Red Arrow Freight Lines, Inc.

RED ARROW FREIGHT LINES Red Arrow Freight Lines, Inc. and Perry Wayne Middlebrook. Case 26-CA- 11970 June 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On August 31, 1987, Administrative Law Judge Richard J. Linton issued the attached decision. Red Arrow Freight Lines, Inc. (the Respondent) filed exceptions and a supporting brief; the General Counsel filed cross-exceptions and a supporting brief; and the Respondent filed an answering brief to the cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' only to the extent consistent with this Decision and Order. The judge concluded that the Respondent, in violation of Section 8(a)(3) and (1) of the Act, con- structively discharged Dennis Spruill after Spruill was assigned to the Respondent's Little Rock to Memphis freight assignment (Little Rock-Memphis run). The Respondent contends that Spruill's deci- sion to resign rather than accept the Little Rock- Memphis run was not foreseeable and, thus, it cannot be held responsible for Spruill's personal de- cision to terminate his employment. We find merit in the Respondent's exception. The Respondent is a Texas corporation engaged in the interstate transportation of freight by motor vehicle. It operates a terminal in Little Rock, Ar- kansas. On November 9, 1986,2 the Respondent violated Section 8(a)(3) and (1) of the Act when it laid off Perry Wayne Middlebrook in order to remove his pro-Teamsters union influence from the Little Rock terminal.3 Middlebrook was working ' The judge concluded that the Respondent did not effectively repudi- ate Penfield's unlawful "no solicitation" instructions under the standards articulated in Passavant Memorial Area Hospital, 237 NLRB 138 (1978) We agree with the judge The Respondent's "Notice to Employees," which was not posted until more than 5 months after Penfield's unlawful instructions, was untimely under Passavant Moreover, we note that under Passavant the attempted repudiation must be free from other proscribed illegal conduct and must be specific to the coercive conduct Here, inter alia, the attempted repudiation occurred in the context of other unreme- died unfair labor practices , specifically Middlebrook's unlawful layoff, and did not refer to or acknowledge Penfield's unlawful statements See, e g , EPE, Inc, 284 NLRB 191 fn 2 (1987), enfd 845 F.2d 483 (4th Cir 1988) 2 All dates are 1986 unless otherwise noted The Respondent has not challenged the judge 's conclusion that it violated Sec 8(a)(3) and (1) of the Act when it laid off Middlebrook 227 the Respondent's Little Rock-Memphis run at the time of the layoff. Once Middlebrook was laid off, it became necessary to assign another employee to handle this run. When no other employee indicated a desire to be assigned to the Little Rock-Memphis run,4 the Respondent, on November 14, selected Spruill, the junior unassigned driver. The uncontro- verted evidence reveals that under the collective- bargaining agreement in effect, a driver can be re- quired to take an assignment and, if he refuses, can be terminated. Spruill, who lives in Irving, Texas, did not learn of his assignment to take over the Little Rock- Memphis run until November 16, approximately 2 hours before he was scheduled to leave Little Rock for Memphis. Because he could not have traveled from Irving, Texas, where he was located, to Little Rock, Arkansas, in time for the start of the sched- uled trip, Spruill told the Respondent's representa- tive to have another driver handle the run. Spruill was told to contact Michael D. Rhodes, manager of Line Haul Operations, the following day. The credited testimony indicates that Spruill telephoned Rhodes the next day. When Rhodes in- structed Spruill to proceed to Little Rock to take over the assignment, Spruill refused, saying that he would quit rather than go to Little Rock. Rhodes asked Spruill to put his resignation in writing and Spruill agreed, but he never did. When Rhodes did not receive the anticipated written resignation, Rhodes sent Spruill a termination letter dated No- vember 19. In order to prove that an employee was con- structively discharged, the General Counsel must establish that the burdens imposed on the employee "must cause, and be intended to cause, a change in working conditions so difficult or unpleasant as to force [the employee] to resign" and that the bur- dens were imposed because of the employee's union activity. Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976). While acknowledging that Spruill's resignation was not a constructive discharge in "the usual sense," the judge in this case relied on Howard Johnson Co., 209 NLRB 1122 (1979), and found that "but for" Middle- brook's illegal layoff, Spruill would never have been assigned to the Little Rock-Memphis run and would not have subsequently resigned. This "domino theory," the judge concluded, established Spruill's "constructive discharge." We do not agree. 4 The Respondent "posted" the assignment to allow other drivers an opportunity to "bid" on it No employees, other than Middlebrook, bid on the assignment Middlebrook's bid was determined to be invalid by the Respondent 289 NLRB No. 23 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Howard Johnson, supra, the Board found that the employer violated Section 8(a)(3) and (1) when it laid off four nonunion employees in order to con- ceal the employer's unlawful motivation in laying off nine other union activists. The Board reasoned that the employer's action in laying off the four nonunion employees was "causally related" to the unlawful discrimination. In that case, however, it was clear the employer took direct action resulting in the employees' loss of their employment. In this case, however, while the record reveals that the Respondent had some difficulty in filling the Little Rock-Memphis run and that the assignment was not an especially profitable one for the driver as- signed, there is no evidence to suggest that the as- signment was particularly difficult or unpleasant or conditioned on an employee's abandoning rights guaranteed by the Act. Additionally, while called as a witness, Spruill never explained why he re- signed rather than accept the Little Rock-Memphis run. Thus, there is no evidence that it was foresee- able that Spruill would resign rather than accept the Little Rock-Memphis run. Cf. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 895 (1984); Maxi City Deli, 282 NLRB 742 (1987). We conclude that the Re- spondent did not violate Section 8(a)(3) and (1) when it accepted Spruill's resignation and we will dismiss that part of the complaint. AMENDED CONCLUSIONS OF LAW Delete paragraph 5 and substitute the following. "5. Respondent did not cause the termination of line driver Dennis Spruill in violation of Section 8(a)(3) and (1) of the Act." ORDERS The Respondent, Red Arrow Freight Lines, Inc., Little Rock, Arkansas, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Prohibiting employees from discussing the Union at times when they are not actually work- ing. s The General counsel requests a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order. Under the cir- cumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request See Cherokee Marine Terminal, 287 NLRB 1080 ( 1988). We amend the judge's Order and notice to employees to conform to our decision , correct certain inadvertent errors, and more closely address the violations found. Because Perry Wayne Middlebrook has consulted the bulletin boards in the McAllen and Dallas, Texas terminals, the Respondent shall post the notice to employees at those terminals, plus its Little Rock, Arkansas location, the location where Middlebrook was working when he was laid off. Contrary to the judge, however, we find no reason to order posting at the Respondent's San Antonio general office because no affected em- ployees are assigned there and no unfair labor practices occurred there (b) Laying off or otherwise discriminating against employees because of their activity on behalf of Teamsters Local 878 or any other labor organization. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Perry Wayne Middlebrook immediate and full reinstatement to his former job of the little Rock-Memphis run, but specifically to the position he would be holding absent the discrimination against him, revoking, if necessary, any conflicting assignments to other drivers or, if that position no longer exists, to a substantially equivalent job, without prejudice to his seniority or any other rights and privileges previously enjoyed. (b) Make whole, with interest, Perry Wayne Middlebrook for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner described in the remedy section of the decision. (c) Remove from its files any reference to the unlawful layoff and notify the employee in writing that this has been done and that the layoff will not be used against him in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facilities located in Little Rock, Arkansas, and Dallas and McAllen, Texas, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Re- gional Director for Region 26, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order that steps the Respondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " RED ARROW FREIGHT LINES IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United Stated Government The National Labor Relations Board has found that we violated the NationalLabor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT prohibit you from discussing the Union at times when you are not actually working. WE WILL NOT lay you off or otherwise discrimi- nate against you because you assist Teamsters Local 878 or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Perry Wayne Middlebrook im- mediate and full reinstatement to his former job of the Little Rock-Memphis run, but specifically to the position he would be holding absent the dis- crimination against him revoking, if necessary, any conflicting assignments to other drivers or, if that position no longer exists, to a substantially equiva- lent job, without prejudice to his seniority or any other rights and privileges previously enjoyed. WE WILL make Perry Wayne Middlebrook whole, with interest, for any loss of earnings and other benefits resulting from the discrimination against him. WE WILL notify Perry Wayne Middlebrook that we have removed from our files any reference to his layoff and that the layoff will not be used against him in any way. RED ARROW FREIGHT LINES, INC. Bruce E. Buchanan, Esq., for the General Counsel. Thomas E. Reddin, Esq. (Foster, Bettac & Heller), of San Antonio, Texas, for the Respondent. Perry Wayne Middlebrook, of Mission, Texas, for himself. DECISION STATEMENT OF THE CASE 229 RICHARD J. LINTON, Administrative Law Judge. We are here because Red Arrow Freight Lines laid off line driver Perry Wayne Middlebrook effective 9 November 1986 and terminated line driver Dennis Spruill 10 days later. The principal question is whether the General Counsel established a puma facie case. Answering that question yes, I find that Red Arrow and the Union of Transportation Employees conspired to lay off Middle- brook in order to remove his Teamsters union influence at Red Arrow's Little Rock, Arkansas terminal, and that the "domino" effect of Middlebrook's layoff resulted in the constructive discharge of Spruill. As alleged, I find that Red Arrow violated Section 8(a)(3) and (1) by the layoff and constructive discharge. I order Red Arrow to offer Middlebrook and Spruill reinstatement to the jobs they would be holding absent the discrimination against them, revoking, if necessary, interim assignments made to other drivers. This case was tried before me in Little Rock, Arkan- sas, on 29-30 April 1987 pursuant to the 6 March 1987 complaint issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 26 of the Board. The complaint, subsequently amended, is based on a charge filed 27 January 1987 by Perry Wayne Middlebrook (Middlebrook) against Red Arrow Freight Lines, Inc. (Respondent or Red Arrow). Middlebrook filed a first amended charge on 25 March 1987.1 In the complaint, as amended before and at the hear- ing, the General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act by promulgating and maintaining, since 1 October 1986, an overly broad no- union talk on company time, and since 20 April 1987, a rule prohibiting the posting of written material on com- pany property or bulletin boards without the permission of management. The complaint also alleges that Respondent violated Section 8(a)(3) of the Act on 6 November 1986 by laying off Middlebrook, and on 15 November 1986 by assigning Dennis Spruill to drive the Little Rock to Memphis run, and on 19 November 1986 by constructively discharging Spruill.2 The General Counsel alleges that Respondent took these actions in order to discourage its employees from supporting or joining the International Brotherhood of Teamsters. By its answer Respondent admits certain factual mat- ters but denies violating the Act. The General Counsel and the Respondent filed posth- earing briefs. Attached to the General Counsel's brief are a proposed order and a proposed notice to employees. Thereafter the General Counsel submitted a 24 June 1987 motion to strike portions of Respondent's brief or, in the alternative, "a motion [for leave] to file as a 3-page reply 1 This manner of setting forth dates complies with the wishes of the Board 2 All dates are for 1986 unless otherwise indicated 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD brief." Respondent also submitted a motion for leave to file its eight-page reply brief, dated 25 June 1987. The motions for leave to file are granted and as appears later, I have considered the motions and all briefs. Fruehauf Corp., 274 NLRB 403, ALJD fn. 2 (1985). As discussed in a moment, I grant the General Counsel 's motion to strike in a limited respect. Accompanying the General Counsel 's brief was a motion to correct three misspellings on four pages of the transcript. That unopposed motion to correct is granted. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following FINDINGS OF FACT I. JURISDICTION Red Arrow is an interstate common carrier of freight by motor vehicle. It has its headquarters (general office) in San Antonio, Texas (1:102; G.C. Exh. 4 at 1).3 A Texas corporation, Red Arrow also has offices or termi- nals in various cities in Arkansas, Texas, and Oklahoma, including Dallas, Houston, and McAllen, Texas. Re- spondent has been a wholly owned subsidiary of Caroli- na Freight Corporation since January 1984 (G.C. Exh. 4 at 1). The terminal involved here is the one at Little Rock, Arkansas. As stipulated by the parties, Respondent opened its Little Rock terminal in July 1986 (G.C. Exh. 3, No. 1). The pleadings establish that Respondent, during the 12 months ending in July 1987, will have derived gross rev- enue exceeding $50,000 in the operation of its interstate business from the Little Rock terminal. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. this domino effect caused Respondent to terminate Dennis Spruill on 19 November (1:14-15, opening state- ment, and 1:196). Respondent's countering position is that it laid off Middlebrook solely because it agreed with the UTE's in- terpretation of the collective-bargaining agreement that Middlebrook improperly was recalled in October from layoff and awarded the Little Rock position. Middle- brook's recall assertedly violated the contract's seniority provisions. When the UTE pointed out the discrepancy to Respondent, Red Arrow had no choice but to return Middlebrook to layoff status (1:15-19, opening state- ment). The General Counsel concedes that the case as to Spruill stands or falls with that of Middlebrook (1:208- 209). Red Arrow argues that Spruill's case should be dis- missed even if merit is found to Middlebrook's case for the reason that Spruill refused an assignment to the Little Rock-Memphis run and either quit or was terminated over that superseding event (Br. at 50). B. Background Since the 1950s Red Arrow and the UTE have had a bargaining relationship (1:41-42). With a term effective from 15 March 1985 through 15 March 1988, the current collective-bargaining agreement (CBA) provides in the first sentence of section 1 of the article on recognition (R. Exh. 3 at 1, art. 1): The COMPANY acknowledges the UNION as the exclusive bargaining agent for employees in the fol- lowing classifications: (1) Line Drivers, (2) Check- ers, Pickup and Delivery Drivers, Forklift Opera- tors, Non-Drivers, and Part-Time Employees in this classification, (3) Mechanics, Servicemen, and Part- Time Servicemen. II. LABOR ORGANIZATION INVOLVED Respondent admits by the pleadings, and I find, that International Brotherhood of Teamsters (International Teamsters) is a labor organization within the meaning of Section 2(5) of the Act. At the hearing Respondent, in answer to an amended pleading, admitted, and I find, that Teamsters Local 878 is a labor organization within the meaning of Section 2(5) of the Act (1:189-190; G.C. Exh. 15). The parties stipulated, and I find, that the Union of Transportation Employees (UTE) is a labor organization within the meaning of Section 2(5) of the Act (1:12). III. THE ALLGED UNFAIR LABOR PRACTICES A. Overview The General Counsel's theory on the principal issue is that Red Arrow unlawfully laid off Middlebrook on 5 November (effective 9 November) when it assertedly dis- covered he was assisting the Little Rock employees to join Teamsters Local Union 878. Middlebrook's layoff had a "domino effect" on other Red Arrow drivers, and a References to the two-volume transcript of testimony are by volume and page Joseph M. Chandler Jr., Respondent's vice president of industrial relations, explained that in some other com- panies the line drivers are called over-the-road drivers and the pickup and delivery drivers are known as city drivers (1:31-32). The latter sometimes are referred to in the record as local drivers or terminal drivers (1:94, 252). Respondent opened its Little Rock terminal on 21 July 1986 (G.C. Exh. 3). The terminal manager has been Alan Penfield (1:60). In its 25 February 1987 position letter to NLRB Region 26, submitted during the Region's investi- gation of Middlebrook's charge, Respondent asserts that it and the UTE have interpreted the contractual recogni- tion clause as extending to all terminals owned by Red Arrow, and that it has been their practice to treat new terminals as "accretions to the contractually established bargaining unit." (G.C. Exh. 4 at 3.) The 13-page posi- tion letter is signed by Respondent's counsel and verified by Chandler as "true and correct to the best of my knowledge and belief." (G.C. Exh. 4.) Middlebrook's original charge alleged assistance to the UTE at Little Rock in violation of Section 8(a)(2) of the Act. Respondent's position letter defends on several grounds including accretion and majority status, and that, in any event, the 27 January 1987 charge is time- barred under Section 10(b) of the Act. The first amended RED ARROW FREIGHT LINES charge omits the 8(a)(2) allegation, and the complaint contains no such allegation. As we shall see, Chandler testified that he was uncon- cerned about the Little Rock employees signing cards for the Teamsters because he viewed the Little Rock ter- minal as immune from such organizing under the Board's contract-bar rule (1:27, 43). That, in turn, is based on the accretion argument. Much of Respondent's position about accretion, and its argument on brief, is based on a lengthy treatment of the accretion matter in the 25 February 1987 position letter (G.C. Exh. 4) that Respondent submitted to NLRB Board Region 26 during the investigation of the charge filed in this case. None of the witnesses testified about accretion. By his motion dated 24 June 1987, counsel for the General Counsel moved to strike those portions of Re- spondent's brief relying on General Counsel's Exhibit 4 (Respondent's 25 February 1987 position letter) or, in the alternative, moved (for leave) to file his three-page docu- ment as a reply brief on the accretion matter. The basis of the General Counsel's motion to strike is that Re- spondent's position letter (G.C. Exh. 4) was offered by the General Counsel, and received in evidence, for the limited purpose of showing inconsistencies between fac- tual statements in that document and Respondent's evi- dence at the hearing (1:73, 76). Respondent's reliance, as to accretion, on the detailed statements (facts and argu- ment) in its 25 February position letter is improper, the General Counsel argues, because the statements (the fac- tual ones, at least) are hearsay. I agree, and I grant the General Counsel's motion to strike those references, which appear at pages 9, 10, and 42 of Respondent's brief, to the extent Respondent relies on them to estab- lish the truth of the facts asserted. I shall consider Respondent's accretion contention for the limited purpose of its argument that Red Arrow was unconcerned about the Teamsters' organizing at Little Rock because of the theory of contract bar. After all, Chandler testified, that was why he was not upset about the contents of Terminal Manager Penfield's Halloween report to Chandler, and why Chandler considered the matter a "non-event." (1:27, 43.) Chandler's testimony about contract bar also is reflected in a 12 November letter from Respondent's law firm denying the Team- sters' 4 November demand for recognition (R. Exh. 7). For this limited purpose, therefore, the accretion conten- tion expressed in Respondent's 25 February 1987 position letter to NLRB Region 26, although it expands on Chan- dler's contract-bar testimony, adds nothing to the sub- stantive evidence. Accordingly, I also accept the General Counsel's document as a reply brief. I shall return to the accretion subject later. Larry D. Wright, a business representative for the UTE, testified that in August, shortly after the Little Rock terminal opened, he visited with the newly hired employees, distributed copies of the CBA, and said he would not sign them as members until they had complet- ed their probationary period of 90 days (2:298-299). Al- though placing the event in September, local driver Roy Jackson confirms the substance of Wright's testimony (1:175, 177). He recalls that UTE President Jeff Saari ac- 231 companied Wright. Jackson also testified that when Pen- field hired him in August, Penfield showed him the UTE contract, stated that it covered Jackson, and stated that the new employees could sign union cards after their 90- day probationary period expired (1:176). In several ways Respondent distinguishes between its local and line drivers. One of the pertinent distinguishing features is the different supervisory chain. The local drivers and other terminal employees at Little Rock are under the supervision of Terminal Manager Penfield who in turn reports to Charles Schmidt, vice president of op- erations (1:63, 70). Schmidt apparently works at Re- spondent's San Antonio headquarters. Penfield has no au- thority over the line drivers (2:302-303). The line haul drivers are under the general direction of Michael D. Rhodes, manager of line haul operations, who works in Respondent's Dallas office. Reporting to Rhodes are several line haul supervisors and dispatchers (1:44, 61, 216-217). Vice President Chandler testified that Respondent has some 139 drivers currently on the se- niority list (1:31), and the 14 January 1986 seniority list (R. Exh. 6 at 10-13) names some 161 line drivers. The January 1986 seniority list is the one the parties relied on during the events giving rise to this case. Another relevant distinction between the local drivers and the line drivers exists under Red Arrow's seniority system. Consistent with the three classification groups in the unit description, the seniority list is divided into those three groups (R. Exh. 6). Line Haul Manager Rhodes confirms this (1:223-224). Rhodes also testified that although the line drivers have one seniority list for the entire Red Arrow System, the city (local) drivers have location seniority as well as systemwide seniority (1:227, 243, 255). The easiest way to describe or explain the line haul seniority system, Rhodes testified, is that the entire line constitutes one terminal (1:257). Middlebrook's home is in Mission, 6 miles from Re- spondent's terminal at McAllen in the Valley area of south Texas (1:82-83, 89, 121). He went to work for Re- spondent at the McAllen terminal on 17 July 1984 as a part-time city driver. That work, which included break- ing and loading freight, proved too much an aggravation on one of his legs which had been wounded while he was serving in the U.S. Marine Corps in Vietnam (1:83- 84, 123). Consequently, in April 1985 Middlebrook trans- ferred to the line driver classification working out of the Dallas office while living in Mission, Texas (1:84-85). By memo dated 22 September 1986 Line Haul Super- visor Claudie Marsh informed Middlebrook that because of "slack business" he was being laid off "effective Sep- tember 26, 1986." (G.C. Exh. 14.) Marsh concludes the memo by advising Middlebrook that when and if condi- tions permit, "you will be recalled from layoff." Al- though the memo had been mailed to Mission, Marsh gave Middlebrook a copy on Thursday, 25 September (1:85). 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. Perry Wayne Middlebrook 1. Middlebrook's Little Rock grievance During the initial months after opening its Little Rock terminal, Red Arrow used its city, or local, drivers at Little Rock to make daily roundtrips to Memphis, Ten- nessee (1:85, 218; G.C. Exh. 3, No. 2). It appears that Respondent has a related company with a terminal in Memphis (G.C. Exh. 4 at 10). Because Respondent uses the Memphis terminal as an agent only , Red Arrow does not assign drivers there (1:85). The one-way distance be- tween the terminals is about 140 miles (1:86). Article 54, section 3 of the CBA allows Red Arrow to use city driv- ers for runs within a 65-mile radius of origin (R. Exh. 3 at 126). Facing imminent layoff, and apparently aware that Re- spondent was using city drivers for the line haul between Little Rock and Memphis, Middlebrook went to UTE President Jeff Saari on Friday morning, 26 September, to file a grievance.4 Pointing out that he was entering layoff status that very day, Middlebrook asked Saari whether he would be able to bid on the Little Rock to Memphis run if the grievance proved successful and Red Arrow posted the run for bid. Saari said yes, adding that in a similar situation in 1974 he had successfully bid on a run even though employee Robert Rancher (apparently with more seniority) was still in layoff status (1:85-86, 139-140). Business Representative Larry D. Wright testi- fied that Saari has told him the same story (2:284-285). Although Saari's bid was under a prior contract, there is no evidence that the current contractual provisions were not the same then. Saari had a grievance typed on the spot (G.C. Exh. 7), Middlebrook and Business Representative Doug Deere signed it, and that very morning, 26 September, Deere and Middlebrook presented the grievance to Rhodes (1:87). Middlebrook returned to his home in Mission. Every week he would go to the McAllen terminal and check the bulletin board. Middlebrook's grievance was success- ful, for on 9 October Red Arrow posted ("bulletined") the Little Rock-Memphis run for bid (G.C. Exh. 3a at 2; 1:219, Rhodes). Middlebrook saw the posting and submit- ted his bid (1:89, 149). Rhodes testified that Middlebrook was the only em- ployee to bid for the Little Rock- Memphis run (1:220). According to Rhodes, Middlebrook's bid while in layoff status concerned Rhodes. There were other drivers on layoff who were senior to Middlebrook (1:220-221). Rhodes testified that he telephoned Vice President Chan- dler for clarification. Chandler informed Rhodes that Middlebrook would be the successful bidder because the other and more senior drivers in layoff status did not bid (1:226-228, 253-254). When the posting period expired, Red Arrow, on 16 October, assigned the Little Rock-Memphis run to Mid- dlebrook effective Sunday, 19 October (G.C. Exh. 3b). Checking the bulletin board at the McAllen terminal, Middlebrook learned that he had been the successful 4 The layoff was "effective September 26, 1986 " Middlebrook inter- preted the time to mean at the beginning of 26 September ( 1 88-89) bidder. On Saturday morning, 18 October, he left Mis- sion for Little Rock. Middlebrook stopped at Dallas to make certain he had not been bumped. When Supervisor Marsh said that as far as he could ascertain Middlebrook had not been bumped, Middlebrook continued on to Little Rock where he drove the Little Rock-Memphis run for several days until Rhodes, as we shall see, laid him off effective Sunday, 9 November, "due to business conditions." (1:90-94). 