The Lewis Grocer Co.

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Lewis Grocer Company and Robert Skelton and Alton J. Rodgers and Luther L. Taylor. Cases 26-CA-11139, 26-CA-11149, and 26-CA- 11165 18 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 17 March 1986 Administrative Law Judge William N. Cates issued the attached decision. Charging Party Robert Skelton filed a letter ex- cepting to the decision. 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 letter and has decided to affirm the judge's rulings, findings,' and conclu- sions and to adopt the recommended Order. 'ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. July and is based on charges, which were filed by vari- ous individual Charging Parties. The original charge in Case 26-CA-11139 was filed by Robert Skelton, an individual, on 30 May, and amended on 9 July. The original charge in Case 26-CA-11149 was filed by Alton J. Rodgers, an individual, on 4 June, and amended on 12 September. The original charge in Case 26-CA-11165 was filed by Luther L. Taylor, an individ- ual, on 20 June, and amended on 12 September. An amendment to the complaint issued on 13 September. The complaint was further amended at the trial. In the complaint it is alleged that The Lewis Grocer Company (Company or Respondent) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act. Specifical- ly, the case involves the following: the Company's ques- tioning one employee about the Union; its issuing disci- plinary warnings to its employees Rodgers, Skelton, Taylor, Doug Jones, and Booker Williams (B. Williams); its issuing a 3-day suspension to employee Johnny Dodd; and its discharging Skelton. I find for Respondent on all issues and recommend the complaint be dismissed. All parties were given full opportunity to participate and introduce relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed by the General Counsel and Respondent. On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following i Charging Party Skelton has excepted to some of the judge's credibil- ity findings. The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stand- ard 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 re- versing the findings. We also find totally without ment Charging Party Skelton's allegations of bias and prejudice on the part of the judge. On our full consideration of the record and the decision, we perceive no evidence that the judge prejudged the case, made prejudicial rulings, or demonstrated a bias against any party in his analysis or discussion of the evidence. We further reject as totally without merit the Charging Party's contention that it was prejudiced by the alleged failure of the General Counsel to conduct an adequate investigation and/or to adequately present the case before the judge Bruce Buchanan, Esq., for the General Counsel. Charles A. Adams, Esq., of New Orleans, Louisiana, and G. Truett Roberts Jr., Esq., of Indianola, Mississippi, for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This matter was heard at Greenville, Mississippi, on 7, 8, and 9 October 1985.1 The hearing was held pursuant to an order consolidating cases, consolidated complaint, and notice of hearing issued by the Regional Director for Region 26 of the National Labor Relations Board on 9 ' All dates are 1985 unless otherwise indicated. FINDINGS OF FACT 1. JURSIDICTION Respondent is a corporation with an office and place of business located at Indianola, Mississippi, where it is engaged in the wholesale distribution of grocery prod- ucts. During the year preceding issuance of the com- plaint, Respondent sold and shipped from its Indianola, Mississippi facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Mississippi. The complaint alleges, Respondent by its answer admits, and I find it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION It is admitted, and I find, that International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 891 is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. BriefBackground2 Respondent distributes grocery products by truck from its Indianola, Mississippi warehouse to various States 2 This brief background is not intended to be all inclusive, but rather, is for the purpose of setting forth at one place in this decision certain Continued 282 NLRB No. 19 LEWIS GROCER CO. across the South. It employs approximately 175 driver, along with 45 shop employees, dispatchers, billing clerks, and supervisory personnel . Respondent has a fleet of ap- proximately 120 trucks, 115 of which are equipped with computer terminals . Respondent's trucking operation is governed by United States Department of Transportation (DOT) regulations. Driver Skelton first contacted the Union in 1983 to re- quest assistance in organizing Respondent's drivers. Thereafter, in January 1984, certain drivers formed "The Lewis' Employees Achievement for Better Government Committee."3 The stated purpose of the committee was to represent employees before Respondent. It would appear the committee later became the organizing arm for the Union in its 1984 campaign at Respondent. The Union filed a representation petition in Case 26-RC-6676 on 4 May 1984. On 18 May 1984 it notified the Company in writing that 10-named drivers formed the Union's or- ganizing committee.4 A hearing on the representation pe- tition was held on 23 and 24 May 1984 in Greenwood, Mississippi. Pursuant to a Decision and Direction of Election, an election was held on 29 June 1984 in which the Union lost. Employee Skelton filed an unfair labor practice charge against Respondent on 9 January in Case 26-CA-10983, which pertained to a disciplinary warning he had re- ceived in October 1984. Skelton's charge was consolidat- ed for trial with an unfair labor practice charge previous- ly filed by employee Carl Williams in Case 26-CA- 10867-2.5 Skelton's and Williams' consolidated cases were set for trial on 16 January (1 week after Skelton filed his charge); however, on that date and prior to the trial actually commencing , the parties reached a non- Board settlement of the cases. From January through April, DOT audited Respond- ent's compliance with its rules and regulations and found it had committed approximately 500 DOT violations. In April, Respondent reached a settlement with DOT on the violations. As a part of the settlement, Respondent was fined and agreed to bring its operations into compli- ance with DOT regulations. A part of the settlement in- volved Respondent agreeing to, among other things, hiring additional personnel to ensure its compliance with DOT requirements . DOT "assured" Respondent that future violations would result in a $1000 fine per viola- tion. At some point prior to the commencement of this trial, Respondent was notified by DOT that it continued to have an unsatisfactory ' rating regarding' compliance with DOT rules and regulations. pertinent and material background facts. All background information has been carefully considered and certain portions will be referred to else- where in this decision. 3 As reflected on a notice posted at the Company on 15 January 1984, the drivers initially involved with the committee were Lewis Douglas, Ike Donald, Joe Fant, Skelton, and Taylor. 4 The 10 drivers were Carl Williams, Taylor, Lewis Douglas, Joe Fant, Ike Donald, Homer Taylor, Skelton, James Lewis, James Modley, and Glen Modley 5 It is not clear on this record when the charge involving Williams was filed, however, I note it was some 116 charges prior to the charge in- volving Skelton. 167 Driver Skelton again contacted the Union in 1985 and the first union meeting in that year was held on 19 May.6 It is undisputed that Sanitation Supervisor William Moudy and Supervisor Darvin Welch knew, at least 2 days before the 419 May union meeting, that it would take place.7 B. Interrogation of Rodgers It is alleged at paragraph 7 of the complaint that about 19 May Respondent acting through Supervisor Welch in- terrogated Rodgers about his union activities. Following the Union's first 1985 organizational meet- ing' held on Sunday, 19' May, Rodgers went directly to the Company's warehouse." After Rodgers obtained the necessary paperwork for the delivery he was about to make, he went to the breakrgom for coffee. In the break- room he spoke with Supervisor Welch in Supervisor Barrett Dickerson's presence. It is not disputed that Welch and Rodgers were longtime friends who had at- tended secondary school together. Rodgers testified Welch asked him how the union meeting went. Rodgers told Welch it went great. Rodgers asserts Welch asked him how many showed up for the meeting, and he told him approximately 10, that it was their first meeting, and it was mostly just for organizers. Welch acknowledged he asked Rodgers how the union meeting went but stated Rodgers told him that feeding the employees ham and cheese this year would not win them over. 'Welch' testified he realized at that point that Rodgers was seri- ous so he backed off and began asking him about previ- ous dairy runs and how his truck was loaded for his de- livery that day. Rodgers acknowledges that after he fin- ished getting a cup of coffee, the three of them talked and laughed about other things including how his truck was loaded. After that discussion, all agreed the conver- sation ended. The only conflict between Welch's and Rodgers' testi- mony regarding their conversation is whether 'Welch asked Rodgers how many employees attended the union meeting. Although Welch's testimony was very brief, he impressed me as a truthful witness. His testimony had a ring of truth about it and as such I credit his version of the conversation. The Board's test for evaluating whether any particular interrogation violates the Act is set forth in Rossmore House, 269 NLRB 1176 (1984). The test is whether under all' the circumstances the -interrogation reasonably tends to,restrain, coerce, or interfere with rights guaranteed by the Act. The Board pointed to some areas of inquiry that might be considered in applying the Rossmore House guidelines but warned the factors were not to be me- chanically applied. The Rossmore House factors were: the background involved; the nature 'of the information B It is undisputed that Skelton and Rodgers were among those in at- tendance at the May unionmeeting. 7 Moudy found a note in the employee's bathroom about 17 May that announced the union meeting for 19 May & The union meeting was held in Greenwood, Mississippi, and as noted earlier in this decision, Respondent's facility is located at Indianola, Mis- sissippi. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought; the identity of the questioner; and the place and method of interrogation. Applying the Rossmore House test, I find the circumstances surrounding Welch's ques- tioning of Rodgers to be devoid of the elements of coer- cion necessary for finding a violation of the Act.9 First, Rodgers was a known union supporter.' ° Welch had been told in 1984 that Rodgers supported the Union. Second, there is no showing that Welch took or threat- ened to take any adverse action against Rodgers or any other employee based on the employee's support for the Union. As is discussed elsewhere in this decision, Rod- gers, after this conversation with Welch, had disciplinary action taken against him but it was, taken by a different supervisor and Welch credibly testified he did not men- tion the conversation he had with Rodgers to any other supervisor. Third, the one question Welch did ask was a very general nonthreatening question-he simply asked how the union meeting went. Fourth, the conversation took place in the breakroom where these two longtime friends and former schoolmates continued to laugh and talk about other job-related matters. As the Board noted in Sunnyvale Medical Clinic, supra, this was the lawful casual type questioning that, under the circumstances, might be expected to occur between a supervisor and an employee who had been longtime friends that grew up and worked together. Accordingly, I recommend that the allegation of interrogation set forth in paragraph 7 of the complaint be dismissed. C. Disciplinary Warnings Given Rodgers, Jones, and B. Williams It is alleged that about 30 May Respondent issued a disciplinary warning to Rodgers in violation of Section 8(a)(1), (3), and,(4) of the Act. The 8(a)(4) allegation is based on the contention that Rodgers gave a statement to the Board and appeared at a Board hearing to testi- fy.'' Respondent has had written guidelines for its drivers regarding overnight expense allowances at least since 18 July 1984.12 In its July guidelines, Respondent author- ized expense money for its drivers whenever any trip re- quired them to be away from the warehouse in excess of 15-1/2 hours. Respondent pointed out to its drivers in its memorandum that overnight expense money was intend- ed to help offset the personal expenses of its drivers and it was not to he considered as additional money for 9 The General Counsel conceded in his posttrial brief that if Welch's testimony was credited, no violation of the Act would have been estab- lished. 