Georgia, Florida, Alabama Transportation Co.

National Labor Relations Board - Board DecisionsAug 1, 1975

219 N.L.R.B. 894 (N.L.R.B. 1975)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Georgia, Florida, Alabama Transportation Company and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Local Union No. 612 . Case 15-CA-5418 August 1, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On February 28, 1975, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the General Counsel filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt her recom- mended Order with the following modifications. We reverse the Administrative Law Judge's find- ings that Respondent violated Section 8(a)(1) of the Act by engaging in surveillance . The complaint con- tained no allegation of unlawful surveillance, and Respondent was never put on notice that such a vio- lation was in issue. We also reverse the Administra- tive Law Judge's conclusion that Respondent reas- signed employee Sisneros in violation of Section 8(a)(1) of the Act. In his brief filed with the Adminis- trative Law Judge, the General Counsel acknowl- edged that the evidence was not sufficient to support this allegation of the complaint. We agree. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that the Respondent, Geor- gia, Florida, Alabama Transportation Company, Montgomery, Alabama, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Delete paragraph 1(a) and substitute the follow- ing: "(a) Discharging employees or otherwise discrimi- nating in any manner with respect to their tenure of employment, or any term or condition of employ- ment, because they have engaged in concerted activi- ty or activity on behalf of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local Union No. 612, or any other labor organization." 2. Delete paragraph 1(c) in its entirety and reletter the subsequent paragraphs accordingly. 3. Delete paragraph 2(a) in its entirety and reletter the subsequent paragraphs accordingly. 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act and has ordered us to post this notice. We intend to abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their own choosing To act together for collective bargaining or other mutual aid or protection, and To refrain from any or all these things. WE WILL NOT discriminate against any em- ployees by discharging them to discourage mem- bership in International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 612, or any other labor organization. WE WILL offer Fred D. Jenkins immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job at our Montgomery, Alabama, terminal, and WE WILL compensate him, with interest, for any loss of pay he suffered because we fired him. WE WILL NOT question you about the union activities of any employees. WE WILL NOT threaten employees with dis- charge or any other detriment because they have engaged in union activities or in order to prevent employees' engaging in union activities in the future. WE WILL NOT threaten to refuse to bargain with any union the employees may choose to 219 NLRB No. 108 GEORGIA, ALABAMA, FLORIDA TRANSPORTATION CO. 895 represent them for collective-bargaining pur- poses. B. The Union is and has been at all times material here- in a labor organization within the meaning of Section 2(5) of the Act. GEORGIA, FLORIDA, ALABAMA TRANSPORTATION COMPANY DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed on September 3, 1974,' by Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 612 (the Union), a complaint was issued on October 31 against Georgia, Florida, Alabama Transportation Company (Re- spondent, referred to as "G.F.A."), alleging that in July and August , at its terminial in Montgomery , Alabama, Re- spondent engaged in numerous acts of restraint , coercion, and interference with its employees ' rights in contravention of Section 8(a)(1) of the Act,2 and on August 27 discrimi- natorily discharged employee Fred D. Jenkins in contra- vention of Section 8(a)(3) and (1) of the Act. Pursuant to due notice , a trial was held before me in Montgomery, Alabama, on December 5. All parties were represented and were afforded full opportunity to be heard , to present oral and written evidence, and to examine and cross-examine witnesses . The parties waived oral argu- ment and posttrial briefs have been filed on behalf of the General Counsel and the Respondent. Upon the entire record,; together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent, an Alabama corporation, is now and has been at all times material herein, engaged in the inter- state transportation of goods and materials at its office and warehouse in Montgomery, Alabama, the facility involved in this proceeding . During the past 12 months, a represen- tative period , Respondent received gross revenue in excess of $50,000 from its interstate transportation services. Re- spondent is now and at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act .4 i Unless otherwise stated , all dates herein are in 1974. 2 National Labor Relations Act, as amended (61 Stat . 136, 29 U.S.C. Sec 151, et seq.). 3 The transcript is so garbled and inaccurate throughout that no correc- tive order is feasible . To the extent that portions of the record are quoted herein, obvious errors have been corrected. In its answer, Respondent admitted the jurisdictional facts and "stipu- late[d] that the Employer is engaged in interstate commerce within the meaning of the Act, for purposes of this hearing , and this hearing only." The Board has previously found Respondent subject to the Board 's jurisdiction. G.FA. Transportation Company, 169 NLRB 399, 400 ( 1968). II. THE UNFAIR LABOR PRACTICES A. Section 8(a)(1) 1. Evidence Respondent is headquartered in Dothan, Alabama, and maintains terminals in other locations , including Mont- gomery and Birmingham, Alabama. Milton Adams, Respondent's president and chief stockholder,6 maintains his office in Dothan. Ralph D. Adkins is terminal manager in Montgomery and Bruce R. Bowers is terminal manager in Birmingham. It appears that, with the exception of John Henderson, who lives in Montgomery, all Respondent's over-the-road drivers live in and work out of Dothan, with the other terminals having only local, city drivers and dockworkers. Around the end of June a union organizing campaign was started and at a meeting on July 3, eight of the nine city drivers at the Montgomery terminal signed union au- thorization cards.? A representation petition was filed on July 8.8 Adams immediately embarked on an antiunion cam- paign, which was described