P*I*E Nationwide, Inc.

382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD P*I*E Nationwide, Inc. and Patrick N. Clement. Case 30-CA-10110 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On October 28, 1988, Administrative Law Judge Arline Pacht issued the attached decision. The Re- spondent 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,' and conclusions and to adopt the recommended Order2 as set forth in full below. ORDER The National Labor Relations Board orders that the Respondent, P*I*E Nationwide, Inc., Franklin, Wisconsin, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Warning, discharging, or otherwise discrimi- nating against an employee previously found to ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. In the section of the judge's decision entitled "The Present Case," the first sentence in the last paragraph should read , "Clement was called at 9:00 p in. on June 17 and left Franklin ast 11:00 p.m bound for Chicago." In finding a violation of Sec. 8(a)(4) of the Act, the judge relied on the record in the backpay proceedings in Case 30-CA-8074 (P'!'E Nation- wide), and stated that it "is not difficult to imagine that [Larry] Scar- brough felt uncomfortable if not humiliated by his role in that proceed- ing." The judge found this humiliation motivated Scarbrough to retaliate against Clement. In finding an unlawful motive, we do not rely on testi- mony given at the backpay hearing . Instead, we rely on the dnvers' testi- mony in this case that they verbally teased Scarbrough and played practi- cal jokes on him based on Clement's account of Scarbrough's perform- ance at the backpay hearing . In this regard, we agree with the judge that it is impossible to believe Scarbrough did not know he was the subject of the dnvers' widespread and prolonged jokes . We therefore find that Scarbrough discriminated against Clement because Clement invoked the Board's remedial processes. 2 We shall modify the judge's recommended Order to conform to the Board's traditional make-whole language. The judge included in her recommended Order a visitatonal clause, reasoning that in the backpay proceeding the Respondent had "failed 'to cooperate or otherwise attempt[ed ] to evade compliance' and may do so again" (quoting Cherokee Marine Terminal, 287 NLRB 1080 (1988)). We have reviewed the record in the backpay case Although the Respondent did fail to supply certain subpoenaed evidence (a failure that in fact un- dermined its own contentions regarding the determination of gross back- pay), it is not clear that in failing to produce the subpoenaed material, the Respondent was acting in bad faith. Accordingly, we find it unnecessary to include a visitatonal clause in this case. Cherokee Marine Terminal, supra. have been discriminatorily discharged in order to discourage union activity or employee participation in proceedings conducted by the National Labor Relations Board. (b) In any other 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 neces- sary to effectuate the policies of the Act. (a) Offer Patrick Clement 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 suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the judge's decision. (b) Remove from its files any references to the June 18, 1988 warnings and unlawful discharge of Patrick Clement and notify him in writing that this has been done and that the unlawful warnings and discharge will not be used against him in any way. (c) Preserve and, on request , make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Franklin, Wisconsin place of busi- ness, copies of the attached notice marked "Appen- dix."2 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 3 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." 295 NLRB No. 43 P*I*E NATIONWIDE 383 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. WE WILL NOT issue warning letters to or dis- charge employees because they honestly and rea- sonably assert a right grounded in the Union's col- lective-bargaining agreement with us. WE WILL NOT issue warning letters to or dis- charge or otherwise discriminate against employees because they file or process charges, give testimo- ny under the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Patrick Clement 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. WE WILL notify Patrick Clement that we have removed from our files any reference to the June 18, 1988 warnings and unlawful discharge and that these will not be used against him in any way. P*I*E NATIONWIDE, INC. Joyce Ann Seiser, Esq., for the General Counsel. Peter R. Corbin, Esq. and John F. Dickinson, Esq., of Jacksonville, Florida, for the Respondent. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. On a charge filed on June 28 , 1988,1 a complaint issued on I All dates refer to 1988 unless otherwise indicated. August 5 alleging that P*I*E Nationwide, Inc. (the Re- spondent or the Company) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act) by discharging Patrick Clement (Clement). The Respondent answered on August 17 denying that it committed any unfair labor practices. The case was tried before me in Milwaukee , Wiscon- sin, on September 1 and 2 at which time the parties had full opportunity to examine witnesses , introduce docu- mentary proof, and present oral argument . Taking into account the witnesses' demeanor, and on the entire record, including posttrial briefs submitted by counsel for the General Counsel (General Counsel) and the Re- spondent, pursuant to Section 10(c) of the Act, I make the following FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The Company, a Florida corporation with an office and place of business in Franklin , Wisconsin, is engaged in the interstate transportation of freight . In the oper- ation of its business, the Company annually derives gross revenues in excess of $50,000 for the transportation of freight and commodities from Wisconsin directly to points outside the State . I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Patrick Clement, no newcomer to the Board's process- es, is now seeking the Act's protections for the fourth time. As detailed in an earlier case, 282 NLRB 1060 (1987), Clement filed his first unfair labor practice charge in 1981 . A complaint issued alleging that he was laid off by a previous employer for engaging in union and pro- tected activities. That matter was resolved by informal settlement which provided, inter alia, that Clement would be made whole, that he would waive reinstate- ment, and would receive a letter of recommendation to be furnished to all prospective employers , which stated that ,his attendance was good and his work record satis- factory: Lastly, Clement was to keep the terms of the settlement strictly confidential. Clement found employment with the Respondent in September 1983. However, he was terminated 1 day after he satisfactorily completed a 30-day probationary period, allegedly for falsifying his employment application by failing to report that he had been laid off from his previ- ous job. At 'a hearing on the grievance, which Clement filed to protest his discharge, the Respondent's then labor relations representative read a prepared statement which included the following comment: Certainly, under Ryder/P.I.E.'s standards, had Mr. Clement revealed the full and accurate information regarding the conditions of leaving Smith's Transfer Co. (the prior employer), he would not have been employed. [282 NLRB 1060, 1062.] 384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The administrative law judge (ALJ) relied heavily on this damaging admission as proof that the "Company had a policy against employing individuals who engage in such conduct" and concluded that Respondent had vio- lated Section 8(a)(4) of the Act by terminating Clement because he "filed and processed to settlement unfair labor practice charges a former employer." Id. at 11. The Respondent finally reinstated Clement on July 8, 1987, but challenged the amount of backpay due him. At a backpay hearing held on April 21, Respondent ad- duced testimony from Larry Scarbrough, line transporta- tion manager at the Franklin terminal , who, on cross-ex- amination, acknowledged that he had received the Gen- eral Counsel's subpoena but had failed to produce the re- quested documents either because they no longer existed or were maintained in Respondent's Jacksonville, Florida headquarters. The drivers at the Franklin terminal were well aware that a backpay hearing was scheduled in Clement's case, and in the weeks which followed the hearing , many of them discussed the proceeding with him.2 He told his coworkers about Scarbrough 's testimony indicating that he had answered questions about his failure to produce that subpoenaed documents by stating , "I don't know." Scarbrough's testimony at the backpay hearing became a matter of widespread derision . Jokes about his perform- ance spread from one driver to another. Driver Richard Eaton testified that employees began answering Scar- brough's questions with a stock answer, "I don't know" imitating the line manager's southern accent . On the day that counsels' briefs were due in the backpay proceeding, some wag penned a message on a wall calendar hanging in the drivers' room at the terminal, "Scarbrough fired." However, Scarbrough testified in the instant trial that he was unaware of any such teasing or joking and did not observe the note on the calendar until sometime in July, after Clement had been terminated. A supplemental decision in the backpay case issued on September 30 wherein the ALJ concluded that Respond- ent owed Clement $77,959.72 with interest and another $11,630 to the Teamsters Central States Pension Fund on Clement's behalf. (Case 30-CA-8074, JD-235-88.) B. The Present Case Clement returned to Respondent 's employ as one of 30 extra board drivers; that is, drivers who are dispatched from the Franklin facility to various terminals through- out the midwest.3 As members of Teamsters Local 200, the Franklin drivers were covered by the National Master Freight Agreement and Central States Over-the- Road Motor Freight Supplemental Agreement (R. Exh. 1).4 In addition, the Respondent and the Union negotiat- 2 Findings set forth in this paragraph concerning the drivers ' conversa- tions with Clement about the backpay proceeding are based on the mutu- ally corroborative and uncontradicted testimony of witnesses Richard Eaton, Jerry McClellan, and Clement S A second classification was composed of bid drivers , those who are assigned to specific routes on a fixed schedule. 