believe it. Go clean your truck out." Shelley then cleaned out his truck and went home. Hale Sr. gave a different version of this interview, tes- tifying that after Shelley denied writing the paragraph he told him, "Most people are given three strikes around here. But you aren't. You're going to get two . You're out. You're finished." According to Hale Sr., the "two strikes" to which he referred were Shelley's bragging about drug use and the graffiti about the "witch hunt," although he conceded that at the time he fired Shelley he knew that some of Shelley's writing referred to a union. As with other conflicts of testimony between Shelley and Hale Sr., and for the reasons given above, I credit Shelley. I therefore find that his discharge interview oc- curred as he described it. E. The Comments by Edwin Hale Jr. 1. Hale Jr.'s status Assignments to the Respondent's over-the-road drivers are generally based on seniority : the most senior driver is PORT EAST TRANSFER 893 allowed to choose which of the next day's loads he pre- fers to haul. If a driver calls into the terminal and does not wish to take any of the loads available to him he may either wait and see what comes in the following day or not work the next day, unless there is a "hot load" which must be handled. In that event, a driver must take the assignment he is given. Hale Sr. testified that he considered his son the "heir apparent" of the Respondent and anticipated that eventu- ally Hale Jr. would take over the business. According to Hale Sr., Hale Jr. was learning the business and as part of that process would eventually work in every depart- ment. As noted above, at the time of the events at issue Hale Jr. was characterized as a "dispatcher trainee." It is undisputed that dispatchers have authority to, assign loads to -the drivers and are supervisors within the mean- ing of the Act but, according to the Respondent's wit- nesses, Hale Jr. was not a dispal cher, but performed "ad- ministrative clerical functions" during the day and an- swered the telephone in the evening from about 5 p.m. when the receptionist left until 6:30 or 7 p.m., when his workday ended. Hale Sr., Hale Jr., and Smith all testified that Hale Jr. exercised no independent judgment and that on the rare occasions when he was alone in the office he merely fol- lowed the instructions left for him by the dispatchers. The Respondent's witnesses further testified that the question of whether a load was "hot" was determined by the customer, that Hale Jr. could not make such a deter- mination on his own, and that the drivers were aware that Hale Jr. did not decide assignments himself. Shelley, the only driver to testify, sharply contradicted the testimony of the Respondent's witnesses, asserting that Hale Jr. assigned loads to drivers, handed out time- cards to the local drivers,5 retrieved paysheets from the over-the-road drivers, and checked timecards. Once again, and for the reasons stated above, I credit Shelley, and therefore find that at least one occasion, Hale Jr. performed the duties Shelley described. As a further indication of Hale Jr.'s authority, Shelley testified that on an occasion when the drivers worked on a Saturday hauling chassis for a customer, U.S. Lines, from the Dundalk Marine Terminal back to the Re- spondent's terminal, Hale Jr. came down the line of trucks waiting to be checked out from the customer's premises and told the drivers that no more chassis would be checked out and that they should drop their loads and return to the Respondent's terminal. According to Shel- ley, as far as he knew neither a dispatcher nor Hale Sr. was present and, if the drivers had received these in- structions from U.S. Lines' personnel, they would have called the Respondent to check before leaving the marine terminal. - Both Hales, however, testified that Smith and Hale Sr., as well as Hale Jr., were at the Dundalk Marine Ter- minal on the day in question, that the decision to cut off the line was made by U.S. Lines and the Respondent had no say in the matter, and that Hale Jr. merely passed the 5 It, appears from the record that the drivers who work locally use timecards, while the over-the-road drivers are paid a flat rate per trip, depending on the destination. word along. I find that the Hales' testimony is not neces- sarily inconsistent with Shelley's on this point, for he tes- tified as to what Hale Jr. did and said, while the Hales testified as to the reasons for Hale Jr.'s actions. 2. Shelley's request for Hale Jr.'s_help Shelley testified that after Hale Sr. fired him he used the car of his roommate, who was also a driver for the Respondent, to get home. When Shelley arrived home he called the Respondent to leave a message for his room- mate and talked to Hale Jr. Shelley testified that he asked Hale Jr., with whom he-had been friendly, if he had heard what had happened and, when the latter said he had not, Shelley told him that Hale Sr. had fired him for writing on the bathroom wall. According to Shelley, Hale Jr. was sympathetic and asked if Shelley had writ- ten on the wall and Shelley replied that he had not. Hale Jr. then said that he would talk to his father and see if he could get Shelley reinstated. Hale Jr. gave a somewhat different account of this conversation, testifying that, Shelley came to the Re- spondent's terminal on Friday, 17 May, to pick up his paycheck and asked Hale Jr. to put in a good word for him with Hale Sr. about getting his job back. According to Hale Jr., he responded that he would check into the matter. Shelley appeared to exhibit better recall on the