C & L Systems Corp.

366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C & L Systems Corporation and General Drivers, Salesmen and Warehousemen's Local Union No. 984, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Cases 26-CA- 12633 and 26-RC-7049 August 8, 1990 • DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 3, 1989, Administrative Law Judge Howard I. Grossman 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 'The Respondent requested oral argument. The request is denied as the record, exceptions, and brief adequately present the issues and the po- sitions of the parties. 2 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. We correct the judge's inadvertent reference to "1987" in the first sen- tence of par. 6, part III, B, and substitute "1988" and the inadvertent use of "unnecessary" for "necessary" in fn. 66. In agreeing with the judge that the record demonstrates the Respond- ent's union animus, we find it unnecessary to rely as a factor on his find- ing that lapthough Respondent promised to help the employees make a living, it reduced their benefits." In agreeing with the judge that the Respondent had knowledge of its employees' union activities, we emphasize that James Cigalina and Mi- chael D. Benbrook were discharged the same day as Michael Etherton. These discharges occurred soon after the employees had a meeting to dis- cuss union assistance. Terminal Manager Cannon was outside the room when the meeting occurred and saw Etherton leave the meeting. Ether- ton told Cannon that the employees wanted "to get a union in here to straighten out the company." Cigalina also attended this meeting. Thus, in addition to the factors relied on by the judge, Cannon's proximity to the meeting, Cigalina's and Etherton's attendance at the meeting, Ether- ton's statement to Cannon, and the timing of the terminations convince us that the Respondent was aware of the employees' union activity. We find it unnecessary to rely on the judge's discussions of A & T MA. Co., 265 NLRB 1560 (1982), enfd. as modified 738 .F.2d 148 (6th Cir. 1984), and Rea Trucking Co., 176 NLRB 520 (1969), enfd. 439 F.2d 1065 (9th Cir. 1971). We also do not rely on the judge's characterization of the Respond- ent's argument concerning employee Etherton as a "tacit admission" that the General Counsel's case regarding the discharges of Cigalina and Ben- brook had not been rebutted. We find on the basis of all the record evi- dence that the employees' union activities were a motivating factor in the discharges and that the Respondent had not shown that it would have discharged the employees even in the absence of that protected activity. In adopting the judge's recommendation to sustain the challenge to Boshers' ballot, we rely only on the finding that Boshers did not have a community of interest with the unloaders and that Boshers was an office clerical. We do not pass on the finding that Boshers had a "special status." decided to affirm the judge's rulings, finding g,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, C & L Systems Corporation, Memphis, Tennessee, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer James Cigalina, Michael D. Benbrook, and Michael Etherton immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other ben- efits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision." 2. Substitute the following for paragraph 2(d). "(d) Post at its Memphis, Tennessee places of business, copies of the attached notice marked "Appendix."94 Copies of the notice, on forms pro- vided by the Regional Director for Region 26, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material." 3. Substitute the attached notice for that of the administrative law judge. IT IS FURTHER ORDERED that the challenge to Donald Boshers' ballot is sustained and that the ballots of James Cigalina, Michael D. Benbrook, and Michael Etherton shall be opened and counted and a revised tally of ballots and appropriate certi- fication be issued and served on the parties. 3 We shall modify the judge's recommended Order and notice to con- form to the Board's traditional remedial language and to insert a word inadvertently omitted from the posting requirement. 299 NLRB No. 51 C & L SYSTEMS CORP 367 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 discourage employees from en- gaging in protected concerted activities for the purpose of mutual aid and protection by discharg- ing them for engaging in such activities or by dis- crimination against them in any other manner with respect to their hire, tenure of employment, or terms and conditions of employment 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 James Ogalina, Michael D Ben- brook, and Michael Etherton immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest WE WILL remove from our personnel records all references to our unlawful discharge of James Ci- galina, Michael D Benbrook, and Michael Ether- ton, including, in the cases of Cigalma and Ben- brook, all references to tardiness or violations of company rules, and notify each of them in writing that such action has been taken and that evidence of their unlawful discharge or said references in our files will not be used as basis for future person- nel action against them C & L SYSTEMS CORPORATION William E Levy, Esq , for the General Counsel David E Strecker, Esq (Conner and Winters), of Tulsa, Oklahoma, for the Respondent Ira H Cummings, of Memphis, Tennessee, for the Charging Party DECISION STATEMENT OF THE CASE HOWARD I GROSSMAN, Administrative Law Judge The original charge in Case 26-CA-12633 was filed on May 24, 1988, 1 by General Drivers, Salesmen and Ware- housemen's Local Union No 984, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union), and an amended charge on June 7 Complaint issued on July 5, and alleges that C & L Systems Corpo- ration (Respondent or C & L) discharged employees Mi- chael D Benbrook, James Cigalina, and Michael Ether- ton on vanous dates in May because of their union ac- tivities, in violation of Section 8(a)(1) and (3) of the Na- tional Labor Relations Act (the Act) The Union filed the petition in Case 26-RC-7049 on June 7, and a Board election was conducted on July 27 pursuant to a Stipulated Election Agreement among cer- tain C & L employees at its Memphis, Tennessee facili- ties 2 Of approximately 18 eligible voters, 6 cast ballots in favor of the Union, and 6 cast ballots against it, with 4 challenged ballots 3 Three of the challenged ballots were those of the alleged discriminates in the unfair labor practice case, whose ballots were challenged because their names were not on the list, and one was that of Donald Boshers, whose ballot was challenged on the ground that he was either an office clerical employee or a supervisor 4 On July 26, the Regional Director for Region 26 issued a notice of hearing on challenges, di- recting a hearing on the issues raised by the challenges, and consolidating said hearing with any hearing conduct- ed on the unfair labor practice issues A hearing was conducted before me on these matters in Memphis, Tennessee, on September 28-30 and Octo- ber 19 Thereafter, Respondent and the General Counsel filed briefs On the entire record, and on my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION The pleadings establish that Respondent is a corpora- tion with a facility located at Memphis, Tennessee, where it is engaged in the unloading of new automobiles from railroad cars and parking them on railroad proper- ty Respondent annually provides services valued in excess of $50,000 directly to employers engaged in inter- state commerce, and is an employer engaged in com- 1 All dates are in 1988 unless otherwise stated 2 The agreed-upon unit was All yardmen employed by the Employer at its Memphis, Tennessee facilities Excluded All office clencal employ- ees, watchmen, guards and supervisors as defined in the Act (G C Exh 1(h)) 5 G C Exh 44 4 The parties agreed at the hearing to litigate both asserted grounds for the challenge to Boshers' ballot 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings establish that the Union is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent unloads new automobiles for various rail- roads in Omaha, Nebraska; Laurel, Montana; Irving, Texas; Houston, Texas; and Memphis, Tennessee. The Company's headquarters are in Tulsa, Oklahoma. In Memphis it has a contract for services with the Burling- ton and Northern Railroad and unloads automobiles at two facilities, designated as the "Yale" and "Knight Arnold" facilities. It has been operating the Yale facility since December 5 1985, and, on July 1, 1987, began per- forming services at the Knight Arnold facility. The latter had been operated for several years by another company, Nu-Car Unloading. Nu-Car employees were employed by Respondent after the takeover. The owner of Re- spondent was Larry Wofford, and the owner of Nu-Car was his father, Charles Wofford. B. The Revival of the Union Movement After the Takeover The Union had a collective-bargaining agreement with Nu-Car covering the wages, benefits, and working condi- tions of Nu-Car employees. Wilbur Davis, a former Nu- Car employee employed by Respondent at the time of his testimony, affirmed that Respondent's president, Larry Wofford, and its vice president of operations Jimmy Dale Strickland, 6 told him on two separate occa- sions before the takeover that Respondent could not afford to pay the wage rates which the Union had ob- tained, that the railroad did not like the Union and be- lieved the employees should get out of it, and that the employees' "only option" was to get out of the Union or Respondent would have to "give up the ramp." Howev- er, C & L would help the employees "make a living." Walter G. Stevens, a former Nu-Car employee employed by Respondent at the time of his testimony, declared that Wofford told all the regular employees in June or July 1987 that he could not pay the "union scale" the employ- ees had been receiving, and that Strickland added that they would have to take a cut in pay in order to work. This testimony is uncontradicted and credited. Nu-Car employees were employed at an hourly rate of $12.99. When Respondent began operations, the rate first dropped to $9, and later was raised to $10. Nu-Car em- ployees who were called to work were guaranteed 8 hours of work daily. Under Respondent, this guarantee was reduced to 6 hours. Employees employed by Nu- Car were paid overtime for all work over 8 hours daily. Respondent continued this practice for 6 months, and then started paying overtime only after 40 hours weekly. 5 The pleadings establish that Wofford and Strickland were supervisors and agents of Respondent within the meaning of Act. C & L employee Wilbur Davis credibly testified that em- ployees . under Respondent lost a pension plan, 3 weeks of vacation yearly, 5 holidays, and 5 sick leave days. Medical insurance was reduced in its coverage. Davis es- timated that he suffered a total loss of benefits of about $17,000 yearly. The General Counsel's witnesses testified that talk about the Union began sometime after C & L began op- erations. Their estimates of the time that these conversa- tions began varied. Wilbur Davis, who was a particularly reliable witness, affirmed that it began in about February. These conversations took place at work—in the railcars, walking back to pick up a new car, or when riding in the "shuttle van." Most of the General Counsel's witnesses stated that they were careful not to discuss the Union in the presence of supervisors. Michael Etherton testified to a conversation with Marty Milam at the Yale facility in the spring 1988. C & L Vice President Strickland affirmed that Milam had been ramp manager at that facility since January 1988 and was a "part of management." The parties stipulated that Milam was a supervisor. Etherton testified that he told Milam that C & L was "messing the employees around." He added: "We need to get a union or something. I guess we are going to have to get a union in here." Milam replied that Ether- ton had better keep his mouth shut about a union or he would "end up [like] Austin Davis." According to Eth- erton, Austin Davis had been discharged about a month before the conversation. Etherton stated that Milam was his cousin, and that he did not think the latter would "turn him in." Etherton's testimony was uncontradicted and is credited. In late spring 1987, employee discontent increased over what they perceived to be increased hours of work given "out of turn" to one employee. C & L's workload varied from day to day depending on the number of cars delivered to it by the railroad. Accordingly, its work force varied from day to day. Employees were called to work every morning when the number of automobiles to be unloaded had been ascertained. The order in which employees were called was based, in general, on seniori- ty of service. C & L distinguished between "regular" employees, whom it called more frequently, and "casual" employees, who were used when workloads required it. Employee unrest increased over their belief that an employee named Tommy Wilson was being called to work ahead of other employees with greater seniority. Wilson filed an application for work as a "part-time" un- loader on November 16, 1987. 6 However, the date that he was first called to work is uncertain. C & L Vice President Strickland could not recall "exactly" when Wilson was hired, but stated that it was either late in 1987 or early in 1988. Other witnesses 7 placed Wilson's first employment somewhere between February and early April. 6 R. Exh. 2. The application indicates that Wilson had been a previous Nu-Car employee, but was engaged in construction work at the time of his application. 