Jmc Transport, Inc.

JMC TRANSPORT 545 JMC Transport, Inc. and Lemuel Marina. Case 9- CA-17694 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 11 February 1983 Administrative Law Judge Burton S Kolko issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief 1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 2 and conclusions and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, JMC Transport, Inc, Jeffersonville, Indi- ana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as paragraphs 1(a) and (b)"1 Cease and desist from 1 The Respondent has requested oral argument The request is denied as the record, exceptions, and bnefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to some of the judge's credibility find- ings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In adopting the judge's conclusion that the Respondent violated Sec 8(a)(1) by discharging employee Lemuel Manna, we find that Manna en gaged in actual—not implied—concerted activity and was discharged therefor In finding Marina's activities concerted, we rely on the meeting that Manna and his co dnver, Terry Cathey, had with Thomas Denman, the Respondent s operations manager, to complain jointly about a change in the way wage payments were calculated, a matter of past practice re garding a term and condition of employment This meeting establishes the concerted nature of Manna s actions as well as the Respondent s knowledge that this complaint was concerted Thus, although the 3 No- vember exchange between Manna and Denman—occurring 2 days before Manna's discharge—was tnggered by Marina's complaint regarding a payment discrepancy in his own paycheck, this confrontation grew out of the earlier concerted complaint regarding the same subject matter, 1 e the change in the pay structure Accordingly, Manna's pay protests were a continuation of protected concerted activity and, for the reasons set forth by the judge, we find that those protests caused his discharge Cf Meyers Industries, 268 NLRB 493 (1984) Member Hunter notes that in some circumstances activity which re lates back to concerted activity may be too remote to retain its concerted nature Here, only a month had elapsed since Manna had concertedly complained with his co-dnver of the adjustment in wage payments "(a) Discharging employees because they protest changes in the terms and conditions of employment or engage in other protected concerted activities "(b) 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 Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs "(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" 3 Substitute the attached notice for that of the administrative law judge CHAIRMAN DOTSON, dissenting I do not agree with my colleagues' conclusion that Lemuel Marina engaged in concerted activity when he individually complained to management that his check did not include an unloading pay- ment to which he felt entitled A review of the background of this dispute will help to put the issue into focus In September Marina discovered that the Respondent had changed its policy regard- ing unloading payments Under the new policy, drivers would not be paid for unloading palletized goods Marina confronted his supervisor, Denman, to protest the change and was told that the previ- ous payments had not been authorized At some point in early October, Marina and his co-driver, Cathey, had a meeting with Denman on yet another issue—to verify the rumor that the Company had reduced the percentage the employ- ees were being paid on gross revenues On 3 No- vember, a month later, Marina angrily confronted Denman about an entirely different issue, i e, an al- leged shortage in his paycheck resulting from the Company's nonpayment for his unloading of a pal- letized load He was discharged 2 days later Although Marina may have been discharged for complaining, in my view he was certainly not dis- charged for complaining concertedly The majority finds that the 3 November encounter with Denman "grew out of' the earlier meeting attended by both Marina and Cathey This incantation merely blurs the issue and serves to conceal the fact that there is no evidence to support the view that the 3 Novem- ber complaint involved concerted activity It is sig- nificant that there is no evidence showing that Cathey and Marina agreed between themselves to pursue the subject matter further Furthermore, during the discharge- triggering incident, Marina 272 NLRB No 86 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made no reference to his earlier concerted activity which had as its basis an entirely different concern, which was a complaint over a reduction in the rev- enue percentage to which drivers were entitled 1 The 3 November complaint did not involve the percentage-cut issue but was a repetition of Mari- na's original complaint regarding nonreceipt of payment for unloading commodities at the time of delivery to the consignee For these reasons I do not find that Marina was discharged for complain- ing concertedly 1 Contrary to my colleagues, I do not view the complaints as stem ming from the same ongin Although both complaints onginated from a pay discrepancy based on a changed compensation policy, the discharge tnggenng complaint was based on a change in unloading payments and the concerted complaint was based on a reduction in the percentage dnv ers were paid on the gross