Thurston Motor Lines, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 23, 1970180 N.L.R.B. 944 (N.L.R.B. 1970) Copy Citation 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thurston Motor Lines, Inc. and Highway and Local Motor Freight Employees , Local Union No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and William M . Griffin, and Grady C. Camp, Jr. Cases 26-CA-3307, 26-CA-3370, 26-CA-3339, 26-CA-3363 January 23, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below. 1. Delete paragraph 1(c) of the Trial Examiner's Recommended Order and renumber the remaining paragraphs accordingly. 2. Delete from the notice to employees (marked Appendix) the fifth full paragraph referring to the withholding of wage increases. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On October 14, 1969, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief as well as a brief in reply to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner ' s Decision , the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions , and recommendations of the Trial Examiner, except as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Thurston Motor Lines, Inc., Memphis, Tennessee , its officers, agents, 'Contrary to the Trial Examiner and in agreement with Respondent's exceptions, in the absence of any evidence of established custom or practice with respect to the granting of periodic wage increases , we do not find Respondent's reluctance to consider granting same pending the outcome of the election proceedings currently before the Board was violative of Section 8(a)(l) of the Act. In adopting Section D(9) of the Trial Examiner's Decision , we do not adopt his inadvertent comment in footnote 12 respecting the test of intimidation. JERRY B. STONE , Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on June 24, 25, and 26, 1969, at Memphis, Tennessee. The respective charges in the case were filed as follows: Case 26-CA-3307 on March 11, 1969, Case 26-CA-3339 on April ll, 1969, Case 26-CA-3363 on May 15, 1969, Case 26-CA-3370 on May 23, 1969. The first amended charge in Case 26-CA-3307 was filed on May 23, 1969. The second amended complaint was issued on June 11, 1969 * I The essential issues in this case are whether Respondent engaged in acts of interrogation as to economic activity, threats concerning union activity, and whether the Respondent discriminated in the tenure of employment of several employees because of union and protected concerted activities and because of the filing of a charge. In sum the case involves the question of conduct violative of Section 8(a)(1), (3), and (4) of the Act. All parties were afforded full opportunity to participate in the proceeding. The General Counsel filed a brief and it has been considered. Upon the entire record in the case and from my observation of witnesses I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER' Thurston Motor Lines , Inc., the Respondent , is now, and has been at all times material herein , a corporation with a place of business located at Memphis , Tennessee, where it is engaged in the motor transportation of freight. During the past 12 months , Respondent, in the course and conduct of its business operations , received gross revenues exceeding $ 1,000,000 of which in excess of $50,000 was received for the transportation across State lines of goods and property which were destined for delivery in a State other than the State of their origin. As conceded by the Respondent and based upon the foregoing , it is concluded and found that the Respondent is now , and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED' Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with International Brotherhood All references to General Counsel's complaint are to this second amended complaint. 'Based upon the pleadings and admissions therein. 'rhe facts are based upon the pleadings. 180 NLRB No. 140 THURSTON MOTOR LINES, INC. 945 of Teamsters, Chauffeurs, Warehousemen and Helpers of and such cases have been considered in connection with America, the Union ,' is now and has been at all times the issues in this case. material herein , a labor organization within the meaning TEA Union Activity of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Preliminary Issues Supervisory Status' At all times material herein, the following-named persons have occupied the positions set opposite their names, and have been, and are now, agents of the Respondent at its Memphis, Tennessee, location, acting on its behalf, and are supervisors within the meaning of Section 2(1 1) of the Act: John Banks Terminal Manager Bobby Goza Operations Manager Luther Coley Dock Foreman Leonard Majors Dock Foreman Norman Hasting Dock Foreman John Pruitt Dock Foreman Jack Braizel Dock Foreman Bobby Swanton Office Manager John LoVorn Shop Foreman B. Setting' Thurston Motor Lines, Inc., has operated an interstate transport system within and between North Carolina, South Carolina, Virginia, and Tennessee for a number of years. In its operations it maintains a number of terminals, one of which is located at Memphis, Tennessee. Around August 1956, Thurston Motor Lines, Inc. purchased the B & S Motor Lines and at that time commenced operating the Memphis terminal. At the time of Thurston's acquisition of the B & S Motor Lines and its terminals , Transportation Employees Association, Ind., or its predecessor, represented the employees at several of the former B & S Motor Lines terminals, including the Memphis terminal. Since August 1956, Thurston Motor Lines, Inc., and Transportation Employees Association, Ind., hereinafter sometimes called TEA, have had a collective-bargaining relationship at the Memphis terminal . The last collective -bargaining agreement between TEA and Thurston Motor Lines was executed on May 18, 1967, effective as of May 21, 1967, and until May 21, 1969. C. Background Animus The General Counsel requested that official notice be taken of Thurston Motor Lines, Inc., 149 NLRB 1368, of Thurston Motor Lines, 159 NLRB 1265, and of Thurston Motor Lines, Inc., 166 NLRB No. 101, relating to NLRB decisions of Respondent's unfair labor practices committed at other terminals , and revealing animus regarding employee union activities, propensity for discriminatory discharges in violation of Section 8(a)(3) of the Act, preference for the TEA over the Teamsters, and the propensity to engage in the type of conduct alleged in this proceeding. The request was granted at the hearing 'Herein sometimes called Teamsters or Teamsters Union. 'The facts are based upon the pleadings as clarified at the hearing. 