4 Hereinafter, Respondent's exhibits shall be referred to as R. Exh.; General Counsel's exhibits shall be designated as G.C. Exh ed written dispatch procedures which provided, inter alia, that "Extra board drivers are subject to dispatch through their home domicile, either turnaround runs or layover runs." (R. Exhs. 2 and 3.) Beyond the standards and requirements set forth in the above agreements, the Respondent and its drivers also were governed by De- partment of Transportation (DOT) Federal Motor Carri- er Safety Regulations. DOT Regulation sec. 395 .3(a)(1), of some pertinence to this matter, provides that no driver shall be required to work more than 15 hours, 10 of which may be spent driving, following an 8-hour rest break. (G.C. Exh. 16.) In other words, taking these re- quirements together, Respondent was permitted to dis- patch extra board drivers on various assignments as long as they did not exceed 15 hours of work. In the event a driver reached his maximum hours of work while he was on the road at a terminal other than Franklin , Respond- ent could direct him to "Go to bed" at that location for the requisite 8-hour rest period. Clement's tour of duty just prior to the one which led to his discharge, began at 8:15 a.m . on June 16 and con- cluded at approximately 12:15 a.m . on June 17, after he completed two round trips between the Franklin termi- nal and Respondent's facility in Chicago . He returned to his home and, although he had the day off, Clement tes- tified that he was unable to rest while awaiting his next assignment. Clement was called at 9 p .m. on July 17 and left Franklin at 11 p.m. bound for Chicago. He arrived there at 1 a.m. and left at 3 a.m., arriving in Franklin at 6:45 a.m. after making several authorized stops en route. He left Franklin at 7:30 a.m. arriving at Chicago for the second time at 9 : 15 a.m. He left Chicago at 10:15 a.m. reaching the Franklin terminal shortly after noon. C. Clement's Discharge Clement offered a largely unrebutted recital of the events which immediately preceded his discharge. A summary of his account follows. On returning to the Franklin terminal , he began completing his paperwork. Scarbrough asked him how many hours he had left to drive to which Clement responded that he was going home to bed . When Scarbrough repeated his question, Clement estimated he had approximately 3 of his 15 hours remaining . In fact, he realized shortly thereafter that fatigue had caused him to miscalculate his time and that he actually had only 2-1/4 hours left. Scarbrough then told him that there was more work for him. Clem- ent replied that he had completed his work and was going home. Scarbrough then asked if he was refusing work. Clement responded that he had performed two trips and that was all he was required to do. Specifically, Clement stated : "Larry, you know that we are only re- quired to do two trips. A third trip is up to the driver if he wants to do it or not." (Emphasis added.) (Tr. at 80.) Scarbrough demanded that Clement take another run to Chicago and go to bed there. When Clement again de- clined insisting that he was going home to bed, Scar- brough attempted to hand him a warning notice for re- fusing the assignment. Clement rejected Scarbrough's re- quest that he accept and sign the disciplinary notice, P*I*E NATIONWIDE 385 pointing out that the parties' collective -bargaining agree- ment required that such warnings had to be sent by certi- fied mail . As Clement prepared to leave the terminal, Scarbrough again tried to hand him a second and final disciplinary notice for the same offense ; that is, refusing to accept the dispatch to Chicago. At this, Clement de- manded to see the union steward . Determined to proceed without waiting for a steward , Scarbrough announced that if Clement refused the assignment, he would be ter- minated. When Clement said nothing, Scarbrough fired him on the spot. Respondent did not cross-examine Clement . Moreover, when Scarbrough testified on behalf of the Respondent, he concurred with virtually all of Clement 's account, de- nying only that Clement had said he was going home to bed. According to Scarbrough , Clement offered no reason for his refusal to accept the assignment. By the same token, Scarbrough gave Clement no reason for in- sisting that he accept the third run to Chicago . However, at the trial, Scarbrough stated that the assignment in- volved driving a rail trailer to Chicago in time to reach a 3 p.m. train bound for Florida. Clement was supposedly the only driver on hand to make that run. However, ac- cording to Scarbrough, another driver who arrived at the Franklin terminal at approximately 12:30 p.m. made the run, reaching Chicago just in time to meet the train which fortuitously departed at 3:30 rather than 3 p.m. Respondent offered no documentation to support Scar- brough's account. Scarbrough acknowledged that he re- ceived daily projections of deliveries, but failed to ex- plain why no other driver was available for an assign- ment