revenue of a tnp APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT discharge employees because of their protected concerted activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Lemuel Marina immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way JMC TRANSPORT, INC DECISION BURTON S Kouco, Administrative Law Judge Lemuel Marina, a driver for the Respondent, was dis- charged for having beer in his truck Alleging that this was a pretext, the General Counsel seeks a finding that Marina was discharged for his union or other protected concerted activities I grant the General Counsel's re- quest The Discharge Marina's discharge occurred on November 5, 1981, 2 days after beer allegedly was found in his truck The supposed discovery of beer is a bizzare episode that goes to the heart of this case and affects its resolution On the afternoon of November 3, Marina pulled into Respondent's terminal while en route to Columbus, Ohio, from Greenville, Kentucky, with the rest of a load that he had picked up in California He parked his rig near the mechanic shop to offload some dead batteries that had been replaced while he was en route After leaving the compound, he returned later in the day to pick up his paycheck for a previous run to California Noting that the paycheck omitted an unloading fee that he thought was due him, Marina angrily confronted Tom Denman (operations manager) and Deanna Owens (gen- eral manager) and, unsatisfied, left the premises At 5 p m the shop mechanic "J R" Denman moved Marina's rig to the parking lot He testified that the driv- er's door would lock only from the inside, which re- quired him to leave by the passenger's door and lock it from the outside As he was changing positions and leav- ing, he testified he saw beer cans (Colt 45) under the pas- senger's seat Two cans remained affixed to a plastic six- pack tie, and several pulled tabs were strewn about the cab J R locked the truck, put the keys in the office, and went home with his uncle Tom Denman The rest of Marina's load was due in Columbus the next day Late that evening, Marina returned to the ter- minal to complete his delivery Finding the truck locked, Marina drove to a nearby truckstop and called Tom Denman at home, after first calling Respondent's dis- patcher, Hayes Marina reached Tom Denman at ap- proximately 10 p m and told him that he was at the ter- minal but could not get into his tractor because it was locked Tom Denman told Marina he would come to the terminal and attempt to locate the keys so Marina could make his delivery Marina responded by saying that he would be waiting for Denman Tom Denman, described by J R Denman as a "nerv- ous" type of person, took Marina's last comment as a threat After telephoning Deanna Owens, he telephoned J R and requested that J R accompany him there He stated that the request was because Marina had sounded hostile on the telephone and possibly was intoxicated or JMC TRANSPORT 547 drugged J R then told Denman about the beer he had seen when locking Marina's truck Denman next called Respondent's security contractor, Ernie Keck, and ar- ranged for Keck to be picked up by the two Denmans en route to the terminal They arrived about 11 50 p m, found the area secure, but did not find Marina After waiting for another one- half hour, they left Keck was driven to his car and re- turned to Respondent, where he stayed until 7 a m, when Owens arrived Keck told Owens why he was there, including that when the Denmans and he had unlocked Marina's truck while waiting for Marina, they had seen the beer that J R had seen earlier Owens, in turn, related these events to Broaddus, Respondent's president, when he arrived later Broaddus thought that Marina should be terminat- ed, but said that Tom Denman should be consulted first Moreover, since Denman had locked Marina's keys in his desk drawer the previous midnight, access to the truck awaited Denman's presence Denman did not arrive until mid-day, whereupon he, Owens, dispatcher Tom Hayes, and Shop Foreman Bill Sanders went out to inspect the truck In Owens' words, "It was immaculate" There was no beer Tom Denman, nevertheless, advised Owens to terminate Marina for having beer in his truck But Marina was not there, and Broaddus had left because his son had just been in a car accident So Broaddus and Owens did not meet with Marina until the next day, No- vember 5 When they did, 'Broaddus asked Marina why he had beer in his tractor when he knew it was against company policy Marina's heated response was "What beer? Show me the beer" Asking whether he was being terminated, Marina was told by Broaddus that he was, whereupon Marina called those present "a bunch of lying bastards" and left The remainder of Manna's load was dispatched to Columbus that day, after the consignee was notified on the 4th that delivery would lie a day late From this we are asked by Respondent to believe that Marina was discharged either because he violated com- pany rules (and D 0 T regulations) by having beer in his tractor, or for having violated company rules by failing to make a scheduled delivery The beer episode is incredible J R Denman and Ernie Keck testified that they saw two unopened Colt 45 beer cans in Marina's locked tractor just before midnight on November 3 1 They also testified that Tom Denman locked the keys to the locked truck in his desk drawer, and