'The facts are based upon a composite of the credited testimony of Thurston and Banks , the exhibits in the record , and official notice of National Labor Relations Board decisions captioned Thurston Motor Lines, Inc. reported at 149 NLRB 1368, 159 NLRB 1265, and 166 NLRB No 101 The General Counsel's theory of "company knowledge" of the alleged discriminatees' Teamsters Union activity and interests involves a contention of "reprisal" because of a TEA disclaimer filed on or around March 4, 1969, in regard to the Teamsters petition for representation rights concerning Respondent's employees at the Memphis terminal, in Case 26-RC-3412 The Thurston-TEA contract covering the employees involved, and in existence until May 21, 1969, contained a "dues deduction" clause. The evidence reveals that the Respondent made dues deductions for the TEA for employees who had so authorized The evidence as to employees who had authorized such dues deductions and for whom dues were deducted by the Respondent for TEA, however, is limited to Henderson and Grisham. It appears that TEA may have had elections for, or appointments of, new officers in September 1968. Whether this occurred before or after some of the employees signed Teamsters Union cards in September 1968 is not revealed. It appears that during the period of time commencing in September 1968 and continuing until the employees' termination on May 21, 1969, Henderson was TEA secretary and treasurer until March 10, 1969, Grisham was TEA job steward until March 10, 1969, and Dyer was TEA executive vice president until May 21, 1969. It also appears that Slankard was appointed TEA assistant job steward on March 3, 1969. The facts do not reveal who held official positions with the TEA prior to September 1968 and do not reveal what company knowledge thereto was. After the Teamsters filed the representation petition in Case 26-RC-3412, Dyer, on or around March 4, 1969, filed a disclaimer of interest for the TEA in such proceeding. Dyer, around the same time, informed Terminal Manager Banks of the aforesaid disclaimer. The facts reveal that as of March 10, 1969, Terminal Manager Banks knew that Henderson held a position with the TEA, that as of March 10, 1969, Banks knew that Grisham was a TEA steward, that as of March 4, 1969, Banks knew that Dyer held a position with the TEA, and that as of mid-April 1969 Banks believed Griffin to be a TEA office holder. Teamsters Union Activity On September 22, 1968, employees Dyer, Henderson, Grisham, Griffin, and Camp signed Teamsters Union cards. It appears that on September 22, 1968, and on one later occasion, the Teamsters Union had meetings for organizing Respondent's employees. The testimony did not reveal when the later meeting took place. The total testimony, including Spears', indicates that the second meeting must have occurred sometime between September 22, 1968, and February 1969. Thus Spears, who was interested in the Union, was not solicited to sign a Teamsters card after his employment in February 1969' and did not hear of any Teamsters Union meetings during such time. Slankard signed a Teamsters Union card on January 21, 1969.' 'On direct examination by the General Counsel, by leading questions, the above was solicited . On cross-examination , Slankard admitted that in his affidavit he had set forth that he had signed a Teamsters card in the first week of September 1968 Cross -examination of Slankard revealed a demonstrated propensity to exaggerate and build his case, to be at great 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henderson, Grisham, and Slankard testified individually to the effect that they spoke to others about the Teamsters Union and "got others" to sign cards. The testimony of the witnesses was not specific as to individuals involved or as to the approximate timing of events. Thus it is not clear whether the "others" referred to are the same card signers identified in the record herein. The testimony of all witnesses except Spears was to the effect that their Teamsters Union activity was not knowingly observed by company supervisors. Considering the total aspects of the witnesses' testimony relating to Teamsters Union activity, the period of time involved in which only two union meetings were held, the fact that Spears was not approached about signing a union card in February, or later in 1969, the apparent hidden nature of the activity, and fact that some of the Teamsters card signers occupied official positions in the TEA during the "organizing period," I am convinced that the Teamsters Union activity between September 1968 and the time of the election, April 25, 1969, was of a minimal nature and was carried on in a secretive manner. Miscellaneous The General Counsel contends further that certain conduct of the Respondent of a background nature has a bearing upon an understanding of the issues involved. Such alleged conduct is as follows: 1. Slankard testified to the effect that he was hired in July 1968 and that shortly thereafter he had a conversation with Terminal Manager Banks in Banks' private office. Slankard testified to the effect that, in the conversation Banks asked him if he knew anything about an upcoming election, that Slankard told him that he did not know about an upcoming election, that Banks stated that some of the people thought they might try to get the Teamsters Union in and asked Slankard what he thought about it. Banks testified in effect in denial of the foregoing testimony and testified that at the time the TEA was the accepted union and that there was no upcoming election. The facts do not reveal that at the time of the conversation there was any Teamsters activity or talk going on at the terminal. The facts further reveal that the Respondent's contract with TEA as collective-bargaining representative had about a year to go and that there was no basis for believing that a representation election was upcoming. In his brief the General Counsel concedes that there is no indication that the Teamsters was engaged in an organizing campaign or that there was any talk about an election in July 1968. The General Counsel, however, observes that Respondent's witness Coley testified that he had heard talk of union activity for 4 years. Coley's testimony was in response to a generalized question as to union activity. In answer to other questions the General Counsel was unable to obtain testimony from Coley which would indicate that there were discussions as to "Teamsters Union" activity. The facts clearly reveal that TEA, a union, had had a collective-bargaining relationship with the Respondent for a number of years. Coley's testimony, under such circumstances, merely constitutes variance as for timing of events, and that he was generally an unreliable witness. Considering all of this, I do not find his testimony credible to establish that he signed a Teamsters Union card in the first week of September 1968 evidence of talk of TEA activity. All of the objective facts weigh against the probability that Banks made the statements alluded to by Slankard. Most persuasive however is the fact that from my observation of Slankard and Banks as witnesses to the alleged incident , I believe Banks to be the more forthright, truthful , and reliable witness. I credit Banks' denial of the effect of Slankard 's testimony to this incident. 