by six employee witnesses. Ad- ams did not testify. Although Adkins was present when Adams addressed all the employees, Adkins did not testify concerning this meeting. Accordingly the employee testi- mony concerning Adams' conduct stands uncontradicted. Since it is not inherently incredible or improbable, and since , in any event, all the employee witnesses impressed me as conscientious and reliable, their testimony, as here- inafter summarized, is credited, and the only questions concern the extent to which Adams' undenied, admitted statements constitute violations of Section 8(a)(1) of the Act, as alleged in the complaint. Robert Sisneros, who apparently has been employed at Respondent's terminal since 1969 , testified that sometime in July 1974, apparently within a week after July 8, he received a telephone call at the terminal from Adams. Ad- ams said he wanted to know what the "mess" was in Mont- gomery and said that he thought he had got that matter finally straightened out 2 years earlier. The reference clear- ly was to a union campaign at the Montgomery terminal in 1972. Without contradiction, Wilson, one of the three cur- rent employees who had also been employed by Respon- dent in 1972, testified that at the outset of the 1972 union campaign James Smith, acting terminal manager, dis- charged one employee and said he would continue to fire one employee each day until they all retracted their union cards. Adams also asked Wilson to retract his union card. S Respondent stipulated to this finding at the hearing. 6 See G F A. Transportation Company, supra r The ninth employee did not attend the union meeting and has since left Respondent's employ s It was stipulated that an election was held on September 11. Because of Respondent's vigorous objection, the result of that election was not dis- closed at the present hearing 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within a few days the employees became "scared" and withdrew their union cards , thus aborting the campaign. Sisneros testified that at the request of the terminal manag- er he had withdrawn his card and had persuaded Wilson and Leo Henson to do the same. Sisneros further testified that in a telephone conversa- tion in July 1974 Adams "went talking about whether I'd signed up or whether I didn't." Sisneros declined to an- swer, saying he would just have to wait and see how things turned out. Adams then said that if Sisneros would "work along with the company," he would be assured a job for life. Adams also indicated his belief that Wilson and/or Charlie Burton were the instigators or leaders of the cur- rent campaign . Sisneros said he could not comment be- cause he had recently been on vacation and thus did not know what was going on. In mid-July, about a week after the representation peti- tion was filed , Adams, with Adkins present , spoke to all the Montgomery terminal employees. Adams said that he thought he had got the union matter all ended in 1972 and had kept three of the employees who were supposed to inform him in the event of any resurgence , but they had failed to do so. The three employees he referred to were Sisneros , Wilson , and Burton. Adams also referred to the Union 's organizing attempt at Dothan in 1966 . He spoke of the considerable amount of money (said to be as much as half a million dollars) he had spent to defeat the Union. He mentioned the loss of jobs and considerable hardship suffered by the employees in that situation . That Adams was not exaggerating by the fact that he admitted to 58 violations which "cover almost the full range of possible 8(a)(l) violations" and was found to have discriminatorily discharged four employees in vio- lation of Section 8(a)(3). G.F.A. Transportation Co., supra. Adams opined that if Respondent had successfully pre- vented unionization of the large Dothan facility, the "handful" of employees at Montgomery certainly could get nowhere. In his meeting with the Montgomery employees in July 1974 Adams also emphasized the employees' dependence on him, saying that only he, and not the Union, could help them . He said he would not bargain with the Union or sign any union contract convering the Montgomery terminal. He underscored the message by saying that he could close down the Montgomery terminal any time he chose. According to Jenkins , early in his speech Adams said that if the Union came in all the employees would "proba- bly" be fired. At a later point he said that if the union campaign was not successful none of the present employ- ees would "be around again," obviously indicating that Re- spondent would discharge employees to prevent a third or- ganizing campaign at Montgomery. Adkins shared his superior's hostility to unionization. Employees Eston Sanders and Jenkins testified that when Adkins hired them in March 1973 and February 1974, re- spectively, he informed them that the Company was non- union and it did not want any union talk . While these statement's by Adkins antedated the limitations period un- 9 Although this employee's name is spelled "Barton" in the transcript, the General Counsel in his brief states that "Burton" is the correct spelling der Section 10(b), the evidence was admitted as back- ground and casts light on current facts, as does Respondent's conduct at Dothan in 1966 and Montgomery in 1972. Jenkins testified that Adkins spoke to him about the union campaign on several occasions in July and August 1974. According to Jenkins, in most of the conversations Adkins said "Mr. Adams doesn't want the union . . . if we would go union he would probably close this terminal down and use it as a billing station." Sisneros had been hired in 1969 as a city driver. In 1970 he was given the added duties of acting dock foreman and checker. In this capacity he arrived at work at 3 a.m. and supervised10 the loading of trucks and related matters be- fore Adkins arrived at or around 6:45 a.m. It has always been customary for the workers to engage in conversation during this period. Sisneros testified that early in August he was summoned to the office, where Adkins said that he had learned that Sisneros had been "hindering" the other employees' work by conversation and therefore Sisneros was being removed as acting dock foreman and returned to work as a city driver, to report to work at 8 a.m. Sisneros also testified that during the conversation Ad- kins asked if Sisneros wanted "to help the company." Ad- kins added that he "hated to see the place close down" as the men were no longer so young that they could easily find other jobs. Adkins