10 The same Rossmore House test would apply even if Rodgers' union sentiments had not been known to the Company See Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), and Page Avjet, Inc, 278 NLRB 444 (1986) 11 It is the contention of the General Counsel that Respondent issued employees Jones and B . Williams disciplinary warnings on 11 June in order to cover up the alleged discriminatory warning it gave Rodgers Accordingly, the General Counsel alleged at par. 11 of the complaint that the disciplinary warnings given Jones and B. Williams were given in violation of Sec 8(a)(3) of the Act 12 I am persuaded Respondent provided a copy of its July memoran- dum to Rodgers notwithstanding his testimony that he did not receive a copy of that particular memorandum. making a trip.13 Respondent issued additional guidelines on 24 October 1984 regarding overnight expense allow- ances. 14 In its October memorandum, Respondent in- formed its drivers it had made arrangements with certain motels in most of the areas where deliveries were made and the drivers could use those motels if they chose to do so. Any driver choosing to utilize a motel arranged for by the Company would have to return $14 of the $24 of expense money received from the Company for that trip. Respondent placed its drivers on notice in the Octo- ber memorandum that a "Failure to comply with these instructions will subject you to disciplinary action." On 8 January Respondent issued its drivers yet an- other memorandum on overnight expense allowances. The new guidelines were to be effective on and after 11 January. 15 In its January memorandum, Respondent, among other things, notified its drivers the Company would no longer provide for company arranged motels, that each driver would have to pay for his own room from the $35 overnight expense allowance the Company was at that time authorizing.16 Respondent also asked its drivers to take certain measures to reduce costs to the Company such as to stop idling the tractor motors, to strive for better miles per gallon in their driving, to get proper rest, and to return to the warehouse on comple- tion of their runs and rest periods. It is undisputed the Company's policy was that if a driver was scheduled for a trip that would take in excess of 15 hours, he was authorized $35 overnight expense money. If the driver was scheduled in excess of 30 hours, he was authorized to receive $70 advance overnight ex- pense money.'' It is undisputed that runs do not always take the length of time they are scheduled to take.'8 Stops or drops may be added or deleted from a run thus affecting the time needed to complete the trip. Respondent's president, Dudley Burwell, explained to the drivers in January that expense money was given for legitimate business reasons, and on those occasions when the expense money was not utilized, the Company ex- pected the drivers to return it to the Company.' 9 13 I have throughout this decision used the terms trip, run, and delivery interchangeably and intend for them to have the same meaning, namely, making a delivery of grocery products and returning with various items needed for distribution to the grocery stores Respondent serves. 14 Rodgers acknowledged he received a copy of the October memo- randum. 15 All three memoranda to the drivers were signed by Director of Transportation Don Williams. 16 In order to receive the $35-overnight expense allowance, the drivers had to sign for the money on a company expense voucher (G.C. Exh 12). 17 According to the Company, the $35-expense money represented an evening and morning meal and a motel bill. 18 Trip lengths are calculated at the Company by computer based on stops, running distance, and other related factors. 19 For a number of reasons, I credit Williams' testimony that Burwell spoke with the drivers about overnight expense money It had long been the policy of the Company that if expense money was not used, it was to be returned to the Company The Company had informed its drivers that expense money was not to be considered as additional compensation for making a run. Respondent's memorandum of 8 January regarding over- time expense allowances reflects that Burwell wrote a letter to each driver concerning overnight expense allowances. As such, I am persuad- ed Burwell spoke with the drivers about expense money notwithstanding Continued LEWIS GROCER CO. On 28 May, Rodgers was scheduled to make a trip from the warehouse to Forrest City and Osceola, Arkan- sas, and return. The trip sheet reflected it would take 17 hours to make the trip. Before making this trip, Rodgers received $35 in overnight expense money. Rodgers com- pleted the trip in 15 hours and when he turned in his pa- perwork (backhaul slips and logbook sheets) generated by the trip, Dispatcher Eston Cummings mentioned to Rodgers that he had not been out overnight. Rodgers told Cummings that was correct, that he, had been able to return without , staying overnight. Cummings told Rodgers, "Well, you are going to have to turn your [overnight expense] money back in." Rodgers told Cum- mings, "Well, I will be glad to turn mine back in when everybody else that doesn't use theirs turns theirs back in. Don't make an example out of me." Cummings told Rodgers he would have to make note of it and inform Director of Transportation Williams about it. Rodgers told Cummings to do whatever he had to do. Cummings then wrote a note to Williams about the matter and asked Rodgers to sign it. Rodgers refused to do so. Thereafter, Director of Transportation Williams was informed by Dispatcher Cummings that Rodgers had not returned his overnight expense money. After Rodgers made another trip for the Company he was told to see Director of Transportation Williams. At their meeting, Williams told Rodgers he ' would have to return the unused expense money that he obtained on 28 May. Wil- liams then explained,to Rodgers that expense money was for a legitimate reason-to cover personal expenses-and when it was not used for expenses, the Company expect- ed the drivers to return it. Rodgers told Williams he would be glad to do so when everyone else that did not use their expense money turned it in. Williams told Rod- gers no one else was doing that type thing, that others were staying out on their runs and properly utilizing their authorized overnight expense money. Rodgers told Williams he knew for a fact that was not so. Williams asked Rodgers to name someone and Rodgers gave Wil- liams the name of driver B. Williams. Director of Trans- portation Williams told Rodgers he was not aware of any situation involving driver B, Williams not returning unused overnight expense money. Rodgers told Director of Transportation Williams to get driver B. Williams' trip sheets. He did so and Rodgers showed him where B. Williams had obtained overnight expense money without utilizing or returning it. Williams told Rodgers he would investigate the situation. Williams also told Rodgers he was going to, write him up for insubordination. Rodgers told Williams to do whatever he had to do. Williams prepared a written warning for Rodgers, however, Rod- gers refused to sign it.20 Rodgers' testimony that he could not recall Burwell ever explaining ex- pense policies at any drivers' meetings. I am further persuaded Burwell did so because it has been convincingly established that expense money was a matter ,of great concern to the Company CO Rodgers' warning dated 28 May was checked in two categories re- lating to the reasons for the action taken, namely, (a) insubordination and (b) unsatisfactory performance-neglecting responsibilities and duties and failing to follow instructions. The following "description of circum- stances" was given on the warning. Driver went out on an overnight run that was given $35 overnight money & returned to warehouse within 15 hours [Tr 3131] & re- 169 Director of Transportation Williams found out about the incident involving B. Williams from Rodgers and also from Director of Warehousing and Transportation Tom Patterson, who told him he had been informed con- fidentially that drivers B. Williams and Jones had violat- ed the 15-hour overnight expense money guidelines. Wil- liams investigated the situation and on I1 June issued dis- ciplinary warnings to B. Williams and Jones.21 The General Counsel contends all the reasons (which will hereinafter be discussed) advanced by Respondent for disciplining Rodgers were pretextual and the General Counsel asserts the real reason Rodgers was given a dis- ciplinary warning was his union activities and his partici- pation in a Board investigation along with his appearance at a scheduled Board proceeding. The General Counsel further contends the warnings given B. Williams and Jones were given in violation of the Act because they were issued in order ' to cover up the discriminatory warning given Rodgers.22 Respondent contends Rodgers wrongfully and deliber- ately withheld overnight expense money and was ac- cordingly disciplined. In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 400-403 (1983), the Board set forth a test of causation to be applied in cases involving actions based on "dual" motives, one of which is permissible and one of which is unlawful. Under that test, the General Counsel is first required to establish a prima facie case sufficient to support the inference that protected conduct was a "motivating factor" in the employer's decision. If this is established, then the burden shifts to the employer to demonstrate that it had a legitimate, permissible reason for its actions such that the disciplinary action would have taken place even in the absence of the pro- tected conduct. I am persuaded the General Counsel has met her burden of establishing a prima facie case with respect to the discipline given Rodgers. I base my conclusion on Rodgers' union activities, the Company's knowledge of those activities, and the timing of the discipline taken against him.23 Rodgers' support for the Union was clear- fused to turn in the 35 dollars. Alton [Rodgers] was instructed to return the $35 everytime the run doesn't require 15 hours as per Mr. Burwell's instructions in driver meeting. [G. C. Exh 13,.] 21 Williams' and Jones' warnings both were checked in the category of unsatisfactory performance-failure to follow instructions--as the reason for the action taken against them The following "description of circum- stances" was written on the warnings. Was advised to return overnight money when he didn't stay over- night Doug Jones [G.C. Exh. 15], Booker Williams 10 C. Exh. 14], was advised to always turn in money when he doesn't have to stay overnight 22 The General Counsel readily acknowledges that if there is no find- ing of a violation with respect to the warning given Rodgers, then there could be no violation of the Act with respect to the warnings given B. Williams and Jones 21 I note the absence of any independent evidence of animus; however, the Board in Kenco Plastics Co, 260 NLRB 1420 (1982), held that inde- pendent evidence of animus was relevant but not an essential element of proof in finding a prohibited motive for disciplinary action. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly known by Respondent. Supervisor Welch asked Rod- gers on 19 May about,the union meeting he had attended that day. Ten days after that inquiry, Rodgers was disci- plined. Additionally, Respondent, through Director of Transportation Williams, was aware in October 1984 that Rodgers had been involved in a Board investigation and Williams knew Rodgers had been present ,at a Board trial that was scheduled to be heard in January because he was there and saw Rodgers in the courtroom. I am, for the following reasons, persuaded Respondent rebutted the General Counsel's prima facie case with re- spect to the disciplinary warning given Rodgers. Con- trary to the contentions of the General Counsel, I find Rodgers did in fact conduct himself in an insubordinate manner. He refused outright Dispatcher Cummings' re- quest that he return his unused expense money. The General Counsel argues Rodgers could not have been in- subordinate to Cummings because Cummings was not a supervisor within the meaning of the Act. However, I find Cummings had been placed in' a position of responsi- bility sufficient for Respondent to consider an employee insubordinate if the employee disregarded the instruc- tions of its dispatcher particularly where, as here, the dis- patcher was attempting to enforce the Company's writ- ten guidelines on overnight expense money. Rodgers was, in my opinion, also insubordinate when he told Di- rector of Transportation Williams that he would return his expense money when everyone else did. The fact that Williams later agreed to allow Rodgers to reimburse the Company by deducting the money from his next author- ized overnight expense allowance does not negate Rod- gers' insubordinate conduct toward Williams.24 Rodgers was not only insubordinate, but he did, as stated in his disciplinary warning, fail to follow company instructions in that he failed to return his unused over- night expense money. Respondent had for an extended period of time advised its employees that expense money was not to be considered as an additional payment for making a trip but was to be 'utilized for the legitimate purpose of covering overnight expenses and when such expenses were not incurred, the expense money was to be returned to the Company. Respondent, had warned its employees that a failure to follow these instructions would, and did, result in disciplinary action. 'Respondent issued a warning to employee Joe Holloway on 28 No- vember 1984 for failing to return to the Company certain overnight expense money. In approximately October 1984, Respondent disciplined employee Carl Williams for falsifying his DOT log records in order to receive addi- tional overnight expense money. The General Counsel also argues that other drivers such as Starnes, Taylor, Ernie Skelton, and Louis Douglas each made trips in less than 15 hours and did not return their overnight expense 24 The General Counsel appears to contend Rodgers was treated dif- ferently from others such as Larry Starnes. Starnes testified he returned from a trip in less than 15 hours and was asked to return his unused ex- pense money. Starnes told Assistant Director of Transportation Johnny Spurlock to just withhold the money from his next authorized overnight expense fund. Starnes was allowed to repay the money from his next overnight expense fund and was not given a warning. There is, however, no showing that Starnes was ever asked for, and then refused, to return unused overnight expense money. money and were not disciplined. There is, however, no showing management was ever aware of any such inci- dents. Furthermore each testified they were never asked for and then refused to return their unused overnight ex- pense money. I am fully persuaded Respondent has demonstrated it would have disciplined Rodgers even in the absence of any protected conduct on his part. Accordingly, I rec- ommend that the 8(a)(1) and (3) complaint allegations re- lated to the disciplinary warning given Rodgers on 28 May be dismissed. Likewise, I am persuaded it cannot be inferred that Rodgers' participation in a Board investiga- tion in October 1984 and his appearance at a trial (that never took place because of a settlement) in January was in any way a motivating factor in Respondent's decision in May to discipline him. Accordingly, I recommend that the 8(a)(4) complaint allegations related to Rodgers be dismissed.25 D. The Warning Given to and the Discharge of Skelton It is alleged at paragraphs 9 and 10 of the complaint that Respondent issued disciplinary warnings 'to Skelton on 21 and 29 May, and also discharged him on that latter date in violation of Section 8(a)(1), (3), and (4) of the Act. At the time of his disciplinary warnings and discharge, Skelton had been driving a truck for Respondent for ap- proximately 13 years. He worked under the supervision of Director of Transportation Williams. As is noted elsewhere in this decision, Skelton was the employee that initially contacted the Union in 1983 and he also helped to form an employee committee that served as a springboard for the Union's 1984 organizing campaign at Respondent. Respondent was notified in writing that Skelton was a member of the Union's 1984 organizing committee. Skelton was the employee that again contacted the Union in 1985 about organizing Re- spondent's drivers. Further, as is also reflected elsewhere in this decision, Skelton filed an unfair labor practice charge against Respondent in January and in connection therewith gave an affidavit to the Board. Skelton ap- peared at the scheduled 16 January Board trial of his and a fellow employee's charges against Respondent, howev- er, the consolidated matter was settled out of court in a non-Board agreement. As a part of that non-Board settle- ment, a disciplinary warning dated 1 October 1984 was removed from Skelton's personnel, file. 25,Inasmuch as I have found the discipline given Rodgers was not un- lawfully motivated, I shall, in agreement with the General Counsel, rec- ommend that the 8(a)(1) and (3) allegations related to B Williams and Jones be dismissed. The discipline given B Williams and Jones on 11 June grew out of an investigation that was initiated in part by Rodgers and was in keeping with Respondent's written and oral guidelines regard- ing unused overnight expense money LEWIS GROCER CO., DOT Coordinator John Smith2S. ,credibly testified27 that in reviewing Skelton's logbook entries for 5 and 6 May, he observed Skelton reflected he had been in the sleeper berth for a number of hours on that trip. The tractor unit Skelton drove did not have a sleeper berth. Smith made a logbook note to Skelton, which read, "You are in violation of Section 395.8GXI of DOT regu- lations. See me on this. John Smith." (R. Exh. 12.) Within a few days thereafter, Smith spoke to Skelton about his having logged sleeper berth time when he did not have a sleeper berth on his unit. Smith told Skelton to log such time on the top "off duty" line of his logs. Skelton told Smith he had been making logbook entries for 30 years and knew how to log.28 ' Smith testified that thereafter, about 19 May, he re- ceived a memorandum (R. Exh. 23) from Night Dis- patcher Eugene Jefferies,29 which reflected Skelton had again made entries on 'the sleeper berth line of his trip logs.30 Smith testified he gave Skelton a written warning on 21 May because he had previously warned him about making, sleeper berth log entries when he drove a unit that did not have a sleeper berth. Smith explained to Skelton that his actions were in violation of DOT rules and regulations. According to Smith, Skelton did not say anything.3 t Skelton refused to sign the 21 May warning Smith gave him.32 Smith testified he had not given any other disciplinary warnings to any employees for logging time in the sleeper berth. He stated he had, however, issued a counseling to employee Jerry Gates on 19 April for logging time in the sleeper berth. Smith testified he counseled Gates instead of giving him a disciplinary warning because two memoranda had just issued on 15 26 At the time of the trial, Smith had been Respondent's DOT coordi- nator for approximately 6 months. Smith was relieved of all duties except DOT coordinator as a part of Respondent's settlement with DOT. Prior to being DOT coordinator, he had served as safety director 27 Smith was not only a forthright and candid witness but contempora- neous documents supported his testimony. When Smith testified in Re- spondent's case-in-chief, he was not cross-examined. 28 Skelton denied that Smith, prior to 21 May, ever spoke to him about logging in the sleeper berth. I found Skelton to be far less than a credible witness and as such I do not credit his testimony when it con- flicts with that of other witnesses. Portions of Skelton's trial testimony conflicted with statements contained in his pretrial Board affidavit Skel- ton's testimony was sometimes confusing and he displayed selective recall. At one point during cross-examination, he became so upset and angry that a break had to be taken in the proceedings I am convinced Skelton became upset and angry because conflicts were being pointed out between his trial testimony and his trip logs Skelton acknowledged he made incorrect entries on his trip logs and it appears Skelton would resort to giving incorrect testimony whenever he perceived it would be in his best interest to do so. 29 Dispatchers are nonsupervisory unit employees. 30 Skelton stated Jeffenes raised the matter of his logging on the sleep- er berth line and wanted him to change his logs. Skelton testified he told Jefferies he would take the matter up with Smith. 31 Skelton asserts Smith wanted him to change his log entries from "sleeper berth" to "off duty " He testified he told Smith he would not make the changes nor would he get a new logsheet and reflect it as "off duty" because it would be "altering" his logs and- that would be "Sin vio- lation of DOT regulations " Skelton stated he told Smith he would log it the way Smith wanted it the next time, "that [Smith] was right, it should be logged off duty " Skelton asserts he was, however, actually sleeping, sometimes at a store or alongside the road , when he entered time in the sleeper berth on his logs 32 The warning reflects it was given because Skelton failed to follow instructions in that he logged time in the sleeper berth rather than as off duty. 171 April, to all drivers, spelling out what was expected of them in making logbook entries and in bringing Re- spondent into compliance with DOT rules and regula- tions. The two memoranda, both from Director of Trans- portation Williams pertained to "DOT hours of service" and "DOT compliance" (R. Exhs. 8 and 9). The memo- randa addressed to all drivers and dispatchers were as follows: We were audited by D.O.T. on 2-14-85, and were found to be in violation on numerous ac- counts, primarily hours of service. We will discuss our compliance with the D.O:T. office in Atlanta on 4-18-85. Management has installed several procedures to bring the Lewis Grocer Company Driver force in compliance. Effective by 4-18-85, every driver will be ex- pected to recap his logs. Every driver will also be expected to be in full compliance with all hours of service requirements. Ten (10) and fifteen (15) hour requirements, sixty (60) hours in seven (7) days re- quirement, DVCR requirements, and all D.O.T. re- quirements. Effective 4-18-85, every driver is expected to keep up with his hours. When assigned or advised to work, you are to advise the dispatcher of your available hours, and you are,not to accept an assign- ment that will cause you and the Company to be' in violation. Your failure to comply will result in disci- plinary action as any violations will cause the Com- pany extreme hardships. [R. Exh. 8.] In a recent conversation with Mr. Laird of the Jackson D.O.T. office, the following was discussed and OK'd. 1.) Our previous instructions concerning hours on duty within a twenty-four (24) hour period is correct. The requirement is that you must have eight (8) hours off duty before driving if you have driven ten (10) hours or been on duty fif- teen (15) hours or more. 2.) A Driver can only log on the top line a total of one (1) hour for meals or eight (8) hours off duty time. However, the Dispatcher can place a man off duty for a specific length of time at any time by relieving the Driver of all responsibility for the equipment and allowing the Driver to do whatever he desires. For this to happen, the Dispatcher must talk to the Driver at the time he is relieved of duty and assign him a specific time to report back on duty. (During this time a Driver can't be expected to be ready for work or perform any company functions). For a Driver to be relieved of duty I want the Dis- patcher to log in the dispatcher log book the fol- lowing information. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1.) Time and date. Driver name and location, reason for placing off- duty, and time to report back on duty. 2.) You are, to complete the following informa- tion and place original in 'John Smith box and copy to go to driver upon returning to ware- house to be attached to his log. Any infraction or violation of the hours of serv- ice is to be explained on the log, however Lewis in- tends to comply with all D.O.T. rules and regula- tions. [R. Exh. 9.] Director of Transportation Williams testified he issued the above memoranda following the January through April DOT audit of Respondent's operations. 33 Williams stated Respondent took various other actions to help bring it into compliance with DOT rules and regulations. Williams, for example, stated Respondent placed Smith in charge of coordinating, DOT requirements and pur- chased a computer log recap program so the Company could have a daily recap of the status of its drivers.34 Williams testified he looked over the recaps" to see if Respondent was in compliance with certain DOT re- quirements such as 10-hour driving, 15-hour duty, and 60 hours of work in a 7-day period. Williams stated that while scrutinizing the log recaps for 14, 15, and 16 May, he noticed that Skelton had worked in excess of 60 hours in a 7-day period in viola- tion of DOT, as well as company rules and regulations. Williams called Skelton in and gave him a written warn- ing on 21 May for violating DOT regulations. Skelton told Williams he had been driving and logging for 30 years and had never had a problem until Williams came to work at Respondent. Skelton also told Williams he knew how to make logbook entries. Williams instructed Skelton to recap his logs and to study the DOT manual36 so he would not continue to violate DOT reg- ulations because "another violation of DOT rules could result in discipline up to and including discharge." (R. Exh. 13.) 37 Williams also told Skelton that he and DOT 33 Williams had issued an earlier memorandum on 27 February regard- ing "Drivers Log Policies" (R Exh. 7). 34 Williams stated the computers that were installed in the trucks were originally bought to enhance the transportation dispatching system; how- ever, they were used primarily to ensure the Company was in compliance with DOT rules and regulations. 35 Williams stated DOT Coordinator Smith and Director of Warehous- ing and Transportation Patterson also reviewed, at random, certain logs to see if Respondent was in compliance with DOT requirements Wil- liams stated Respondent's President , Burwell, was also provided a copy of the log recaps each Monday and Friday so that he might check on the Company's compliance with DOT requirements ' 3s Williams gave Skelton a copy of the "Federal Motor Carrier Safety Regulations of the U S Department of Transportation (Parts 390-399)." Skelton acknowledged in writing he had received a copy of the manual and he agreed to familiarize himself with it and to comply with the regu- lations outlined therein 37 Skelton acknowledged he was given a written warning on 21 May for exceeding 60 hours of work in a 7-day period in violation of DOT regulations He, also acknowledged receipt, on that same date, of a copy of the DOT manual The General Counsel stated at trial and in his post- trial brief that there was no contention that Respondent violated the Act when Director of Transportation Williams gave Skelton a warning on 21 May Coordinator Smith were there to help him and if he did not understand anything about the rules and regulations, they would ' sit down and explain them to him. The General Counsel contends Respondent violated Section 8(a)(1), (3), and (4) of the Act when DOT Coor- dinator Smith gave Skelton a warning on 21 May for logging time in the "sleeper berth" instead of "off duty." The General Counsel bases her contention on the follow- ing: (1) Skelton was an active union supporter; (2) no other employee had up to that time been disciplined for logging time in the sleeper berth even though Skelton and another employee; Watts, had allegedly been doing so for years; (3) the timing of the warning that came right after renewed union activity; and (4) employee Gates was only counseled instead of warned for the same rule infraction that Skelton committed. Respondent urges the warning given by Smith on 21 May was fully justified in that Skelton had previously been warned about the same rule infraction and had knowingly continued to violate DOT regulations. I am persuaded the, General Counsel has established sufficient evidence to support the inference that protect- ed conduct was a motivating factor in Respondent's deci- sion to issue a warning to Skelton on 21 May. Skelton was a longtime supporter of the Union and his support for the Union was well known to Respondent. Skelton was given a warning 2 days after the Union renewed its organizing efforts at Respondent. Skelton was the indi- vidual who initially sought out the Union and later (in 1985) sought to have the Union renew its efforts at Re- spondent. Skelton had previously (9 January) filed an unfair labor practice charge against Respondent. Al- though that case was settled, it was not settled before Skelton appeared, at the designated court facility on the assigned trial date (16 January) ready to testify. Various management officials were present at that scheduled trial. All the above factors persuade me the General Counsel has established a prima facie case.38 As the General Counsel has established a prima facie case of unlawful motivation, the burden shifts to Re- spondent to demonstrate it would have warned Skelton on 21 May even in the absence of his protected conduct. For the following reasons, I find Respondent has clearly demonstrated it would have taken the action it did even in the absence of Skelton's protected conduct. Skelton's discipline was not as new or different as the General Counsel would imply. - DOT Coordinator Smith had counseled employee Gates for making logbook entries on the sleeper berth line prior to the advent of the Union's 1985 campaign at the Company. Thus demonstrating the Company had commenced to correct this particular, type DOT rule infraction prior to the Union's most recent campaign. Furthermore, Smith's explanation for giving Gates a counseling39 instead of a warning is logical and credible. It is very apparent that Respondent did not do well in its DOT audit that took place from January to April, and as such, it issued new or at least more careful- ly detailed guidelines with respect to logbook entries 38 See fn. 23 39 It appears "counselings" are a part of the Company's progressive disciplinary procedures LEWIS GROCER CO. with a view toward precluding further DOT violations, which if they occurred were going to be costly to Re- spondent. These new or more carefully detailed guide- lines issued on 15 April and Gates' infraction occurred on 19 April. Therefore, I find Smith's explanation that he counseled rather than warned Gates to be reasonable. On the other hand, Skelton had previously been placed on notice that his logbook entries regarding sleeper berth time were in violation of DOT regulations, nonetheless, he continued to make such logbook entries. Skelton did not make the entries in ignorance of DOT requirements because he stated he knew he was legally supposed to log on the "off duty" line when he took a break in a conventional nonsleeper-type tractor unit such as the one he drove. The evidence is quite convincing Skelton had little, if any, regard for DOT regulations because he re- ceived two warnings (the second one for driving in excess of 60 hours in 7 days) on 21 May for DOT viola- tions and the General Counsel does not contend Re- spondent violated the Act in any manner by giving Skel- ton the second warning on 21 May. The General Coun- sel's contention Skelton was treated differently from other employees because "both Skelton and Jack Watts ... had logged this way for a number of years" does not withstand close scrutiny. Driver Watts testified he logged off time on the sleeper berth line from approxi- mately 1978 until 1981 but had after that time, logged off time on the off-duty line. Watts testified that even during part of the time that he logged on the sleeper berth line, he was actually driving a sleeper berth equipped truck. Watts testified he had not logged any time on the sleeper berth line since Williams became director of transporta- tion at Respondent. In summary, I conclude that Respondent, after being audited by DOT, made an increased effort to eliminate rule infractions and, in doing so, counseled or warned drivers about items such as ' incorrect sleeper berth log entries. Respondent first verbally warned,Skelton about his logbook infractions and then issued him a written warning after he knowingly continued to violate DOT requirements regarding sleeper berth entries. I am fully ,persuaded Respondent would' have given Skelton the 21 May warning in issue even if 'he had not engaged in any protected 'activities or filed an unfair labor practice charge agaGinst Respondent. Accordingly, I recommend that the ' allegations that Respondent violated Section 8(a)(1), (3), and (4) of the Act by issuing Skelton a writ- ten warning on 21 May be. dismissed. Director of Transportation Williams testified that ap- proximately 1 week after he issued Skelton a' warning for violating DOT requirements,' he received a memorandum from Night Dispatcher Jefferies that pertained to Skel- ton.40 As a result of the memorandum, Williams ob- 40 Jefferies' memorandum dated 28 May reflects Skelton "checked in" with Jefferies on a return trip but in doing so left his "paperwork" for Jefferies on the counter and walked away The memorandum also reflects dispatcher Jefferies, after noticing Skelton had not entered a route number on his logs, tried to get Skelton to come back and do so Skelton would not (R. Exh. 16) I place no reliance on Skelton's testimony that he could not recall Jefferies saying anything to him about his logs on 28 May. 173 tamed, Skelton's trip logs for the period of 22 to 27 May and immediately noticed Skelton had not been timely turning in his logs .41 Williams stated he noted-there were no route numbers on the logs as required by DOT regulations, Section 395.8(o).42 Williams said he also noted Skelton had gone to the "off duty" line on his logs on four occasions on 24 May without calling in to the dispatcher for permission to do so.43 Williams said he noticed Skelton had not reflected any unloading time at two stops (Bald Knob and Vilonia, Arkansas) on 24 May.44 Williams further noticed Skelton had been on duty and continued to drive after 15 hours without taking an 8-consecutive hour break .45 Finally, Williams 41 Skelton acknowledged he could have turned in some of the logs in question earlier than he did, but stated he did not do so because Assistant Director of Transportation Spurlock had told him to keep the logs and turn them all in at once Spurlock denied telling Skelton to hold his logs and turn them in at- one time. I credit Spurlock's denial because I find it unbelievable that the assistant director of transportation would tell Skel- ton, or any other employee, such as Rodgers, to hold their logs is viola- tion of DOT requirements particularly when Respondent had just in- curred 500 DOT violations and was making every effort to correct the situation. 