2. Allen testified to the effect that he was hired around the first of September 1968, that Terminal Manager Banks stated that he did not usually hire anyone from a union line, and that Banks stated that Thurston would close down before he would go Teamsters Banks testified to the effect that he had not discussed with any employees what Thurston would do if the Teamsters came in. The object ive facts do not support Allen's testimony to this incident As witnesses , Banks' and Allen's demeanor appeared equally impressive . Considering the objective facts, ' I find that the General Counsel has not established that Banks, around the first of September 1968, told Allen in effect that Thurston would close down before he went Teamsters . Furthermore , the alleged statements made with respect to not hiring men from union lines when considered with Allen 's testimony to the effect that Banks would know he (Allen) was from a union line , and the fact that Allen was hired negate a finding that Respondent was thus discriminating , as according to the alleged statement, in its hiring. D. Interference, Restraint, and Coercion 1. The General Counsel's complaint (paragraph 7(a)) alleges in effect that in November 1968 the Respondent, by Supervisor Banks, threatened an employee with loss of work if he voted for or supported the Union. The evidence to this issue may be summarized as follows. The General Counsel adduced testimony from witness Grisham as to an event occurring after Banks became terminal manager on July 1, 1968. After a 10(b) issue had been raised by Respondent's counsel, the General Counsel elicited from Grisham's testimony that the event occurred at least 3 or 4 months after Banks had taken over (as terminal manager ).' The General Counsel stated at the hearing, when asked, that the testimony related to the events alleged as having occurred in November 1968. Grisham testified in effect that 3 or 4 months after July 1, 1968, Banks had a "get acquainted" conversation with him, that Banks asked him how he felt about the Teamsters and told him that if he wanted to have a job, he had better not vote for the Teamsters because Mr. Thurston would close down the terminal and the employees would not have a job. Banks testified in denial of having told employees what Thurston would do if the Union came in. Grisham's testimony otherwise revealed that he was a TEA member and had authorized dues to be deducted from his pay, that he became a TEA steward in September 1968 and functioned as such until March 10, 1969, and that in one or more of four affidavits submitted to the NLRB after his discharge and prior to the hearing herein , he had set forth that Banks, on the occasion in question , had asked him if he were a member of TEA. 'Substantially the same objective facts as related with respect to I, above 'If the event occurred before September 11, 1968, a finding of violative conduct is barred by Section 10(b). THURSTON MOTOR LINES, INC. Of the two witnesses to the points involved, I found Banks to be more impressive as a truthful and objective witness than Grisham. The objective facts also strongly indicate the lack of probability of the events being as testified to by Grisham. Thus it is clear that Banks and the Respondent reasonably knew that Grisham was a TEA member. Teamsters Union activity, as revealed by the evidence, was not of significant degree , and the evidence, unless Grisham is credited, does not reveal company knowledge of the Teamsters Union activity at this time." There was no pending Teamsters petition for an election and there was a collective- bargaining agreement between the Respondent and TEA that was to be in effect until May 21, 1969. Accordingly, I credit Banks' testimony and discredit Grisham's testimony to this event, and recommend dismissal of complaint paragraph 7(a). Furthermore, in view of General Counsel's burden to establish the event as having occurred during the relevant 10(b) period (on or after September II, 1968) and reasonably close to the time alleged in his complaint (November 1968), 1 would also dismiss the allegation (complaint paragraph 7(a)) on the basis that General Counsel has not met such burden. 2. The General Counsel's complaint (paragraph 11(a)) alleges that the Respondent, by Supervisor Goza, threatened an employee on or about October 9, 1968, with closure of its Memphis terminal if its employees selected the Union as their collective-bargaining representative. The evidence on this issue may be summarized as follows: Henderson testified to the effect that in October 1968 Supervisor Goza spoke to him in Goza's office, and that Goza asked him about the "talk that was going around" and told him that if the employees voted the Union in, the terminal would be shut down. Goza testified in denial of this event. I found Goza to appear to be a more truthful appearing witness than Henderson as to this event. Furthermore, the objective facts with respect to the pendency of any election, the status of TEA as bargaining agent at the time , the minimal nature of the union activity at the time, and the absence of evidence of company knowledge of Teamsters Union activity all point to the lack of probability of Henderson's testimony. I credit Goza's testimony and discredit Henderson's testimony upon this point. Accordingly, I recommend that complaint paragraph l I(a) be dismissed. 3. With respect to certain testimony of Henderson, it is noted that the General Counsel's complaint only alleges illegal interrogation by Supervisor Banks on or about March 12, 1969, and does not allege illegal interrogation by Supervisor Banks during the preceding months. It is further noted that the General Counsel does not contend in his brief, factually or in argument , that the Respondent, by Banks, engaged in acts of illegal interrogation as to employees' union or protected activities "before Christmas 1968." Henderson testified to a conversation between Banks and Henderson before Christmas 1968 with respect to what Henderson thought of the TEA. It is noted that such evidence was admissible and relevant in connection with the 8(a)(3) allegations . Considering the pleadings and the "The General Counsel has attempted in the rebuttal stage of the case to prove company knowledge of Teamsters Union activity as of September 23, 1968. Even assuming such evidence as he has attempted to prove, the evidence would not reveal company knowledge of union activity by Grisham at this time. 947 brief, however, it cannot be said that such matter has been properly pled or litigated to warrant a finding of conduct violative of Section 8(a)(1) of the Act. 4. The General Counsel's complaint (paragraphs 7(b) and 7(c)) alleges that the Respondent by Supervisor Banks, in December 1968 and in February or March 1969, threatened its employees with closure of its Memphis terminal if the employees selected the Union as their collective-bargaining representative. The evidence to this issue may be summarized as follows. As indicated previously, Slankard testified to the effect that right after he started to work in July 1968 he had a conversation with Banks in which Banks spoke of an upcoming election and the Teamsters. As indicated, I discredit Slankard's testimony to the incident. Slankard also testified to the effect that he had two other conversations