J R testified that Tom Denman (and he) did not get to work until almost 12 hours later because Tom Denman needed a new muffler on his car and had it put on during the morning of November 4th When he ar- rived, Tom Denman, Deanna Owens, Broaddus, and others trooped out to the truck with the keys from Den-‘ man's desk The tractor was opened and, after a thor- ough search, was found to be either "immaculate," in the words of Deanna Owens, or to contain "a bunch of pa- perwork, an overfilled ash tray, a cola can in the bunk, and a bunch of stereo tapes" according to Shop Foreman 1 And of course, J R testified that he had seen it at 5 p m that same day Sanders No wonder Marina's incredulous response to the accusation made to him 24 hours later was "What beer'?" Respondent deals with this missing beer with a maxi- mum of five words in its brief "The beer had been re- moved" How the beer was removed is left to my imagi- nation, which balks at this implied invitation Was it re- moved during the night, when Keck stood guard from 1 to 7 a m, and the building and Denman's desk were locked then? Or was it during Keck's absence while he was being driven by the Denman's to get his car? The keys were still locked in Denman's desk until almost noon, when J R says they arrived So who took the beer? On this record, nobody It was never there to be taken, or so I conclude having observed J R and Keck testify that it was Very helpful testimony on this question could have come from Tom Denman, the operations manager, and the one who, as Sanders credibly testified, said to all even after no beer was found "He had beer in his truck and we're going to have to fire him" By the time of the hearing, September 1982, Denman was no longer in Re- spondent's employ, having left under what counsel repre- sented were not hostile circumstances Yet Denman did not appear Indeed, he seems to have twice evaded Re- spondent's attempts to subpoena him Without his testi- mony and my observation of his demeanor in giving it, and in view of my finding of the lack of credibilty in the testimony of J R and Keck that the beer was there, I find no record support for Respondent's claim that Marina was discharged for possessing beer in his tractor Broaddus and Owens both believed Keck and Tom Denman that there was beer in Marina's truck, and Broadddus discharged Manna on the basis of that belief But an employer's good-faith belief that the misconduct occurred is not a defense to such discharge if it is shown that the misconduct never occurred, NLRB v Burn up & Sims, 379 U S 21 (1964), which I have found to be the case See Co-Con, Inc , 238 NLRB 283, 288 (1978), Classe Ribbon Co, 227 NLRB 406 (1976), and, regarding the General Counsel's burden of proof when the employer establishes his honest belief, Rubin Bros Footwear, 99 NLRB 610 (1952), enf denied 203 F 2d 486 (5th Cir 1953) Nor do I find that Marina was discharged for failing to make a scheduled delivery For this Respondent relies on the J R and Keck testimony that Marina did not show up at the terminal on the night of November 3 to get the keys to the locked truck in order to complete his run But Marina had been there, as he credibly testified, and finding the truck locked called dispatcher Hayes for the keys and then, at Hayes' request, called Denman That was somewhere between 9-10 p m, although nei- ther Hayes nor Marina could be sure Yet, according to Keck's report, R Exh 8, he and the Denmans did not reach the terminal until 11 50 p m 2 By this time, accord- 2 J R testified that It was 11 35 pm but he was not sure Keck, too, testified as to 11 35 p m, but I find the report he gave to Deanna Owens at 7 a m the next day the more credible evidence of the arrival time 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to Marina, he was back home watching what was left on a rerun of "Saturday Night Live," since he had waited until between 11 30-11 45 and then gone home Thus, Marina and Keck/Denmans missed each other by minutes But Respondent faults Marina for not "bother[ing] to again call Denman about the keys or the late delivery to Columbus " (Br at 13 ) In this it is somewhat aided by Marina's attitude, which was portrayed in the following cross-examination Q All right How long would you estimate you were at the terminal, Mr Marina? A Between the hours of 9—say 9 00 or 9 30 until 11 45 Q But it never occurred to you during any of that time to call to see if Mr Denman were on his way? A No Q How about when you got home, did you call him? A No Q Did you just not care? A Yes, sir That's basically, that's what _ hap- pened I didn't—I weren't no more concerned about it because he had more than ample time to come from his house to J M C Terminal and give me the keys to the truck And company policy had stated the way it were, all of this never would have hap- pened in the first place 3 From this Respondent proffers the conclusion that "[l]n failing to make the scheduled delivery, Marina vio- lated the JMC company policy [which] required drivers to advise the office when they cannot meet their delivery schedules "(Br at 13 ) But it strikes me that Marina did make a reasonable effort to resume delivery of his load He went to the ter- minal to start out in time to arrive in Columbus for a morning delivery on the due date of November 4 4 Find- ing his truck locked, he called the dispatcher, who