7 Michael Etherton and Wilbur Davis. C & L SYSTEMS CORP 369 Michael Etherton testified that, in late April or early May, Wilson was called ahead of another employee who was "in front of him on the roster" When Etherton learned that the other employee had not been called, it was "the straw that broke the camel's back" Wilbur Davis testified that various employees complained to C & L Vice President Strickland on about May 8 concern- ing Wilson's assertedly preferential treatment Employee Walter G Stevens affirmed that employees expressed their concern to him about Wilson on the same date, and that he saw C & L Vice President Strickland the next morning, May 9 According to Stevens, he told Strick- land that "the—was going to hit the fan" if C & L didn't "do something" Stevens did not mention the Union Strickland "aired it off like nothing really" Strick- land in his testimony acknowledged receiving a com- plaint about Wilson from three other employees, "prob- ably March," and conceded that his explanation at that time "didn't stop the talk about it" I credit Stevens' testimony C Employee Discussions about Union Assistance, and - The Visit to the Union Hall on May 10 1 Summary of The evidence The employees went to the union hall and signed au- thorization cards on May 10 Before this took place, however, they discussed the prospect of seeking union assistance One such discussion took place in the "break room" This was a portable building located a few feet from another building that C & L used as its offices at the Knight-Arnold facility According to Etherton, the discussion in the breakroom took place either on the evening before the trip to the union hall or the next day Etherton stated that the employees present during this discussion were Cigalma, Stevens, and Benbrook, as well as Etherton, and that all were employed that day The discussion took place before lunch Stevens testified that he engaged in a discussion in the breakroom on the same day that the employees went to the union hall, and that it took place shortly before 3 30 p m , just before the end of the day Stevens affirmed that four or five employees were present, including Etherton, Cigalma, and Davis, as well as Stevens According to Stevens, there was a 10- minute discussion, and the employees decided to go to the union hall Wilbur Davis testified that various employees ap- proached him on May 10 and asked what could be done He replied that they should "get back in the Union" Davis affirmed that he placed a call to Union Represent- ative Ira Cummings for this purpose at about 4 p m, using the phone in C & L Vice President Stnckland's office Various employees were in the office, and Davis told them that Cummings was waiting for them No su- pervisor was in that office at the time, but Terminal Manager Paul Cannon s was either in a nearby office or outside 8 The pleadings establish that Cannon was a supervisor and an agent of Respondent within the meaning of the Act Cigalma affirmed that he and other employees were present in the office when Davis used a supervisor's phone, but contended that the call took place the day before the visit to the union hall, i e, May 9 Cigalma stated that he had a conversation with Davis at the washbasin outside Stnckland's office, and that Davis asked whether he was still going down to the union hall and whether he needed a ride Cigalma answered that he would be riding with Benbrook The latter testified he was not at work the day he signed the union card or the day before, and that he went to the hall alone in his own car in response to calls from Stevens and Cigahna The evidence is consistent that seven employees, in- cluding the three alleged discriminates, signed union cards at the union hall on May 10 9 Their testimonies es- tablish that they were at the hall at the same time It is undisputed that the Union filed a representation petition on June 7 2 Factual analysis The contradictions about the dates, times, and employ- ees present at the meetings are apparent Nonetheless, seven employees appeared at the union hall on the same date at the same time and signed union cards The possi- bility that this joint appearance was a coincidence is so remote that it may appropriately be rejected I, there- fore, infer that there was some prior discussion among the employees to explain their simultaneous appearance at the union hall Despite the inconsistencies, each em- ployee was an apparently truthful witness I conclude that the contradictions are the result of erroneous recall about details The differences in Etherton's and Stevens' testimonies suggest that there may have been two con- versations in the brealcroom I find that there was at least one, and that it took place on either May 9 or 10 I also find that Davis placed a call to Union Representative Cummings on May 9 or 10 using the telephone in C & L Vice President Stnckland's office There is no credible evidence that any supervisor overheard this call D Etherton's Statement to Terminal Manager Cannon 1 Summary of the evidence Etherton described his own participation in the break- room conversation Although he was not "screaming," he was talking "pretty loud" The breakroom door was closed at the time Etherton testified on cross-examina- tion that it was he who opened the door at the conclu- sion of the conversation He went out, and saw Terminal Manager Cannon and Donald Boshers "standing there looking" at him Further on cross-examination, Eth- erton averred that there was no water fountain or copy- ing machine outside the breakroom, "nothing but a tele- phone pole with wires on it and a storage shed about 15 feet" ° G C Exhs 5 (Michael Etherton), 9 (Wilbur Davis, Jr ), 10 (Jerry R Clark), 11 (James A Cigalma), 15 (Walter G Stevens), 16 (Roy R Hibbs), and 17 (Michael D Benbrook) 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Etherton testified that he assumed that Cannon and Boshers were listening to the conversation inside the breakroom Accordingly, Etherton testified, he "looked [Cannon] right in the eye," and said, "I guess we are going to have to get a 'union in here to straighten out the company" Cannon did not respond, according to Ether- ton Stevens was asked on cross-examination whether any- thing happened concerning the Union between the time he left the breakroom conversation which he attended and the time he arrived home "Not to my knowledge," he replied Stevens described conversations about the Union with other employees, and affirmed that he did not see any supervisor between the time he left the breakroom and the time he left the premises On cross-examination, Cigalina initially testified that he recalled somebody talking about the Union when Cannon or Boshers "were within hearing distance" Ci- galina then agreed that, in two pretrial statements, he averred that he did not recall anybody talking to him about the Union when Cannon or Boshers were within hearing distance, and did not remember a supervisor being around during discussion of the Union On redirect examination, Cigahna stated that there was no union dis- cussion in Cannon's "presence" Cannon's testimony on direct examination reads in rel- evant part as follows Q Pnor to the discharge of Mr Etherton, did you ever hear him say that he was going to see union officials? A No, sir Q Pnor to Mr Etherton's discharge did you ever hear him say anything about the union or a union? A He may have said "union," but not in the sense that they were talking in any manner about starting or forming a union, nothing like that Q Did you know whether or not prior to his dis- charge Mr Etherton was interested in organizing a union? A No, sir On cross-examination, Cannon could not remember the occasion on which Etherton used the word "union" or what he said about the Union Boshers denied that he ever heard Etherton say any- thing about the Union 2 Factual analysis Respondent argues that Etherton should not be cred- ited because of Cannon's and Boshers' denials, because Etherton was "completely contradicted" by Stevens and Cigalina, because he was not discharged until 2 days after his alleged statement to Cannon and Boshers, and because it would have been "incredible" for Etherton to have made such a statement 10 As indicated, Cannon agreed that Etherton may have said the word "union," but not in the "sense" that the employees were talking about forming a union, or were " R Br , pp 21-23, 52 going to see union officials Etherton did not testify that he told Cannon that the employees were going to "to see union officials," but that they were "going to get a union in here to straighten out the company" Cannon's ac- knowledgement that Etherton used the word "union" constitutes partial corroboration of Etherton's testimony Cannon's inability to remember the occasion when Eth- erton used the word or what he said about a union di- minishes the probative value of Cannon's denial that Eth- erton spoke about forming a union Boshers was an unre- liable witness and his denial has no probative value Stevens' testimony to the effect that he did not see a supervisor upon leaving the breakroom conversation which he attended is inconclusive with respect to the al- leged Etherton-Cannon conversation Stevens may have lingered in the breakroom until Cannon and Boshers had left—or he may have been referring to a different break- room conversation Cigalma's testimony is more inconclusive, and simply comes down to a denial that anything was said about a union in Cannon's "presence" Of course, Etherton never contended that Cannon was present in the breakroom when the discussion took place—merely that he saw Cannon and Boshers outside when he opened the door and left the room The determinative evidence is Cannon's agreement that he heard Etherton say something about a union This admission offsets Steven's and Cigalma's testimo- nies, and shows either that they had not left the break- room or were not present when Etherton spoke to Cannon Etherton testified that Cannon and Boshers were im- mediately outside the breakroom door simply "looking" at him when he came out, and that he believed they overheard the conversation Under these circumstances, it would not have been "incredible" for Etherton to have made the asserted statement to Cannon Respondent's ar- gument that the statement was unlikely because Etherton was not discharged until 2 days later has no merit Etherton was a truthful witness, and I credit his testi- mony on this issue E The Discharges Etherton, agalma, and Benbrook were discharged on May 12 Terminal Manager Cannon terminated the latter two employees by telephone He called Cigalina, stated that the conversation was being recorded, and said that Cigalina was no longer needed because he had been late a few times and had missed a day Cigalina asked why Cannon had not mentioned it before, and the latter re- plied that he had it all "on file" Cannon also called Ben- brook the same day and told him that he was no longer needed "What?" asked Benbrook, and Cannon replied, "Yeah by the way, your are being recorded and we'll send you last check in the mail" Cannon did not give a reason for the discharge Etherton credibly testified that Cannon called him and said, "Come on in Jim wants to talk to you" When Eth- erton arrived at the office, Cannon escorted him into Stnckland's office Strickland told him that he was being terminated because "the insurance had changed" and C & L SYSTEMS CORP 371 wouldn't cover Etherton Etherton asked when C & L changed insurance companies "I don't know," Strick- land answered "Here's your paycheck up to date Good bye" F Respondent's Asserted Reasons for the Discharges 1 Cigalma and Benbrook a Summary of evidence (1) Respondent's records on tardiness Cigalma was hired in January, and Benbrook m late March or early April Both were casual employees em- ployed as automobile unloaders Respondent's principal asserted reason for their discharges is tardiness As indicated, Respondent has a workload which fluc- tuates daily, and its employees are on a call-in basis Calls are placed in the morning usually between 7 and 9 a m Employees are allowed 1 hour to arrive at work after being called C & L Vice President Strickland testi- fied that he only recorded lateness of more than 15 min- utes, i e, more than 1 hour and 15 minutes after the call- in time Terminal Manager Cannon testified that the time a particular employee was "called" was recorded on "track sheets" However, he further stated that the sheets are discarded every 2 or 3 months After the Gen- eral Counsel requested these sheets, the parties agreed that none were m existence for relevant periods of time Although each employee punches a timeclock, the time- card indicates only the time the employee punches in and out, not the time he was called The parties stipulated that Cigalma's and Benbrook's timecards do not contain any records of tardiness Respondent's witnesses testified that tardiness was re- corded on notations placed in an employee's file The earliest tardiness notations in the record for any employ- ee are dated in late March, April, and May 1988, and concern only agalma and Benbrook 11 As noted, Re- spondent commenced operations at the Yale facility in December 1985 and the Knight-Arnold facility in July 1987 C & L Vice President Strickland testified that, prior to mid-March 1988, Respondent "didn't write the [tardiness] records down" (2) Respondent's review of its records Respondent's witnesses stated that C & L began to review its Memphis personnel files in April 1988 C & L President Wofford asserted that, during a visit of Strick- land to the Tulsa head office in April, the latter said that things "weren't going well," and that there were "ongo- ing problems getting people to work on time" Wof- ford suggested "an orderly review of the all files" Strickland testified that, in April, he and Wofford were "discussing long term plans" to transfer Strickland from Memphis to the Tulsa office, and wanted to be certain that the Memphis facilities were operating efficiently On I I R Exh 's 19, 20 As described the first asserted records of lateness of other employees are dated after the Cigalma and Benbrook records September 29, 1988, at the hearing, Strickland testified that his office was then located in Memphis Strickland stated that he began his review on April 25, and reported this to Wofford on that date 12 There was a "general review of all" the 12 to 15 files, and it was completed by the end of the first week in May or shortly thereafter Terminal Manager Cannon testified that Strickland instructed him to review files, and that he did so in mid-April Although Strickland did not identify the files he wanted Cannon to review, the latter stated that he reviewed those of agahna, Benbrook, Davis, and Ste- vens (3) Evidence of Cigalma's tardiness Strickland contended that Cigalma had been tardy seven times, the last time 2 or 3 days before his termina- tion on May 12 He also asserted that Cigalma failed to report for work on two occasions Cigalma testified that he was late only 2 days The first occurred about 2 or 3 weeks after his employment in January, and he was then late "10 minutes at the very most" The second tardiness occurred in mid-Apnl, when he got caught in traffic and was late 5-10 mmutes In addition, Cigalma agreed that he failed to report for work on 1 day because of an auto accident, and advised Respondent of this fact He was not warned in any of these instances, and testified that he missed no other work Respondent introduced purported records of Cigalma's tardiness The first two are notations in Cannon's hand- writing that Cigalma was 1 hour and 15 minutes late on March 30, 40 minutes late on March 31, and that he was verbally warned by Cannon on March 31 There is no notation of the time agalma was called or the time he reported 13 Cannon testified that he could not remember the times that Cigalma was called on either date Asked why there was no notation of the call-in time, Cannon replied that he "just didn't write it on there "14 With re- spect to the asserted verbal warning, Cannon contended that he spoke to Cigalma, but could not remember the exact location or his specific words "I imagine," Cannon stated, "I warned him about being late" Another notation, in StncIdand's handwriting, asserts that Cigalma was 1 hour late on April 20, but does not list a calling time or a warning 16 Cannon did not know why no warning was issued in light of the prior warning, and did not recall telling Strickland about this asserted tardiness Strickland did not remember calling agalma to work that day He contended that the record of the prior warning was in the file when he made the April 20 notation, but agreed that he did not call Cigalma and warn him on April 20 The next notation, in Stncldand's handwriting, records that Cigahna was 51 minutes late on April 17 and that Cannon verbally warned him, but does not list a call-m time 16 Cannon could not recall whether he told Stnck- 12 R Exh 21 • R Exit 19 14 On tardmess reports of other employees dated after the reports for Cigalma and Benbrook, Respondent noted the call-m tunes G C Exit 31, 33, 34, 39 • R Exit 19 12 Mid 372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD land to put the notation in Cigitlina's file. Asked whether he warned Cigalina on this occasion, Cannon replied, "I don't exactly recall when I said something to him or what I said to him." After repeated questions about a warning, Cannon stated: "If it says I did, I did." He ac- knowledged that Cigalina was not given a written warn- ing on this occasion- and was not told that he would be fired if he was late again. Cannon first denied that Re- spondent had any written warning policy at the time, and then, after being shown a written warning which C & L issued the prior year to another employee, affirmed the contrary." Strickland could not remember whether it was he who called Cigalina to work on April 27, and had no specific recollection whether the note in his handwriting was put into Cigalina's file on the date which appears on the notation. He contended that he or- dered Cannon to give Cigalina a verbal warning on this occasion, and originally stated that he was present some time in April when Cannon warned Cigalina about tardi- ness. Strickland later agreed that it was the April 27 inci- dent to which he referred, but then added that he did not overhear what Cannon said to Cigalina. Finally, the record contains three notations of Ciga- lina's tardiness in Strickland's handwriting without any listng of calling times-20 minutes late on May 3, 15 minutes on May 9, and 24 minutes on May 10." Strick- land could not remember whether he called Cigalina to work on any of these occasions or whether he made the notations on the dates which appear thereon. Nonethe- less, he remembered that Cigalina was discharged 2 days after the asserted May 10 tardiness. Cannon stated that the asserted infractions in May were not in Cigalina's file when he reviewed it in April. Strickland acknowledged that the days when Cigalina failed to report for work (twice according to Strickland and once according to Ci- galina) were not in Cigalina's file. Strickland explained this on the ground that Cigalina called and notified the Company. (4) Evidence of Benbrook'F. tardiness and other infractions Strickland contended that Benbrook was discharged for tardiness, improper work habits—placing seat covers. and floormats in improper positions, failure to turn off vehicle appliances, etc.—"general work habits," "a horseplay attitude," and because Benbrook once rode to- gether with Cigalina in the same vehicle. With respect to tardiness, Strickland contended that Benbrook committed three offenses. Benbrook denied that he was ever late more than 5 minutes, and testified that nobody ever told him that he had been late. Respondent introduced a note purportedly showing three instances of Benbrook's tardiness-40 minutes on April 4, 1 hour on April 20, and 51 minutes on April 27, with an asserted warning from Cannon—all in Strick- land's handwriting." Strickland could not recall the 17 G.C. Exh. 38. 18 R. Exh. 19. 19 R. Exh. 20. dates that any of these entries were made, or whether he called Benbrook to work on any such date. He did not know why Benbrook and Cigalina were both charged with the same amount of lateness on April 27-51 min- utes. Cannon testified he could not remember how many times Benbrook was tardy, but believed there was such an occasion and that he spoke to Benbrook about it. However, he could not remember the date. Cannon also claimed that Benbrook had "spun tires" at the Yale ramp, but could not remember when this occurred and agreed there is no such notation in Benbrook's file. He also agreed that there is no notation about improper posi- tioning of floormats or failure to turn off vehicle appli- ances. Benbrook denied that Cannon ever said that he was performing any of these functions improperly, or that he was criticized in any way. (5) Cigalina's and Benbrook's ride to the office in the same vehicle Sometime after Benbrook's employment, Cigalina asked him to get in the car Cigalina was driving and go back to the office for lunch. A supervisor told Cigalina that two employees were not supposed to be in the same car together. Benbrook assumed that the supervisor was talking to Cigalina, because Benbrook was new and did not know any better. Cigalina identified the supervisor as Cannon, and affirmed that this was the only time any su- pervisor ever spoke to him about his work performance. There was no further incident of this nature. Cannon tes- tified that he told both employees that it was "against policy" to ride around "shuttling" people in automobiles. This matter appears in Respondent's purported records as "riding around" on April 27 in an area where cars were not parked, with both employees supposedly warned that such "action would not be tolerated."2° (6) Respondent's rationale for the first appearance of tardiness notations in the spring of 1988 C & L Vice President Strickland agreed that the only tardiness notations prior to May 12, the day of the dis- charged were those of Cigalina and Benbrook. He first explained this by saying that there was no other instance of tardiness, and then asserted that there had been no other case of "unexcused" tardiness, by which he meant an instance where the employee failed to state in ad- vance that he was going to be late so that Respondent would be "forewarned." Wilbur Davis testified that he was regularly late on Monday mornings because he had to take his children to school, that Respondent knew this, and that Davis did not receive a warning for this reason. Strickland agreed that the distinction between an "excused" and an "unexcused" tardiness was not posted, but contended that employees were "told." However, former employee David Mohr denied that he was ever told that C & L had a policy distinguishing "excused" and "unexcused" absences. Terminal Manager Cannon was asked whether there was an "excused" tardiness policy, and replied that he had never excused tardiness. 20 R. Exh. 19, 20. C & L SYSTEMS CORP 373 Respondent's position thus depends on Stnckland's tes- timony alone, and appears to come down to the conten- tion that, with respect to the period between December 1985 when Respondent began operations at the Yale fa- cility, and March 30, 1988, when it assertedly made its first notation of Cigalma's tardiness, either no employee was ever tardy or, being tardy, in each instance reported it in advance to Respondent (7) Respondent's rationale for the absence of call-in times on Cigalma's and Benbrook's tardiness notations As set forth above, Cigalma's and Benbrook's tardiness notation are the only ones which fail to specify the call- in times Cannon could not explain why the tardiness no- tations of other employees all dated after those of Ciga- lina and Benbrook did contain such notations Strickland contended that he first noticed this deficiency during the "April review," and instructed Cannon to improve the recordkeeping (8) Records of other employees The record contains alleged infractions by other em- ployees Thus, Walter Stevens was assertedly unavailable for work on March 6 27 Three days later, Cannon sup- posedly secured Stevens' agreement to be available on five designated days,22 but he was again unavailable on March 31 23 Cannon testified that he spoke to Stevens about this but did not warn him Nonetheless, the record contains a written warning to Stevens for unavailability for work on March 31, purportedly signed by Cannon 24 On July 11, a notation alleges that Stevens was over 1 hour late, without any indication of a warning 25 But on August 8, he was given a written warning for "excessive tardiness," and another written warning on July 13 for failure to report an accident 26 According to a note m Respondent's files, Wilbur Davis disrupted work on April 22 by taking the key of the shuttle van This note is in handwriting similar to other handwriting in the record identified as Cannon's At the end of the note, in handwriting similar to other handwriting in the record identified as Strickland's, is the statement that Cannon warned Davis 27 Jerry Clark was alleged to be late on May 27 and June 13,28 but was not warned according to Terminal Manag- er Cannon On July 16, Clark asked to be excused from work because his back hurt, and the next day did not answer the telephone when called 29 He was not warned on either of these occasions, according to Cannon (9) Discipline affecting employment There is no documentary evidence that any of Re- spondent's employees have ever been discharged, other 21 GC Exh 29 22 Ibul 23 G C Exh 32 24 G C Exh 36 25 G C Exh 30 20 Bud 24 0 C Exh 35 28 G C Exhs 39,41 28 G C Exhs 40,42 than a statement of position which Respondent submitted to the Board 39 No termination letters were issued to Ci- galma, Benbrook, or Etherton The only documentary evidence of discipline affecting an employee's employ- ment status is a 2-week layoff given to an employee in 1987 for damage to two automobiles 37 Respondent elicited testimony from C & L Vice Presi- dent Strickland that seven employees had been dis- charged for various reasons," but did not submit any documentary evidence of same Strickland testified that two of these employees—David Mohr and Greg Bryant—were discharged for "tardiness and playing around "33 Mohr and Bryant testified at the hearing Both were employed as unloaders on a temporary basis for about a month in late 1987, and traveled together to work Their supervisor was Wayne Stroupe Mohr testi- fied that Stroupe told them that they had an hour to get to work after being called Both testified that they were never tardy Their estimates of time it took them to get to work ranged from 10 to 30 minutes Both testified that they were never told that they had been late or tardy, and that they were never reprimanded Neither received a separation notice—C & L simply stopped calling them to work Mohr testified that he was told that the work would "slow down," and that Stroupe said it would "play out" According to Mohr, C & L stopped calling them because it "ran out of work" (10) Summary of Respondent's disciplinary policies and rationale for different policies Terminal Manager Cannon testified that the Company does not have a progressive disciplmary system, and that there are no fixed numbers of tardiness warranting dis- charge C & L Vice President Strickland stated that the Company has not issued a handbook to employees con- cerning company rules Strickland was asked to explain apparent discrepancies in disciplinary policy He replied that Respondent applies different policies to tardiness and absenteeism by casual employees and "new hires," as compared to regular em- ployees C & L is more tolerant with respect to regular employees, since they work more hours, thus have more problems in getting to work on time, and have proved themselves throughout a probationary period However, Walter Stevens, who testified that he was second on the seniority list, received a written warning for tardiness Wilbur Davis testified that he was a regular employee, but supposedly received a warning for dis- rupting work Meanwhile, Jerry Clark wag late twice and unavailable for work, but was not warned Clark tes- tified that he was a casual employee (b) Factual analysis Respondent's asserted reasons for the discharges of CI- galma and Benbrook are based on testimonial and docu- 30 G C Exh 49 "GC Exh 38 32 James Pierce, David Mohr, Greg Bryant, Austin Davis, George Martin, Jim Fairchild, and Dane Holland 33 See also G C Exh 49 374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mentary evidence With respect to the former evidence, both Cannon and Strickland demonstrated almost total lack of recall about the asserted lateness—even with re- spect to alleged tardiness 2 days prior to Ciga!ma's dis- charge for that reason When assisted by "notations," Respondent's witnesses could not remember the specifics of verbal warnings which were allegedly issued These claimed events took place about 6 months prior to the hearing at which the witnesses testified With respect to all of the notations pertaining to Benbrook and more than half pertaining to Cigalma, Strickland testified that he could not remember when the notations were made This fact diminishes the probative value of the notes Despite the fact that C & L recorded call-in times on track sheets (no longer in existence) and employees punched timecards (no call-in times recorded), Respond- ent submitted no documentary evidence of the times Ci- galma and Benbrook were called to work on the dates of the asserted infractions All other, and later, tardiness re- ports on other employees do contain such call-in times Stnckland's explanation that he first observed this defi- ciency during the "April review" and ordered Cannon to improve the recordkeepmg has no ment—all of the nota- tions pertaining to Benbrook and four of them pertaining to Cigalma (three in May) are in Stnckland's handwnt- mg Strickland provided no explanation for his failure to follow his own advice As indicated, there is no documentary evidence that any employee was discharged for tardiness The asserted reasons for the discharges of Cigalma and Benbrook are not even documented, and the latter was not told the supposed reason Although Strickland testified that two other employees, Mohr and Bryant, were discharged for tardiness and "playing around," these employees denied that they were ever late or reprimanded for any reason Work simply ran out Because of the absence of any doc- umentary evidence, Strickland's demonstrated unreliabi- lity as a witness with respect to other instances of disci- pline, and because Mohr and Bryant were more truthful witnesses than Strickland, I credit their consistent testi- monies I reject Respondent's rationale for the different disci- plinary policies applied to different employees No such distinction was ever published, and Mohr denied that he was ever told The facts do not support the asserted dis- tinction—two regular employees received warnings, one for tardiness, while a casual employee was not warned despite two instances of tardiness and one instance of un- availability for work In any event, no other employee was discharged for tardiness—Cigalma and Benbrook were the only employees so disciplined, despite Respond- ent's admission that there was no fixed number of tardi- ness infractions warranting discharge As indicated, Respondent's position is that it first re- corded tardiness notations in the spring of 1988, more than 2 years after commencing operations in the Mem- phis area, because there either had been no prior in- stances of lateness, or the employee had reported it in advance in each instance ("excused" lateness) Despite Davis' isolated testimony about taking his children to school, I reject Respondent's explanation for the absence of tardiness notations for over 2 years applied to differ- ent employees With respect to the asserted difference in treatment of casual and regular employees, no such dis- tinction was ever published The facts do not support the asserted distinction two regular employees received warnings, one for tardiness, while a casual employee was not warned despite two instances of tardiness and one in- stance of unavailability for work I do not accept Respondent's explanation for the ab- sence of any tardiness notations between December 1985, when it started operations at the Yale ramp, and March 30, 1988, when it assertedly made its first notation about Cigalma This explanation is based on the asserted policy of "excused" tardiness Although Wilbur Davis testified about being late on Mondays because he took his chil- dren to work without criticism, and Strickland asserted an "excused lateness" policy, former employee Mohr denied that he ever heard of such a policy and Terminal Manager Cannon denied that he ever excused lateness Stnckland's apparent contention, that there were no former notations of tardiness before March 1988, either because employees were not tardy for the period of more than 2 years since December 1985, or, being tardy, in each instance reported in advance to the office, is pa- tently improbable I question C & L's reason for the "April reviews"— although Strickland contended that it was his planned move to Tulsa which caused the reviews, he was still in Memphis 5 months later I note that the first asserted documents of tardiness are dated about the same time as, or shortly after, the advent of the union movement For the reasons given above, I credit Cigalma's testi- mony that he was late twice, failed to report for work once, and was not warned or reprimanded on any such occasion Noting Stnckland's testimony that he only re- corded lateness of more than 15 minutes, I credit Ben- brook's testimony that he was never late more than 5 minutes, and was never warned for that or any other reason The only infraction which these employees com- mitted was Cigalma's giving Benbrook a ride back to the office for lunch I conclude that this was a relatively minor infraction Cigalma and Benbrook were the only employees dis- charged for asserted tardiness I conclude that Respond- ent dealt with instances of tardiness and other infractions by other employees in a more lenient manner than it did in the cases of Cigahna and Benbrook 2 Michael Etherton (a) Summary of the evidence (1) Etherton's testimony and supporting evidence Etherton was originally employed as a casual driver by Nu-Car in about January 1986 He was hired and su- pervised by Strickland, then a Nu-Car supervisor Ether- ton had had prior traffic violations, including one in April 1985 for driving under the suspicion of being in- toxicated and refusal to submit to a blood alcohol test He received another citation in May 1987 for driving while intoxicated 34 Etherton's driver's license was re- 34 R Exhs 1,7 C & L SYSTEMS CORP 375 yoked, but he was granted a special permit to drive to and from work, and while at work Etherton testified without contradiction that he informed Strickland about the May 1987 violation, and that Stnckland told him not to worry about it and go back to work In July, Etherton started working for C & L He listed an alcohol related conviction on his employment applica- tion submitted to C & L 35 Etherton had no further traf- fic violations and no further discussions with C & L management about his driving record prior to his dis- charge on May 12, 1988 Etherton's driver's license was reinstated on July 21, 1988 (2) Etherton's and Collier's insurance problems in 1987—Respondent's change of insurance companies Respondent's contract with the Burlington Northern Railroad required it to maintain insurance "covering the shipment of automobiles being unloaded "36 Nu-Car was also insured, by USF&G On March 3, 1987, USF&G wrote a memo to its Tulsa agent questioning coverage of Etherton and another employee, Charles Collier, togeth- er with comments about other drivers 37 On March 13, 1987, USF&G informed its Tulsa agent that Etherton and Collier had to be excluded from coverage because of alcohol-related driving violations 38 Richard A Johns, C & L's vice president for finance and administration and Nu-Car's former accountant, tes- tified that he was trying to get Etherton covered by USF&G 39 With respect to Collier, Johns testified on September 29, 1988, that Collier was then a ramp manag- er in Omaha However, C & L's letters to USF&G's agent in July 1987, protesting USF&G's demand that Collier and Etherton be excluded from coverage, did not argue that Collier was other than a USF&G driver 40 In- stead of acceding to USF&G's demand that Etherton and Collier be excluded, C & L decided to drop USF&G, and obtained coverage with Travelers Insur- ance Company The latter's agent was Broken Arrow In- surance Agency, Broken Arrow, Oklahoma In a letter to Broken Arrow in July 1987, Johns included Collier's name on a list of "full-time drivers," as well as the names of Memphis Supervisors Strickland, Cannon, and Milam 47 Etherton was not named in the list provided to Broken Arrow According to Johns, the insurance agent did not request the names of part-time drivers On February 29, 1988, Travelers sent Broker Arrow a memo and a motor vehicle report (MVR) calling atten- tion to Collier, who had an alcohol-related conviction on December 19, 1984 "While this is three years old," the memo reads, "we certainly feel that this type of thing may want to be brought [sic] to the attention of the in- sured so that he can be extra careful since they are dnv- 35 Stnckland's testimony, G C Exh 6 36 R Exh 6, sec 7 ° 7 R Exh 7 38 R Exh 8 39 Nu-Car had differences of opinion with USF&G's agent, including the question of whether USF&G had canceled the policy Beginning in July 1987, John's letters to Insurance agents were under the C & L letter- head R Exhs 9-13 40 R Exhs 10-12 " R Exh 14 ing cars constantly" The memo requests Broken Arrow's "comments "42 There is no further reference to Collier in the record until his name came up during a conversation on May 11 between Johns and a Broken Arrow representative (3) Johns' "Review" in May of the 1988 first quarter statistics, and the emergence of Etherton as an insurance problem There was no further communication between C & L and Broken Arrow about coverage of drivers until early May 1988 At that time, according to Johns, he was re- viewing C & L's quarterly reports to determine which employees were eligible for pension benefits Johns stated that employees working 390 hours quarterly were entitled to these and other company benefits During this review, Johns verred on direct examination, he noticed that Etherton had worked 360 hours for the first quarter of 198843 and was "becoming near full-time status" Johns stated that he knew Etherton had insurance prob- lems, and believed that he would become uninsurable if he achieved full-time status 44 (4) Johns' conversations with Carol Jones of Broken Arrow On May 11 Johns testified on direct examination that he initiated a call to Carol Jones of Broken Arrow on May 10 to "clarify [his] understanding as to part-time drivers being excluded from motor vehicle reports" Jones replied that MVR's would be run on all drivers, and that alcohol-re- lated violations were not acceptable to Travelers Ac- cording to Johns, they discussed the case of Charles Col- lier Jones stated that Travelers had made "an exception" because his violation was "4 years old" Johns agreed that there was no discussion of Etherton in this conver- sation On cross-examination, Johns testified that there were two conversations with Jones, and that they took place on May 11 rather than May 10 In the first call, Johns told Jones that he "might have a problem" with respect to MVRs on part-time drivers Jones reported her under- standing that all drivers had to be checked, but said that she would confirm with Travelers She called back 2 hours later and said that this was correct On the same date, May 11, Jones sent Johns a letter stating that, per their conversation, "any" employees with alcohol-related convictions were uninsurable "Ex- ceptions to this rule will be handled on a case by case basis "43 Enclosed with the letter was a copy of the above-described memo from Travelers to Broken Arrow in February referring to Collier 46 This letter and enclo- " R Exh 16 *3 R Exh 5(a) I received R Exhs 5(a) and (b), upon which ruling was reserved at the hearing "On cross-examination, Johns said that he could not remember the date of his "review" or the number of Etherton's first quarter hours Em- ployee W Walker worked over 372 hours status R Exh 5(a) " R Exh 15 48 R Exh 16 376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sure were received by C & L on May 12 Johns agreed that he requested the letter (5) The investigation of Etherton's MVR on May 11 and the decision to discharge him on May 12 After the conversation with Caro/ Jones on May 11, Johns, who was based in Tulsa, talked with Respondent's president Larry Wofford about Etherton They decided that they needed a current MVR on this employee No determination was made to seek current MVRs on other drivers There was "no need" to do so, Johns claimed He first asserted lack of knowledge of alcohol-related convictions on the part of other employees, and then ad- mitted that he did have such knowledge Wofford testi- fied that Johns did not mention any employee other than Etherton Wofford called Strickland in Memphis on May 11, and asked him to get an MVR on Etherton Wofford knew that Strickland was a part-time employee in the county sheriff's department, and believed that he could get this information Strickland obtained Etherton's driving record on the evening of May 11, utilizing the computer in the sheriff's department It showed the information recited above 42 Strickland testified that the driving record did not show any violation subsequent to the conviction which Ether- ton had indicated on his July 1987 employment applica- tion to C & L As indicated, Etherton informed Strick- land about the May 1987 violation when it happened, and the latter told Etherton not to worry about it According to Wofford, Strickland told him on May 12 that Etherton had a alcohol-related conviction Wofford testified that he then decided to terminate Etherton 48 He instructed Stnckland to do so and, as previously re- lated, Strickland discharged Etherton on May 12 (6) Evidence concerning Etherton's insurability Johns gave conflicting testimony on the issue of whether Etherton was uninsurable in the opinion of its insurance agent and, if so, the date of such opinion On cross-examination, Johns first testified that Carol Jones told him that Etherton was unmsurable during Johns' second conversation with Jones on May 11 Johns then immediately testified that Jones did not say this He also testified that nobody from Broken Arrow or Travelers ever said that Etherton was uninsurable On redirect examination, Johns repeated that Broken Arrow never said that Etherton was umnsurable He was then shown a letter from Carol Jones dated June 2, stat- ing Broken Arrow's understanding that Etherton had been terminated and that Travelers would not be willing to provide coverage for him The letter included Ether- ton's MVR date-stamped May 27, 1988, by "The Travel- ers, Tulsa "" After being shown this letter, Johns testi- fied that he had informed Jones of Etherton's termination after it occurred As noted above, Johns claimed that Jones said the in- surance company had made an exception in the case of 47 R Exh 1 48 Stnckland forwarded Etherton's MVR to Wofford It was received in Respondent's Tulsa office after Etherton had been discharged 49 R Exh 17 Collier, and her letter to Johns on May 11 advised that exceptions would be handled on a case-by-case basis Johns testified that he did not request an exception in the case of Etherton (7) The Travelers' questions about other drivers On September 26, Jones sent Johns a letter with en- closed MVRs questioning the records of Clinton M Mlynank, Mark D Wilson, Peter A Sanders, and Rich- ard J Mlynank, with the notation that the latter was no longer employed Sanders had violations or accidents in 1985, 1986, and 1987, and Wilson in 1987 50 Clinton M Mlynank's record showed a conviction of driving while intoxicated in February 1986, and a later conviction for driving with a suspended license 51 Johns testified at the hearing that Mylnank was then an un- loader in C & L's Omaha facility The General Counsel argues that Respondent treated Mlynank's alcohol-relat- ed conviction differently from the way in which it dealt with Etherton's 52 Respondent argues that it had no knowledge of Mlyn- ank's conviction Thus, it contends that Mlynank was not hired until September 28, 1988;and accordingly, that his name was not included in the list of drivers which Johns sent to Broken Arrow in July 1987 53 However, Johns testified that Mlynank was hired in September 1987, and this is repeated in his employment applica- tion 54 Respondent's 1988 first quarter statistical summa- ry, which Johns said he was reviewing in May, lists Mlynank's date of hire as January 24, 1987,55 but Johns contended that he did not review employment applica- tions throughout the country Johns agreed that Broken Arrow had "questioned" Mylnank's status However, at the time of the hearing, Mlynank was still working as an unloader in Omaha The parties stipulated that the General Counsel ob- tained various driving records from Respondent main- tained by it in the normal course of business These doc- uments are date-stamped August 1988, by "The Travel- ers, Tulsa "56 One of them is Mlynank's driving record, a document which has at the top the legend, "Dataflo Systems, an Equifax Company "57 This is the identical heading which appears at the top of Mlynank's driving record sent to Johns by Broken Arrow in September 1988 58 Respondent's president Wofford said that he did not know the source of these documents found in C & L's files, and Johns denied knowledge of them pnor to the hearing (b) Factual analysis There was an obvious change in Respondent's treat- ment of Etherton's insurance problems between 1987 and 50 R Exh 18 6i Mid 52 GC br,p 9 53 GC br,p 9 64 G C Exh 21 55 R Exh 5(a) 66 G C Exhs 14,18-20 67 G C Exh 19 58 R Exh 18 C & L SYSTEMS CORP 377 1988 In 1987, Respondent not only opposed USF&G's demand that Etherton (and Collier) be excluded from coverage—it dropped the insurance company rather than consent to the exclusion of these employees, and ob- tamed coverage from The Travelers No such effort took place in 1988 with respect to Eth- erton Instead, Respondent's actions were the complete opposite Without any inquiry about Etherton from The Travelers or its agent, Broken Arrow, Respondent initi- ated a conversation about part-time drivers with that agent on May 11, the day after the union card-signing Assuming arguendo that Broken Arrow did say that MVRs would be run on part-time drivers, Etherton was not discussed during that conversation Etherton in fact was unknown to The Travelers when, on May 12, Re- spondent discharged him on the ground that he was un- insurable by that insurance company Any such conclu- sion on May 12 was no more than speculation Although Johns testified that he knew Etherton had insurance problems, these were problems raised by USF&G, which had been dropped by C & L Although Carol Jones sup- posedly told Johns on May 11 that dnvers with alcohol- related convictions were unacceptable to The Travelers, her letter to Johns of that date—solicited by Johns— stated that exceptions would be made on a case by case basis Respondent had no way of knowing whether The Travelers would have made an exception in the case of Etherton In a memo to Broken Arrow in February 1988, The Travelers raised the issue with respect to Col- lier, whc had an alcohol-related conviction just over 3 years old at that time There is no documentary evidence that The Travelers ever received a written response to its request for "comments" about Collier—only John's assertion that Carol Jones told him in May 1988 that The Travelers had made an "exception" with respect to Col- lier's December 1985 conviction because it was then "4 years old," which it was not 59 It was not until Etherton had already been discharged that Respondent told Broken Arrow about him and the fact that he had been terminated After Johns' disclosure of these facts to Carol Jones in a conversation revealed by the record in only cursory form, Jones wrote a letter to C & L dated June 2 stating that The Travelers would not provide coverage for Etherton The probative value of this letter is diminished by the facts that (1) Johns re- peatedly denied, on both cross and redirect examination, that the insurance company ever said that Etherton was uninsurable, (2) there is no documentary evidence that The Travelers ever requested "comments" from Broken Arrow about Etherton (as it did about Collier), despite its apparent first knowledge of Etherton some time in May and his MVR on May 27, and (3) C & L never re- quested an exception in the case of Etherton The record does not disclose whether Johns solicited Jones to write the June 2 letter, as he did her May 11 59 Respondent argues that Collier was a ramp manager in 1988, and therefore not subject to MVR checks on dnvers However, there is no evidence that this fact was ever communicated to The Travelers When Broken Arrow supposedly asked C & L for a list of "full-time dnvers" in 1987. Johns replied with a list including the names of Vice President Stnckland, Terminal Manager Cannon, and Ramp Manager MIlam letter However, there is no doubt that the June 2 letter was an after-the-fact announcement about Etherton The totality of the evidence, including Johns' asserted doubt about part-time drivers in his conversation with Carol Jones on May 11, and his call to her after May 12 in- forming her that a driver then unknown to her had been discharged, warrants an inference that Broken Arrow's assertion that Etherton was uninsurable was initiated by Respondent Although Broken Arrow's June 2 letter states that "the insurance company" would not provide coverage for Etherton, there is no evidence other than the hearsay of Broken Arrow's letter that Etherton's case was ever considered by The Travelers, despite its receipt of his MVR on May 27 The Travelers' February memo to Broken Arrow asks for "comments" about Collier, show- ing its participation m his case Broken Arrow's Septem- ber 26 letter to C & L asks for "comments" about four other drivers There is no evidence that any "comments" about Etherton were ever requested by the insurance company or its agent, or given by C & L According to Respondent's own evidence, Johns knew on May 11 that MVRs would be obtained for all drivers Nonetheless, C & L requested an MVR only on Ether- ton, and obtained it by the unusual efforts of one of its employees who happened to be a part-time sheriff Al- though W Walker worked more first quarter hours than Etherton and was thus closer to "full-time status," Johns did not obtain his MVR Clinton Mlynank's September 1987 employment application showing an alcohol-related conviction withm 2 years was in Respondent's files, as was Mlynank's MVR date-stamped August 1988 by The Travelers Although Johns contended that he did not read employment applications and denied knowledge of Mlynank's record, I find that he did have such knowl- edge, based on the MVR, the employment application in Respondent's files, and Johns' admission on cross-exami- nation that he knew about the alcohol-related convic- tions of other drivers Although the insurance company questioned the records of other drivers, including one with an alcohol-related conviction, such employees were working at the time of the hearing Although the insur- ance agent submitted a letter to Respondent stating that Etherton, already discharged, was uninsurable, this took place after Respondent had opened the subject of part- time drivers with the insurance agent, and had solicited a letter from it on that subject G Legal Analysis and Conclusions 1 The applicable criteria The General Counsel has the burden of establishing a pnma facie case that is sufficient to support an inference that protected conduct was a motivating factor in Re- spondent's decision to discipline employees Once that is established, the burden shifts to Respondent to demon- strate that the discipline would have been administered even in the absence of the protected conduct 60 99 Wright Line, 251 NLRB 1083 (1980), enfd F 2d 889 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Management Corp, 462 US 393 (1983) 378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Respondent's union animus As set forth above, Respondent told employees at the time of its takeover of the Knight-Arnold ramp in mid- 1987 that it could not afford to pay union wages and that the employees would have to take a pay cut in order to work The employees' "only option" was to get out of the Union, or Respondent would have to "give up the ramp" The railroad, with which Respondent contracted to engage in the unloading work which its employees performed, did not like the Union and believed the em- ployees should get out of it Although Respondent prom- ised to help the employees make a living, it reduced their benefits I conclude that by these statements and actions Respondent manifested union animus 3 The alleged discriminates' protected activity and respondent's knowledge thereof It is obvious that Respondent knew about support for the Union among Nu-Car employees in mid-1987 at the time of the takeover, and attempted to reduce that sup- port It is also obvious that the alleged discnmmatees en- gaged in protected activity at the time of revival of union sentiment in the spring of 1988 The General Counsel argues that Respondent had knowledge of this renewed activity because of Stevens' statement to Super- visor Strickland on May 9, pertaining to alleged favorit- ism to Tommy Wilson, that "the — was going to hit the fan" if C & L didn't "do something," and on Etherton's statement to Supervisor Cannon that "we are going to have to get a union in here to straighten out the compa- ny "61 In addition, such knowledge may arguably be in- ferred from Etherton's statement to Supervisor Milam in the spring of 1988 that C & L was "messing the employ- ees around," and that they were "going to have to get a union in here" Respondent argues that such inference may not be made with respect to Etherton's communication to Milam because there is no evidence that Milam "con- veyed that information to the person authorizing the ad- verse decision" Because Milam, Etherton's cousin, told Etherton to keep his mouth shut or he would be fired, Etherton did not expect Milam to report this communi- cation to higher authorities 62 With respect to Cannon, Respondent argues that he was not "involved" in the de- cision to terminate Etherton Although he was involved in the decision to terminate Cigalma and Benbrook, the latter was not working the day the union cards were signed, and even if Cannon was outside the breakroom, he would not have seen Benbrook emerging 63 Respondent cites Dr Phillip Medal, D D S. Inc , 267 NLRB 82 (1983), in which the Board stated that "[o]rdmanly, [it] would impute a manager's or supervi- sor's knowledge of an employee's union activities to the employer" However, the Board did not do so in that case because it had been "affirmatively established as a matter of fact that a supervisor who learned of union ac- tivities did not pass on the information to others" (Ibid ) 61 G C Br, pp 11-12 62 R Br , p 51 63 Ilmd , pp 53-54 This case is inapposite because it has not been "affirma- tively established" herein that Milam and Cannon failed to pass on the information of employee union activity to higher authorities 64 Respondent also cites Delchamps, Inc v NLRB, 585 F 2d 91 (5th Cir 1978), enfg in part and denying in part enf of 232 NLRB 168 (1977) That case involved a chain of grocery stores A customer had a dispute with a cash- ier, who violated store policy by failing to call a manag- er The customer called the company, and eventually de- scribed the cashier to an area supervisor The latter called the store manager, and directed that the cashier be suspended as soon as she was identified "Thus, at the point when the decision to suspend [the employee] was made, [the area supervisor] could not have known she was a union activist, since he did not even know her identity" (Id, 585 F 2d at 94) The area supervisor later discharged the cashier The record established, according to the court, that although the store manager and his as- sistants knew that the cashier was a union activist, they "did not inform [the area supervisor], who was solely re- sponsible for the discharge" (Id, 585 F 2d at 95) Ac- cordingly, "their knowledge obviously could not have been a cause of the firing" (Id, 585 F 2d at 95, citation omitted ) The court distinguished the case from others where a supervisor, although not nominally responsible for the firing, nevertheless played a "significant role" in procuring it, and from cases where the Board inferred from "circumstantial evidence" that knowledge of one supervisor had been communicated to the supervisor re- sponsible for the discharge Rather, the court observed, the Board had "mechanically" imputed the store manag- er's knowledge to the area supervisor (Ibid ) The Fifth Circuit reiterated this position in Pioneer Natural Gas Co v NLRB, 662 F 2d 408, 412 (5th Cir 1981), denying enf 253 NLRB 17 (1980), and in Mara- thon LeTourneau Co v NLRB, 699 F 2d 248, 253 (5th Cir 1983), enfg 256 NLRB 350 (1981) In the latter case the court observed that, "while the Board must find that the employer had knowledge of the discharged employ- ees' union activities [citing Delchamps], it may reasonably infer such knowledge based upon circumstantial evi- dence" (id, 699 F 2d at 253) Delchamps has recently been distinguished by the Court of Appeals for the Sixth Circuit in Grand Rapids Die Casting Corp v NLRB, 831 F 2d 112, 117 (6th Cir 1987), enfg 279 NLRB 622 (1986) In that case the dis- charge was made by the employer's industrial relations manager, who was not present during the employee's protected activity The Sixth Circuit's decision reads in part as follows The AL's findings may stand even if [the indus- trial relations manager] had no knowledge of [the employee's] union activities or of her stated intent to file charges with the Board [The industrial relations manager's] ignorance of the specifics of the December 28 verbal altercation would not necessarily rule out improper motivation 64 See discussion of Dr Phillip Medal in Country Epicure, Inc , 279 NLRB 807, 808 fn 5 (1986) C & L SYSTEMS CORP 379 on the company's part Pioneer Natural Gas Co v NLRB, 662 F 2d 408 (5th Cir 1981), and Del- champs, Inc v NLRB, 585 F 2d 91 (5th Cir 1978) are said to require that the management official who actually discharges the employee be aware of the employee's protected activity before the discharge may be found to have been improperly motivated However, those opinions addressed situations where management officials who did have knowledge of the employee's protected conduct did not influence the adverse employment action We have held that "a supervisor's unlawful, anti- labor motivation in making a false report leading to discharge must be imputed to the Company, even though the officers who actually make the firing de- cision do not share that animus" JMC Transport, Inc v NLRB, 776 F 2d 612 (6th Cir 1985), (cita- tions and footnotes omitted) [id, 831 F 2d at 117] The present situation is also similar to that in Boston Mutual Life Insurance Co v NLRB, 692 F 2d 169, 111 LRRM 2983 (1st Cir 1982), where the Court of Appeals for the First Circuit granted enforcement of the Board's order even though the management official who ultimately fired the com- plainant was unaware of that employee's union ac- tivity The Court was "reluctant to adopt a rule that would permit the company to launder the 'bad' motives of certain of its supervisors by forwarding a dispassionate report to a neutral superior" We share that reluctance [id, 831 F 2d at 117- 118] As set forth in Dr Phillip Megdal, supra, the Board's position is that "ordinarily" it will impute a supervisor's knowledge of an employee's union activities to the em- ployer 65 This rule is supported in this case by the fol- lowing circumstances (1) one of the officials with direct knowledge of the employees' union activity (Terminal Manager Cannon) was the official who discharged Ciga- lma and Benbrook, (2) there were only two supervisors in the Memphis area (Cannon and Milam), both with Knowledge of Etherton's union activities, who reported directly to the official who discharged Etherton (Strick- land), and (3) Cannon, by calling Etherton, telling him to "Come in" because Strickland wanted to "talk" to him and by escorting him into Stickland's office, was thereby "involved" in Etherton's discharge Respondent's argument that Milam's knowledge of Etherton's union sympathies may not be imputed to Re- spondent—because Milam was Etherton's cousin and warned him that he would be fired—has no merit The most reasonable interpretation of Milam's statement to Etherton is that it was a threat rather than friendly advice C & L's position that it did not know about Ben- brook's union activities because he did not work on the day of the union card signing is not persuasive Ben- brook was one of seven employees who signed union cards at the same time Asplundh Tree Expert, 220 NLRB 352, 355-356 (1975) He was one of three employees dis- charged only 2 days after signing union cards, and was 66 See also Jenkins Index Co, 273 NLRB 736 (1984) not given any reason for his discharge In these circum- stances, Respondent's knowledge of his as well as the other alleged discrimmatees' union activities may be in- ferred Gould, Inc , 261 NLRB 1031 (1975), enfd 542 F 2d 1176 (6th Cir 1976) I therefore find that Respond- ent knew or believed that Cigalma, Benbrook, and Eth- erton were involved in union activities 66 4 Conclusions with respect to the General Counsel's prima facie case and Respondent's burden to rebut it The General Counsel's case is based on Respondent's union animus, its knowledge of the alleged discnmma- tees' union activities, the precipitate timing of their dis- charges only 2 days after the union card signing, the dis- parate treatment given other employees who committed similar infractions, and the failure in the case of Ben- brook to inform him of the reason for his termination With respect to Etherton, the Board in similar circum- stances agreed with the administrative law judge's con- clusion that a discharge of an employee driver was dm- cnmmatonly motivated based in part on the fact that the employer "developed an urgent interest (in the driving record) after learnmg of union activity, in contrast to its previous statement to (the employee) the record was not important" Nebraska Bulk Transport, 240 NLRB 135 fn 2 (1979), enfd as modified 608 F 2d 311, 608 F 2d 311 (8th Cir 1979) The Respondent herein had knowledge of Etherton's driving record prior to its "urgent interest" on May 11 and, accordingly, had condoned that record The contrast between Respondent's treatment of Ether- ton prior to his union activities and its treatment of him thereafter, and the contrast between that treatment and the manner in which it dealt with other drivers with similar records, support a conclusion that his discharge was discriminatorily motivated 67 I conclude that the General Counsel has established a prima facie case that all three of the discharges were dis- criminatorily motivated I further conclude that Respondent has not sustained its burden of proving that it would have discharged these employees even in the absence of protected activi- ty Concerning this burden, Respondent says only "With respect to Mr Etherton, at least, there can be no ques- tion but that because he was uninsurable, he would have to have been terminated in any event "68 This constitutes a tacit admission by Respondent that the General Coun- sel's prima facie case with respect to Cigahna and Ben- brook has not been rebutted Respondent's argument with respect to Etherton is not warranted by the facts set forth above The only evi- dence that Etherton was uninsurable was Broken Arrow's June 2 letter stating this However, Respond- ent's vice president for finance and administration repeat- 66 Respondent argues that knowledge of the alleged discriminatees union activities may not be based on the "small-plant theory" The Gen- eral Counsel does not advance this theory Because of my findings above, I do not consider It necessary to pass on this matter 67 Lowe's Cos , 266 NLRB 78, 86 (1983), enfd 718 F 2d 1095 (T) (5th Or 1983) 68 R Br at 62 380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD edly denied that the insurance company had ever said this, and affirmed Etherton's umnsurability only after being shown the letter The letter itself came after Re- spondent opened the subject of part-time drivers with Broken Arrow, the day after Etherton and others signed union cards, after it solicited a letter on the subject of part-time drivers, and thereafter, voluntarily disclosed Etherton's name to the insurance agent C & L never re- quested an exception in Etherton's case, which the insur- ance company stated it was willing to consider, and which it had actually done with respect to another driver with a similar record Still another driver with a similar record was working at the time of the hearing This evidence does not establish that Respondent would have discharged Etherton on May 12, 1988, if he had not engaged in protected activity In A & T Mfg Co, 265 NLRB 1560 (1982), enfd as modified 738 F 2d 148 (6th Cir 1984), the employer first advanced a pretextual reason for the discharge After the decision to discharge but prior to its effectuation, the em- ployee violated company rules on absenteeism and the employer asserted this additional reason for the subse- quent discharge The Board concluded that the discharge was unlawful because the decision to discharge had been made prior to the employees' rule violations 265 NLRB at 1561 The court of appeals disagreed with what it characterized as a per se rule making it "impossible for [an] employer to adopt an additional reason between