with Banks about the Teamsters Union. One of these conversations was supposed to have occurred right before Christmas. Luther Coley was supposed to have been present for most if not all of the conversation. The other conversation with Banks was supposed to have taken place in February 1969, and Sam Collier and Jimmy James were suppose to have been present. As to the before Christmas 1968 and February 1969 conversations, Slankard testified in effect that Banks spoke of the Teamsters and that the terminal would be closed if the Union (Teamsters) were voted in by the employees. Cross-examination of Slankard with respect to his three affidavits given to the NLRB investigative staff revealed a person of not great preciseness. Thus, although Slankard was initially employed in July 1968, his sworn affidavit adverted to initial employment on January 25, 1968. Furthermore, his statement in his affidavit, relating to an event in January 1969, apparently of the same subject matter testified to by him as being the February 1969 conversation with Banks, revealed that the Teamsters was not mentioned. On cross-examination, Slankard testified to the effect that "Teamsters" was not mentioned in such conversation. Slankard further appeared to be an unreliable witness with respect to the items of "merchandise" he had improperly taken from company premises for his own use. Slankard's demeanor as a witness was not that of a frank, forthright, and truthful witness, and the total examination of him as a witness corroborates this indication. In sum, of the two witnesses to these events, I found Banks to appear to be the more honest, frank, forthright, and truthful, and I credit his denial that he told employees what Thurston would do if the Union were selected. I discredit Slankard's testimony relating to threats that Thurston would close the terminal if the Union were selected, voted for, or chosen by employees. Harold Horner testified to the effect that he had two conversations with Supervisor Banks about the Union, that one occurred around the first or the middle of February 1969 and that the other conversation occurred about 2 weeks later. According to Horner, Banks spoke to him around the first or middle of February 1969 and told him in effect that "Mr. Thurston" had asked Banks whether Horner could be counted on in the oncoming election. About 2 weeks later, according to Horner, Horner went to Banks' office to ask about getting more hours of work. Horner testified to the effect that after the question of hours was straightened out, Banks stated, "I guess you know that Mr. Thurston will lock the doors up before he signs a Teamsters contract." Horner's testimony to the events appeared somewhat limited and he stated 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was all that he remembered as being said. Banks testified in denial of telling any employee what Thurston would do with regards to the Teamsters Union. From their demeanor there did not appear to be much difference between Banks and Horner as to their forthrightness and truthfulness Banks was questioned by counsel with respect to many details. In my opinion such questioning tested him well, and he gave the appearance of a truthful and forthright witness. Considering the totality of events, the demeanor of the witnesses, and the entire questioning of both witnesses, I am convinced that the preponderance of the evidence tilts in persuasiveness to a crediting of Banks' denial that he told any employee of what Thurston would do about the Teamsters. Accordingly, I credit Banks' testimony and discredit Horner's testimony to the events in question. Considering all of the foregoing, I conclude and find that the facts do not establish that the Respondent, by Banks, in December 1968 and in February or March 1969, threatened its employees with closure of the Memphis terminal if the employees selected the Union as their collective-bargaining representative. Accordingly, it is recommended that complaint paragraphs 7(b) and 7(c) be dismissed. 5. The General Counsel alleged in his complaint paragraphs 8(a) and 8(b) that the Respondent by Supervisor Luther Coley, (1) in November 1968, created the impression of surveillance of its employees' union activities by telling an employee that Respondent knew that its employees had signed union cards, and (2) in February 1969, or March 1969, threatened an employee with closure of Respondent's Memphis terminal if its employees selected the Union as their collective-bargaining representative. The General Counsel's witness with respect to these allegations was Slankard. Slankard testified to the effect that the events were really one event and that although in his affidavit he had set the time as having been in November 1968, that the events occurred after the first of the year. Slankard testified to the effect that after the first of the year Coley spoke at a meeting relating to instructions of how to load trailers, that Coley made the comment that he knew "that we had all signed membership cards for the union , because at one time he was a driver, and he had done the same thing himself." After a leading question, Slankard further testified to the effect that Coley "said that some years back that he had met Mr. Thurston himself and that he really believed his ownself that Mr. Thurston would shut down the terminal doors in Memphis if the Teamsters were voted in." Coley denied the conversation about the membership cards and about the "Teamsters." First, it is noted that even assuming the truth of Slankard's testimony about the membership cards, such facts fail to establish that the Respondent thereby created the impression of surveillance of its employees' union activities. Coley's alleged statement of the basis of his belief completely negates the creation of an impression of illegal surveillance. Furthermore, as previously indicated, Slankard did not present the appearance of a credible witness on the major points of his testimony. Even assuming his testimony to be uncontradicted, I do not find him to be a witness of sufficient credibility to establish the facts contended. I find it clear that Coley as a witness, compared to Slankard, merits crediting. I credit Coley's denial of these facts in issue and discredit Slankard's version of such facts. Accordingly, I recommend the dismissal of complaint paragraphs 8(a) and 8(b) relating to the factual issues herein involved. 