Blue Square Ii, Inc , Energy Sales Ii, Inc , And Enerhaul Ii, Inc

BLUE SQUARE II Blue Square II, Inc , Energy Sales II, Inc , and En- erhaul II, Inc and United Mine Workers of America Case 10-CA-22891 February 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 24, 1988, Administrative Law Judge Richard J Linton issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order as modified 3 i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent has not filed exceptions to the judge s findings that the Respondent violated Sec 8(a)(1) of the Act by coercively interrogat ing and threatening employees with plant closure and threatening em ployees with discharge and the General Counsel has not excepted to the judge s dismissals of complaint allegations We correct the following inadvertent errors of the judge which do not affect his conclusions In sec III C 2 a par 5 of his decision the judge inadvertently omitted the end of a sentence In sec III C 4 a par 8 of his decision the judge incorrectly identifies Samons as Bicknell In sec III C 5 a par 3 of his decision the judge incorrectly identifies the Re spondent as Richardson In sec III C 5 b par 23 of his decision the judge incorrectly identifies Respondent as Richardson In sec III C 5 c par 6 of his decision the judge twice incorrectly identifies Richardson as Meeks The Respondent and the General Counsel stipulated and we find that the Respondent s operations managers are supervisors within the meaning of Sec 2(11) of the Act 2 The record supports the judge s finding that the Respondent evaluat ed its drivers safety records by assigning a point value for moving viola tions and accidents and that the Respondents regular practice was to re quest motor vehicle reports (MVRs) from the State s public safety de partment for all its drivers twice each year The record further supports the judge s finding that the Respondent accelerated its MVR request in order to disguise its decision to discharge Richardson in retaliation for his testimony at the representation hearing but that the Respondent pursu ant to its regular practice would have requested MVRs for all its drivers at a later date and that that request would have resulted in Richardson s lawful discharge for unsafe driving We agree with the judge s decision to leave to the compliance stage of the proceeding determination of the specific date when the Respondent would have made its regular MVR request 3 We shall modify the judge s decision to add the standard Board rein statement remedy for King s discharge We do not agree with the Re spondent s contention that the record conclusively establishes that King cannot be reinstated to his former position and that the Respondent has no substantially equivalent positions We instead leave to compliance a determination of whether King may legally resume his position with the Respondent and if not whether a substantially equivalent position exists See generally Dean General Contractors 285 NLRB 573 (1987) We shall also conform the judge s recommended Order and notice with his findings and conclusions regarding the unlawful discharges of 29 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Blue Square II, Inc, Energy Sales II, Inc, and Enerhaul II, Inc, Sumiton, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(b) and re- letter the subsequent paragraph "(b) Discharging or otherwise discriminating against employees for supporting United Mine Workers of America or any other union or for giving testimony before the National Labor Rela- tions Board " 2 Substitute the following for paragraph 2(a) "(a) Offer Larry E King immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene fits resulting from his discharge, in the manner set forth in the remedy section of the judge's decision If no such position is available, then make him whole until such time that he obtains substantially equivalent employment elsewhere " 3 Substitute the attached notice for that of the administrative law judge King and Richardson by requiring the Respondent to cease and desist from discharging or otherwise discriminating against employees for sup porting United Mine Workers of America or any other union or for giving testimony before the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has 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 293 NLRB No 5 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT coercively question you about your union support or activities WE WILL NOT threaten you with plant closure or discharge should you join or support United Mine Workers of America or any other union WE WILL NOT discharge or otherwise discnmi nate against any of you for supporting United Mine Workers of America or any other union or for giving testimony before the National Labor Rela- tions Board 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 Larry E King immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed, and we will make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest If no such position is available, as determined at the compliance stage, then WE WILL make him whole until such time that he obtains substantially equivalent employment elsewhere WE WILL make whole Jimmy Allen Richardson for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest, from the date of his discharge until the date, to be determined at the compliance stage, that he would have been discharged because of his driving record WE WILL notify Larry E King and Jimmy Allen Richardson in writing that we have removed from our files any reference to their discharges and that the discharges will not be used against them in any way BLUE SQUARE II, INC, ENERGY SALES II, INC, AND ENERHAUL, II, INC E Walter Bowman III Esq , for the General Counsel Harry L Hopkins Esq (Lange Simpson Robinson & Somerville) of Birmingham Alabama for the Re spondent Robert Webb, of Birmingham, Alabama, for the Charging Party DECISION STATEMENT OF THE CASE RICHARD J LINTON Administrative Law Judge This is a discharge case The General Counsel alleges Re spondent unlawfully fired two of its drivers (Larry E King and Ricky Farris) because they supported the United Mine Workers of America and that Respondent unlawfully fired two other drivers (James D Samons and Jimmy Allen Richardson) because they testified as witnesses for the Union on 4 August 1987, at a represen tation hearing in Case 10-RC-13532 I find merit as to King (but order a conditional remedy) and to Richard son (but I order a make whole remedy only as to Rich ardson), and I dismiss the complaint as to Farris and Samons This case was tried before me in Birmingham, Ala bama, on 17-18 February 1988 pursuant to the 27 No vember 1987 complaint issued by the General Counsel of the National Labor Relations Board through the Acting Regional Director for Region 10 of the Board The com plaint is based on a charge filed 29 September 1987, and subsequently amended, by United Mine Workers of America (UMW, Union, or Charging Party ) against Blue Square II Inc (Blue Square or BSI), Energy Sales II, Inc (Energy Sales or ESI), and Enerhaul II, Inc (Ener haul) (singly or collectively, Respondent) i In the complaint the General Counsel alleges that the Respondent violated Section 8(a)(1) of the Act by seven instances of interrogation, threats, and surveillance from about mid July to about mid October, and Section 8(a)(3) of the Act by discharging Ricky Farris on 3 August and Larry King on 5 August and Section 8(a)(4) of the Act by discharging James D Samons on 6 August and Jimmy Allen Richardson on 10 August 1987 By its answer Respondent admits certain factual mat tern, denies violating the Act and pleads certain affirms tive defenses On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel2 and the Re spondent, I make the following FINDINGS OF FACT I JURISDICTION Each Respondent is an Alabama corporation, has an office in Alabama and hauls coal intrastate for coal com panies During the past 12 months each Respondent re ceived gross revenue of at least $50 000 from such coal hauling business from firms each of whom in turn sold coal valued at $50,000 or more to entities outside the State of Alabama (1 8-10) 3 Respondent admits and I find, that each Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION INVOLVED Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act All dates are for 1987 unless otherwise indicated z Counsel for the General Counsel also submitted a proposed order and notice to employees 9 References to the two volume transcript of testimony are by volume and page BLUE SQUARE II 31 III THE ALLEGED UNFAIR LABOR PRACTICES A Background 1 Corporate structure Stipulating for the purpose of this proceeding the par ties agree that BSI ESI, and Enerhaul constitute a single employer ( 1 8) Jim Watkins is chairman of the three companies, and Danny Gilliland is president ( 1 180-181) Frank Meeks functions both as general manager of the three firms (2 537) and also as operations manager, or road boss, ' of Blue Square (2 363, 542) Gene Crouse is the operations manager (road boss ) at ESI and Glenn A Bicknell holds that position at Enerhaul (2 414) Meeks testified that Respondent employs 15 employees all driv ers, at each of these firms and that occasionally Re spondent hires casuals No clericals are employed be cause that work is contracted out Meeks testified (2 578- 579) Apparently the contractor is Truck Maintenance Inc (TMI), for Meeks testified TMI maintains the per sonnel records for the three firms (2 557) Although the matter is not developed, TMI apparently is a corporate relative of the three other firms In Case 10-RC-13532 (which I shall discuss in more detail momentarily) the 15 September Decision and Direction of Election of the Re gional Director describes BSI ESI , and Enerhaul as being under common ownership with the same president and board of directors and with the daily administrative operation of the facilities of the three firms being han dled by TMI which also performs the maintenance on and repair of their trucks All agree the trucks are color coded That is, the trucks of one company are painted in blue those of an other red and the third gray Driver Larry King, one of the alleged discnmmatees , testified trucks of BSI are blue, those of ESI are red, and those of Enerhaul are gray (1 43 68) However Dee Allen a former driver who testified for the General Counsel, testified Ener haul's trucks are red ( 1 150) King testified with more specificity and I credit his description of the color desig nations As mentioned earlier Respondent hauls coal for coal companies Respondents primary customer the source of its main income is Drummond Coal Company (1 36 100, 102) Meeks testified he began working for the predecessor BSI in April 1976 Later ESI was created and Enerhaul was the third one to be formed The current owners pur chased the predecessors in November 1986 and that is when the II was added after the names (2 538 -539) The only history of collective bargaining appears to have been at ESI The current organizing campaign grew from conversa tions among some of the drivers beginning about 6 July 1987 Driver Larry King testified that around that date he and some of the drivers began discussing the idea of having the UMW represent the drivers King obtained cards and began collecting signatures (1 37-38) The Union held its first organizational meeting with the em ployees on 18 July and the second on 2 August (1 38, 49) Between those meetings the Union on 21 July filed a petition for an election in Case 10-RC-13532 seeking to represent all drivers employed (in a systemwide single unit) by BSI, ESI, and Enerhaul in Walker and Jefferson Counties, Alabama (G C Exh 9) A hearing on the petition was conducted 4 August (1 31) At the representation hearing two drivers testified for the Union, Jimmy A Richardson and James D Samons (1 179 215) Meeks testified that Respondent did not conduct a formal countercampaign to the Union s or ganizing drive (2 546) The General Counsel alleges that Samons was dis charged 6 August and Richardson on 10 August because they so testified, and that Respondent violated Section 8(a)(4) and (1) of the Act by discharging them for that reason In the meantime Respondent, the General Coun sel alleges violated Section 8(a)(3) and (1) of the Act by discharging drivers Ricky A Farris on 3 August and Larry King on 5 August On 15 September the Regional Director issued his De cision and Direction of Election in Case 10-RC-13532 (G C Exh 10) Respondent requested review which the Board denied by its Order of 14 October (R Exh 24) In a Board supervised election the following day, 15 Octo ber, the votes were 26 no 15 yes, with 10 challenged ballots being insufficient to affect the results Presumably a certification of results issued thereafter Thus the Union lost the election B The Allegations of Interference Restraint and Coercion 1 Introduction The complaint contains seven allegations of interfer ence restraint and coercion Two concern General Manager Frank Meeks on 15 July when it is alleged he unlawfully interrogated an employee and threatened that Respondent would close its facility if the employees sup ported the Union ESI Operations Manager Gene Crouse allegedly threatened discharge on 24 July, interrogated employees on 26 July and on 14 October (the Miller Steam Plant incidents) threatened employees with reprisals bodily harm, and, with Enerhaul Operations Manager Glenn Bicknell, surveilled the union activity of employees 2 Collective bargaining history Meeks testified former owner Gilmore recognized the Union around 1976 or 1977 based on a card check Thereafter (presumably during contract negotiations) a strike ensued The strike was unsuccessful because ESI was able to continue operation of its trucks with replace ment drivers (2 541-542 604-606) The Union apparently never obtained a collective bargaining agreement 2 Frank Meeks Larry King was one of Respondents drivers I will summarize his employment history in more detail when I treat his discharge On 15 July King arrived at the TMI facility to have a flat repaired Meeks maintains an office at TMI in Sumi ton Alabama (140) As an atlas reflects Sumiton is 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about 25 miles northwest of Birmingham King testified that while he was at TMI , Meeks called him into his office (143) Meeks asked Larry what is this that I hear with you trying to get a union up over there at the gray trucks9 Stalling King asked what Meeks was talk ing about Meeks said one of the drivers of the gray trucks (Enerhaul) had reported such information to Meeks that morning Frank, I personally have not talked with no union representative King responded (1 43, 94, 95) Among his comments Meeks stated he wanted King and the others to know that if they went union Drum mond would fire all the trucks, and in that event the company would have no alternative but to change the name of the company and to reopen under a different name Meeks also said the company could switch from dump trucks to flatbed trucks 4 A definite change would be in store if the employees voted in a union Meeks said Meeks added that at one time the drivers had brought in a union at Energy Sales, that the then owners had threat ened to close the plant , and that somewhere along the way the company found a way to avoid signing a union agreement This Meeks said, would be the same proce dure the companies would use here if necessary (1 43-44 96-102) As they walked out of the office King repeated he had not personally spoken with a union representative Meeks commented he had rehired King (in March 1987), that King was a good employee , and Meeks really could not believe the report about King If anyone had started it Meeks added, it was James Samons ( 144) Meeks went one way and King the other As King walked back to the shop he met driver Roger Cain who has the CB handle of Johnny Reb Well Reb, you were right King remarked Somebody s a] ready squealed on me just like you said they would (144-45) Respondent objected to this as hearsay and on the basis Cain is not a supervisor of Respondent I give weight to the evidence of Kings remark to Cain, a remark occurring only moments after King had emerged from his conversation with Meeks as merely corrobora tive of King s testimony about his office conversation with Meeks Meeks denies he had any such conversation with King (2 545-546) King exhibited a more persuasive demeanor than did Meeks and I credit King As the interrogation (complaint par 8) occurred in the privacy of the superi or s office, was directly probing of King s union activi ties, and as King was not shown to have openly declared his support for the Union before that time and, indeed he sought to avoid disclosing his support by answering a different question from that asked by Meeks I find the interrogation to have violated Section 8(a)(1) of the Act, as alleged Similarly, I find Meeks statements about the reaction of Drummond and of Respondent to be a threat (corn plaint par 9) that Respondent would close its facilities if the employees supported the Union To be sure, Meeks 4 As coal would not be hauled on flatbed trucks it is apparent the impact of such a switch would be adverse to the drivers However the meaning of the statement is unclear did not suggest Respondent would go out of business But Respondents business would be changed in a way that, in essence the current drivers would lose their jobs I find Respondent violated Section 8(a)(1) of the Act by Meeks statements to King on 15 July 1987 3 Gene Crouse a 24 July 1987-Dee Allen Dee Allen drove for Enerhaul under the supervision of Operations Manager Glenn Bicknell While enroute on a trip 24 July Allen became ill and had to park by the side of the road A following driver radioed for assist ance Eventually Gene Crouse operations manager for ESI, arrived with a substitute driver and carried Allen back to the shop with him (1 149-150 2 409) Enroute to the shop Crouse Allen testified, asked him about the Union Allen, who does not recall how the subject came up, responded he knew nothing about it (1 149-150 162) No paragraph of the complaint alleges this as an unlawful interrogation However, complaint paragraph 11 does allege Crouse unlawfully threatened employees with discharge (in effect, the second part of this conversation) To Allen s expression of ignorance , Crouse said that if the drivers voted in the Union the man will sell these 45 trucks, that he (the man ) had already made a deal to purchase 25 new road trucks, and the drivers who could qualify would have to run all over the State Allen (who recently had sold his own truck before being re hired at Respondent) said that would be no problem be cause he had been doing it for 3 1/2 years When asked on cross examination whether Crouse had said anything about not having any more coal to haul Allen testified Crouse stated that, if the Union went in Drummond would fire the whole bunch, including Crouse and ev eryone else ( 1 151, 163) Although not referring to this specific conversation Crouse testified Meeks had told him not to discuss the Union with anyone, that he had complied with that in struction and had not discussed anyone having to get an other job because of the Union (2 376a) Allen testified with a more persuasive demeanor than did Crouse and I credit Allen I find the statements of Crouse to be a threat of discharge of at least some (nearly one half) of Respondents 45 drivers if the drivers were to bring in the Union By that threat Respondent violated Section 8(a)(1) of the Act In crediting Allen I have weighed his possible bias against Respondent be cause of his termination on 7 August Allen was one of three terminated employees, named in the original charge, who were deleted from an amended charge filed at the opening of the hearing (1 5-7) Allen exhibited no bias at the hearing over his discharge b 26 July 1987-Ricky A Farris Ricky A Farris had driven for