Advance Transportation Co.

900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Advance Transportation Company and Daniel A. Tuffs Jr. and Richard Kubat and Donovan Bauldry. Cases 13-CA-28088, 13-CA-28143, and 13-CA-28362 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On July 18, 1989, Administrative Law Judge David L Evans issued the attached decision The Respondent, the General Counsel, and Charging Party Donovan Bauldry filed exceptions and sup- porting briefs i The Respondent filed briefs in re- sponse to the General Counsel's and Charging Party Bauldry's exceptions The General Counsel filed a brief in response to the Respondent's excep- tions 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 and to adopt the recommended Order to the extent consistent with this Decision and Order Unlike the judge, we find merit in the allegation that the discharge of employee Bauldry violated Section 8(a)(1) of the Act The judge found, and we agree, that the General Counsel established a prima facie case that Bauldry was discharged be- cause of his vocal opposition to the Respondent's compulsory profit-sharing plan The judge credited and relied on testimony that the Respondent knew of Bauldry's opposition and that the Respondent's dispatch manager, Richard Blake, told Bauldry to stop joking about the plan and associating with other plan opponents Blake further told Bauldry that the Respondent knew—and would discharge— those who had joined in such opposition, and that, although Bauldry was "a good worker," he imper- iled his advancement to a permanent position s by Charging Party Bauldry's motion to reopen the record is denied as being without mein 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 ar 1951) We have carefully examined the record and find no bass for reversing the findings Although the General Counsel did not except to the judge's findings and conclusions concerning Charging Party Richard Kubat, Charging Party Bauldry did so except We note that exception, but we nonetheless adopt the judge's finding that the General Counsel failed to make a pnma facie case that Kubat's discharge was unlawful We find that the evidence was insufficient to demonstrate that the Respondent was aware of Kubat's opposition to the profit-sharing program, such awareness would have been a necessary element of the pnma facie case 3 Bauldry was a "replacement dnver" for the Respondent until his dis- charge on December 28, 1988 "Replacement drivers" are temporary em- continued association with those who opposed the plan The judge specifically found that Blake's statements violated Section 8(a)(1) of the Act Following the rule of Wright Line,4 the judge then considered whether the Respondent had shown that, even without animus toward Bauldry, it would have discontinued his services as a re- placement driver To find, as he did, that the Re- spondent met its Wright Line burden, the judge had to rely heavily on certain testimony by Dispatch Manager Blake Blake stated that, after reviewing Bauldry's accumulated work records on December 28, 1988, he terminated Bauldry for a decline in work performance that began in July Having implicitly accepted the above testimony of Blake, the judge effectively shifted the burden back to the General Counsel The judge concluded General Counsel did not object to Blake's con- clusionary representations that Bauldry's pro- duction had steadily declined Nor did General Counsel demand production of the records that could possibly have proved Blake's repre- sentations to be false Nor did General Coun- sel call Bauldry to rebut Blake's testimony that Bauldry's production had declined Nor did General Counsel adduce any evidence that Bauldry was the victim of discriminatory treat- ment In this posture, it cannot be said that Bauldry's discharge violated the Act Unlike the judge, we find Blake's conclusional testimony to be too slender a reed to support a Wright Line defense, given other testimony that the judge has credited Blake's assertion that Bauldry's work performance had deteriorated is belied by two aspects of the record First, according to cred- ited testimony, Blake never discussed the supposed decline with Bauldry To the contrary, in early September, Blake praised Bauldry's efforts in the only conversation they had concerning Bauldry's work and his opinion of the profit-sharing plan Second, the Respondent's failure to introduce the work cards on which Blake claimed to rely in de- ciding that Bauldry's "work production was way down" leads to an inference that the cards would not have buttressed the Respondent's position or indeed would have undercut it See Industrial ployees lured to fill in for permanent ("semonty") drivers who are absent As openings become available, the Respondent has agreed to con- vert replacement drivers Into seniority drivers, in order of their hire as replacements Until they are offered semonty status, however, replace- ment drivers are at-will employees with no gnevance rights or semonty under the collective-bargaining agreement During the penod in question, replacement drivers were subject to the same compulsory profit-sharing plan as were semonty dnvers 4 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cs 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Corp, 462 U S 393 (1983) 299 NLRB No 140 ADVANCE TRANSPORTATION CO 901 Supply Co, 289 NLRB 639 (1988), Textron, Inc , 199 NLRB 131, 134 (1972) The absence of corroborating or supporting evi- dence for Blake's position is especially glaring in light of his comments to Bauldry in the September conversation mentioned above It must be remem- bered that Blake's unlawful statements at that time established the Respondent's animus toward Bauldry Significantly, however, the judge found that m that same conversation Blake told Bauldry he was "a good worker" and likely to be convert- ed to permanent status if he heeded Blake's warn- ings to cease his opposition to the profit-sharing plan Given that credited version of events, it is im- plausible that Blake would have commended Bauldry's work performance in September, and then terminated him in December for a decline in production that began in July This contradiction fatally undermines the Respondent's Wright Line defense 5 In the circumstances above, we find that the Re- spondent failed to show that it would have dis- charged Bauldry even absent his protected activi- ty 6 Thus, the burden never shifted back to the General Counsel The Respondent not having es- tablished its defense, the General Counsel cannot be faulted for failing to demand the Respondent's records ,or otherwise refute Blake's bald assertions Accordingly, we find that the Respondent violated Section 8(a)(1) by discharging Bauldry on Decem- ber 28, 1988 7 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Advance Transportation Company, Bed- ford Park, Illinois, its officers, agents, successors, We note that the judge credited Bauldry's testimony that Blake had called him "a good worker" This finding is obviously at odds with the judge's conclusion that the Respondent had established its defense 6 Member Cracraft agrees with her colleagues that the Respondent failed to rebut the General Counsel's prima facie case She finds that the Judge implicitly credited Blake's testimony and, therefore, unlike her col- leagues, she accepts as true Blake's claim that Bauldry's production had steadily declined since July However, Member Cracraft notes that It is not sufficient for a respondent merely to show that cause for discharge existed It must also establish that the reason It advances was, in fact, relied on Wright Line, supra, 251 NLRB at 1084 In this case, Member Cracraft finds that the Respondent has not established that it actually relied on the decline in production when it discharged Bauldry in light of the credited evidence showing that Blake never mentioned a production problem to Bauldry and, on the contrary, actually praised his work per- formance in September On the basis of this evidence, Member Cracraft believes that the inference is warranted that the Respondent seized on the production decline as a convenient pretext to mask its unlawful reason for discharging Bauldry 7 Par 1(e) of the judge's "Conclusions of Law" is modified by substi- tuting "employees" and "their" for "an employee" and "lus," respective- ly and assigns, shall take the action set forth in the Order as modified 1 Substitute the following for paragraihs 2(a) and (b) "(a) Offer Daniel A Tuffs Jr and Donovan Bauldry immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other nghts or privileges pre- viously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of this decision "(b) Remove from its files any reference to the unlawful discharges of Daniel A Tuffs Jr and Donovan Bauldry, and notify them in writing that this has been done and that the discharges will not be used against them in any way" 2 Substitute the attached notice for the notice 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, jom, 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 create an impression among our employees that their protected, concerted activities are under surveillance WE WILL NOT threaten our employees with dis- charge because of their protected, concerted activi- ties WE WILL NOT instruct any employee that he should not associate with certain