told him to call the operations manager, which he did He waited vainly at the terminal for at least 90 minutes for the operations manager to make a 30 minute drive to the terminal, after which he went home He then reported to the terminal the next morning, but was told by Owens that Denman had his keys and was not there Thus, I conclude, in the words of the General Counsel, which aptly sum up my own deep skepticism of Respondent's case, that "by its own actions, Respondent was responsi- ble for preventing Marina from completing the delivery The very fact that Respondent claims that Marina's fail- ure to deliver the load was grounds for termination is a 3 Tr 118-119 4 There is no Issue whether Manna acted properly in leaving the ter minal when he brought his truck in earlier in the afternoon and not re summg his delivery until after the terminal had closed for the day Re- spondent's dispatcher had approved the terminal stop while Manna was en route to Columbus from Greenville, Kentucky, and this was the first time Manna had brought a truck into the terminal while en route to a consignee The load was not due in to Columbus until the next morning, and the distance takes only 4 hours to traverse specious argument which raises a serious question con- cerning the veracity of its witnesses" (Br at 13) Indeed, in view of the beer debacle, Respondent's whole case is suspect The General Counsel is guilty of gross understatement in observing that "it is highly suspi- cious that only Respondent's witnesses saw the alleged beer and those same cans subsequently disappeared from a locked truck parked on Respondent's property" Br at 12 Respondent's explanations of why it discharged Marina are pretextual The real question is, for what are they pretextual? To that we now turn Protected Activities The central issue is what was Respondent's real reason for discharging Marina, for if it was because Marina was engaging in union or other protected concerted activi- ties, then his discharge would violate Section 8(a)(3) and/or Section 8(a)(1) of the Act 1 Union activities Whether Marina was passing out union authorization cards on November 5 before or after he was terminated that afternoon is in dispute Marina testified that on the morning of November 5 he went to the union hall and met with a representative of Teamsters Local 89 5 He signed an authorization card and took some as he left for the terminal On the way there he obtained the signature of Philip McCormick, another employee, whom Marina met at a truckstop Marina then attempted to solicit cards from other employees at the terminal One was Sanders, who testified that Marina approached him that morning to get his signature on a card He also observed Marina soliciting signatures from other employees that morning To refute this, the Respondent offered the testimony of J R Denman, Deanna Owens, and Russell Broaddus who testified that they were present at the hearing con- cerning Marina's claim for unemployment compensation and that they heard him testify there that he did not go to the union hall until after he was terminated Nevertheless, the weight of the credible testimony is that Marina was at the terminal passing out union cards in the morning I rely on Sanders' corroborating testimo- ny Although he admitted being friends with Marina, his testimony impressed me as given sincerely and without embellishment But it does not follow that Marina was discharged by Broaddus later that day for that activity Broaddus was relying on what Tom and J R Denman and Deanna Owens had told him about the beer in Marina's tractor (Owens' information, of course, coming just from Keck's report) There is no evidence that Broaddus had any knowledge at that time of Marina's union activities of that same day, and without that knowledge, there is no basis for linking Marina's discharge to his union activities and concluding that it was discriminatory 6 5 His motivation for doing so will become apparent in the discussion of his other protected concerted activities 6 Causley Pontiac v NLRB, 620 F 2d 122 (6th Cir 1980) While Re spondent as a small firm may be presumed to know of the union activities Continued JMC TRANSPORT 549 2 Marina's pay protests Respondent made changes in its payments to drivers for assisting in unloading deliveries These changes were instituted by Owens after she became general manager in the summer of 1981, when she concluded that her prede- cessor was erroneously overpaying the drivers Marina took these changes to violate the terms of payment he had been told would exist when he was hired in May 1981 He vehemently protested the pay changes after dis- covering in early fall 1981 that Respondent was no longer paying the drivers for loading and unloading pal- letized loads and had changed the percentage of gross re- ceipts that the drivers were receiving 7 Marina initially spoke to Tom Denman in late September, who told him that previous payments for these charges had been unau- thorized, hence the dismissal of the former general man- ager and treasurer Marina contacted these former em- ployees, who said that Broaddus had authorized the pay- ments that they had been making Marina then met with Denman and Owens and very angrily and violently argued that Respondent owed him additional unloading charges Keck, Respondent's security contractor, was called to stand by He