felt, however, that he would "have to make some changes ." At that point Sisneros handed Ad- kins his keys to the terminal and thereafter served as a city driver and dockman, reporting to work at 8 a.m., after Ad- kins' arrival. Adkins testified that employees Lothar Donde and Da- vid Young had each complained to Adkins that Sisneros had threatened them with dire consequences if they did not support the Union. Donde and Young had attended the first union meeting on the evening of July 3, and, like the six additional employees in attendance , had signed union authorization cards. However, they did not attend any sub- sequent meetings. Although they apparently never openly announced their defection from the Union, the other em- ployees, including Sisneros, strongly doubted the loyalty of these two. Sisneros disclaimed harboring any resentment against Donde for his having replaced Sisneros as acting dock foreman. Sisneros denied having made any threats against Donde and Young. Sisneros also testified that Ad- kins had not referred to any alleged "threats" when he transferred Sisneros to city driving on the 7 a.m. shift. Nei- ther Young nor Donde was called to testify to the threats by Sisneros which allegedly led to Sisneros ' transfer. Sisneros credibly testified that after the union campaign began Adkins greatly increased the amount of time he spent on the dock with the men. As Sisneros put it, "You couldn't hardly breathe without somebody standing over your back all the time. . . . [Adkins would] more or less just stand behind the trailer and watch if anybody or hear if anybody said anything." 10 There is no contention that he was ever a "supervisor" within Section 2(11) of the Act. GEORGIA, ALABAMA, FLORIDA TRANSPORTATION CO. 897 2. Conclusions by credited and uncontradicted testimony in the present case. As previously noted, Adams did not testify and Adkins was not questioned about Adams' statements made to the employees in Adkins' presence. The General Counsel's em- ployee witnesses all impressed me as conscientious and re- liable. On the basis of their credited testimony, I find that, as alleged , Respondent, through Adams, coercively interro- gated employees concerning union activities, threatened not to bargain if the employees chose to be represented by the Union, threatened to discharge employees in reprisal for union activities, threatened to discharge employees to prevent a resurgence of union activities if the Union was unsuccessful in its current campaign, and threatened plant closure in the event of unionization. By all this conduct Respondent violated Section 8(a)(1). Adkins denied having had any discussions about the Union with Jenkins. However, based on his demeanor, as well as serious deficiencies in his testimony (discussed be- low), I discredit Adkins' testimony. On the other hand, as previously stated, Jenkins and Sisneros favorably im- pressed me as witnesses . Based on the employees' credited testimony, I find that Respondent, through Adkins, violat- ed Section 8(a)(1) of the Act by threatening that the Mont- gomery terminal would be discontinued if the employees chose to be represented by the Union. Similarly, I discredit Adkins' contention that he transfer- red Sisneros from the position of acting dock foreman to that of city driver and dockworker because of alleged re- ports by Donde and Young that they had been threatened by Sisneros. To the contrary, I find that, as the General Counsel contends, Adkins reassigned Sisneros for the pur- pose of denying him an opportunity, unwatched by man- agement, to speak in favor of the Union to other employ- ees. Thus, as alleged , the transfer was violative of Section 8(a)(1) of the Act." Additionally, Sisneros' testimony es- tablishes that Adkins engaged in surveillance of union ac- tivities and gave the impression of doing so. B. Section 8(a)(3)-Discharge of Jenkins Fred D. Jenkins was hired by Adkins as a city driver on February 18. He was summarily discharged on August 27. The complaint alleges that his discharge was discriminato- ry, in violation of Section 8(a)(3) and (1). In defense, Re- spondent argues: "The evidence in this case does not show that Jenkins was a leader of the union, that Respondent had knowledge of his alleged activities, or that he was dis- charged for those activities." Respondent undertook to es- tablish that Jenkins was discharged for cause, as discussed below. At the outset, Respondent's union animus is clearly es- tablished by Adams' admitted i,tnion campaign, unfair la- bor practices admitted and found in G.F.A. Transportation Co., supra, and the vigorous and unlawful antiunion cam- paign at the Montgomery terminal in 1972, as established ii The complaint does not allege Sisneros' transfer as violative of Section 8(a)(3). Accordingly, no such finding is here made . In any event , the remedy in this case would be the same under Section 8(a)(I) or 8(a)(3). 1. Jenkins' union activities Paul Wilson, who had originally been active in the ill- fated organizational campaign at the Montgomery termi- nal in 1972, first discussed with Jenkins the possibility of instituting a new campaign toward the end of June 1974. The two men discussed the matter with their colleagues, Jenkins specifically speaking with employees Sanders, Young, and Isaac Ashley, all while at work. Because of his past experience in a unionized company Jenkins was then delegated to make contact with a union representative. Jenkins, being too busy to make direct contact with a union representative, obtained the business card of one and passed it on to Wilson around July 1. Wilson then called the union representative and arranged a meeting, which Wilson and Jenkins then publicized among the em- ployees while at work. The meeting, on July 3, was attended by eight of the nine city drivers, all of whom signed union authorization cards. Uncontradicted testimony establishes that Jenkins was the most articulate spokesman at that meeting. He credibly tes- tified that he advised his colleagues to consider carefully before they signed up and warned that if they decided to go ahead they would "probably get bumped around a little bit" and some of them might be fired. He said, however, he felt they could "accomplish something" and they should stay with it, "keeping their noses clean" and doing their jobs to the best of their ability.12 Wilson credibly corrobo- rated Jenkins' testimony in this regard, indicating that Jen- kins strongly stated his intention to stick with the Union no matter what happened and expressed his opinion that "if