other employees because of their protected, concerted activities WE WILL NOT threaten any employee with loss of job advancement because of his protected, con- certed activities WE WILL NOT discharge any employee because of his protected, concerted activities under the Act 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Daniel A Tuffs Jr and Donovan Bauldry immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest WE WILL remove from our files any reference to the unlawful discharges of Daniel A Tuffs Jr and Donovan Bauldry, and notify them in writing that this has been done and that the discharges will not be held against them in any way ADVANCE TRANSPORTATION COMPANY Andrew Iserson, Esq , for the General Counsel Leonard R Kean, Esq , of Chicago, Illinois, for the Re- spondent DECISION STATEMENT OF THE CASE DAVID L EvANs, Administrative Law Judge This matter under the National Labor Relations Act (the Act) was tried before me on April 24-25, 1989, in Chicago, Il- linois The charges against Advance Transportation Company (Respondent) were filed by individuals as fol- lows the charge in Case 13-CA-28088 was filed by Daniel A Tuffs Jr on October 20, 1988, 1 the charge in Case 13-CA-28143 was filed by Richard Kubat on No- vember 7, the charge in Case 13-CA-28362 was filed by Donovan Bauldry on February 14, 1989 Complaints against Respondent were issued on each of these charges, and the complaints were consolidated for purposes of hearing by order of March 28, 1989 The complaints allege that Respondent violated Section 8(a)(1) and (3) of the Act by suspending and then discharging Tuffs and by discharging Bauldry and Kubat and by threatening or otherwise interfering with, coercing, or restraining its employees in the exercise of rights guaranteed by Section 7 of the Act, all because the Charging Parties had en- gaged in statutorily protected concerted activities and union activities on behalf of Highway Drivers, Dock- men, Spotters, Rampmen, Meat, Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employees, Local Union Number 710, International ,Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union) Respondent duly filed answers to the complaints, it admits jurisdiction and the status of certain supervisors under Section 2(11) of the Act, but it denies the commis- sion of any unfair labor practices All dates are in 1988 unless otherwise stated On the entire record, and my observation of the de- meanor of the witnesses, and after considering the briefs filed by the parties, I make the following FINDINGS OF FACT 1 JURISDICTION Respondent is a corporation which, at its facilities in Bedford Park, Illinois, is engaged as a motor carrier in the transportation of commodities in interstate com- merce During the year preceding issuance of the com- plaints, Respondent in the course and conduct of such business operations derived gross revenues in excess of $50,000 for the transportation of freight from Illinois di- rectly to points in other States Therefore, Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, as I find and con- clude Respondent further admits, and I further find and conclude, that the Union is a labor organization within Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Facts 1 Background and contentions Respondent's corporate headquarters is in Milwaukee, Wisconsin It maintains about 40 terminals and has about 3000 employees m the United States Respondent's over- the-road drivers are dispatched from Milwaukee, its Chi- cago area local dnvers are dispatched from the Bedford Park terminal, the only facility of Respondent's involved herein There are four city dispatchers at Bedford Park, they report to Dispatch Manager Richard Blake Blake testified that he reports to the terminal manager, the ter- minal manager reports to Respondent's Chicago regional manager, Thomas Horvath, Horvath reports to a corpo- rate vice president in Milwaukee Blake also testified that he considered Mike Zudyclu, who was Respondent's office manager and admitted supervisor at all times mate- rial to be his "boss" Respondent has recognized the Union as collective- bargaining representative of the Bedford Park over-the- road drivers, city delivery drivers, warehousemen and clerical employees in four separate units for 25 years, or more There are about 200 employees in these 4 umts Only the city, or local delivery, drivers are involved in this case The numbers fluctuate, but Respondent usually em- ploys about 80 "seniority" drivers, it also employs be- tween zero to 15 "replacement" drivers at a time Under its contract with the Union, Respondent employs the re- placement drivers as they are needed to fill in for seniori- ty drivers who are absent for one reason or another The replacement drivers are paid an hourly wage which is lower than that paid to the seniority drivers Replace- ment drivers do not accumulate bargaining unit semonty, they cannot file grievances, and they, as well as seniority drivers, are subject to a profit-sharing program which, at the time of the discharges, included a feature of compul- ADVANCE TRANSPORTATION CO 903 sory withholding at a rate of 12 percent of contractual wage rates The profit-sharing program was opposed by the Charging Parties, and General Counsel contends that this opposition constituted protected, concerted activity which was the actual basis of the alleged discrimination against them General Counsel further contends that Tuffs and Bauldry were discharged because of their sup- port for a slate of candidates which opposed the profit- sharing program in an internal union election Tuffs was a semonty driver, Respondent contends that Tuffs was discharged solely because he failed to follow instructions three times in 6 months, grounds for dis- charge under its contract with the Union Bauldry and Kubat were replacement drivers, Respondent contends that they were "discontinued" because of their inferior work performances Initially, however, Respondent con- tends that General Counsel has failed to present a prima facie case as to any of the discharges because (1) Gener- al Counsel has failed to produce evidence of Respond- ent's knowledge of any union or protected, concerted ac- tivity on the part of Charging Parties Bauldry and Kubat, and (2) General Counsel has presented no evi- dence of animus, or motivation, against any union or protected, concerted activities of the Charging Parties 2 The compulsory profit-sharing plan The compulsory profit-sharing plan to which the Charging Parties objected was instituted on April 1 Ar- bitration of grievances filed over the institution of the compulsory profit-sharing program was conducted on January 10, 1989, and the decision of Arbitrator Albert A Epstein issued on April 10, 1989 A copy of the deci- sion was received as a joint exhibit The history of the profit-sharing program is reflected therein That history will be summarized in this section, also, points brought out by testimony in this proceeding will be added where appropriate From April 1985 until March 31, 1988, there existed a voluntary profit-sharing program for all Respondent's employees represented by the Union That plan also en- tailed a 12-percent deduction from the contractual wages paid, Tuffs testified, without contradiction, that 10 per- cent was returned to Respondent, and 2 percent was used to purchase stock in Respondent's corporation for the participating employees In late 1987, the parties began negotiations for a 3-year contract to take effect on April 1, the day after the then- existing contract was to expire During these negotia- tions, Respondent also proposed separately a compulsory profit-sharing program which was to be in effect for a 5- year period, also beginning April 1 The Union took the position that it could agree to such a proposal only if there was an approval by a majority of the employees in a special referendum Respondent and the Union jointly conducted a referendum on December 18, 1987, the proposition was defeated by a tally of 123 to 67 The parties went back to negotiations Respondent in- sisted that it needed the compulsory program for eco- nomic survival, and it asked the Union to join in con- ducting another vote on the matter The Union refused, at the same time, the Union suggested to Respondent that the program might be more palatable to the employ- ees if its duration were no longer than the 3-year agree- ment then being negotiated and if it included a pay raise above whatever would be called for by the National Master Freight Agreement, which was also then being negotiated Respondent then campaigned among its employees for the compulsory program, proposing a duration which was the same as the coming contract, 3 years, and fur- ther proposing a wage increase of 35 cents per hour Al- though the Union refused to participate in a second ref- erendum, it did, through its steward, furnish ballots and give advice on the proper voting procedures The second referendum was conducted by Respondent on February 25, the revised compulsory profit-sharing pro- posal was approved by a tally of 142 to 52 The Union accepted the vote and entered separate compulsory profit-sharing agreements for the four separate units as riders to the April 1, 1988-March 31, 1991 agreements There were 24 drivers, 22 dock workers, and 5 clerical employees who filed grievances protesting both the Feb- ruary 25 voting and the implementation of the compulso- ry profit-sharing program The matter went to a griev- ance hearing on April 27 (i e, after the program had taken effect on April 1), but the matter went unresolved The matter proceeded to arbitration The decision denied the grievances in their entirety 3 Activity and termination of Kubat Richard Kubat began working for Respondent as a re- placement driver on September 6, 1986 He testified that he opposed the compulsory profit-shanng plan, but he did not testify that he did anything about it except to vote "no" in one of the two referendums, he could not remember which He spoke to no supervisor about his opposition to the compulsory profit-sharing plan, and there is no suggestion in the record of how Respondent could have known of any opposition by Kubat General Counsel contends that evidence of knowledge or suspi- cion of Kubat's protected, concerted activity (and animus toward it) is contained in Bauldry's testimony, as discussed below Kubat was discharged, or "discontinued," as a replace- ment employee on August 10 by letter of that date which was signed by Horvath Horvath recited no reason stating that none needed be stated "inasmuch as you were hired as a replacement employee" Blake testified that he made the decision to terminate Kubat and that he then knew nothing of Kubat's opposi- tion to the compulsory profit-sharing program or Kubat's association with anyone else who opposed the plan Blake testified that Kubat was discharged because, while Kubat had initially performed satisfactorily, his perform- ance detenorated in the 6 or 7 months pnor to the termi- nation, and Kubat's "absentee record was out of this world for [a] replacement" There was no rebuttal of this testimony by Blake 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Activity and discharge of Tuffs a Activity of Tuffs Daniel Tuffs was employed by Respondent as a senior- ity city driver from February 1979 until September 29 Tuffs refused to participate in the voluntary Employee Stock Ownership Plan (ESOP) when that plan was in effect from 1985 to 1988 He testified that in February 1986, Horvath called him into Horvath's office and told him that Respondent wanted 100-percent participation in the plan Tuffs replied that he could not afford it and was not interested Further according to Tuffs, [Horvath] then told me that if I didn't participate in the ESOP program, there would be a layoff and it would be my fault 2 Horvath did not deny this testimony Tuffs testified that a few days before the December 18, 1987 referendum was conducted, Respondent conducted a meeting of all employees Glen Carroll, Respondent's operations manager at the time and admitted supervisor within Section 2(11), spoke in favor of the proposed compulsory profit-sharing program Tuffs spoke up and asked who was in favor of the compulsory profit-sharing plan, only two employees raised their hands Respondent did not call Carroll to testify and it advanced no reason for not doing so, I credit Tuffs Tuffs testified that on the morning of the first referen- dum he signed and circulated a "petition" that he drafted at his home The petition is addressed to the Union, and it states that the undersigned employees object to profit sharing, and compulsory deductions, being Imposed by virtue of a simple majority vote Tuffs was the first to sign the copy received in evidence, and 81 other employ- ees of Respondent followed On cross-examination, Tuffs acknowledged that four other named employees circulat- ed the petition, each of those employees is still working for Respondent Tuffs further testified that during the morning before the first referendum, Zudycki and Horvath saw him cir- culating the petition described above Tuffs testified that he offered the petition to Zudycki and Zudycki respond- ed, "Get that thing away from me" Horvath did not deny seeing Tuffs circulating the petition, Zudyclu was not called to testify, and Respondent advanced no reason for not doing so I credit Tuffs According to this record, Tuffs engaged in no activity between the first referendum and the second referendum that was conducted on February 25 Tuffs testified that he voted "under protest" in the second referendum, but how he did so was not explained, and there is no evi- dence of Respondent's knowledge of Tuft's "protest" vote After passage of the compulsory profit-sharing propo- sition and the negotiations and execution of the contracts between Respondent and the Union, Tuffs and 59 other employees (in all 4 units) filed grievances Tuffs testified that at the April 27 grievance hearing (before arbitration) Carroll was present, along with the rest of a grievance 2 Punctuation of quotations is corrected herein board Tuffs was asked on direct examination and testi- fied Q Did you say anything during the course of this hearmg7 A Yes, I did Q What did you say A I said that this an example of what happens when you withhold monies from a person's check against their will and without their approval, and that this thing will contmue until people are given a voluntary choice on profit sharing Again, Carroll was not called to deny this testimony, and I credit Tuffs On August 25, Tuffs received a check for "Profit Sharing Distribution" in the amount of $8 71 Tuffs testi- fied that he and three other employees took their profit- sharing checks to Zudyclu's office According to Tuffs I told [Zudyclu] that I filed a grievance over this It was sent to arbitration and there is no decision, and that I am not a willing participant in this program and to accept this check would be showing my ap- proval of the profit sharing plan, and that I didn't want to accept the check, and I laid it on his desk Zudyclu responded that it was Tuffs' check and that the Company wanted him to have it Tuffs testified that on the following day he found the check in his pay box, a pigeon-hole type of device where drivers get their pay- checks and various messages Tuffs took the check to Horvath, he told Horvath essentially what he had told Zudycki, and Horvath gave the same response that Zu- dyclu had given The following day Tuffs again found his check in his pay box Tuffs testified that he left the check in his pay box where it stayed until the week before he was suspended on September 29 Blake testified that Tuffs' check could not have re- mained in his pay box for an extended period because it is the practice of the dispatchers to daily collect any matter left in the pay boxes and place any checks in the office safe Neither Office Manager Zudyclu, nor any of the four dispatchers was called by Respondent to testify that the check was, in fact, taken from the pay box, and I do not believe that it was Therefore, to the extent that Blake's testimony was intended to constitute a denial of this part of Tuffs' testimony, I discredit it Tuffs testified that while other employees objected to the compulsory profit-sharing plan, and that as many as 30 others refused to cash their profit-sharing checks, he was the only one who refused to take possession of his check This testimony was not disputed The Union, which is composed of many thousands of members who are employed by several different employ- ers in the Chicago area, conducted an election of its offi- cers on September 10 Tuffs testified that he supported the "Eagle" slate of candidates that opposed, inter aim, compulsory profit sharing Tuffs described himself as one of the most vocal of the supporters of the Eagle slate, however, he did not run for office on that slate and three other of Respondent's employees did One of the Eagle ADVANCE TRANSPORTATION 'CO 905 slate candidates was Harry Bidwell Bidwell was called by General Counsel to testify about other matters, but he was not asked to corroborate Tuffs' testimony about what the Eagle slate stood for or to what extent Tuffs participated in the campaign There is no probative evi- dence that any of Respondent's supervisors knew of Tuffs' support of the Eagle slate, to whatever extent it existed b Discharge of Tuffs Blake testified, without contradiction by any witness, that Respondent and the Union have an agreement that employees who commit three violations of the same rule within a 6-month period are subject to discharge Blake further testified that one of Respondent's rules is that employees are to follow instructions On August 12 Tuffs received a letter captioned "Warning Letter [for] Failure To Follow Instructions" The letter cites Tuffs' failure to show the amount of pieces received at a pickup The complaint does not allege that this warning notice was unlawfully motivated Tuffs testified that at the end of the workday, Thurs- day, September 29, a dispatcher handed him a note signed by Blake, it said "Dan Tuffs suspended Friday for failure to follow instructions Letter to follow" Tuffs asked what it was about, the dispatcher said he did not know and that Tuffs should call Blake m the morning The following morning Tuffs went to see Zudycki at Zudycices office Tuffs asked what the suspension was about, and Zudycki said that he did not know, Zudyclu said that Tuffs would have to see Blake Tuffs went to Blake's office Union steward George Leicht, and employees Jimmy Larson and Bob Jugs (for reasons that are unexplained in the record) were present According to Tuffs I asked [Blake] what the suspension was for, and he said for talung a company check instead of a certi- fied check on a C 0 13 , that that was my second of- fense and I was suspended Friday and was to return to work Monday Blake did not deny this testimony by Tuffs Neither Leicht, nor Larson, nor Jugs was called to testify On Saturday, October 1, Tuffs received a telegram from Zudyclu, It is dated September 30, and it states Your employment with Advance Transportation has been terminated effective immediately Letter to follow On October 3, Tuffs called Zudycki and asked why he had been fired According to Tuffs [Zudycki] said, "for taking your coffee break before your first stop" I told him, "Well, I am on volume" And he says, "Well, you are fired" On October 4, Tuffs received two letters from Blake A letter dated September 30 and captioned "Second Warn- ing Letter With One Day Suspension" states On August 12, 1988, you were issued a warning letter for failure to follow instructions Again on September 28, 1988, you failed to follow instruc- tions when you stopped for coffee before your first delivery This letter is your warning for the offense and carries with it a one day suspension The day of sus- pension is September 30, 1988 Be advised that your failure to follow instructions the future will subject you to stronger disciplinary action up to and including discharge Govern yourself accordingly The other letter from Blake received by Tuffs on Octo- ber 4 is captioned "Letter of Termination" It is dated October 3, and it states This letter confirms and explains, in further detail, the telegram which was sent to your home on October 1, 1988 On August 12, 1988, you were issued a warning letter for failure to follow mstructions On Septem- ber 30, 1988, you were issued a warning letter for failure to follow instructions for an incident occur- ring on September 28, 1988, and were given a one day suspension On September 28, 1988, you again failed to follow instructions when you delivered a COD shipment, covered by our pro #2936897, to Stolp Gore Company in McCook, [Illinois] The bill was clearly marked for the driver to collect a certified check, only, for the amount of the C 0 D You failed to do so In view of the above circumstances your employ- ment with Advance Transportation Company is hereby terminated for failure to follow instructions There is, of course, a conflict between the letters and Tuffs' uncontradicted testimony about what he was told, Blake told him that he was being suspended for the C 0 D incident, and Zudycki told him that he was dis- charged for the coffeebreak incident The letters state the converse On direct examination Blake was asked and testified Q How did you learn that Mr Tuffs has had [sic] a problem with collecting the certified check? A Mr Zudyclu come over and told me Q Did you thereafter have a conversation with Mr Tuffs? A Yes, we called Mr Tuffs in the office Q Was Mr Zudyclu present at the time? A Yes, he was Q And tell us what was said? A Mr Zudycki asked Mr Tuffs if he knew he forgot the C 0 D amount on that one bill He looked at the bill for a while and said, "Oh, jeez, I forgot" Q Who said that? A Mr Tuffs So Mr Zudyclu said, "You know that is going to cost the company money" And he said, "you will get a letter for it" Which is common, our policy 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When asked why Tuffs mistake would have cost the Company money, Blake replied that someone would have to talk to the shipper and tell the shipper that a cer- tified check had not been secured, and that it could mean a loss of business if the consignee refused to give a certi- fied check, and that Respondent would be liable if the consignee would not issue a certified check and the con- signee's company check was not good Blake did not tes- tify that Respondent actually lost any money because of Tuffs' error On cross-examination Blake was asked and testified Q Isn't it true that Dan Tuffs was suspended for taking a company check instead of a certified check? A No, it wasn't Q Isn't it true that the morning of September 29th is when you noticed that Dan Tuffs had taken an unauthorized coffee break, according to you and the company's policy— A Yes Q [Continuing] on the 28[th] So the sequence then on September 29th is that you realized that Dan Tuffs took a coffee break on the 28th you thought he shouldn't have taken because he did not call in After that is when you found out about the C 0 D, certified check, company check problem? A Right Q When did you decide to suspend Mr Tuffs over the coffee break incident? A Oh, that morning Mr Zudycki and I talked it over Q Where did you talk to Mr Zudyclu? A In his office Q Was anybody else there? A No, just my boss and myself Q Did you also discuss the situation regarding the certified check, company check problem at that time? A Yes, we did Q You discussed the coffee break and the certi- fied check problem all at the same time? A Yes, we did There is no dispute that, on September 28, Tuffs failed to secure a certified check for a delivery when his dis- patch paperwork required him to do so Tuffs offers no explanation, except to make the absolutely incredible statement that he did not know what a certified check was (Certainly, he knew it was not an ordinary compa- ny check, which is what he collected ) Tuffs also admits that on September 28 he stopped for coffee before his first delivery General Counsel con- tends that in doing so Tuffs violated no disciplinary rule that applied to him Alternatively, General Counsel con- tends that application of the coffeebreak rule constitutes, in Tuffs' case, discriminatory treatment Therefore, the rule and its other applications must be examined For a number of years Respondent has maintained and distributed to drivers a booklet entitled "Advance Trans- portation Company—Drivers Manual—Policies and Pro- cedures" Under a section captioned "Operating Rules," and subcaptioned "Meal Periods and Coffee Stops," the manual states the policy for road drivers then states (Local Drivers)3 1 The union contact indicates that meals be taken between the forth and sixth hours of the workday Company policy in regards [sic] to coffee stops No driver will be permitted to stop for coffee at the beginning of the tour of duty until after he/she has made the first delivery and/or pickup Also, since 1971 there has been posted on Respondent's bulletin board a notice from a prior terminal manager The notice repeats the above-quoted rule and adds The first offense will receive a warning letter and the second offense will subject you to discharge Tuffs did not expressly deny knowledge of either of these printed statements of Respondent's coffeebreak rule, although he did deny getting a copy of the manual, to the extent that denial was intended to constitute a claim of lack of knowledge of the manual's statement of the coffeebreak rule, I discredit it Tuffs testified that Respondent's coffeebreak rule did not apply to him on September 28 because he was then on a "volume" run, and drivers on volume runs, as dis- tinguished from drivers on "pedal" runs, were allowed to take their coffeebreaks before their first delivery The distinction between volume runs and other types of runs (including "straight load" runs and "less than truck load" runs) is murky at best The terms are not always mutual- ly exclusive in the argot of Respondent's shop 4 Tuffs' definition of a "volume run" boils down to whether he was dispatched by a "volume" dispatcher on a particular day Blake testified, without contradiction, that while some dispatchers are considered "volume" dispatchers, they may also make other types of dispatches during a day Furthermore, Tuffs was not supported in his claim that runs are considered "volume" simply by the fact of being dispatched by a "volume" dispatcher, and he was not supported in his claim that volume drivers are exempt from Respondent's coffeebreak rule In fact, the one employee called to support Tuffs on the point, Bid- well, flatly contradicted Tuffs Bidwell, who had been employed by Respondent as a city driver for over 15 years, testified that entitlement to a coffeebreak depend- ed on the number of stops to be made If it is a one-stop run, the employee could take his morning coffeebreak before he made the stop, if it was a multistop run, he could not This is precisely the position of Respondent On September 28, Tuffs had a multistop run Howev- er, September 28 was not the first day Tuffs had stopped for coffee before making his first stop on a multistop run Each day, each city driver is required to complete a form entitled "Local Driver's Daily Trip Card" General Counsel introduced Tuffs' trip cards (actually, sheets of paper and sometimes referred to as "trip sheets") for the period of July 1 through September 29 For the 60 days 3 Parentheses are in the original 4 The transcript, p 190, L 23, is corrected to change "non-eugoly [sic] exclusive" to "non-mutually exclusive" ADVANCE TRANSPORTATION CO 907 worked,5 Tuffs took his morning breaks before his first delivery 54 times, he took his morning break after his first delivery twice, and he recorded no morning break four times Blake testified that dnvers are permitted to take morning breaks before their first deliveries only if they first ask permission, but Respondent introduced no evidence that Tuffs had ever made such a request Blake testified that he reviews each driver's trip sheets on the mornings following the evenings during which the trip sheets are turned in by the drivers Blake further testified that "a couple of months" before Tuffs' dis- charge he spoke to Tuffs about his coffee practices On direct examination Blake was asked and testified Q And tell us what that conversation was" A At that time, what we used to do was circle anything that wasn't filled out right on the trip sheet We will fill it out, put it in the driver's slot We would write on that sheet, "See me in the morning" So Dan come up to the window and I said, "Dan, see this red circle That is mean [sic] you are not telling me where you are going for coffee or where you had your coffee And that you are suppose to take your coffee after your first stop, not before it Unless the dispatcher okay's it for you" I have done that with numerous drivers Q And what were the results of this conversa- tion" A Dan says at that time, "Okay" And he walked away Q And what did he do about it A He kept it up Blake further testified that at weekly drivers safety meetings, topics other than safety are discussed includ- ing Many times this was brought up about the coffee to all of the drivers at a meeting I rephrased the rule and the policy that was behind the glass Along with other things that were minor, with the bills and everything else After that Blake was asked on direct examination and testified Q How often would the coffee policy be dis- cussed' A As often as I see the policy is being broken Q Over what period of time9 A If I find, it is hard Going through the sheets if I find three or four guys doing it again, I would hold a meeting that Thursday again Or I would let him know that night with a copy of their trip card Tuffs denied ever being spoken to by Blake about his coffeebreak practices I believe Blake spoke to Tuffs about not indicating where he took his breaks, but I do 5 Unexplained by the record is the fact that there are two tnp cards for three separate dates July 14, July 21, and July 27 1 must assume that one of the cards is misdated for each day as they show different dehvenes and different "punch in" and "punch out" times, and Tuffs is not accused of double-billing Respondent not believe Blake's testimony that he also then mentioned that Tuffs was supposed to take his break only after his first delivery Blake was halting and awkward as he in- jected the first-stop reference after he twice stated that he was lecturing Tuffs about recording where Tuffs was taking his breaks The parties stipulated that the written warning notice issued to Tuffs for taking his coffeebreak before his first stop was the only such written notice issued to any driver for the year and a half before the hearing The parties further stipulated that the discharge letter to Tuffs is the only disciplinary letter issued to any employ- ee regarding a failure to collect a certified check during that period The parties further stipulated that during the period from September 1, 1987, to the present, documents produced by Respondent pursuant to subpoena reflect the issuance of discipli- nary warnings and suspensions to drivers, other than the alleged chscnminatees, for improper park- ing procedures, excessive absenteeism, failure to report for work, negligent handling of equipment, dishonesty, theft of time, failure to follow instruc- tions, failure to advise of intended absence, wage deductions summonses, failure to check engine oil, chargeable accidents, tardiness, damage to equip- ment, driving on streets with low load limits, failure to show lunch time and place on trip card, careless- ly caused injuries, falsification of trip card, failure to take earlier lunch, failure to stow freight properly, failure to disconnect trailer hoses, failure to turn in freight documents, excessive time on breaks, drop- ping trailer on its nose, misuse of company time, failure to follow C 0 D instructions, and failure to show coffee breaks on trip cards The parties further stipulated to the introduction of "12 selected warning letters or disciplinary action letters con- cerning dishonesty, failure to follow instructions, termi- nations and the like to give [the Board] some sense of what so many of the letters that were produced relate to" (What had been produced was all written discipli- nary letters issued by Respondent in the year and one- half before the hearing ) Of the 12 warning letters pro- duced for this stipulation, 7 were for "failure to follow instructions," and they covered the following offenses that were based on reviews by Blake of the employees' trip cards (or sheets) (1) Harry Bidwell, November 16, failures, on November 15, to show on the tnp sheet the last delivery, and the lunch period and where taken, and the coffeebreaks taken, (2) Robert Lucas, November 17, failures, on November 16, to show lunchtime and where lunchbreak was taken, and failure to include the employ- ee's employee number, (3) Raymond Kopacz, November 17, failure to show lunchtime and where lunchbreak was taken, (4) John Kohn, November 17, failures, on Novem- ber 15, to show lunchtime and place, and, on November 16, failure to show lunchtime and place and failure to punch out, (5) Lawrence Riley, November 17, failure, on November 15, to show place of lunch and, on November 16, not showing first and last pick up, not showing the 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD place of lunch, and not punching in or out, (6) Robert Radatz, November 17, failure, on November 15, to show lunchtime and place, and failure, on November 16, to show place where his lunch was taken and failing to punch out A seventh "Warning Letter [for] Failure to Follow Instructions" was also introduced, but It was not based on a review of trip sheets, this was a July 7 letter issued by Zudycki to Levester Pittman for failure to take lunch at a time when he was specifically told to do so Finally, the parties stipulated to the introduction of a letter to Kopacz dated December 14 entitled "One Day Suspension For Failure to Follow Instructions" The letter recites the warning of November 17 and suspends Kopacz for I day for failure to collect a COD of $18825 on December 13 Respondent introduced several other disciplinary let- ters to the Bedford Park employees 6 The letters includ- ed (1) a July 15, 1986 "Warning Letter for Failure to Follow Company Procedures" to Philip McGuire for failure to turn in a tach-o-graph card, (2) a July (day of letter obliterated) 1987, letter to James Lehto entitled "Warning Letter for Delay of Freight while on an Ex- cessive Coffee Break" which recites that the employee was observed taking a coffeebreak of 35 minutes (while only 10 minutes is allowed) and further recites that the warning is "for stealmg company time", an August 1, 1986 letter to Cosmo Vivinto for being observed taking a 35-minute coffeebreak, and a May 12, 1988 "Warning Letter for Theft of Time" to James Corcoran for taking a 20-minute coffeebreak Finally, Respondent introduced three letters to em- ployee Daniel Murray The first is dated March 23, 1983, it is from Horvath, it is entitled "Letter of Suspension Pending Further Investigation", and it states On Wednesday, March 23, 1983, our Safety De- partment observed your vehicle making one unau- thorized stop before your first delivery Your umt was also observed empty and unattended for a penod of time exceeding one hour from 10 20 a m until 11 25 a m This letter is to confirm the fact that you were placed on suspension pending a full and complete investigation of this incident You will be notified of the outcome as soon as it becomes available to us A letter from Horvath to Murray, dated March 25, 1983, and entitled "Letter of Discharge," recites that Re- spondent's investigation had disclosed 1 You made an unauthorized stop before your first delivery 2 You falsified the length of time it took to de- liver your first delivery to your dispatcher 3 You turned in a trip card with false informa- tion regarding this delivery or show any reason for the delay According to this record, this is the only disciplinary action that is, in whole or in part, based on an employ- 6 Respondent also Introduced disciplinary letters Issued to employees at other terminals, these are not relevant ee's making some sort of unauthorized stop before his first stop, other than that issued to Tuffs (The third letter issued to Murray is dated Apnl 8, 1986, for being observed taking excessive time on a break, Horvath testi- fied that Murray had been reemployed pursuant to a gnevance and arbitration proceeding ) 5 Activity and termination of Bauldry Donovan Bauldry was hired by Zudycki on April 14, exactly 2 weeks after the compulsory profit-sharing plan had gone into effect Bauldry testified that Zudyclu told him that he could expect to work "every day" until Christmastime, and that Zudycki told him that "I could expect to work there forever more or less "7 Bauldry testified that he campaigned for the Eagle slate of candidates in the internal union election of Sep- tember 10, but there is no claim of supervisory knowl- edge of this activity Bauldry got one profit-sharing check which he did not cash, as discussed below Bauldry testified that about 2 weeks after the checks were distributed on August 25, he was called into Blake's office where Blake told Bauldry that another driver had told Blake that Bauldry "was saying bad things about the company" Bauldry denied it, and then the conversation turned to profit sharing On direct examination Bauldry was asked and testified Q What did Blake say and what did you say? A Rich told me that it was money I wouldn't have had anyway, that the company needed this money to survive and that I should stop making jokes and comments about it with the other drivers He also told me there were other drivers out there that were opposing the profit sharing program and the program [sic] in general at Advance, and that the company knew who they were and that they would get all these drivers eventually, that they wouldn't be working at the company Q Was anything else said in this conversation? A He warned me not to get mvolved with these people I knew the people he was talking about, they were Harry Bidwell, Charles Coleman and Al Brown 8 I told him that I knew Harry from work- ing on cars, that I do custom car work I told him that Al Brown says "hello" to me every morning He said, "Don't associate with these people I know you are a good worker and I know you work your ass off You don't even take coffee breaks" He says, "I would like to see you stay here at Ad- vance" He says, "You know, you are going to be the next guy to put on," and then he clarified him- 7 Horvath testified that no employee would ever have been given such a promise of employment "forever," and Respondent argues that this tes- timony demonstrates mendacity on the part of Bauldry I disagree Zu- dycki did not testify, and I will not assume that he did not, at least, give Bauldry the impression that he could work there indefinitely, albeit not during Christmastime e While It was, and is, clear enough from the way he stated it, Bauldry also freely acknowledged on cross-examination that it was he, not Blake, who had used other employees' names in the conversation I therefore reject Respondent's argument that Bauldry was, at this point, attempting to deceive the trier of fact ADVANCE TRANSPORTATION CO 909 self He said he didn't know if I was the next guy to get regular status, but that I was definitely in the next group to get regular status [at] Advance He told me not even to talk to Al Brown 9 or any of those guys He said, "Don't even say 'hello' to them guys" He said, "that is why Richard Kubat is not working nght now" Q What did Richard Blake say about Rich Kubat? A He gave me the warning and told me this is why Rich isn't working, because he didn't want to go along with the programs Q Did Mr Blake specify what programs Mr Kubat didn't want to go along with? A The general program, whatever the contract was, the way that men, you know, weren't being put on, you know, full-time Just the whole way things were done between the Union and the Com- pany at Advance, that Rich didn't like it, and that is why he wasn't working Q Who is Richard Kubat? A Richard Kubat is the driver who told me about the job at Advance Transportation On cross-examination Bauldry testified that before this conversation I had talked against the [compulsory profit-shar- ing program ] In fact, myself and the other drivers, we would be joking about it It got so serious at one time they were even cutting jokes over the company radio Bauldry acknowledged that, at the time of the conversa- tion with Blake, his activity (apparently referring to the "joking") had ended, and his only opposition to the com- pulsory profit-sharing program at that point was support of the Eagle slate and a refusal to cash his check (for $1 81) issued pursuant to that program on August 25 On the basis of Bauldry's testimony about his conver- sation with Blake, General Counsel alleges that Respond- ent (a) created an impression among its employees that their union activities were under surveillance (b) threatened employees with unspecified retalia- tions because of their activities on behalf of the Union (c) threatened its employees with discharge be- cause of their activities on behalf of the Union (d) Instructed an employee that he could not talk to certain union members concerning union matters (e) threatened an employee with loss of job ad- vancement because of his union activities and sym- pathies Blake testified that Bauldry had experienced a steadily declining performance record According to Blake I had a talk with Mr Bauldry one night I stayed late to check on some drivers that were coming in 9 See the preceding footnote He walked into the [overage, shortage and damage] department I said, "Don, you know you have a good chance to be put on steady here if you get off the laziness and improve yourself " And I basically told him to improve himself And I talked about the profit sharing You know, the company needs the money And I just told him basically like I tell every new driver that comes in as a replace- ment If you want to get hired on here steady, keep your face Keep your nose clean Stay out of trou- ble Stay accident free and do your work Later in direct examination, Blake was asked and testi- fied Q Did you have any discussions with Mr Bauldry about his opposition if any to the pension and profit sharing plan? A No, when I had that meting with Mr Bauldry all I said to him was the company does wish you [to] join And that was it He said, "no," and Q And what? A And that was it He never pushed it anymore Blake's reference to "pushed it" is not explained in the record Blake denied telling Bauldry that Respondent was going to discharge those who opposed the profit- sharing program or making any other such statement He further denied mentioning Kubat to Bauldry The compulsory profit-sharing program had been in effect since 2 weeks before Bauldry was hired There- fore, there was absolutely no reason for Blake to have told Bauldry that "the company does wish you to join" Although given ample opportunity to explain why he would have asked Bauldry to join the compulsory pro- gram, Blake could not Nor is there any suggestion in Respondent's brief of why Blake would have made such a request, even though General Counsel stressed the point at trial For this reason I discredit Blake in some, but not all, of his denials of Bauldry's testimony I believe Bauldry's testimony that Blake said that Re- spondent knew which employees were opposing the compulsory profit-sharing plan, and that all of them would be discharged I reject Respondent's argument that the threat could not have been made because, if car- ried out, Respondent would not have enough employees to operate That a threat is broad has never been held to constitute evidence that it could not have been uttered Bauldry was credible in his recounting of the threat, and I believe that, at minimum, Blake made the threat to convey the impression that those who continued in their opposition to the compulsory profit-sharing program were to suffer discipline, including discharge, thereafter I further believe, and find, that Blake told Bauldry that his contmued resistance (by "cracking jokes" or other- wise) to the compulsory profit-sharing program would result in his not being made a seniority employee There is no other reason for Blake's testimony that he told Bauldry to "keep his nose clean", Bauldry had not been accused of any misconduct, and it is clear that the grava- men of the warning related to those involved in oppos- ing the compulsory profit-sharing program (Moreover, 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD although Bauldry was somewhat awkward in recounting the subject conversation with Blake on direct examina- tion, he was clear and convincing when asked to repeat these threats on cross-examination ) I do not, however, believe Bauldry's testimony about Blake's references to Kubat Kubat testified that he op- posed the profit-shanng program, but he did not testify that he had done, or said, anything about it Specifically, Kubat did not testify that he had been one of those "cracking jokes" about the compulsory profit-sharing program General Counsel apparently takes the position that, even though Kubat had not engaged in activity that would have engendered animus on the part of Respond- ent, Blake must have suspected him of such There is no evidence, other than Bauldry's testimony, that Respond- ent harbored such suspicion Moreover, Kubat is a slow, inarticulate individual, and It is unlikely to the point of disbelief that Respondent suspected him of advocacy or other activity protected by the Act Bauldry testified that he worked steadily until Decem- ber 14 when he stopped receiving assignments from Re- spondent's dispatchers 10 On December 31 Bauldry re- ceived a letter, dated December 28, from Blake stating "This is to advise you that we are discontinuing your services as a replacement driver as of December 28, 1988" Blake testified that in December Respondent's business "slowed down tremendously," but he did not testify that this slowdown had anything to with the discontinuance of Bauldry as a replacement dnver On direct examina- tion Bauldry was asked and testified Q Mr Blake, tell the Administrative Law Judge specifically why, on December 28, 1988, you termi- nated Mr Bauldry? A I felt that after going through all of my work cards, that Mr Bauldry's work production was way down And there was no way after talking to him he