T.N.T Red Star Express, Inc.

894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD T.N.T. Red Star Express, Inc. and Arthur N. Snow. Cases 1-CA-25604 and 1-CA-25678 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On February 16, 1990, Administrative Law Judge George F McInerny issued the attached de- cision The Respondent and the Charging Party filed exceptions and supporting briefs The Re- spondent filed a brief in reply to the Charging Party's exceptions The Charging Party and the General Counsel filed briefs in reply to the Re- spondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulmgs, 1 findings, and conclusions as modified and to adopt the recom- mended Order as set forth in full below The Respondent operates a truck line and em- ploys the Charging Party, Arthur N Snow, as a driver/dock man at its Seekonk, Massachusetts ter- minal On April 7, 1988, 2 Snow was approached by his supervisor, Harvey Croteau, and informed that Fred Campbell wanted to see him in the Respond- ent's office Snow was aware that Campbell was a secunty agent for the Company, and that several thefts of electronic equipment, including video cas- sette recorders, had recently occurred at the See- konk facility Snow queried whether the interview concerned "the VCR's" and, according to Snow's testimony, Croteau replied that it did Snow re- sponded that he would like union representation and would defer going to the office until the union steward came in The steward was not due to arrive at the terminal for approximately another hour Croteau testified that he replied to Snow, "[F]me, I'll go tell [Campbell}" Croteau then left the dock area and relayed this exchange to Camp- bell 3 Thereafter, on the arrival of the union stew- In sec III, par 24, the judge inadvertently stated that Charging Party Arthur Snow received a warning letter on June 29, 1989 Snow received the warmng letter on June 29, 1988 2 All subsequent dates are in 1988 3 The judge found that Croteau's version of this incident was "substan- tially the same" as that of Snow Our review of the record indicates, however, that their testimony differed in one respect Croteau testified that in response to Snow's query whether the interview concerned the VCRs, Croteau responded, "[A]sk Mr Campbell" As set forth above, Snow testified that Croteau replied that the interview was about the VCRs The judge did not make a specific credibility finding as to Cro- teau's response Even under the former scenario, however, we agree with the judge's finding that Snow had a reasonable expectation that discipline could result from the interview ard, Snow went to the office to be interviewed by Campbell On April 14, the Respondent issued Snow a warning letter concerning the April 7 incident The letter noted Snow's refusal to speak with Campbell as requested by Croteau and provided, inter aim, that Snow was "being given warning that you do not have the right to refuse an instruction from a member of management of this company" and that "a further refusal to do something as instructed by a supervisor could result in more serious discipli- nary action" On June 7, Snow received a letter from the Re- spondent suspending him for 1 day The letter relied on several incidents as the basis for the sus- pension, including Snow's refusal to speak with Campbell, which was characterized as a disruptive act of insubordination The judge found that Croteau did not directly order Snow into the interview with Campbell, the judge characterized Croteau's action as a request The judge found further that Snow was aware that the interview would concern the recent thefts and that Snow had a reasonable expectation that disci- plinary action could result from the interview The judge concluded that the Respondent's issuance of the warning letter to Snow based on his refusal to meet with Campbell without union representation, and suspending him, in part, for that refusal, was in derogation of Snow's Weingarten4 rights and vio- lated Section 8(a)(1) of the Act The Respondent contends in its exceptions that the judge's decision is contrary to the rule set forth in Roadway Express, 246 NLRB 1127, 1128 (1979) The Board in Roadway Express held that [A]n employee's Weingarten rights, with all its attendant safeguards, matures at the com- mencement of the interview, be it on the pro- duction floor or in a supervisor's office If the employer chooses to initiate its investigation in a work area, then it is bound to comply imme- diately with an employee's request for repre- sentation there If, however, the employer asks the employee to leave the production area and go to an office or some other location where further discussion is contemplated, then the employee acts at his or her peril if he or she declines to do so While an employee may, therefore, refuse to par- ticipate in an mterview in the absence of requested representation, the employee is not privileged to ignore the employer's order to report to the office for such an interview Accordingly, the Board in 4 NLRB v J Weingarten, 420 U S 251 (1975) 299 NLRB No 139 T N T RED STAR EXPRESS 895 Roadway Express found that the employer did not violate the Act by suspending an employee for dis- obeying an order to leave the dock area and pro- ceed to the company office for a Weingarten inter- view See Joseph F Whelan Go, 273 NLRB 340 (1984), United States Steel Corp, 253 NLRB 593 (1980) The Respondent contends that it lawfully warned Snow for his insubordination in disobeying Croteau's order that he proceed to the