2. Middlebrook and Teamsters Local 878 Although a member of the UTE (1:120, 155), Middle- brook favors the Teamsters and has held a Teamsters card (1:123). He credibly testified that UTE President Jeff Saari and Business Representative Larry Wright have held several discussions on the topic in the past and that Saari and Wright are well aware of his preference and of his reasons (1:122). After arriving in Little Rock Middlebrook discovered that the city drivers were uninformed about Red Arrow's systemwide bidding procedure and unaware they could be bumped from Little Rock and have to take a position at some other terminal in Red Arrow's system. Since they had not signed with the UTE, Middlebrook suggested that they sign with the Teamsters. Because the city drivers feared they could be bumped to another city under the UTE contract, they told Middlebrook to con- tact the Teamsters (1:94-95, 171). Middlebrook contacted B. J. Alexander, an assistant business agent for Teamsters Local 878. Later Middle- brook was assisted in his organizing efforts by Jim DeNote, a line driver working from the pool board out of Dallas (1:96-97, 158). According to plan, on Friday, 31 October, B. J. Alexander arrived on Respondent's parking lot about 25 feet from the terminal . The time was about 6:30 p.m. Alexander began conversing with Middlebrook and the drivers who signed Teamsters cards on the spot. Two of the four or five city drivers present at the time were part-time drivers (1:97-101, 158-160). Middlebrook observed Terminal Manager Penfield come to the door and look out during the card signing. City driver Roy Jackson was the last to arrive and sign, around 7 p.m. All the drivers, a total of seven or eight, signed cards for Alexander on that occasion (1:100-102, 172). Penfield denies observing any organizing effort (1:62), although he does not deny seeing Middlebrook and Alexander on the parking lot about 25 feet from the building. After Jackson had signed, Penfield came out and intro- duced himself to Alexander in Middlebrook's presence. Alexander introduced himself, stated he had all the em- ployees signed, and that he was demanding recognition of the Teamsters. Penfield said he had no authority to grant it. Alexander asked for the names of Respondent's president and vice president so he could correctly ad- dress a certified letter, but Penfield, saying he had to call San Antonio, went inside the terminal. Middlebrook sifted through some papers he had in his car, found the San Antonio address, and furnished that to Alexander along with the names of President Ray Powell, Vice RED ARROW FREIGHT LINES President Charles Schmidt, and Vice President Joseph Chandler Jr. (1:102-105, Middlebrook; 160-161, Alexan- der). Penfield denies ever speaking with Alexander, and contends that he learned of the card signing only when driver Jackson came in and told him (1:61-62). Jackson testified that after he signed a card he went inside the terminal and informed Penfield that 100 per- cent of the (city) drivers had signed cards for the Team- sters. Jackson decided to inform Penfield because he was concerned about (losing) his job (1:173). Penfield con- firms that Jackson did come to report this information (1:61-62, 67-68). Penfield testified unfavorably and I do not credit him. Crediting the General Counsel's witnesses , I find that Penfield did look out, observed the card signing, and eventually came out and spoke with Alexander. Aside from Penfield's possibly associating Middle- brook with the Teamsters' efforts by virtue of Middle- brook's presence with the group, there is no evidence showing exactly how Penfield gained knowledge that Middlebrook was involved in the Teamsters' soliciting of the city drivers on company premises. Nevertheless the record establishes that Penfield did reach that conclu- sion. Thus, during the investigation of Middlebrook's charge by NLRB Region 26, Respondent submitted a lengthy position letter dated 25 February 1987 (G.C. Exh. 4). The letter is from Respondent's attorneys, and Chandler signed a verification statement attached to the letter. At page 12 of the letter Respondent addresses an allegation that Penfield, in early November, announced a rule prohibiting union talk on company time and prem- ises. The position statement continues (G.C. Exh. 4 at 12): In early November, when Mr. Middlebrook and a Teamster representative began soliciting the pickup and delivery drivers on Company premises . .. . At the hearing Chandler sought to disavow this by saying he did not gather the information and he had no knowledge that Middlebrook was soliciting for the Teamsters (1:42, 45). I do not credit Chandler. Jackson testified that after he made his report of the card signing to Penfield, Penfield called San Antonio to obtain the telephone number of Respondent's labor rela- tions person (Chandler). When Penfield placed his next call (to Chandler), Jackson stepped out to the dock and performed some work. When Jackson returned, a few minutes later Penfield was completing a call. On hanging up, Penfield told Jackson not to talk about any union ac- tivities on company time, that Red Arrow recognized the UTE until the contract expired in March 1988, and that (in the meantime) Respondent would not recognize any other union, and not to be surprised if the UTE came to Little Rock and talked to the employees (1:173- 175). Penfield does not deny Jackson's description. The admonishment not to talk about any union activities on company time is the subject of complaint paragraph 8, discussed later. Middlebrook testified that after searching through a briefcase at his car, and after furnishing the names and 233 San Antonio address to Alexander, he went inside the terminal (1:105). On arriving at the terminal office, Mid- dlebrook saw Penfield hanging up his telephone. Middle- brook asked what the "G/O" (the San Antonio general office, apparently) had to say. "Joe Chandler hit the ceil- ing," Penfield replied. Middlebrook asked if there was anything else, and Penfield replied no. Middlebrook then left (1:105-106). Penfield denies talking with Middle- brook after having the telephone conversation with Chandler, and denies saying, "Joe Chandler hit the ceil- ing." (2:304.) Neither Jackson nor Middlebrook testified about seeing the other at Penfield's office when Penfield hung up the telephone. Respondent contends that this reflects a discrepancy in their testimony on a material point (Br. at 16). The evidence is ambiguous, for it is quite possible that Jackson, who had been working in the terminal for an unspecified time, returned to the office after Middle- brook had come and gone. The call Penfield was com- pleting is not shown to be the call Penfield completed with Chandler when Middlebrook arrived in the office. Accordingly, I find no discrepancy between the accounts of Middlebrook and Jackson. Penfield testified that when he reached Chandler, at the latter's home, the evening of 31 October, he told Chandler that he had been informed his Little Rock drivers had signed Teamsters cards. Chandler said not to worry about it because the employees were represented by the UTE, and to tell Jackson not to worry about it. Penfield denies that Chandler was upset (1:64-65, 68). Within the next day or two Penfield reached his superi- or, Vice President Schmidt, who instructed him not to accept any package from a Teamsters representative and not to accept any registered mail (1:69-70). Chandler testified that on 31 October he had left work early to go Halloween trick-or-treating with his children. That evening he received a call from Penfield advising that the Little Rock employees had signed cards for the Teamsters. Chandler assured Penfield that his concern was unfounded because the Little Rock employees were represented by the UTE. Denying that he was upset at Penfield's report, Chandler concedes he was somewhat upset that Penfield persisted in talking when Chandler had things to do of more importance to him. Chandler considered the matter a "non event," and when the call ended Chandler went trick-or-treating with his children. He denies that Penfield mentioned Middlebrook's name (1:25, 27, 42-43). Penfield concedes that at 9 a.m. on Monday, 3 No- vember, he assembled his employees on the dock and told them there must be no union "business" on company time (1:63).5 Middlebrook's Memphis run was from 11 p.m. to 5:30 a.m. and Penfield did not see him until later that day when he gave him the same admonition (1.63, 68). S Penfield's actual testimony is that the dock meeting occurred the "next day" after Jackson informed him about the union organizing Be- cause the next day was a Saturday , and because the terminal employees work Monday through Friday (1.70), I find that Penfield meant Monday, 3 November 234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Because Penfield's admissions about his statements to employees are directly related to complaint paragraph 7, which attacks a no-solicitation rule, I shall postpone fur- ther discussion of Penfield's admonition until I cover that allegation. On Monday, 3 November, Teamsters Representative Alexander telephoned Respondent's San Antonio office attempting to reach President Ray Powell. Because Powell was unavailable, Alexander testified, he spoke with Chandler and demanded recognition for the Little Rock employees. According to Alexander, Chandler said he would give Powell the message. In his pretrial affida- vit of 6 February 1987, however, Alexander merely states that he identified himself and left someone, uniden- tified, a call-back message with a "company official" for Powell to call. "I don't recall" the official's name "right now" Alexander wrote in his affidavit. By the time of the hearing, however, his memory was jogged and he re- membered that it was Chandler (1:161-162, 165-168, 170). Chandler denies having any conversation with Alexan- der (1:28; 2:307). Chandler's explanation offered in sup- port of his denial is significant because of the contrast with his asserted response when Penfield called the evening of 31 October. Thus (2:307): Q. Why are you certain that the conversation with Mr. Alexander never took place? A. If any representative of any labor organization contacted me, and demanded recognition, we would have, one, had a very lengthy conversation, explain- ing our address, our legal representatives, the ad- dress of our legal representatives, and how to ad- dress mail to us. It would have been an extremely important con- versation that I would have, one, remembered, and, two, I would have been required to report to my su- periors. [Emphasis added.] Continuing with his answer, Chandler describes re- turning from lunch one day and finding a note that a Teamsters representative had called and left a call-back message for anyone at Red Arrow. Chandler testified he threw the message in the trash without returning the call (2:308). By letter dated 4 November and addressed to Ray Powell, Teamsters Local 878, by President Billy Patrick, demanded recognition of Respondent's Little Rock em- ployees in a unit of "all checkers, drivers, and warehouse employees," excluding guards, statutory supervisors, and all others (G.C. Exh. 11). Patrick advised that a majority of the unit had designated Local 878, and offered to have a card check by a neutral person in order to verify ma- jority status. Alexander testified that Patrick signs all demand letters (1:163). Responding through its attorney by letter dated 12 November, Red Arrow advised the Teamsters of Re- spondent's CBA with the UTE and cited the Board's contract-bar rule (R. Exh. 7). Chandler testified that the Teamsters never replied (2:309). Alexander testified, in effect, that Teamsters 878 dropped the matter when Al- exander learned that a UTE representative had come to Little Rock in early November, met with the employees, and persuaded them to sign UTE cards (1:164). Apparently at some time during the day on Wednes- day, 5 November, a UTE form notice to members (G.C. Exh. 8) was posted above the timeclock announcing a meeting for that night at 7:30. Middlebrook, a member of the UTE, was not informed of the meeting and did not see the posted notice until he came to the terminal at 10 p.m. in preparation for his usual night run to Memphis (1:106-107). UTE Business Representative Larry D. Wright met with the Little Rock employees the evening of 5 Novem- ber, and all the employees signed UTE cards (2:293). Jackson testified that, just as Terminal Manager Penfield had predicted, the UTE came to Little Rock the follow- ing week (the week following Halloween) and signed up the employees (1:175). Middlebrook testified that driver Jim Lyons told him all the employees had signed with the UTE (1:108). 3. Middlebrook laid off 9 November 1986 a. The layoff When Middlebrook came to work Wednesday night, 5 November, there was a note for him to see Penfield the next morning. Middlebrook returned from Memphis about 5 :30 a.m. on 6 November and waited for Penfield who arrived about 7 :45 a.m . Penfield gave Middlebrook an envelope containing a message on a computer print- out (1:106- 109). The message , dated 5 November and from Michael Rhodes, has for its subject reference, "Layoff," and reads (G.C. Exh. 3c): Effective Nov. 9, 1986 you are hereby placed on layoff status due to business conditions. You have certain rights available to you includ- ing the option to pull extra run[s] if you notify this office in writing. When and if business conditions permit you will be recalled from layoff. Middlebrook asked Penfield why , but the terminal man- ager referred him to Rhodes' message. Penfield testified that his total involvement in Middlebrook 's layoff was delivering Rhodes' message to Middlebrook (2:303). Pen- field complied with Middlebrook's request to call Rhodes so Middlebrook could talk to Rhodes (1:109). When Penfield handed the telephone to him , Middle- brook asked Rhodes why he was being laid off. Rhodes said the reason was on the notice . To Middlebrook's in- quiry about the (Memphis) run Rhodes replied, "Well, it's covered." Middlebrook responded that he could cover the run as an unassigned driver until the run was posted and rebid. Rhodes said that was unnecessary for he already had the run covered . Middlebrook said he would file a grievance . "Go ahead, but I doubt if you'll win it," replied Rhodes (1:110, 143, 151). On hanging up the telephone, Middlebrook asked Pen- field what had gone wrong, that there had been a UTE meeting the day before without notice to him. Middle- brook asked what Powell , Schmidt, or Chandler had to say about the Teamsters. Penfield replied that Powell RED ARROW FREIGHT LINES was (had been) at a meeting elsewhere and that Penfield could not elaborate on what Vice President Schmidt said. Chandler, Penfield reported, said that the UTE is the union for Red Arrow at this time. Penfield added, "I got my wrist slapped," that he was not going to get it slapped again, and that he did not want to hear any more about the matter (1:110-111). Middlebrook testified that the layoff notice about "business conditions" was the only reason he was ever given by Red Arrow (1:113). As we see in a moment, Supervisor Steve Ellis suggested a specific reason to Middlebrook. Rhodes, Respondent's manager of line haul operations, testified that he used the phrase "business conditions" in Middlebrook's layoff notice because that is the language in article 66, section 1 of the contract (1:232-233). The provisions of article 6 are pertinent and they read (R. Exh. 3 at 151-152): ARTICLE 66 REDUCTION IN FORCES Section 1. Any reduction in forces due to slack business or insufficient work will be in accordance with seniority rights. The COMPANY will notify employees at least four (4) work days in advance of being laid off. If the layoff is due to an official request by the UNION to cut the board, or due to the bidding process outlined in Article 53, Section 2(d), the four (4) day notice is not required. Section 2. Line employees on layoff may work unassigned at their home terminal . They will not be called to work until all available assigned pool men have been used . If more than one laid off employee is used, they will be offered the remaining loads in seniority order. Employees on layoff have the option to either accept or reject extra work. Therefore, employees on layoff must notify the COMPANY in writing that he will or will not be available for extra work. Section 3. Line employees on layoff status may be used as outlined above. It is understood, howev- er, that if his pay is as much as thirty-five (35) hours per week, at the prevailing hourly rate of pay, for two (2) consecutive weeks, such employee will be returned to regular status. If more than one employee is on layoff, the senior employee will be returned to regular status. Because of his relatively low seniority, Middlebrook has been laid off or bumped on more than one occasion (1:150; 2:321). On two of these occasions, the layoff no- tices based the layoff on a "decline in business" (G.C. Exh. 17; layoff effective 1 March 1985) and "due to slack business" (G.C. Exh. 