testified that "they were arguing over the payroll There was beating of fists on the desk, there was considerable yelling going on Mr Marina was [shouting] 'You mother-fuckers are ripping us off You're not paying us right " (Tr 335) This scene was repeated on the afternoon of Novem- ber 3 After Marina unloaded the batteries he had re- placed while en route from California, he left his rig to get his paycheck for a previous run He found that he had not been paid for unloading, which he felt he was due He confronted Owens and Denman and "sort of went to pieces Q Well, what do you mean you sort of went to pieces? We assume that's not literally, what do you mean? A I was highly upset because J M C Transport or J M C Transport personnel, say their bosses or whatever you want to call them, was trying not to pay—trying to get out of—say renege on paying us, for stuff that we had been paid to do And I was totally against it Q What did you do when you sort of went to pieces? A Got angry of its employees, Galar Industries, 239 NLRB 28 (1978), there was insuffi- cient time between Marina's card solicitations and his discharge to pre- sume, without more, that Broaddus knew of It He credibly testified that he did not know 7 The percentage change was a revision in the pay formula to account for the fuel surcharge that the ICC was requiring be an integral part of the carrier's tariff charge to customers While the percentage figure for dnver pay was reduced, the base the percentage was applied to was higher, resulting, as Owens credibly testified, in a slight benefit to the drivers The loading policy was tightened so that drivers were paid a premium for loading or unloading a floor load, not a load that was on pallets (the premise apparently being that the drivers did not have to assist a ware houseman using a forklift to remove pallets from the trailer, whereas they did when dealing with a load piled on the trailer's floor) Q What did you do? A What did I do? Q Yeah, what did you do? A Oh, I got into an argument I lost self-control Q All right, what did you— A I started arguing with Mr Denman Q What did you say? A About not paying us for unloading the load Q What did you say? A I told him that I was tired of them trying to cheat or take away all of the benefits that this com- pany had promised us and that every time it seemed that when we go out, come back in [sic], they either going to cut this or they're not doing this or—and that I was tired of it, that I wanted to be paid in the way that was promised to me by Mr Schweitzer when I first began to work for the Company I told Mr Denman that I was tired of them screwing me or fucking me out of my money That's about the extent of what it was (Tr 97-100, 102) Respondent has two things to say about these out- bursts The first is that Marina was acting for himself, and thus, his protests about the new pay arrangement did not constitute protected activity Second, Respondent argues that Marina's discharge should be excused be- cause of Marina's rank insubordination The General Counsel's view is that Marina was dis- charged for protesting about the revisions in the pay pro- cedures, that his protest was concerted activity that is protected by the Act, and that Marina's insubordination does not excuse Respondent Protected concerted activity The test of the United States Court of Appeals for the Sixth Circuit was stated a [F]or individual action to be deemed concerted action it must be shown that the individual in fact was acting on behalf of, or as a representative of, other employees rather than acting for the benefit of other employees only in a theoretical sense The Board's test, however, allows for what the Sixth Circuit Court would probably deem "a theoretical sense", for the Board has stated, in the above ARO, Inc case, which the court refused to enforce, that "[e]ven in- dividual protest [that] redounds to the group's benefit is protected concerted activity," 227 NLRB 243, 244, citing Hugh H Wilson Corp, 171 NLRB 1040, 1046 (1968), enfd 414 P 2e1 ,145 (3d Cir 1969) 9 The Court of Appeals for the Seventh Circuit would likely reject this, since it prefers "activity for the purpose of inducing or preparing for group action to correct a grievance or a complaint" over the mere "public venting of a personal grievance, even a grievance shared by others "" 8 ARO Inc v NLRB, 596 F 2d 713, 717 (6th Or 1979) 9 A similar rationale was expressed most recently in W C Electrical Co 262 NLRB 557 (1982) '° Pe/ton Casteel Inc v NLRB, 627 F 2d 23 (7th Or 1980) 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The "tightening up" of drivers' pay by Deanna Owens when she became General Manager was an act that af- fected all the drivers and was a concern of most Sanders credibly testified that practically every driver, including Marina, had talked to him in the garage about these changes Their concern is borne out by Owens, who tes- tified that between 12-20 drivers commented in writing on the revisions when they signed acknowledgements that they had seen and read the policy changes And Marina knew that he was not the only driver who was bothered by the changes, for as he testified, credibly, that he had not only discussed them only with his co- driver Cathey (they were considered by Respondent as a California "team"), but Cathey and he met with Tom Denman in late September or early