42 Williams stated Jefferies was attempting to have Skelton add the route numbers to his logs when he turned them in so Respondent would not be in violation of DOT requirements 43 Skelton acknowledged he did not call in to request permission to go off, duty. He stated he had never been required to do so in the past. Skel- ton denied ever receiving Williams' memorandum dated 15 April cap- tioned "DOT Compliance." He stated he believed he read a part of Wil- liams' other 15 April memorandum captioned "DOT Hours of Service," however, he said he did not read the second paragraph that dealt with contacting the dispatcher for permission to go off duty except for meals and 8-hour breaks. At trial Skelton claimed he did not know about having to contact the dispatcher simply to go off duty, Howevei, when confronted with his pretrial Board affidavit dated 18 June, he acknowl- edged he had read the memorandum and further acknowledged he had stated the following in his pretrial Board affidavit. I have just been shown another letter by the, Board dated April 15, 1985, signed by Don [Williams] I have seen and read this letter before. I believe that it was in my box. This letter concerns calling in and not logging on the top line without permission. I feel Like' this letter is wrong because ' if' I stop by the side of the road and go to sleep in the truck for a couple of hours I dbn't feel that I should have to call in to the dispatcher . I just felt that the April 15 letter was wrong and I did not feel that I should have to call in to get permission from the dispatcher because I wanted to go off duty. When I am driving I feel that I should have some say so about what I am doing. Even after the April 15 letter I did not ever' call in and get permission to go off duty I feel that Williams is using the DOT rules'as a way to get rid of me and other drivers who are supporting the union . . . I feel that is kid stuff and idiotic for a' driver to have to call in before going off duty -'... [R. Exh. 10.] Skelton testified he did not agree with the call in procedure and did not follow it. 44 Skelton acknowledged he had not reflected the time he spent un- loading his truck at those two locations as "on duty time'." Skelton also acknowledged he had not logged the time he spent switching a trailer on 24 May in Little Rock, Arkansas, as "on duty time," but rather logged it as "off duty time." Skelton admitted he never at any time sought permis- sion to go to "off duty" status. 4s DOT regulations state a driver must have 8 hours off-duty before driving again if the driver has driven for 10 hours or has been on duty 15 or more hours (R. Exh. 9) Skelton stated that to his knowledge the 8- hour break did not have to be taken at one time. I am persuaded Skelton knew the DOT requirements and was specifically aware that the 8-hour break had to be 8 consecutive hours I am so persuaded because Skelton stated he knew DOT requirements and he had signed for a copy of the DOT manual when he was disciplined by Williams on 21 May foi DOT rule infractions 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also noted Skelton had been on duty for 24 hours on 27 May without taking the DOT required 8-consecutive- hour break. Williams testified that after he reviewed Skelton's logs he discussed his violations with President Burwell, Di- rector of Warehousing and Transportation Patterson, and Director of Personnel Gaston. A decision was made by them to terminate Skelton and Williams stated he pre- pared a termination notice for Skelton because: [He] had already received his final warning for DOT violations and was told at that time that the Company could not accept any more violations from him in reference to DOT because of the agree- ment [the Comany] had . . . with DOT. [Tr. 574.] The termination notice reflected Skelton was discharged for violating DOT rules and regulations. The notice in part reflected, On 5-27-85 you turned logs in for 5-22, 5-23, 5-24, 5-25, 5-26 & 5-27-85 in violation of DOT & com- pany rules. On 5-23-85 you left without turning in your log for 5-22-85. On 5-24-85 you logged on the top line off duty 4 times in violation of DOT regulations. On 5-24-85 you continued to drive after being on duty 15 hours. You continued to work and drive up to 19 hours on duty on 5-25-85. You came back on duty @ midnight with only 7 hours off duty and started to drive in violation of DOT rules and requirements . Your flagrant disre- gard for DOT rules and regulations can cause irrep- arable damage to Lewis Grocer Company's ability to operate. Skelton testified Williams called him at his home on 29 May and told him he wanted to see him in his office. Skelton stated he had an idea what Williams wanted to see him about. Williams testified he and Director of Personnel Gaston met with Skelton and discussed with him the reasons for his discharge. Skelton did not say much during the meet- ing but did refuse to,turn over his company identification card, credit card, and locker keys even though he was asked to do so. The General Counsel urges that all the reasons given by Respondent for the discharge of Skelton were pretex- tual and that the real reason he was discharged was his protected activities . The General Counsel acknowledges Skelton violated the Company's rule about calling in to obtain permission to go off duty , but asserts DOT Coor- dinator Smith did not tell Skelton he had to call in to get permission to go off duty when he warned him on 21 May. He also contends others violated the call-in rule and were not disciplined. The General Counsel asserts Respondent must have known Skelton logged off-duty time without permission because he had done so for years. The General Counsel also contends Skelton was the first employee disciplined for failing to call in for permission to go off duty thus demonstrating Respondent was unlawfully motivated in disciplining him for that of- fense. The General Counsel argues that although Skelton "clearly" violated DOT regulations when he drove in excess of 15 hours without an 8-hour break that he was treated differently in that others did likewise and were not disciplined. The General Counsel asserts Respond- ent's contention that it had to crack down on DOT vio- lations after it was audited is without merit . In this regard, the General Counsel contends Respondent has condoned, and continues to condone, DOT violations. The General Counsel argues that Respondent 's disciplin- ing of Skelton for not timely turning in his logs is pretex- tual because Skelton had been told by Assistant Director of Transportation Spurlock not to submit his logs timely. The General Counsel further argues that Respondent, after the fact, seized on Skelton's failure to put route numbers on his logs in order to discipline him and in so urging the General Counsel `points to the fact that Wil- liams did not list that as a reason for Skelton's discharge on his discharge notice. Finally, the General Counsel contends the fact that Skelton falsified his logs on 24 May by logging as "off duty" time that he was actually working (unloading groceries and switching trailers) cannot be considered a valid basis for disciplining him because Williams had told Skelton to log portions of his unloading time as "off duty time." Respondent contends Skelton had been previously warned and that he continued to knowingly and deliber- ately violate company rules and DOT regulations and as such was discharged . Respondent asserts Skelton actually committed each rule infraction he was accused of not- withstanding the fact he was fully aware of all proce- dures regarding drivers' logs, hours of service, and DOT requirements. Respondent further contends other drivers were disciplined for violating company rules and urges there is no showing that it was aware of any driver vio- lating DOT requirements without being disciplined. Re- spondent asserts the evidence clearly demonstrates that Skelton's discharge was for nondiscriminatory reasons and urges that the complaint allegations related to Skel- ton's discharge be dismissed. 1 find the General Counsel has met the Wright Line, supra, burden of establishing a prima facie case with re- spect to the discharge of Skelton. I do so for the same reasons I outlined relating ' to the warnings he was given on 21 May. I find Respondent has demonstrated its reasons for dis- charging Skelton were not pretextual and that it would have discharged him even in the absence of any protect- ed conduct on his part. A careful examination of the General Counsel's contentions show they are without merit. First, the fact that Smith may not have mentioned to Skelton that he had to call in and obtain permission to go off duty is of no great moment because it is without question that Skelton knew he had to do so. Skelton ac- knowledged he was aware of that requirement but stated he thought it was "kid stuff," "idiotic," and "wrong." Skelton did not agree with the procedure of having to call in to go off duty and as such he did not do so even after he had read Director of Transportation Williams' 15 April memorandum directing that he do so. Personal feelings that company rules or DOT regulations are "kid stuff' and "idiotic" does not relieve an employee of the obligation to follow such regulations . Second, although LEWIS GROCER CO. 175 the General Counsel was able to establish from subpoe- naed documents 31 instances in which drivers had gone off duty without any indication they sought or obtained permission to do so, he was unable to show that manage- ment was aware of any of these instances. Although the dispatchers are, as ' the General Counsel suggests, re- quired to check the logs, they are not supervisors within the meaning of Section 2(11) of the Act. There is evi- dence to indicate that in those instances when Respond- ent knew of rule infractions related to logging off duty it took action. Respondent, for example, issued a counsel- ing to driver James Lewis on 2 April and to driver Rich- ard Taylor on 4 April for off duty logging violations. These actions obviously took place before Skelton was disciplined. The record also discloses that after Skelton was discharged, Respondent issued counselings to six drivers, three of whom had gone off duty without call- ing in prior to Skelton's discharge, and the other three were counseled for infractions that occurred after he was discharged.46 During July, August, and September Re- spondent issued five warnings to employees for going off duty without calling in for permission to do so. The evi- dence establishes that Respondent disciplined, in some manner, all drivers that it was aware of that violated its call-in rule regarding going off duty. The evidence is ir- refutable that Skelton knew of the requirement to call in before going off duty and that he willfully and deliber- ately did not do so. The fact that some employees only received a counseling for the same offense Skelton com- mitted does not, in my, opinion, establish disparate treat- ment because there is no showing that any of the other employees had already been given a final warning at the time they were counseled about logging off duty without permission. The fallacy in the General Counsel's conten- tion that Skelton was unlawfully singled out because he was the first driver to be disciplined for failing to call in for permission to go off duty is demonstrated by the fact employees had only been required to do so since April. The requirement came about as a result of the settlement agreement Respondent reached with DOT. Therefore, no history of prior warnings for that type offense existed. Additionally, logging off duty without permission was not the only DOT rule infraction for which Skelton was discharged. The General Counsel has failed in her effort to estab- lish that Skelton was treated in a disparate manner re- garding his being disciplined for working more than 15 hours without taking a required 8-consecutive-hour break. Respondent issued 15 counselings to drivers for violating the 15-hour requirement prior to the date it dis- ciplined Skelton. It issued two other drivers warnings for violating the 15-hour rule on the same day (29 May) that it issued Skelton his warning. Respondent has issued at least 11 warnings to drivers for violating the 15-hour rule since it discharged Skelton. The evidence is over- whelming that Respondent has, since it was audited in 46 Respondent explained that certain instances of rule infractions were brought to its attention by the, Board during the Board's investigation of the instant case, and that, also as a result of the Board's investigation, some warnings were changed to counselings so that all employees would be treated the same. April, consistently taken action against any known viola- tors of the DOT 15-hour rule.47 The General Counsel's contention that Respondent condones DOT violations is without merit and warrants little discussion. It is clear