14; layoff effective 26 September 1986). That is to say, an actual condition of slack busi- ness or insufficient work, the ground specified in article 66, existed. Here, by contrast, there was no decline in business as far as the Memphis run is concerned . As we see later in more detail, Respondent had trouble finding a driver for 235 the Memphis run. Rhodes concedes that since Middle- brook's layoff Respondent has been forced to assign junior drivers to the Little Rock-Memphis run, and that each one gets out of the assignment after a short period of time (1:249). Moreover, Respondent has added a second Memphis run, this one beginning at 10 a.m. Mid- dlebrook testified that he was not recalled from layoff for the second run, or any other run (1:117). Some hint as to why drivers do not want the Little Rock to Memphis run lies in Middlebrook's testimony that the short 280-mile roundtrip yields little profit. Indeed, Middlebrook could survive on it only because his mother lives in little Rock and he apparently lived with her to save on expenses when he was in Little Rock (1:86). Too, it would seem that the line drivers (appar- ently all from Texas) would dislike having to work away from home for long periods of time. Finally, the run is at night (11 p.m. to about 5:30 a.m.), although runs else- where may also be all-night trips. On Saturday, 8 November, as Middlebrook was travel- ing from Little Rock to his home in south Texas, he stopped at Respondent's Dallas office to see if he could get some clarification about his layoff. From one of the offices there he spoke by telephone with Steve Ellis, a stipulated supervisors (1:57). Ellis framed the bottom line succinctly when Middlebrook asked about bidding on other runs (1:115): "While you're on layoff you can't bid." As we shall see, however, Ellis' "law" is flawed. b. UTE representatives meet with Rhodes From the bottom-line rule Supervisor Ellis enunciated for Middlebrook on 8 November, we must travel back- wards a few days to see how Red Arrow developed the rule that Ellis expressed to Middlebrook. Unfortunately, the description of events is rather tedious. Previously, I mentioned the asserted concern by Rhodes when Middlebrook, in October (following his grievance), bid on the Little Rock-Memphis run while Middlebrook was in layoff status. Rhodes telephoned Chandler who advised Rhodes that Middlebrook would be the successful bidder, even though junior to others on layoff, if no one else bid No one else bid, and Middle- brook was assigned to the run. According to UTE Business Representative Larry Wright, in early November UTE President Jeff Saari told him that two Houston employees in layoff status had called to protest the awarding of the Little Rock- Memphis run to Middlebrook. The two employees, Wil- liam J. Walker and Robert B. Sharp, supposedly com- plained that they had seniority over Middlebrook (2:268- 270, 272). After discussing the matter, Saari and Jackson con- cluded that Respondent had erred in assigning the Little Rock-Memphis run to Middlebrook because Walker and Sharp, also in layoff status, had seniority over Middle- brook (2:270). In fact, Walker and Sharp were working under the shop classification in Houston while on layoff from their line driver classification. But they had the right to bump back into the line driver classification 6 Middlebrook described Ellis as his immediate supervisor (1 145) 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1:290, 297, Jackson). The seniority provisions of the contract appear in article 13 . Section 8 provides that each of the four classifications (the fourth classification being for part-time employees) shall have its own seniori- ty roster (R. Exh . 3 at 32). Seniority is defined as being "system-wide" under section 1 of article 13. That same day (about Monday, 3 November, apparent- ly) Saari and Jackson telephoned Rhodes, informed him of their conclusion, and arranged to meet with him. The next day the three met in the office of Rhodes in Dallas (1:228, 2:271-273, 285). Rhodes dates the meeting as being around 4 or 5 November ( 1:228). Jackson dates the meeting as being the day after the call to Rhodes (2:272- 273, 285-286) and 1 or 2 days before his 5 November meeting with the Little Rock employees (2:291-292). It appears that the meeting with Rhodes occurred on either Monday or Tuesday , 3 or 4 November. Assuming that the version of these witnesses is credited , the meeting most likely occurred on 4 November with the telephone call to Rhodes having been made on Monday, 3 Novem- ber. (As we shall see, I find that it was Rhodes who called the UTE representatives.) At the 4 November meeting the three (Rhodes, Saari, and Jackson) discussed the situation and the provisions of the CBA. As Jackson and Saari earlier had done, the three concluded that the assignment to Middlebrook was improper (1:229-230, 251, Rhodes). Jackson testified that Rhodes realized an error had been made after the UTE representatives had pointed out the contract article (2:295). Wright asked Rhodes to revoke the assignment and return Middlebrook to layoff and to fill the position from unassigned drivers (1:229; 2:286). As a result of the discussion, Rhodes testified he sent the layoff notice (quoted earlier) to Middlebrook (1:231). When asked whether he was aware that Middlebrook was attempting to organize the local drivers in Little Rock, Rhodes testified, "I don't believe so." He denies that either Penfield or Chandler told him before Middle- brook's layoff. Conceding that at some point he heard something about it, he thinks that knowledge came at a later date, but he does not know when it was or who told him (1:230-231 , 245). Later in his testimony , Rhodes was more positive that when he laid off Middlebrook he was not aware of any such activity by Middlebrook and, in answer to a leading question of whether the decision to lay off Middlebrook was "strictly the result of inter- pretation and application of the collective-bargaining agreement" responded, "Yes, it was." ( 1:251.) Saari did not testify . Jackson testified that nothing was said in the meeting with Rhodes that Middlebrook had been organizing for the Teamsters . Rhodes confirms this, although his first answer is that nothing was said "to the best of my knowledge." ( 1:230, 257.) According to Wright, he was not told of Middlebrook's organizing ac- tivities until he arrived at Little Rock on 5 November and the employees there informed him (3 :287-288, 295, 301). Chandler testified that he had no role in Middlebrook's layoff, was not consulted about it, and made no recom- mendation concerning Middlebrook's layoff (1:29, 33, 43, 58). According to Chandler , when Penfield called him on 31 October he made no reference to Middlebrook, and as of Middlebrook's layoff Chandler had no knowl- edge that Middlebrook was involved in union organizing activities (1:27, 42, 45). Before that layoff, Chandler testi- fied, he had no discussion with Rhodes that Middlebrook was involved in union activities ( 1:45). Penfield's professed unawareness of any union activi- ties has been mentioned (1:62-63). He likewise testified that he played no part in the decision to lay off Middle- brook from the Little Rock position, and merely served to deliver the layoff message from Rhodes (2:303). Before that time, Penfield testified, he had not discussed Middlebrook's union activities with Rhodes or any other company official because he was not aware of such ac- tivity (2:303, 304, 305). Although Jackson testified that, as of the 4 November meeting with Rhodes, he was aware only of two senior employees (Walker and Sharp) being skipped (2:277). Rhodes testified as if he, on 4 November, became aware that a total of four had been skipped (1:236, 239). Indeed, Rhodes apparently was aware of all four in mid-October, for that was the reason he assertedly consulted Chandler in mid-October before awarding the run to Middlebrook (1:225-226). Rhodes identified them from the 14 January seniority list (R. Exh. 6 at 12) as all being on layoff at the relevant time (1:225-226). I list the names below . Their positions on the seniority list (for line drivers) appear among the 161 names (my count) on the list as follows . Because Spruill also figures later in the testimony I show him also. Name Seniority Date Location Position Dennis L. Spruill 11 -5-84 Dallas 141 Edward J. Blaschke 3-11-85 Houston 142 Joe A. Johnson 3-11-85 Houston 143 William J . Walker 3- 11-85 Houston 144 Robert B. Sharp 3-11-85 Houston 145 Perry W Middlebrook 4-22-85 Fort Worth 146 c. Respondent's basisfor the layoff As earlier noted, Rhodes testified that he based his de- cision to lay off Middlebrook strictly on his interpreta- tion (shared by the UTE) and application of the CBA (1:251). According to Rhodes, revoking the assignment earlier made to Middlebrook had the effect of protecting seniority rights (1:238). Because the arguments expressed by the UTE, and particularly by Wright, to Rhodes on 4 November per- suaded Rhodes, I shall cover the essence of Wright's de- scription of his presentation . Wright contended that Re- spondent's assignment of the Little Rock -Memphis run to Middlebrook violated the seniority concept set forth in article 13, section 4, of the CBA (1:273, 275) The first paragraph of section 1 is the one in issue. As corrected by Wright at the hearing, that paragraph reads (R. Exh. 3 at 30): RED ARROW FREIGHT LINES Section 4. The rights of seniority shall be recognized in all seniority groups or classifications with respect to runs or job assignments , and in all cases of reduc- tion of forces or recalls to service Layoffs will be made in seniority order at each terminal affected provided bids are not received from a senior laid-off employee from another terminal . The exception to this is outlined in Article 13, Section 5 (System wide bid time). As the foregoing appears in the printed booklet, the first two sentences above appear as one sentence, for there is no period between "service" and "Layoffs." Wright testified that the absence of a period was an error (2:273-274). When Wright and Saari complained to Rhodes that the Middlebrook assignment violated the fundamental concept of seniority written into the contract, Rhodes asked how he could get someone else to take the run when only Middlebrook had bid on it (1:255). Wright re- sponded (2:276-280, 286-287), and Rhodes concurred (1:255-257), that Red Arrow had the contractual right under article 53, section 2(d) and section 4 (clarifica- tions), to assign unassigned drivers, in reverse seniority order, to any run on which no bids are received (R. Exh. 3 at 118, 123). If there are no unassigned drivers , Respondent then could turn to drivers on layoff, recall the most senior, and assign him to the Little Rock-Memphis run. Accord- ing to both Rhodes (1:241) and Wright (2:278-280), both Respondent and the UTE have always interpreted article 53, section 4 (R. Exh. 3 at 123) as effecting an automatic termination of any driver refusing to accept an assign- ment. In other words, Rhodes testified, a driver has no choice once an assignment is made (1:241). Wright urged Rhodes to use these provisions to force a driver, through the seniority system, to take the Little Rock-Memphis run (2:276, 287). Rhodes confirms that Wright proposed that Middlebrook be returned to layoff status and the other sections used to force a driver to take the Little Rock-Memphis run (1:229, 255). As we have seen, Rhodes, acting to implement the conclusions he reached with Wright and Saari on 4 November, the very next day sent a computer message to Middlebrook notifying him he was laid off effective 9 November. Rather than informing Middlebrook his earlier assign- ment had been made in violation of seniority, Rhodes used some of the language of article 66 which covers layoffs "due to slack business or insufficient work." Wright describes Middlebrook 's October bid as "ille- gal" (2:276). He testified that it is not proper for an em- ployee on layoff, junior to one or more other employees on layoff, to bid for and receive a posted position (2:284). By contrast, the senior laid-off employee may bid for a new position that is posted (2:284). The later state- ment clearly complies with article 13 , section 5 of the CBA which provides for just that . Thus, the terse rule Supervisor Ellis expressed to Middlebrook on Saturday, 8 November, is misleading. The pertinent clause in article 13, section 5, reads (R. Exh. 3 at 31): "Employees on layoff may , in addition to 237 bidding on bulletined positions , express a preference to remain on layoff at their home terminal." No provision in the contract states that Respondent is prohibited from accepting a bid from a junior driver on layoff, and assigning a posted run to that junior driver, when there are senior drivers on layoff who have not bid. Wright testified, however, that "several years ago" (predating the current contract, presumably) some city employees were laid off. (Wright did not specify the city.) The senior employees were able to find jobs with other employers during their layoff from Red Arrow. Some of the junior employees were able to work a few hours a day at the Red Arrow terminal. When some per- manent jobs were posted for bid , the junior employees bid because they had seen the posting. The senior em- ployees apparently were unaware of the posting. Wright testified that the junior employees were not permitted to get the positions and that Red Arrow had to recall the senior employees (2:284). By contrast, Wright concedes that UTE President Jeff Saari has told him that Saari himself, in 1974, was re- called from layoff (2:285). And recall Middlebrook's tes- timony that Saari , in September, assured Middlebrook he could bid from layoff on the Little Rock-Memphis run because he had done so in 1974 some 30 days before Robert Rancher, a senior employee, was recalled from layoff (1:86, 140). Thus, the evidence as to past practice is limited and conflicting. Although the earlier events occurred under a prior CBA there is no evidence that the relevant lan- guage of the early contract was different from that of the current CBA on this point . Neither side objected to the evidence offered by the other on this issue (such as to possible hearsay), and the evidence is part of the record. Even so, I note that the evidence is not well developed. No documentary records were offered, and neither was the language from the earlier contract , In any event, nei- ther party knew of a past practice example which had occurred during the term of the current CBA. After Middlebrook was notified of his layoff, Respond- ent on 6 November reposted ("bulletined") the Little Rock-Memphis run for bidding (G.C. Exh. 3d; 1:233, Rhodes). Again Middlebrook bid, and again he was the only driver who did so (1:233-234). Treating Middle- brook's bid as invalid, Respondent, on 14 November, as- signed the run to Dennis Spruill effective 15 November because Spruill was the least senior unassigned driver (G.C. Exh . 