which had a shipment deadline. Two days later, on June 20, Clement filed a grievance challenging his discharge on the ground that he had "the right to turn down a third dispatch." (R. Exh. 9.) This statement as well as his similar comment to Scarbrough on June 18 stemmed from Clement's understanding that the Union and the Respondent had entered into an agree- ment allowing drivers to reject third trips to Chicago. According to Clement, he first learned from a fellow driver that the agreement came about in late January after a driver, Bill Hanes, was terminated for challenging a dispatcher's order. While seeking reinstatement for Hanes, Union Business Representative Frank Busalacchi and Michael Crowley, then labor relations director at the Franklin terminal , discussed the problem many drivers had with taking three round-trip tours of duty between Franklin and Chicago. Although the distance between the two cities was only 69 driving miles, traffic and road conditions often made it an arduous and not very profita- ble experience.5 Therefore, as Clement understood it, Busalacchi and Crowley agreed that the drivers could reject a third trip at their option . 6 Clement testified that during a subsequent telephone call Busalacchi confirmed this arrangement. Clement and fellow drivers Eaton, Lynn, and McClellan testified that they also had conver- sations either with Steward Louie Schmidt or alternate S Extra-board drivers were paid by the mile. Therefore, they were paid less for short runs , such as the one to Chicago, even if the trip took an extended period of time. s Regrettably, Crowley died shortly before this proceeding com- menced Union Steward Lowell Wall who told them that third runs to Chicago were discretionary . Clement maintained that over the next few months he sometimes accepted third trips to Chicago and at other times refused them without offering any excuse to the various dispatchers in- volved. However, on one occasion at the end of March, when Clement refused to accept a third dispatch to a ter- minal in Manitowoc, Wisconsin, insisting that he had taken his two trips for the day and was going home to bed, Scarbrough threatened to withhold full pay. Scar- brough concluded the dispute by simply noting on a dis- patch sheet that Clement was too tired to accept an addi- tional assignment. (See G.C. Exh. 12.) The four other drivers who appeared as witnesses in this trial each testified that like Clement they occasional- ly had taken third runs between Franklin and Chicago, but even more often, had turned them down without reason. Unlike Clement, none of them was disciplined or threatened with discipline by any of the dispatchers for such refusals. The drivers gave varied testimony as to when they first learned about the optional third trip. Eaton stated that Union Steward Schmidt and alternate Steward Wall told him about the agreement sometime in April or May. McClellan placed the date in May. Lynn's testimony was somewhat ambiguous; it was not clear whether he said he learned of the agreement from the stewards in January 1988, or 4 years earlier when he first began driving for the Company. I am unable to account for these disparities, and thus can only speculate that the witnesses either had faulty memories or learned of the agreement at different times. Respondent called several witnesses whose testimony differed not only with the drivers', but with each others'. First, Union Business Representative Busalacchi con- firmed that while discussing the grievance which Hanes' filed to challenge his discharge, he and Labor Relations Director Crowley reviewed the problem of third runs to Chicago and reached an understanding which permitted drivers to refuse third trips to Chicago if they were fa- tigued or another extra-board driver was available. Thereafter, he related the substance of this understanding to Schmidt and Wall . However, Union Steward Schmidt did not recall that Busalacchi informed him of an agree- ment reached with Crowley regarding third trips to Chi- cago and denied having told any driver that such runs were discretionary . He further stated that if a driver re- fused an assignment for any reason other than illness or fatigue, it was considered an automatic quit. I have no reason to disbelieve Busalacchi's testimony that he and Crowley had entered into an understanding or that he subsequently shared the contents of that agreement with the Franklin terminal stewards . Therefore, I conclude that Schmidt forgot having been told that an agreement was reached, which at a minimum, gave the drivers the option of refusing third runs if they were tired or if an- other driver was available. Schmidt's lack of recall may be due to the fact that during the relevant time period, that is, from February to the time of the hearing, he was absent from work while recuperating from an automobile accident. Although he visited the terminal perhaps once a week during his convalescence, he was not there on a 386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sustained basis and apparently was unaware that drivers were routinely rejecting third runs to Chicago. Discussion and Concluding Findings The complaint raises two