somebody got fired and the rest of the men vote for the union . . . it would all be worthwhile." Jenkins, along with all the other employees except Donde and Young, attended the two or three subsequent union meetings. Respondent contends that Jenkins' discharge cannot be found to have been discriminatory because Wilson rather than Jenkins was the prime mover in the union campaign and no discriminatory action was taken against Wilson. First, the record does not-compel the conclusion that Wil- son was the major moving force. The testimony shows, and my observation of the witnesses confirms, that Jenkins was the more articulate and undoubtedly would be the more influential and persuasive in having the men stick to the concerted course on which they had embarked. It will be recalled that in the 1972 campaign Sisneros had been able to persuade Wilson to retract his union card. Jenkins, on the other hand, from the beginning had warned the men of possible repercussions while urging them to persevere if they made the initial commitment. Jenkins thus would pose the greater "threat" to Respondent and his discharge would constitute the greatest possible warning to the other employees, whose convictions appear not to have been so firmly planted. In any event, it is by now axiomatic that an employer 12 Contrary to the impression conveyed by the seriously deficient tran- script of the trial, Jenkins was an articulate , literate, and well-spoken wit- ness. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD need not set about ridding himself of all union activists in order to be found guilty of violating Section 8(a)(3). N.L.R.B. v. W.C. Nabors Company, 196 F.2d 272 (C.A. 5), cert . denied 344 U.S. 865; N.L.R.B. v. Puerto Rico Tele- phone Company, 357 F.2d 919 (C.A. 1 1966). 2. Respondent's knowledge When Jenkins was hired in February , Adkins comment- ed on the fact, apparent from the employment application, that Jenkins had previously worked for a unionized em- ployer. At that time Adkins informed Jenkins that Respon- dent did not have and did not want a union. The picture emerges clearly . In 1974, as in 1972, Sisneros lost heart as the campaign intensified . Fearing loss of his job, he sought to protect himself and his relatively long term colleagues . The best way of doing so was to provide an alternative "culprit." Jenkins, a newcomer, was the logi- cal choice as a victim , since he actually was a leading union supporter. If Sisneros was not sufficient source of Adkins' knowl- edge of Jenkins ' active role, there were also Donde and Young, both of whom abandoned the Union after the first meeting .13 Not only had they allegedly reported threats against them for not supporting the Union, but Donde had apparently been "rewarded" by being made acting dock foreman when Sisneros fell from grace. Since Respondent did not explain its failure to call Donde or Young at least to corroborate the alleged threats made on them, it is rea- sonable to infer that their testimony would reveal them as the source of full knowledge by Adkins of the employees' union activities. In addition to Sisneros , Young, and Donde as sources of Respondent 's acquiring knowledge of Jenkins ' fostering of the Union, the circumstances as a whole clearly lead to an inference of such knowledge. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 602; N.L.R.B. v. Schill Steel Products, Inc., 340 F.2d 568, 572 (C.A. 5, 1965); Texas Aluminum Co., Inc. v. N.L.R.B., 435 F.2d 917 (C.A. 5, 1970). The plant was small and the men consistently engaged in conversation while at work. Although there is no direct evidence that Adkins was present when Jenkins turned over to Wilson the union business representative's card, four employees, including Donde and Young, were present when the trans- fer openly was made . Jenkins also had spoken to Young at work about the Union. Adkins spent a great deal of time on the dock with the men and his presence was increasing- ly felt after the union campaign began. Adkins' bare denial of knowledge as to Jenkins' role in the union campaign is not in itself very weighty evidence, particularly where , as shown below, other portions of the witness' testimony were demonstrably unreliable. Cf. Teamsters, Local 633 [Bulk Haulers, Inc.] v. N. L. R. B., 88 LRRM 2072, 2076-78 (C.A.D.C., 1974); 14 Shattuck Denn 13 No finding is here made , or to be inferred , as to whether Young and Donde were ever bona fide union supporters. 14 "We would be very hesistant to give significant weight to Therrlalt's conclusory denial of Hall 's activities, but in this case we do not think it should be given any weight at all since Therrialt 's testimony was less than candid , to say the least." Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9, 1966); N.L.R.B. v. Edward P. Tepper, d/b/a Shoenberg Farms, 297 F.2d 280, 284 (C.A. 10, 1961). Toward the end of July Sisneros took the initiative to talk about the union matter with Adkins . Sisneros said that he knew management thought that the instigators were Sis- noeros , Wilson , and Burton , "old" employees , who had been active in the 1972 campaign. But, said Sisneros, Ad- kins would be surprised to know that the ringleader was one of the three or four employees most recently hired. Sisneros testified that he had in mind as the four most recently hired employees Gerald Dukes, Collins Green, Jenkins, and Jesse Landingham . With the exception of Jen- kins, all these employees had arrived at the Montgomery terminal after July 8 , when the Union 's representation peti- tion was filed . 15 Thus, of these four, only Jenkins could have been a suspect as the instigator of the union cam- paign . Nor is the field broadened , as a practical matter, if one adopts Respondent's overly literal interpretation of Sisneros' statement . Respondent argues that Dukes and Green could not have been included in the four employees referred to because they had not been "hired" at Mont- gomery , but rather had been transferred from Dothan. There is no reason to believe that Sisneros was speaking, or that Adkins would understand the statement, in any such hypertechnical sense . The fact is that Dukes and Green were among the four newest additions to the staff in Mont- gomery. In any event, even on Respondent's literalism, Ad- kins could have been in no substantial doubt as to who was meant . The two employees most recently hired before Jen- kins were Donde and Young. According to Adkins, Young and Donde both reported that they had been threatened with untoward effects if they did not support the Union. Adkins testified that he then made an "investigation," of an unspecified nature . Under these circumstances, it is in- conceivable that Adkins could have understood Sisneros as pointing to Donde or Young as the union ringleader. 3. Respondent's explanation With Respondent's union animus and its knowledge of Jenkins' considerable union activities established, his preci- pitous discharge during the preelection period is presump- tively discriminatory. N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957); N. L. R. B. v. Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5, 1969). It thus becomes Respondent's burden to prove its contention that the discharge was for cause and in no way motivated by a desire or intention to discourage union activities . N.L.R.B. v. Standard Container Co., 428 F.2d 793, 794 (C.A. 5, 1970); N.L.R.B. v. Okla-Inn d/b/a Holiday Inn of Henryetta, 488 F.2d 498 (C.A. 10, 1973). Respondent maintains that Jenkins was fired for "care- lessness" in failing to inspect a trailer and/or report dam- age to it . The evidence concerning the incident involved is hereinafter summarized. On August 25, John Henderson, an over-the-road driver 15 Dukes was transferred from Dothan on July 29 and Green on August 5. Landingham was hired on July 15 or 29. GEORGIA, ALABAMA, FLORIDA TRANSPORTATION CO. 899 for Respondent, hauled a trailer loaded with steel beams from Birmingham to a Western Electric Company facility in or near Montgomery. The trailer had been rented from Ryder Company. On the afternoon of August 26 Jenkins was dispatched to Western Electric to pick up the emply trailer and return it to the Montgomery terminal. When Jenkins brought the trailer in, shortly before quitting time, Adkins instructed him to place it on the "empty" line. At an unspecified time after 7:30 p.m., when Adkins left for the night, over-the-road driver Moore picked up the trailer and then delivered it to the Birmingham terminal at or around 8 a.m., August 27. Bruce R. Bowers, terminal man- ager at Birmingham, testified that when Moore arrived he informed Bowers that there was a hole in the side of the trailer. Bowers examined the trailer and found a hole in its right side. Respondent introduced into evidence the follow- ing teletype message which Bowers directed to the Mont- gomery terminal at or about 8:30 a.m.: MR. BOWER SAID TO TELL RALPH [ADKINS ] HE RECEIVED RYDER TRAILER NO ... 82-532 THIS AM AND ITS GOT A HOLE TORN INTO THE RIGHT SIDE OF TRAILER FROM REAR APPR 12 FEET IN TRAIL- ER THE HOLE IS APPR 3 INCHES WIDE AND APPR 3 FEET HIGH EN. TIRE PANEL WILL HAVE TO BE REPLACED ALSO RYDER WOULD NOT EXCEPT [S1C] BACK UNTIL ITS REPAIRE THIS FOR YOUR IN- FORMATION PLEASE ACK.... Adkins testified that upon receiving the teletype he tele- phoned Bowers , who said that the damage had been caused from the inside of the trailer. He instructed Adkins to find out what had happened. Adkins testified that at that point he made an "investigation." The sum total of the investigation was a telephone conversation with Hender- son, in which, in answer to Adkins' question, Henderson said there had been no damage to the trailer when he left it at Western Electric. Respondent also introduced into evidence the following teletype, which Adkins testified he received from Adams about 1:30 p.m. the same day, August 27: BEEN ADVISE THAT RYDER TRAILERS 82-532 WAS DAMAGED AT WESTERN ELEC WHILE BEING UNLOADING FIND OUT WHICH DRIVER WAS RESPONSIBE [SIC] FOR NOT CHECKING TRAILER BEFORE MOVING FROM WESTERN CUSTERNER [SIC] DOCK THEN TAKE PROPER ACTION MR ADAMS Adkins testified that he exercised his "own judgment" to discharge Jenkins because that is what he understood was "proper action" within Adams' instructions. In a memo- randum placed in Jenkins' personnel file Adkins said: "Mr Adams . . . teletype me to terminate the driver." At the end of the day, Jenkins was called into the office, where he was shown the two teletype messages and given the option of resigning or being discharged. He refused to resign and was discharged. Jenkins testified that on August 28 he visited Western Electric and there spoke to an employee of a Pennsylvania contractor who had been in charge of unloading the trailer. According to Jenkins, that man said that when the trailer arrived at Western Electric it had a small hole caused by the load's having shifted while in transit so that the steel bars hit and punctured the trailer's plywood lining. The man said that he assumed that Respondent knew about the damage because nobody had thereafter called about it. The man further said that he would provide a written statement if the Company required one. However, when Jenkins later went back to request such a statement, the contracting company had left Western Electric and Jenkins did not know how to reach the man he had spoken to. Henderson testified that he had not felt the load shift in transit between Birmingham and Western Electric. Hen- derson further testified that about a week later, while mak- ing another delivery to Western Electric, he spoke with an unnamed employee of an unnamed Western Electric con- tractor. According to Henderson, the casual appearance of a union representative led to mention of the union cam- paign at Respondent's Montgomery terminal. It was in that context that the anonymous man mentioned Jenkins' trou- ble. Henderson testified that the man said the trailer had been damaged by the negligent operation of a forklift in the course of unloading. Henderson testified that his infor- mant said that the contracting company readily assumed responsibility and that Jenkins had been offered a state- ment to that effect. Henderson reported this conversation to Adkins. Bowers testified that Ryder was very anxious to have its equipment returned as soon as possible. Accordingly, Bow- ers had it repaired immediately by Fruehauf and then re- turned to Ryder. According to Respondent, the repairs cost around $200. Despite having been informed of West- ern Electric's admission of responsibility, Adkins main- tained that it would have been "embarrassing" to call that company - it might "make them mad" and he would "hate to lose a good customer, like that." This view is diffi- cult to understand if, as Adkins and Bowers both testified, the damage was such that it could have occurred only in the unloading process. Respondent -produced only three witnesses : Adkins, Bowers, and Henderson. Moore, who returned the trailer to Birmingham , was not called. Of Respondent's three wit- nesses , only Bowers claims to have seen the damage. Ad- kins testified that, although he was present and saw the trailer when Jenkins brought it to the Montgomery termi- nal on August 26, Adkins did not see the damage. Bowers' testimony was most unreliable. For example, he testified that when Moore brought the trailer to the Bir- mingham terminal and said there was a hole in it, Bowers asked if the hole had been there when Moore picked it up and Moore said yes. Bowers specifically testified that "at 5:00 o'clock in the morning or 4:00 o'clock in the morning, whenever he picked that trailer up, he noticed a hole in it "16 However, shortly thereafter Bowers testified: "I don't even know if [Moore] noticed it when he left Montgomery. All I know is when he walked in, he says, You've got a hole in your trailer." Bowers then testified that Moore had not said when he first noticed the hole and Bowers had not asked him that question. Bowers said he asked only if Moore had "hit anything" and Moore said no. In further explanation, Bowers indicated that the hole might have been so small that Moore could not have seen it from the outside. But this was inconsistent with other testimony in 16 Although Respondent apparently maintains relevant records, no evi- dence was presented as to the time Moore picked up the trailer 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which Bowers said the damage "was a tear, but also had a hole in it I'd say , oh, about ten to twelve inches in diame- ter," with the aluminum exterior "curled up, curled down, curled out." He also said that the "tear" ran from about 2 feet from the top of the trailer to some 4 feet from the bottom. However, his teletype message to Adkins on Au- gust 27, when the alleged damage was discovered, de- scribes the hole as "appr 3 inches wide and approx. 3 feet high." Because of these vacillations and inconsistencies in his testimony, in addition to my unfavorable appraisal of his demeanor , I discredit Bowers . And since he was the only witness produced by Respondent who claims to have seen the damage, I find there is no credible evidence of the extent thereof. Adkins also was an unreliable witness . His general unre- liability is perhaps best typified by the evidence concerning a memorandum of the event that he prepared for insertion in Jenkins' personnel file.17 The memorandum is dated "8/26/74," whereas the discovery of the damage and the discharge of Jenkins occurred on August 27. Adkins testi- fied that the person typing the memorandum probably had so dated it because of the date on the bill of lading cover- ing the original delivery. Although still in Respondent's employ, the typist did not testify. In any event, Adkins initially testified that he prepared the memorandum on Au- gust 27, possibly at or around 11:30 a.m. or 1 p.m., after he finished his "investigation" of the matter. It was then brought to his attention that the memorandum said that "Western Electric admitted doing the damage," which Ad- kins claimed not to have learned until Henderson reported his casual conversation with a contractor's employee at Western Electric , which Henderson placed about a week after the event. Adkins then indicated that he had not writ- ten all of the memorandum at one time , but had made additions to the original memorandum. As it appears in the record, the memorandum clearly was typed all at one time. The final sentence reads: "Mr. Adams learned of the inci- dent from Birmingham and teletyped me to terminate the driver involved." Adams' teletype long preceded Henderson's visit to Western Electric. Adkins finally testi- fied that he could not recall when he prepared the memo- randum in question although he also testified that it is his practice to "keep a record of everything, that the employ- ees, when they do something wrong, I have to warn them." There can be no question that the memorandum was prepared after the event as "self-serving" record evidence. The demonstrated falsity of Adkins' testimony concerning the memorandum is itself tantamount to affirmative proof of the violation. Respondent's evidence, both testimonial and "documentary," was such "as to give assurance that [it was] fabricating," and therefore "there is no alternative but to assume the truth of what [it] denies." Dyer v. MacDou- gall, 201 F.2d 265, 269 (C.A. 2), quoted with approval in N.L.R.B. v. Walton Manufacturing Co., 369 U.S. 404, 408 (1962). It is not true , as the memorandum states , that Adams' teletype directed Adams to discharge Jenkins; the teletype merely says "take proper action." Adkins testified that he it It is interesting to note that, while the memorandum would appear to justify Jenkins' discharge , Respondent 's counsel objected to its introduction into evidence by the General Counsel on cross-examination of Adkins. "thought [Adams] meant let him go" and also that Adkins "used [his] own judgment and let the man go." Adkins acted on his knowledge that Adams was extremely con- cerned about having equipment kept in good condition. But Adams' concern for the condition of equipment would scarcely dictate the ultimate penalty of discharge for an employee's failure to note or report damage done by some- body else. More significantly, however, Adkins disclosed that, as employee Wilson had testified, when equipment is damaged, "it's a company policy, . . . we investigate, and if it's the driver's fault, we lay them off for one week with- out pay . . . so they'll be more careful with the equip- ment." Adkins testified that two employees had been,given such 1-week suspensions. One was Paul Wilson, who credi- bly testified, without contradiction that he had been re- sponsible for damaging equipment on four or five occa- sions within the preceding 2 years. The only discipline he ever received was a 1-week suspension when he ran into and caused considerable damage to another car. Respondent contends that Jenkins ignored a longstand- ing and oft-repeated company rule requiring that each driver inspect any equipment before moving it and upon leaving it. Jenkins and the four other employees called by the General Counsel all testified that there was no such company rule. Henderson, Respondent's witness, testified that, while Respondent has inspection forms to be filed by over-the-road drivers, they are never used by the city driv- ers.18 Adkins' memorandum casts additional doubt on Respondent's claim of a company rule. It reads, in part: . , , All drivers who pick up a trailer are instructed to inspect the trailer before moving it from the point. [Jenkins] apparently did not do this. This is a compa- ny rule for all pick up personnel... . It would hardly be necessary so to memorialize in an in- traoffice personnel memorandum a "rule" as longstanding as Respondent maintains its equipment inspection require- ment was. On all the evidence, I find that Respondent had no "rule" requiring city drivers to inspect equipment and report any damage found before moving it. Jenkins and other employees testified that, despite the absence of any requirement by Respondent, they generally do inspect equipment, if only cursorily, before moving it. Jenkins said he had learned this practice in a previous job, where he was required to fill out checklist forms. He testi- fied that he always looks through an empty trailer quickly to make sure there is nothing left in it, such-as a forklift or some overlooked freight. As Adkins acknowledged, "com- mon sense" dictates that a driver make some inspection for his self-protection, to avoid the possibility of being accused of causing damage found when he later delivers the equip- ment. is In this connection it is interesting to note that Moore , an over-the-road driver, apparently failed to file any such form in connection with his trans- portation of the trailer here involved from Montgomery to Birmingham. So far as appears, no action was taken against him . At one point Adkins indi- cated that Moore could not have made a report of the damage before he left Montgomery because there would be nobody on duty "if it was on a Sunday night. early Monday morning " However, the trip took place on Monday night and the Montgomery terminal is open and attended by two clerical workers all night on Monday through Thursday . In addition , on the other nights, there is a depository available for papers GEORGIA, ALABAMA, FLORIDA TRANSPORTATION CO. Jenkins testified that when he picked up the trailer, he first had to move it a few feet away from the dock in order to board it to close its rollup door. He then entered the trailer from the rear, quickly looked through the interior for overlooked or forgotten freight, pulled the door part way down, left the trailer, finished closing the door from the outside, walked along the driver' s side to the tractor, which he entered, and then drove off. Adkins' own testimo- ny established that Jenkins could not have failed to see a hole large enough to admit light.19 Jenkins conceded that he had not made any inspection of the exterior of the trailer's right side, where the damage allegedly was. Adkins said that Jenkins was discharged for his careless- ness, but Adkins was vacillating as to whether the alleged negligence consisted in Jenkins ' failure to see the hole or his failure to report the damage. As to the first, as already noted, Adkins maintained that Jenkins could not have failed to notice the hole.20 As to the second, Adkins could not suggest why Jenkins would fail to report damage when such a report would prevent his ever being accused of caus- ing the damage. The August 27 trailer damage incident was the only rea- son for the discharge given to Jenkins. At the hearing Re- spondent basically maintained the same position . Howev- er, at the hearing, Adkins sought to shore up Respondent's case by reference to two prior alleged examples of Jenkins' "carelessness ." Although Respondent did not then and does not now maintain that Jenkins was discharged, even in part, because of these incidents, it may be well to discuss them briefly. The first incident involved a delivery which Jenkins made to a Winn-Dixie store. According to Adkins, when Jenkins was gone too long, Adkins went to the Winn-Dixie premises to check up. Adkins found Jenkins' trailer at a warehouse door with Jenkins several doors away helping to unload another company's trailer. When questioned by Adkins, Jenkins said that when he arrived there had been no doors available and he had just been able to move to one. The actual unloading was to be done by Winn-Dixie personnel, not by Jenkins. When Adkins arrived nobody was unloading Jenkins' trailer. Although Adkins claimed to doubt Jenkins' explanation, Adkins made no inquiry. In testifying, Adkins was unclear as to whether he criticized Jenkins for not having the trailer unloaded more promptly or only for failing to telephone Adkins to say he was being delayed. The second incident concerned a trip in which Jenkins was to make two separate deliveries. After making the first, he discovered that the freight for the second was not on the trailer. He thereupon returned to the terminal and report- ed. At that point, he and Donde went to the first consignee and found that the freight for the second shipment had 19 Adkins' personnel memorandum says: "It was impossible not to see the gash in the trailer. The trailer was equipped with a roll-up type door, and a driver has to go inside the trailer in order to pull down the door." The door was closed when Jenkins brought the trailer into the Montgomery terminal. 20 The General Counsel conjectures that Jenkins may have failed to no- tice the alleged hole because another trailer parked beside it blocked out the light. The significant fact is that Respondent made no attempt to discover the actual facts. See T.I.M.E.-DC, Inc. v. N.L.R.B., 504 F.2d 294 (C.A. 5, 1974). 901 become mixed with the first and thus had been mistakenly delivered to the first consignee . Adkins criticized Jenkins for this potentially expensive carelessness . However, there is no evidence that Jenkins had loaded the trailer or was responsible for the two shipments having been intermin- gled. The evidence indicates that it would be difficult to note the presence of the second group of commodities if they had already become mingled with the first group. Thus, the evidence fails to establish that Jenkins had previously been guilty of such misconduct as would tend to warrant an especially harsh view of his alleged role in the trailer-damage incident. It may be assumed that some damage was done to the rented Ryder trailer while it was being unloaded at West- ern Electric?' It is inconceivable that Respondent would summarily discharge an employee for failing to see and/or report damage found in equipment when the Company's "policy" and past practice had called for a maximum pen- alty of a 1-week suspension for serious damage actually caused by an employee. On all the evidence , I find that Jenkins was discharged because of his union activities ; the trailer damage incident was seized upon (or even , possibly, contrived) as a pretex- tual basis of the action . Singer Company v. N.L.R. B., 429 F.2d 172, 179 (C.A. 8, 1970); A.P. Green Fire Brick Compa- ny v. N. L. R. B., 326 F.2d 910, 916 (C.A. 8, 1964). CONCLUSIONS OF LAW 1. Georgia, Florida, Alabama Transportation Company is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 612, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating employees concerning union activities; by threatening employees with closure of its Montgomery terminal and discharge of employees for engaging in union activities; by impressing upon employ- ees the futility of unionization; by threatening not to bar- gain with the Union if the employees choose to be repre- sented by it; and by keeping employees ' union activities under surveillance, Respondent has violated Section 8(a)(1) of the Act. 4. By discharging Fred D. Jenkins on August 27, 1974, and thereafter refusing to reinstate him, Respondent has discriminated in regard to hire and tenure of employment to discourage membership in a labor organization, and is thereby committing unfair labor practices within the mean- ing of Section 8(a)(3) and (1) of the Act. 21 Even this fact was never proved by competent evidence . The only evi- dence was hearsay by Jenkins and Henderson as to statements made by an anonymous employee (or employees) of an anonymous contractor (or con- tractors) for Western Electric. Moore , who delivered the damaged trailer to Birmingham at around 8 a.m on August 27, did not testify. His movements and activities on the night of August 26 and the morning of August 27 are shrouded in mystery It is particularly puzzling why he did not arrive in Birmingham until around 8 a.m., with the driving time between Montgom- ery and Birmingham being only about 2 hours. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By transferring Robert Sisneros from the position of acting dock foreman to that of city driver and dockworker, Respondent has violated and is violating Section 8 (a)(1) of the Act. THE REMEDY Having found that Respondent has committed violations of Section 8(a)(1) and (3) of the Act, I shall recommend that it be required to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act, in accordance with usual Board practice in such cases. Because of the pervasive nature of the violations found, which go to the heart of the Act, and in view of Repsondent's proclivity for violating the Act, as reflected in G.F.A. Transportation Co., supra, and the undisputed evi- dence of Respondent 's misconduct in connection with the 1972 union campaign at its Montgomery terminal , I shall recommend issuance of a broad cease-and-desist order. Ohio Power Company, 215 NLRB No. 13 (1974). In line with the broad cease-and-desist order, I shall recommend that the required notice be posted at all of Respondent's facilities rather than only at the Montgomery terminal di- rectly involved in this proceeding. Having found that Fred D . Jenkins was discriminatorily discharged , I shall recommend that Respondent be re- quired to offer him full and immediate reinstatement, with backpay to be computed in accordance with F. W. Wool- worth Company, 90 NLRB 289 (1950), with 6-percent per annum interest in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Further, having found that Robert Sisneros was imporperly transferred from his posi- tion as acting dock foreman , I shall recommend that Re- spondent be required to offer him reassignment to that po- sition . However , no backpay requirement will be added since the evidence indicates that the transfer did not result in reduction in Sisneros ' earnings. Upon the foregoing findings of fact , conclusions of law, and the entire record in this case , and pursuant to Section 10(c) of the Act , I hereby issue the following recommend- ed: ORDER22 Respondent , Georgia , Florida , Alabama Transportation Company, its officers , agents , successors , and assigns, shall: 1. Cease and desist from: (a) Discharging or transferring employees or otherwise discriminating in any manner with respect to their tenure of employment, or any term or condition of employment, 22 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order , and all objections thereto shall be deemed waived for all purposes. because they have engaged in concerted activity or activity on behalf of international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Lo- cal Union No. 612, or any other labor organization. (b) Coercively interrogating employees concerning their union or other concerted activities. (c) Keeping employees' union activities under surveil- lance or creating the impression that such is being done. (d) Threatening employees with discharge or other detri- ment as reprisal for their engaging in union activities or as a deterrent to future union activities. (e) Threatening to refuse to bargain with a union if the employees choose to be represented by one. (f) Threatening to close any terminal if the employees choose to be represented by a union. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-orga- nization , to form labor organizations to join or assist Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 612, or any other labor organization. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Robert Sisneros immediate and full reinstate- ment to his former position as acting dock foreman (or, if such position no longer exists , to a substantially equivalent position), without prejudice to his seniority or other rights and privileges. (b) Offer Fred D . Jenkins immediate and full reinstate- ment to his former position (or, if such position no longer exists,'to a substantially equivalent position), without prej- udice to his seniority or other rights and privileges, and make him whole for any loss of earnings in the manner set forth in the section herein entitled "The Remedy." (c) Preserve and make available to the Board or any of its agents , upon request, all records necessary to analyze the amount of backpay due Jenkins under the terms hereof. (d) Post at each of its terminals and other facilities cop- ies of the attached notice marked "Appendix."23 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of Respondent , shall be posted by Respon- dent immediately upon receipt thereof , and be maintained by it for 60 days thereafter, in conspicuous places , includ- ing all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to assure that said notices are not altered, defaced or covered by any other material. (e) Notify the Regional Director for Region 15, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 23 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National 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."