Respondent for about 6 months as of his 3 August termination When terminated Farris was driving for ESI under the supervision of Gene Crouse (1 117) Unable to attend the Union s initial organizational meeting, Farris met a fellow employee the BLUE SQUARE II following day, 19 July, and signed an authorization card (1 119-120, GC Exh 5) Complaint paragraph 10 alleges Crouse interrogated an employee on 26 July Farris testified that in late July after he signed the 19 July card Crouse approached Farris at the ESI office as Farris was turning in certain papers, and asked him what he knew about the union business Farris said he knew nothing Nothing else was said (1 120-121) Crouse generally denies this (2 377), and denies discussing the union topic with any employees (2 376a) He admits, however that he heard a bunch of drivers had signed cards (2 402) I credit Farris who testified with more persuasion on this topic than did Crouse In his brief, the General Counsel does not pause to ex plain why Crouse s isolated question of Farris should be found unlawful Citing cases, Respondent observes that interrogation has been held not to be a per se violation of the Act (Br at 77-78) As the General Counsel has not shown the interrogation would reasonably tend to interfere with the Section 7 rights of Farris or other em ployees, I shall dismiss complaint paragraph 10 c 14 October 1987-Miller Steam Plant (1) Facts The complaint contains three allegations pertaining to a series of incidents beginning at what is called the Miller Steam Plant 5 The plant is a coal fired facility of the Alabama Power Company, and Drummond Coal Company, a coal mining company is one of the firms that sells coal to the plant Respondent is one of the firms that delivers Drummond s coal to the steam plant (2 467-468) A sign is posted at the gate in question limit ing entry to Coal Trucks Only (2 469) As earlier noted James D Samons is one of the al leged discriminatees Samons drove for Enerhaul under Operations Manager Glenn Bicknell (1 201-202) He tes tified at the representation hearing on 4 August on behalf of the Union (1 213-215) Although Respondent takes the position it never discharged Samons (Br 83) the General Counsel contends Respondent unlawfully fired Samons on 6 August On 14 October the day before the election in Case 10- RC-13532, Samons drove his personnel pickup truck to a point outside the gate at the Miller Steam Plant He began distributing leaflets to drivers who would stop for them (1 241 2 335) The legend on the handbills read, Vote Yes (2 335) Samons apparently handed the leaf lets to Respondents drivers only The first of the three allegations, complaint paragraph 12, alleges that on this occasion at the Miller Steam Plant Gene Crouse threatened employees (Samons) with reprisals' if employees joined or supported the Union As noted, the General Counsel does not point to the evi dence that was elicited in support of this allegation A substantial amount of testimony relates to the series of encounters that began that day at the Miller Steam Plant ° The General Counsel does not describe the evidence or discuss these allegations in the Government s brief 33 ESI Operations Manager Gene Crouse testified that Meeks radioed him to investigate a report that someone was stopping Respondents trucks at the Miller Steam Plant (MSP) Crouse was in his vehicle and about 15 minutes from the MSP at the time (2 377-378) As part of his duties as road boss Crouse visits the MSP two to four times a day (2 365) On arriving this day at the vicinity of the entrance, Crouse observed Samons stop ping trucks, mounting their running boards, and passing handbills to the drivers Because he understands that the MSP property line extends out beyond the gate and beyond the point Samons was situated, Crouse viewed Samons as being on the private property of the MSP (2 379-380) Samons considered himself to be on public property (2 335-336) The evidence does not establish which viewpoint is correct Samons denies stopping trucks, saying the drivers voluntarily stopped and took the leaflets (1 241, 2 332- 334) He asserts he did not distribute any of the leaflets after Crouse arrived (1 243) As Crouse pulled up and parked a short distance from Samons, Crouse spoke by radio (Samons had the same radio frequency) to a driver Samons identified as a new driver for BSI (1243) Samons testified Crouse, over the radio, asked the BSI driver, Is that turkey stopping these trucks, giving those leaflets out? Yeah, replied the BSI driver, he gave me one but I wadded it up and throwed it out the window Samons, whose wife was with him, had a Vote Yes on October 15" sign on the windshield of his vehicle (1242-244) According to Crouse, he merely stated over the radio to some of the drivers that if Samons stopped any more of 'my' trucks there was going to be some trouble Shortly after that Samons left and 2 or 3 minutes later, so did Crouse (2 381) Before Samons left, Enerhaul Operations Manager Glenn A Bicknell arrived in response to a report Samons was there stopping trucks and causing a traffic jam (2 464) Samons testified Bicknell displayed a camera and photographed Samons' vehicle with the Vote Yes sign (2 244) 6 According to Bicknell the photographing occurred when the Samons departed moments after Bicknell arrived As the Samons vehicle drove past Bicknell and Crouse, Samons wife, Bicknell testified, shot him a bird Bicknell attempted to photograph the bird but learned later the film was improperly exposed and the photographs were worthless (2 464-465 470) Samons testified it was Crouse who initiated the flipping of birds when he arrived at the scene (2 242) There is no complaint allegation regarding the birds and the Gen- eral Counsel does not seek a finding of a violation in that regard (2 245) The bird sign is a hand and digit ges ture not to be confused with the peace" sign the World War II 'victory' sign, the `thumbs up sign of success or approval or the Hook Em, Horns sign used at the University of Texas 7 From all reports the bird' ges ture is much older than the others and is exhibited in many lands and cultures 6 There is no complaint allegation regarding Bicknell at the MSP 7 As to the latter which originated in 1955 see M C Berry UT Austin Traditions and Nostalgia 18 (1975 Shoal Creek Publishers Inc) 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Asked why he was concerned about Samons action, Bicknell testified he wanted to ascertain whether Samons was stopping the trucks and if so he wanted Samons to cease because Respondent must be concerned about an interference with the flow of trucks from the MSP be cause that is the property of Drummond s customer and Drummond is a big customer of Respondent For that reason it made a lot of difference whether Samons was doing this on the property of the MSP (2 466-470) The second (complaint par 13) and third (complaint par 14) allegations in this series relates to events that oc curred a few minutes after Samons and his wife left the gate area of the MSP Paragraph 13 alleges that on this occasion in and about the vicinity of a shopping center parking lot in West Jefferson, Alabama, Crouse threatened an em ployee with bodily harm if the employee supported the Union Paragraph 14 alleges that on this date, in and about the vicinity of West Jefferson and Dora, Ala bama, Crouse and Bicknell surveilled the union activi ties of employees (Samons) When the Samonses left the MSP gate area they drove to Dora, a town about 20 miles (as appears from an atlas) northwest of Birmingham On the way to Dora they passed Meeks who, according to Samons, shot me a bird' (1 244) Meeks version is that he simply returned Samons bird (2 556-557) Subsequent events became even less neighborly According to Samons (Mrs Samons did not testify), as he drove through Dora (northbound) toward highway 78 he observed that Crouse was behind him The testi mony becomes disjointed at this point but apparently Samons turned into a shopping parking lot and stopped For a moment Crouse lost him but then found Samons and stopped by him on the parking lot of Food World Samons then pulled out and drove to his brother in law s home in Dora That property abuts the highway through Dora As Samons approached his brother in law s home he observed that Bicknell and Crouse, both in vehicles of Respondent, were following him Samons pulled up and stopped in as he describes it his brother in law s yard as it abuts the highway Crouse pulled up behind him and Bicknell pulled up and stopped in front of Samons (1 245-246 248 2 338-340) Crouse testified that after some 2 or 3 minutes he de parted the MSP for TMI The route back went through Dora Although he was not intentionally following Samons, Crouse testified, he did run up behind Samons inside Dora Samons pulled off the road and turned around heading back (in the direction of the MSP) Crouse also turned around He testified there is no shop ping center parking lot at the spot Crouse concedes it can be said he then began following Samons because he wanted to be sure Samons did not return (to the MSP) and stop any more of Respondents trucks (2 382-383) Crouse pulled up and stopped behind Samons The wheels on the driver s side were standing on the high way According to Crouse he did so because Samons motioned for him to do so (2 383 409) Samons denies he so motioned (2 339) Both agree Samons dismounted and walked to the back of his vehicle, and both agree Crouse opened his door but did not fully dismount putting only one foot on the pavement or ground (1 246-247, 2 340, 384, 410) Samons asked Crouse what he was doing fol lowing him (1 246 2 410) According to Samons Crouse said he was going to stick like glue to Samons (1 246, 249) Crouse asserts Samons walked to the back of his own vehicle hollering he was going to whip Crouse s ass (2 384 409) Samons says it was Crouse who threatened to stomp Samons ass (1 246, 249, 2 340) At or about this point Samons wife dismounted and ran to a nearby shop where she apparently telephoned for the Dora police (1 247, 250, 3 341) Samons admits that Crouse included with his words a reference about Samons stopping the trucks (1 246, 251-252) Bicknell testified that he first entered the encounter when he topped a hill and observed Samons pull off the road into the private yard Bicknell asserts he overheard Samons threaten to whip Crouse Bicknell told Crouse Gene, come on Don t get down on his level He s trying to hang you with something like this Samons then, according to Bicknell, turned to Bicknell and said, Get out of the truck and 111 whip your ass right here in the road Bicknell ignored that invitation and urged Crouse to leave After some hesitation, Crouse remount ed and both Crouse and Bicknell departed (2 471-472) Crouse s description of Bicknell s appearance is consist ent with that given by Bicknell, although he places Bick nell as driving up from the opposite direction (2 384-385, 410-411) Samons tells us that Bicknell had turned his vehicle around and then drove up to the scene where he urged Crouse to leave Not as I know of is Samons answer to the question of whether he threatened to whip Bicknell (1 247 2 340-341) Crouse had parked his pickup about 10 feet behind Samons (2 410) As Crouse pulled out to leave he appar ently drove close to Samons Samons claims he thought Crouse was going to hit him and he shook his Vote Yes sign at Crouse (1 248 2 341) Crouse admits he pulled out fast and that he was angry, but he denies trying to hit Samons (2 385) Samons testified he filed an "harassment" charge with the city court of Dora against both Crouse and Bicknell (2 342) and Crouse concedes he was arrested 2 weeks later on a city warrant issued on Samons charge (2 385) The outcome of the local cnmi nal charge is not described in the record (2) Conclusions I shall dismiss these three allegations As to paragraph 12 (threat of reprisals at the MSP), the General Coun sel failed to show that Samons was on public property Respondent initially was concerned that Samons was dis rupting the flow of traffic leaving the MSP Respondent was concerned that its relations with its customer Drummond, could suffer if Samons was disturbing the traffic flow there The actual time of Crouse on the scene was rather short before Samons left Crouse's state ment about trouble if Samons was stopping the trucks is rather ambiguous It could be interpreted as an intent to pursue legal action to obtain an injunction, it could be interpreted as a reference to Drummond becoming upset, or, of course it could be interpreted as a threat of some physical violence Under all the circumstances, I find the BLUE SQUARE II evidence fails to establish that Crouse threatened repass als for protected conduct and I shall dismiss complaint paragraph 12 As for paragraph 13 the General Counsel does not pause to specify which conduct (even if Crouse were fully credited) the Government contends amounts to a threat of bodily harm Was it the whip ass threat? Was it the driving too close to Samons9 And where is the ref erence to union activities? Finally paragraph 13 refers to West Jefferson, but the only confrontation described in the record occurred in Dora, Alabama The General Counsel failed to move at the close of the hearing to conform the pleadings to the evidence Under all the circumstances, it appears that any threat of violence by Crouse is more attributable to the emo tions arising from the scene of confrontation rather than to any implied reference by Crouse to Samons protected activities The confrontation would not have occurred had Crouse not followed Samons However, even if I were to find that Crouse intended to follow Samons from the time Samons left the MSP, and not just when Samons turned back in the direction of the MSP, it is clear Crouse s concern was to prevent Samons from causing bad relations with Drummond by being the cause of trucks stopping as they left the gate at the MSP The General Counsel does not articulate the Govern ment s theory respecting this allegation I shall dismiss paragraph 13 Similarly even if I were to credit Samons it appears any conduct of Crouse and Bicknell was directed at pre serving Respondents customer relations with Drum mond rather than surveilhng the union activities of Samons Samons concedes Crouse expressed at the scene in Dora a concern about Samons stopping the trucks at the MSP gate I shall dismiss paragraph 14 C The Allegations of Discrimination I Introduction As I mentioned earlier, there are four alleged discri manatees here Respondent allegedly violated Section 8(a)(3) and (1) of the Act by discharging Ricky A Farris on 3 August and Larry King on 5 August, and Section 8(a)(4) and (1) by discharging James D Samons on 6 August and Jimmy A Richardson on 10 August 2 Ricky A Farris a Facts Ricky A Farris had been employed at ESI for about 6 months before ESI Operations Manager Gene Crouse discharged him on 3 August 1987 for tampering with his trucks fuel pump (1 117, 124, 2 371 , 373) There is no question that some drivers in the past have broken a safety seal and modified the fuel pumps increasing the rpm of the engines, in order to increase the vehicle s speed (1 126 136 2 367) Drivers are paid by the number and types of loads they haul, not by the hour (1 58) Thus, more speed possibly means more money However, the extra speed is a safety hazard and it de stroys engines (2 367 Crouse) For these reasons Re spondent views such tampering as a dischargeable of 35 fense (2 376, 405) Farris knows this and that previously at least one other employee whose CB handle is Little Man, had been fired for tampering (1 132-133 136) Meeks identifies Little Man as Felix Hadlev an ESI driver he terminated at some earlier time for tam pering with his truck s fuel pump Meeks rehired Hadley about a month later as a new employee when Hadley apologized and reapplied (2 553-555 575 600) As part of his duties Crouse inspects the fuel pumps of the trucks every 30 days or so (2 390) Some 4 to 6 weeks before 3 August Crouse had made such an inspec tion and found the fuel pump on Farris truck to be in proper order (2 366, 391, 403) About 30 July Crouse heard drivers Farris and Callaway talking on their CB radios Trying unsuccessfully to keep up with Farris, Callaway complained he had been trying to get the shop to `fix his truck but the shop would not do it Farris replied that he worked on his own truck, and he was bragging that his truck was faster than anyone s Crouse decided to check Farris fuel pump (2 368, 390-391, 407- 408) The General Counsel did not offer any rebuttal evi dence That evening after Farris parked his company truck, Crouse lifted the hood and discovered the seal had been broken on the fuel pump Crouse had the service manag er verify this and called Crouse at home later that evening The pump was removed for further checking and replaced with another, sealed pump (2 368-370 394- 397) As soon as Farris started the vehicle the following morning, Friday, 31 July he noticed a substantial differ ence in its performance Checking under the hood he found a replacement fuel pump (1 122) He began cursing that someone had messed with his truck and it was not running right (1 138-139 2 370-371 400) Crouse said he knew it that a new pump had been installed to replace the old one that the old one had been tampered with, and he was having the old one inspected Crouse told Farris to go home and return Monday morning, 3 August (1 138, 2 371 397-400) According to Farris he went directly to Meeks and asked what was happening and why was Crouse sending him home (1 123) Meeks said the fuel pump had been tampered with that was amongst other things Asked what he meant by other things Meeks replied Well just amongst other things Meeks told Farris to report back to Crouse on Monday (1 123 141) Meeks does not ex pressly deny having a conversation with Farris at his BSI office on Friday 31 July, but he does deny ever tell ing Farris he was terminated for tampering with his truck among other reasons (2 555) It was not until Farris was terminated Meeks testified that Farris tele phoned him at home that night or the next and asked him to intervene and help get his job restored Meeks said he would check it out The following night Farris called again and Meeks reported what Crouse had told him (earlier that day apparently) Meeks said he would not intervene, that Crouse ran that company (2 553, 600) If he interfered with the supervisors Meeks testified at the hearing, he would not need them (2 609) On Monday morning 3 August Crouse told Farris he had to let him go for tampering with the fuel pump 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Farns denied it and said he could not understand Crouse replied he had been given his orders for Farris to go on and let this blow over 6 to 8 weeks and he would put Farris back to work, and put him in the same truck When Farris observed that he had missed no work and carried extra loads, Crouse acknowledged that Farns was one of his best drivers and that for the last 2 months his truck had been the top dollar truck But, Crouse added my hands are tied, that the decision had come from upstairs (1 124-126 139, 141-142 ) Crouse (2 386) and Meeks (2 555) concede that Farns was a good driver Crouse denies most of Farns version However, he concedes he acknowledged that Crouse was a good driver (2 376a), and he admits they had a dis cussion and he cannot recall all that was said (2 372) Finding that lapse of memory all too convenient, I credit Farns version of their conversation that morning b Discussion I do not credit Farris when he says he did not tamper with the fuel pump I find that he did, and that Crouse discovered it in the circumstances he described But that does not resolve the question of whether Respondent fired Farris because of his union activities The union activities of Farris were slight He signed a union card off premises on 19 July (G C Exh 