separate but related ques- tions involving alleged violations of Section 8(a)(3) and (4) of the Act: (1) whether Clement was discharged for engaging in union activity and (2) whether he was dis- charged for filing charges, giving testimony and pursuing backpay with the Board. In either instance, the General Counsel bears the burden of proving that Clement was engaged in protected concerted activity and that the Re- spondent penalized him for that reason . If the General Counsel succeeds in establishing a prima facie case, the burden shifts to the Respondent to prove that its adverse action would have been the same even in the absence of the employee's protected conduct. NLRB v. Transporta- tion Management Corp., 462 U.S. 393, 395 (1983), citing with approval Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).' A. The 8(a)(3) Issue General Counsel contends that when Clement refused a third dispatch to Chicago, he was asserting a right based upon what he in good faith believed was a negoti- ated agreement between the Union and Respondent and thus, was engaged in protected concerted activity. As authority for her contention , General Counsel properly relies on NLRB v. City Disposal Systems, 465 U.S. 822, 831-832 (1984), in which the Court, endorsing the Board's Interboro doctrine,8 reasoned that: The invocation of a right rooted in a collective- bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. That process-beginning with the organization of a union, continuing into the negotiation of a collec- tive bargaining agreement, and extending through the enforcement of the agreement-is a single, col- lective activity. Thus, an employee is engaged in protected concerted ac- tivity if he asserts a right which is reasonably and in good faith grounded in his collective-bargaining agree- ment. Moreover, as Justice Brennan, writing for the ma- jority, made clear, the rights asserted need not only be those expressly stated in the collective-bargaining agree- ment for "Collective bargaining is a continuing process. Among other things, it involves day-to-day adjustments in the contract and other working rules [and] resolution of new problems not covered by existing agreements." Id. at 831 fn. 9. Therefore, "even an employee's initial refusal to perform a certain job that he believes he has no duty to perform" may constitute concerted activity. Id. at 836. On applying the standards set forth in City Disposal to the facts in the instant case, I conclude that Clement was engaged in protected concerted activity within the mean- ing of the Interboro doctrine. In reaching this conclusion, I start by noting that Busalacchi, called by Respondent as its witness, testified without controversion that he dis- cussed the driver's difficulties with third runs to Chicago with Respondent's labor relations consultant and that they reached an understanding, although it may have been differed from the one communicated to the drivers. Further, I credit Busalacchi's testimony that he subse- quently told the Franklin terminal stewards about this agreement. Admittedly, he was not on the scene to hear how the stewards (particularly Lowell Wall) relayed the terms of this agreement to the drivers nor how it was put into practice.9 Clement and other drivers may have been mistaken about the precise terms of that agreement . However, I am persuaded that he and some of his coworkers had a reasonable basis for believing that the union business agent reached an understanding with their Employer which permitted extra-board drivers at their option to decline third runs to Chicago. The dispatchers at the Franklin terminal also must have had some reason to assume an agreement was in place since they routinely allowed drivers to reject third runs to Chicago. Undis- puted testimony regarding the dispatchers' practice in this regard lends additional support to the reasonableness of Clement's belief. Therefore, when Clement refused the third dispatch to Chicago, he was rejecting a task that he reasonably and honestly believed he was not required to perform and, thus, was asserting a Section 7 right which had its source in collective-bargaining activity. Evidence that Clement genuinely believed he had such a right comes from several sources : first, at the very moment that Scarbrough was threatening him with dis- charge, he asserted, "Larry, you know we are only re- quired to do two trips. A third trip is up to the driver if he wants to do it or not." At the trial, Scarbrough did not deny that Clement made this statement . Indeed, he expressly acknowledged the accuracy of Clement's ac- count. Moreover, he gave no testimony that he was puz- zled by Clement's statement or that he questioned him about it. Scarbrough's silence in the face of such an as- sertion, and his failure to deny that Clement made it sug- gest that he knew full well that Clement was referring to and invoking a right granted to extra-board drivers to turn down third trips to Chicago without reason. Simi- larly, in filing a grievance to protest his discharge, Clem- ent claimed the right to refuse third trips to Chicago. It is unlikely that he would stake his future employment on a claimed right unless he sincerely believed the agree- ment gave him that right. Further, Clement was not alone in believing that such an agreement existed, for other drivers testified that they, 7 The Board applies its Wright Line burden shifting analysis to alleged 8(a)(4) as well as 8(a)(3) violations . See NLRB Y. Sea-Land Service, 837 F.2d 1387 (5th Cir. 1988). 8Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). 9I find it puzzling that Busalacchi and Crowley had to enter into a special arrangement to excuse drivers who claimed they were fatigued since drivers always had the option to decline an assignment if they were overly tired Of course, there was one new element of their understand- ing-drivers were given the right to reject third trips if another driver was available. P*I*E NATIONWIDE 387 too, knew of it. The record shows that regardless of when they first learned of an agreement, drivers Eaton, Heimerl, Lynn, and McClellan regularly refused third runs to Chicago without offering any excuse ; yet, they suffered no discipline. 10 Respondent did not call as wit- nesses either alternate Steward Wall who was alleged to have informed some of the employees of the third trip agreement, or Respondent's dispatchers, each 'of whom was identified as having acquiesced in the practice. Con- sequently, the drivers' testimony was uncontradicted that they freely and frequently engaged in the very conduct for which Clement was penalized . Since by his own ac- count, Scarbrough spent long hours in the terminal, he had to know of a practice of several months duration which involved at least five drivers and all of his dis- patchers. Therefore, when Scarbrough singled out Clem- ent for disparate treatment, it is fair to infer that Re- spondent was driven by a discriminatory motive. See, e.g., Southwire Co., 277 NLRB 377, 380-382 ( 1985); Jones Plumbing Co., 277 NLRB 437 ( 1985). In addition, contrary to the terms of the parties' col- lective-bargaining agreement which called for sending warning notices to employees by certified mail, Scar- brough handed both a first and second warning to Clem- ent and then, in rapid order, fired him for a single pur- ported violation . Scarbrough's unseemly haste in issuing multiple warnings for what in reality was one act, sug- gests that he seized on Clement's conduct as a device to be rid of an unwanted employee . " See Florida Tile Co., 255 NLRB 360, 363 (1981), affd. 692 F.2d 34 (6th Cir. 1982), cert. denied 464 U.S. 817 ( 1983). By the time of trial, Scarbrough apparently recognized that he needed to offer a compelling reason for assigning a third Chicago run to Clement. Thus, he told a tale about an urgent delivery that had to reach Chicago in time to meet a 3 o'clock train. Since he admitted that he received daily projections of freight deliveries so that he would know in advance how many drivers were needed, and since Respondent's trip sheets shows that drivers often received second assignments at the time they were first dispatched or called the home terminal on arriving at another depot, Scarbrough could have easily assigned this urgent delivery to an available driver well in ad- vance without waiting until the last moment . Further, Respondent's records show that another driver, Marken, left the Franklin terminal at 12 noon . (See Exh. 11.) Scarbrough failed to explain why he was not given this special assignment. I conclude, therefore, that Scar- brough invented this story so that Respondent could 10 McClellan testified that on one occasion on June 14, a dispatcher in- sisted that he provide a reason for refusing a third run. He obliged by saying he was tired in such a facetious manner that the dispatcher knew he was dissembling. However, McClellan, who impressed me as a par- ticularly credible witness, implied that even this was an unusual occur- rence and that he had rejected third runs on many occasions without of- fering any justification. 11 Scarbrough maintained that he always handled insubordinate con- duct in the same manner; that is, by giving successive warnings, because he wanted to "give the employee every opportunity to do what I am asking him to do, and think about what he is doing ." In my view, Scar- brough's actions certainly would promote instant obedience , but not thoughtful response. It is far more reasonable to assume that the collec- tive-bargaining agreement provided for mailed disciplinary notices in order to deter the precipitous conduct in which Scarbrough engaged claim that Clement was the only driver available, and thereby make his refusal of a third trip appear unjusti- fied. In light of the foregoing considerations, I conclude that the General Counsel has established a prima facie case that Respondent violated Section 8(a)(1) and (3) of the Act by warning and terminating Clement for engag- ing in protected concerted activity. Before discussing Respondent's defenses, I next consider whether the Gen- eral Counsel also has met the burden of proof requisite to establishing a prima facie violation of Section 8(a)(4). B. The 8(a)(4) Issue Pointing to the Board's decision in 282 NLRB 1060 as outlined above, the General Counsel contends that Re- spondent's treatment of Clement in