date and circumstances of this conversation than did Hale Jr., and I therefore credit Shelley. Hale Jr. further testified that later in the same week he went out to dinner with his father and "I just asked him would we take Richard back and he said . . . you have to cut people out . . . who are union organizers and stuff like that, out like a cancer. Because it'll kill your busi- ness. And so I presumed that was a `no."' The following exchange then occurred between Hale Jr. and the Re- spondent's counsel: Q. Did he refer to anything besides union orga- nizers? People on dope or was it' just union organiz- ers? A. Well, it was other people who were just bad workers or organizers and anything like that. Just mainly bad people. Q. Did he refer to junkies and alcoholics as well? A. Yes. - Hale Sr. also testified about this conversation, placing it "probably a couple of days before" 24 May, and stated that Hale Jr. told him that it was "too bad" about Shel- ley and that he was "a good guy,,a good operator." Ac- cording to Hale Sr., he replied, "I do not keep junkies or anybody, any junkies, any alcoholics, or any union people working for me." Hale Sr. further testified "And him [presumably meaning Shelley] and a few other people that were there were in that category." However, Hale Sr. later testified that at the time he talked to his son he was not aware that Shelley had indicated some support for a union. Shelley testified that about 5 p.m. on 15 May he called Hale Jr. and asked what his father had said and that Hale Jr. replied that his father would not budge. Shelley fur- ther quoted Hale -Jr. as repeating his father's words that 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "when things like that about a union show up in the company, you have to cut it out like it's cancer." I credit Shelley as to both the substance and date of this conver- sation, and therefore find that Hale Jr.'s dinner conversa- tion with his father occurred 14 May. On 24 May Shelley's sister, Linda Shelley, drove him to the Respondent's terminal to pick up his last pay- check. According to Shelley, as they pulled into the Re- spondent's parking lot Hale Jr. was leaving in his car and Shelley motioned him to stop. Hale Jr. backed up and got out of his car and Shelley then got out of his sister's car and asked Hale Jr. to tell his sister why he had been discharged, because Linda Shelley thought he must have been involved in an accident . Hale Jr. then told Linda Shelly that the owner of the Company had thought that Shelley had written something about a union on a bath- room wall and had fired him for it. Linda Shelley asked if the owner was Hale Jr.'s father and he replied affirma- tively. Shelley then said goodbye to Hale Jr. and went to get his paycheck. Hale Jr. and Linda Shelley both essentially corroborat- ed Shelley's account of this conversation , and I find that it occurred as he described it. However, Hale Jr. further testified that he was not "positive" that Shelley was in fact discharged for writing about a union on the wall, but that he "just assumed" that Shelley was fired for that reason and that he said so to Linda Shelley to make her feel better. Hale Jr. also testified that his father had never told him that Shelley was fired because he was a union supporter, but admitted that Hale Sr.'s comments about drug and alcohol users and union organizers were made in response to his intercession on Shelley's behalf. F. The Parties' Contention With respect to Shelley's discharge, the General Coun- sel contends that Shelley engaged in union activity pro- tected by the Act, that the record establishes that Hale Sr. knew of Shelley's union activity and was opposed to union representation of his employees, and that the motive for discharging Shelley was removal of an em- ployee suspected to be a union organizer. The General Counsel further argues that any contention that Shelley was fired for suspected drug use is refuted by the fact that Shelley was allowed to drive for a week after Hale Sr. heard about the Pennsauken incident and by Hale Sr.'s testimony that Shelley was discharged for what he wrote on the men's room wall. The General Counsel similarly contends that there is no merit to an argument that Shelley was discharged for writing a criticism of the drug testing program, since Hale Sr.'s and Smith's testi- mony that they tried to identify the authors of all the writing on the wall but were only able to identify Shel- ley's handwriting was "patently incredible," and since, when Hale Jr. asked his father if he would reinstate Shel- ley, Hale Sr. did not indicate to his son that Shelley was discharged for criticizing the tests. Finally, the General Counsel urges that Shelley's comments about the tests were protected by Section 7 of the Act and were inextri- cably related to his statement about the need for a union. As to the 8(a)(1) allegations, the General Counsel con- tends that Hale Jr. was an agent of the Respondent within the meaning of Section 2(13) of the Act, and that his comments to Shelley about why the latter was dis- charged therefore violated Section 8(a)(1) of the Act. The General Counsel further urges that even if Hale Jr. is not an agent of the Respondent his testimony about his father's comment that unions are like a cancer and must be cut out establishes Hale Sr.'s unlawful motive for Shelley's discharge. The Respondent argues, with respect to Shelley's dis- charge, that Shelley's writing on the restroom wall was not protected activity; that even if the activity was pro- tected the General Counsel has failed to make a prima facie showing that Shelley's reference to a union was a motivating factor in his discharge ; that even if the Gen- eral Counsel made such a showing, the preponderance of the evidence supports the finding that Shelley would have been discharged even if his graffiti had not men- tioned a union; and that Shelley was discharged for his verbal attacks on Hale Sr. and his statements about the drug testing program, and that these comments were not protected by the Act. With respect to the 8(a)(1) allegations, the Respondent asserts that Hale Jr. is not an agent of the Respondent, and that even if he is found to be the Respondent's agent, his comments could not be considered coercive because the conversations at issue were initiated by Shel- ley and were casual conversations in which Hale Jr. re- sponded to Shelley's requests. The Respondent also urges that, in any event, Hale Jr.'s testimony may not be used to establish that Shelley was discharged for union activity, since Hale Sr. never told his son that that was the reason for the termination, and Hale Jr.'s comments to Shelley and the latter's sister were based on informa- tion from other drivers and an "erroneous assumption about his father's remarks." G. Analysis and Conclusions 1. Shelley's discharge In NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Supreme Court approved the Board's test enunciated in Wright Line, 251 NLRB 1083, 1089 (1980), as follows: First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. Once this is es- tablished, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. [Footnote omitted.] The threshold issue here is whether Shelley's writing on the restroom wall was protected under the Act. Under the circumstances presented in this record, I con- clude that it was. First, I have found that it was common for employees to write graffiti, and it is undisputed that no other employee was ever disciplined for that activity. Second, I have discredited Hale Sr.'s and Smith's testi- mony that they attempted to determine the authors of the other written comments and were unable to do so; I therefore infer that it was not the fact that Shelley's graf- PORT EAST TRANSFER fiti defaced company property but rather the content of his statements that caused management concern. Third, inasmuch as I have credited Shelley's testimony. as to what he wrote, I conclude that the content of his graffiti was not so "malicious, defamatory, insubordinate, obnox- ious, and wholly unjustified" as to lose the protection of the Act.6 With respect to the motivation issue, as discussed above, it is undisputed that Hale Sr. was strongly op- posed to any union representation of the Respondent's employees, and I have found that at the time of.Shelley's termination Hale Sr. was aware that Shelley had written comments about the employees' need for a union. Con- trary to the Respondent, I also find that Hale Sr.'s com- ment to his son that it was necessary to cut out union organizers "like a cancer," occurring -in the context of a conversation about whether Shelley would be reinstated, raises the inference that Hale Sr. was motivated, at least in part, by Shelley's union activity in deciding to fire him. Accordingly, I conclude that the General Counsel has established that Shelley's union activity was a "moti- vating factor" in Hale Sr.'s decision to fire him. Finally, as also discussed above, I did not find Hale Sr. to be a very credible witness. I specifically do not credit his testimony that it was Shelley's reference to a "witch hunt" that angered him, and that that was the case espe- cially because Shelley's conduct in New Jersey had prompted the drug tests in the first place. In these cir- cumstances, I find that the Respondent had not carried its burden of adducing credible evidence that Shelley would have been discharged even if he had not engaged in protected activity. I therefore conclude that Shelley's discharge violated Section 8(a)(1) and (3) of the Act.7 2. The alleged violations of Section 8(a)(1) a. Edwin Hale Jr.'s status as an agent It is well established that where a respondent places an individual in a position where employees could reason- ably believe that he speaks on behalf of management, that individual's acts are imputable to the respondent, whether he is a supervisor and whether these acts were in fact authorized or subsequently ratified.8 In the instant case, as the General Counsel points out, Hale Jr. is the undisputed "heir apparent" to the Company, is known as Hale Sr.'s son, and is training for a supervisory position. Further, I have credited Shelley's testimony that Hale Jr. performed some of the same duties as the dispatchers, and that he has been used to relay management's instruc- ° Caterpillar Tractor Co., 276 NLRB 1323 (1985). In that case, the Board found that an employee's activity in drawing an obscene cartoon of a supervisor was not protected . In making that finding, the Board spe- cifically noted that the respondent could not be said to have condoned other conduct that was equally obnoxious. In the instant case, by con- trast, I find that other graffiti, such as the obscene cartoon of Smith and a driver, was condoned. 7 Having so found, I find it unnecessary to pass upon the General Counsel's contention that Shelley's comments about the drug tests were protected by Sec. 7 or, in any event, were inextricably intertwined with his comments about the need for union representation. ° Broyhill Co., 210 NLRB 288, 294 (1974), enfd. 514 F.2d 655 (8th Cir. 1975); Helena Laboratories Corp., 225 NLRB 257, 258 (1976), enfd. in per- tinent part 557 F.2d 1183 (5th Cir. 1977); Schulte's IGA Foodliner, 241 NLRB 855, 856 (1979). 