Respondent has been, and continues to be, deeply concerned about DOT violations. Respondent has taken various actions designed to reduce or eliminate DOT violations. It'has hired new personnel as well as reassigned others in order to help bring the Company into compliance with DOT requirements. The Company fully understands that if it continues to violate DOT regulations it is going to be fined $1000 per viola- tion. The General Counsel's contention that Skelton did not have to-turn his logbooks in timely because he had been told not to do so is refuted by the credited testimony of Assistant Director of Transportation Spurlock. The Gen- eral Counsel's contention that Skelton could falsify his logs, as he admittedly did on 24 May, because he had been told he could log in that manner is totally unbeliev- able.48 I find no merit in the General Counsel's contention that Respondent added, as an afterthought, to its reasons for discharging Skelton that he had not listed route num- bers on his logs. It was Skelton's failure to place route numbers on his logs that brought'about the scrutiny of his paperwork,' which in turn lead to his discharge. In light of the above, I am persuaded Respondent has demonstrated it would have discharged Skelton for his DOT rule violations, which violations occurred after he had been given a final warning, notwithstanding any pro- tected conduct on his part. Accordingly, I recommend that the 8(a)(1), (3), and (4) allegations relating to Skel- ton's discharge be dismissed. E. The Disciplinary Warnings Given Taylor It is alleged, at paragraph 12 of the complaint, that Re- spondent about 24 May and 19, July, in violation of Sec- tion 8(a)(1), (3), and (4) of the Act, issued disciplinary warnings, to employee Taylor because of his union and concerted activities and because he gave a statement to the Board and appeared at a Board hearing to testify. Respondent commenced to install computers in its trucks in approximately mid-1984. As is noted elsewhere in this decision, the computers were initially installed to enhance Respondent's transportation dispatching system; however, they were later used primarily to assist Re- spondent in its efforts to comply with DOT regulations. Director of Transportation Williams held a meeting with the drivers and instructed them in the use of the comput- ers.49 Williams explained that various items of informa- 44 The fact the General Counsel established that between 26 April and 31 May three drivers drove in excess of the 15-hour limit and were not disciplined does not establish a showing of disparate treatment because there is no indication Respondent knew of the three drivers' actions. As Williams testified, he as well as others in management checked the logs, but their checks did not involve a total examination of all logs. 48 1 simply do not believe the director of transportation for a company with as many DOT violations as this one would tell a driver to falsify his logs particularly, when the director was under orders from the president of the Company to correct all DOT violations. 49 Taylor acknowledged he attended such a meeting with Williams and other drivers 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion would be entered in the computers such as the driv- er's identification code, stops, state line crossings, and when a truck is returned to the warehouse.50 When each truck is returned to the warehouse, it is, while at the entrance gate, connected to the Company's central computer and the information from the incoming truck is retrieved at that time. On 14 December 1984 Director of Transportation Wil- liams issued a memorandum to all drivers captioned, "Tractor Computer Instructions."51 The memorandum explained in some detail how to utilize the computer and it further divided computer input requirements into weekly divisions with certain functions to be completed the first week and so on thereafter until the drivers became familiar with operating the computer terminals in the trucks. One of the subject matters covered in the memorandum pertained to accidents. That portion is as follows: Accident Reporting: After an Accident and before the vehicle is moved or started. (a) Press MODE (b) Wait 3 seconds and PRESS 911 (c) Press the ENTRY KEY [G.C. Exh. 9] When mode 911 is entered in the truck's computer, it records the last 30 seconds of the vehicle's movement second by second. For the computer to record that par- ticular information, mode 911 must be entered after the accident but before the vehicle is started or moved. One of the Company's drivers, Robert Martin, had an accident in April while transporting a forklift from one of the Company's warehouses to another. Management believed Martin had been operating his vehicle in a reck- less and speeding manner . However, it could not prove that, because mode 911 had not been entered in the com- puter by the driver involved. Director of Transportation Williams reevaluated the instructions he had given the drivers regarding mode 911 and determined he had only informed the drivers about how and when to enter that particular mode but he had not made it a mandatory re- quirement. Therefore, on 12 April, Williams issued an- other memorandum to all drivers as well as shop person- nel on the subject of accidents and the use of mode 911. The memorandum stated:52 Effective immediately is a COMPANY POLICY that "MODE 911 "be executed after any and all ac- cidents before the tractor is moved. (a) Press Mode (b) Immediately Press 911 so Even if a driver did not make any entry in the computer , it auto- matically recorded the vehicle's speed as well as all starts and stops 51 Taylor acknowledged receipt of this memorandum. 52 Although Taylor testified he could not remember receiving this 12 April memorandum, I am persuaded he in fact did receive it The memo- randum was addressed to all drivers and there is no evidence to indicate it was not in fact distributed to all drivers . In fact, there is evidence that others did receive the memorandum. I have addressed Taylor's overall credibility elsewhere in this decision. (c) Press the Entry Key The driver is to perform this function before leav- ing the cab if possible. The shop is to perform this when they handle an accident before moving the tractor regardless if the driver has already done so. The shop when handling the authorization to tow or move a wreck is to instruct the wrecker service to perform this function. [G.C. Exh. 7.] As has been alluded to elsewhere in this decision, Direc- tor of Transportation Williams issued yet another memo- randum on 22 April regarding accidents (G.C. Exh. 24) in which he set forth the Company's "new" policy con- cerning accidents.S2 A point system for chargeable acci- dents was outlined in detail in the new policy memoran- dum.54 Taylor, a truckdriver for Respondent for 15 years, is and was at all times material supervised by Director of Transportation Williams. Taylor was one of five employ- ees listed on a notice posted at the warehouse in January 1984 regarding "The Lewis Employees Achievement for Better Government Committee." As is noted elsewhere in this decision, that committee later became the spring- board for the Union's 1984 organizing drive at Respond- ent. Taylor served as a union inplant committee member in the 1984 campaign. Pursuant to a subpoena, he attend- ed a representation hearing held in 1984 and served as an observer for the Union at the Board election held in June 1984. Taylor was, pursuant to a subpoena, present at the scheduled unfair labor practice trial in January in- volving Respondent.55 Taylor showed his subpoena to Assistant Director of Transportation Spurlock prior to the scheduled January trial. It is undisputed that in March Taylor was involved in an incident while driving for the Company in LaFitte, Louisiana.56 Taylor acknowledged that in attempting to turn his tractor-trailer around, he became stuck in a woman's yard and had to have a wrecker free his unit from the yard. Taylor testified he was not given a warn- ing for that incident because it was not a chargeable ac- cident.57 However, he acknowledged the incident result- ed from negligence on his part. When Taylor told Wil- liams about the incident, he told him he had been asleep behind a store and when he commenced to drive he was still sleepy and made a wrong turn causing ' him to be headed in the wrong direction and when he realized that 53 The newly announced policy reflects it had been studied by both management and the Driver Safety Committee. 54 Director of Personnel Gaston credibly testified he was involved in the warnings given to employees for various infractions of company rules. Gaston stated the Company changed from issuing drivers a charge- able letter, if they were involved in an accident, to a warning notice based on the new point system and he stated the Company made that change in April to coincide with the new point system for' chargeable ac- cidents ss As noted elsewhere in this decision, that Board case was settled. Several management officials were present in the courtroom on the morning of the scheduled trial. ,96 At one place in the record, the location of the incident is reflected as Lafayette, Louisiana For the purposes of this case, I find it is unneces- sary to determine which city the incident actually took place in 57 Accidents are reviewed by the Driver Safety Committee (described elsewhere in this decision) to determine if they are chargeable LEWIS GROCER CO. fact, he attempted to turn around and it was at that time that his vehicle became stuck in the woman's yard.58 On 22 May, while on Texas' Highway 29 in route south from Shreveport, Louisiana, to Palestine, Texas, Taylor was involved in a one vehicle accident. The high- way where the accident occurred is straight, four-laned, marked, and blacktopped. The accident occurred at ap- proximately 10:58 a.m., on a clear day. Taylor was driv- ing in the outside lane when he "bumped"59 the shoul- der of the road. Taylor drove along the shoulder of the road for approximately 140 feet trying to bring the vehi- cle back onto the highway. One of the truck's wheels hit a "soft"6° spot and Taylor lost control of the vehicle. It went down an embankment toward some trees. The truck missed the trees but struck a Panola Electric Coop Power pole and clipped it off. The vehicle then proceed- ed back up the hill, crossed the four-lane highway, and came to rest partially in the highway on the outside lane of the northbound traffic.61 When Taylor got out' of his vehicle, he stated he was "a little woozy" and his legs were bruised but he directed traffic around the south- bound lanes because they were covered with fallen elec- trical wires. According to Taylor, the grass along the highway and down the embankment was on fire as a result of the downed electrical wires. Taylor testified he had not fallen asleep at the time of the accident. Taylor did not at any time enter mode 911 in the truck's computer. Taylor stated he did not do so because he did not have time nor did it occur to him to do so. Taylor also stated the Texas highway patrol person had him sit in the patrol car for a while after he arrived at the accident scene. The patrol person had a wrecker dis- patched and moved the Company's truck out of the 58 Taylor denied telling Williams anything about the March Louisiana incident I do not credit Taylor's denial. At any place when Taylor's tes- tirpony is contradicted by that of other witnesses, I have rejected his tes- timony. Taylor made far too many unbelievable statements for any reli- ance to be placed on his testimony. For example, he stated he had no recollection about whether Williams had asked hurt about why he had the accident in May in Texas. I am fully persuaded that an experienced transportation director such as Williams would have asked Taylor why he had the accident and I am persuaded 'Taylor misspoke the truth when he said he did not recall Williams asking him that question . Taylor's testi- mony, that when Williams talked to him about the Texas accident that he just said he was going to write him up for failing to use mode 911, with- out first discussing it with him, is likewise unbelievable. I find unusual and unbelievable Taylor's testimony that the investigating Texas highway patrol person told him he was going to give him a traffic citation but was going to mail it to him. I likewise find it very suspicious that Taylor could 'never produce a copy of that citation even though he was asked several times to do so. Without a copy of the citation; one can only spec- ulate about what may have been written thereon. Taylor's denial that he was not alert at the time of the Texas accident is not supported by the report of the accident made by the Texas highway patrol person inas- much as the patrol person wrote that in his opinion "driver fatigue" was a contributing factor to the accident Taylor's testimony that he thought he had to enter mode 911 within 3 seconds of the accident is contrary to the oral and 'written instructions that had been given to all drivers. All the above reasons, as well as my observation of Taylor as he testified, convinces me that his testimony is not reliable 5' Taylor testified he had no idea what caused him to "bump" the side of the road. 80 According to Taylor, the soft spot had been caused by an earlier ram shower. 