this case is a continu- ation of the unlawful discrimination previously practiced against him. If Respondent's legal entanglements with Clement had ended in 1986 when the Board issued its Decision and Order, or even in 1987 when he was rein- stated, it would be difficult to find a timely connection between Clement's prior action before the Board and his second discharge. But, of course, Clement's reinstatment did not end his or Respondent's involvement with Board processes. In April of this year, the Company once again found itself on the defensive in an NLRB forum; a back- pay hearing was required because Respondent disputed the method used to compute the wages owed to Clem- ent. Respondent points out that Scarbrough was not in- volved in Clement's earlier termination. However, he certainly knew that his employer had fired Clement and had resisted reinstating him. Moreover , Scarbrough was Respondent's chief witness at a backpay proceeding at which Clement was seeking a significant amount of money from the Company. The transcript of that hearing shows that Scarbrough acknowledged that he had re- ceived a subpoena duces tecum from the Board ; that he was responsible for complying with it, and that he had not produced the requested documents either because he had destroyed them or because he had failed to obtain them from Respondent's Jacksonville, Florida headquar- ters. It is not difficult to imagine that Scarbrough felt un- comfortable if not humiliated by his role in that proceed- ing. His torment did not end there. His performance became a matter of common knowledge among the driv- ers at the Franklin terminal. I find it impossible to be- lieve that he did not know he was the butt of the drivers' jokes for their banter went on for weeks and was too widespread to be ignored . As the General Counsel sub- mits in her brief: "One need not condone or favor such behavior by employees in order to find [as I do] that it may reasonably have fueled Scarbrough's animosity toward Clement." 12 Scarbrough certainly had good 12 Respondent correctly points out that the transcript of the backpay hearing shows that Scarbrough never answered questions with the phrase, "I don't know." However, this does not at all negate the fact that he failed to produce subpoenaed documents without good reason, does not lesson the amount of joking that went on about his role at that pro- ceeding, and does not undermine the inference that Scarbrough did not look kindly on Clement as the cause of his embarrassment. 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reason to assume that his Employer was not especially enamored with Clement, having fired him once, resisted reinstating him the amount of his backpay. Added to this, Scarbrough appeared at the backpay proceeding as Clement's primary adversary. Even if he wished to put that hearing out of mind, he was unable to do so for he had to endure ridicule about this testimony there for weeks on end. Given the timing of the discharge which came on the heels of these events, it is reasonable to infer that as Respondent's agent, Scarbrough was motivated to retaliate against Clement because of his resort to the Board's processes. See Viracon, Inc. v. NLRB, 736 F.2d 1188, 1192 (7th Cir. 1984); Wayne W. Sell Corp., 281 NLRB 583 (1986). Further, at a hearing before the Union-Management State Area Committee on Clement's discharge grievance, Respondent revealed that its animus toward Clement for successfully seeking the Board's remedies had not abated. At the June 29 hearing, Clement read a prepared state- ment which began, "I had been a road driver for P.I.E. Nationwide since . . . 1983." The company representa- tive responded to this statement by announcing that Clement had not been continuously employed by Re- spondent for he had been discharged. By referring to Clement's earlier unlawful dismissal, Respondent violated the spirit if not the letter of the Board's order which in- structed that "evidence of this unlawful discharge will not be used as a basis for future personnel actions against him." 282 NLRB at 1066. Based upon a showing of Respondent' s unrelenting hostility toward Clement and its disparate treatment of him, I conclude that the General Counsel has more than adequately satisfied the requisites of a prima facie case that Respondent issued warning to and discharged Clem- ent because he continued to invoke the Board's remedial processes. C. The Respondent's Defense In defending its treatment of Clement, the Respondent submits that Scarbrough behaved in a manner entirely consistent with his past practice, invariably issued warn- ings to and fired employees who defied his instructions. Thus, Scarbrough testified about two other instances when he had felt compelled to issue multiple warnings. The first involved a driver, Starks, who, like Clement, received two warnings and then was discharged when he refused to accept an assignment from Scarbrough. On closer examination, however, the Starks affair turned on facts quite different from those in Clement's case for Starks refused a dispatch after having completed only one 69-mile run to Chicago and had 8 more hours left to work. More importantly, unlike Clement, Starks could not claim that his refusal was based on an agreement be- tween the Union and management or on common prac- tice by other drivers. Thus, he was unjustifiably insubor- dinate. And yet, his discharge subsequently was convert- ed to a suspension. Scarbrough also issued two successive warnings to an- other employee, Crowell, for failing to submit a report of his medical examination as required by DOT regulations. Since Crowell had no reasonable basis for disregarding the warning given to him, acceded to Scarbrough's re- quest after the second warning and was not fired, his case is an inapposite precedent in support of Scar- brough's claim of consistent conduct. Although other employees received warnings, the record contains no evidence to suggest that anyone else beside Starks and Clement received two warnings in a row followed by immediate discharge for a single act. These two exam- ples, different on their facts and more than 3 years apart, hardly constitute evidence of Scarbrough's consistency in dispensing discipline. 13 Further, Scarbrough's conduct cannot be examined in a vacuum. He had to know that his dispatchers were routinely permitting drivers to reject third trips to Chica- go. Respondent may not disclaim responsibility for its adverse treatment of Clement when its dispatchers con- doned identical conduct by other drivers. Thus, Re- spondent has failed to disprove the General Counsel's claim that Clement suffered disparate treatment and has offered no convincing evidence that Clement would have been disciplined even if he had not engaged in pro- tected union activity or invoked the Board's processes. It follows that Respondent violated Section 8(a)(1), (3), and (4) of the Act by warning and discharging Clement on June 18. In answering the complaint, Respondent urged the Board to defer this matter to the grievance-arbitration provisions of its collective-bargaining agreement with Teamsters Local 200. However, in Filmation Associates, 227 NLRB 1721, 1722 (1977), the Board unequivocally held that "issues involving Section 8(a)(4) are solely with the Board's province to decide." The Board further de- clined to defer to arbitration where, as here, the "alleged violations of Section 8(a)(3) and (1) of the Act are .. . closely intertwined with the allegations involving Sec- tion 8(a)(4)." The Board has adhered to this policy con- sistently. International Harvester Co., 271 NLRB 647 (1984). Accordingly, Respondent's affirmative defense is without merit. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. By warning and then discharging Patrick Clement because he invoked the Board's remedial processes and engaged in union activity by reasonably and in good faith relying on his understanding of an agreement be- tween the Union and management, the Respondent vio- lated Section 8(a)(1), (3), and (4) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has violated Section 8(a)(1). 4. The above-cited unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 18 I do not find that Scarbrough's handling of Clement's earlier refusal of a third trip to Manitowoc is relevant to his conduct on June 18. The previous refusal, which occurred prior to the backpay hearing, did not result in a warning because Scarbrough contented himself with Clement's comment that he was tired P*I*E NATIONWIDE THE REMEDY Having found that Respondent has violated Section 8(a)(1), (3), and (4) of the Act, I shall recommend that it be required to cease and desist from and in any other manner interfering with the rights of employees guaran- teed by Section 7 of the Act. Since Respondent had demonstrated a continuing propensity to discriminate against Clement, I conclude that a broad cease-and-desist order is required. Further, having concluded that Clement was wrong- fully discharged , I shall recommend that the Respondent be ordered to offer him immediate and full reinstatement to his former job or, if it no longer exists, to a substan- tially equivalent position , without prejudice to his senior- ity or other rights and privileges , and make him whole for any loss of earnings and benefits that he may have suffered from the time of his discharge to the date of the Company's offer of reinstatement. Backpay shall be com- puted on a quarterly basis, less net interim earnings in ac- 389 cordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).14 Also, I shall recom- mend that the Company be ordered to expunge from its records any reference to the unlawful discharge of Pat- rick Clement, to give him written notice of such expun- gement and advise him that its unlawful conduct will in no way be used for further personnel actions against him. I shall grant General Counsel 's motion for a visitator- ial clause, for the record in the backpay proceeding to- gether with the recent ALJ decision in that matter (JD- 235-88) indicate that the Respondent , having previously failed "to cooperate or otherwise attempt [ed] to evade compliance" may do so again. Cherokee Marine Termi- nal, 287 NLRB 1080 (1988). [Recommended Order omitted from publication.] 14 Under New Horizons for the Retarded, supra, 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.