895 tions to employees. I therefore conclude that Hale Jr. is an agent of the Respondent within the meaning of Sec- tion 2(13) of the Act,9 and that his comments to Shelley were attributable to the Respondent. b. Hale Jr.'s statements I further find that Hale Jr.'s comments to Shelley as to why the latter was discharged were coercive. I recog- nize that Hale Jr.'s statements to both Shelley and Linda Shelley were made in response to Shelley's queries or re- quest. Nonetheless, the statute prohibits employers from taking action to "interfere with, restrain, or coerce em- ployees in the exercise of the rights guaranteed in Sec- tion 7." There are few remarks that are more likely to do precisely that than the statement to an employee that he or another was discharged because of his union activity. I therefore find that Hale Jr.'s comment to Shelley on 15 May and his comment to Linda Shelley on 24 May both violated Section 8(a)(1) of the Act. On the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Port East Transfer, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By, about 15 and 24 May 1985, informing an em- ployee that his support for a union was the reason he was discharged, the Respondent has violated Section 8(a)(1) of the Act. 3. By discharging employee Richard Shelley on 14 May 1985, the Respondent had violated Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the purposes of the Act. Having found that the Respondent unlawfully dis- charged Richard Shelley, I shall recommend that the Re- spondent be ordered to offer him immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges previously enjoyed. I shall further recommend that the Respondent be ordered to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he would normally have earned from the date of his termination until the date of the Respondent's offer of reinstatement, less net interim earnings, in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), to which shall be added interest, to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). I shall also rec- ommend that the Respondent be ordered to expunge ° See Raskin Bras., 274 NLRB 413, 421 (1985). 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from its files any reference to the unlawful discharge of Shelley. Finally, as is customary in these cases, I shall recom- mend that the Respondent be ordered to post the usual notice.' ° On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edli ORDER The Respondent, Port East Transfer, Inc., Rosedale, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they engage in union or other pro- tected concerted activity. (b) Informing employees that they have been dis- charged because they engaged in union activity. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Richard Shelley immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered as a result of the Respondent's dis- crimination against him in the manner set forth in the remedy section of this decision. (b) Expunge from its files any reference to the dis- charge of Richard Shelley on 14 May 1985, and notify him in writing that this has been done and that the evi- dence of this discharge will not be used as basis for future personnel actions against him. - (c) Preserve and, on request, make available to the Board or its agents for examination 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 Rosedale, Maryland facility copies of the attached notice marked "Appendix."12 Copies of the 1s The General Counsel announced on 23 September that because of difficulties in monitoring compliance with court-enforced Board orders, in the future her office would routinely seek inclusion of a visitatorial clause in Board remedial orders Counsel for the General Counsel's brief in the instant case was presumably submitted before counsel became aware of this new policy and thus contains no reference to it . However, I find the proposed visitatonal clause appropriate and have therefore in- cluded it in the recommended Order II 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 12 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized ` representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent 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. For the purposes of deter- mining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discovery from the Respondent, its' officers, agents, successors, or assigns,'or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Proce- dure. Such discovery shall be conducted under the su- pervision of the United States Court of Appeals enforc- ing this Order and may be had upon matters reasonably related to compliance with this Order, as enforced by the court. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 or- dered us to post and abide by this notice. WE WILL NOT discharge or otherwise discriminate against you because you engage in union or other pro- tected concerted activity. WE WILL NOT inform employees that they have been discharged because they engaged in union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the, rights guaranteed them by Section 7 of the Act. WE WILL offer Richard Shelley immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or other rights or privileges previ- ously enjoyed, and WE WILL make him whole for any loss of earnings, plus interest. WE WILL notify Richard Shelley that we have re- moved from our files any reference to his discharge, and that the discharge will not be used against him in any way. PORT EAST TRANSFER, INC.