the time of the determination (to discharge) and the time of its effectuation" 738 F 2d at 151-152 In the instant case, unlike A & T Mfg, only one reason was advanced for the discharge, and the latter took place prior to the time that the insurance agent, after its attention was directed to Etherton, informed Respondent that he was umnsur- able Accordingly, the Board's rationale in Actr, is appli- cable herein—since the Board there held that a decision to discharge based on an extant pretextual reason made the actual discharge—after a new and assertedly valid reason-nonetheless unlawful, it follows a fortiori that an actual discharge prior to the asserted just cause is unlaw- ful 5 Respondent's argument that it did not discriminate against other union adherents Respondent argues that an inference of discriminatory motivation in the cases of Cigalma, Benbrook, and Eth- erton is negated by the fact that it hired other employ- ees, and kept a job open for Stevens while he was ill, at times when it assertedly knew them to be union support- ers 69 However, Respondent knew in mid-1987 that sub- stantial numbers of Nu-Car employees were union sup- porters, but this did not keep Respondent from hiring them Instead, C & L attempted to detach them from their union allegiance by threats that they would have to leave the Union in order to keep their jobs These tactics worked until the spring of 1987, when union sentiment revived, principally because of Respondent's perceived favoritism to Tommy Wilson In these circumstances, C & L's pnor employment of union members in 1987 does 69 R Br at 60-61 not tend to establish its neutrality in 1988, after its dis- covery of the rebirth of the union movement Respondent next argues that an inference of unlawful motivation may not be made because "even though seven employees signed union cards on May 10, 1988, only three were terminated Four of these employees, in- cluding Messrs Davis and Stevens, were retained by C & L If C & L had intended to discriminate against em- ployees for union activities, surely it would have termi- nated the two employees signing cards on May 10 who C & L had long known to be former union members "70 If, as Respondent suggests, it did know about the card signing by other employees on May 10, it is difficult to understand how it did not also know about the same action by Cigalina, Benbrook, and Etherton at the same time and place—an inference which Respondent denies In support of this argument, Respondent cites Interna- tional Computaprint Corp, 261 NLRB 1106 (1982) In that case, a panel majority of the Board agreed with the administrative law Jjdge that the General Counsel had not established that the employer's selection of certain employees for layoff was discnmmatonly motivated The Board relied on the facts that the layoff of second shift employees was based on valid business considerations in- volving productivity and was consistent with past prac- tice It also noted that the General Counsel had not proved that the employer's asserted reasons for selecting the alleged discriminates was invalid (Ibid ) In addition, the Board commented, "several employees who were laid off were not named in the complaint and several others who were retained engaged in union activity iden- tical to that of the alleged discriminates" (Ibid ) The Board did not state the weight that it attached to this aspect of the case It may be observed that the other factors upon which the Board relied in International Computaprint are not present in this case Thus, there is no evidence of legiti- mate business considerations warranting the selection of the alleged discriminates rather than other employees for discharge Secondly, unlike International Computaprmt, the General Counsel has established that C & L's assert- ed reasons for the discharges of the alleged discriminates are invalid, for the reasons given above Respondent's reasoning in this case is similar to that of an administra- tive law judge in another case, with which reasoning the Board disagreed in the following language That Respondent did not choose to compound the wrong by picking out union adherents for layoff at Tiptonville can hardly cure the unlawful nature of Respondent's initial decision causing the layoffs Taking the Administrative Law Judge's position to its logical conclusion, one might as well contend that if an employer decides to eliminate an incipient union movement 'root and stem' by discharging the entire employee complement his decision to do so is not discriminatory [Ethyl Corp, 231 NLRB 431, 433 (1977) ]7' 79 R Br at 61 7 'The Board in Ethyl Corp cited Rea Trucking Co 176 NLRB 520 (1969) In discussing the employer's reasons for its choice of certain em- Continued C & L SYSTEMS CORP 381 A corollary to the Board's reasoning in Ethyl Corp is that, if an employer may disprove evidence of discrimi- natory motivation with respect to the discipline of some employees by failure to discipline others, it could defeat every case of alleged unlawful discrimination by the simple and calculated expedient of failing to discipline some union adherents This would permit an employer to select Just enough employees for discipline to defeat a union movement, and yet avoid a finding that it had committed an unfair labor practice I conclude that, al- though an employer's failure to select some known union adherents for discipline may be a factor to consider in determining whether others were unlawfully disciplined, it is insufficient, standing alone, to negate inferences ap- propriately made on the basis of other evidence 6 Conclusions For the foregoing reasons, I conclude that Respondent discharged Cigalma, Benbrook, and Etherton on May 12, 1988, because of their protected activities, in violation of Section 8(a)(3) and (1) of the Act IV THE REPRESENTATION CASE A The Challenge to Donald Boshers' Ballot 1 Summary of the evidence (a) The factual issues As indicated, the Union challenged Boshers' ballot on the ground that he was either an office clencal 72 or a supervisor The factual issues involve the nature of Boshers' duties, the relative time that he spent perform- ing those duties, the locations where they were per- formed, and the degree of supervisory authority, if any, which Boshers had over other employees (b) Boshers' background and employment at C & L Pnor to Boshers' employment with C & L, he had been a bookkeeper in 'a bank Charles Wofford, the father of C & L's president, was a friend of the family, and approached Boshers about seeking employment with C & L" Respondent's records show that he was hired on February 18, 74 but Strickland and Boshers asserted that he started about March 1 Employee Wilbur Davis testified that C & L President Larry D Wofford said that the Company had a man coming from Arkansas, intended to "break him in as a terminal manager or ramp manager," and that the em- ployees for layoff, the trial examiner stated in language accepted by the Board "There is no ment in Respondent's argument that the burden was on the General Counsel to prove that the employees laid off were affili- ated with or active in behalf of the Union The discharge of these em- ployees immediately following the Union's victory at the polls would reasonably tend to discourage union affiliation, and if the motivation, or any part of it, was to demonstrate the futility of union representation and to discourage further participation of employees in organizational activi- ties, it makes no difference whether the individuals chosen for the layoffs were actually affiliated with the Union, or voted for It" (id, 176 NLRB at 525 fn 5) 72 Office clencals were excluded from the stipulated unit, supra, fn 2 73 Testimony of Boshers 74 R Exh 5(a) ployees should "go easy" on him Boshers' employment application shows that he applied for a position as "ramp manager" He was a high school graduate, and had 2-1/2 years of college Some of his schools and a prior employ- er were located in Arkansas 75 Boshers worked about 119 hours in the first quarter of 1988 The only other em- ployee hired in that quarter at Respondent's Memphis fa- cilities who worked more than 100 hours was James Ci- galma 76 C & L President Larry Wofford denied that he told Boshers he was going to make him a ramp manager or that he referred to him as such, while C & L Vice President Strickland denied that Boshers attended man- agement meetings Strickland said he had no intention of promoting Boshers to the position of ramp manager Boshers denied being characterized as such, and said that he was "being optimistic" when he file his application Although he did occasional paperwork, Boshers' prin- cipal duties were those of an unloader according to Boshers and Terminal Manager Cannon C & L Vice President Strickland said that Boshers was a "lead man" However, employee Walter Stevens described Boshers as "office personnel," and employee Wilbur Davis averred that he "mostly stayed in the office and answered the phone" (c) The division of Boshers' work between office and yard Strickland testified that C & L unloads 300 automo- biles on an average day, although there is considerable fluctuation in the daily workload Boshers' workweek started on Thursday and ended on Monday He testified that on weekdays, i e, Thursday, Friday, and Monday, he spent 65 percent of his time unloading automobiles Walter Stevens, whose workweek ran from Sunday through Thursday, had occasion to observe Boshers during three of those days, Sunday, Monday, and Thurs- day According to Stevens, when Boshers first started to work he spent time at the unloading area counting cars and "bay tickets," and writing damage reports Stevens estimated that Boshers spent 20 percent of his time in the yard and 80 percent in the office Although Boshers oc- casionally drove an automobile off the railcar and parked it, this occurred only about twice a day, to save Boshers a walk to the office Stevens and other unloaders unload 50 to 60 cars daily After Boshers' initial period of em- ployment, Stevens did not see him doing any work in the unloading area Wilbur Davis testified that, after Boshers arnved at the Company, he unloaded cars for about 2 to 3 weeks during what Davis called a "break-m" period Thereaf- ter, Davis saw Boshers unload about two to four cars weekly, while Davis unloaded 60 to 70 daily After the break-in period according to Davis, Boshers did not per- form "paper work" in the unloading area He spent 72 G C Exh 37 76 An employee named J Anderson, hired January 29, worked about 81 hours for the last 2 months of the first quarter, and other employees hired during that quarter worked a lesser number of hours R Exh 5(a) designates employee numbers with the prefixes MT, OK, NE, TN, and TX I Infer that these refer to Montana, Oklahoma, Nebraska, Tennessee, and Texas, respectively R Exh 5(a) 382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD about 1 hour daily in the yard checking parked cars or putting paper in rental cars, and was in the office 7 hours daily. Boshers contended that the 65 percent of his time which he spent unloading cars on weekdays went up to 90 percent on weekends. The reason, he asserted, is that "the volume is quite different during the week . . ., the volume is much lower on weekends than it is during the week. . ., and the more the volume the more the paper- work." However, Boshers agreed that both the amount of paperwork and the number of cars to be unloaded went down on weekends, and that the Company had three to six employees available for weekend work. As noted, Stevens had occasion to observe Boshers on one of the weekend days, Sunday. Boshers stated that he wore blue jeans and a T-shirt or shirt while working in the office, but wore coveralls when unloading, like the unloaders. Walter Stevens testi- fied that Boshers wore "non-working clothes—dress pants, shirt, regular shoes," as compared to the coveralls which unloaders wore. (d) Details of Boshers' paperwork Upon arrival at work, Boshers first determined how many automobiles were arriving by examining a "consist list," which indicated where various railcars were "spot- ted" on the six tracks which C & L services. The consist list records cargo other than automobiles, and Boshers had to "sort out" the automobiles from this list and enter them on a "track sheet." The latter was a legal-size piece of paper on which Boshers on the average made 200 en- tries in 30-45 minutes, according to his testimony. Boshers also prepared "bay tickets" for each incoming automobile. The bay ticket is a document about 3 by 5 inches in size, on which Boshers stamped the railcar number. A "window sticker" accompanied the "bay ticket," and Boshers stamped this document twice, once with the railcar number and again with the date. Boshers asserted that he could stamp a bay ticket in 1 second and a window sticker in another second. He agreed that C & L unloads 300 cars daily on the average, and that the volume occasionally reached 1000 cars daily. In addition, Boshers prepared a "facility report" on most days. This was a legal-size document with 50-75 spaces, on 40 of which Boshers had to make handwritten entries on an average day. Asked how long it took him to make the 40 entries, Boshers answered that it required half an hour to compile the information from employees and the track sheet. Boshers also prepared a "switch list," a document which tells the railroad which railcars it can pull in the evening from the six tracks which C & L services. Boshers on the average had to make handwritten entries on each switch list. He contended that he could make these entries in 3 to 5 minutes. Boshers also prepared damage reports "very seldom" according to his testimony. This is a document requiring five handwritten entries, and Boshers said that he could make these entries in "a minute and a half." According to Strickland, Boshers examined the damaged cars. Boshers also checked employee timecards 2 to 3 days each week. He added up the hours on each timecard in "thirty, forty-five seconds." He did this with respect to five or six timecards in about 3 minutes, according to his testimony. Boshers did this work on a desk which he shared with Terminal Manager Cannon. There is no employee at Re- spondent's two Memphis facilities designated as a secre- tary—only Strickland, Cannon, Milam, Boshers, and the unloaders. (e) Boshers' hours of work and relationship with other employees Boshers arrived at about 6:30 a.m., prior to the arrival of other employees, and left at about 4:45 p.m., after the other employees had departed about 4 p.m. The unloaders were called to work about 7 a.m. Boshers averred that he occasionally called the unloaders to work, upon instruction from Strickland or Cannon. Wilbur Davis testified that Boshers called employees 2 to 3 days each week. When Boshers called Walter Stevens to work, the latter occasionally requested permission to be excused. Boshers granted such permission in the same manner as other supervisors, according to Stevens. He accepted what Boshers said to him as authority for fail- ure to report to work. Boshers agreed that unloaders oc- casionally asked to be excused from work. However, on such occasions, he put the employee "on hold," and handed the phone to Strickland or Cannon. If neither was present, Boshers contended, he told the employee that there was nothing he could do about the request. Strickland corroborated Boshers. Wilbur Davis was asked whether he ever had any "discussions" with Boshers about time off, and replied that Boshers referred him to Cannon. Prior to the arrival of the unloaders, Boshers made sure that the bay tickets were "ready to go." He pre- pared them "consecutively" in the morning, not through- out the day. After the arrival of the unloaders about 8 a.m., Boshers met with them "in the breakroom outside the office." According to Boshers, either he "or one of the other guys" took the tickets to the railcars, where the identification number and other information for each vehicle were recorded on the ticket. It was then placed inside the automobile until the latter was unloaded and parked. At that time, the unloader recorded the bay number where it was parked on the ticket, and returned the completed ticket to Boshers. Stevens testified that he "usually" returned the ticket to Boshers in the office, "or out on the ramp, wherever he is." Strickland averred that the unloaders deliver the tickets "at the desk that Boshers uses." Boshers testified that the tickets were "turned in to the office." The actual unloading started after the arrival of the unloaders. C & L Vice President Strickland described daily operations. The Company could "only hold so many railcars on spot." On some days, certain cars had to be unloaded before others, and required a particular track. According to Strickland, this information was re- layed to Boshers, who "organized it as far as keeping the people together, doing the right thing out there that we want." These instructions included areas of the lot where cars where to be parked, exceptions to normal activity, C & L SYSTEMS CORP 383 and new areas of concern Strickland testified that Boshers never gave instructions to the unloaders that had not come from him or one of the other two supervisors The supervisors carry "pagers" according to Strickland When the unloaders arrived for work according to Wilbur Davis, Boshers told them how many loads they had and the track on which to start He "directed" the men Walter Stevens testified that Boshers sometimes re- assigned unloaders from one ramp to another Boshers denied that he ever instructed other unloaders how to work, or gave them any instructions other than those transmitted by Strickland or Cannon He further testified that, upon arrival of the unloaders at the ramp, "we—the unloaders—all get together with the bay tick- ets and decide what to unload first as strategi- cally as possible unless we have some other instruc- tions from Mr Cannon or Mr Strickland" Boshers af- firmed that the unloaders "just get around together" in the breakroom and decide which railcars to unload first Boshers denied that this was "unsupervised" labor Cannon and Strickland told the unloaders how many cars they had to unload, and the latter "knew what to do" Any differences of opinion on priorities were decid- ed by a supervisor, and a supervisor was always present according to Boshers After the decision on how to perform the work had been made, Boshers had additional paperwork before en- gaging in what he said were his unloading duties This additional work occurred "probably a little less than 40 percent of the time" Accordingly, Boshers agreed, he did not always start unloading at the same time as the other employees Boshers testified on direct examination that he had 30 minutes for lunch as do the unloaders, and that he ate it either in the breakroom or the front office more often than in other locations He was then shown his pretnal affidavit, and agreed that he therein stated that "more often than not" he ate lunch in the office, and occasion- ally picked up lunch for supervisors After reading his statement, Boshers nonetheless maintained that he ate lunch in the office "about the same" number of times as the unloaders Walter Stevens testified that Boshers had a scheduled lunch period from 11 to 12, and that he ate it in the office Although other unloaders ate in the office "every now and then," they usually ate in a res- taurant Wilbur Davis said that unloaders ate in the breakroom, but that Boshers ate in "the main office with Paul Cannon and Jim Strickland" As indicated, Boshers continued to work for some time after the unloaders left for the day He reviewed pa- perwork, and attempted to estimate the workload for the next day (f) Boshers' compensation Boshers was hourly paid, and punched a timeclock His beginning wage was $8 hourly, and he was making $10 at the time of the hearing Respondent's vice presi- dent, Strickland, testified that Boshers received the same fimge benefits "offered to all the unloaders that qualify for the 390 hours per quarter, which would be health in- " As noted, Respondents has two unloading facilities in Memphis surance, long term disability insurance, life insurance, va- cation, [and] holiday pay" Respondent's records show that Boshers achieved "full time status" on May 1 month after the beginning of the second quarter—after working about 119 hours during the first quarter and an unspeci- fied number of hours in the first month of the second quarter Eight employees worked more hours than Boshers in the first quarter without achieving full-time status 78 Boshers testified about C & L's policy on overtime The Company "watches it very closely," and the em- ployees rarely receive overtime Boshers, however, re- ceives "compensatory" time off in lieu of overtime about once a month He explained this by saying that there was a "gray area" in his working time where it was question- able whether he was "actually working" during the hours indicated on his timecard Boshers was "staying around asking questions (and) trying to learn" Asked whether other employees were given time off in lieu of overtime, Boshers said that this was so "to the best of [his] knowledge," but added that all he knew was about himself There is no reference to compensatory time off in the testimonies of the unloaders 2 Factual analysis As indicated, Boshers had previously been a bookkeep- er in a bank, and had about 2-1/2 years of college train- ing Charles Wofford, the father of Respondent's presi- dent, was a friend of Boshers' family, and solicited him to submit an employment application He applied for a job as "ramp manager" in mid-February I credit Wilbur Davis' testimony that C & L President Larry Wofford said that the Company had a man coming from Arkansas and intended to break him in as a terminal manager or ramp manager, I reject Wofford's denial that he said this Davis a more credible witness than Wofford Moreover, he was an employee of Respondent at the time of his tes- timony The Board has repeatedly held that the pecuni- ary interest involved in preservation of jobs makes it un- likely that such testimony, adverse to the employer's in- terest, is fabricated 7 9 I further conclude that Wofford meant, and could rea- sonably have been construed to mean, Boshers The only other employee with comparable hours of work hired during the first quarter at Memphis was Cigalma, and it is obvious that Wofford did not mean him The fact that some of Boshers' schools and a prior employer had been located in Arkansas supports a conclusion that he was the employee meant by Wofford as the "man from Ar- kansas" I conclude that Boshers minimized the time that it took for him to do paperwork to the extent that his testi- mony does not set forth the actual time Thus, it is 78 K Sullivan, in Montana (181 hours), D Jones, in Nebraska (342 hours), P Diaz Blanco (295 hours), C Lizana (228 hours), and S Ca- praro (279 hours), in Texas, and Gary Stevens (332 hours), W Walker (372 hours), and Michael Etherton (360 hours), in Tennessee As de- scnbed above, Etherton's 360 hours formed the basis of Respondent's ra- tionale for discharging him R Exh 5(a) 79 Bohemia Inc , 266 NLRB 761, 764 fn 13 (1983), Southern Paint & Waterproof Co, 230 NLRB 429, 431 fn 11 (1977) 384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD highly improbable that he could have placed the re- quired stamps on the bay tickets and window stickers in "one second" each. The rest of his timing estimates for other functions described above are similarly improbable, and some are absurd. There was no secretary in the office, and Boshers' description of the rapidity with which he performed this work is beyond belief. The only possible explanation for these exaggerations is that Boshers in his testimony sought to reduce the actual time he spent in the office and to inflate the time he spent in the yard. I conclude that he was a biased witness. I reject Respondent's claim that Boshers spent an even greater percentage of time unloading on weekends than he did on weekdays. Although the number of cars may have been less on weekends, so was the volume of paper- work. Although Stevens did not see Boshers work on Tuesday and Wednesdays, he did see him on 3 days, in- cluding the weekend day of Sunday, and made no dis- tinction in his estimate of time Boshers spent in the yard on weekends as compared to weekdays. As indicated, Stevens judged Boshers' work in the yard as constituting 20 percent of his time, but later qualified this estimate to aver that Boshers did not work in the yard after his initial period of employment. Davis' estimate is more realistic—Boshers spent about 1 hour daily in the yard after the break-in period, principally checking on parked cars and placing paper in rental cars. I conclude that this is a reasonably accurate description of the division of Boshers' work at the time of the elec- tion. Although Boshers engaged in voluminous paperwork, the only documents normally affecting unloaders were the bay tickets. Boshers gave these to the unloaders in the morning, and received them back with additional in- formation imprinted on them, after the vehicles had been unloaded and parked. The testimonies of Strickland and Boshers establish that this return of the tickets was pri- marily made in the office. Although Stevens said that he returned the tickets to Boshers "on the ramp, wherever he is," Stevens "usually" returned it in the office, and the evidence establishes that Boshers was usually in the office. There is no evidence that other aspects of Boshers' paperwork routinely brought him in contact with the unloaders. Although he may have come in con- tact with other employees when preparing damage re- ports, this took place "very seldom." I credit the testimonies of Stevens and Davis that Boshers ate lunch in the office with the supervisors be- tween 11 a.m. and 12 noon, while the unloaders usually ate elsewhere. The unloaders had 30 minutes for lunch. I credit Stevens' testimony that Boshers wore non-working clothes—dress pants, a shirt, and regular shoes—while I reject Boshers' testimony about wearing coveralls while doing "unloading." He did little unloading after his break-in period, except for an occasional ride back to the office. As described above, both Strickland and Boshers con- tended that the latter exercised no independent judgment in calling employees to work or in the unloading of cars. With respect to calling in, although Stevens stated that Boshers gave him permission not to report to work, Davis' testimony tends to support Respondent's position that Boshers had no such independent authority. With respect to the unloading, although Davis testified that Boshers "directed" the men and Stevens said that he "re- assigned" them, the testimonies of Strickland and Boshers, that the latter was only relaying instructions from supervisors, are unrebutted. Although I do not con- sider either Strickland or Boshers to be a reliable wit- ness, there is no evidence upon which to base a finding that Boshers exercised independent judgment in his deal- ings with the unloaders. With respect to compensation, Boshers was hourly paid at the same rate as the unloaders, and punched a timeclock. However, a determination as to whether his total compensation was equivalent to that of the other unloaders depends upon an analysis of his "full-time status" and attendant benefits granted on May I. As indi- cated, Respondent's stated requirement for these benefits was 390 hours worked during a quarter. Although Respondent's records show that he worked about 119 hours during the first quarter (January through March)8° they do not record his hours worked in April. Extrapolation of first quarter hours to April presents some problems, because of the conflict between Strick- land's and Boshers' testimonies that he started work on about March 1, and Respondent's records showing a hiring date of February 18. 81 If the February 18 date is utilized, Boshers would have had 31 working days in the first quarter," and an average day of less than 4 hours of work. This is inconsistent with other evidence in the case. If Strickland's and Boshers' estimate of about March 1 as the starting date is used, Boshers would have worked 21 days that month"—resulting in an average work day of a little less than 6 hours. Although this also is not completely consistent with other evidence, it is more consistent; I find that Boshers started about the first of March. In April, utilizing Boshers' workweek of Thursday through Monday, he had 22 days of work, 84 1 day more than his days worked in March. Extrapolating the March hours to April, Boshers worked about 125 hours in the latter month. There is no evidence that Boshers' break-in period of a few weeks in March involved lesser hours of work, and I accept this extrapolation as approximately accurate. In order for Boshers to have worked 390 hours by May 1, he would have to have worked 271 hours" during 22 working days in April—an average of over 14 hours per day. This is contrary to all the evidence in this case. Respondent's records show that Boshers did not work 390 hours in the first quarter, and it would have been impossible for him to have done so by the first month of the second quarter. Accordingly, I find that Respondent granted Boshers full-time status after about 80 R. Exh. 5(a). 81 Ibid. 82 Six 5-day workweeks from February 18 through March 28, utilizing Boshers' workweek of Thursday through Monday, plus March 31, a total of 31 days. 83 Four 5-day workweeks plus March 31, a total of 21 days. 84 Three 5-day workweeks (15 days) plus 4 days from April 1 through April 4 and 3 days from April 28 through April 30—a total of 22 days. 85 This is 390 hours less the 119 worked in the first quarter. C & L SYSTEMS CORP 385 244 hours of work Obviously he had not achieved 390 hours of work, much less 390 during a quarter His total hours were about two-thirds of the stated cntenon Six of the eight employees listed above86 worked more hours in the first quarter alone than Boshers worked in that quarter plus the first month of the second quarter, without achieving full-time status I conclude that Re- spondent compensated Boshers with pension benefits, health, disability, and life insurance, and with vacation and holiday pay, without his having met the require- ments therefore imposed upon other employees I also find that Respondent granted Boshers compensatory leave in lieu of overtime, a benefit not granted to other employees 3 Legal analysis and conclusion As indicated, the stipulated unit was "all yardmen em- ployed by the Employer at its Memphis, Tennessee, fa- cilities, excluding all office clerical employees, watch- men, guards, and supervisors as defined in the Act "87 It is well established that in stipulated unit cases, the Board's function is first to ascertain the parties' expressed intent with regard to the disputed employees and then to determine whether this intent is contrary to any statutory provisions or established Board policy 88 The Board has further explicated its procedures as follows The Board examines the Intent on an objective basis, and denies recognition to any subjective intent at odds with the stipulation When the objec- tive intent is clear, the Board will hold the parties to their agreement If, however, the objective intent is ambiguous, the Board resorts to the community of interest doctrine to aid its resolution of the chal- lenged voter's unit inclusion In order to determine whether a stipulation's intent is ambiguous or clear, the Board will compare the express descriptive lan- guage of the stipulation with the bona fide titles or job descriptions of the affected employees If the employee's title fits the descriptive language, the Board will find a clear expression of intent and in- clude the employee in the unit If the employee's title does not fit the descriptive language, it will also find a clear expression of intent and exclude the employee from the unit Finally, if the affected employees lack job titles or descriptions, the Board will find an ambiguous expression of intent and di- rectly apply the community of interest doctrine to the facts of the case [Viacom Cablevision, 268 NLRB 633, 634 (1984) ] In this case, the only employees fitting the job descrip- tions in the stipulation are Supervisors Strickland, Cannon, and Milani The rank-and-file employees were referred to as "unloaders," not "yardmen," while Boshers had no precise title Accordingly, I conclude that the stipulation is ambiguous, and will apply the com- munity-of-interest test 86 Supra, fn 78 87 Supra, fn 2 88 White Cloud Products 214 NLRB 516 (1974), Tribune Co. 190 NLRB 398 (1971) Respondent argues that Boshers was a plant clerical rather than an office clerical, citing numerous cases 89 Although the facts in those cases vary, in general they involve situations where the clerical was in close associa- tion with the production process Although Boshers in this case called employees to work and transmitted in- structions to them from the supervisors, his only clerical function bringing him into routine contact with the "pro- duction process" was the distribution and collection of bay tickets The preparation of the tickets took place in the office in the morning, and they were distributed to the unloaders in the breakroom adjacent to the office Thereafter, the completed tickets were returned to Boshers, principally in the office The Board in similar circumstances has had occasion to pass on the unit placement of "will-call clericals" Al- though they dealt with warehouse employees, "such con- tacts take place primarily in the office of the former, and they spend no more than a minimal amount of time in the warehouse when they return items of merchandise thereto" Accordingly, the Board excluded them from the unit Wickes Furniture, 255 NLRB 545 fn 2 (1981) In a case where the Board excluded two employees from a production and maintenance unit because they were office clencals, the Court of Appeals for the Ninth Cir- cuit disagreed with the employer's "definitional" ap- proach to the issue of plant clencals In agreement with the Board, the court stated as follows (NLRB v Big Three Industries, 602 F 2d 898, 903-904 (9th Cir 1979), enfg 227 NLRB 1677 (1977)) Probably the most significant element of common interests among employees is similarity in their skills, duties and working conditions The Board's findings of fact suggest that the differences between Bostic's and Frost's skills, duties and work- ing conditions are greater than their similarities Bostic and Frost had similar benefits, insurance, pension and vacation arrangements as the other unit employees The Board, however, found that they differed from the other workers in other important respects Bostic and Frost worked at desks located in the office area of the [employer's] offices Bostic had the title of secretary/receptionists and her desk was located in th main reception area of the offices Frost had the title of secretary and was located in the enclosed main area of the offices The ware- house, although a part of the same building, was lo- cated in the rear of the plant Unlike the production workers whose day began at 6 30 and who worked for ten-hour shifts, Bostic and Frost typically main- tained an 800 to 5 00 p m routine Bostic's duties were also marginally related to the actual production operation Bostic worked in the office all day long She answered phones and func- tioned as a receptionist She picked up and opened the mail each day, prepared expense checks for Dapkiewicz's signature, and typed letters for Dap- kiewicz and Conner She photocopied forms by 89 R Br at 71-76 386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD handing them out to Kenner or one of the individ- ual drivers. Frost's duties were more closely related to pro- duction. Half of Frost's working day was occupied by "cylinder control," i.e., checking all the shipping paperwork regarding the cylinder movement from the warehouse to the customers and their return. The other half of Frost's time, however, was spent doing general clerical work of filing and typing. For instance, Frost checked all the hourly time- cards after they had been approved, made credit reference checks for Conner, answered the tele- phone when Bostic was unable, typed up rate quo- tations for Conner's approval and dispensed supplies for the drivers. Thus, despite some similarity in Frost's duties, her duties were also highly distin- guishable from those directly related to production, especially in light of the fact that Frost utilized tra- ditional office skills and was segregated from the production employees. . . . . A second factor, integration of functions and per- sonnel, . . . also points in the direction of the Board's conclusion. The Board found, and the record supports, that Bostic and Frost spent almost all their total working time in the office away from the warehouse area. Their contact with the ware- housemen and drivers was minimal. . . . There was not the "frequent, personal contact" that character- izes true plant clericals. . . . In summary, the Board's findings of fact support the conclusion that Bostic and Frost lacked a suffi- cient community of interest with the other unit em- ployees to warrant their conclusion [sic] as plant clericals. The Board did not err in characterizing Bostic and Frost as office clericals. The Board's reasoning in Wickes Furniture, and the Ninth Circuit's rationale in Big Three Industries, support a conclusion that Boshers was an office clerical. As in Wickes, his contact with the unloaders primarily took place in the office or the adjacent breakroom. As in Big Three Industries, Bashers primarily worked at a desk in the office area, had different hours from those of the un- loaders, and spent the preponderance of his time doing paperwork unrelated to the unloaders' function of un- loading automobiles. In performing that work, Boshers, a former bookkeeper, utilized skills different from those re- quired to unload automobiles. Bashers wore dress clothes and regularly ate lunch with the supervisors during a scheduled lunch period, unlike the unloaders. He was said by management to be training for a position as a ter- minal or ramp manager. Although Boshers had regular contacts with the unloaders, a significant part of those contacts involved nonclerical work—the transmission of orders from the supervisors. These duties, characterized by Respondent as those of a "lead man," are not the duties of a plant clerical. Finally, Bashers was granted fringe benefits without fulfilling the requirements there- for imposed on other employees, and compensatory leave not granted other employees. I conclude that Boshers did not have a community of interest with the unloaders, and find that he was an office clerical. I also conclude that he had "a special status which afford[ed] him work privileges and advan- tages not shared by other employees." Groehn Spotting Fixtures Co., 224 NLRB 842, 843 (1976).9° Accordingly, I shall recommend that Boshers be excluded from the unit, and that the challenge to his ballot be sustained.91 B. The Challenges to the Ballots of Cigalina, Benbrook, and Etherton I have determined that Cigalina, Benbrook, and Ether- ton were unlawfully discharged on May 12. Inasmuch as they would have been employed and working on the es- tablished eligibility date but for Respondent's discrimina- tion against them, I shall recommend that the challenges to their ballots be overruled. Ra-Rich Mfg. Corp., 120 NLRB 1444 (1958). In accordance with the my findings above, I make the following CONCLUSIONS OF LAW 1. The Respondent, C & L Systems Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Salesmen and Warehousemen's Local Union No. 984, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging James Cigalina, Michael D. Ben- brook, and Michael Etherton on May 12, 1988, because they engaged in protected, concerted activities for the purpose of mutual aid and protection, Respondent there- by committed unfair labor practices violative of Section 8(a)(3) and (1) of the Act. 4. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having found that the Respondent has engaged in certain unfair labor practices, it is recommended that it be ordered to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent unlawfully dis- charged James Cigalina, Michael D. Benbrook, and Mi- chael Etherton on May 12, 1988, it is recommended that Respondent be ordered to offer each of them immediate and full reinstatement to his former position, dismissing if necessary any employee hired to fill said position, and to make each of them whole for any loss of earnings he may have suffered by reason of Respondent's unlawful conduct, by paying each of them a sum of money equal 9° See also Bay Area Sealers, 251 NLRB 89, 132 (1980); and Canon's Market, 243 NLRB 837, 843 (1979). el Because of my conclusions above, it is unnecessary to determine whether Bashers should be excluded as a supervisor or a managerial trainee. C & L SYSTEMS CORP 387 to the amount he would have earned from the date of his unlawful discharge to the date of an offer of reinstate- ment, less net earnings during such period, to be comput- ed on a quarterly basis in the manner established by the Board in F W Woolworth Go, 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987) 9 2 As indicated, Respondent has argued that Etherton is "uninsurable" If true, that would be a factor to consider with respect to a remedy including reinstatement In Ne- braska Bulk Transport, 240 NLRB 135, 144, 158 (1979), enfd as modified 608 F 2d 311, (8th Cir 1979), an insur- ance agent wrote a memo to the employer, solicited by the latter, stating that the insurability of the employee was "questionable," and that the insurance company would require "supporting reasons" for retaining him The Board ordered reinstatement The Court of Appeals for the Eighth Circuit stated that the Board, in its peti- tion for enforcement, had "recognize[d] the paradox of ordering reinstatement of a driver who, under the evi- dence, cannot be insured" and had argued that the em- ployer's objections to rehiring him could be deferred to the compliance stage of the proceeding (id, 608 F 2d 316) In rejecting the remedy of reinstatement, the court stated as follows (at 316) [T]he fact remains that any driver possessing a driving record like [the employee's] could not drive for the Employer because its liability insurer would not extend coverage to that driver The record stands undisputed that (the employee) himself could not qualify for coverage under the Employer's li- ability insurance policy Under these circumstances, reinstatement does not constitute an appropriate remedy and is not required In NLRB v Big Three Industrial Gas & Equipment Go, 405 F 2d 1140 (5th Cir 1969), enfg as modified 165 NLRB 30 (1967) and 167 NLRB 1069 (1967), the driver in question had four traffic violations in Texas within a 12-month period, five within 18 months, a sixth in Lou- isiana, and was a "habitual traffic violator" under Texas law He misrepresented his driving record in his employ- ment application so as to bring that record within the employer's established policy of limiting dnvers to three violations within 3 years "Under the circumstances," the court stated, "we are not willing to force the Company to reinstate a truckdnver with such a bad record of traf- fic violations" 405 F 2d at 1143 In this case, it is by no means certain that Etherton was uninsurable C & L Vice President Johns repeatedly denied this on the witness stand, and only asserted it after having been shown Broken Arrow's after-the-fact letter dated June 2 There is no evidence that Respond- ent ever submitted "comments" on Etherton or request- ed an exception in his case The insurance company had made an exception in a similar case, and still another 92 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) driver, questioned by the insurance company, was still employed at the time of the hearing Etherton did not falsify his employment application, as did the driver in Big Three, and did not have a record with as many viola- tions—it was, in fact, the same record he had while em- ployed by Nu-Car and by C & L, known by both em- ployers There is no way to determine Etherton's insurability absent his reinstatement and consideration of his case by the insurance company in the same manner, utilized the same criteria, as it does with respect to other employees Accordingly, I shall recommend that he be included in the reinstatement order It is also recommended that Respondent be required to expunge from its personnel records all references to its unlawful discharges of the forgoing discriminates, includ- ing in the cases of James agalma and Michael D Ben- brook all references to alleged tardiness and violation of company rules, and to notify each of them that such ex- punction has been made and that evidence of same will not be used as a basis for future personnel action against any of them It is further recommended that Respondent be re- quired to post appropriate notices On the foregoing findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended 9 3 ■ ORDER The Respondent, C & L Systems Corporation, as offi- cers, agents, successors, and assigned, shall 1 Cease and desist from (a) Discouraging employees from engaging in protect- ed, concerted activities for the purpose of mutual aid and protection by discharging them for engaging in such ac- tivities, or by discriminating against them in any other manner with respect to their hire, tenure of employment, or terms and conditions of employment (b) In any other like or related manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act 2 Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act (a) Offer James Cigalma, Michael D Benbrook, and Michael Etherton full reinstatement to their former posi- tions or, if any such position no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or any other rights or privileges of any of them, and make each of them whole for any loss of earnings he may have suffered by reason of Respondent's unlawful discharge of, in the manner described in the remedy sec- tion of this decision entitled (b) Expunge from its personnel records and other files all references to its discrimination against James Cigalma, Michael D Benbrook, and Michael Etherton, including in the cases Cigalma and Benbrook, all references to tar- " 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 388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dmess or violation of company rules, and notify each of them in writing that this action has been taken and that evidence of their unlawful discharges or references in Respondent's personnel files will not be used as a basis for future personnel action against them (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its two Memphis, Tennessee places of busi- ness, copies of the attached notice marked "Appendix A "94 Copies of the notice, on forms provided by the Regional Director for Region 26, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and 24 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" maintained for 60 consecutive days in conspicuous places including all places where notices to are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 95 IT IS FURTHER ORDERED that Case 26-RC-7049 be re- manded to the Regional Director for Region 26 with a direction to sustain the challenge to the ballot of Donald Boshers, and to open and count the ballots of James Ci- galma, Michael D Benbrook, and Michael Etherton, and thereafter to prepare and cause to be served on the par- ties a revised tally of ballots, including therein the count of said ballots, upon the basis of which he shall then issue the appropriate certification 95 The General Counsel's unopposed motion to correct the official transcnpt, attached hereto as "Appendix B," is hereby granted, except that the misspelled name "Bulshears" is changed to "Bashers" instead of "Boshears," per Respondent's records R Exh 5(a), 0 C Exh 37