3e; 1:233-235). With four drivers senior to Middlebrook on layoff status from their line driver positions , Rhodes testified he felt he would violate the seniority rights of the four if he assigned the run to Middlebrook (1:236). Asked how he would be violating the seniority rights of the four when none had submitted a bid, Rhodes testified that under the contract an employee who is laid off for a period of 9 months forfeits all seniority rights (1:237-238). Wright also relies on this provision (2:286-283). The relevant contract section (from art. 13, Seniority) reads: Section S . Employees laid off due to a reduction in forces, if not recalled to service within nine (9) 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD months and not having performed service with their COMPANY and will forfeit all seniority rights. But it is undisputed that the four senior employees who did not bid (Blaschke, Johnson, Walker, and Sharp) had bumped back and were working in the shop at Re- spondent's Houston terminal while on layoff from their line driver classifications (1:129, 136; 2:290, 297). It is theoretically possible that one or more of the four senior Houston employees orally grieved to his supervi- sor, in the presence of a union representative as the con- tract specifies (R. Exh. 3 at 17) in article 8 , section 4, step 1 (2:290). Wright does not know whether that pro- cedure was followed. He testified that UTE President Saari received a call from Walker and Sharp in Houston complaining about the October assignment to Middle- brook and calling for the error to be corrected (2:268, 287).' Saari apparently told the two that the UTE would get the matter resolved (2:287). In any event, Wright tes- tified that neither Walker nor Sharp (nor either of the other two) filed a written grievance (2:287), and Rhodes testified that he never received a grievance on the matter (1:245). As I have described , Line Haul Manager Rhodes and UTE Representative Wright deny there was any discus- sion at the 4 November meeting in Rhodes ' office of Middlebrook's organizing on behalf of the Teamsters. They also testified that as of their 4 November meeting in Dallas they knew nothing of Middlebrook 's union ac- tivities. Before resolving the issue of knowledge , I need to summarize some of the evidence also relating to driver Dennis Spruill. A portion of Spruill's testimony bears on the question of Respondent's knowledge as to Middle- brook. d. Dennis Spruill's testimony bearing on the question of knowledge Dennis Spruill testified that he was hired 1 October 1984 (1:180). As previously noted, the seniority list dis- closes the date to be a month later on 5 November. Spruill testified that he was informed on "the 24th" (of October 1986, presumably) that he was being bumped ef- fective "the 27th" from the Oklahoma City terminal (1:180). That left him in the unassigned driver status. No month or year is given for his bumping and the full, cor- rect date does not appear elsewhere in the record. No documentary evidence was introduced covering the point. October 27, 1986, was a Monday. According to Spruill, on "the 27th" he was in the Dallas terminal checking the seniority roster to see where he might be able to get an assignment . He observed that only Middle- brook, who had the Little Rock-Memphis assignment, had less seniority. Supervisor Claudie Marsh told Spruill that he could not bump Middlebrook because the Little Rock terminal was supposed to be negotiating a deal whereby the Little Rock terminal would change unions and go with the Teamsters (1:180-181). 4 Over the General Counsel's hearsay objection, I received Wright's description for the limited purpose offered-to show course of events, the basis for the action the UTE thereafter took (2:268-269). The testimony by Spruill concerning Marsh's remark about the Teamsters and the Little Rock terminal is sig- nificant. If Supervisor Marsh in fact said what Spruill at- tributes to him, then it adds some force to the General Counsel's contention that Vice President Chandler gave more importance to Penfield's call of 31 October than Chandler would have us believe. There is, however, a discrepancy in the dates in that Spruill dates Marsh's comment 4 days before B. J. Alexander signed the Little Rock employees. On Thursday of the same week (30 October, presum- ably) Spruill again was in the Dallas terminal. Supervisor -Steve Ellis asked why Spruill did not bump Middle- brook. Because, answered Spruill, Supervisor Marsh had said he could not do so. Ellis assured Spruill he could do so because Middlebrook was still an employee of Red Arrow. Spruill, however, decided not to bump Middle- brook and thereafter Spruill continued in his unassigned status. The following week (beginning Monday, 3 No- vember) Spruill remained off for vacation. Although he was on vacation, Spruill was called to take a run (a single trip, apparently) to Jackson (state not given). The week following that (presumably beginning 10 Novem- ber) he received no notice, sat at home all week waiting for a call, and did not check a bulletin board 1:181, 187). On Sunday, 16 November, Supervisor Steve Ellis called Spruill at 4 p .m. and asked if Spruill was going to cover the Little Rock-Memphis run scheduled to leave Little Rock in 2 hours. Spruill was at his home in Irving, near Dallas (1:181, 182). As it happens, on Friday, 14 November, Respondent had, posted an assignment of Spruill to the Little Rock-Memphis run (effective Satur- day, 15 November (G.C. Exh. 3e; 1:181, 185, 187). Of course, Spruill was unable to accept the assignment and this led to his separation from employment . I discuss later Spruill's separation from employment. Before pass- ing on Spruill's testimony about Marsh's remark regard- ing the Teamsters, I should observe that a portion of Wright's testimony could be construed as suggesting that Spruill was laid off automatically on the sixth day after he was bumped. Respondent points (Br. at 49) to Wright's testimony that an unassigned driver has only 5 days to exercise his right to bump a less senior driver . If he fails to exercise his seniority right to bump, he is laid off (2:277). Presum- ably Wright was referring to the following two para- graphs of article 53, Bulletins and Assignments , section 2 (R. Exh. 3 at 118): A senior employee has the right to bump a junior employee whenever he loses his run through no fault of his own provided these rights are exercised within five (5) days, excluding Saturdays, Sundays, and holidays, of the time he loses his assigned run. If a man has no seniority, or is bumped, or loses his run through no fault of his own, he will be al- lowed to run off the Pool Board in any terminal where a vacancy exists and is in the process of being bid in. If no vacancy exists, he will be placed on layoff status and used as outlined in Article 66. RED ARROW FREIGHT LINES Wright's description is misleading , for unassigned driv- ers are not automatically laid off if they do not exercise their bumping rights within 5 days. Under article 53, sec- tions 2 and 4, bumped drivers become relief drivers who make runs from the pool board in any terminal where there is a vacancy on the pool board open for bid. If no vacancy exists, and only then, a bumped driver is laid off (R. Exh. 3 at 118-119, 123). We still are left with the discrepancy in dates. A dis- crepancy exists, in my opinion, because it is unlikely there was talk at Red Arrow in Dallas or San Antonio about the Teamsters before B. J. Alexander signed the Little Rock drivers on 31 October (a Friday) and Pen- field, that same evening, telephonically reported the card signing to Vice President Chandler. Several possibilities exist. First, Spruill's account is false either because he incorrectly thought Ellis made the remark about the Teamsters or because Spruill is lying. If I credit Spruill as to the remark, then I must find Spruill off on his dates. The latter seems possible since the seniority list shows that Spruill recalled his hiring date as being a month before it actually was. Perhaps Spruill, in a similar fashion, placed his conversation with Marsh as being a week earlier than it actually was (as- suming he is correct regarding the date he was bumped). That would Place Spruill in the terminal on Monday, 3 November. But that is the week he set aside for vacation even though he did accept a trip that week to a city named Jackson. Spruill testified in a persuasive fashion. Crediting Spruill, I find that Marsh remarked about the Teamsters as Spruill described. Because of the uncertainty of the timeframe, however, I decline to attach any weight to the evidence. 4. Credibility resolved and conclusions reached a. Some evidentiary and procedural rules To establish a prima facie case that Respondent unlaw- fully laid off Middlebrook, the General Counsel must show both knowledge (of Middlebrook's activity on behalf of the Teamsters) and motivation (that the intent to lay him off because of those union activities was a moving factor in the layoff decision). As I discuss the evidence and resolve credibility, it will be well to keep in mind that these preliminary find- ings eventually must satisfy certain evidentiary and pro- cedural rules bearing on the question of whether the General Counsel carved the Government's burden of es- tablishing a prima facie case. The first rule is an evidentiary one: Disbelief of a neg- ative (a denial does not establish a positive. That is, the General Counsel must carry the Government's burden of proof as to knowledge (an element of the General Coun- sel's prima facie case) with affirmative evidence. Success in persuading an administrative law judge to disbelieve the adversary's denial and to find the opposite to be true does not equal the necessary affirmative evidence. Gar- rett Flexible Products, 270 NLRB 1147, 1148 (1984); McCormick & Co., 254 NLRB 922 (1981); Council of Bagel & Bialy Bakeries, 175 NLRB 901, 903 (1969); Roper Corp. v. NLRB, 712 F.2d 306, 310, (7th Cir. 1983). 239 Quoting from an earlier case, the court in Roper ex- plained that the reason for the rule is clear, for if the rule were otherwise "a case could be made for any proposi- tion in the world by the simple process of calling one's adversary and arguing to the jury that he was not to be believed." Roper, id. The opinions in Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952) (majority opinion by Judge Learned Hand; concurring opinion by Judge Jerome Frank) apparently suggest that the rule does not apply to bench trials or, if so, not invariably. Judge Frank expressly stated he op- posed any such invariable rule. Judge Frank would allow a plaintiff to win based solely on disbelief of the defend- ant when otherwise the plaintiff would suffer a "grave injustice." 201 F.2d at 272. If the Board views the rule as being something less than absolute, however, it has not said so. Second, the Board also has enunciated a related proce- dural rule regarding the General Counsel's burden to es- tablish a prima facie case in motivation cases. Wright Line, 251 NLRB 1083, 1089 (1980). The sufficiency of the General Counsel's prima facie case is tested as of the close of the General Counsel's case-in-chief. Esco Eleva- tors, 271 NLRB 1262, 1268 (1984); Hillside Bus Corp., 262 NLRB 1254 (1982). Thus, even though a respondent proceeds with its own case-in-chief (usually after its motion to dismiss has been overruled), the Government's prima facie case must appear in the evidence it adduced during the General Counsel's case-in-chief. The General Counsel cannot reach into the Respondent's case-in-chief and rely on evi- dence adduced there, even during cross-examination, to supply one or more vital elements of the Government's prima facie case.8 By proceeding with its defense, a re- spondent does not waive this requirement.9 A different result prevails in Federal court trials of dis- crimination cases. When a defendant there elects to pro- ceed, the trier of fact must consider all the evidence in rendering a decision. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983). The Board has not indicated whether it views Aikens as ap- plying to unfair labor practice trials under the Act. When the General Counsel rested the Government's case-in-chief here, Red Arrow moved for dismissal on the ground the General Counsel had failed to establish, (1) knowledge as to Middlebrook, a vital element in the Government's prima facie case, and (2) a showing of protected conduct by Spruill. I denied the motion and Respondent elected to proceed with its evidence (1:193- 9 Under Board law in motivation cases, therefore, admissions made during the Respondent's case-tn-chief are unavailable to assist the General Counsel in establishing a prima facie case Of course, if the General Counsel's evidence establishes a prima facie case, then Respondent's ad- missions during its case-in-chief are activated and reinforce the Govern- ment's case. 9 In nonmotivation cases resolution of whether a respondent has waived its right to insist that the General Counsel establish a prima facie case may depend on whether the respondent moved to dismiss the com- plaint when the General Counsel rests at the close of the Government's case-tnchtef. Under Sec 102.41 of the Board's Rules and Regulations, a respondent does not waive its objections by proceeding 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 215). By electing to proceed with its own case-in-chief, Red Arrow did not waive its motion to dismiss. In short, in assessing whether the General Counsel es- tablished a prima facie case here, I must view the Gov- ernment's evidence in isolation, apart from Red Arrow's proffered defense. Esco Elevators and Hillside Bus, supra. Even though the General Counsel, under Federal Rules of Evidence 611(c), called adverse party witnesses as part of the Government's case-in-chief here, and even though I disbelieve them and find the truth to be that which they deny, my discrediting of them and finding the opposite to be true does not qualify as the affirmative evidence the General Counsel must adduce in order to carry the Government's burden of establishing a prima facie case by a preponderance of the evidence. Roper, supra. Of course, distinguish an admission by a 611(c) witness from an administrative law judge's disbelief of a denial by such witness. An admission is positive evidence, but disbelief of a negative, even when the opposite is found to be true, still leaves a negative. Finding the opposite of a respondent's denial to be true means simply that the administrative law judge credits the Government's af- firmative (positive) evidence and inferences reasonably drawn from such evidence. b. Credibility findings and preliminary conclusions (1) Knowledge First, Perry W. Middlebrook, B. J. Alexander, and Roy Jackson testified persuasively, and I credit them. In contrast, Vice President Joseph Chandler, Little Rock Terminal Manager Alan Penfield, Line Haul Manager Michael D. Rhodes, and UTE Business Representative Larry D. Wright testified in an unpersuasive fashion and I do not credit any of the four on disputed matters. The General Counsel's direct evidence of knowledge by Respondent of Middlebrook's link to the Teamsters, while not strong, is established. When Penfield observed his drivers signing cards for B. J. Alexander, he also, I find, saw Middlebrook standing there with them. That evening Penfield, I find, reported his observations-in- cluding that of Middlebrook's presence with the group- to Vice President Chandler. As reported by Penfield through Middlebrook, Chan- dler "hit the ceiling." Chandler's agitation was caused, I