5) Crouse questioned him in late July on what he knew about this union business ' Farris replied he knew nothing, and nothing else was said to him about a union Crouse admits he heard that a bunch of the drivers had signed cards (2 402) Meeks told Farris on 31 July he was re lieved of duty over the tampering amongst other things On Monday 3 August Crouse told Farris the termination decision had come from upstairs, that his hands were tied, and that he had been given his orders but for Farns to let this blow over and he would call him back to work in 6 to 8 weeks because Farris was one of his best drivers I do not credit Crouse that he did not consult with anyone over the termination of Farns (2 405-406), nor do I credit Meeks that he had no involvement (2 552) From the statements made by Meeks on 31 July ("amongst other things") and Crouse on 3 August cou pled with Crouse s admission he had heard of card sign ing by the drivers and his interrogation of Farns only a day or so before Crouse inspected Farns vehicle, I infer Respondent suspected Farris as being one of the card signers and that this suspicion was a moving reason for the discharge Thus, the General Counsel has established a prima facie case The next question is whether Respondent demonstrat ed it would have fired Farns in any event I find Re spondent did Respondent followed its past practice of terminating drivers who tamper with fuel pumps One such dnver is Felix Hadley ( Little Man ) Meeks subse quently rehired Hadley Farns has not been rehired even though Meeks concedes Farns is a good driver and Meeks has no reason not to rehire him if he came in and convinced Meeks he would not tamper again (2 555) As Meeks credibly explains the difference in the two cases is that Hadley reapplied, admitted his error and prom ised it would not happen again whereas Farns has done to call him (1 142) none of that 8 Indeed as Meeks testified on cross exams nation by the General Counsel (2 602-603) BY MR BOWMAN (Resuming) Q Now, one difference between Little Man and Farris was that Felix Hadley admitted his error and was contrite and said it wouldn t happen again A Yes sir Q He admitted having tampered with his pump A Yes Q Mr Farris, on the other hand, indignantly in silted to the end that he had done nothing wrong Am I correct? A Yes I shall dismiss the complaint as to Ricky A Farns 3 Larry E King a Facts Larry King has worked for Respondent twice His first employment began 4 March 1986 and ended on 31 December 1986 when he left to start his own business (1 34, R Exh 13) When King left, General Manager Frank Meeks (who also directly manages BSI) told King to let him know anytime he wanted his job back (1 35) Meeks denies the assertion of this open invitation (2 544), but I credit King over Meeks King testified with a more persuasive demeanor than did Meeks When King s business plans fell through he returned to Respondent filled out a new employment application (R Exh 13), and Meeks rehired him on 13 March (1 35, 104) A satisfied Meeks said Larry I in really glad to have you back (1 36-37) Meeks testified he rehired King as a substitute driver on a part time basis (2 544) Enerhaul road boss Glenn A Bicknell described records of Respondent reflecting that King worked as a casual for Respondent floating among all three com parties (he did not work at all in some of the weeks) be tween 13 March and 26 May when he became a regular driver for Enerhaul and Bicknell (2 419 422 488) At that time Bicknell testified King s 90 day probationary period began to run (2 422) A substantial amount of evidence was adduced over whether King became a regular employee, subject to a probationary period of 90 days, when hired on 13 March or on 26 May The parties recognize that a pro bationary employee enjoys the Act s protection (2 494- 495), but Respondent contends the probationary status has a bearing on the stated cause of King s termination (Br 105) Stated differently Respondents position is that from the standpoint of motivation and credibility, the question of probation is relevant because its managers viewed King as such and therefore in effect accorded him less due process than an employee who has complet ed his period of probation King is aware that Meeks hires drivers as casuals and assigns them to each company as he sees fit (1 83) Bick nell s first day for Respondent was 26 May (he was hired 8 Farns concedes he has not reapplied and has been waiting for Crouse BLUE SQUARE II 37 as Enerhaul s manager), the same day King was convert ed to permanent status (2 417 488) Crouse Bicknell tes tified hired King full time that day (2 488) According to Bicknell, a driver converted to permanent status is told at that time Bicknell admits he did not tell King and asserts that Crouse would have told King although he concedes that Crouse did not inform him (Bicknell) he had so told King Crouse merely told Bicknell he had put Larry King on full time (2 423-424, 490-491) Nei ther Crouse nor King addressed the matter of whether Crouse hired King full time as of 26 May There seem to be two outward manifestations of per manent status One is that the driver from that time for ward works only for the one company and therefore re ceives his paycheck from that company only (2 494) As a casual a driver can receive three paychecks in 1 week-one from each of the three companies if he drove for all three that week (2 493) The other sign of perma nent status seems to be assignment to one truck Begin ning 26 May King drove truck 3104 until his termination on 5 August (2 419) King concedes he drove the same truck for the last 30 to 60 days of his employment (1 66, 80, 83), and that during his last 30 to 45 days he received checks only from Enerhaul (1 84-85) I find Respondent classified King as a casual driver until 26 May when it converted him to regular or permanent, status, and that at the time of such conversion the 90 day probationary period began to run When he was 12, King's natural right eye had to be removed and replaced with an artificial eye (1 59) Of course he cannot see from his right eye (1 109) On his March 1987 employment application King wrote none in answer to a question whether he had any physical limitation with his eyesight and checked No" on a series of health history questions concerning wheth er he had defective sight (R Exh 13) King has been driving for 20 years and he passed eye examinations for other employers by telling the company doctor he could see good (1 110) According to King, Meeks learned in August 1986 about his artificial eye when King and sev eral drivers were in Meeks office and the topic of con versation turned to King s eye As Meeks watched, King took a ballpoint pen and teasingly bumped his right eye to show that it was artificial Alleged discriminatee Jimmy Richardson was present (1 63-64 78) Richardson corroborates King s testimony (1 189) Meeks denies the incident and asserts he is unaware King has an artificial eye (2 552, 599) Acknowledging that his pretrial affida vit makes no reference to his artificial right eye King ex plains it does not because there was no reason for him to do so since his eyesight was not one of the reasons given for his discharge (1 74, 116) Crediting King and Rich ardson, I find the eye tapping incident occurred in the presence of Meeks and that Meeks observed it Department of Transportation (DOT) rules require distance vision of at least 20/40 (natural or corrected) in each eye, the same for binocular acuity in both eyes, and a field of vision of at least 70 degrees in each eye 49 CFR §§ 391 41(b)(10) (R Exh 2) The regulation ap parently means that a driver must have both natural eyes King is aware he cannot pass a DOT required physical examination (1 60, 62) As already mentioned, he had driven for many years under DOT regulated driving and has passed DOT medical examinations by telling the company retained doctors he could see good (1 110) He can of course, through his left eye In April Respondent retained Examination Manage ment Service (EMS) of Birmingham to administer physi cal examinations required for issuance of DOT certifica tion cards to the drivers The three companies went on separate weeks EMS administered the physical examina tions to Enerhaul drivers at Gene s Restaurant in Sumi ton The restaurant, Meeks explained, serves as a meeting place in Sumiton which , as an atlas reflects and Meeks indicated, is about 25 miles northwest of Birmingham (2 580-582) King took his physical there on 18 April re ceived a passing score (R Exhs 3, 25), and was issued his certification card (G C Exh 3) so stating (1 59, 61, 63, 69, 107) A sharp dispute exists pertaining to the ex animation Respondent apparently informed the drivers of the physical exam about a week beforehand (1 60, 75) Ac cording to King, he approached Meeks, reminded him that he had only one (natural) eye, and asked what kind of physical it would be Meeks said all a driver had to do would be to have his heart checked and pee in a cup " King said, Well, Frank, you know I ve only got one eye, and under [the] federal Department of Transports tion Act I won't be able to pass that physical " Meeks replied, Well, don t worry about that 111 take care of that end of it Just come by and urinate in the cup and 111 take care of the rest of it Well, that s great that you would do this ' King responded (1 60-61, 108-109) Meeks denies having a conversation with King about the physical before he took it (2 583) Despite Meeks assurance he would take care of' the vision portion, King took the full physical because he de cided it would be misleading-indeed, a lie-to do other wise because this was a physical examination for certifi cation under Federal DOT rules (1 61 107-109) 9 That according to King, is what he told Meeks, presumably close to the day, or the day of the examination (1 109) Asked on cross examination whether he thought it was misleading for him to drive with only one eye while car rying the DOT certification in his pocket, King replied no because he had been driving under DOT for 20 years (1 110) When King came to the vision test portion of the physical, a woman examiner was present to administer it King did not know her name as of the hearing (1 61 63) EMS representative Ronnie Stewart testified the examin er is a laboratory technician who recently underwent surgery and was then hospitalized and unable to testify (2 528-529) Although Stewart named the technician, I shall refer to her as examiner Jane Doe inasmuch as nei ther party, apparently, interviewed her during the pre complaint investigation of the charge, the parties did not jointly interview her after the hearing as was discussed at the close of the hearing (2 627-633), and she therefore has not had an opportunity to speak in her own behalf 9 King explains that he does not tell lies (1 95) 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When King arrived at examiner Doe s vision testing station, he sat at a table facing a wall and , apparently an eye chart Examiner Doe was seated to his left as was Meeks (1 61) When examiner Doe asked King to take the card and hold it over his right eye and begin reading a certain line on the eye chart, King said that was unnec essary because he is blind in his right eye (1 61, 112) Doe repeated King s statement in a question, as if to con firm what she had heard, and he said, Yes, ma am To tell you the truth about it, I cant pass this physical should it be a federal Department of Transportation physical " She looked at Meeks, who said nothing turned and asked King again if he was blind in his right eye He said yes Doe said Well, the best I can give you is a 20/40 vision in that eye King then read the chart to the bottom line with his left eye (1 62, 112) The physical examination form indeed reflects as follows (R Exhs 3, 25) VISION For distance Right 20/40 Left 20/20 [X] Without corrective lenses Evidence of disease or injury Right Clear Left Clear Horizontal field of vision Right Normal Left Normal Meeks testified that, although he was in and out of the vision exams a few times, he did not participate in King s exam and did not ask examiner Doe to pass King Meeks asserts he spent most of his time near the drug screening Meeks testified he did not know King could not pass the eye exam (2 583-584) As we shall see, Respondent did not discharge King because he has only one natural eye Thus, the issue really bears on credibility and remedy Whom to credit? Generally, I do not believe Meeks and Bicknell and, gen erally, I do credit King I am given pause as to this point, however, because King s testimony has a tinge of surreal quality His trumpeted professions of scrupulous ness and his pious and superabundant insistence on recta tude at the risk of occupational suicide, sound an alarm bell as to his credibility in this area The Queen s re sponse to Hamlet comes to mind (III, u, 237) The lady doth protest too much methinks Yet, the undisputed physical fact is that examiner Doe recorded King s right eye distant vision as being 20/40- exactly as King testified She did not stop there, but wrote "clear" in the blank space for answering whether there was evidence of disease or injury If that were not enough there is a third test-field of vision For that, ex aminer Doe wrote that King's right eye field of vision (horizontal) is normal How can examiner Doe have so written unless, as King describes it was by arrangement with Respondent through Meeks? Even if King had memorized the eye chart, so that when he read" it with his left eye covered he was able to recall from memory as the vision for his right eye, why did he stop at 20/40 rather than reading to the 20/20 line? How does it happen he would have, or could have, stopped at pre cisely 20/40? And even if that question can be answered how does one explain examiner Doe s answers for the other two vision tests? Coincidence? How do I resolve these questions? In all its 116 page brief, helpful as the brief otherwise is Respondent neglects to suggest an swers to these important questions It is no answer to say I should discredit King and credit Meeks for that does not address the undisputed physical facts-the recordings made by examiner Doe The recordings of examiner Doe add strong support and plausibility to King s version I credit King's version King was one of the drivers who at jobsites around 6 July, began discussing having the UMW represent them He signed his card (G C Exh 4) at the first union meet mg on 18 July at the civic center in Jasper, Alabama About 20 drivers attended King spoke to the group in favor of the Union, and he thereafter persuaded two drivers after work to sign cards (1 37-39) King testified that at the second meeting on 2 August, attended by some 20-22 drivers King suggested to Robert Webb, an International organizer for the Union, that the Union have some employees testify at the upcoming representa tion hearing, and he was instrumental in obtaining the agreement of alleged discnmmatees Richardson and Samons, both of whom were off work on medical leave, to appear and testify at the hearing for the Union (1 49- 51) There is no direct evidence, however, that any of Respondent's managers observed King so participating As I described earlier, before the first union meeting on 18 July, Meeks called King into his office and asked him about a report that King was trying to instigate a union Crediting King s version, I have found Meeks proceeded to threaten discharge for the drivers in the event of unionization A day or two later, about 17 July, King had to leave his truck in Jasper for some repairs to the air condition er Enerhaul road boss Bicknell came to pick up King On the way back to TMI King asked if Bicknell had talked with Meeks concerning the conversation he and Meeks had earlier held about "this union stuff that's going around' Bicknell said yes and he felt as Meeks that King would not have had anything to do with it be cause King s work habits were very sufficient and Bick nell just could not believe King would do anything like that (145-49, 95) Admitting to such a trip, Bicknell denies ary mention of a conversation with Meeks or about a union, and he denies he was aware King was in terested in a union (1 430-431) Respondent objected to King s testimony about the Bicknell conversation on the basis there is no complaint allegation concerning it The General Counsel stated that the evidence was offered merely to show knowledge" and that the General Counsel was not seeking to amend the complaint Respondent then objected to a lack of due process in that the lack of notice prevented Respondent from preparing for a critical part of the case Respondent did not ask for a continuance I overruled Respondent s objection (1 46-48) In its brief Respondent argues the Bicknell conversa tion did not occur and was King s attempt to construct a case against Respondent in that the conversation, admit tedly started by King seems neatly contrived to stretch Meeks suspected knowledge to Bicknell Moreover If it occurred however the content of the conversation es tablishes that Bicknell agreed with Meeks that King s BLUE SQUARE II 39 work habits' were so outstanding that he would not be interested in a union (Br 101) Finding King to be a more impressive witness than Bicknell, I credit King and find the 17 July pickup con versation occurred as he describes Bicknell testified that the morning of 4 August he heard King talking to another , unidentified, driver about passing the (recent) physical exam King bragged, Well, I slipped through and I've got only one eye " That is the first Bicknell had heard that King had only one eye, and he denies Meeks or anyone told him of it earlier (2 425, 431, 498) King recalls no such CB conversation and denies that it occurred (1 88-89, 109) I credit King in his denial According to Bicknell, King's work performance was unsatisfactory It was marked by expressions of dissatis faction by King with the manner in which Bicknell dis patched loads and the places Bicknell sent him King would call him and complain These incidents occurred continually " Moreover, King frequently was tardy in reporting, and he missed some loads King's earnings were about average (2 425-426, 432-434, 496) Bicknell testified that King tested his authority in yet other ways, not enumerated in the record (2 496) Except for agreeing that he and others, including Bicknell him self, complained about having to work too many hours, King denies the allegations of Bicknell (1 105) Bicknell does not claim he ever voiced dissatisfaction to King, and King affirmatively states that Bicknell never did (1 106) Bicknell concedes he never made a notation to King s file on any of these supposed shortcomings (2 496) Even though King was a probationary employee during such period, I observe that Bicknell described his own prac tice of memorializing, by file memos, when he tells em ployees they are converted to regular drivers (2 491) Bicknell testified with an unsatisfactory demeanor as to this, and I do not believe him I find that both Bicknell and Meeks considered King a desirable and capable em ployee about whom they had no complaints King was scheduled to report for work at 5 a m on 5 August He was late, not arriving until 5 45 a in Bick nell testified Bicknell testified that tardiness triggered his decision to terminate King because of all his work defi ciencies (2 500-501, 503) When King arrived at the TMI yard Bicknell went out and told King he was letting him go for poor work performance At some point in this conversation Bicknell told King he wanted an excuse for the lateness 'and, you know, that s why I was dismissing him ' (2 426-427) They argued over whether Bicknell was to furnish the reason in writing Bicknell eventually did so, it would seem while they were standing in the yard (2 427) Apparently at that point King went inside the TMI office and made a telephone call Bicknell went inside