October to complain about the drop in the percentage of trip revenues that the drivers were receiving Moreover, he and five or six other drivers discussed these changes during this period The upshot is that in the several meetings and confron- tations that Marina had with Tom Denman, he was pro- testing a discontinuance of a past practice concerning a term and condition of employment that affected all em- ployees And in doing so at least once with Cathey, who corroborated Marina's testimony that he went with Marina to complain to Denman about the lower percent- age of revenues they were receiving, Marina's activity fell within the protection afforded by Section 7 of the Act to concerted activity concerning a term and condi- tion of employment " See Timet v NLRB, 671 F 2d 973 (6th Cir 1982) Insubordination Nor does Marina's insolence cause him to lose the Act's protection, as Respondent belatedly would have it For Marina was not disharged for pounding desks or cursing, not until Respondent's brief was filed on De- cember 13, 1982, is that reason given for his discharge This post hoc rationalization will not suffice, even though Marina's extremely intemperate outbursts gave Respondent ample grounds to discharge Marina But these were tolerated at the time, perhaps because, as the General Counsel suggests, "it is not uncommon for truck drivers to use such language as a means of expres- sion " 12 Perhaps But having countenanced Marina's cursing then, it ill becomes Respondent now to come forward and say, with the whole "missing beer" episode to deal with, that Marina was discharged for insubordi- nation That reason is, clearly, pretextual " To be sure, Owens, a very credible witness, explained in her testi mony the valid business reasons for changing the pay practices, and gave a lucid explanation for the percentage adjustment in the drivers share of the revenues that to troubled Manna and Cathey when they complained to Denman Denman s explanation was unconvincing to the two drivers, and they left angry, confused, and with the erroneous perception that their lower percentage cut (off a higher revenue base) worked to their detriment And Marina's angry confrontations with Owens and Denman about the lack of payment for helping to unload a palletized load were, also, due to his erroneous perception that he was due an unloading fee for such loads Thus, on the merits of the issues that he was protesting, Manna was wrong But an employee s mistaken belief about his rights under the terms and conditions of his employment does not invalidate the protected nature of concerted activity involving those nghts Cf Firch Baking Co, 232 NLRB 772 (1977) " Br at 8 CONCLUSIONS OF LAW 1 By discharging Lemuel Marina because he protested changes in pay practices and rates, Respondent has vio- lated Section 8(a)(1) of the Act 2 The unfair labor practice described above affects commerce within the meaning of Section 2(6) and (7) of the Act i 3 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, JMC Transport, Inc , Jeffersonville, Indiana, its officers, agents, successors, and assigns, shall 1 Cease and desist from discharging employees be- cause they protest changes in the terms and conditions of employment or engage in other protected concerted ac- tivities 2 Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Offer Lemuel Marina immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent job, 15 without prejudice to his seniority or other rights and privileges previously en- joyed, and make him whole for any loss of earnings suf- fered as a result of the discrimination against him 16 (b) Expunge from its files any reference to the dis- charge of Lemuel Marina on November 5, 1981, and notify him in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him (c) Post at its facility in Jeffersonville, Indiana, copies of the attached rnitice marked "Appendix "17 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- i3 Respondent, engaged in the interstate transportation of freight and commodities, is a Kentucky corporation doing business in Jeffersonville, Indiana, across the Ohio River from Louisville Dunng 1982 it derived gross revenues in excess of 550,000 in the interstate transportation of freight and commodities " If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur poses 15 On February 1, 1982 Respondent discontinued employing drivers Instead, it offered to some of its drivers the opportunity to lease equip ment from the Respondent as independent contractors The record does not indicate how Manna would have fared under this arrangement had he not been discharged a determination that awaits the compliance pro ceeding 15 Respondent shall pay to Manna a sum of money equal to what he normally would have earned as wages from the date of his disharge on November 5, 1981, to the date of his offer of reinstatement, less his net earnings during such period, with backpay computed as in F W Wool worth Co 90 NLRB 289 (1950), and with interest thereon as in Florida Steel Corp, 231 NLRB 651 (1977) Respondent shall make available to the Board upon request, all payroll and other records to facilitate check ing the amount of earnings due " 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 Na tional Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board JMC TRANSPORT 551 ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply