Carpet Transport, Inc.

CARPET TRANSPORT 791 Carpet Transport, Inc. and Robert L. Collier, Jr. and General Truckdrivers, Warehousemen and Helpers Local Union No. 5, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Cases 15-CA-10759, 15-CA-10807, and 15- CA-10875 September 15, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On January 11, 1990, Administrative Law Judge J Pargen Robertson issued the attached decision The Respondent filed exceptions and a supportmg brief, and the General Counsel and the Charging Parties filed answering bnefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findmgs,2 and conclusions 3 and to adopt the recommended Order 1 The Respondent has requested oral argument This request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties We deny the General Counsel's motion to strike certain of the Re- spondent's exceptions Contrary to the General Counsel, we conclude that the Respondent's exceptions substantially comply with the require- ments of Sec 102 46(b) of the Board's Rules and Regulations 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 Cif 1951) We have carefully examined the record and find no basis for reversing the findings The judge credited the testimony of customers Placek and Nance to the extent their testimony showed what was reported to the Respondent concerning their complaints about employee Collier The judge also cred- ited Collier's testimony concerning the three incidents—including the customers' complaints—which resulted in disciplinary action against him because it was unrebutted in the absence of testimony by Manager Black In crediting Collier's testimony concerning what actions, if any, were taken by the Respondent in disciplining and discharging him, the judge failed to specifically discuss the testimony being credited Crucial aspects of Collier's testimony show that although the Respondent had a practice of interviewing the involved driver before determining a course of action with respect to a customer complaint (which the Respondent followed for complaints about Collier from customers Messengale and Graham), Black did not ask Collier's version of the three incidents before taking disciplinary action against him 3 We do not rely on the judge's remark that "there is a serious question as to whether Colher's comments to Placek would have justified chsciph- nary action under any standard applied by [the] Respondent" We rely instead on the judge's findings that the disciplinary action taken against Collier based on the Placek incident was not consistent with the Re- spondent's practice of not taking disciplinary action against employees because of customer complaints, including more senous complaints, or its practice of questioning the Involved driver about a customer complaint ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Carpet Transport, Inc, Hammond, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge 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 threaten to close our Hammond termmal if employee Robert Collier is ordered rein- stated because of unfair labor practice proceedings WE WILL NOT threaten to close our Hammond terminal because our employees support the Union WE WILL NOT circulate a petition among our employees mdicatmg that our employees do not want to continue to include Robert Collier on the union negotiating committee WE WILL NOT attempt to influence our employ- ees to petition to decertify the Union WE WILL NOT promise our employees that we will grant them a wage increase if they succeed in decertifying the Union WE WILL NOT warn, suspend, or discharge our employees because they engage in protected con- certed activities WE WILL NOT refuse to bargain with the Gener- al Truckdnvers, Warehousemen and Helpers Local Union No 5, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, by refusing to meet and nego- tiate with the Union because of their insistence on meeting with an employee previously discharged by us, as one of their authorized representatives 299 NLRB No 121 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer immediate and full reinstatement to Robert Collier to his former job or, if that job no longer exists, to a substantially equivalent posi- tion without prejudice to his seniority or other rights and privileges WE WILL make Robert Collier whole for any loss of earnings he suffered by reason of our dis- crimination against him with interest WE WILL rescind our discharge, warnings, and suspensions issued to Robert Collier on October 5 and November 2, 1988, remove from our files any reference to our warnings, suspensions, and dis- charge of Collier, and notify Collier in writing that this has been done and that evidence of our unlaw- ful actions will not be used against him in any way WE WILL continue to recognize and, on request, bargain collectively with the Union in the appro- priate bargaining unit The appropriate unit is All truck drivers and warehouse/forklift oper- ators employed by us at our facility located at 1614 West Church Street, Hammond, Louisi- ana, excluding all office clerical employees, salesmen, guards and supervisors as defmed the Act WE WILL, on request, meet and bargain with the Union regardless of whether the Union includes Robert Collier as one of their authorized bargain- mg representatives CARPET TRANSPORT, INC Paul H Demck, Esq and Charlotte N White, Esq , for the General Counsel Murphy J Foster III, Esq , of Baton Rouge, Louisiana, for the Respondent Randall G Wells, Esq , of Baton Rouge, Louisiana, for the Charging Party DECISION STATEMENT OF THE CASE PARGEN J ROBERTSON, Administrative Law Judge This matter was heard in Baton Rouge, Louisiana, on August 28 and 29, 1989 The ongmal charge, Case 15- CA-l0759, was filed on December 14, 1988 Several complaints issued with the final, second order consolidat- ing cases, amended complaint and notice of hearing issu- ing on June 8, 1989 The complaint, as amended, alleges that Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (Act) Respondent admitted the commerce allegations of the complaint Respondent in its answer to amendment to complaint, admitted that during the 12-month period ending February 28, 1989, it derived gross revenues in excess of $50,000 for the transportation of carpet from the State of Louisiana directly to points outside the State of Louisiana Respondent admitted that at material times it was a Florida corporation, with a facility located in Hammond, Louisiana, where it engaged in the interstate transportation of carpet Respondent admitted that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Respondent, in its answer, admitted that the Union is, and has been at material times, a labor organization within the meaning of Section 2(5) of the Act All parties were given the opportunity to file briefs The deadline for briefs was extended to October 17, 1989 Briefs were filed by General Counsel, Charging Party, and Respondent On the entire record, including my observation of the demeanor of the witnesses, and after considering briefs filed by the parties, I make the following determinations Respondent, in its answer, affirmatively alleged that it is entitled to attorney's fees under the Equal Access to Justice Act That allegation is premature and is hereby denied The 8(a)(1) Allegations The General Counsel alleged that Respondent engaged in several violations of Section 8(8)(1) of the Act 1 At paragraph 7(a) it is alleged On or after January 15, 1989, a more precise date being presently unknown to the General Counsel, threatened its employees with plant closure if Col- lier obtained reinstatement with Respondent 2 At paragraph 7(e) it is alleged On or about April 19, 1989, threatened its em- ployees with plant closure if they supported the Union Lemuel Johnson, a former truckdnver for Respondent, testified in a June 12, 1989 affidavit that after the Union's election Respondent's then terminal manager, Bill Black, said to him in the Hammond terminal office that they would shut the facility down and move out of state before signing a contract Nehemiah Palmer, a truckdnver for Respondent, testi- fied in a May 31, 1989 affidavit Black had stated to me personally a number of times between April, 1988, and April, 1989 that "the Company will never let a Union come in here If it does we'll move out of state" He did not state where or why Palmer also testified on May 31 about a conversation after the discharge of Bobby Collier After the firing Black told me at the terminal [date unknown], if Bobbie got his job back, I've orders to "put a match to this place" I made no comment He and I were alone at the time CARPET TRANSPORT 793 In a June 12, 1989 affidavit, Palmer testified On a number of occasions I have been told by Black that the company would move, rather than let the Union in This has happened on 4-5 different occasions The remarks would come up during dif- ferent conversations, sometimes at the office, some- times over coffee at the Pit Grill I believe that he has said this to me during the past 5-6 months, al- though I cannot recall when or any of the circum- stances It is not unusual for him to say this and so I don't make a special point of noting when he says it In his May 3, 1989 affidavit, Glenn Castle testified re- garding a conversation with the terminal manager on April 19, 1989 Black said "I want to keep the Union out" Also, "if the Union comes in here, we're going to have to pack up and go out-of- state, to Mobile, Ala or Bay St Lows, Ms 3 At paragraph 7(b) it is alleged In or about the first week of March, 1989, a more precise date being presently unknown to General Counsel, circulated among its employees a petition indicating that they no longer wanted Collier as a Union negotiating agent Glenn Castle, a warehouse personnel man for Re- spondent, testified in a May 3, 1989 affidavit I signed a letter at work that Bill Black brought around last month which was to keep Bobby Collier [a former employee at Carpet Transport] from sit- ting in on contract negotiations Bill Black [terminal manager] asked me to sign the letter—so Bobby Collier would not have any- thing to do with negotiations He said, "here—sign this" The letter, which was signed by Castle and five other employees reads, To Whom It May Concern We, the undersigned employees of Carpet Trans- port, Inc , do not wish to have Bobby Collier repre- sent us m collective bargammg negotiations with the Company 4 At paragraphs 7(c) and 7(d), General Counsel al- leged that Respondent illegally influenced its employees to decertify the Union Nehemiah Palmer testified, on May 31 that in April 1989 he and two other employees, Lemuel Johnson and Reese Howell, told Bill Black that they wanted the Umon out Black replied that they needed "to get a nota- rized paper that you want to decertify the Union After that you'll have to take it to New Orleans" Palmer re- called that Black gave him the NLRB address in New Orleans Palmer subsequently "at the office picked up a notarized letter [addressed to no one in particular] that said essentially we wanted the Union decertified" Lemuel Johnson testified about the above incident Johnson recalled that after they told Black they were thinking of getting a decertification petition, Black re- sponded, [T]he Umon has sold you down the river You will have to get a decertification petition to take to New Orleans All the Union will get you is 5 [cents] the first year 10 [cents] the second year and 15 [cents] the third year The conversation continued with the employees telling Black that they did not know what to put down Black told them, "Meet me at the terminal tomorrow We will have the petition drawn up" Palmer did file a decertification petition with the Board, Case 15-RD-638, on April 5, 1989 The petition was dismissed as being premature In his May 3, 1989 affidavit, Glenn Castle testified Approx 2 weeks ago (Apr 19, 1989) Bill Black (terminal manager) talked to me in person and said "will you go down to the National Labor Relations Board and sign a decertification petition" (to either keep or get the Union out)—I'm not sure exactly To my knowledge, the Union was supposed to have gone in last month With Black and myself was Cliff Hill, another employee, who also works in the warehouse with me Black spoke to both of us in the warehouse office Black asked Hill the same question he asked me Black said "I want to keep the Union out" Also, "if the Union comes in here, we're gomg to have to pack up and go out-of-state, to Mobile, Ala or Bay St Louis, Ms" He told us to wait until May 3, 1989, to come to the New Orleans NLRB office He gave us no reason on why delaying coming to the NLRB office until May 3, 1989 I and Cliff both told Black, "yes, we'll go down" I asked him "when do you want us to go down?" Black said, "wait until May 3, 1989" Yesterday, late May 2, 1989, about midmght, Black said to me at our warehouse, "you talk to Cliff?" "You'all figure what time you're going to New Orleans tomorrow?" I said, "it depends what time I get finished and get out of here I called Chff Hill last night, 2 May 1989, and said, "Soon as I get finished I'll give you call and meet up yonder at the termmal in Hammond" We met there at 1 P M today, 3 May 1989, and Cliff drove down in a company car Clifton Hill's testimony, contained in a May 3, 1989 af- fidavit, supports the above testimony of Castle 5 At paragraph 7(f) General Counsel alleged that Re- spondent promised its employees a wage increase if they were successful in decertifying the Union Nehemiah Palmer testified in his May 31 affidavit 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A few days later (still in May, 1989), Black came up to myself and Reese Howell at the terminal, about 5 or 6 P M Black said to me, "why do you all want a Union?" (Between the time I went to the NLRB in April, 1989, and the time in May, 1989, when Castle and Hill went to the NLRB I had attended a Union meeting at Albany, La, in Jack's Cafe at night time Approximately 6 of us employees were there, with Doug Partin of the Union also present) (After the Union meeting, Black had asked me the next day, "I heard you had a Union meeting ?" I told him, "Yes ") Then, it was a day or so after that Black came up to Howell and myself and asked, "why do you all want a Union?" I said, "I've been here nearly three years and have not gotten a raise yet" Black said, "I have not had a raise in two years" I said, "well maybe the Union will help get you a raise" Black then said, "well when this mess is over, I'll get everybody $600 an hour" I said noth- ing Reese said, "that will only get me $ 25 an hour raise" Black said, "all I have to do is call and he'll will give you another quarter, $625 per hour" That ended the conversation In a June 15, 1989 affidavit Glenn Castle testified about Bill Black Around April 19, 1989, I was working in the warehouse when Bill approached me Only he and I were present He said that he wanted me and Cliff to go to the National Labor Relations [B]oard to file a decertification petition I asked him what Cliff had to say about it and he said that Cliff had agreed to do it if I would This conversation was very brief and that's all I can recall that was said I went and talked to Cliff and he said that Bill had approached him about it We agreed that we would do what Bill asked Later that night, about 1-2 a m, Cliff and I were loading trucks and Bill came up to us Bill said he wanted us to tell the drivers that we had overheard him talking to Charles Prater about how everyone would get a $ 50/hr raise if the Union got voted out Cliff said he wouldn't tell the drivers anything I asked him if Prater had really told him that and Bill said "yes" I asked him what would happen if the Union didn't get voted out and he said "You two will still get your raise because you're going to help us by filing the petition" On the night of May 2, 1989 me and Cliff had a hard night loading trailers Around 6-7 a m came into the warehouse where we were working and told us that he wanted us to go to New Orleans that day to file the petition I told Bill that I was too tired and didn't want to go Bill got real anxious and said that it had to be done that day He said that we could take the company vehicle and that I could sleep while Cliff drove I went home and took a shower and met Cliff at the terminal We took the company vehicle and drove to New Orle- ans to file the petition We got back to Hammond and I went into work around 9-10 p m Bill was in the office and I went in to talk to him Only the two of us were present He asked how it went with the petition and I told him that we had to get a paper signed with 3 signa- tures and send it back in I also told him that we had given affidavits to the NLRB about all the cir- cumstances around us filing the petition Bill got upset and said that we shouldn't have given any statements to the Board That's all I can recall that was said The record includes a copy of a decertification peti- tion, Case 15-RD-639, signed by Clifton Hill on May 3, 1989 Discussion The above-mentioned affidavit testimony was received pursuant to stipulation of the parties The former terminal manager, Bill Black, has, since the incidents discussed above, been reassigned by Re- spondent to duties other than his former terminal manag- er duties He is no longer at the Hammond, Louisiana fa- cility However, he is remains employed by Respondent even though in another job Black did not testify The above testimony is not re- butted I fully credit the above testimony Findings The uncontested evidence shows that Respondent, through its admitted supervisor, Bill Black, engaged in activity violative of Section 8(a)(1) of the Act by threat- ening to close the Hammond, Louisiana terminal and move out of state, by encouraging employees to voice opposition to using alleged 8(a)(3) discnmmatee Bobby Collier on the Union's negotiating committee, by engag- ing in efforts to have the employees decertify the Union and by promising its employees a pay raise when they got rid of the Union The 8(a)(3) Allegations The General Counsel alleged that Respondent first sus- pended twice then discharged Bobby Collier in violation of Section 8(a)(3) As to the actions alleged as violative of Section 8(a)(3) it is necessary to consider, among other things, whether Respondent mtended to discriminate against its employ- ees because of their union activities 1 It is important to note that not all actions against em- ployees that favor a union, constitute violations of law The law prohibits actions resulting from treating employ- Sec 8 of the Act at § 158, provides in part (a) [Unfair labor practices by employer) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 (section 157 of this title), (3) by discrimination in regard to lure or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization CARPET TRANSPORT 795 ees more harshly that others because of support of or op- position to a union If General Counsel established a prima facie case by showing that union activity played a part in the Respondent's decision to discharge or warn an employee, I must then look to see if that employee would have been discharged or warned regardless of his/her union support (Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), NLRB v Transportation Manage- ment Corp, 462 U S 393 (1983), Delta Gas, 283 NLRB 391 (1987), enfd 840 F 2d 309 (5th Cff 1988), Southwire Co v NLRB, 820 F 2d 453 (D C Cu. 1987) ) The question of whether General Counsel has estab- lished a prima facie case was considered by the Sixth Circuit Court of Appeals in NLRB v Townsend & Bottum, 722 F 2d 297, 301 (6th Cir 1983) Under the Board's Wright Line test, the General Counsel is required to show that antiunion anurius was a substantial or motivating factor in the em- ployer's decision to discharge the alleged discrumn- atee This proof, standing alone, clearly meets the statutory requirement Absent a showing by the em- ployer of affirmative reasons for its actions, not- withstanding an employee's exercise of his lawful § 7 rights under the NLRA, the AU would automati- cally find an unfair labor practice based on the pre- ponder ance of all the evidence submitted In determining whether General Counsel proved a prima facie case, I must consider several factors includ- ing such things as Respondent's knowledge, or lack of knowledge, of Collier's union activities Respondent does not dispute that it knew of Bobby Collier's union activities When the Union prevailed in an NLRB conducted election on April 22, 1988, Bobby Collier served as the Union's election observer Before Respondent learned of Collier's union senti- ments on April 22, Collier had been the employee who originally contacted the Union and Collier had signed and solicited other employees to sign union authorization cards After the election, Collier served on the Union's nego- tiating committee in meetings with Respondent As shown below, after Collier's discharge, Respondent, for a time, refused to continue negotiations while Collier served on the negotiating committee While he served on the negotiating committee, Collier was the only employ- ee who served on the Umon's committee In addition to his appearances as a member of the union committee in meetings with Respondent, Collier participated as a union committee member in meetings with employees re- garding contract negotiations Another criteria in determining whether General Counsel has proved a prima facie case, is one of anunus e, did Respondent take actions which demonstrate that it was opposed to the Umon in general or to Collier's umon activities in particular) As shown above, I find that Respondent engaged in several actions m violation of Section 8(a)(1) of the Act Those actions demonstrate that Respondent opposed the Umon Additionally, the record contains other evidence of animus Lemuel Johnson testified that Terminal Manager Black spoke to him at the terminal 2 weeks to 1 month before the election During that conversation Black told John- son, "I'll get rid of the one who started the Union" The record also contains evidence of specific animus directed against the umon activities of Bobby Collier Glenn Castle testified in a June 15, 1989 affidavit about his employment interview with Terminal Manager Black at the Pit Grill [Black] asked how I felt about the Teamsters Union I told him I had been involved with the Teamsters once before, and had gotten up a petition to get rid of them at Delta Concrete Products in Denham Springs Bill told me that the employees were trying to get a union going at Carpet Transport and asked me if I knew Bobby Collier I said "No" and he said that Bobby was the one who was heading up the Umon Bill said, "it doesn't really matter, Bobby's not going to be there much longer I'm going to get rid of him" He explained to me that if he got rid of Bobby, everyone else would get scared and nobody would want anything to do with the Union Clifton Hill testified in his May 3, 1989 affidavit about the terminal manager talking about Bobby Collier, I can't recall the dates because it happened so often, but Bill Black was always making comments about how he was going to run Bobby off because of his union involvement He would say things like "Bobby thinks he's slick with all this union stuff, but I've got an ace in the hole" He said that the company would never agree to a contract with the Union, but would Just keep dragging things out for as long as it took to run the Union off Another cntena frequently considered in alleged dis- crimination cases, is the issue of timing In that regard it is important to keep in mind events relevant to union ac- tivity A calender of those events shows, March 10, 1988—The Union filed a petition (Case 15-RC-7370) April 22, 1988—Election held at Hammond facili- ty (note—Bobby Collier served as union observer il- lustrating to Respondent for the first time that Col- lier was involved m union activities) May 2, 1988—The Union was certified as bar- gaining representative of Respondent's employees at Hammond June, 1988—First negotiating session (Collier was the only employee member of union negotiating committee) August, 1988—Second negotiating session (Col- lier was the only employee member of union negoti- ating committee) 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD September 21 through end of 1988—Four negoti- ating sessions (Collier served as only employee member of Union committee) October 5, 1988—Collier received the first writ- ten warning he received since he was employed in October, 1966 He was suspended from work for 3 days . November 2, 1988—Collier received his second written warning Agam he was suspended for 3 days November 25, 1988—Collier received a third written warning and was discharged I find, on the basis of the entire record, that General Counsel proved a prima facie case as to the alleged dis- criminatory suspensions and discharge of Bobby Collier Under the holding of NLRB v Townsend & Bottum, supra at 301, "Absent a showing by the employer of af- firmative reasons for its actions, notwithstanding an em- ployee's exercise of his lawful § 7 rights under the NLRA," I would automatically find an unfair labor prac- tice In other words, under the rule of Wright Line, supra, since the General Counsel has proven a prima facie case, Respondent has the burden of going forward and proving that Collier would have been suspended twice, and discharged, in the absence of union activities October 5, 1988 The contested activity started on October 5, 1988, when Respondent issued a written warning to Collier On 10-5-88 your carelessness resulted in the fol- lowmg discrepancy or violation of company rules and regulations Improper checking of freight Eross [sic] delivered rolls carpet between Mobile, Ala and Leaf, Ms causing additional expense to re- deliver carpet to rightful owners This is your 1st offence of this nature and subject to the following disciplinary action 3 days off Signed /s/ Billy E Black Title T M As to this particular allegation, the record does not supply information as to why Respondent decided to issue a written warning Former Terminal Manager Black, who signed the written warning, did not testify Even though the record shows that Collier misdeliv- ered a roll of carpet, the record also shows that other employees occasionally nusdelivered carpet but were never issued written warnings with one exception The one exception involved Respondent's warehouse supervisor, Glenn Castle, who was called by General Counsel as a rebuttal witness Castle testified that he drove a truck for a while a couple of months before the hearing in this matter and, I misloaded a roll going to Patterson (phonetic) in Mobile, Alabama Q Do you remember when that was9 A Well, it was back about a couple of days after Bobby (Collier) got suspended over it He loaded the wrong roll at the customer's place of business and took it somewhere else Q So how did you get involved with that rolP A Well, it came back to us that night, and we sent—made out a hand bill on it to go back to Pat- terson on a road truck for the next day or the day after And when I was back in loading out, I didn't—I don't [sic] if the bills got stuck together, or what happened But the roll didn't get on the truck and—when it was supposed to Q Was anything ever said to you about that'? A Mr Bill [Black] gave me a warnmg letter on it Q How did—what were the circumstances sur- rounding him giving you the letter9 A Well, I went up yonder the next day and was talking with him about what was coming in, and we sat out there in the warehouse on a roll of carpet And he sat down there beside me and told me was going to have to give me a warning letter because he gave Bobby three days off because of it And I asked him, you know, what was the cir- cumstances with it And he said—well, he said, it was more or less just to cover hisself [sic] with a warning letter because, he said, the warning letter wouldn't go no farther than to the Hammond termi- nal—said nobody else in Calhoun—anywhere else would know about it Q Okay So he told you that he was writing you a warning letter, but it was just going to stay be- tween you And it wasn't going any farther than that A Yes, sir Q Okay Did you get suspended? A No sir I asked him about giving me three days off, and he wouldn't do it Q You asked him if you could take the three days off? A Yes He kind of laughed and said, you son of a bitch, you don't need—you can't take three days off Q Were you ever disciplined m any way as a result of that incident with misloading the carpet? A No, sir Respondent called its vice president of terminal oper- ations, Don Conord On cross-examination Concord was asked about Respondent's practice regarding disciplinary action for misdelivery of a shipment Conord testified that on the first occasion of such a mistake Respondent "would probably have a good conversation about it" Respondent would "probably not" suspend an employee for that offense, and as to whether a written warning would result, Conord testified that it would depend on the employee's record November 2, 1988 On November 2, 1988, Collier was issued a second written warning CARPET TRANSPORT 797 On 10/31/88, your carelessness resulted in the following discrepancy or violation of company rules and regulations Other Insubordination You down graded the company to your customer and told them you would not send money to re- place a check because you did not trust them [Bill] This is your first offence of this nature and sub- ject to the following disciplinary action (3) three days suspension November 3, 4 & 7, 1988 Signed /s/ Billy E Black Title Ter Mgr Again, Respondent did not show its reasoning in giving Collier a warning on this occasion since Billy Black did not testify As to the incident which purportedly led to the warn- ing, both Bobby Collier, and one of Respondent's cus- tomer's, Michael Placek, testified Although Respondent normally required payment by certified check, Michael Placek (Carpets & Drapes) was permitted to pay with his personal check when he re- ceived a shipment after the banks had closed for the week Collier was dispatched by Respondent the follow- ing week to pick up the cash in lieu of Placek's check However, Collier was not given Placek's personal check to return to Placek in exchange for the cash Placek's father, who works with Placek, objected to Placek giving up the cash without having his check returned at the same time Placek testified that Collier told him, [H]e thought that in my opinion that I shouldn't give them the money because he didn't trust, you know, Bill or, you know, just send me the check back They didn't bring the check is what had hap- pened too Placek testified that the above incident occurred on October 31, 1988, and that he was phoned by Bill Black and asked to document the incident to Respondent Placek testified that he thinks that during that phone conversation Black told him that Collier was trying to form a umon In response to Black's request, Placek wrote a note to Respondent That note also contained a comment by Faye Placek To Whom It May Concern I was told by Bobby (C T I Driver) that if I was him I should not give the cash to him without re- ceiving a receipt because he told me he did not trust them people (Bill) /s/Michael Placek Carpets & Drapes Bobby has complain about Co problems in front of me more than once /s/Faye Placek November 25, 1988 On November 25, 1988, Collier received another writ- ten warning and was discharged Other Complaint From Customers This is your 3rd offence of this nature and sub- ject to the following disciplinary action Termina- tion as off [sic] 11-25-88 Signed /s/Charles Prater Title VP Charles Prater, co-owner of Respondent, testified that he made the decision to discharge Collier In that regard Prater testified, Mr Black called me and told me they had had an- other senous complaint—that this lady over there had 'called and said that Mr Collier had been real, you know, smart, and, you know, that is the way I was made aware of it According to Prater he phoned the lady (Billie Nance) and told her that they were taking care of her complaint He then phoned his attorney and received his attorney's agreement that the discharge of Collier was in order Prater then phoned Bill Black and told Black to termi- nate Collier Billie Nance, the owner of Edgewood Interiors & Col- lectors Corners in McComb, Mississippi, testified that she complained to Respondent about an incident with their driver, Bobby Collier [Collier] delivered a piece of carpet around lunch time that day sometime between 11 30 and 1 00 or 12 00 and 1 00 I am not sure exactly of the time, but It was around lunch—came into the door with this freight deal I signed the freight deal and got him his check, and he told me he could not unload this without as- sistance So I got the keys to meet him out back, which is where we deliver the carpet and asked Virginia if she would call the service company— call Service One that helps us move things They do anything So while Virginia was calling, I went out back to meet Mr Collier In just a few minutes, Virginia came outside and told me that it would be ten or 15 minutes before Service One could be there because they had washed somebody's car, and they had to deliver it When I told Mr Collier that it would be ten or 15 minutes before Service One could be there, he told me he was not going to wait—that he had other carpet dehvenes to make, and he did not have time to sit around waitmg for somebody to show up and deliver I said, well, I guess you and I will have to put this in the warehouse He told me—I will quote, "Lady, we ain't in the warehouse business" It sort of stunned me because I had taken many carpet de- liveries before and never had a problem like this 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD So I confronted him about his rudeness He said he didn't think he was being rude—that he just had other things to do—didn't have time to sit around and wait I said, Bobby, if you had called me from your last delivery and said I am going to be over there in a few minutes, I could have had somebody here But I didn't know when you were coming I couldn't have somebody waiting all day in case you might show up So he told me again that he wasn't in the warehouse busmess, and he wasn't waiting for it to be unloaded So I said, well, you do with the carpet whatever you want to do with the carpet Get it out of here, and then get off my lot And when you get back to CTI, tell them not to send you back here again So I turned around and went back inside And the next time I checked on the carpet, which was when the boys came to supposedly help him unload it, the carpet was laying on the ground outside On cross-exammation Nance testified that Collier was at her premises on that occasion for "maybe 20 minutes" Nance testified that she phoned Respondent and told Bill Black what had occurred Black asked her to docu- ment the incident in a letter Nance wrote Respondent on November 23, 1988, and detailed her encounter with Collier On the following day Bill Black phoned Nance and asked if she could prepare and hold her letter and permit him to come by and pick it up Discussion The evidence is not in dispute as to the fact that the matters mentioned above under the headings October 5, November 2, and 25, actually occurred While there are disputes as to what was said in discus- sions between Collier and customers on those occasions, Collier does not dispute that Respondent received re- ports as to the occurrences I credit the evidence through the testimony of Michael Placek and Billie Nance, and the documents which they submitted to Re- spondent (which are in evidence), to the extent that evi- dence shows what was reported to Respondent As to October 5 and November 2, the incidents in- volving the disciplinary actions are not in dispute The testimony of Bobby Collier is not disputed since Bill Black did not testify In that regard, I credit Collier's tes- timony regarding those two incidents Moreover, as to the November 25 discharge incident, Collier's testimony is again undisputed Although Charles Prater testified that he made the decision to discharge Collier, it is undisputed that the act of discharge was car- ned out by Bill Black Again Black did not testify The testimony of Bobby Collier is not disputed as to the dis- charge incident I credit Collier's testimony in that regard Additionally, there was evidence, including witnesses called by General Counsel in rebuttal and some affidavits submitted through stipulation of the parties, addressing the issue of disparity of treatment That evidence was not disputed by other testimony I credit that evidence Findings I found above that General Counsel proved a prima facie case In regard to the issue of Respondent proving that it would have suspended and discharged Collier absent his protected union activity, I find that Respond- ent did not carry its burden of proof As found above, the credited evidence shows that Col- lier may have engaged in activities on those occasions which were reprehensible However, the question which I must consider is not one of whether Respondent's action was based on fact but whether Respondent would have taken that particu- lar action absent Collier's umon activities In order to determine that issue it is necessary to ex- amine how Respondent handled similar incidents when union activities were not involved Nehemiah Palmer testified on May 31, 1989 I know Bobby Collier was treated differently than the other employees after the April, 1988, elec- tion For example, when rolls of carpet are left off e delivered) to the wrong location, then after the Company is notified, the carpet must be picked up This misdehvery is something that has happened to me 3 or 4 different times and I was not disciplined for it at all Same for other employees, except for Collier Black told all of us employees at the warehouse why he was suspending Collier Since, then, no one else was ever suspended for nusdehvermg carpet On June 12, 1989, Nehemiah Palmer testified Bobby Collier, a former driver for Carpet Trans- port, was fired around Thanksgiving, 1988 Several months later, I believe it was the evening of the day that Bobby had his unemployment appeals hearing, I was in the office doing paperwork It was around 5-6 pm and I believe that Black and I were the only two people present We weren't even having a conversation, and out of the clear, blue sky Black looked at me and said, "If Bobby gets his job back, I've got orders to put a match to this place" That's all that was said I just finished what I was doing and left Several times in the past I have delivered a roll of carpet to the wrong customer The most recent time that I can recall was when I left the wrong roll at Rug & Carpet in New Orleans I am not sure of the date, but I think it was around mid-Febru- ary—March, 1989, because I don't remember having a jacket on I realized at my next stop that I had nusdelivered the roll, so I called Dean Black (Bill's wife, who works as his assistant) and told her of the error Dean said "Don't worry about it Just pick it up tomorrow" Nothing more was ever said about the incident, and I have never been disci- plined for that or similar errors CARPET TRANSPORT 799 Last month, around the second week of May, I was in the office doing paperwork one evening Black came in and just the two of us were present Black said, "I had a bad complaint on Reese today He wouldn't help put carpet in a warehouse I don't know what to do about it" I said, "You have told us not to do any warehouse work for anyone" That's all I can recall that was said Reese Howell, a dnver for Respondent, testified on June 12, 1989 It has always been the policy of the Company, as far as I know, that drivers are not supposed to do any of the customers' warehouse work That is, if the customer will not help unload the truck and put away their own carpet, we are supposed to Just bring it back to the terminal I have not, to my knowledge, had any complaints against me for this kind of thing until about 3 weeks ago, I can't recall the exact date I had a delivery to make at Carpet Unlimited m La Rose, La The roll of carpet weighed over 200 lbs and I told the customer that I needed help getting it off the truck A girl who worked there helped me unload it and I told her that I could not put it in the warehouse for her She had signed my ticket and I was getting ready to leave when the phone rang She spoke briefly and told me that her boss was on the way down A short time later the boss came in and said to me, "What the shies wrong with you?" I said, "Ma'am?" "The boss (my boss) says we're not to put things in the warehouse" She grumbled some more and I gave her the Company's phone number She called the office and asked to speak with some- one m authority She complained to Bill Black about my not helping her and, after a minute, he asked to speak with me He asked me if there was anyone there to help me with the carpet I told him there was a girl and a woman there He asked if I could help them and I said yes I went back to the warehouse to help them and they had already gotten the carpet put away The woman told me they would not be shipping anything by Carpet Transport again I never heard anything more from Black about the incident and was not disciplined be- cause of the complaint Larry Macaluso testified on December 28, 1988 I was employed as a driver for Carpet Transport for about 4 years, until early 1987 During that time, there were numerous instances where custom- ers would call in and complain to Billy Black, the Terminal Manager, about the things I had or hadn't done for them Usually, this complaining was about us not doing their warehouse work Bill and the others were always preaching to us not to do ware- house work for the customers Whenever com- plaints about us came in, Bill would say something to us, or maybe assign us to another route To my knowledge, dunng the time that I worked there, no one was ever written up or fired because of corn- plaints or because they made a mistake in delivering a load Lemuel Johnson, a driver for Respondent, testified on June 12, 1989 Bobby Collier is the only employee I ever heard being disciplined for customer complaints I didn't take enough carpet rolls off at a Lake Charles store P & L Carpets about 6 months before I was hurt As of today I have been hurt 3 months I didn't take enough rolls off About 30 miles away at my next stop I realized this I called into Bill's wife Bill was standing there She told me not to take the carpet back to bring it in the Terminal and the Company would redeliver it I don't know if the customer complained I didn't get a verbal or writ- ten warning Therefore, the undisputed evidence shows that Re- spondent customarily did not take disciplinary action against employees because they misdelivered carpet or because of customer complaints Testimony of Glenn Castle and Clifton Hill shows that Respondent's terminal manager openly treated Collier in a disparate manner The undisputed testimony of Glenn Castle, which is mentioned above, shows he was also involved in the mishandling of the same carpet which caused the suspension of Collier Although Castle was given a warning he was not suspended and Bill Black explained to Castle that /us warning was bemg awarded because Black had suspended Collier and Castle's warning was necessary to cover Black's action against Collier Respondent's action against Castle illustrates both dis- parity of treatment (i e, Castle was not suspended) and the fact that Respondent was actually trying to cover up the true cause of Collier's suspension Clifton Hill, a forklift operator for Respondent, testi- fied on May 3, 1989 As far as Bobby's [Collier] situation is concerned, I know that Bobby had complaints against him from customers before the election However, Black has told me on several occasions (I don't know the spe- cific instances) that he just told Bobby to try to do better and that no disciplinary action was taken After the election things changed Black said to me that he was out to get Bobby because of Bobby's union activity and he was going to use customer's complaints to do it After that, every time Bobby got a complaint against him he got in trouble for it Finally, in November, 1988 Bobby got fired The testimony of Respondent's co-owner, Char/es Prater, lends support to the above testimony of Clifton Hill Prater testified that he received the most serious complaint he ever received on an employee when, on January 13, 1988, he received a complaint about Bobby Collier from a customer 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The undisputed testimony of Bobby Collier proved that he was not given a written repnmand, suspended, or otherwise informed that he was being disciplined because of that incident which occurred before Respondent learned of Collier's union activities Respondent's actions in disciplining Collier illustrate a predetermined position According to Collier's unrebut- ted testimony, in both his suspension because he alleged- ly misdelivered carpet and his discharge, Collier was not given an opportunity to tell his side of the story before the disciplinary action was awarded In order to determine the issues involved in Respond- ent's contention that it would have suspended and dis- charged Collier regardless of his union activities, I must look both to the merits of Respondent's actions and to whether Respondent normally took similar actions when the Union was not involved Collier was discharged when he refused to satisfy a customer on his assertion that employees were routinely told by Respondent to refuse to engage in "warehouse" work Collier's position in that regard is supported by cred- ited evidence, evidence which is not disputed in the record The record includes testimony by Macsluso, Col- lier, Castle, Howell, and Palmer, illustrating that Re- spondent routinely advised its employees that they should not engage in warehouse work for customers Additionally, as noted above, the record established that it was Respondent's practice to neither suspend nor discharge employees for customer complaints or because they misdehvered carpet Moreover, m testimony which was unrebutted, it was revealed that Bill Black acknowledged that Respondent was motivated in discharging Collier by Collier's union activities In his June 15, 1989 affidavit, Glenn Castle recalled a conversation he had with Black on the day of Collier's discharge The day that Bobby was fired, at the end of No- vember, 1988, Bill Black called me at home and woke me up I's not sure what time it was Bill said, i "Well, I got rid of your buddy" I said "What do you mean?" He said, "I fired Bobby He had a lot of trouble with a woman up m McComb He kicked a roll of carpet out in the mud and gave the woman a real hard time" I told him that didn't sound like something Bobby would do He said "That's what the woman called me and said" He said, "We final- ly got rid of the troublemaker and now all our union troubles will be over" I said that maybe somebody else would step in and keep it going Bill said "No Those sons of bitches are too scared They aren't going to do anything to get themselves fired" I told Bill that I was going to go back to bed and that we could talk about It when I got to work That's all I can recall of the conversation,which only lasted a couple minutes That evening I went to work and there came a point where me, Bill and Cliff Hill were sitting in the office talking That was about 8-9 p m I asked Bill what had happened in McComb with Bobby He repeated what he had told me earlier on the phone I told him it was my understanding that drivers were not supposed to unload carpet into warehouses—that they were transport drivers, not delivery drivers Bill said "That's true But now we've got a good reason to get rid of Bobby That's his third strike" "Now we've got the Union out Their leader's gone They're not going to fight it anymore" I said "What happens if the Union still pushes?" Bill said, "Like I've told you before, we'll just shut down and move away" I credit the above-mentioned testimony That testimo- ny was not rebutted Despite the above evidence Respondent argues that but for his union activities, Bobby Collier would have been discharged before November 1988 Respondent points to evidence showing that Collier was actually the subject of four customer complaints in 1988 Two com- plaints, one complaint from Carpet Cottage in Pasca- goula, Mississippi (Massengale) in January 1988, and an- other, from Amos Graham, on May 2, 1988, occurred before Collier received any disciplinary action Respondent contends that the two above-mentioned complaints plus the two customer complaints which re- sulted in disciplinary action, establish that it tolerated misconduct from Collier beyond that which was ever tolerated from any other employee I agree that jurisprudence has established that an em- ployee should not be favored because he engages m pro- tected activity nor should an employer be forced to tol- erate action from a proumon employee which exceeds the bounds of misconduct permitted from other employ- ees However, in the instant situation, the record does not support Respondent's argument The record evidence failed to show that Respondent had a policy or a practice of automatic disciplinary action after a certain number of customer complaints As to customer complaints, the record shwa that in actual practice, Respondent routinely questioned the m- volved driver after receiving a customer complaint That is precisely the course of action which Respondent fol- lowed m the Massengale complaint against Collier in January 1988 The evidence as to what action Respondent pursued regarding the Massengale incident is contained exclusive- ly in the testimony of Robert Collier [Bill Black] told me that the lady (Massengale) had called Mr Prater m Calhoun, and Mr Prater had told him about it Q And what did you say in response to what Mr Black said? A I related the incident to him as best I could the way I remembered it, and he told me not to worry about it and blew it off Nothing else was ever said about it Again, as to the Amos Graham incident, the testimony of Robert Collier constitutes the entire evidence as to CARPET TRANSPORT 801 what action was taken, if any, by Respondent against Collier Collier testified under cross-examination I don't know if I would exactly call it a warning Me and Mr Black talked about it, and I related the incident to him And he never said anything more about it one way or the other Unfortunately, from Respondent's standpoint, the record, including the above, does not establish that Re- spondent was more lenient with Collier than it was with other employees In fact, the Massengale and the Graham incidents raise additional questions regarding disparity of treatment In both of those incidents, Respondent followed what ap- peared to be a routine procedure of interviewing the in- volved driver before determining a course of action In both the above incidents, Massengale and Graham, Re- spondent elected not to take disciplinary action against Collier It is true that one may argue, as Respondent does argue, that Respondent's failure to discipline Collier on those occasions demonstrates a tolerance attitude toward Collier However, the record does not conclusively sup- port that argument In fact, it could be argued that Black decided, after interviewing Collier, that first the Massengale incident and then the Graham incident, did not involve miscon- duct by Collier, or, that although misconduct may have been involved, it did not rise to a level which justified disciplinary action In truth, the record does not justify a determination as to the validity of either of the above positions What the record does show, is that Respondent de- parted from its established practice when it disciplined Collier without first giving him an opporturuty to explain the incidents in question It also shows that Collier was disciplined because of incidents similar in type to inci- dents which had routinely been ignored, or at the most, which led to discussions between the employee and the terminal manager without disciplinary action being taken My analysis does not deal exhaustively with the ques- tion of whether Collier engaged in the actions alleged by Respondent to have occurred in October and November, 1988 Even if the question was one of whether Respond- ent would have been justified in disciplining Collier under any circumstances, the record is less than clear Although the record does show that two customers (i e, Nance and Placek) complained to Respondent, it is not clear that Collier did anything which would have justi- fied action In the Nance situation, while it is clear that Nance complained to Respondent, it is not clear that the position taken by Collier in his discussions with Nance justified action by Respondent The record shows that Respondent regularly told its drivers that they were to avoid "warehouse" work I credit the testimony of Nance as to what she report- ed to Respondent However, I also credit evidence showing that Respondent did not investigate that matter before discharging Collier Collier was not asked for his side of the story even though the record shows that under similar situations Respondent routinely asked the employees for their version of the event in question Col- lier's testimony shows that although he and Nance had a disagreement, Collier was taking a position that was founded in established company policy e, the drivers were to avoid "warehouse" work) As to the Placek incident, there is a serious question as to whether Collier's comments to Placek would have justified disciplinary action under any standard applied by Respondent Despite the above questions which, at best, show con- fusion, the record is clear on the issues that I am obligat- ed to consider under established jurisprudence, i e, whether or not it was Respondent's practice to suspend or discharge employees because of customer complaints or because the employee failed to correctly deliver carpet to a customer As shown above, the record evidence shows that Re- spondent suspended and discharged Bobby Collier be- cause of his union activities The record failed to prove that Collier would have been suspended or discharged in the absence of his union activities Respondent argues that despite what Bill Black may have done the decision to discharge Collier was actually made by Co-owner Charles Prater Prater allegedly made the discharge decision independently of any rec- ommendations by Black Moreover, Respondent argues that it relieved Black of his terminal manager duties be- cause of his antiunion attitude Respondent's argument is not persuasive Prater's contention that he made the decision to dis- charge Collier without regard to recommendations to that effect from Black was not supported by the record Although Prater contended that he investigated the com- plaints against Collier, his cross-examination illustrated that he did nothing more than phone the respective cus- tomers and assure each of them that their complaints were being dealt with by Respondent Prater's testimony failed to illustrated that there was any objective evidence available to him which was not presented to him by Bill Black The record failed to show that Prater had any basis to make an independent decision regarding Collier's discharge Additionally, despite Respondent's argument as to the reason why Black was relieved as terminal manager, Prater's testimony does not show that antiunion activity played any part in that decision As to the discharge of Collier, the record, including portions cited above, shows a clear case of disparate treatment Some of that evidence showing disparity in- cludes testimony that employees were not disciplined be- cause of customer complaints or misdelivery of carpet, after Collier's discharge Respondent did not explain why, if Collier was suspended and discharged without regard to union activity, was Collier treated differently from other employees were treated after Bill Black was removed as terminal manager Respondent, in its brief, attached a copy of findings and conclusions from the United States District Court, Eastern District of Louisiana, in a petition for injunctive 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD relief pursuant to Section 10(j), regarding the discharge of Collier The District Court Judge Livaudais denied the NLRB Regional Director injunctive relief I receive in evidence the findings and conclusions of Judge Livaudais Although I have considered Judge Livaudais' findings and conclusions, I am unable to base my findings exclu- sively on his conclusion that injunctive relief was not warranted As shown by Judge Livaudais, the issues (as well as the evidence) before him differed from the mat- ters before me in the instant complaint Judge Livaudais pointed out that there were two issues presented for his determination As to the first of those issues Judge Livaudais determined that the Region- al Director had "reasonable cause" to believe that Re- spondent violated Section 8(a)(1) through the activities of Billy Black Judge Livaudais found, "the only issue remaining for decision by this Court is whether or not the relief sought by the Board is 'just and proper' or an 'equitable necessity Judge Livaudgus went on to find [T]here is no showing that the employer regularly terminated employees who engaged in the conduct of the discharged employee or intended to embark upon this kind of behavior in the future As shown above, the questions which I am obliged to consider pursuant to judicial precedent, regarding the discharge of Collier, involve the question of whether General Counsel proved that Collier's union activity was a reason for the disciplinary actions taken against him and whether the Respondent proved that Collier would have been disciplined in the absence of his union activity See American Commercial Lines, 291 NLRB 166, 1080- 1100 (1988) The 8(a)(5) Allegations The General Counsel alleged Since on or about February 10, 1989, Respondent has failed and refused to meet and bargain with the Union as the exclusive collective bargaining repre- sentative of its employees in the Unit unless and until Collier ceased to act as the Umon's designated agent for such purposes Respondent admitted that the Union has been certified as the exclusive collective-bargaining agent for Respond- ent's employees in the following appropriate collective- bargaining unit All truck drivers and warehouse/forklift operators employed by the Employer at its facility located at 1614 West Church Street, Hammond, Louisiana, ex- cludmg all office clerical employees, salesmen, guards and supervisors as defined in the Act As shown above, Bobby Collier was included as one of the Union's representatives at collective-bargaining sessions with Respondent beginning with the first session in June 1988, and extending through several more negoti- ation sessions during the remainder of 1988 However, on February 10, 1989, Respondent refused to engage in a negotiation session unless Collier was not included as a union representative On February 14, 1989, Respondent, through its attor- ney, wrote the Union This will confirm our "discussions" at our Febru- ary 10, 1989 negotiating session Negotiations were scheduled between the Teamsters and Carpet Trans- port for 200 o'clock p m on February 10, 1989 When you arrived at 1 30 o'clock p m we agreed to discuss the 8(a)(3) charge and subsequent Complaint concerning Bobby Collier Essentially, you asked whether or not we would be willing to take Collier back and I advised you that the company's position was "No, not under any circumstances", and pro- vided you with information as to why we believe our position is sound Subsequently you requested that Mr Collier, who was out in the lobby of my office, be able to come in and participate in the ne- gotiations I advised you that I would not allow Mr Collier to participate in the negotiations given the fact that he was no longer employed with the com- pany You responded by stating that you would not negotiate unless Mr Collier was allowed to partici- pate I advised you that the company was ready and willing to negotiate with you, any appointed repre- sentative of Teamsters Local 5, and/or any current employee of Carpet Transport, Inc However, under no conditions would we allow Mr Collier, an employee who was discharged for cause, sit in on these negotiations You indicated that you were not willing to negotiate and would have to file a charge with the Board I suggested that you do what you felt that you needed to do Joe, I hope that you will reconsider your position on this matter Our position is that Mr Collier is not an employee of the company and until and unless an administrative law judge tells us we have to take him back I suggest that such would be very unlikely given the circumstances of his case Again, Joe, I hope there is no ammousity [sic] be- tween you and I We've had a good working rela- tionship in the past and I hope this doesn't work to injure that relationship Nevertheless, the company's position is firm on this point Mr Collier will not be allowed to par- ticipate in negotiations until or unless a final order of reinstatement is issued On June 16, 1989, in a letter to the Regional attorney for Region 15 of the National Labor Relations Board, Respondent, again through its attorney, wrote, inter aim [A]s you are of course aware, Carpet Transport, Inc took the position that Mr Collier would not be allowed to attend negotiations after he was termi- nated from the Company This resulted in a charge being filed by the Union and a subsequent Com- plaint being issued by the Board The charge and CARPET TRANSPORT 803 complaint allege that, by its refusal to allow Mr Collier to participate in the negotiations, the Com- pany was violating Section 8(a)(5) of the National Labor Relations Act Smce that ineetmg with the Union wherein Mr Collier was demed access to ne- gotiations, there have been several frtutful negotiat- ing sessions, all of which have led to the pomt where we not [sicj stand, i e, having agreed on all issues m the collective bargaining agreement except for wages Given the present status of negotiations, the Com- pany hereby makes an unconditional offer to allow Mr Collier to return to the bargaining table on behalf of the Union as the Union's authorized agent Discussion Respondent, in its brief, argues that it was justified in refusing to continue negotiations in the presence of Col- lier because there existed a "personal ammousity and a hostile attitude between Collier and Billy Black, the Company's bargaining representative" which represented a "clear and present danger" to the collective-bargaining process From a factual standpoint, I find that the record does not support Respondent's argument While it is obvious that a personal animosity and a hostile attitude may indeed exist between Collier and Black, there has been no showing that anything of that nature surfaced dunng contract negotiations Moreover, the above-quoted letters from Respondent's attorney did not mclude a contention that Collier's relationship with Black played any part in Respondent's decision to refuse to continue negotiations with Collier present Findings Absent extraordinary circumstances not shown here, parties to collective bargaining have the nght to chose their own representatives The evidence shows that Re- spondent unlawfully interfered with the Union's right to select its own representatives in this mstance and, by re- fusing to negotiate unless the Union agreed to avoid the use of one of its authorized agents, Respondent engaged in action violative of section 8(a)(1) and (5) of the Act Colfor, Inc , 282 NLRB 1173 (1987) CONCLUSIONS OF LAW 1 Carpet Transport, Inc is an employer engaged m commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 General Truckdnvers, Warehousemen and Helpers Local Union No 5, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act 3 The Umon has been at all tunes material the exclu- sive representative for the purposes of collective bargain- ing of the following employees All truck dnvers and warehouse/forklift operators employed by the Employer at its facility located at 1614 West Church Street, Hammond, Louisiana, ex- cludmg all office clerical employees, salesmen, guards and supervisors as defined in the Act 4 By threatening to close its facility if Robert Collier was ordered reinstated or if its employees supported the Union, by circulating a petition indicating that its em- ployees did not want Collier to continue to serve as one of the Union's authorized representatives, by illegally in- fluencing its employees to petition to decertify the Union and by promising its employees wage increases if they successfully decertified the Union, Respondent has vio- lated Section 8(a)(1) of the Act 5 By suspending, discharging, and refusing to reinstate Robert Collier, because of his union activities, Respond- ent has violated Section 8(a)(1) and (3) of the Act 6 By refusing to meet and bargain with the Union as exclusive representative of the employees in the above described appropriate bargammg unit, unless Robert Col- lier was excused as one of their authorized bargaining representatives, Respondent violated Section 8(a)(1) and (5) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act Having found that Respondent has illegally suspended and discharged its employee in violation of sections of the Act, I shall order Respondent to offer Robert Collier immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges I further order Respondent to make Robert Collier whole for any loss of earnings he suffered as a result of the discrimination against him and that Respondent remove from its records any reference to the unlawful suspensions and discharge awarded Col- lier and to notify Robert Collier in wntmg that Respond- ent's unlawful conduct will not be used as a basis for fur- ther personnel action Backpay shall be computed as de- scribed in F W Woolworth Go, 90 NLRB 289 (1950), with mterest as prescribed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed ORDER The Respondent, Carpet Transport, Inc , its officers, agents, successors, and assigns, shall 1 Cease and desist from 2 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 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Threatening its employees with plant closure if its employee is reinstated pursuant to unfair labor practice proceedings, threatemng its employees with plant closure if they support the Union, circulating petitions among its employees that the employees do not desire to continue being represented in collective-bargaining negotiations by an employee, coercing its employees to petition to de- certify the Union, and promising its employees wage in- creases if they succeed in decertifying the Union (b) Warning, suspending, or discharging its employees because of their protected activities (c) Refusing to bargain with General Truckdnvers, Warehousemen and Helpers Local Union No 5, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, AFL-CIO, unless the Union agrees to refuse to be represented by an employee discharged by Respondent (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Robert Collier immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make Collier whole for any loss of earnings plus interest, he suffered by reason of its illegal actions (b) Rescind its discharge, warnings, and suspensions issued to Robert Collier on October 5 and November 2, 1988, remove from its files any reference to its warnings, suspensions, and discharge of Collier, and notify Collier in writing that this has been done and that evidence of its unlawful actions will not be used against him in any way (c) Recognize and, on request, bargain collectively with the Union as the exclusive representative of the em- ployees in the above described unit and, if an agreement is reached, embody such agreement in a written signed contract (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records and social security payment records, and timecards, personnel records, reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (e) Post at its facility in Hammond, Louisiana, copies of the attached notice 3 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other maten- al (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"