51 Taylor estimated his speed at the tune of the start of the accident at 55 miles per hour. 177 highway.62 Approximately $5500 in damages resulted from the accident. Taylor returned to Respondent's warehouse on 24 May and met with DOT Coordinator/Safety Director Smith. Taylor told Smith about the accident and Smith prepared a company vehicle accident report. After Taylor met with Smith, he then met that same day with Director of Transportation Williams. Williams credibly testified that' before he spoke to Taylor, he had the computer checked in Taylor's truck because it was his policy to check for mode 911 informa- tion63 after an "extraordina"ry" or "unusual" accident. Williams learned Taylor had not entered mode 911 in the computer after his accident. Williams met with Taylor about the Texas accident and Taylor attempted to describe it for him.64 Williams prepared a drawing of the scene of the accident from Taylor's description of it.65 Williams asked Taylor what caused him to have the accident. Taylor was reluctant to answer that question so Williams repeated it several times. Taylor's only response was to look at Williams and ask why he was questioning him about the accident. Williams also asked Taylor why he had not entered mode 911 in his computer. Taylor told Williams he could not do so because the Texas highway patrol person in- vestigating the accident made him wait in the patrol car.63 Williams asked Taylor if he 'had gotten a traffic citation. Taylor told him he had but the patrol person was going to mail it to him. Williams told Taylor that was a "rather unique and different" way for a patrol person to issue a traffic citation and asked Taylor, to bring the citation in when he received it. Taylor never at any time produced the traffic citation. Williams issued Taylor a written warning for failing to follow instructions, "failed to punch accident reporting code on computer as instructed." Taylor read but re- fused to sign the disciplinary warning. On 20 June Taylor filed his unfair labor practice charge (Case 26-CA-11165) that was consolidated with the other charges that form the' basis for the complaint, The Driver Safety Committee determined that Tay- lor's accident in Texas was a chargeable one and he was assessed six points pursuant to Respondent's point system. On 19 July Safety Supervisor James Hudgins showed Taylor a "Constructive Advice Action" docu- ment that reflected he had been assessed six accident-re- lated points. Taylor testified he did not know the docu- ment was a "warning." On cross-examination, Taylor stated the word "warning", was not checked on the con- 62 Taylor stated he did not notify the Company to have them contact a wrecker service because the patrol person would not allow the vehicle to remain in the highway 8S As is noted elsewhere, if mode 911 is entered in the truck computer after an accident but before the vehicle is started or moved, it will reflect the last 30 seconds of the vehicle's movement second by, second. 64 Williams impressed me-as a truthful witness. I credit his account of his meeting with Taylor. For the reasons previously indicated, I do not credit Taylor's testimony. es Taylor's description to Williams essentially followed what has been set forth earlier in this decision and will not be repeated ,here. ss Williams stated Taylor did not mention that he had directed traffic for a while at the scene of the accident 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD structive advice action document when Hudgins showed it to him.67 The General Counsel contends the warnings given Taylor on 24 May and 19 July were given to punish him for his activities on behalf of the Union and because he participated in a Board investigation. In support of these contentions, the General Counsel claims Taylor's acci- dent occurred only 3 days after the Union began its 1985 campaign and asserts the only thing "unusual", about his accident was that the Union had begun its new campaign and Respondent knew Taylor would be a union organiz- er. Additionally, the General Counsel contends Taylor was given the first warning ever for failing to enter mode 911 in his truck notwithstanding the fact that many drivers had had accidents and many did not use their computers at all. The General Counsel also asserts there were 26 chargeable accidents between 12 April and 27 August and none of the drivers involved were charged with a failure to enter mode 911 in their truck's comput- ers: From these contentions, the General Counsel asserts that Taylor, a union supporter, was issued warnings for the same type rule infraction that other drivers had com- mitted without being warned. The General Counsel claims the computers were only important to Respondent when they could be used to discipline union supporters. The General Counsel also asserts Taylor was the first employee to be given a warning for accumulating points based on his driving record. She acknowledges nine other employees were given warnings on the same day as Taylor and for the same type offense but she contends the other warnings were given in order for the Company to be able to further discipline Taylor.68 Respondent contends the situation involving Taylor was simply that he had an accident and failed to follow the mandatory company policy of entering mode 911 in his truck-mounted computer and was accordingly disci- plined. Respondent contends Taylor's accident was de- termined to be a chargeable one by the Driver Safety Committee and that in accordance with company policy he was issued a warning setting forth the number of points,he had been assessed for his chargeable accident. Respondent contends there is no showing that it treated Taylor in a disparate manner and as such it urges that the allegations relating to Taylor be dismissed. It is clear that Taylor was extensively involved in the Union's 1984, campaign. He attended a representation hearing and served as an observer for the, Union at the Board-conducted election in June of that year. It is un- disputed that he was present along with management of- ficials at a scheduled Board trial in January. Taylor at- tended the first of the Union's latest organizing meetings that was held on 19 May. It is undisputed Respondent knew beforehand that the 19 May union meeting would 67 I do not credit Taylor's testimony that the word "warning" was not checked on the document when he saw it. The document reflects, and Taylor acknowledges, he was assessed six points for the Texas accident. That type of document is normally used for warnings, suspensions, or dis- charge actions. I simply do not believe any management official (or anyone else for that matter) added a checkmark by the word "warning" after it had been shown to Taylor. 68 Although the General Counsel makes such a contention, she does not assert that Respondent acted unlawfully in issuing the nine other warnings. take place. Five days after the first union meeting of 1985, Taylor was disciplined. I am persuaded "the Gener- al Counsel has met her burden of establishing a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the Com- pany's decision to discipline Taylor. The Company knew of Taylor's earlier involvement with the Union and even knew when the first organizing meeting took place. The Company was well aware that Taylor had been a strong supporter of the Union in the -warehouse and as such it could reasonably expect that he would again be involved in the Union's latest campaign. Although there is no in- dependent evidence of animus in the instant case, the Board has held in Kenco Plastics Co., supra, that inde- pendent evidence of animus is relevant but not an essen- tial element of proof in finding a prohibited motive for disciplinary action. I am also persuaded Respondent met its burden of demonstrating that Taylor would have re- ceived the warnings he did even in the absence of any protected conduct on his part. First, I note the 24 May warning given Taylor was contemporaneous with the rule infraction he committed. The Company had a clear policy known to all drivers that it was mandatory that mode 911 be entered in the truck's computer after an ac- cident but before the vehicle was started or moved. Taylor did not follow that mandatory company policy. Taylor never at any time stated he did not, understand what was required of him with respect to making com- puter, entries in the event of an accident. Contrary to the contention of -the General Counsel, no unlawful motive can be drawn from the fact that Williams did not make a computer check. to see if mode 911 had been entered when, Taylor had his March accident in Louisiana but did do so when Taylor had his May accident in Texas. The requirement to enter mode 911 was not made man- datory, until 12 April. To assert, as the General Counsel does, that the only thing that was "unusual" about Tay- lor's May accident was the advent of the Union is to ignore the fact that the May accident in Texas happened on a clear day on a straight stretch of road without an apparent reason and caused in excess of $5000 in dam- ages. But for driver negligence, such an accident would not have occurred. Therefore, I am persuaded Respond- ent was justified in considering Taylor's May accident to be "unusual" or to have occurred under "extraordinary" circumstances. Accordingly, Director of Transportation Williams was justified in seeking information from the computer on the cause of the accident and an unlawful motive may not be inferred from the fact that he checked on Taylor to the extent of seeing if' he had en- tered mode 911 in the computer after the accident. The General Counsel contends the fact that many drivers did not use their computers and many had accidents demon- strates that Taylor was singled out for discipline because of his union activities. The General Counsel's conten- tions in this regard are without merit. Although several drivers (Louis Douglas, Efton'Oller,'Jack Watts, Larry Starnes, Ernie Skelton, and Johnny L. Dodd) 'testified they did not use'their computers, the evidence indicates their computers would have reflected their starts, stops, and idle time without any input from them. Even if a LEWIS GROCER CO. 179 driver did not normally use the computer in his truck, there is no showing that he would refuse to enter mode 911 after an accident. The General Counsel points out that between 12 April and 27 August, there were 26 chargeable accidents among the drivers and none of them were warned about failing to enter mode 911 in their truck computers. The General Counsel concedes, however, that there is no showing that any of these 26 drivers failed to enter mode 911 in their computers. The General Counsel requests that I infer they did not enter mode 911 because some of the drivers did not regularly use their computers. It would be nothing more than mere unfounded speculation for me to make such an inference, and I specifically decline to do so. The General Coun- sel's argument that Respondent seemed to only use the truck computers to discipline union organizers, such as Taylor, is not borne out by the record. I am fully per- suaded the computers were initially installed to enhance dispatching and were later utilized in an attempt