6. The General Counsel's complaint (paragraph 7(d)) alleges that Supervisor Banks, on or about March 12, 1969, interrogated employees, created the impression of surveillance by telling one employee that Respondent had been furnished the names of its employees who supported the Union and by telling another employee that he (Banks) knew the employee had attended a union meeting. The General Counsel's principal witness in support of the complaint allegation was Allen. Allen testified in effect that on March 12, 1969, he had a conversation with Banks in which he gave notice of leaving, that Banks asked what was wrong with Thurston, that he replied in effect that what was wrong was that Thurston had fired three men because of Teamsters activity, that Banks replied that he did not know this but was glad to know it, that Banks asked him if he could help out by giving the names of other Teamsters leaders, that Banks told him that Dyer was squealing to them about the union leaders and that the men should know this, that Banks asked if there was any trouble with the Union, that Banks asked in effect about what "Dale and Tommy," two older men, would do, and that Banks threatened that Thurston had men who would run over picket lines, and talked about having lawyers and about a past incident. Banks did not deny that he engaged in the interrogation described. Banks, however, denied that Allen accused him of firing the three men because of union activity and testified in effect that the word used about Dyer was not "squealing" and was about the theft problem. Considering the demeanor of the two witnesses, I found that Banks appeared to be a more frank, forthright, and truthful witness than Allen. The logical consistency of the evidence also militates to a crediting of Banks over Allen. I am also convinced, as an example, that Banks would not have proceeded to ask for help, to discuss the Dyer episode as described, and to make threats as described, if, as Allen testified, Allen had accused the Respondent of having fired three union men. I credit Allen to the effect that Banks did engage in interrogation as to employee sympathies and did request the names of leaders. I discredit Allen's testimony otherwise in conflict with Banks. Accordingly, I conclude and find that the evidence establishes that the Respondent, by Terminal Manager Banks, engaged in interrogation as to employees' union activities or beliefs in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. Except as so found herein, it is recommended that complaint paragraph 7(d) be dismissed. 7. The General Counsel's complaint (paragraph 9) alleges in effect that Supervisor Majors, on or about March 21, 1969, interrogated an employee concerning his activities on behalf of the Union. The only witness to the events concerning this allegation was Dyer. The evidence is clear that on November 18, 1968, Dyer filed an unfair labor practice charge with the NLRB in which he alleged that the Respondent had discriminatorily laid him off on November 15, 1968, because of his membership or activities in behalf of the Union. The General Counsel did not allege violative conduct with respect to the allegations in said charge Under the circumstances there is no basis to warrant a conclusion that the charge was other than THURSTON MOTOR LINES, INC. one without merit. As indicated, on February 26, 1969, the Union filed a petition for representation rights for Respondent's employees in Case 26-RC-3412. On March 18, 1969, a representation hearing in said case was held. Dyer attended the representation hearing at which the Teamsters was represented by a Mr. James Hall, a Negro. On, Friday morning ,1 March 121, 1969, Dyer did not receive his paycheck at the regular time that he was normally paid. Thereafter he went on the dock and told Dock Foreman Majors about the failure to get his check. Majors asked Dyer in effect if he had called his "nigger buddy" yet. Dyer later asked Terminal Manager Banks about his check and Banks told Dyer that he would check into it. Banks later told Dyer that his check was there and gave it to Dyer. Considering all of the foregoing, I conclude and find that Majors' remarks did not constitute conduct that interfered, restrained, or coerced Dyer in his union or protected activities. I shall recommend that complaint paragraph 9, the allegation to illegal conduct in such regard, be dismissed. 8. The General Counsel's complaint (paragraph 7(f)) alleges that Supervisor Banks , on or about April 18, 1969, interrogated an employee concerning his employee's union membership, activities and desires, told the employee he could not be given a wage increase because of the Union, and withheld such wage increase from the employee. Camp and Banks were the witnesses to the foregoing issues. It is noted that the events involved occurred during the time of a union's efforts to obtain representation rights for Respondent's employees and when an NLRB representation election was scheduled for April 26, 1969. Banks credibly testified to the effect that prior to the events involved he had been advised that the granting or withholding of wage increases during a union organizing campaign resulted on occasion in a company being found guilty of violation of the National Labor Relations Act. The composite effect of Camp's and Banks ' credited testimony was to the effect that around the first of April 1969 Camp approached Banks about a raise, that there was no set policy as to raises , and that Banks told Camp in effect that he had not checked the records but, if he were due a raise, he would see that he got it, however, salaries were frozen because of the union activities and that no raises had been given and an exception could not be made for him. Camp further credibly testified, and Banks did not deny, the following as is revealed by excerpts from Camp's testimony: A. He just asked me what I thought about the situation, asked me if I thought the men would give him any trouble. I told him that I didn't know whether they would or not, that they come and went so fast that I didn't know but just a very few of them. Q. The situation. Did he mention the situation at all, or did he elaborate on that at all, what he was talking about? A. Well, we was talking about my raise and the union and that was the conversation. Banks was questioned as to the reasons for Camp's not receiving a raise in March or April 1968. Such testimony is revealed by the following excerpts from his credited testimony: Q. (By Mr. Bensley ) Was there any reason besides the petition and the election coming up that he didn't get a raise? 949 A. I haven't evaluated his work, and I never give a man a raise without discussing it with his supervisor, and evaluating it to see if he has merited a raise. Q. (By Mr Bensley) I will just ask the question while it is fresh on your mind, Mr. Banks. Did the union activitiy have something to do with him not getting a raise at that time? A. Yes. It is also clear from Camp's credited testimony that the Respondent had no set policy for wage increases, that Banks had told him in 1968 of a desire to give periodic wage increases, and that Camp's last wage increase was in November 1968. Camp credibly testified to the effect that he had a later conversation with Banks around April 15, 1969, as is revealed by the following excerpts from his testimony." Q. All right. Tell us what was said at that time and who said it, as best you recall? A. He told me he was sorry that he had overlooked the fact that I was due a raise the first - I was due a raise. That as soon as this situation with the union and the raises were lifted, he would right his wrong. Considering the foregoing in total context, I conclude and find that the interrogation involved herein at most suggests general inquiry of opinion as to the possible outcome of an oncoming election. As such I conclude and find that the General Counsel has not established that Banks interrogated employee Camp about union activities or desires, or protected activity in a manner constituting interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act Considering the foregoing, I find it clear and conclude and find that Banks, in April 1969, told Camp in effect that wage increases were being withheld because of the pendency of union activities (and the election). The Board has ruled on similar situations and similar contentions against the Respondent's position. Thus, persuasive as Respondent's arguments or reasons may be, the issue is one as a matter of law previously decided by the Board. Accordingly, in accordance with Board law, it is concluded and found that the Respondent, by such conduct, engaged in conduct violative of Section 8(a)(1) of the Act. Considering all of the foregoing, I conclude and find that the General Counsel has failed to establish that the Respondent actually withheld a wage increase from Camp on April 18, 1969. Thus I note that the General Counsel's complaint allegation made it clear that the complaints of interrogation, threat, and withholding of wage increase occurred on the same date, April 18, 1969. The facts as to the interrogation and threat were placed by Camp as being the first of April. The same facts reveal that at that time Banks referred to the fact that he had not checked the records. Thus it would appear that the question as to whether a wage increase was due was speculative. The General Counsel would argue that Banks, in the second conversation, in effect admitted that a wage increase was due as of the time of the first conversation. General Counsel's questions and Camp's answers as to the events raise a question as to the timing of events. Thus, if as alleged in the complaint, the initial conversation had "Banks does not appear to have been questioned about this incident To the extent that his testimony , with respect to what he told Camp during the first conversation, might be deemed a denial hereof it is discredited for such purpose 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred around April 18, 1969, the second conversation would have occurred around the first of May, and reference to a wage increase being due as of the 1st would refer to the 1st of May 1969. The General Counsel's follow-up question as to the time of the second event and the answer thereto results in confusion between allegation and proof. The General Counsel would further argue that Banks' answer, to the effect that union activity had something to do with Camp's not getting a raise, constitutes an admission that a wage increase was withheld for improper reason. I have considered all of the foregoing. I am convinced that Banks was a truthful witness to these events and attempted to honestly relate the answers to the questions propounded. Thus I am convinced that Banks' answer of "yes" to General Counsel's question as to whether union activity had something to do with Camp's not getting a raise was truthful, and that it in effect related only to the fact that during the period of time involved he was not considering any employee for raises. I am also convinced that Banks' testimony to the effect that Camp did not get a raise because he had not evaluated his work reveals that the Respondent in fact did not determine whether or not Camp was due a raise. In sum, I conclude and find that the General Counsel (1) has not sustained his burden of proof on the allegation that wage increases were actually withheld from Camp on April 18, 1969, and (2) has not established interrogation as to union activity in violation of Section 8(a)(l) of the Act. Accordingly, it will be recommended that complaint paragraph 7(b) in such regard be dismissed. As indicated, the facts establish that the Respondent, as alleged, violated Section 8(a)(l) of the Act by its statement of withholding wage increases because of union activity. 9. The General Counsel's complaint (paragraph 10) alleges that the Respondent , by Supervisors Hastings and Pruitt, on or about April 26, 1969, told its employees that the 13 employees who had voted for the Union would be fired. Camp, a witness for the General Counsel, credibly testified to the effect that on April 26, 1969, he had a conversation with Supervisor Hastings at a place away from the terminal. What occurred is revealed by the following credited excerpts from Camp's testimony. A. I asked him how the election come out, because I left before it was over, and he told me the vote was 43 to 13, and we went on talking about his dad and first one thing and another and he told me later during the conversation that those men would be fired, because Mr. Thurston would find out some way or another how who voted and they would be fired. Q. Did he say anything that he based that statement on at all? A. He just said he knew. Camp further credibly testified to the effect that he and Hastings were very close friends and had been practically raised together , and that the conversation was one practically as brother to brother. Spears, a witness for the General Counsel, testified to the effect that on Saturday after the election, on April 25, 1969, Supervisor Pruitt said to him, "Well, everybody that voted union is going to have to be finding them another job, because they are not going to be working here too very much longer ." On cross-examination , Spears admitted giving the NLRB an affidavit on May 23, 1969, relating to contention that he was discriminatorily discharged, and in which he had set forth, "No supervisor has ever asked me if I was for the Union or told me that I would lose my job because of the union, or anything like that." Pruitt, a witness for the Respondent, testified in denial that he had said in effect that the ones who had voted for the Union may as well go and get another job because they won't be working here. Pruitt testified to the effect that he had said that there were 89 trucklines in Memphis, that anyone who wanted to work for a union truckline could do so by working for one of the 89 union trucklines, that all they had to do was to go to work. Considering the demeanor of witnesses Spears and Pruitt, and Spears' prior statement in his affidavit, I find Pruitt to be the more credible appearing witness and credit his version of the facts and discredit Spears' version of the facts. Considering all of the foregoing, I conclude and find that the evidence does not establish that the Respondent, by Pruitt, made a violative threat as alleged. Considering all of the foregoing, I conclude and find that the evidence as to Hastings' statements to Camp on April 26, 1969, establishes that the Respondent, by Hastings , threatened that employees who voted for the Union would be discharged. Such conduct is violative of Section 8(a)(1) of the Act." 10. The General Counsel's complaint (paragraph 7(g)) alleges that Respondent, by Terminal Manager Banks "On or about May 2, 1969, told two of its discharged employees that they would be given good recommendations for other employment if they dropped their charges with the National Labor Relations Board, but if they did not drop their charges, they would not be given good recommendations." Grisham and Henderson testified in effect to facts, which if believed, support the above allegations. Banks testified in effect to facts, which if believed, rebut such allegation . It is sufficient to say that I am convinced from the demeanor of the witnesses and the logical consistency of the facts that Banks appeared to be the more truthful witness to the events. In fact, the examination and cross-examination of Henderson tend to corroborate the probabilities of Banks' testimony. I credit Banks' testimony to the events and discredit Grisham's and Henderson 's testimony where inconsistent with that of Banks. It is undisputed that Banks had conversations with Grisham and Henderson about 1 month after their discharges. Henderson came by Banks ' office to talk with Banks . Grisham later telephoned Banks. The conversations involved inquiries by Grisham and Henderson as to the securing of releases of credit checks to a company for whom Grisham and Henderson were then working. Grisham and Henderson needed such releases in order to become regular workers at such company. Banks credibly testified to the effect that in his discussion with Henderson he asked if he were there to set him up, told Henderson that he was not telling anything on any of the people who had charges," and said that he "Respondent did not file a brief in this matter. Its questions to Camp suggest a contention that the remarks by Hastings were not coercive because Hastings and Camp were "like brothers " The test of intimidation is not an objective one but a subjective one. See Vernon Livestock Trucking Co., 172 NLRB No. 213; McKinnon Services, Inc, 174 NLRB No. 169; and cases cited therein "The record uses the word "cards." My recollection of Banks' testimony and the logical consistency of events reveal that the word "charges" was used. THURSTON MOTOR LINES, INC. wasn't saying anything good or bad about them. Banks credibly testified that he similarly told Grisham that he was not going to talk about the matter one way or the other as long as a charge existed. Banks credibly testified that he did not say or imply to either Henderson or Grisham that if they dropped their charges that he would give them a good recommendation. Banks further credibly testified that when the retail credit people came around that he told them that he was not at liberty to discuss the matter, and that he did not. Considering all of the foregoing, I conclude and find that the General Counsel has not established, as alleged in complaint paragraph 7(g) and conclusionary paragraphs thereto, that the Respondent by the foregoing conduct has violated Section 8(a)(l) and (4) of the Act. 11. The General Counsel alleges in his complaint (paragraph l l(b)) that Supervisor Goza "on or about May 23, 1969, told an employee he would not receive his vacation pay because he had filed charges with the National Labor Relations Board." The facts are clear that Grady C. Camp, Jr., was discharged on May 14, 1969, and that at that time he was entitled to vacation pay. The facts are clear that he brought this matter to Terminal Manager Banks' attention. On May 23, 1969, Camp went to the terminal to pick up his final paycheck. Camp attempted to see Terminal Manager Banks about his vacation pay which he had not received. Camp was only able to speak to Operations Manager Goza and to explain his mission. Goza left for a short while and returned and told Camp that Terminal Manager Banks was not going to file with the Company for Camp's vacation pay because he had filed an affidavit with the National Labor Relations Board. As of the time of the hearing in this matter, Camp had not received his vacation pay. The Respondent's defense appears to be that Banks, because of irritation at Camp about the termination interview on May 14, 1969, decided not to file for vacation pay but to let Camp do so. To make a long story short, I found Camp a very credible witness. Considering his demeanor and Banks' and the logical consistency of the facts, I credit his version of the facts relating hereto. Considering all of the facts and the logical consistency thereof, I reject the Respondent's apparent contentions in this regard. Although the wording of the General Counsel's complaint appears to be that normally used for 8(a)(l) type allegations as to these events, the conclusionary paragraphs allege both 8(a)(1) and (4) as to this incident. I find the issue litigated as both a violation of Section 8(a)(1) and Section 8(a)(4). The parties did not argue the question of employee status. Even though I find later in this Decision that the evidence does not support a finding of discriminatory discharge of Camp on May 14, 1969, I am convinced that he was an employee, within the meaning of the Act, at such time as his relationship with the employer had not been completely concluded with respect to his rights of pay for employment. Accordingly, I conclude and find that the facts reveal that the Respondent violated Section 8(a)(l) of the Act by Goza's statement to Camp that Banks would not file for his vacation pay because Camp had filed an affidavit with the NLRB. I further find that the Respondent's failure to process Camp's vacation pay was for the same reason, and that Respondent thereby violated Section 8(a)(4) of the Act. E. The Discrimination Issues Don R. Slankard 951 The General Counsel alleges that Don R. Slankard was discriminatorily discharged on March 8, 1969, in violation of Section 8(a)(1), (3), and (4) of the Act. Don R. Slankard was hired as a warehouseman by the Respondent in July 1968." Thereafter in January 1969 he took, and failed, a driver's test, later passed a driver's test, and in January 1969 became a city driver. Slankard signed a Teamsters Union card on January 21, 1969. At some unknown time, off of plant premises, Slankard got two other employees to sign Teamsters Union cards. Slankard did not attend any union meetings. Slankard, however, talked to some of the other employees about the benefits of voting for the Teamsters. In regards to the foregoing there is no direct evidence of company knowledge of Teamsters activity on Slankard's part. On March 3, 1969, Slankard became assistant job steward for the TEA Union. However, he did not have a dues deduction authorization submitted to the Company and there is no evidence that the Company knew of Slankard's activity for the TEA. In 1968 while Slankard was working as a warehouseman, Terminal Manager Banks complimented his work. The evidence relating to Slankard's work as a driver is not persuasive that anyone complimented his work as a driver. Thus Slankard's testimony of receiving compliments from Supervisor Coley is contradicted by Slankard's prehearing affidavit and is discredited. It is clear that in early February 1969 Operations Manager Goza orally