tried to get it up, it was going to help So I felt that it would be beneficial to the company, I had other drivers below him that I have talked to that changed their ways around and did 190 [sic] degree turnabout and really improved themselves Where Mr Bauldry just kept that one pace It seemed like he Just didn't want to improve To benefit the company I made the decision to keep the better men The term "below him" was a reference to a roster of re- placement drivers of whom there were 12 at the time of Bauldry's discharge As Blake testified without contra- diction, there is an agreement with the Union whereby Respondent is required to change the status of replace- ment drivers to seniority drivers in the order of the re- placements' first being hired as a replacements Accord- ing to this agreement between Respondent and the Union, Bauldry would have been the next driver to be made a seniority employee after those three '° The failure of Respondent to assign Bauldry work between Decem- ber 14 and December 31 is not alleged as a violation of the Act, nor was the matter litigated While General Counsel put in about 60 trip sheets in Tuffs' case, he did not introduce the trip sheets of Bauldry or adduce any other evidence to dispute Blake's testimony that Bauldry's production had steadily de- clined over the last several months of his employment Nor does General Counsel dispute Blake's premise that a drop in number of deliveries reflects poor performance B Analysis and Conclusions The General Counsel has the burden of establishing a prima fame case sufficient to support an inference that union or other protected conduct was a motivatmg factor in Respondent's action alleged to constitute dis- crimination in violation of Section 8(a)(3) or (1) of the Act Once this is established, the burden shifts to Re- spondent to demonstrate that the alleged discriminatory conduct would have taken place even in the absence of the protected activity 11 To prove that union or protected, concerted activity was a motivating factor in Respondent's decision to dis- charge the Charging Parties, General Counsel must first show that the Charging Parties engaged in such activity and that Respondent knew it Kubat acknowledged that, although he knew of the Eagle slate, he did not support it Tuffs and Bauldry tes- tified that they supported the Eagle slate, but there is not a scintilla of evidence that any of Respondent's supervi- sors knew about this support There is also no evidence that Respondent had any hostility toward the activities in support of the Eagle slate Accordingly, I find and con- clude that General Counsel has failed to prove a prima fame case in support of the 8(a)(3) allegations that the Charging Parties were discharged because of their sup- port for the Eagle slate, and those allegations must be dismissed There is also no evidence that Respondent knew that Kubat opposed the compulsory profit-sharing program and, on my credibility resolutions stated above, I find that there is no evidence that Respondent suspected him of such Therefore, the allegation that Kubat was dis- charged because of his protected, concerted activities in violation of Section 8(a)(1) of the Act must also be dis- missed The questions that remain are whether Respondent knew or suspected that Tuffs and Bauldry engaged in the protected, concerted activity of opposing the compulsory profit-sharing program, whether Respondent bore any animus toward such protected, concerted activity, whether any such animus was a motivating factor in the discharges of Tuffs and Bauldry, and whether Respond- ent has shown that, even in the absence of any such mo- tivation, Tuffs and Bauldry would have been discharged While Blake made categorical denials of knowledge of any support of the Eagle slate by Tuffs or Bauldry, he made no denial of knowledge of their opposition to the compulsory profit-sharing program, and there is suffi- cient evidence of that knowledge Because Tuffs had re- " Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cu. 1981), cert denied 455 US 989 (1982), approved in NLRB v Transporta- tion Management Corp, 462 U S 393 (1983) ADVANCE TRANSPORTATION CO 911 fused to participate in the program when it was volun- tary, Respondent would necessarily have known that he did not favor it More than that, in 1986 Tuffs was threatened by Horvath that his refusal would cause a layoff This undemed threat by Horvath demonstrates knowledge of Tuffs' opposition, even to the voluntary plan Further undemed is Tuffs' testimony about the "cam- paign" meeting conducted by Operations Manager Car- roll before the first referendum on the compulsory profit- sharing program Tuffs spoke up and called for a show of hands of those who agreed with Carroll Only two employees raised their hands, a fact that neither Carroll nor any other member of management's team would likely forget Also undemed is Tuffs' testimony that, on the morning of the first referendum, he offered a petition opposing the compulsory profit-sharing program to Zudyclu Zu- dyclu told Tuffs to "get that thing away from me" Al- though Zudycki could hardly have been expected to sign the petition, he was also unlikely to forget who offered it to him Moreover, there is ample evidence that Tuffs contm- ued his opposition to the compulsory profit-sharing pro- gram until his discharge, and there is sufficient evidence of Respondent's knowledge of this continued resistance Tuffs announced in the April 27 gnevance heanng, in the presence of Carroll, that the opposition to the com- pulsory profit-sharing program would continue as long as the employees were denied a choice in the matter There is no reason to believe that Respondent did not take Tuffs at his word Moreover, Tuffs refused to take physical possession of the check issued on August 25, he attempted to return it to Zudyclu and Horvath, then he left it, for all to see, in his pay box This was an action of continued resistance, and it was essentially coincidental with Blake's expressions of animus to Bauldry, both having occurred in September Bauldry testified that about 2 weeks after the profit- sharing checks were distributed on August 25, Blake ad- monished him against making jokes about the program and threatened to discharge those who opposed the pro- gram Although Blake denied threatening Bauldry, he did not deny admonishing him about the jokes This tes- timony proves both knowledge of Bauldry's protected, concerted activity in ndiculmg the compulsory profit- sharing program and a desire on the part of Respondent to have such opposition stopped Therefore, Respondent's knowledge of the protected, concerted activities of Tuffs and Bauldry has been proved Respondent considered the compulsory profit-sharing program vital to its continued existence This point was made clear both in the stipulated arbitration report and in the testimonies of Blake and Horvath This being the case, it is unlikely that Respondent failed to take note of those who opposed the program, and it is unlikely that it regarded them as anythmg but a threat After all, the Union agreed to the compulsory profit-sharing program only after an employee referendum supported it, another such referendum, after the present program expires in 1991, could yield the opposite result, and Respondent knows it Therefore, I reject Respondent's arguments that it could not have cared who opposed the compulso- ry profit-sharing program, and could not have borne any animus toward such employees Of course, the clearest evidence of animus is contained in the credited testimony of Bauldry that Blake told him that, not only should he stop the jokes about the compul- sory profit-sharing program, he should not associate with those who were opposing the program Blake further told Bauldry that Respondent knew who had joined in such opposition, that they would be discharged, and that, while Bauldry was a good worker, he imperiled his being made a seniority driver by continued association with those who opposed the compulsory profit-sharing program As well as constituting evidence of unlawful animus, the statements by Blake to Bauldry further con- stituted violations of Section 8(a)(1) of the Act, as I find and conclude Respondent argues that Bauldry's "joking" was too remote in time to his discharge for there to have been any nexus between that protected, concerted activity and the discharge Bauldry did testify that, after Blake's threats and instructions, he stopped associating with those whom he believed to have supported the compul- sory profit-sharing program 12 However, the argument that the lapse of time between the activity and the dis- charge defeats any theory of unlawful motivation is a cynical argument that, because Blake's unlawful threats were successful, General Counsel has failed to prove evi- dence of motivation This cannot be the intent of Wright Line 12 It is more logical to conclude, as I do, that the evidence of animus toward Bauldry's protected, concert- ed activity endures until effectively disavowed and repu- diated, an element not present m this case Therefore, I find and conclude that General Counsel has proved prima fame violations in the discharges of Tuffs and Bauldry, and the stated reasons for Respond- ent's actions must be examined Respondent contends that Tuffs was discharged solely because he committed three offenses of the same rule within 6 months, the third being his failure to collect a C 0 D on September 28, the second being the taking of a coffeebreak before his first delivery on September 28, and the first being his failure to count pieces on August 12 The validity of the August 12 warning is not ques- tioned by the complaint and, as I have found, there is no question that Tuffs violated instructions when he failed to collect the C 0 D The determmmg questions in this case center on the validity of Blake's use of the coffee- break violation in Respondent's "three-strike" discipli- nary procedure On Thursday, September 29, Tuffs was handed a note stating that he was suspended on Friday, September 30 On September 30, he approached Zudycki who stated that he did not know why Tuffs was suspended on that date Tuffs then approached Blake who (in front of em- ployees Leicht, Larson, and Jugs) told Tuffs that he had 12 Blake knew that Bauldry ceased such associations and activities, there is no other explanation for Blake's testimony that Bauldry "never pushed it anymore" 12 See fn 11, supra 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD failed to collect a COD, that that was his "second" violation, that he was suspended for that Fnday, and that he should return to work on the following Monday, Oc- tober 3 Blake testified that he found out about the C 0 D matter after he found out about the coffeebreak violation on September 29 However, had that testimony been true, Tuffs would probably not have received a note of mere suspension on September 29 (for September 30), Blake would probably have mentioned the coffee- break violation to Tuffs on September 30, and it is abso- lutely certain that Blake would not have told Tuffs to return on October 3 The only way to reconcile Tuffs' undisputed testimony of what he was told by Blake on September 30 and the letters which Tuffs was subsequently sent is to conclude, as I do, that Blake did not know of the coffeebreak matter until after Tuffs had come and gone on Septem- ber 30 Then Blake went looking for another colorable violation of Respondent's disciplinary rules by Tuffs Blake thought he found it in the coffeebreak matter Ap- parently sensing that a violation discovered as a result of an unlawfully motivated search will not support a dis- charge," Blake "reorganized events," as argued by Gen- eral Counsel, by concocting the story that the coffee- break matter was discovered first, Tuffs was suspended for that, and that the C 0 D matter was Tuffs' third (not second) violation and the violation for which he was dis- charged However, what Blake had found as a result of his search for a reason to discharge Tuffs was merely evi- dence of a recurring, minor," phenomenon for which no other employee had received more than a verbal re- mmder As noted, for 54 of the 60 days preceding dis- charge, mcludmg the day before his suspension, Tuffs showed on his trip sheets that he had taken his coffee- breaks before his first stops Nothing was said, or done, about it, even though Blake testified that he reviewed the trip sheets each day 16 Nor did Blake do anything about it when other drivers repeatedly took their first break, without permission, before their first stops, except to make a general announcement at the weekly drivers' meetings, which is all that Blake did about it 17 Therefore, while Tuffs did violate the coffeebreak rule, other employees had done it also However, while Respondent had issued written notices to other employ- ees for all manner of possible violations of disciplinary rules, it had never before issued a warning notice to any employee for talung his coffeebreak before his first stop, 14 Indeed, as stated by the Board, "misconduct discovered during an investigation undertaken because of an employee's protected activity does not render a discharge lawful" lOcIde, Inc , 294 NLRB 840, 841 fn 3 (1989) " As so described by Blake, himself, as he related how he handled coffeebreak violations by the local dnvers, supra 16 I have already discredited Blake's testimony that he once verbally warned Tuffs on this matter as he claimed Certainly, had Blake done so, and Tuffs had "kept it up," as Blake stated, and had Blake considered the matter other than "minor," Blake presumably would have would have done something about it, such as issue a written warning notice, or sus- pension, earlier i7 Blake testified "Going through the sheets, if I find three or four guys doing it again, I would hold a meeting that Thursday again Or I would let him know that night with a [note to see me] on their trip card" even though, as Blake admitted, other employees had committed the same offense repeatedly 18 Previously, the offense was met with no action (as was true in the case of Tuffs) or the offending employee got a note, or a verbal reminder, or had to listen to the rule again in a group meeting However, after Respondent reorganized the events, Tuffs was discharged for taking his coffee- break before his first stop Finally, although other employees had committed mul- tiple infractions on a single day before Tuffs' discharge, and other employees did commit multiple infractions on a single day after Tuffs' discharge, no other employee who committed multiple infractions on a smgle day re- ceived multiple disciplinary letters for multiple infrac- tions on a single day, except Tuffs See the first six warn- ing notices listed above, further note that other employ- ees were given one notice for different infractions on dif- ferent days This is the epitome of discriminatory action, and I ac- cordingly find that General Counsel has proved that Tuffs would not have been discharged absent Ins protect- ed, concerted activity of opposing the compulsory profit- sharing program, and I conclude that, by his discharge, Respondent violated Section 8(a)(1) of the Act However, General Counsel has not shown that, absent the animus against him, Bauldry would have been re- tained as a replacement driver General Counsel did not object to Blake's conclusionary representations that Bauldry's production had steadily declined Nor did General Counsel demand production of the records that could possibly have proved Blake's representations to be false Nor did General Counsel call Bauldry to rebut Blake's testimony that Bauldry's production had de- clined Nor did General Counsel adduce any evidence that Bauldry was the victim of discriminatory treatment In this posture, it cannot be said that Bauldry's discharge violated the Act CONCLUSIONS OF LAW 1 By the following acts and conduct Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act (a) Creating an impression among its employees that their protected, concerted activities were under surveil- lance (b) Threatening its employees with discharge because of their protected, concerted activities (c) Instructing an employee that he should not associ- ate with certain other employes because of their protect- ed, concerted activities (d) Threatenmg an employee with loss of job advance- ment because of his protected, concerted activities (e) Discharging an employee because of his protected, concerted activities under the Act 2 Respondent has not otherwise violated the Act 18 See the preceding footnote ADVANCE TRANSPORTATION CO 913 REMEDY Having found that the Respondent has engaged in cer- tam unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act The Respondent having discnminatonly discharged an employee, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, com- puted on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as computed in New Ho- rizons for the Retarded, 283 NLRB 1173 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edi9 ORDER The Respondent, Advance Transportation Company, Bedford Park, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Creating an impression among its employees that their protected, concerted activities were under surveil- lance (b) Threatening its employees with discharge because of their protected, concerted activities (c) Instructing an employee that he should not associ- ate with certain other employes because of their protect- ed, concerted activities (d) Threatening an employee with loss of job advance- ment because of his protected, concerted activities (e) Discharging any employee because of his protect- ed, concerted activities under the Act (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 19 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 m Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Daniel A Tuffs Jr immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the dis- crimination against him in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharge of Daniel A Tuffs Jr and notify him in writ- ing that this has been done and that the discharge will not be used against him in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order (d) Post at its facility in Bedford Park, Illinois, copies of the attached notice marked "Appendix "20 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent 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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in wntmg within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found 2° If this Order is enforced by a judgment of a United States court of appeals, the words m 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"