Respond- ent's office to meet with Campbell, rather than for the exercise of his Weingarten right to representa- tion The Respondent's defense is reliant on its con- tention that Croteau indeed ordered Snow to pro- ceed to the office, and that Snow refused to abide by that order We fmd that contention to be with- out merit . Croteau told Snow only once that Campbell wanted to see Snow in the office He did not phrase the statement as an order, and he did not repeat it after Snow indicated he would not report for the interview until his steward had arnved Croteau did not even register displeasure at Snow's response, to the contrary, he simply replied, "Fine, I'll go tell [Campbell] " We conclude, on the basis of this exchange, that Croteau acquiesced in Snow's refusal to report for the interview without his steward At the very least, Snow could reason- ably have believed that he was under no obligation to leave the work area until a steward was avail- able to join him in the interview It is therefore im- material whether Croteau's ongmal statement is properly characterized as an order or as a request Accordingly, we cannot conclude that Snow was lawfully warned for msubordmation 5 We therefore agree with the judge that the Re- spondent violated Section 8(a)(1) of the Act by is- suing a warning to the Charging Party because he exercised his Weingarten rights 6 5 Compare Roadway Express, supra at 1127 (employee refused two re- quests to leave dock area), United States Steel Corp, supra at 593 (insub- ordination based on repeated refusal to report to office as directed), Caro- lina Freight Carriers Corp, 295 NLRB 1080 fn 1 (1989) (employee law- fully discharged for insubordination because he persisted in challenging supervisor's direct order to clock out) The judge found Roadway Express to be inapposite to the Instant case because the former Involved the probability of violence We find Road- way Express inapposite to the instant case only for the reasons set forth above 6 In agreeing with the judge that the Respondent violated the Act by suspending Snow, in part, because of the exercise of his Weingarten nghts, we note that the Respondent did not meet its burden of proof under Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), of demonstrating that the suspen- sion would have occurred absent Snow's protected exercise of his Wein- garten nghts The judge also found that the Respondent did not violate the Act by issuing Snow warning letters on June 29 and on July 19, 20, and 22 The judge found that the General Counsel failed to set forth a pnma facie violation of the Act in regard to each of the warnings In agreeing with the judge that the warnings were not unlawful, we find that even assum- ORDER7 The National Labor Relations Board orders that the Respondent, T N T Red Star Express, Inc , Seekonk, Massachusetts, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Warning employees that they may suffer dm- ciplme for requesting union representation at an in- vestigatory interview which they reasonably be- lieve may result in disciplinary action (b) Suspending employees because they request union representation at an investigatory interview that they reasonably believe may result in discipli- nary action (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the purposes of the Act (a) Make whole Arthur Snow for any loss of earnings and other benefits suffered as a result of his unlawful suspension, in the manner set forth above (b) Remove from its files any reference to the unlawful warning of April 14, 1988, and the unlaw- ful suspension of June 7, 1988, and notify Arthur Snow that this has been done and that the unlawful warning and suspension will not be used against him in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its Seekonk, Massachusetts facility copies of the attached notice marked "Appendix "8 Copies of the notice, on forms provided by the Re- gional Director for Region 1, after being signed by the Respondent's authorized representative, shall be mg that a pnma facie case was established regarding these warnings, the Respondent met its burden of showing that the warnings would have been issued even absent Snow's protected conduct Wright Line, supra In regard to the warning Snow received for taking his coffee and lunch- break concurrently, we note that Snow testified that he was given per- mission to do so Our review of the record, however, indicates that no such permission was given 7 We shall modify the judge's Order to provide that the Respondent make Arthur Snow whole for any loss of earnings or other benefits suf- fered as a result of his unlawful suspension, in the manner prescribed in F W Woolworth Co. 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 8 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" 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places mcludmg all places where no- tices to employees are customarily posted Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 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 WE WILL NOT warn employees that they may suffer discipline for requesting union representation at an investigatory interview that they reasonably believe may result in disciplinary action WE WILL NOT suspend employees because they request union representation at an investigatory interview which they reasonably believe may result in disciplmary action 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 make Arthur Snow whole for any loss of earnings and other benefits suffered as a result of his unlawful suspension, plus interest WE WILL notify Arthur Snow that we have re- moved from our files any reference to the unlawful warning of April 14, 1988, and the unlawful sus- pension of June 7, 1988, and that these unlawful ac- tions will not be used against him in any way T N T RED STAR EXPRESS, INC John T Downs, Esq , for the General Counsel Paul J Kingston, Esq (Kingston & Associates), of Boston, Massachusetts, for the Respondent Arthur N Snow, of Plainville, Massachusetts, appearing pro se DECISION STATEMENT OF THE CASE GEORGE F MCINERNY, Administrative Law Judge Based upon charges filed on June 22, 1988, in Case 1- CA-25604, amended on July 29, 1988, and on July 29, 1988, m Case 1-CA-25678, by the Charging Party, Arthur N Snow, the Regional Director for Region 1 of the National Labor Relations Board (the Board) issued a complaint on September 7, 1988, alleging that Red Star Express Lines (Red Star) had committed certain unfair labor practices under the provisions of the National Labor Relations Act (the Act) Subsequently, Cases 1- CA-25604 and 1-CA-25678 were consolidated, and a consolidated complaint was issued by the Regional Di- rector on September 26, 1988 Red Star filed a timely answer in which it denied the commission of any unfair labor practices Pursuant to notice in the consolidated complaint, a hearing was held before me in Boston, Massachusetts, on January 23 and 24, 1989, at which the parties were repre- sented (Snow represented himself), and had the opportu- nity to present testimony and documentary evidence, to examine and cross-examine witnesses, to make motions and offers of proof, and to argue orally Following the close of the heanng the General Counsel and Red Star, now named T N T Red Star, Inc 1 (the Company or Re- spondent), filed bnefs, which have been carefully consid- ered On the entire record, including my observations of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION The parties agreed that Red Star is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The addition of T N T as a part of the Employer's name did not change that agreement II THE LABOR ORGANIZATION INVOLVED The parties agreed that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amenca, Local 251 (Local 251) is a labor organization within the meaning of Section 2(5) of the Act 2 III THE ALLEGED UNFAIR LABOR PRACTICES This Company operates a truck lme through a number of northeastern States We are concerned here only with its terminal in Seekonk, Massachusetts For the penod covered by the facts in this case the Company was signa- tory to the National Master Freight Agreement and the New England Supplemental Freight Agreement with the Teamsters National Union and its Local 251, the Union concerned here 3 'The name of the Company is given as amended at the hearing 2 Arthur Snow was asked if he belonged to another labor organization other than Teamsters Local 251, and he said that he was a member and secretary/treasurer of the Eastern Massachussets, Rhode Island, Chapter of Teamsters for a Democratic Union This latter organization is not named in the complaint and there Is no evidence on this record showing that It meets the criteria prescribed in Sec 2(5) of the Act For purposes of tlus case I do not find Teamsters for a Democratic Union to be a labor organization withm the meaning of Sec 2(5) 3 The parties agreed and stipulated that, although these agreements contain a grievance and arbitration procedure, It is the policy of the Union not to process a grievance to arbitration where, as here, the sub- ject matter of the grievance is pending before a Federal or state agency, or a court of law TNT RED STAR EXPRESS 897 Arthur N Snow was employed at the Company's See- konk termmal in 1981, and was working there as a dnver/dockman when the events encompassed by this case took place Snow impressed me, from his demeanor while testify- ing, and from the facts brought out in this proceeding, as a proud and uncompromising man who felt it to be his duty to interpret and enforce all of the provisions of the Company's work rules, and the collective-bargaimng agreement with the Union, down to the least job and title In his single-minded zeal, Snow filed numbers of grievances against the Company, and charges with the Board, against both his Employer and his Union 4 Rodenck A McGarry became terminal manager at Seekonk in September 1987 He was aware of Snow's reputation for inflexibility, and apparently made over- tures to Snow in order, as McGarry put it in a letter dated June 7, 1988, 5 to Snow, to "make every reasonable effort to improve the employee/management relationship between yourself and the Company" In that same June 7 letter, McGarry outlined some reasons why he felt he had failed at improving relations, citing gnevances filed by Snow on March 25 and 31, several practices where Snow used what McGarry considered excessive time, and an outright refusal to obey a supervisor's order on April 7 As a result of all these incidents, McGarry issued Snow a 1-day suspension on June 14 The April 7 incident occurred about 6 or 630 a m, as Snow was coming to the end of his shift, which on that day ran from 11 30 p m to 8 a m Snow's supervisor, Harvey Croteau, came up and told him that Fred Camp- bell wanted to see him in the office All of the employ- ees, including Snow, knew that Campbell was a security agent for the Company, and that there had been a rash of thefts of video cassette recorders (VCRs) and other electronic equipment from the Seekonk termmal Snow then asked Croteau whether "this was about the VCR'S" and Croteau said that it was Snow then said that he would like union representation and would defer going in until the steward came in Harvey Croteau, the supervisor in charge of loadmg and unloadmg trucks at night to be ready for departure in the morning, testified that Campbell came in on the morning of April 7, and asked to speak to the employees working on Croteau's shift that day Campbell told Cro- teau that he was conducting a "fact finding investiga- tion" Campbell did not specifically state what the inves- tigation was about, but Croteau had "an idea" that it was on the missing electronic equipment Several other em- ployees went in to be interviewed by Campbell without comment until Croteau came to Snow Croteau's version of his conversation with Snow was substantially the same as the latter's Snow said he would not go into the office without the union steward, Joe Jarvis 4 The Company Introduced Into evidence a long catalog of grievances, charges filed by Snow as well as warnings issued to him by the Compa- ny, dating back to 1981 I received this initially de bene, and I now re- ceive It without that qualification However, I have not referred to that document, except in reference here, because the issues in this case can and should be decided on the ments of the specific facts Involved 5 All dates are in 1988 unless otherwise specified After Croteau had relayed this message, he returned to the dock, where he found Snow loudly stating that he would not go into the office without representation He kept repeating this in a loud voice, in the presence of other employees, and to the embarrassment of Harvey Croteau Both Snow and Croteau agreed that a little after 8 o'clock, Shop Steward Jarvis accompanied Snow into the office to be interviewed by Campbell ° As a result of this incident McGarry wrote a "warning letter" to Snow, claiming that his refusal to speak to the security director on April 7 was a refusal of an "instruc- tion from a member of management of this company" Snow was warned that such refusal "could result in more serious disciplinary action up to and including sus- pension and/or discharge" On June 7 McGarry wrote another letter, entitled "Suspension letter" to Snow In this he expressed his frustration and anger at Snow's conduct and attitude "You are always boasting about how above board, straightforward and honest you are, yet everything I ex- perience shows a sneaky disruptive and uncooperative at- titude toward the company" McGarry then cited gener- al incidents, one on March 25 involving a grievance for "lost work opportunity", one on March 31 where Snow persuaded McGarry to violate a terminal rule, others in- volvmg taking too long a period of time for inspection of vehicles, taking too many personal stops while on the road, refusmg to change the headlight on a tractor, Snow's refusal to speak with Campbell on April 7, and finally, taking 12 minutes to inspect his vehicle and clear the yard, when two others had done it in 7 minutes This letter concluded "Your continued efforts at being dis- ruptive, uncooperative and trying to harass the supervi- sion of this Company leave me no choice other than to suspend you under article 47 of the New England Sup- plemental Freight Agreement Specifically, a one day suspension will be served by you on June 14, 1988" On these undisputed facts it is clear that Croteau did not directly order Snow into a meeting with Campbell on April 7 He asked, and when Snow said he wanted union representation, Croteau did not demur or change his request to a demand If there was any fuss or disrup- tion, it occurred after Croteau had spoken to Campbell and returned to the dock to find Snow loudly complain- mg about Croteau's prior request 7 There is no question, also, that Snow was aware, as was Croteau, that the interview with Campbell was going to concern the thefts which had occurred at the Seekonk terminal Any employee would reasonably be concerned in these circumstances that the finger of suspi- cion could point, at him, and that discipline, or even Campbell mdicated that in the interview Snow replied to some ques- tions initially, then declmed to answer questions on general areas of secu- nty Snow told Campbell he would put his recommendations on security in a letter to Company President John R West Campbell objected to this procedure, but Snow did it anyway There is no indication that this played any part in the discipline later administered to Snow This conduct, which apparently did disrupt work on the dock, was not mentioned in the warning letter of April 14, or the suspension letter of June 7 The latter disturbance had, I find, nothing to do with the act of refusal to comply with Croteau's request 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD criminal charges, could result from the wrong answers given to Campbell's questions In any event, Snow did comply with the request to meet with Campbell when the steward arrived sometime after 8 o'clock that morning 8 There are no allegations by Respondent that Snow's refusal to cooperate fully with Campbell in their meet- ing, particularly in regard to what Snow, as a regular employee, could recommend on more effective security procedures, were cause for discipline or warnings How- ever, I find this incident symptomatic of Snow's disdain for his Employer, and his desire to embarrass its officials Despite Campbell's pleas,° Snow insisted that he would not give Campbell the benefit of his ideas on security, but would put these views in a letter to Company Presi- dent West I can discern no logical reason for Snow's action beyond a gratuitous impulse to cause trouble for Campbell, and the management of that Seekonk terminal This conclusion is consistent with McGarry's state- ment, in his June 7 suspension letter to Snow, describing a grievance filed by Snow on March 25 After detailing the gnevance and the circumstances surrounding its filing, McGarry quotes Snow as saying that the investi- gation and processing of the grievance "gives you [McGarry] and Jack [9] something to do" I credit this statement in the June 7 letter repeated by McGarry in his testimony Finally, in this regard, I think that the sneering note written to Michael S Scalzo, district operations manager at the end of October 1987, and introduced by Respond- ent, indicates Snow's thoroughly contemptuous attitude toward the Company Despite this attitude on Snow's part, I believe that he is entitled and protected under the law to file grievances or charges with the Board But I think there is some confusion here in Snow's mind between his legitimate filing of charges or gnevances, and in Respondent's mind between Snow's filing of charges and grievances and his duties as an employee and its legitimate authority to issue warnings and to impose discipline Snow believes, with some justification, that he has the nght to file legitimate grievances or charges I think he sincerely believes that he has done so But with his atti- tude of contempt, even hatred, for the Company and its local representatives, he also believes that he can do any- thing he wants in regard to his duties if what he does is even remotely justified by company rules, or contract provision 10 8 The Respondent, has implied here that Snow waited to meet with Campbell until after his shift ended at 8 o'clock, in order to receive over- time pay This has not been demonstrated, and, in my opinion, is only a suspicion ° Campbell's testimony was credible and undemed Jarvis, the union steward, was not called as a witness, and Snow himself did not deny this part of his conversation with Campbell in his testimony 1° I specifically reject Snow's testimony that McGarry threatened to "come after" /um at a meeting on June 18 I do not credit Snow's testi- mony on contested issues of fact, based on my close observation of him while he was testifying He is a person who, in my opinion, would he to justify his position in this matter I found McGarry, who denied threaten- ing Snow, to be credible While noting that Union Business Agent John Amaral did not testify, I make no adverse finding from that fact, givmg due consideration to possible bias by Amaral because of Snow's connec- tion with a dissident group within the Teamsters Union The Company, for its part, seems to view the filing of nonmentonous grievances, in and of itself, to be part of a pattern of disruptive and uncooperative conduct de- signed to harass the Company 11 But the Company has legitimate complaints about Snow's working habits which company officials sincerely believe violate compa- ny rules and contractual provisions, and which habits Snow engages in purposely to harass the Company and its officials It is not my function, nor that of the Board in a case like this, to act as a mediator or an arbitrator in search- ing out a pathway through a labyrinth of emotion, preju- dice, fact, and suspicion to work out evenly and equita- bly, the differences which divide Snow and his Employ- er It is, rather, our function, the Board and I, to deter- mine whether the actions of the Company in this case can be established, by a preponderance of the evidence based upon the record as a whole, to have violated the provisions of the Act Under this last definition, I find that the Company has violated Section 8(a)(1) of the Act in first warning, and then suspending Snow because he declined a company request to meet with Secunty Officer Campbell on April 7 As I have found, the Company, through Harvey Cro- teau, requested that Snow go to meet with Campbell Both Croteau and Snow knew what it was about It could, potentially, be serious for Snow It could result in discipline for him He did not outright refuse Croteau's request, but said he wanted union representation by his steward, Jarvis Jarvis was due into the terminal in about an hour When Jarvis did come in Snow accompanied him to the office where Campbell was located, and con- sented to the interview For this Snow was warned by letter dated April 14 Later, after some other differences between Snow and the Company, Snow was suspended for 1 day It is clear from the suspension letter of June 7 that the suspension was due, in part, to the April 7 inci- dent with Campbell I find that by issuing the warning letter, and the sus- pension, the Company violated Section 8(a)(1) of the Act NLRB v J Weingarten, Inc , 420 U S 251 (1975) 12 In addition to the violation of law which I have found here, the General Counsel alleges that Respondent's "op- position to assertion of employee nghts" has given rise to a "Pattern of action—reaction" presumably resentful of and retaliatory toward the filing of grievances by Snow The following incidents are cited by the General Counsel as each constituting a separate violation of Sec- tion 8(a)(1) and (3) of the Act " See June 7 letter, p 3 " Cases cited by Respondent are inapposite to the facts here For ex- ample, Roadway Express, 246 NLRB 1127 (1979), involved the probability of violence In Massillon Community Hospital Ann, 282 NLRB 675 (1987), a case with which I am vaguely familiar, the Weingarten violation was upheld, but the discharge of the employee was not upheld by the Board because that discharge was for a legitimate reason which preceded the Weingarten incident The Respondent's argument that any other em- ployee could as well have served as a Weingarten representative seems to run contrary to the Board's holding in E I du Pont & Co, 289 NLRB 627 (1988) TNT RED STAR EXPRESS 899 A A warnmg letter on June 29, 1989 On that date McGarry issued a warning to Snow because of his negligence in not setting a hand brake when alighting from a towmotor The towmotor rolled, and struck Snow on the foot While it may be true that the Company had not issued warnings on this subject before, this does not mean, without more, that the Company was not justified in issuing a warning letter for negligence in operating a towmo- tor I do not credit Snow's claim that he set the brake, and do not find that the General Counsel has established a prima facie case for a violation of Sec- tion 8(a)(1) and (3) in this incident Wright Line, 251 NLRB 1083 (1980) B A warning letter on July 19, 1988 This inci- dent involved an altercation on the dock at Thom McAn, a customer of Respondent's I do not credit Snow's version of this incident, and I regard the at- tempted corroboration of Snow's testimony, by em- ployee Henry Wood, as too vague and imprecise to show that Respondent's stated reasons m the July 19 letter were not accurate Again I find no prima facie case under the rule in Wright Line, supra C A warning letter on July 20, 1988 This letter specifically addressed Snow's claim that directional lights were not working on a trailer he was assigned to take out on a rush job Shortly after Snow un- hooked the allegedly defective trailer and hooked up to another, it was found that the directional lights were working on the rejected trailer This in- cident was amplified in the warning letter to include a statement that Snow was "deliberately reporting and/or creating non-existent [sic] problems with equipment in your ongoing effort to create a disrup- tion and delay in our operation" I credit the Com- pany's version of the directional lights incident and I rather suspect, but there is not enough evidence to find, a continuing practice by Snow to disrupt and delay Respondent' operations In any event, I find that the General Counsel has not established [sic] a violation of Section 8(a)(1) and (3) in this incident Wright Line, supra D A warning letter on July 22, 1988 This letter specifically alleges Snow's violation of Company rules by taking his coffeebreak and lunchbreak con- currently Snow alleged that he was given permis- sion to do so by a dispatcher That person no longer worked for the Company at the time of hear- ing, and was not called upon to testify Henry Wood, however, did testify that he had taken the two breaks together before, without discipline This single exception does not, in my opinion vi- tiate the rule against taking these breaks together, nor does it show that Snow was being smgled out for disparate treatment Again, the General Counsel has not established a prima facie case on which to base a finding that this warning has violated Snow's statutory rights In all of these latter warnings there is no indication, as in the June 7 suspension letter, that Snow's refusal to meet with Campbell, or his filing of grievances or charges, was in any way connected with the Respond- ent's action In a letter dated July 28, from McGarry to John Amaral, the Local 251 business agent, there is no breath of the kind of frustration and anger that is present in the June 7 letter, and in the testimony of McGarry and Scalzo, that while they were concerned with the "proper" way to file grievances in accordance with their customary practice, but no hostility toward the content of the grievances Thus, I cannot find the necessary animus to form a connection between the June 7 letter and the later warning letters The evidence shows that Snow did the things he was accused of, there is no sub- stantive evidence of disparate or unfair treatment of Snow, and the warning letters are perfectly within the right of management to issue for violations of work rules and practices THE REMEDY Having found that the Respondent has violated Sec- tion 8(a)(1) of the Act by disciplining Arthur Snow be- cause he insisted on union representation before attend- ing an investigative meeting with Respondent's security officer, I shall order the Respondent to cease and desist therefrom and to take the following affirmative action, designed to effectuate the purposes of the Act I shall order the Respondent to remove from its April 7 warning letter and its June 7 suspension letter all refer- ences to Snow's refusal to meet with the security officer, and all references to Snow's alleged disobedience of a management order, disruption of work, and his suspen- sion I shall further order that Respondent pay to Arthur Snow the day's pay that he lost on account of his sus- pension, together with interest thereon CONCLUSIONS OF LAW 1 T N T Red Star Express, Inc is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Teamsters Local 251 is a labor organization within the meaning of Section 2(5) of the Act 3 By warning and suspending its employee, Arthur Snow, the Respondent has violated Section 8(a)(1) of the Act 4 The Respondent has not violated the law in any other way [Recommended Order omitted from publication ]