some moments later and overheard King asking the person in the telephone conversation What can I do about this? Bicknell turned and walked outside (2 428-429) Then King came out into the yard and ac cording to the sequence described by Bicknell asked (again) for a termination slip, So, I wrote him a terms nation slip " (2 429) Apparently at this point Bicknell told King that ac cording to DOT rules King could not drive with one eye Both my eyes are fine, ' King responded (2 429- 430, 499) King denies there was any reference to his eye in the conversation (1 88) Bicknell testified King 's blindness in his right eye was not a factor in his decision to terminate King and had nothing to do with King s discharge (2 500) Respondent contends, however, that such condition bars King from both reinstatement and backpay even if merit is found (Br 110) King's version is different King testified that on 4 August, the day of the representation hearing in Case 10-RC-13532, he worked 19 hours-until midnight He did not reach his bed until after 2 a in Awakening a bit late he could see he would miss his 5 a in reporting time and he telephoned Bicknell who told him to take your time because King would be going to Gadsden and that meant he would be able to carry only two loads (1 52- 53) King arrived at work about 5 20 am, parked his per sonal vehicle, and started toward his Enerhaul truck At that point Bicknell came from the office and told King he had to let him go King asked why Bicknell said it was because King s work was unsatisfactory in his 90 day probationary period (1 54, 90) 'Naw, let's face the fact, King replied its because of my union activity, nght9 Bicknell said he did not know what King was talking about and he asked King , What union are you talking about? King said, ' Well, in reference to the hearing that was held yesterday (1 54, 89-91 ) Bicknell denies there was a reference to union in his conversation with King that morning, and he denies awareness at the time that King had even participated in any union activi ties (2 430) Bicknell concedes, however, that he had heard there was some union activity among some of the drivers (2 501) King asked if Bicknell was saying his work was no good, and asked how Bicknell could say he was still in his 90 day probationary period Bicknell replied that he had nothing else to say King asked for the reasons in writing and Bicknell agreed to that They then walked into the foreman's office at TMI King asked permission to use the telephone As King called and spoke to Gary Pickett, a representative of the Union, Bicknell wrote out the termination slip (1 54 91) King does not describe the contents of his conversation with Pickett , but he asserts Bicknell heard all of it (1 93) King denies that the Union ever told him to say (if ever fired) that he had been ter minated because of his union activities Moreover common sense would tell me the reason why I was being terminated was because of the union , and I figured the union would want to know about it ' (1 93-94) When King completed his telephone conversation with Pickett (Pickett did not testify), Bicknell handed him the termination slip which reads (1 55, 87, 91, G C Exh 2) 8-5-87 Larry King is being terminated on bases of 90 day probations period His work is unsatisfactory & [he is] being terminated 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD /s/ Manager Glenn Bicknell Enerhaul II Inc I credit King over Bicknell concerning the morning of 5 August As King was removing his personal items from his En erhaul truck Frank Meeks walked by and said (1 56, 92) You 11 never learn, will you? King said yes he had learned to get it in writing As King was about to leave he told Meeks this is nothing personal against Meeks (1 57) Meeks denies that anything more was said than the second part about this having nothing to do with Meeks because all the drivers liked him (2 548) I credit King rather than Meeks b Discussion (1) Conclusions Admitting he had heard there was some union activity among some of the drivers (2 501), Bicknell denies know ing that King was interested in the Union (2 431) He as serts he did not consult with Meeks before terminating King, and that Meeks did not know Bicknell was going to terminate King (2 431, 502-503) As of the hearing Meeks claimed ignorance of the facts about King s terms nation (2 600) Not believing either Meeks or Bicknell I find they did consult before Bicknell terminated King Respondent argues that Meeks You 11 never learn even if credited, could well reflect merely that Meeks had found out about King's lateness after his discharge and so remarked (Br 102) That interpretation is thin because the time ele ment seems rather short to permit it, and I have not credited Bicknell s testimony about King s supposed shortcomings including tardiness But in any event the interpretation I place on it is that given by King (1 92) I think it was dust a slang way of saying you know if you hadn t done this you d still have your job King s this I find refers to Respondents belief that King was an in stigator of the union activity I do not overlook King s statement that in the early morning telephone conversation with Bicknell on 5 August Bicknell told King he did not have to rush be cause King would be going to Gadsden If Meeks and Bicknell conferred when did they? If on 4 August, or the morning of 5 August before King telephoned Bick nell, and if the result of a conference between Meeks and Bicknell was to convey, from or through Meeks, the di rective that King was to be dismissed (because he was so ungrateful as to instigate a union campaign) then why would Bicknell say anything to King about a trip to Gadsden? The General Counsel does not address this question in the Government s posthearing brief The Gadsden reference tends to support Bicknell s version of a spur of the moment firing of King But I have credited King s version of events not Bicknell s It is idle to speculate why Bicknell made the Gadsden ref erence knowing as I have found he was going to fire King when he arrived at the TMI yard As a riddle it remains unresolved but its unresolved status does not compel a reversal of my other findings Finding, as I do, that a motivating reason for King s discharge was Respondents belief he was instrumental in instigating the union campaign the next question is whether Respondent demonstrated it would have fired King in any event The answer to that is no because I have discredited Bicknell and his testimony about King s poor work performance I therefore find, as alleged, that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Larry E King on 5 August 1987 (2) Remedy When it is found an employer has unlawfully dis charged an employee, the standard remedy is reinstate ment plus backpay with interest Larry E King is a truckdriver by occupation Through misfortune King lost his natural right eye when he was 12 He wears an artificial right eye through which, of course he cannot see Frank Meeks testified without contradiction that Alabama has adopted the Federal Department of Trans portation (DOT) regulations (2 548-550) Those rules re quire a truckdriver to have at least 20/40 distant vision in each eye 20/40 binocular vision, and a field of vision of at least 70 degrees in each eye all with or without corrective lenses 49 CFR §§ 391 41(b)(10) (R Exh 2 ) Presumably the regulation means that a driver must have two natural eyes At the hearing the General Counsel stated that the Government does not seek an order requiring Respond ent to violate Alabama s safety regulations (1 22), and argued there is evidence (to be adduced presumably) suggesting Respondent has positions other than driver positions (1 26) The General Counsel fails to point to such evidence in the Governments brief and seems to hedge by contending that King is owed a substantially equivalent job10 of whatever type may be available if he is in fact barred from driving Respondents vehicles by state or federal law (Br at 16) This seems to sug Best that this specific issue be deferred to the compliance stage-a suggestion Respondent opposes on the basis the matter has been fully litigated here (Br 112, 115) Further on in the Governments brief the General Counsel states, One cannot assume that King s employ ment would have been short lived or even that an ex ception a waiver, or non enforcement of regulations would not have occurred (Br 17 ) The General Counsel offered no evidence and makes no request for official notice that Alabama regulations or policy in fact contain grandfather provisions make ex ceptions, or allow waivers for drivers meeting certain conditions Moreover, if Alabama s regulations provided for a waiver, it is possible that any time deadline for ap plication has expired Presumably the evidence here would have disclosed any application by King for a waiver The General Counsel also contends Respondent as the wrongdoer should be liable for backpay until such time 10 As earlier mentioned Meeks testified that each of the three compa mes employs drivers only-not even mechanics (2 579) Thus Respond ent could not train King to be a mechanic at either BSI ESI or Ener haul TMI employs mechanics but TMI is not named here as part of Re spondent BLUE SQUARE II 41 as Respondent provides substantially equivalent employ ment or King obtains that himself The General Coun sel s proposed order incorporates this position The Gen era] Counsel contends King s situation may be compared favorably to cases in which the Board has not tolled the backpay of a discriminatee who is disabled during inter im employment, on the theory he would not have been subjected to the interim risk but for Respondents dis crimination (Br 17) Respondent contends backpay would be improper because King cannot be reinstated Adopting essentially the General Counsels proposed order as to King, I shall defer to the compliance stage of determining whether Respondent has an available posi tion King can fill which is substantially equivalent to his driver s position In the absence of such an available po sition, I shall order that Respondent make King whole until he is able to secure substantially equivalent employ ment elsewhere 4 James D Samons a Introduction James D Samons began driving a truck for Enerhaul in mid November 1986 (1 201) The General Counsel al leges Respondent fired Samons on 6 August 1987 From the beginning , and until August 1987 Samons drove a 1981 Kenworth 18 wheeler dump truck , No 3114 In keeping with the Respondents custom of allowing driv ers regularly assigned specific trucks, Samons had sever al personal items installed such as a CB radio , a stereo with speakers, and other personal items ( 1 202-203) Samons was active for the Union He signed a union card on Saturday 18 July at the first organizational meeting (1205-206) On Sunday, 2 August, around 3 p in , he attended the second union meeting ( 1 206-207, 2 294) and on Tuesday, 4 August, testified on behalf of the Union at the representation hearing in Case 10-RC- 13532 ( 1 213-215) Samons was on sick leave at the time of the representation hearing and had been since being admitted to a hospital with chest pains on Monday 20 July He was released from the hospital on Friday, 24 July but readmitted on Sunday 26 July until released again on Thursday 30 July ( 1 207-212) The General Counsel contends Samons visited Ener haul on Friday 24 July after his release from the hospi tal where he spoke with Bicknell and Meeks Bicknell told him he would have to take a physical examination at the Thuss Clinic before he could return to work because Samons reportedly was suffering from unstable angina Bicknell and Meeks said they would call the clinic on Monday and have Samons scheduled for a Tuesday (28 July) appointment and that they would notify him on that Monday Samons said he would be glad to take the physical ( 1 209-211 , 2 315-317) Bicknell testified he did not see Samons between Friday 17 July and Wednesday 5 August, when Samons with no advance notice reported to work about 6 am (2 441 , 483) Reporting time is 5 am It was on 5 August Bicknell testified that the unstable angina and Thuss Clinic conversation occurred Beginning principal ly with this topic and continuing throughout, the evi dence is sharply disputed The thrust of the General Counsels case is that when Samons sought to return to work on 5 August and thereafter, the only truck Respondent had available for Samons was a 1984 Mack which was in unsafe and un roadworthy condition and that , by classifying Samons as medically disqualified to drive on one hand and on the other by restricting him to the unsafe truck Respondent effectively discharged Samons on 6 August General Manager Meeks testified Samons has not been fired (2 587) Respondent so states in the first affirmative defense in its answer to the complaint and asserts Samons is free to return to work on condition he be ex amined at the Thuss clinic within a reasonable time after his return to work (Br 99 115 ) Earlier, in discussing the case of Larry E King, I quoted from the DOT regulations pertaining to the re quirements for good vision That group of regulations has another health provision relating to heart conditions The regulations provide that a person shall not drive a motor vehicle unless he is physically qualified to do so 49 CFR §§ 391 41(a) And a person is physically quali fled to drive if he i 1 (4) Has no current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency thrombosis or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse or congestive cardiac failure Bicknell testified that starting before July he had expe rienced supervisory difficulties with Samons in that Samons had problems with attendance and punctuality, and in stopping work early rather than hauling his share of the loads, and in refusing to haul certain loads (2 435) To rebut any inference that Respondent began recording file memos concerning Samons as part of a plan to retali ate against him after his testimony at the 4 August repre sentation hearing Bicknell identified a memo he wrote to Meeks on 23 June concerning a problem getting Bicknell to take a load (2 508 R Exh 22) For his part, Samons testified he complained about unsafe working conditions, specifically , having to work in excess of 10 hours a day-as many as 19 to 20 hours a day He initiated these complaints in November 1986 shortly after he began driving for Respondent (2 267- 268 329) Eventually he filed a complaint with the De partment of Labor's Occupational Safety and Health Ad ministration (OSHA) (2 267-268) By motion dated 25 March 1988 Respondent seeks to introduce in evidence OSHA s 19 February 1988 findings and dismissal of Samons charge (by Karen L Mann acting Regional Administrator Department of Labor OSHA) The General Counsel opposes on the basis the findings of fact prejudice the General Counsel who now has no opportunity to rebut The General Counsel does not oppose the basic filing data , including the disposition most of which already is in evidence (Br 18) Overruling the General Counsels objection I grant Respondent s motion and receive the documents in evidence but on the limited basis of showing the basic filing facts, the 11 49 CFR § 391 41(b)(4) R Exh 2 (Emphasis added ) 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nature of the allegations, and the disposition I mark the documents as follows and place them in the folder for Respondent s exhibits motion to admit secretary s find ings (R Exh 46) OSHA s 22 February 1988 letter (from Supervisory Investigator Fredric W Deeley) transmit ting the Secretary s (OSHA s) findings (R Exh 47) and the Secretary s (OSHA s) findings of 19 February 1988 (R Exh 48) In her findings Mann reports that Samons filed his charge on 30 June 1987 complaining that Respondent had discriminated against him in violation of Section 405 of the Surface Transportation Act of 1982 (STkA) Without describing the nature of the discrimination, Mann finds "there is not reasonable cause to believe" that Respondent has violated Section 405(a) of STAA Samons also alleged (apparently by an amendment) he was terminated about 1 September for refusing to drive in violation of DOT regulations Beginning with the date of 9 February Mann describes certain events, some of which are litigated in the disputed evidence here Mann concludes Respondent did not violate the statute respect ing the allegations of a termination on 1 September In his 22 February 1988 transmittal letter Deeley observes that objections to the findings may be filed within 30 days No further information has been forwarded to me concerning the OSHA matter References appear in the record to a claim for unem ployment compensation which Samons filed on Thurs day 9 August (1 232, 2 279 283-284, R Exh 5) The ini teal ruling was favorable for Samons and he apparently collected a few unemployment checks (2 259, 285) Samons was informed in mid October that Respondent had appealed and that a hearing would be held (2 260 G C Exh 12) After a hearing on 28 October, Appeals Referee B E Brazeal reversing the initial favorable de cision, ruled that Samons was disqualified effective 30 August 1987 because he was not discharged but left his employment voluntarily when he quit reporting to work (1 259, R Exh 7) Alabama s Board of Appeals for the Department of Industrial Relations affirmed, and Samons through Attorney A Lee Tucker filed an appeal on 30 November with the local circuit court (2 280-283 R Exh 6) As noted at the beginning of this decision, the Union filed its charge in this case (Case 10-CA-22891) on 29 September listing seven named discriminatees, including the four now pending 12 That charge, however is essen tially identical to one the Union filed on 10 August in Case 10-CA-22746 (R Exh 1) By letter dated 1 Octo ber the Regional Director for NLRB Region 10 ap proved the Union s request to withdraw the 10 August charge (1 11-15) Citing no authority, Respondent contends that the withdrawn charge bars the charge in the instant case (par 1 of answer, 1 11-15) Respondent fails to articulate a basis for its contention, other than saying a withdrawal wipes out the charge Respondent apparently contends 12 On the first day of the hearing the Union filed an amended charge deleting all names except the four now pending and at the beginning of the hearing the General Counsel moved to amend the complaint to re Elect that fact I granted the General Counsels motion (1 5-7) it is a denial of due process when such a withdrawal is done for the sake of someone s convenience and then the charge is refiled with a new and current docket number Respondent does not explain how such action worked to its disadvantage here I note there is no limitations prob lem I find Respondents contention to have no merit Most of the issues pertaining to Samons case are dis puted Consequently resolving credibility is critical b The evidence Our sequence of events begins with Friday, 17 July 1987 In the evenings Bicknell testified, he posts the next day s work assignments, the lineup (2 436) That Friday Samons picked up his paycheck from Bicknell around 2 to 3 p in 13 Bicknell informed Samons he was scheduled to work the next day Samons resisted, saying I don t have to work on Saturday Bicknell stated that they had coal to haul Samons told Bicknell to get an extra (casual) driver Bicknell said he had none and that he was marking Samons down as scheduled to work The conversation ended with Samons saying he would think about it (2 435-437) Around 7 p in, Bicknell testified, Samons called him at home saying he could not work because he was ex hausted that he had gone to a doctor, that the doctor told him not to work, and that Samons had a doctor s excuse 14 Samons did not bring Bicknell a doctor s excuse nor say when Respondent could expect him back at work (2 437-438) As we shall see later, Bicknell testified he did not see or hear from Samons again until Samons unexpectedly reported for work, an hour after the regular 5 a in starting time on Wednesday 5 August (2 438, 441-442 483) According to Samons, after he left work the evening of 17 July he telephoned Dr A E Thomas and reported he was, and had been that week experienc ing chest pains Dr Thomas told Samons not to work that Saturday or, just to lay around," and to come see him that Monday, 20 July 15 With these instructions Samons then called the Enerhaul office but Bicknell was not there Samons around 6 30 to 7 p in telephoned Bicknell at home, reported that he had chest pains and repeated the doctor s instructions Bicknell said if Samons did not work that Saturday or Monday he would have a permanent driver on Samons truck Samons replied he was sick and intended to follow his doctor s orders (1 204 2 292-293 348) Samons concedes on cross examination that sometime during the day on 17 July he received a message from 1 3 In a memo (R Exh 15) he prepared that day or the next morning and addressed to Meeks Bicknell places the conversation about 4 p in (2 439-440 496) 14 In view of all the evidence in the record about medical slips from doctors I find that the witnesses mean an actual document when they refer to a doctor s excuse 15 Notwithstanding the asserted fact Samons was reporting chest pains Dr Thomas did not direct Samons to meet him then or go to the hospital immediately (2 294) In these days when physicians particularly are faced with the specter of malpractice lawsuits at every turn it seems strange that Dr Thomas would not react with more immediate concern on a report of chest pains His reaction seems more in keeping with a report of exhaustion and fatigue BLUE SQUARE II Bicknell that he was needed to work (the next day) and to get in touch with Bicknell (2 288) 16 A long series of questions then begins in which Samons typical answer is that he does not remember (2 289-291) Thus Q And did you then meet him [Bicknell] around four o clock at his pickup for instructions as to where to go? A I don t remember that Q Did you tell him on that occasion that you were not going to work on Saturday? A I don t remember, sir Q Did Mr Bicknell tell you that you were needed? A I don t remember Q Did you refuse to work? A I don t remember Q Did you tell Mr Bicknell that you were not going to work because you had things to do? A I don t remember I just Q Did you speak with Mr Bicknell after that oc casion that day? A I spoke with-I tried to call Mr Bicknell, yes Q Did you argue with him? A What do you mean argue? Q Were you there at Mr Bicknell s office wait ing on him to give you your check? A I don't remember Q Is Friday the day you pick up your check? A Yes, sir Q Do you ordinanly go pick it up? A Yes, sir Q Did you have an argument with him on that date about your check or about coming to work on Saturday? A I don't remember Q Is that when he told you that if you did not come to work on Saturday he would consider you as having quit9 A I don't remember him saying nothing like that I don't remember A All I remember saying to Mr Bicknell when I called his office and reported to him what my doctor had said He told me if I didn t work Saturday or Monday that he d have a permanent driver on my truck Q I guess what I in trying to convey, Mr Samons, [is that] it appears that Mr Bicknell is going to say that earlier in the day before you d even called the doctor you were saying that you were not going to work Saturdays A I don t remember sir Q You don t remember that if it happened? A Yes sir If he tells you that, you know JUDGE LINTON Are you saying that you just don t remember but that it s possible that occurred? 18 Samons asserts he did try (unsuccessfully apparently) to reach Bick nell around 3 or 4 p in (2 292) 43 THE WITNESS Yes sir It could be possible it oc curred I mean I was very tired because I had worked about 50 hours in 3 days-or more As I summarized in the introduction Samons was ad mitted to Walker Regional Medical Center for chest pains on Monday, 20 July He was released on Friday, 24 July, readmitted Sunday, 26 July, and again released on Thursday, 30 July (1 207, 209, 211-212, 2 315-316) Bicknell testified that on Tuesday, 21 July, he received a call from a nurse (more likely an insurance clerk) at Walker Regional Hospital who asked if Samons had in surance coverage Before telling the clerk to call TMI for that information, Bicknell asked the nature of Samons problem The woman caller reported unstable angina Bicknell wrote a note to the file ( To Whom it May Concern") memorializing the call (2 440-441, 497, R Exh 16) At some point thereafter Respondent received an in surance claim form for the services of Dr M D Rob erts, a radiologist, on 20 and 21 July According to the form one of two diagnoses was angina pectons (R Exh 18) As Bicknell testified the form reflects that Dr Roberts signed it on 28 July (2 450) If mailed that day or the next, Respondent presumably would have re ceived it by Friday, 31 July According to Samons, the evening of Friday, 24 July (the day of his initial release from the hospital), he went to TMI where he tendered a medical slip to Bicknell saying he was under the physicians care for medical rea sons Samons testified he had no copy because he gave what he had to Respondent Initially stating the slip was from Dr A E Thomas (a general practitioner, appar ently), he changed that to Dr Richard Kim, a cardiolo gist (1 207-209, 2 295) Samons testimony is a bit confusing as to whether Meeks was present when Samons gave the slip to Bick nell Initially he suggested Meeks was present A moment later it appears he spoke to Bicknell in the yard and to Meeks in the office, yet he also talked to them "together and separately (1 209-210) Although this is a minor discrepancy I need not resolve this imprecise and almost careless manner which marks so much of Samons' testimony illustrates one of the many reasons I find his testimony so unreliable On cross examination Samons identified a slip (R Exh 8) from Richard Kim M D (Internal Medicine & Cardi ology) as the original which he gave Bicknell on 24 July (2 295) Bearing what appears to be the date of 7/24, and reflecting a signature of someone (presumably Dr Kim), and referencing Samons, the text appears to read (R Exh 8) 17 This gentleman is under my care due to chest pains " Tendering of Dr Kim s slip was followed, either im mediately or a few moments later, by both Meeks and Bicknell ( they") telling Samons he would have to take a physical Telling Samons about the call from the woman at the hospital, Bicknell said Samons had unstable angina and would therefore have to take a physical Samons 17 I only guess at the first word and it may be that the This is really some marks indicating the time of day 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD said he would be glad to do so Bicknell said the exams nation would be at the Thuss Clinic in Birmingham that he would call the clinic on Monday (27 July) to resched ule the examination for Tuesday, and that he would call Samons on Monday and give him the appointment time (1209-211, 2 308 315-317) Samons testified Respondent had removed his personal CB radio, the speakers, and all my accessories from his Enerhaul truck They were in a box which Respondent tendered him Samons testified he considered the remov al unusual, for Respondent had never before done that (1 211) He fails to say whether he means as to himself or other drivers In an answer reflective of how Samons contradicts himself, Samons then testified (1 211) Q Was there some explanation? A No, sir They didn t really give me an expla nation He [Bicknell, apparently] said it was the reason on account of he didn t want them stole But that never bothered them before As we shall see in a moment Bicknell testified he re moved Samons personal items to keep them from being stolen (2 452) For comparison, driver Dee Allen, who had been terminated while in the hospital about 8 days, was told on 7 August to come back that afternoon when his former truck was brought in at the end of the day and remove his personal items Although he gives few details, Allen testified he still has not received all his per sonal items, a pair of $14 gloves a hammer two screw drivers, and a wrench (1 153, 156) The implication is that some of his personal items were possibly stolen while he was in the hospital and that Bicknell promised that Allen would get the items Recall from earlier that Samons attended the second union meeting at or about 3 p in on Sunday, 2 August and testified for the Union at the representation hearing of Tuesday 4 August Samons testified that the hearing concluded that day about 11 a in (2 266) According to Samons, after the hearing concluded he went to TMI carrying two back to work slips stating he could return to work on 5 August One slip was from Dr Thomas and the other was from Dr Kim Accord ing to Samons, he gave both slips to Bicknell Samons identified a copy of a slip dated 4 August (G C Exh 8) and bearing the apparent signature of Dr A E Thomas as a copy of the original he gave to Bicknell that day (1 216-217 2 266 317) Samons does not recall what time he went to Dr Thomas that day, but he knows it was not immediately after the representation hearing (2 266- 267) The Dr Thomas slip asserts that Samons has been under the physicians care from 18 July and is able to return to work on 5 August Under the space for re marks is written (2 269, G C Exh 8), Patient is to work only ten hours per day' Explaining how such a peculiar limitation came about, Samons testified it came from exhaustion and fatigue the company put on me by working me over the DOT regulations, which is 10 hours a day The nurse wrote the remarks and Dr Thomas signed the slip The nurse knew to inscribe those words because Samons had been talking with them about it (2 343-344) Earlier Samons had testified on cross examination I am t for sure whether the nurse filled it out that I didn t tell the nurse to put nothing on there, and that he had seen the doctor sign the slip (2 268-269) Bicknell denies seeing Samons on 4 August and denies that Samons came in that day with a doctors slip (2 483) He testified as I have mentioned that he did not see or hear from Samons between their telephone con versation the evening of 17 July until Samons unexpect edly showed up for work at 6 a in , an hour after the regular starting time on 5 August (2 441-442, 483) I will summarize 5 August in a moment Turning now to Dr Kim's slip, I note that Samons tes tified he did not have it (or a copy) because he had given it to Bicknell on 4 August but that the slip said he was able to return to work (1 216-217) There are two slips by Dr Kim in evidence The first is the one dated 24 July which states Samons is under my care due to chest pain (R Exh 8) According to Samons, he gave that slip to Bicknell the afternoon or evening of 24 July Of course, the slip itself speaks of under my care, not may return to work Ostensibly therefore, the 24 July slip is not the one Samons supposedly tendered to Bick nell on 4 August The second slip from Dr Kim does state Samons is able to resume his regular job activity (G C Exh 13) That slip, however, is dated 10 August I discuss it later Samons testified Bicknell told him to report for duty at 5 a in the next day (5 August) but that his truck might be in the shop and he might have to wait When Samons reported on 5 August he found that his truck had the front end removed for repairs Bicknell offered him a maroon colored 1984 Mack It was not one of the regu lar trucks of Respondents three firms and Samons had never driven it before On inspecting the vehicle, Samons observed it needed extensive repairs Samons told Bick nell he could not drive the 1984 Mack in the condition it was in Bicknell told Samons to pull it into the (TMI) shop for the necessary repairs Samons waited 6 hours while the truck was being repaired It was not repaired to Samons satisfaction The record is not clear, but it ap pears Samons unsatisfied objection was that certain trail er tires (apparently the front ones) as well as the front tires the steering tires (on the tractor, evidently) were slick and should be replaced but Bicknell refused When Samons refused to drive on the basis that slick tires could cause a wreck, Bicknell told Samons the truck was all that was available and Samons could either drive it or go home and Bicknell would call him when he had something else for Samons to drive Samons left having waited for the repairs from about 6 am to about 11 45 am (1218-225 2 299-301 329) Bicknell testified that Samons unexpectedly reported for work at 6 am on Wednesday 5 August Samons came in and presented me with a back to work slip However He didn t give me the slip that I remember He showed me the slip (2 442 ) Consistent with Samons Bicknell testified Samons regular truck was in the shop for front end repairs, that Bicknell told Samons he could drive an extra truck (the 1984 Mack) which was available, that Samons inspected BLUE SQUARE II 45 it and protested it was unsafe to drive, that Bicknell had repairs made on the truck while Samons waited and that when those repairs were done Samons said he could not drive the truck because it was not air conditioned (2 442- 444) A repair order is in evidence (R Exh 20) It re flecta that two mechanics that morning made several re pairs The mechanics relined the front axle trailer brakes, replaced certain bushings replaced both brake drums re placed the right front trailer wheel hub, and repaired the backup horn Although the tires are not mentioned, Bicknell testified he and Samons together pointed at the items to be repaired, which we fixed, and he saw noth ing else wrong with the truck (2 444, 475-482) Later that day Bicknell wrote, in hand a three page file memo, To Whom it May Concern, summarizing his conversation with Samons that morning (2 446-447 R Exh 17) After writing that the repairs were made trying to satisfy Samons Bicknell wrote He then refused to drive the truck because it didn t have an air conditioner I informed him that I didn t have [to] furnish him an A C The truck was not equipped with an A C He then told me [he] had to have an A C be cause of the heart condition angina and he was under medication I then told James that was all I had [for him] to drive Bicknell's testimonial description is to the same effect There is no evidence that any of Respondents trucks are air conditioned Bicknell testified he confronted Samons with the ieport from the nurse that Samons had unstable angina Samons confirmed he had the condition but said the doctor had given him a back to work slip (2 444) As I have summarized, Samons essentially confirms this por tion of Bicknell s description, except that Samons places the conversation on Friday, 24 July and it is not clear he concedes he admitted to Bicknell (on whatever date) that he had unstable angina Bicknell testified he then went into the office, obtained the booklet of DOT regulations brought it outside and showed Samons the section about a physical restriction against driving with the condition of angina pectoris Saying he did not think Samons could drive with that condition, Bicknell asked Samons if, at Respondents ex pense, he would go to the Thuss Clinic for a physical ex amination Samons said he would think about it (2 444- 446) At some point, Bicknell concedes, he told Samons the (1984 Mack) truck was all he had for Samons to drive Samons said, I'm confused You know, I don t know what you re trying to do to me Bicknell assured Samons he was not trying to do anything to Samons, that he was just trying to get him to drive a truck But Samons refused to drive it as unsafe (2 446) Bicknell's file memo concludes the episode with Bicknell s request for Samons to go to the Thuss Clinic for a physical, at company expense, and with Samons saying he would let Bicknell know (R Exh 17) Bicknell testified he heard nothing from Samons regarding Thuss Clinic, and that he, Bicknell contacted the clinic about arrangements and was told to send Samons at Respondents convenience (2 447-448) Checking Samons personnel file Bicknell found a medical report for the services of A E Thomas M D, a radiologist at Walker Regional Hospital for the period of 20 to 24 July The medical diagnosis includes angina pectoris (2 450-451 R Exh 18) During cross examination, Samons conceded he did mention the air conditioner and that there was discussion about it However, he claims he does not recall the re marks (2 301-302) Samons then testified as follows (2 302-303) Q Let me ask you to recall this as best you can Did you tell Mr Bicknell you had to have an air conditioner') A Not to my knowledge I don t remember that Q Did you tell him you had to have an air con ditioner because of your condition? A I might have told him on account of the dust conditions at the steam plant down there I might have said that Q Let me ask you if you told him you had to have an air conditioner because of a heart condi tion, angina? A No sir Q That s gust absolutely wrong? A I did not say that, I don t believe, sir Q Examine your recollection now, Mr Samons, and see if that angina was mentioned in that term by you during that conversation A I don t remember After some testimony that Samons probably was on medication, and a reference again to 5 August the testi mony resumes (2 304) Q I guess I want to make sure that you state yes or no Did you tell Mr Bicknell that due to your heart condition, angina, for which you were taking medication you had to have an air conditioner before you could drive? A I don t remember saying that, sir After further testimony that Bicknell said that the truck (the 1984 Mack) was all he had for Samons to drive, that the DOT regulation book was discussed (Samons claims he raised it as a topic), and a reference by Samons that he not the mechanic, is the driver, the testimony resumes (2 305) Q I m reading again from Mr Bicknell's state ment that was supplied to the Labor Board back during the investigation about the DOT regulations involving angina pectoris He will testify, I pre sume that he and you discussed angina pectons after you brought it up, saying you had it and had to have an air conditioner before you could drive And I m asking you if you remember anything about that? A I don t remember nothing like that 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q Are you aware- A If I did, I don t remember it neither laying off Samons nor firing him (1227-230 2314) The foregoing makes it appear Bicknell gave Samons no choice However, at one point in his cross examma tion about the 17 July conversation with Bicknell, Samons injected a reference to 6 August Asked whether Bicknell, on 17 July, had told him that if he refused to work Bicknell wanted the keys to Enerhaul 's truck and for Samons to clean out his personal property, Samons answered, On August 6th, he did Yes, sir " (2 290 ) Notwithstanding his earlier testimony that all his per sonal items had been removed from his Enerhaul truck and given to him on Friday , 24 July, Samons thereafter testified Respondent had failed to remove his CB antenna and stereo Therefore, at 3 30 p in on 7 August Samons called Bicknell about these remaining items Bicknell said for Samons to meet him there at 7 p m to remove them (1 229) When Samons arrived at 7 p in on 7 August he spot ted Dee Allen Samons testified he asked Allen to ac company him and Bicknell to Samons truck where Bick nell had another driver remove Samons remaining prop erty (1 229) According to Samons, on this occasion he asked Bicknell about going to take a physical He re fused Samons then asked Bicknell if there was any work Samons could do and Bicknell said no To Samons' ques tion of whether Bicknell was going to return him to work, Bicknell said no Samons asked Bicknell where he got his information that Samons had unstable angina and, as he had stated on 6 August , Bicknell said it came from a woman at Walker Regional Medical Center , and that Samons insurance would go dead in 30 days (1 230) As I mentioned earlier Dee Allen was present on 7 August to remove his personal items because he had been terminated while in the hospital (1 149, 152, 2 502) Contradicting Samons' assertion that Samons asked Allen to accompany him and Bicknell to Samons truck Allen simply says he was at his truck when Samons came over to his Enerhaul truck, for whatever purpose, and that he, Allen, was standing there when Samons and Bicknell had their conversation (1 157) Called as a witness by the General Counsel, Allen testified he heard Bicknell tell Samons he would have to take a physical before Samons could return to work According to Allen Samons then asked where Bicknell wanted Samons to take the physi cal, but Bicknell did not respond Samons asked when Respondent was going to return him to work and Bick nell said he had no work available Samons asked if he was terminated, and Bicknell said no but Samons insur ance coverage would go dead in 30 days Allen testa feed that termination of insurance coverage would mean, to a driver, that he was fired because a driver's insurance is not terminated in 30 days if he is off work for 30 days with a broken leg (1 153-154, 158-160) As I have noted Bicknell testified he recalls a conver sation with Samons, in the presence of Dee Allen, when Samons returned to claim his personal belongings, but Bicknell does not recall the date Bicknell testified that when Samons picked up his items Bicknell asked him when he was going to be able to return to work Samons responded he did not know and added either he was After a further question or so, with a request to repeat a question, Samons testified that on 5 August he did not have angina pectoris that the tests proved he did not, that he was cleared to return to work, and that on this occasion (5 August) he and Bicknell did not discuss angina pectoris and whether Samons could (lawfully) drive When counsel declined to define angina pectons, Samons asserted, I don t know what you re talking about then I can 't answer a question if I don t know' Asked if he did not know anything about angina pecto ris, Samons testified, I don t know anything about no angina pectoris, no, sir, and that he should not have to answer without a clear definition of the term (2 306-307) Samons also testified that on 5 August nothing was said about a physical examination or the Thuss Clinic At least, Not to my recollection (2 308) Asked whether he ever called the company about going to the Thuss Clinic for the physical, Samons said no because Respond ent said they would call him about it and Respondent never did Moreover, Samons asserts, he spoke with Bicknell around 3 to 3 30 p in on 13 and 14 August and on neither occasion did Bicknell mention the subject of going to the Thuss Clinic, and Respondent has never scheduled an appointment for him there (2 308-309) Samons explanation that he possibly mentioned the air conditioner in relation to dust conditions is just that-a possibility Even if said however, I find it was merely an add on to the principal reason he gave , that being his angina Dorland s Pocket Medical Dictionary advises that angina ' a spasmodic choking, or suffocating pain, is a term "used almost exclusively to denote angina pecto ns As a standard dictionary reveals, angina pectons is severe paroxysmal pain in the chest associated with an insufficient supply of blood to the heart More specifical ly as Dorland's explains it is the insufficient supply of oxygen (carried by the blood) to the heart muscle According to Samons, the evening of 5 August he re turned with his wife to Respondents premises Samons offers no explanation for this visit He testified that on this visit Bicknell asked him for the keys to his regular truck (No 3114) Samons did not have the keys with him Bicknell told Samons to come back at 5 30 the next morning and to bring the keys with him Asked (on direct examination) if Bicknell gave a reason, Samons testified ( 1 226-227) He didn t say I assumed to work " Samons arrived the next morning 6 August Bicknell, Samons testified, came and asked for the keys When Samons gave him the keys , Bicknell said, The owners and myself feel you are medically unqualified to drive this truck on account of your unstable angina Samons protested, saying he had no angina He offered to take a physical examination to prove it, and he stated he had al ready submitted a doctor s slip stating he was able to return to work Bicknell repeated his statement that he and the owners did not feel that Samons was medically qualified to drive and Samons repeated his request that Respondent send him to Respondent 's doctor-a request Bicknell "refused Samons asked for a slip stating what Bicknell had said , but Bicknell declined , saying he was BLUE SQUARE II 47 under medication or under a doctor s care (2 452) Whether in this same conversation, in the one on 5 August, or a different one, is unclear, but Bicknell tests feed he recalls telling Samons he would have to take a physical examination before Respondent could tell whether Samons could return to work (2 452-452a) It seems that the first portion of Bicknell s testimony, Bicknell s recollection of a conversation with Samons in the presence of Dee Allen, is possibly a reflection of a merger of two events in Bicknell s memory Asking Samons when he would be able to return to work sounds more like something Bicknell would have asked on 24 July-except Bicknell testified he did not see Samons after 17 July until 5 August Asking about a physical ex amination is something he possibly asked about in the presence of Dee Allen on 7 August Recall that Bicknell does not specifically describe a 7 August visit by Samons, and, indeed, asserts that the next time he saw or heard from Samons after 5 August was some 10 to 14 days later (2 448) Memories are faulty, of course, and Bicknell does not claim to have a perfect memory Al though the matter is not free from doubt, it appears that these limited recollections of Bicknell pertain to the 7 August visit Samons made to Respondent's premises, and I so find Respondent argues that Allen s version contradicts Samons (Br 92) The General Counsel does not address the matter Allen s version may not be a flat contradic tion of Samons, but it surely appears inconsistent Essen tially, however, they both, in effect, contradict Respond ent s version that beginning on 5 August Bicknell asked Samons to take a medical examination Samons' version of 7 August (3 days after Samons testimony at the repre sentation hearing) has Bicknell refusing Samons' offer to take a physical examination To that same offer (actually, Samons' response to Bicknell of where did Bicknell want Samons to take the physical), Allen's version has Bick nell standing mute Of course, Allen's version is incon sistent with the General Counsels apparent theory that Respondent, changing its attitude after Samons testified as a union witness on 4 August, affirmatively refused any offers by Samons after the representation hearing to take a physical examination That is, Allen s version reflects that Bicknell, on the surface, wanted Samons to take a physical When Samons responded affirmatively, effec tively calling Respondents bluff Bicknell went mute Does it make sense that Bicknell would make such a bluff Does it make sense that if he would do so, that he had no prepared answer to give in case Samons accept ed'9 Resolutions of these questions will be reserved for later A principal question will be whether Respondent reversed its position after Samons testified on 4 August or whether Samons, seeking to establish a case, fraudu lently testified that Bicknell changed directions after 4 August Before reaching the next conversations, recall from my introduction that on 9 August Samons filed a claim for unemployment compensation The following day he filed the predecessor charge to the one the Union later filed in this case Two medical slips are dated 10 August One of the 10 August medical slips is from Dr Kim (G C Exh 13), and the other is from Dr Thomas (G C Exh 14) Referencing Samons medical diagnosis, Dr Kim s statement reads, The patient was found to have normal coronary arteries w/normal left ventricular func tion He is able to resume his regular job activity R/O unstable angina Samons testified he visited Dr Kim's office on 10 August Dr Kim explained that "R/O" means rule out " (2 264, 270 ) Recall that Dr Thomas' 4 August slip (G C Exh 8) states that Samons has been under his care since 18 July and is able to return to work on 5 August, except Samons is to work only 10 hours per day The slip of 10 August repeats the data about under care from 18 July to 4 August and may return to work on 5 August (these are fill in the blank type data) Then, in the handwriting of Dr Thomas, in the space for remarks appears (2 273- 274, 346) 18 Pt is able to work full time & can return to his original job Samons testified he obtained these two 10 August slips for the unemployment office and that he took them there He does not know whether that office made copies but they did not keep the originals (2 260, 271- 171, 345) Samons concedes he never took them to Re spondent (2 271) He did not take them to Respondent because there was no sense in" that in view of the (as serted) fact he had already given Respondent workslips and had not been able to return to work (2 276) In Samons' view there just was no reason to do so (2 360) Respondent contends anyone interested in show ing good faith would have done so, particularly since one of the slips ruled out the unstable angina and the other removed the 10 hour restriction (Br 35 95) Samons gave three affidavits (dated 13 August, 2 Sep tember, and 23 October) to the Board (1 252) He con firms that in one of his affidavits he stated Respondent had no proof he had unstable angina (2 287) Presumably that was in the 13 August affidavit (as Respondent sug gests, Br 29, 33), for that topic, logically would have been one of the first items covered Pointing to Samons acknowledgement that he so told the Regional Office during the investigation of the charge, and contending that the originals of both slips were attached to Samons affidavit Respondent argues that Samons obtained the two 10 August slips to prove to the Board he had no un stable angina and that Respondent had no proof to the contrary (Br 33-35) 19 If Samons version of events were correct-that Re spondent s attitude changed after his 4 August testimony and that Respondent thereafter not only asserted he was medically disqualified, but refused to let him return to work after receiving a return to work slip from him on 4 August and refused to schedule him an appointment at the Thuss Clinic-then it is possible a reasonable person 18 R Exh 4 is the original and G C Exh 14 is a -opy (2 272-275 345) 19 The evidence is unclear on whether more than one original medical slip was attached to Samons affidavit Although Respondent asked Samons about this on cross examination the only certain fact is that the original of Dr Kim s 10 August slip (R Exh 4 G C Exh 14) was so attached A reference there to one of the medical slips appears to be to Dr Thomas 4 August slip G C Exh 8 (2 271-275) as Respondent ac knowledges elsewhere (Br 24) 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would give up on taking any more medical slips to Re spondent Perhaps he did take the two 10 August slips and show them to the unemployment office The 4 No vember two page decision of Appeals Referee Brazeal makes no express reference to them, although it does state Samons was eventually released as being able to return to work (R Exh 7) The record here does not reflect whether that is based on copies made of the slips, on testimony at the unemployment hearing, both, or none of the above Samons certainly had an incentive to obtain the two 10 August slips for furnishing to NLRB Region 10 That in centive would be to support his claim that Respondent asserting he had unstable angina, was refusing to let him return to work Although Region 10 could not put Samons back to work at Respondent the slips might tend to support the Union s charge However, the fact Samons did not take the two slips to Respondent is just as consistent with Respondents position that all along it was telling Samons he would have to obtain medical clearance from the Thuss Clinic It would be a futile ges lure to carry these slips to Bicknell when Samons knew (under Bicknell's version) that Respondent wanted a slip from the Thuss Clinic Because there is no single clear logical reason Samons declined to take the two 10 August slips to Respondent, I will have to resolve that issue, if need be on the basis of credibility It seems clear, however, that Samons rea sons for obtaining the slips include tendering them to NLRB Region 10 and also, perhaps, to the unemploy ment office, and I so find Bicknell testified he next (after 5 August) heard from Samons some 10 to 14 days later when Samons tele phoned twice (2 448-449) Samons recalls the next con tact after 7 August as coming on 13 August when he telephoned Bicknell at 3 30 p in and asked Bicknell about his workers compensation coverage for his (recent hospitalization) Bicknell told him he would have to check into the matter and for Samons to call him back the next day The next day at 3 p in Samons called Bic,k nell who said Respondent opposed Samons claim for workers compensation Samons testified he nevertheless filed a workers compensation insurance claim and that such insurance paid for the 2 weeks he was hospitalized (1 231-232) Samons adds that Bicknell said nothing to him in either of these two conversations about going to the Thuss Clinic for a physical examination (2 308) Samons does not claim he raised the subject, either Bicknell testified that on the occasion of these calls Samons asked if he was terminated Bicknell told Samons he was not terminated but that he needed to go to Re spondent s physician for a physical examination to obtain medical clearance to drive Samons said he was filing for both workers compensation and unemployment compen sation, and he asked Bicknell to help him obtain either the former or to discharge him so he could draw the latter Bicknell said Samons was not discharged and he did not know of anything Samons should be filing a workers compensation claim over (2 448-449) In one of those rare instances when Bicknell and Samons agree on a fact they concur they next saw each other the morning of Monday, 31 August There is sharp disagreement however, on how it happened that Samons reported that day for work Samons testified Bicknell called him that morning at 4 35 and told him to report to work that morning at 5 30 am or 6 am (1 232-233, 2 318) Samons testified Bicknell's call surprised him (2 349) Bicknell testified Samons unexpectedly showed up that morning around 5 30 to 6 (2 453-454, 473, 484) When Samons arrived Bicknell testified, he showed Bicknell a medical slip from, as Bicknell recalls, a Dr Russell Samons did not leave the slip with Bicknell On looking at the slip, Bicknell told Samons he still would have to go to the Thuss Clinic because Bicknell wanted Respondents doctor to examine Samons and give him a medical clearance to return to work In the meantime, Bicknell said, Samons could continue to drive, but he still would have to go to the Thuss Clinic Samons said he would try to go later (2 454, 486) Samons denies having or showing a doctor s slip to Bicknell on that oc casion and denies Bicknell told him he would have to take a physical examination (2 318) Because Bicknell was not expecting Samons, Bicknell testified, a driver had already departed with Samons regular vehicle Bicknell testified he had assigned the driver Ronald Avery to the truck full time at some point after 5 August (2 453-454, 461) The only vehicle left was the extra truck (2 484-485), the 1984 Mack Bicknell (2 486) and Samons (1 233) agree that the only truck left in the yard was the same 1984 Mack truck Samons had earlier refused to drive on the basis it was unsafe On this 31 August Samons proceeded to drive the truck During the course of the day he report ed a breakdown caused by a ruptured fuel line Respond ent had it repaired and Samons finished the day (1 233- 234 2 320, 455, 486) When Samons parked the truck the evening of 31 August he wrote up a repair order That is, he requested a list of repairs to be done to the Mack (1 235, 2 320 455) Samons testified he spoke with H B the shop foreman in describing the needed repairs On this occa sion, Samons testified he told H B that the Mack had a steering problem which caused darting on the road Other repairs Samons requested were the correction of a vibration oil spraying on the break drums, and replace ment of the clutch because, Samons asserted it was de fective Samons testified that the shop foreman included on the repair order all the items except the steering As to the steering H B informed Samons that the owners Meeks, and Bicknell were all aware of the steering and that there was nothing that could be done about the steering (2 235-236, 2 322 324) Samons concedes the Mack has a different steering mechanism from some of the other trucks and that it steers differently from the Kenworth he drove (2 323) 20 As Bicknell explains, some drivers like Macks and some prefer Kenworths (2 479) 20 On the latter point Samons answered that it did steer differently that it darted I construe Samons testimony to be that Macks and Ken worths have a different feel with the steering and that in addition this 1984 Mack needed a repair to the steering because the truck darted I do not think Samons contends he as a driver cannot handle a Mack truck if it is in good condition BLUE SQUARE II 49 Bicknell and Samons agree that Bicknell told Samons to report for work the next day (1 236 2 319, 324, 485) When Samons arrived for work on 1 September he found the 1984 Mack truck right where he had left it Ordinarily repairs are made overnight On this occasion, however no repairs had been made Samons acknowl edges that sometimes the mechanics were too busy to make all the repairs facing them overnight and would be unable to reach or complete them until the following day (2 354) Samons questioned the mechanic who said he could not do anything until talking with Bicknell (1 236- 237, 2 322-325) Bicknell (2 456) and Samons (1 237) agree that the me chanic telephoned Bicknell and spoke with him Bicknell was at a location about 10 miles away Bicknell testified the mechanic reported that Samons would not drive the truck, that Samons said it was unsafe and wanted to talk with Bicknell Bicknell asked the mechanic if everything had been done for the truck that was supposed to be done and the mechanic said it had Speaking again with Samons, Bicknell told Samons he needed to carry his load assignments No, I in not going to drive the truck Its not safe, Samons replied Well, are you refusing the load) Bicknell asked Samons answered he was not but he was not driving the truck because it was not safe Bicknell said he would be there in a few minutes (2 456- 457) (Samons version is about the same although he as serts Bicknell said that if Samons did not drive then Samons was refusing a load and he would consider Samons as quitting To this Samons said he was not re fusing or quitting and simply wanted the truck fixed ) A few minutes later at the TMI office Samons Bick nell, and Meeks had their final confrontation Before summarizing that episode, however I should discuss the mechanic Quite likely the mechanic who spoke to both Samons and Bicknell on this occasion was the shop foreman, H B In any event neither H B nor any of TMI s mechanics testified Neither Respondent nor the General Counsel introduced either the repair order which, there seems to be no dispute H B prepared the evening of 31 August If Respondent made any of the -e quested repairs it offered no objective evidence of such fact Although Bicknell s version includes the statement that the shop foreman (the mechanic) said everything (the repairs, presumably) had been done that was sup posed to be done, that statement is not substantive evi dence because it would be hearsay for that purpose It is merely part of the description of the chain of events But even if I were to consider the shop foreman s report for the truth of the matter asserted it remains am biguous Taken with Samons testimony that the truck had not been moved and no repairs made, H B s state ment possibly could mean that an inspection had re vealed there were no defects to be repaired The prob lem with that possibility is that such an inspection pre sumably would require that the truck be taken to an inside work area There is no evidence that was done and that the truck was reparked in the very spot it had been left the evening before It is unfortunate the parties did not see fit to adduce more evidence in order to clari fy this point The scene at the TMI office begins mostly as a repeti tion of the telephone exchange Bicknell concedes Samons said he was not quitting and that their exchange went back and forth (2 458) Samons admits Bicknell said he would just have to get another driver for the truck, and that Samons said he was going to wait there until Respondent either fixed the truck or brought in a new driver (2 325-326) Bicknell then asked Samons to leave (2 326) Subsequently Samons reversing field, denies that and asserts he told Bicknell he would wait for the truck to be fixed but Bicknell asked him to leave Thinking Bicknell was trying to get Samons to quit, Samons did not want to leave At that point Samons as serts he was told to get his damn ass off the property (2 358-359) Samons last answer (which I do not credit) contracts the sequence by injecting a quote (get his damn ass off the property) which he earlier attributes to Meeks (1 239-240, 2 327) What happened I find is that when Samons told Bick neli he was not going to leave Bicknell telephoned Meeks and reported he had a driver who would neither load nor leave (2 458, 585) Meeks came over and asked Samons what the problem was Samons said the truck was not safe and he was not going to drive it Meeks said the truck was all he had for Samons to drive and if Samons could not take it Respondent had nothing else for him to drive Samons kept raving and Meeks said Samons should leave the property, and Samons left (2 586, Meeks) Bicknell recalls that Samons asked Meeks if he was terminated and Meeks said he was not terminated Meeks also told Samons, Bicknell testified, that Respondent would let Samons know if they had anything else for him Bicknell testified they have not since called Samons because Respondent had nothing for him (2 460, 487) Samons testified Meeks took the truck keys and tickets from Samons gave them to one of the (casual) drivers waiting for a job engaged in an exchange with Samons similar to that which Samons and Bicknell earlier had made then told Samons to get his damn ass off the property and not come back there again Samons left (1 239 2 283-327) On his final reference to this Samons adds that he asked if he was terminated and Meeks said, You take it any which way you want to (2 327) The following day or evening Meeks testified Samons telephoned him and asked if he had been terminated Under strict instructions from Respondents lawyer that Samons was not to be terminated, Meeks advised Samons he was not terminated He told Samons No, you re not terminated Keep in touch we 11 get something for you You re not terminated Meeks testified Respondent s po sition before OSHA the unemployment compensation case, and before the NLRB consistently has been that Samons was not, and is not, terminated The 2 Septem ber telephone conversation was Meeks last (job) contact with Samons Samons has not returned to work (2 586- 587) Samons does not describe a telephone conversation with Meeks after he left the TMI premises on 1 Septem ber, and he did not testify in rebuttal On cross examina 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion about the TMI conversation on 1 September he denied he was told to stay in touch with the company (2 327-328) The next time the participants met or spoke in the presence of one another was at the unemployment com pensation hearing on 28 October c Discussion Samons testified as follows on cross examination (2 297- 298) Q Now, this is Mr Bicknell who just came in the courtroom? Is that correct? A I presume so Yes, sir Q Is that Mr Bicknell? A Yes, sir It looks like him (1) Credibility resolved Elsewhere I generally have credited the General Counsels witnesses over those of the Respondent I am unable to credit James D Samons, and I find him to be a generally unreliable witness In several respects he tests feed in a manner that undermined my ability to have any confidence in what he was saying He also appeared to employ a selective memory, recalling data he considered favorable to his cause, but unable to recall that which might be unfavorable Finally, and of importance, his de meanor was unsatisfactory I hasten to add that Respondents witnesses exhibited some of the same deficiencies throughout the hearing, and elsewhere I have found my impression such that I do not believe them in the respects described Indeed, my impression of Bicknell and Meeks is over all, unfavorable But as unfavorable as that impression is, my assessment of Samons as a witness is more negative To illustrate his manner of testifying I cite a few exam ples First, at times he was coy Recall the Miller Steam Plant incident and the confrontation in Dora Alabama On the first day of the hearing, and in his testimony on direct examination, Samons testified that Gene Crouse shot me birds' (1 242) at the MSP and that Meeks also shot me a bird a few minutes later as he and Samons passed on the highway (1 244) But when asked the next day on cross examination, about such a bird Samons initially replied Naw and then, What is that? Shoot ing birds? Asked if he did not know what the term meant Samons in effect allowed that he did (2 337) At times Samons was evasive For example it took several questions on cross examination including some by me for Samons simply to say he had authorized At torney A Lee Tucker to file an appeal, on Samons behalf in Samons unemployment compensation case (2 280-282) Respondent describes Samons testimonial demonstra tion as that of an advocate rather than a witness (Br 84) As an example of Samons approach toward his duty as a witness, Respondent cites (Br 84-85) a question on cross examination respecting Bicknell This is an example of Samons qualifying his testimony to the point of fool ishness Recall that Glenn Bicknell joined Enerhaul as road boss on 26 May 1987 (2 414 417) and that Samons was there when he arrived (2 435) As road boss or op erations manager , Bicknell supervised Samons On nearly a daily basis, therefore, from late May to about 17 July Samons would see Bicknell They also spoke with or saw each other on a few dates after that the last occasion being Samons unemployment hearing on 28 October (R Exh 7) Despite obviously knowing Bicknell on sight and qualifying his testimony to the point of foolishness, At other times Samons was either evasive or simply confused Some honest confusion can be exhibited by any witness Any confusion by Samons struck me how ever as in reality the product of an intent to avoid coop erating as a witness Thus (2 267-268) Q Well, are you the same Samons that filed a complaint with OSHA9 A No sir I didn t file it with OSHA Q Well, the Department of Labor, Mr Gill? A Yes, sir I filed one with No, sir I didn t file one with Mr Gill Q Who did you file it with Mr Samons? A OSHA Disbelieving Samons as I do, I find that, generally, the events as to Samons are as described by Respondent s witnesses Respondents testimonial evidence regarding Samons was introduced principally through Enerhaul Operations Manager Glenn A Bicknell and to a very limited extent General Manager Frank Meeks It is not that I find them so credible, it is that I find Samons so unreliable (2) Conclusions I shall not undertake to resolve every conflict Indeed that may not be possible, particularly as I do not neces sarily accept Bicknell s testimony in its entirety Nor is it critical that I assemble a unified theory of what really took place Of course, a logical explanation of events can assist in resolving credibility What generally happened I find is this On Friday 17 July 1987, Samons resisted a work as signment for the following day because he wanted to attend the first union meeting Although that meeting was not until 3 p in on 18 July (2 294) working that Sat urday could have caused him to miss the meeting Samons apparently had been working long hours and was tired To obtain an acceptable excuse for avoiding working that Saturday, Samons devised the plan of call ing Dr Thomas He called Dr Thomas and reported he was exhausted from working long hours Dr Thomas told him not to work on Saturday and to come see him on Monday Samons reported this to Bicknell Concerned that Respondent might classify him as a quit, and thereby terminate him Samons decided to change his medical problem from exhaustion to chest pains This resulted in his hospitalization Whether Samons planned on hospitalization or whether his scheme got out of his control I need not decide Samons was admitted on the diagnosis of angina pectoris Of course an X ray will not disclose pain and all the tests Samons had in this hospitalization were negative as to a BLUE SQUARE II 51 heart problem Samons was released (the second time) from the hospital on 30 July Even before Samons testi feed on 4 August at the representation hearing Respond ent had received a report (the 21 July call from the hos pital insurance clerk, followed later by the insurance form) that Samons had unstable angina A 24 July medical slip from Dr Richard Kim referred to chest pain (R Exh 8) I find that Bicknell initially told Samons he would have to obtain medical clearance from the Thuss Clinic before he could return to work, that Samons said he would think about it and let Bicknell know, and that Samons never told Bicknell he was ready to go to the Thuss Clinic Perhaps this conversation first occurred, as Samons asserts, on 24 July Perhaps, as Bicknell testified, it occurred 5 August Perhaps it occurred on both dates I need not decide The issue I resolve is, as just de scribed, that Bicknell made the Thuss Clinic clearance a condition for Samons return to employment and Samons has never accepted When Samons unexpectedly reported for work on 31 August Bicknell relaxed the condition That date was after the representation hearing and the Union s prede cessor charge in this case was under investigation by NLRB Region 10 Bicknell relaxed the Thuss Clinic con dition to allow Samons to return to work subject to his obtaining that clearance The controversy developed over driving the 1984 Mack truck and Samons has not returned to work after 1 September The General Counsel argues that Respondent deliber ately kept giving the 1984 Mack truck to Samons, after Samons testified on 4 August, on the assumption Samons would find it unacceptable (Br 12) The truck apparently was driven on other days by other drivers Respondent made several repairs on the truck but could not satisfy Samons Respondent contends Samons acted at all times in a manner to build a case against Respondent before one or more agencies (Br 86-87 95) Respondents position is that Samons has never been terminated and may return to work subject to obtaining medical clearance from Respondent's physician within a reasonable time after he returns to duty (Br 99) I find that to be the situation Finding insufficient evidence that Respondent has dis cnminated against James D Samons because he testified on 4 August 1987 at the representation hearing in Case 10-RC-13532 I shall dismiss the complaint as to him 5 Jimmy A Richardson a Introduction Jimmy A Richardson s case revolves around timing Relying substantially on timing the General Counsel contends Respondent discharged Richardson because he testified (in the presence of General Manager Meeks) as a witness for the Union at the representation hearing on 4 August Respondent also relies on timing to assist in showing its decision to discharge Richardson over an 8 June vehicle accident was not unlawfully motivated Be cause timing alone will not carry the General Counsel s burden of establishing a prima facie violation (as Re spondent points out Br 82) the General Counsel also relies heavily on a conversation between Richardson and Meeks about 11 June that Meeks considered Richardson a good driver and was not going to discharge him (items Meeks denies) and on the fact Richardson worked 14 July (Richardson had been on workers compensation leave since his 8 June accident) and was not discharged The only significant event argues the General Court sel between Richardson s 1 day of work on 14 July (he was off again until 10 August) and his 10 August dis charge was his 4 August testimony (Br 7) Not so, says the Respondent The significant intervening event was Respondent's receipt from the Alabama Department of Public Safety of a motor vehicle ieport (MVR)21 show ing that Richardson's safety record had exceeded the ad verse points Respondent allows (Br 80-81) I conclude that Respondent, aware that Richardson s driving record was poor sent for MVRs on all employ ees the afternoon of 4 August, following Richardson s testimony When the MVRs (dated 6 August) arrived, Richardson had its ostensibly lawful basis for discharging Richardson Because the same MVR net caught others they too were fired The evidence, however shows that Respondent would have terminated Richardson at some future point because of his poor driving record Accord ingly, I shall order that determination of that future date be deferred to the compliance stage, and that he be made whole based on the backpay period as determined at the compliance stage b The evidence Formerly employed at BSI for an unspecified 3 or 4 months, Richardson was rehired by Meeks on 5 June 1986 Richardson drove a truck hauling coal Meeks fired Richardson on 10 August 1987 (1 166) At least since May 1987, as Richardson describes, Re spondent evaluated the safety record of its drivers by fol lowing a point system devised by Respondents liability insurance company (1 171) Richardson testified that in May Meeks explained the system to him and several other drivers in the office Meeks said a driver would be charged 20 points for a speeding ticket Richardson does not know or could not recall what points are charged for an accident, but when the total reached 50 the driver was to be terminated (1 171) The MVR con tains information reported to Alabama for the last 5 years (2 558 R Exh 34) As Meeks explains in conjunction with the MVR Re spondent uses an evaluation form labeled Driver Eval uation Profile (R Exh 35) Points are charged against youthful drivers on the DEP, with drivers over 25 not assessed any points for age For five listed major convic tions, such as driving under the influence, license sus pension and hit and run,' 50 points are charged For speeding, 10 points are assigned if the excess speed is under 10 miles per hour and 20 points if over 10 mph For accidents in which drivers are not charged 10 points are added Oddly the rating or grading sheet (as Meeks describes it) does not specify the points to be applied 21 Although denoted an MVR by the witnesses the form itself is enti tied Driver License Abstract (R Exh 34) 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when an accident is chargeable to the driver Meeks tes tified it is 20 points (2 598) A notation appearing at the bottom of the DEP, or rating form has been sliced in the copying process but it apparently reads Guideline If points total 50 or above the employee is not to be allowed to drive any company vehicle At the May meeting in the BSI office Richardson, aware that his March 1987 speeding conviction would raise his points to 60, exclaimed to Meeks, Well you might as well fire me right now Richardson added, however that he thought the Company should pay for it, (presumably the ticket and possibly, not count it) because he was trying to make the delivery on time According to Richardson, Meeks said only for Richard son to slow down (1 172) Meeks does not address this conversation Meeks testified that Respondents evaluation system works this way Twice a year Respondent sends to the state capital in Montgomery for MVRs on all drivers (Meeks does not specify the months of the year in which Respondent does this) In addition to its regular semian nual requests Respondent also sends for MVRs when drivers have an accident or something, and on new drivers (2 558) On the other hand Meeks testified Re spondent waits until it is ready to send for five or six at once rather than for one at a time (2 571) The DEP form states that a current MVR is to be used and that the employer is to consider the driver s record for the last 3 years The form, as I have quoted, states that an employee is not to drive if he accumulates 50 points or more As Respondents three firms employ only drivers not to be able to drive would mean in the absence of contrary evidence no income Respondent of fered copies of records reflecting a past practice of dis charging drivers for accidents or exceeding the allowed points (2 573-578) Notwithstanding the statement on the DEP about not driving after 50 points, Meeks testified that such is only a guideline (as it, apparently, states) and that at 50 points a driver is interviewed A driver with a positive attitude is placed on probation and allowed to continue driving But any violation thereafter means discharge (2 572 597) On 28 March apparently a short time after Respond ent had received an MVR on Richardson, Meeks called Richardson in for an interview which concluded with Meeks placing Richardson on probation (2 559, 572) Ac cording to the file memo Meeks had prepared 22 Meeks told Richardson that if he had any more moving viola tions I will have to let you go Richardson s "attitude was very bad saying he did not give a goddamn " Meeks said he was placing Richardson on probation Richardson left uttering vulgarities (R Exh 32) On 8 June Richardson apparently driving rather fast, topped a hill south of Jasper, Alabama, and saw that he had two choices He could plough into a line of backed up traffic or he could head for the ditch Choosing the 22 Because Meeks has difficulty in writing his wife frequently serves as his amanuensis (2 569) latter Richardson fractured a rib, sustained cervical and lumbar strains and with the exception of 14 July was off work until 10 August (1 168-169 184 193 196) Meeks investigated the accident Determining that Rich ardson had a quarter mile of space when he topped the hill Meeks found that the accident was chargeable to Richardson He testified that Respondents trailer was damaged in the approximate amount of $1400 Respond ent had to unload the coal from the trailer (2 563-567, 592) The accident as we shall see was reported to the State and was added to Richardson s MVR According to Richardson on 11 June he had a conver sation with Meeks at his BSI office He advised Meeks the doctor had ordered him not to work for the present (1 170) Medical forms so indicate and that aspect is not an issue (R Exhs 36, 37) Before proceeding further some background is necessary Meeks identified a letter dated 3 June, which Re spondent had received complaining of dangerous dis courteous and hazardous driving by the driver of one of Respondents vehicles (1 559) The letter is from Ser geant G R Smith, post commander of the Birmingham post of the Alabama Department of Safety Respondent determined that Richardson was the driver The