find, not by any irritation with Penfield's timing or per- sistence in reporting, but with the facts Penfield report- ed. That does not mean Chandler's ire necessarily fo- cused on Middlebrook. Also on 31 October, however, Penfield instructed city driver Roy Jackson not to engage in union activities on "company time." On the next business day, Monday, 3 November, Penfield instructed all his city drivers, plus Middlebrook, that they were not to conduct "union busi- ness" on company time. Although the foregoing falls short of indicating that Penfield viewed Middlebrook as having participated in the organizing, Respondent's position letter by 25 Febru- ary 1987, quoted earlier, states differently. Chandler, as previously mentioned, disavows that portion of the posi- tion letter. I do not credit Chandler. Observing each of Respondent's witnesses testify,1 O I was struck by the untruthfulness I saw in their demean- or. Judge Joseph A. Wapner of television's The People's Court describes it this way in an interview given to Mi- chael Ryan which appears in the 5 July 1987 issue of Parade Magazine at 8, 9 , They Tell It To This Judge On TV: What I like about running a court is seeing people, analyzing them to see if they're telling the truth, if they're in this for greed or have an honest claim. Sometimes you have documentary proof and prior statements. Sometimes it gets down to a gut feeling; you look at the demeanor of a person. Sometimes you have to distinguish between people who are nervous because they are in court and people who are nervous because they are lying. Sometimes you tell by looking in their eyes. I strongly disbelieve Respondent's witnesses, and I find the truth to be that which they deny. Penfield knew. So did the others. But my finding of knowledge does not rest on my disbelief of Respondent's witnesses. First, there is Chandler's "hit the ceiling" reaction on receiving Penfield's report-a report which included Middle- brook's name. Second, there is Respondent's 25 February 1987 admission that Middlebrook was assisting Alexander with the soliciting on 31 October. Prima facie, therefore, at least Penfield and Chandler were aware of Middlebrook's involvement in the solicit- ing of Teamsters cards on 31 October. Aside from the General Counsel's argument that such should suffice to impute knowledge to Respondent, we come now to the point raised by Respondent's counsel (1:194; Br. at 36- 41) that Penfield's knowledge, even if established, is not shown to have been communicated to Michael Rhodes, the official who made the decision to lay off Middle- brook. As counsel stated during his argument supporting the motion to dismiss (1:194): Now, in this case, the evidence reveals that Termi- nal Manager Alan Penfield apparently had some knowledge of Mr. Middlebrook's organizing activi- ties, but there is not a scintilla of evidence that this knowledge was communicated to Mr. Rhodes. First, Rhodes admits hearing about Middlebrook's or- ganizing activities, but he "believes" the report (from someone he no longer recalls) came at a later date (1:230-231, 245, 251). I disbelieve his denial as to the timing, and I find that he knew before he decided to lay off Middlebrook. But how did he learn? That is to say, did he in fact learn? Aside from his admission of knowl- edge gained later (which I find was gained before Midd- lebrook's layoff), or imputing Penfield and Chandler's knowledge to Rhodes (as the General Counsel argues should be done, Br. at 19-20), there is no direct evidence 1 My reference to "Respondent's witnesses" is a shorthand way of naming Chandler, Penfield, Rhodes, and Wright Two of them , Chandler and Penfield, were called by the General Counsel during the Govern- ment's case-in-chief under Fed R Evid 611 (c), and the bulk of their tes- timony was given at that time. RED ARROW FREIGHT LINES showing how Rhodes learned. Of course, showing the "how" is relevant only in determining whether he learned, for if in fact he knew then the question of how he learned is immaterial. In accordance with Chandler's testimony that he would consider a call from a union representative de- manding recognition as extremely important, and a call that he would report to his superior (2:307), I find that no later than early Monday, 3 November, Chandler re- layed Penfield's report to his own superior. Penfield's report, I find, included a conclusion that Middlebrook was assisting the Teamsters representative in organizing. It requires no stretching of reality to find, as I do, that on 3 November the information Chandler reported to his superior (unidentified in the record) was relayed to Rhodes, the person over Middlebrook and all line driv- ers. The General Counsel argues, and Respondent denies, there is ample evidence which circumstantially shows that Rhodes was aware of Middlebrook's activities for the Teamsters when Rhodes decided at the meeting of 4 November to lay off Middlebrook. Discussion of the cir- cumstantial evidence carries us into treatment of the rea- sons advanced for Middlebrook's layoff on 9 November. However, it is settled that the same set of circumstances may be relied on to support both an inference of knowl- edge and an inference of discrimination. Abbey's Trans- portation Service, 284 NLRB 696 (1987); A. J. Ross Logis- tics, 283 NLRB 410 (1987). (2) Motivation The General Counsel lists several items as demonstrat- ing unlawful motive. TIMING. Certainly the timing factor is significant if it were not for the matter of the UTE representatives. Saari and Wright protested on behalf of the laid-off em- ployees (of whom Saari assertedly named Walker and Sharp). Rhodes, as I have found, learned on 3 November of Middlebrook's activity at Little Rock on behalf of the Teamsters. A day later, 4 November, Rhodes met with Saari and Wright and jointly decided that Red Arrow had erred by permitting Middlebrook, a laid-off employ- ee, to bid successfully on the Little Rock-Memphis run. Rhodes adopted Wright's suggestions: that Middle- brook's assignment be revoked, Middlebrook returned to layoff, the junior unassigned driver assigned to the run, and, if there were no unassigned drivers, the senior laid- off driver assigned to the run. Did Walker and Sharp complain to Saari? None of those three testified. Wright dates their call to Saari as occurring, apparently, on Monday, 3 November, and Wright and Saari in turn called Rhodes the same day, setting up their meeting of 4 November (2:267-268, 272, 285). Is it sheer coincidence that Walker and Sharp waited over 2 weeks before calling Saari? If they were "upset" when they called, as Wright testified (2:268),11 I 1 The evidence was offered and received for the course of events and not for the truth In the context of this analysis, however, Wright's asser- tion is part of the evidence to be reviewed for the purpose of resolving credibility 241 why did they wart over 2 weeks before registering their complaint? The line Marcellus spoke seems apropos: "Something is rotten in the state of Denmark." (Hamlet, I, iv, L. 90.) In short, I find there was no call from Walker, Sharp, or from any laid-off employee. It never happened. It was a "non-event." Aside from my reliance on Wright's unfa- vorable demeanor, I find it implausible that Walker and Sharp, emotionally "upset," would wait 2 weeks before calling. I also note that none of the three (counting Saari) testified. As a practical matter it is unlikely either Walker or Sharp would complain. This is so because nei- ther would want to place himself in the potential position of being forced to go to Little Rock-and that could happen if there were no unassigned drivers to take the Little Rock-Memphis run. It is obvious none of the laid-off drivers wanted the run, and they declined to bid on it the repeated times, beginning in September, that Rhodes had to post it. Moreover, the four drivers senior to Middlebrook on layoff had no concern about the need to work for Red Arrow during the 9 months after their layoff-for they already were working in the shop at Houston! But if Walker and Sharp did not telephone Saari, what prompt- ed Wright and Saari to call Rhodes? What happened, I find, is that Rhodes (having been in- formed of events by communications within Respond- ent's management hierarchy) called Saari or Wright on 3 November and described Penfield's report that the Teamsters, assisted by line driver Middlebrook, had per- suaded all the city drivers in Little Rock to sign cards for the Teamsters. Saari and Wright then arranged to meet with Rhodes the following day. Wright also ar- ranged to hold a meeting with the Little Rock employ- ees in Little Rock on 5 November. Middlebrook, of course, was not informed of that meeting even though he is a UTE member. When Saari and Wright met with Rhodes on 4 No- vember, the three discussed the situation for the express purpose of devising a plan for removing Middlebrook from Little Rock because of his influence with the em- ployees there concerning the Teamsters. Wright suggest- ed the revocation plan, Rhodes adopted it and prepared the layoff message that was sent and delivered to Mid- dlebrook the following day. In short, I find that the three conspired to discriminate against Middlebrook be- cause Middlebrook's efforts to persuade the Little Rock employees to join the Teamsters would create a head- ache for both Respondent and the UTE. Respondent asserts that the conspiracy angle should carry no weight because the General Counsel did not issue a complaint against the UTE (Br. at 40). Why the General Counsel did not do so is not a matter I need re- solve. So far as the record reflects, no charge was filed against the UTE and, of course, a complaint must be based on a charge. Animus. The General Counsel also argues animus by pointing to Chandler's "hit the ceiling" reaction to the Halloween report from Penfield, plus the promulgation of an allegedly unlawful no-solicitation rule, inconsisten- cies in Chandler's testimony, and pretextual and shifting 242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD defenses. (Br. at 20.) I discuss the no-solicitation rule in a later section. Contending there is no showing of animus here, Re- spondent argues that it was unconcerned by the fact the Little Rock employees had signed Teamsters cards (Br. at 41-42). This contention is based on its belief that the Little Rock employees were covered by the UTE con- tract because it has been the practice of the parties, by their interpretation of the recognition clause of the CBA, to treat new terminals as accretions to the recognized bargaining unit . Respondent, through its attorneys, ex- pressed this position in its letter of 12 November (R. Exh. 7) denying the Teamsters' demand for recognition, and Chandler expressed it at the hearing when he testi- fied that he was unconcerned about Penfield 's report of card signing at Little Rock because of the Board's con- tract bar doctrine . A "non-event" Chandler described the card signing (1:27, 43). I need not explore the parties ' legal debate over whether the Little Rock employees may be considered an accretion to the contractually established bargaining unit. That exercise is unnecessary for the simple reason I do not believe Chandler . As mentioned earlier, I find that Chandler was upset about the contents of Penfield's report. Even without speculating on Chandler's reasons, the signing by all employees undeniably meant that Re- spondent was faced with a problem , even though it might be one on which Respondent ultimately would prevail with its contract-bar argument. The problem was twofold. First, that all employees had signed meant the Teamsters would demand recognition, Respondent would have to respond to that, and possibly there would have to be litigation over it. Second , it meant a disrup- tion, of unknown duration, of its apparently stable rela- tionship with the UTE as to the Little Rock terminal. In short, the news Penfield conveyed to Chandler was not good, and it upset Chandler. I find that Chandler viewed the Teamsters, and Mid- dlebrook, as a disruptive influence for Red Arrow at Little Rock. I find that he conveyed all this to his superi- or (unidentified in the record) and that Respondent, through Rhodes, acted on this concern . Thus, animus is shown. Shifting reasons. The General Counsel's shifting reasons argument is this. Respondent's termination notice of "business conditions " is an economic ground, but at the hearing Respondent advanced its assignment -by-mistake argument. Responding to this in its 25 June 1987 reply brief, Re- spondent argues it has "never contended that Middle- brook's layoff was due to economic conditions." Re- spondent contends Rhodes picked the "business condi- tions" phrase as being similar to the language in article 66 of the CBA, and that the phrase is similar to the "slack business" or "decline in business" used in prior layoff notices (G.C. Exhs. 14, 17) to Middlebrook him- self. The General Counsel points to the very same evi- dence in support of the Government's argument (Br. at 23). Respondent's reply brief argument overlooks Rhodes' testimony (unsupported by any record evidence) the "workload" dictated that he lay off one driver ( 1:240). Indeed, in its posthearing brief Respondent points to this testimony of Rhodes in arguing that if Middlebrook had not been laid off then "Respondent would have been re- quired to lay off one additional man based on workload requirements" (Br. at 45). But Respondent switches again in light of Supervisor Steve Ellis's statement to Middle- brook when Middlebrook stopped in Dallas en route to south Texas after his layoff (1:115): "While you're on layoff, you can't bid." Respondent argues that Ellis' statement gave Middlebrook the reason he had been laid off (Reply Br. at 2). Although Rhodes' use of "business conditions" con- notes an economic basis, as the General Counsel argues, I find that was not Respondent 's intention . Recall that Rhodes' decision to revoke Middlebrook's assignment was, as I have found, the result of the 4 November con- spiracy by Rhodes, Wright, and Saari to deprive Middle- brook of his statutory rights in order to get him out of Little Rock. No economic ground was needed for this. Instead, the contract could be interpreted in a way that would require the assignment revocation in the name of honoring the contractual principle of seniority. Had Ellis been dictating the layoff notice to Middle- brook, perhaps the notice would have read differently. Rhodes, I find, chose the "business conditions" phrase not only because of its similarity to the article 66 lan- guage, but also because it is ambiguous enough to cover the contractual basis Respondent had jointly devised with the UTE. Rhodes gave unsupported testimony of a (business) need to lay off one driver. Rhodes testified with an unfavorable demeanor and I do not credit him. Respondent appears to have shifted in relation to who initiated the contact between Rhodes and the UTE. In its 25 February 1987 position letter to NLRB Region 26, Respondent wrote that , shortly after the assignment to Middlebrook, Rhodes met with "UTE representatives and expressed his concern that the parties had violated the seniority provisions of the contract by accepting a bid from a less senior laid off employees ." At this point (G.C. Exh. 4 at 10), Respondent inserts its footnote 6 reading: What called this to Mr. Rhodes attention was the fact that when Middlebrook was recalled, the Re- spondent, because of lack of available jobs would have been required to lay off one additional unas- signed driver. The result would have been this indi- vidual, in addition to the three more senior employ- ees already on layoff, each having more seniority than Middlebrook and being laid off while Middle- brook had an assigned position. Respondent's February 1987 position letter implies that Rhodes initiated the contact with the UTE because Rhodes recognized, when Middlebrook was recalled, that the recall would overstaff the drivers by one. This supposed overstaffing attracted Rhodes' attention to Middlebrook's situation (G.C. Exh . 4 at 10 fn. 6). At the hearing Rhodes does not expressly state that the UTE initiated the contact, but he certainly implies the UTE did so when he testified that Wright asked him to explain how Middlebrook could be holding a bid position with RED ARROW FREIGHT LINES senior drivers on layoff (1:228). Wright, called as a wit- ness by Respondent, contends that it was he and Saari who called Rhodes (2:271-272, 285-286). At page 37 of its posthearing brief, Respondent acknowledges that the UTE initiated the contact. Aside from the matter of Respondent's shifting posi- tions, Rhodes' testimony, and Respondent's argument about a business need to lay off one driver is unpersua- sive. Presumably the business need to lay off a driver did not exist in mid-October when Respondent posted the Little Rock-Memphis run for bid and awarded it to Mid- dlebrook. Apparently the "need" developed after Mid- dlebrook began working the run on 19 October. Yet in their testimony about their 4 November meeting in Dallas, neither Rhodes nor Wright describes any men- tion of a business need to lay off one driver in Red Arrow's system. No business records or other evidence was offered to support Rhodes assertion of a "workload" need to lay off one driver. The "need" seems to have conveniently arisen after Penfield's Halloween report to Chandler. As a witness before me, Rhodes testified in an incredi- ble fashion and I do not credit him. Finding the business need to lay off one driver to be a hoax, I infer that Re- spondent chose to conceal an unlawful motive. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). (3) Contract interpretations Before passing to other matters, I must discuss the par- ties' differing interpretations of article 13, section 5, of the CBA. The General Counsel argues that language there authorizes laid-off employees to bid on bulletined (posted) positions (Br. at 23). Respondent describes that interpretation as "the General Counsel's most glaring misconstruction of the contract between the parties." (Reply Br. at 3.) Respondent contends that the section pertains to the occasion when there is systemwide bid- ding. To evaluate these positions, section 5 must be quoted in its entirety (R. Exh. 3 at 30-31): ARTICLE 13 SENIORITY Section 5. Employees laid off due to reduction in forces, if not recalled to service within nine (9) months and not having performed services to the COMPANY will be considered out of service with their COMPANY and will forfeit all seniority rights. Employees on layoff who fail to bid at system- wide bid time will be considered to have resigned their employment and will forfeit all seniority rights provided they have been properly notified as speci- fied below. Employees on layoff may, in addition to bidding on bulletined positions, express a preference to remain on layoff at their home terminal. This pref- erence will be expressed, in order, on the bid form at the time of bidding. If these employees are not assigned to more preferred positions, the bids will 243 be set aside and the assignment of these employees will be made in the following manner. After all other assignments have been made, if open jobs still exist, these positions will be offered to this group in seniority order unless there are more such employees than there are jobs available. If there are more remaining employees than posi- tions available, open jobs will be assigned in the fol- lowing manner: All remaining employees will resub- mit bids. They may express a preference to remain on layoff, however they must bid all open positions. Assignments will be made so that seniority is re- spected. Employees who refuse to accept assignment to an open position under the provisions of this section will be considered to have resigned their employ- ment and will forfeit all seniority. At page 32 of the contract appears two "clarifications" of section 5. The second clarification is the pertinent one, but they both read: CLARIFICATIONS Article 13, Section 5 Not having performed services to the COMPA- NY means the last time employee actually punched the time clock. At system-wide bid time, employees on layoff will be sent a certified letter or handed a letter in the presence of a committeeman notifying them of the system-wide bids, and if such employee on layoff chooses not to exercise his seniority and bid on a job that his seniority will allow him to hold, then he will forfeit all of his seniority rights and be removed from the seniority roster. The General Counsel's position is (1) the plain and un- restricted language of the third paragraph of article 13, section 5 states that employees may bid on bulletined po- sitions; (2) under article 53, section 2, no distinction is made between employees and laid-off employees when a run is posted for bidding; (3) Chandler, Respondent's vice president of industrial relations, and the person who personally handles Respondent's labor relations (1:24), in- terpreted the contract as calling for Respondent to assign the run to Middlebrook even though he was on layoff since the drivers senior to him did not bid, and (4) the past practice. As to the past practice, I earlier found the evidence to be limited, conflicting, and of no help. Respondent's argument is that the third paragraph of section 5 is a continuation of the second paragraph which sets forth procedures for laid-off employees bid- ding at systemwide bid time. There is no contention by the General Counsel that Middlebrook bid at systemwide bid time. Respondent writes further (Reply Br. at 4): It is interesting to note that at the hearing, the Gen- eral Counsel did not proffer testimony from any witness that Article 13, section 5 stands for the proposition he is now asserting. Respondent did not 244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD offer testimony regarding that provision because it is irrelevant to the instant case. Apparently because it deemed the language irrelevant, Respondent chose not to have Chandler , its vice presi- dent over labor relations, testify concerning his under- standing of article 13, section 5. However , the record contains Chandler's interpretation (given before Pen- field's Halloween report) by virtue of the testimony by Rhodes concerning his mid-October call to Chandler for Chandler's advice . On that occasion Chandler advised Rhodes that the Little Rock-Memphis assignment would go to Middlebrook because the senior drivers on layoff had not bid. The General Counsel asked Chandler, while Chandler was testifying as a witness called under Federal Rules of Evidence 611(c), why Middlebrook was laid off. Chan- dler testified that Middlebrook was laid off when it was determined he had been recalled from layoff in violation of the seniority provisions of the contract. Chandler added that he played no role in the layoff and was not consulted about it (1:28-29, 43). I interpret Chandler's testimony to be his statement of Respondent's reason for Middlebrook's layoff. Chandler was not asked to give his understanding of article 13, section 5, or whether Re- spondent's reason for the layoff was, in his opinion, re- quired by the CBA. When Chandler testified during Re- spondent's case-in-chief he was not asked about this sub- ject. (4) Conclusions If I found it necessary to make a finding regarding the interpretation of article 13, section 5, I would adopt the General Counsel's reading. I would find that the system- wide bid time provisions of section 5 require a laid off employee to bid at that time, and that, under the third paragraph he may bid at other times. However, as the in- terpretation Respondent contends for on brief is not fa- cially frivolous, I see no need to make a finding on the matter. This is so because even if Respondent's interpre- tation is viewed as possible , or even reasonable, I never- theless find that Respondent devised it here solely for use as a pretext to remove Middlebrook from Little Rock in order to chill the organizing effort there by the Team- sters. Although Wright was successful on 5 November in persuading the Little Rock employees to sign with the UTE, Rhodes, Wright, and Saari did not know in ad- vance that would be the result of Wright's visit there. Nor could they anticipate that such signing would cause the Teamsters to abandon its organizing effort in Little Rock. The General Counsel established a prima facie case re- garding Middlebrook. I further find Respondent's evi- dence to be either false (such as a business need to lay off one driver) or fashioned as a pretext (such as its inter- pretation of the CBA) to justify laying off Middlebrook because of his activities for the Teamsters. In conclusion, I find that Respondent violated Section 8(a)(3) and (1) of the Act when, effective 9 November 1986, it laid off Perry Wayne Middlebrook. D. Dennis Spruill Terminated 1. Facts On 6 November, after Middlebrook was notified of his layoff, Respondent posted the Little Rock-Memphis run for bidding (G.C. Exh. 3d). The only bid Respondent re- ceived was from Middlebrook. Respondent viewed Middlebrook's bid as invalid because the same set of cir- cumstances prevailed which called for his layoff from the posted position (1:233-234, 246, Rhodes). With no bids received other than Middlebrook's, which Respondent deemed to be invalid, Red Arrow as- signed the Little Rock-Memphis run to Dennis Spruill, the junior unassigned driver (1:234-235, 239-240). Spruill had not bid on the position (1:239). Respondent notified Spruill of the assignment by virtue of a 14 November bulletin board announcement reflecting that the assign- ment was effective Saturday, 15 November (G.C. Exh. 3e). As previously discussed, Rhodes (1:235, 241, 256), Wright (2:278-280, 286-287), and Chandler (1:53) testi- fied that a driver can be required, under article 53, sec- tion 4 of the CBA to take an assignment and if he refuses he can be terminated. Sunday, 16 November, was the day Spruill was to begin the Little Rock-Memphis run (1:185). The 6 No- vember posting sheet explains that the run begins Sunday night at "2300," or 11 p.m., and operates through the fol- lowing Friday. Spruill testified that no one had called him the preceding week, that he had not checked the bulletin board, and that he had taken a personal trip that same weekend to Oklahoma City (1:181, 183, 187). At 4 p.m. on Sunday, 16 November, Supervisor Steve Ellis called Spruill and asked him if he was going to cover his run. Sure, answered Spruill, where is it. Ellis said Spruill was scheduled to leave Little Rock at 6 p.m. for a Memphis "flip." Spruill told Ellis to protect his load (have another driver take it) for there was no way he could get from his home in Irving (Dallas) to Little Rock in 2 hours. Ellis told Spruill to call Rhodes the next day (1:182-183, 185, 187). The following morning, Monday, 17 November, Spruill called Rhodes and reported the foregoing facts. According to Spruill, Rhodes said he would have to dis- cipline him. Spruill replied Rhodes did not have to worry about any discipline , that he would simply resign. Rhodes said all night (1:182-183, 185-186, 187). Spruill testified that after thinking over the matter the rest of the day he decided against resigning . It was too late that night to notify Rhodes of his change of mind, and Spruill never informed Rhodes thereafter (1:186). Had he not been assigned to the Little Rock-Memphis run, Spruill testified, he would not have resigned (1:187- 188). Rhodes denies there was any discussion of discipline. He testified he instructed Spruill to proceed that day to Little Rock to assume the run, but Spruill said he would quit before he would go to Little Rock. Rhodes asked Spruill to put his resignation in writing and Spruill said he would but never did (1:242, 248). RED ARROW FREIGHT LINES Not hearing from Spruill, Rhodes sent Spruill the fol- lowing termination letter dated 19 November (1:242-243; G.C. Exh. 12): On Line Notice 58 dated November 14, 1986 you were assigned to run number 716-7161T. This run was assigned based on your failure to exercise a bid and you being the junior unassigned person in the system. On Sunday, November 16, 1986 you failed to report to pull the run. On Monday, November 17, 1986 you advised me via telephone you were re- signing your position at the Red Arrow Freight Lines. To date you have failed to do so. Based on your actions, I find it necessary to ter- minate your employment with Red Arrow Freight Lines. I credit Rhodes over Spruill in this matter . It seems strange that Spruill, if he is credited , apparently made no contact with Respondent's Dallas office during the next 2 or 3 days before he received Respondent's termination notice. Spruill's conduct in failing to call Rhodes, or to go check the bulletin board if he was interested in other runs, is more consistent with the version of Rhodes than with that given by Spruill. 2. Conclusions Arguing that Middlebrook's layoff had a "domino effect" which resulted in Spruill's termination (1:14, 208), and citing Howard Johnson Co., 209 NLRB 1122 (1974), and the theory of "causally related," the General Coun- sel contends that Respondent violated Section 8(a)(3) of the Act when it terminated Spruill (Br. at 27-28). As amended at the hearing (1:8), the complaint alleges that Respondent "caused" Spruill's 19 November termi- nation by laying off Middlebrook and thereafter attempt- ing to force Spruill to drive the Little Rock-Memphis run (G.C. Exh. 15; 2:263-264). The General Counsel's position is that because of the "domino effect" Spruill was constructively discharged (1:203, 211). Describing the evidence as showing that the Respond- ent either terminated Spruill or caused his termination, the General Counsel, at the close of the hearing, moved to conform the pleadings (par. 9) to the proof. The Gen- eral Counsel explained his theory as being either an out- right discharge or a constructive discharge. Respondent objected, and I reserved ruling until this decision (2:330- 332). It is arguable the language alleged is broad enough to encompass both theories. Actual discharge appears not only closely connected to the allegation, but integrally related. In any event, the matter of discharge was fully litigated. I grant the General Counsel's motion to con- form. Respondent sees the initial issue as one of causation. Was Spruill's termination caused by Middlebrook's layoff or by Spruill's voluntary decision that he did not want the Little Rock run or his job with Respondent? Spruill's refusal and resignation, Respondent argues, combine to constitute a superseding or intervening cause of Spruill's termination. Respondent describes the General Counsel's 245 "domino effect" theory as "murky reasoning unworthy of credence." (Br. at 50.) The Board specifies two elements of a constructive discharge. First, the burdens imposed on the employee must cause, and be intended to cause, a change in the employee's working conditions so difficult or unpleasant as to force him to resign . Second, it must be shown that those burdens were imposed because of the employee's union activities. Crystal Princeton Refining, 222 NLRB 1068 (1976). Although one may initially think of the Crystal Prince- ton rule in connection with an employee assigned to per- form unusually heavy, dirty, dangerous, or other phys- ically unbearable work, the elements of Crystal Princeton are elastic enough to cover a variety of situations. For example, in Sure-Tan v. NLRB, 467 U.S. 883 (1984), the Supreme Court upheld the Board's findings that Sure- Tan had violated Section 8(a)(3) of the Act by construc- tively discharging its undocumented alien employees through reporting them to the Immigration and Natural- ization Service in retaliation for their participating in union activities. See Sure-Tan, 277 NLRB 302 (1985). The concept of a constructive discharge also includes an employer's presenting an employee with the "Hob- son's choice" of conditioning employment on the em- ployee's abandoning rights guaranteed by the Act. CER, 269 NLRB 1070, 1074 (5th Cir. 1984), enfd. 762 F.2d 482 (1985). The Hobson's choice concept goes at least as far back as the early case of Atlas Mills, 3 NLRB 10, 17 (1937). Although the Hobson's choice cases frequently involve a choice between retaining a job with a firm which is converting to nonunion status , or leaving the job in order to remain union,12 the concept recently was mani- fested in a mental anguish situation . Maxi City Deli, 282 NLRB 742 (1987). In Maxi City Deli the Board found a constructive discharge when an employee quit after be- coming emotionally distraught when the employer threatened to expose her daughter's abortion if the em- ployee mother did not cease her union activity. Was Spruill's resignation a constructive discharge? Not in the usual sense. Although Middlebrook gave some tes- timony that most drivers would find the job assignment a difficult one on which to survive economically, we must recall that Respondent established the run in response to Middlebrook's grievance of September 1986. The UTE supported that grievance. As the record reflects, drivers can be forced to accept job assignments away from their homes. Spruill gave no testimony describing the run or explaining why he may not have wanted it. Thus, the evidence falls short of showing that the job entailed in- tolerable working conditions. Was there a Hobson's choice? Again, not in the usual sense. The choice given did not involve relinquishing statutory rights, and there is no showing that the job as- signment was intolerable. As noted earlier, the General Counsel cites and relies, not on the Crystal Princeton line of cases, but on Howard Johnson Co., 209 NLRB 1122 (1974). Spruill resigned, 12 As in Watt Electric, 273 NLRB 655, 659 (1984) 246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD but he did so because he was assigned to the Little Rock run which had been taken from Middlebrook. But for Middlebrook's illegal layoff, Respondent would not have assigned Spruill to the Little Rock-Memphis run. Does Spruill's refusal and resignation , as Respondent argues, constitute a superseding cause? In Sure-Tan v. NLRB, supra, the Supreme Court rejected a similar ar- gument. There Sure-Tan argued that it was the employ- ee's status as illegal aliens that was the "proximate cause" of their deportation. The Supreme Court noted the administrative law judge's conclusion that, but for Sure-Tan's letter to the Immigration Service, the discri- minatees would have continued to work indefinitely. 467 U.S. at 894-895. Similarly, it is apparent here that but for Respondent's unlawfully laying off Middlebrook from the Little Rock- Memphis run, Respondent would not have assigned Spruill to that run, and Spruill would not have resigned or, as here, been terminated in the absence of submitting a written resignation. Thus, the General Counsel's "domino" theory of discrimination is established as, in effect, a constructive discharge. Accordingly, I find that Respondent violated Section 8(a)(3) of the Act when it constructively discharged Dennis Spruill on 17 Novem- ber 1986. E. The No-Solicitation/No-Distribution Rules 1. The allegations The complaint contains two allegations on the subject of no-solicitation . Because they are related I shall discuss them together. As amended at the hearing, complaint paragraph 7 reads (G.C. Exh. 15): 7. (a) On or about October 1, 1986, by issuing a com- pany policy manual, Respondent promulgated and since said date has maintained the following rule: Solicitation is permitted only when (1) the prod- uct or service being sold is directly related to the business activity of the corporation, (2) the solici- tation has been approved by the Executive Policy Committee, and (3) the solicitation does not inter- fere with the work schedule. All solicitation which does not meet all of these requirements is prohibited. (b) On or about April 20, 1987, by issuing a new company policy, Respondent promulgated and since said date has maintained the following rule: The posting of any leaflets, notices, literature, or other material on Company property or bulletin boards without the permission of management is strictly prohibited. Moments after he rested his case-in-chief, the General Counsel moved to add paragraph 7(b) to the complaint. Respondent objected on the basis the amendment was untimely, but it could point to no practical prejudice such as a need to call a witness not present. Overruling Respondent's objection, I granted the General Counsel's motion to reopen the Government's case and to amend the complaint (1:197-203). Mercury Marine, 282 NLRB 794 fn. 2 (1987). Appearing in complaint paragraph 8, the second alle- gation reads: 8. (a) In late October 1986 and early November 1986, the exact dates being unknown at this time, by verbal announcement, Respondent promulgated and since said date has maintained the following rule: No union talk on company time. (b) Respondent promulgated and maintained the rule described above in paragraph 8(a) in order to discourage its employees from joining, supporting, or assisting the Union. 2. Discussion Although literally accurate, the allegations of com- plaint paragraph 7 tend to mislead. This is so because the company policies were issued to supervision-not posted on a bulletin board for employees to read. Accordingly, I shall dismiss paragraph 7. Respecting complaint paragraph 8, the evidence has been described earlier. Terminal Manager Penfield does not deny telling city driver Roy Jackson, the evening of 31 October, not to talk about any union activities on company time (1:175). Penfield admits telling his terminal employees, plus Middlebrook, on 3 November that they must not conduct any union business on company time (1:63, 68). In its 25 February 1987 position letter to NLRB Region 26, Respondent wrote (G.C. Exh. 4 at 12): Finally, with respect to the Charging Party's allega- tions that Terminal Manager Alan Penfield an- nounced, during the first week of November 1986, a rule prohibiting union talk on Company time, the Respondent would submit as Exhibit "4" a policy statement concerning solicitations while on Compa- ny time. This policy, effective since October 1, 1986, prohibits all solicitations on Company time and premises that do not meet the three require- ments set forth therein. In early November, when Mr. Middlebrook and a Teamster representative began soliciting the pickup and delivery drivers on Company premises and during the employee's working hours Mr. Penfield (in accordance with this policy) informed the employees that there would be no union solicitations allowed on Compa- ny time and property. The same rules were in force at the time the UTE representative came to Little Rock to sign up the drivers and, as stated previous- ly, the UTE conducted its membership activities during the employee's off duty hours and away from Company premises. Penfield's instructions to Jackson and the other em- ployees was overly broad (the distinction between union talk and union business is immaterial here). The reference RED ARROW FREIGHT LINES to "company" time rather than to "working" time is a material distinction. The former term implies all the time an employee is "on the clock" (being paid) which nor- mally includes breaktimes. Because breaktimes are em- ployees' free time, in which they may discuss union ac- tivities or solicit their fellow employees to join or sup- port a labor organization, Penfield's instructions violated Section 8(a)(1) of the Act. Our Way, 268 NLRB 394 (1983); Limestone Apparel Corp., 255 NLRB 722 fn. 1 (1981). Citing decisions by the Board, i s Respondent, howev- er, contends it effectively disavowed Penfield's remarks when it posted the following notice to employees (R. Exh. lb). The notice is dated "April 20,1987," but Pen- field testified that he did not post it at the Little Rock terminal until a day or two later (1:66-67): NOTICE To EMPLOYEES The National Labor Relations Act gives employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through representatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any of these things. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with, restrains or coerces you with respect to these rights. WE WILL NOT make, announce or enforce any rule which prohibits only union solicitations. WE WILL NOT issue any rule prohibiting solicita- tion without clearly telling employees when they may lawfully engage in such activities. All prior rules regarding solicitation are hereby rescinded. WE WILL NOT in any other manner interfere with, restrain or coerce you in the exercise of rights guaranteed you by Section 7 of the Act. /s/ Ray Powell Ray Powell President This notice will remain posted for 60 consecutive days from the date of posting and must not be al- tered, defaced, or covered by any other material. The General Counsel contends the disavowal is un- timely under Passavant and, in any event, the violation was integrally related to Middlebrook's layoff (Br. at 31). Countering, Respondent argues the notice was timely be- cause Respondent did not have notice its solicitation rules were being questioned until the complaint issued on 6 March 1987 (Reply Br. at 7). Respondent offers no ex- planation of the further delay of 6 weeks before the post- ing occurred even if some allowance is made for consul- '' Broyhill Co, 260 NLRB 1366 (1982), Passavant Memorial Area Hospi- tal, 237 NLRB 138 (1978). 247 tation with counsel. Of course, Respondent's argument in its reply brief overlooks its own position statement, sub- mitted 25 February during the investigation of the charge. The relevant portion of that statement, quoted above, defends Penfield's remarks as being lawful. I agree that Respondent's attempted repudiation is un- timely. Moreover, I find that the notice fails to comply with the Passavant rule because it fails to be clear and "specific in nature to the coercive conduct." Penfield told employees they could not "talk" about union activi- ties or engage in union "business" on company time. Rather than repudiating these statements in a manner which would leave employees with the clear understand- ing that they were free to engage in such conduct, Re- spondent loaded its notice with ambiguity and confusion about "solicitation." In one paragraph Respondent even implies that it legally may prohibit union solicitation as long as it also prohibits other types of solicitations. The sentence rescinding all prior rules about "solicitation" does not cure these defects. Accordingly, I find that Re- spondent's 20 April 1987 notice to employees fails to ef- fectively repudiate Penfield's unlawful instructions to employees. CONCLUSIONS OF LAW 1. Red Arrow Freight Lines, Inc. is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Each of the following is a labor organization within the meaning of Section 2(5) of the Act: (a) International Teamsters, (b) Teamsters Local 878, and (c) the UTE. 3. On 31 October and 3 November 1986 Respondent violated Section 8(a)(1) of the Act when Alan Penfield, the terminal manager of Respondent's Little Rock, Ar- kansas terminal, instructed employees they were not to talk about union activities or engage in union business on company time. 4. Respondent violated Section 8(a)(3) and (1) of the Act when it laid off line driver Perry Wayne Middle- brook effective 9 November 1986. 5. Respondent violated Section 8(a)(3) and (1) of the Act regarding line driver Dennis Spruill (a) on 14 No- vember 1986 by assigning Spruill to the Little Rock- Memphis run, and (b) on 17 November 1986 by con- structively discharging Spruill. 6. Respondent did not violate Section 8(a)(1) of the Act by adopting or maintaining no-solicitation/no-distri- bution policies which, even if unlawful if applied to em- ployees, were communicated only to supervision. 7. The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Respond- ent must: (1) Offer Perry Wayne Middlebrook immediate and full reinstatement to his former job of the Little Rock- Memphis run, but specifically to the position he would 248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD be holding absent the discrimination against him revok- ing, if necessary, any conflicting assignments to other drivers or, if that position no longer exists, to a substan- tially equivalent job, without prejudice to his seniority or any other rights and privileges previously enjoyed. (2) Offer Dennis Spruill immediate and full reinstate- ment to his former position of unassigned line driver, but specifically to the position he would be holding absent the discrimination against him revoking, if necessary, any conflicting assignments to other drivers or , if that posi- tion no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights and privileges previously enjoyed. (3) Make whole, with interest, Perry Wayne Middle- brook and Dennis Spruill for any loss of earnings and other benefits each may have suffered as a result of Re- spondent's discrimination against each . Backpay shall be computed in the manner established in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed as pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). See generally Isis Plumbing Co., 138 NLRB 716 (1962). (4) Expunge from its files any reference to its unlawful 9 November 1986 layoff of Perry Wayne Middlebrook and its 17 November 1986 constructive discharge of Dennis Spruill, and it must notify each in writing that this has been done and that evidence of such discrimina- tion will not be used as a basis for further personnel action against him. Because Perry Wayne Middlebrook consults Respond- ent's bulletin board at the McAllen , Texas terminal, and Dennis Spruill does the same at the Dallas, Texas termi- nal, I shall order Respondent to post the notice to em- ployees at those terminals, plus its San Antonio, Texas general office, as well as its Little Rock, Arkansas loca- tion. [Recommended Order omitted from publication.]