to bring the Company into compliance with DOT requirements so as to prevent it from any further adverse actions by DOT. Respondent followed its established point system procedure when it gave Taylor the warning it did on 19 July in which it advised him of the number of points he had been assessed by the Driver 'Safety Committee for his May accident in Texas. Taylor knew of the point system and his accident was determined to be a "charge- able" accident by a' majority vote of the Driver Safety Committee. A majority of the members of the Driver Safety Committee are rank-and-file drivers. Nine other drivers received warnings on the same day (19 July) as Taylor in which they were apprised of the number of points they had been assessed for their chargeable acci- dents. The General Counsel contends these other nine warnings were given simply to enable Respondent to fur- ther discipline Taylor. I am unpersuaded.69 There is no showing that Taylor or anyone else was disciplined for any reason other than having been involved in a charge- able accident. It appears Respondent gave one employee, Jimmy Johnson, a warning on 10 June in which it ad- vised him his accident had been determined to be a chargeable one, assessed him 10 points, and suspended him for 3 days (G.C. Exh. 29(a)).70 Thus, Respondent had warned a driver on the new "Constructive Advice Action" form and utilized the new point system prior to Taylor being issued his points under the new system. Al, though the record discloses that two- drivers (James Curtis and Eddie Chandler) had chargeable accidents prior to 22 May and four (Frank Caldwell, Theo Wilson, Robert Thomas, and Frank Thomas) had, chargeable ac- cidents after that date and were not disciplined,' I am not persuaded these unexplained incidents establish that Tay- lor's 19 July warning was somehow unlawfully mOtivat- 69 I note the General Counsel did not allege in her complaint, nor did she move to amend the complaint at trial to include any allegations relat- ed to these other warnings. 70 I would discount this warning and find it was actually issued to Johnson on 19 July (G C Exh. 29(t)), however, Johnson signed both the earlier (10 June) and latter (19 July) warnings. I am fully persuaded that both pertained to the same 7 June accident but I am convinced Johnson was first notified on 10 June of the assessment of points against him or he would not have signed that warning notice. ed: Accordingly, in light of all the above, I recommend the complaint allegations related to the disciplinary warnings given-Taylor on 24 May and 19 July be dis- missed. F. The Suspension of Dodd? 1 It is alleged at paragraph 13 of the complaint that Re- spondent about 3 July in violation of Section 8(a)(1) and (3) of the Act issued a 3-day suspension to employee Dodd. Dodd has driven a truck for Respondent in excess of 20 years. At all times material, he worked for Director of Transportation Williams. Dodd was a member of the Union's organizing committee at the Company but there is no showing the Company had any knowledge of that fact until about 20 July when the Union sent a letter to the Company requesting that Dodd's and one other em- ployee's name be placed on the Union's "Inplant Com- mittee." On 14 May, Dodd delivered groceries to the Sunflow- er Grocery Store in Jackson, Tennessee. After leaving Interstate 45 enroute on a surface street to the store, an automobile passed Dodd's truck and immediately cut back in front of him. Dodd swerved and abruptly stopped his truck. Dodd stated, "I looked over in my mirror and I saw that my back wheel was up against a fire plug. The fire plug was standing, so I waited until traffic got around me so I could back up. I backed up, pulled off of the fire plug and went on to unload the truck."' Dodd did not get out of his truck to inspect the fire hydrant. He asserts he could not have done so from where his truck was parked. Dodd'did not report the in- cident because he did not feel there was anything to report. Dodd compared the incident to bumping a curb or running over a rock. Approximately 1 week after the incident, Dodd was in Nashville, Tennessee, in need of a freight backhaul so he called the warehouse and `spoke with DOT Coordi- nator/Safety Director Smith. During their conversation, Smith asked Dodd if he had knocked over a fire hydrant in Jackson, Tennessee. Dodd told Smith he had not. Approximately, 2 weeks after the Jackson, Tennessee incident, Dodd again telephoned the warehouse and this time DOT Coordinator/Safety, Director Smith told him to fill out an accident report when he returned to the warehouse. Dodd asked why and Smith told him the Company had received a bill from the city of Jackson, Tennessee, for damage to a fire hydrant.72 Dodd then told Smith, "Well, John, I bumped one, but I did not knock it over." Dodd also told Smith that as far as he knew, he had not damaged the plug. Smith told Dodd that maybe someone just wanted the Company to repair a fireplug., Dodd prepared an accident report on the Jackson, Tennessee incident when he returned to,the warehouse. 71 The facts set forth in this section have been compiled from those portions of the testimony of Dodd that I have credited and from Wil- liams' credited testimony 72 The bill for damage from the Jackson Utility Division of the Water Department of Jackson, Tennessee, was for $1082.38. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dodd stated that about 2 weeks after he filled out the accident report he began to hear rumors among the driv- ers that he had been charged with a chargeable accident. Dodd stated no one from the Driver Safety Committee73 ever informed him they were going to hold a hearing on his accident.74 Thereafter, Director of Transportation Williams told Dodd the Driver Safety Committee had determined that his 14 May accident was a chargeable accident and that he had failed to report the accident within 48 hours of the time it occurred. Williams told Dodd the committee had assessed him 20 points and that he would be given a 14-day suspension. Dodd told Williams he had not had any accident and therefore there had not been anything for him to report,75 Williams told Dodd that under the circumstances and knowing that he had never previously lied about anything he believed him when he said he did not know he had damaged the fire hydrant and as such he would talk to his peers about getting the penalty re- duced. ' Thereafter on 3 July, Dodd again met with Williams and Williams told him the Company had decided on a 3- day instead of 14-day suspension for him.76 Williams 78 The Driver Safety Committee is an established committee at the Company that has been in existence for a number of years. The commit- tee is composed of approximately six drivers and two company represent- atives. Among other things, the comnuttee reviews employee accidents to determine if they are "chargeable" or "nonchargeable" accidents. If it is decided that an accident is a chargeable accident, then the involved em- ployee is assessed a predetermined number of points with a correspond- ing discipline. According to Dodd, all decisions of the committee are made by majority vote. 7' Dodd, however, stated the committee did not invite involved dri- ers to its meetings when it was initially deciding whether a particular ac- cident was a chargeable or nonchargeable accident . Dodd served on the Driver Safety Committee for a number of years until he "just stopped" going to committee meetings. He stopped going about 6 months before the events herein took place. 75 Dodd acknowledged he had received a copy of Williams' memoran- dum to all drivers dated 22 April that outlined the Company's point system for chargeable accidents. Dodd was fully aware that the failure to report an accident within 48 hours constituted a 20-point safety violation Williams' memorandum outlined the following discipline based on the number of chargeable accident points: 12 points-93-day suspension 16 points-97-day suspension 20 points-l4-day suspension The memorandum reflects that all accidents would be reviewed. 76 Williams spoke with Director of Warehousing Patterson, DOT Coordinator/Safety Director Smith, Loss Prevention' Director Jump, Di- rector of Personnel Gaston , and President Burwell about Dodd 's situa-, tion. Smith and Jump recommended a 2-week suspension . Burwell and Gaston opposed any reduction in Dodd's discipline Patterson and Wil- liams prevailed and the discipline was reduced to 3 days because there was some feeling the incident had been reported but not according to the Company's standard reporting procedures . Gaston strongly objected to the decision to reduce Dodd's 14-d'ay suspension and he put his objec- tions in writing in a memorandum to Williams Gaston in his memoran- dum to Williams pointed out that the Company had discharged another driver for essentially the same thing that Dodd had done Gaston indicat- ed to Williams that he thought Dodd was receiving special favorable consideration and he adamantly opposed it. told Dodd the Company was being investigated by the Board, that he had to do something77 in order to be con- sistent, and that he had to treat 'everyone the same and fairly.78 The General Counsel has failed to establish a prima facie case' sufficient to support an inference that protect- ed conduct was a motivating factor in the Company's de- cision to give Dodd a 3-day suspension. See Wright Line, supra. First, there is no record evidence that Respondent had any knowledge of any union activity on Dodd's part prior to giving him a 3-day suspension. The General Counsel contends the motivating factor in Respondent's decision to discipline Dodd was the fact it was being in- vestigated at that time by the Board for alleged unfair labor practices. The General Counsel points to Williams' comment that he had to do something to Dodd in order to be consistent before the Board. However, when Wil- liams' comments are viewed in context, it is clear he simply told Dodd he, would under the circumstances do what he could to get Dodd's 14-day suspension reduced but the Company was undergoing an active investigation by the Board and he, would have to treat everyone the same and in a fair manner. The evidence in no way sug- gests the Company would not have disciplined Dodd at all if there had not been an ongoing Board investigation. The Company discharged employee Mosby for failing to report an accident prior to the incident involving Dodd. The Company continues to discipline employees such as Triplett and Rankin when they fail to report accidents, and it continues to reduce the length of time for suspen- sions, if there are extenuating circumstances. 79 Accord- ingly, I recommend the complaint allegations related to Dodd's 3-day suspension be dismissed. CONCLUSIONS OF LAW 1. The Lewis Grocer Company is an employer en- gaged, in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local 891 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. 77 Dodd was given a written warning dated 3 July, which carried with it a 3-day suspension effective 3, 4, and 5 July (G.C. Exh. 11). Dodd has received two other, warnings since 3 July-one for a logbook violation and the other for falsifying one of his logs. There is no contention that the latter two disciplinary actions were unlawfully motivated. 78 The record reflects three other drivers had' accidents and did not report them. McKinley Mosby had an unreported accident in March When the Company learned of Mosby's accident, he was terminated. Ed Triplett failed to report an accident in August, but because of question- able circumstances, he was only given a 3-day suspension. James Rankin was also given a 3-day suspension in August for an unreported accident The evidence reflects he backed into a dock door at a store where he was making a delivery and was told not to worry about it but the store later reported the incident to the Company. 79 Contrary to the contention of the General Counsel, Dodd's accident was more than a "nuisance" and more than just "bumping a curb." The amount of damages in the Dodd incident , $1082.38, defies such an argu- ment. LEWIS GROCER CO. 181 On these findings of fact and conclusions of law, and on the entire record, I issue the following recommend- ed6D ORDER The complaint is dismissed.