letter reads (R Exh 30) Dear Sir On June 2, 1987 a lady called me by telephone at this office to complain about dangerous, uncour teous and hazardous driving by an individual driv ing a tractor trailer bearing license number 64TR- 575, which is registered to your company This inci dent occurred on June 2nd at approximately 12 15 p in on U S 78 This driver got behind her and de spite her efforts stayed behind or alongside her ve hicle for several miles The driver made gestures toward her which she found to be offensive As you are aware I am sure that the highways of our state are no place for this type dangerous be havior The cost to your company in the event of an accident where someone is injured or killed could be tremendous in financial terms alone with out the amount of human pain and suffering I am asking your support to curb these actions before tragedy occurs Our troopers are alert for these drivers but we are unable to be everywhere at all times and so we ask your assistance I will cer tainly be and I am sure this lady will also be appre ciative of anything you can do With regards, /s/ G R Smith G R Smith Sergeant Post Commander Birmingham Post Telephone 322-4691 In this 11 June conversation Richardson testified Meeks showed him a letter referencing a complaint by a woman that he had been harassing her on the CB radio Switching from that topic Meeks said he was not going BLUE SQUARE II 53 to fire Richardson over his tickets, but you need to slow down Meeks asked Richardson to let him know when the doctor released him for work (1170-171) And Q Did he pay you any compliments9 A Well, he said I was a good driver and I did what he said most of the times, is the way he put it That was very well true , I guess Meeks denies they discussed Richardson s driving ca pabilities, or his continued employment with Respondent (2 564-565) Aside from Richardson's testimony that Meeks said Richardson followed orders most of the time, the General Counsel adduced no evidence that Richardson was a good driver Thus there is no evi dence showing where, in relation to the other drivers, Richardson ranked in productivity , such as in number of loads hauled , earnings, or by whatever measures Re spondent has for productivity Clearly Richardson was not a safe driver for Respondent, and he does not dispute his MVR ( 1 197) Respondent writes (Br 80 fn 49) With a wrecked truck, a load of coal on the ground, and a driver placed on disciplinary probation for speed mg, this testimony is incredible There is no dispute Richardson worked most of 14 July Questions do exist as to exactly how this came about and concerning the effect of that work Richard son testified his doctor released him to return to work A release is in evidence from Charles S Capra, M D (2 560, R Exh 33) Apparently signed by Dr Capra on Monday, 13 July (the date given for the end of treat ment), it states Richardson may return to work on 14 July-a Tuesday Although Richardson s testimony is somewhat fuzzy about the details it appears he went to the BSI office that Monday , 13 July, after obtaining the doctors release He checked the assignment board on that visit (1 172-173) Although Richardson did not so testify, he apparently left Dr Capra's release form at the BSI office on that 13 July In producing the form at the hearing Meeks testified it came from Richardson s per sonnel file (2 560) Early the next morning Tuesday 14 July Richardson went to BSI took his regular truck, and drove off on the trips assigned At 2 30 p in he left work because his inju ries to his rib and back began hurting That evening he called his doctor who told Richardson to come for an office visit It was not until the following Monday 20 July, that Richardson visited the doctor At that time Dr Capra took him off work for another 2 weeks (1 173-175, 181, R Exh 38) The 2 weeks specified by Richardson would be until 3 August As Meeks explains, he generally arrives after the driv ers have left for their trips The assignments are posted by truck number, not by driver's name Meeks testified it is not unusual for a regular driver to return, take his regular truck that morning and drop off his back to work slip when he returns that afternoon Meeks states no one assigned Richardson the trips he started with the morning of 14 July It was later that morning before Meeks learned it was Richardson who had taken the truck While Richardson had been out on workers com pensation leave the truck had been driven by an extra driver (2 567-568, 594-596) Meeks does not say when he first saw Richardson s back to work slip (R Exh 33) from Dr Capra Richardson does not contend he spoke with Meeks on either 13 July or the early morning of 14 July When Richardson visited his physician's office on Monday, 10 July, he apparently obtained a medical slip from Dr Capra giving the date of treatment, a diagnosis of cervical strain, and an instruction to return in 2 weeks (R Exh 38) Richardson does not describe what he did with the medical slip, but Meeks testified he found it one night about 20 July stuck in the locked door of his office (2 607-608) Meeks testified that had he seen Richardson the after noon of 14 July he would have discharged him, but not for anything that happened that day (2 596) Meeks does not explain this statement, but he apparently means he would have fired Richardson over his accident In a report Meeks and his wife prepared concerning both the 8 June accident (first page) and Richardson s 10 August discharge (se,-ond page), Meeks states (R Exh 31) Our policy is when [there is a] one vehicle acci dent involving our driver we dismiss him He was on workmans comp for awhile He came back and worked one day which, normally we let them work one day for insurance reasons before we disqualify them He got away that evening before I could see him Meantime, I sent for a MVR His report consists of three speeding tickets and charged with an accident in 2 years Which under our grading system gave him 80 points Meeks also testified it is Respondents policy not to terminate an employee while he is on workers compensa tion leave, but to wait until he has returned to work for 1 day before doing so (2 608-609) Meeks was rather confused concerning the date of preparation of the fore going memo At first he said the part about the accident was written within 2 to 4 days afterwards and the second portion on 10 August and then he testified it was written all at one sitting (2 570-611) It is obvious, and I find that the entire memo was written no sooner than 10 August Meeks never specified the date he sent for the MVRs We know that several, including Richardson s are dated 6 August If Respondent requested them by letter predat ing the 4 August representation hearing it did not offer into evidence a copy of that letter Richardson s MVR dated 6 August includes the fol lowing data over the past 12 months (R Exh 34) Conviction Date Offense Description Offense Date 6 8 87 Accident 3 6 87 Speeding 70/55 1 29 87 1 17 86 Speeding 68/55 9 25 86 8 28 86 Speeding 69/45 6 16 86 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The convictions are from two district courts and the Dora Municipal Court. Regarding the latter, Richardson testified he was trying to beat a deadline to get coal de- livered for Richardson (1:167-168, 172). That speeding conviction made Richardson's third. When Meeks de- scribed the system to Richardson and the others in May, Meeks showed each driver his "record." Richardson had 40 points charged against him (1:172). It is unclear whether the "record" was the MVR or the insurance company's evaluation form with the points filled in by Respondent. If the MVR, then it perhaps had been issued 2 or 3 months earlier, or the State had not yet re- ceived the information on Richardson's March speeding conviction. By saying the March speeding ticket came "between" MVRs (2:598), Meek indicates that any MVR shown in May was not a current one. On receiving Richardson's MVR, Meeks prepared a DEP form for Richardson. It totaled. 80 points (2:560, 571, 598; R. Exh. 35). Richardson's renewed term off work apparently was extended from 3 to 10 August, for he (1:182-183, 195) and Meeks (2:568-569, 599) agree that around 4:30 to 5 that morning Richardson came in to work, handing Meeks a back-to-work slip. The slip is not in evidence. Meeks pulled out the 6 August MVR for Richardson and asked him about it. There are some minor differences as to what was said, but there is no dispute Meeks, in effect, fired Richardson on the spot. As Richardson states it, Meeks said the MVR disqualified Richardson from driv- ing. "Well, I appreciate it, Mr. Meeks," Richardson re- sponded. Richardson then turned and departed (1:183, 195, 197). Meeks testified he fired Richardson because of his driving record, the accident, and the speeding "tickets" (2:592, 599). c. Discussion Richardson's description of the 11 June conversation with Meeks, although possible, is unpersuasive. In the face of all that was wrong with Richardson's driving, both in terms of his excessive speed, his recent accident, and a letter from the state police reporting rude and dan- gerous behavior on the highway, it seems highly unlikely Meeks would praise Richardson as a good driver or elect on that occasion to promise him continued employment. Particularly is this so in the absence of any evidence that Richardson was one of Respondent's top drivers in pro- ductivity, willingness to haul undesirable loads, or at- tendance. Any mention Meeks made about a medical re- lease was nothing more, I find, than a reference to a rou- tine procedure and had no bearing on what decision Meeks would make when Richardson returned to work from his workers compensation leave. I hasten to add, however, that I make such findings not because Meeks was convincing, but because the General Counsel's evi- dence was both insufficient and unlikely. As for Meeks and 14 July, I do not believe his testimo- ny that he would have fired Richardson had he seen him that afternoon. First, that statement is inconsistent with his other testimony on cross-examination. That is, when asked on cross-examination why he did not proceed to terminate Richardson after the accident, knowing that the chargeable accident would place Richardson over the 50 points, Meeks said he gives everyone a fair break by awaiting a current MVR (2:598). I realize Meeks also tells of Respondent's policy not to discharge employees until they return from their workers compensation leave. But that policy was not his answer to the question asked. Second, the demeanor of Meeks was unfavorable and, in general, I do not believe him. Observing Meeks close- ly, I was reminded of the description by Frederick Douglass of the countenance of Vice President Andrew Johnson at the second inauguration of President Lincoln. Lincoln, the one of "manly humility," and friendly to Douglass, touched Johnson and pointed out Douglass. "The first expression which came to his [Johnson's] face, and which I think was the true index of his heart, was one of bitter contempt and aversion." Explaining in his autobiography the basis of this reading of facial emotion, Douglass states:23 "There are moments in the lives of most men when the doors of their souls are open, and, unconsciously to themselves, their true characters may be read by the observant eye." Meeks testified that, although he knew even before the 8 June accident that Richardson had accumulated 60 points (from the three speeding convictions), "We didn't have an MVR showing that." Meeks followed this by saying that "when the accident happened" Respondent secured another MVR that showed the third speeding conviction (2:598). Respondent makes no contention it obtained a new MVR in June, and I find Meeks was re- ferring to the MVR dated 6 August. Meeks denies he decided the day of Richardson's 4 August testimony at the representation hearing to -fire him (2:597). As I observed Meeks I could see from his demeanor that he testified falsely. Meeks watched Rich- ardson testify on 4 August (2:599). It was on that occa- sion, I find, that Meeks and Respondent decided Rich- ardson must be fired. Well aware that a new MVR would doom Richardson, Meeks seized on that as the convenient pretext to use for discharging Richardson. Because an MVR on Meeks alone would be self-indict- ing, Respondent simply, I find, requested MVRs for all its drivers, thereby accelerating the occasion when it normally would have done so. Two days later, on 6 August, the Alabama Department of Public Safety issued the new MVRs. At least, two others besides Meeks were caught in this MVR net, and they too were fired.24 Based on these findings, I further find that a moving reason Respondent discharged Jimmy A. Richardson was because he testified on behalf of the Union at the repre- sentation hearing of 4 August 1987, in Case 10-RC- 13532. The next question is whether Respondent demon- strated that it would have fired Richardson in any event for other reasons. The answer is no-at least not when it did. That would have been done later. Accordingly, I find Respondent violated Section 8(a)(4) and (1) of the Act by discharging Jimmy A. Richardson on 10 August 28 F. Douglass, Life and Times of Frederick Douglass (1962 by Mac- millan, reprinted from the revised edition of 1892) at 364. 24 Raymond E. Akers (R. Exh. 43) and David A. Wright (R. Exh. 28) (2:557-558, 577). BLUE SQUARE II 1987 The task now is to consider the appropriate reme- dial order Given Richardson s driving record, it was only a matter of time until Respondent requested a current MVR The 80 points Richardson had accumulated would have caused Respondent, in accordance with its practice, to dismiss Richardson The question is, when would Re spondent, in the normal course of events, have requested current MVRs? The record does not disclose either a precise date or an approximate date Meeks March 28 file memo placing Richardson on probation suggests that Respondent had recently re ceived an updated MVR on Richardson Because that MVR did not pick up the 6 March speeding conviction, it is possible the MVR was dated no later than early March That would suggest a request date of about 1 March If so, and if Richardson s MVR was one of those Respondent assertedly requests twice a year on all it drivers, then the next general request would have been about 1 September But I am speculating, for the evi dence simply does not disclose the approximate date What is the nature of the order to take in these cir cumstances7 No reinstatement was ordered in Keeshin Charter Service, 250 NLRB 780 (1980), because it was clear the driver was uninsurable Backpay was tolled as of the date the respondent learned of the driver's unin surability, and a make whole order only was entered Contrasted with Keeshin is Laredo Packing Co, 241 NLRB 184 (1979) in which reinstatement was ordered because Respondent did not demonstrate it had no re course but to terminate its drivers In our case it is clear Respondent eventually would have terminated Richardson The question is when would it have done so? As the question and answer seem to fall into the Keeshin category I shall issue a make whole order only There is evidence in the record that Richardson suffered a relapse soon after 10 August based on his injuries from the 8 June accident and was still receiving medical treatment in October (2 561 R Exh 39) That and similar matters may be addressed in the compliance stage CONCLUSIONS OF LAW 1 Respondents, Blue Square II, Energy Sales II Inc, and Enerhaul II Inc, are each an employer within the meaning of Section 2(2), (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) of the Act by coercively interrogating and threatening employees with plant closure about 15 July 1987, and threatening em ployees with discharge about 24 July 1987 4 Respondent did not violate Section 8(a)(1) of the Act for conduct alleged in complaint paragraphs 10, 12, 13 and 14 5 Respondent violated Section 8(a)(3) and (1) of the Act by discharging Larry E King on 5 August 1987 6 Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging Ricky Farris on 3 August 1987 55 7 Respondent violated Section 8(a)(4) and (1) of the Act by discharging Jimmy Allen Richardson on 10 August 1987 8 Respondent did not violate Section 8 (a)(4) and (1) of the Act by allegedly discharging James D Samons on 6 August 1987 9 The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de signed to effectuate the policies of the Act Respondent must (1) Offer Larry E King immediate and full reinstate ment to a position at any of Respondent's facilities which position is substantially equivalent to his former position, if it is determined at the compliance stage that such a po sition is available, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene fits suffered as a result of the discrimination against him If no such position is available, then make him whole until such time that he obtains a substantially equivalent position elsewhere (2) Make whole Jimmy A Richardson for any loss of earnings and other benefits suffered as a result of the dis cnmination against him Richardson must be made whole from the date of his 10 August 1987 discharge until the date to be determined at the compliance stage, that he would have been discharged because of his driving record (3) Backpay shall be calculated in the manner estab lished in F W Woolworth Co, 90 NLRB 289 (1950), with interest, computed as described in New Horizons for the Retarded, 283 NLRB 1173 (1987) 25 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed26 ORDER The Respondent, Blue Square II Inc Energy Sales II, Inc, and Enerhaul II, Inc Sumiton Alabama, its offs cers agents successors and assigns shall 1 Cease and desist from (a) Coercively interrogating its employees concerning their union sympathies and those of other employees, and threatening its employees with plant closure and dis charge if its employees join or support the United Mine Workers of America 25 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) 26 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner interfering with, re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Larry E King immediate and full reinstate ment to a position at any of Respondents facilities which is substantially equivalent to his former position if it is determined at the compliance stage that such a position is available, without prejudice to his seniority or any other rights or privileges previously enjoyed and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him If no such position is available, then make him whole until such time that he obtains substantially equivalent em ployment elsewhere, in the manner set forth in the remedy section of this decision (b) Make whole Jimmy A Richardson for any loss of earnings and other benefits suffered as a result of the dis crimination against him from the date of his 10 August 1987 discharge until the date , to be determined at the compliance stage, that he would have been discharged because of his driving record (c) Remove from its files any reference to the unlawful discharges and notify Larry E King and Jimmy Allen Richardson in wasting that this has been done and that the discharges will not be used against them in any way (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay roll records social security payment records, timecards, personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (e) Post at its offices in Walker and Jefferson counties, Alabama, copies of the attached notice marked Appen dix 27 Copies of the notice, on forms provided by the Regional Director for Region 10 after being signed by Respondents authorized representative , shall be posted by 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 Respondent to ensure that the notices are not altered , defaced, or cov ered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found 27 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