reprimanded Slankard for leaving the terminal in a truck with a trailer door open and with freight loaded on the tailgate. The record is clear that in February 1969 Slankard engaged in a fight at work with a fellow employee. The record also clearly reveals that around this time the Company was faced with a theft and shortage of merchandise problem, that an employee was apprehended and fired for theft, and that other employees including Slankard were warned about the problem and solicited to return merchandise taken from the terminal. Slankard returned a substantial quantity of merchandise at such time. Also during this time Slankard and Supervisor Coley became involved in a dispute over whether Slankard would follow orders. This dispute almost resulted in Slankard's getting fired by Coley. On March 8, 1969, Slankard was told to hook up a trailer to a tractor. Slankard discovered a problem with the "dollies" and sought help from Shop Foreman LoVorn. LoVorn locked the truck under the trailer and then left. Slankard then proceeded to hook up the tractor and trailer. When Slankard started to drive the trailer out of the terminal, the trailer "dropped" from the tractor. Slankard testified to the effect that LoVorn and he both had checked to see whether the safety latch, with respect to the tractor and trailer, was engaged and found that it was. LoVorn testified to the effect that he did not check the trailer for proper connection, that this was left to Slankard to do as part of his duties. I found LoVorn to appear to be a more credible appearing witness than Slankard. Considering Slankard's demeanor, his direct and cross-examination, and his prior statements, I am convinced that he stretched the truth in his own favor. I 'The facts are based upon a composite of the credited testimony of Slankard, Banks, Coley , LoVom, Barbee , Collier, and Majors , exhibits in the record, and the logical consistency of the evidence 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credit LoVorn's testimony to the effect that he did not check the proper connection of the trailer. I discredit Slankard's testimony to the effect that he did so. After the trailer had dropped from the tractor, Slankard and others, and later LoVorn, inspected the tractor and trailer Slankard credibly testified to the effect that after the trailer dropped, the latch was still in a locked position with the safety latch down, and that an employee named Moore told LoVorn that a trailer had been dropped by him with the same tractor a week before. LoVorn credibly testified to the effect that in connecting the trailer to the tractor that the driver has to have the latch hooked up, the air hoses hooked up, the dollies pulled up, and the fifth wheel checked. LoVorn credibly testified to the effect that after the trailer had been dropped, he checked the fifth wheel and the connecting mechanism and found no mechanical flaws. The matter of the trailer drop was reported to Majors Thereafter for the rest of the day Slankard was assigned nondriving duties. LoVorn had to hire a wrecker to have the trailer picked up. LoVorn thereafter presented the bill for the wrecker service to Terminal Manager Banks and LoVorn told Banks of the trailer dropping incidents. Banks then went to Supervisor Majors for a report on the incident. Majors and Banks discussed this matter, the incident of Slankard's fight with Butler, and other incidents Terminal Manager Banks told Majors that Slankard had to go. The matter was left to Majors to handle. At the end of the workday on March 8, Slankard discovered that his timecard was missing. Slankard went to Dock Foreman Munns and asked where his timecard was. Munns replied that he did not know. Slankard asked if he had been fired. Munns replied that Slankard had been fired. Apparently a short time later Slankard spoke to Munns in the office and Munns told Slankard that he had been fired for dropping the trailer, that he and Operations Manager Majors had talked the matter over, that they had called Terminal Manager Banks and it had been decided that it was best for the Company if Slankard did not work there anymore. Majors was away from the terminal for a few hours. Slankard waited and saw Majors when he returned. Majors in effect repeated what Munns had said and stated that the wrecker had cost $20 Majors asked Slankard when he had punched out Slankard said that he did not have his timecard Majors replied that he did, pulled the card, and wrote the time (for punching out) on the card. Slankard, later that day, telephoned Banks and made arrangements to see Banks on Monday, March 10, 1969. On Monday, March 10, 1969, Slankard met with Banks and Majors at the terminal office. Banks in effect told Slankard that the trailer dropping was the straw that broke the camel's back. Banks also discussed the question of past insubordination, failure to perform duties satisfactorily, failure to get along with others, and the abusing of equipment Banks then in effect suggested that Slankard should resign, and stated that in a similar situation an employee had not resigned and had later come back and related that he had not been able to get a job. Banks asked Slankard what he wanted on his termination slip. Slankard wanted to know what would be on the slip. Banks indicated that he would put the "truth" or that he had resigned Slankard agreed that he wanted to voluntarily resign. Slankard's termination slip was thereupon completed by office personnel in such fashion. Analysis and Conclusions The General Counsel, at the hearing and in his brief, made many arguments and contentions to the effect that the evidence adds to a finding that the Respondent discriminatorily discharged Slankard on March 8, 1969, in violation of Section 8(a)(1), (3), and (4) of the Act. I have considered all of the General Counsel's arguments and the evidence as a whole, and am convinced that the General Counsel has not established by a preponderance of evidence that the Respondent was discriminatorily motivated in the discharge of Slankard on March 8, 1969. It is Respondent's contention by its pleadings and statements of counsel that Slankard was not fired on March 8, 1969, for "dropping a trailer" but that Slankard quit on March 10, 1969. In this regard, I find the facts to clearly support General Counsel's contention that Slankard was discharged on March 8, 1969, under circumstances indicating that he was discharged for "dropping a trailer" on March 8, 1969 The critical question is whether Slankard was discharged on March 8, 1969, for discriminatory reasons in violation of Section 8(a)(l), (3), and (4) of the Act. The General Counsel contends that he has established a basis for a finding that Respondent knew or believed that Slankard was active on behalf of, or interested in, the Teamsters at the time of the discharge on March 8, 1969. It is clear that the record reveals no basis of direct knowledge or belief by the Respondent with respect to Slankard's involvement in the Teamsters Union. The General Counsel contends that an inference should be drawn on a "small plant" theory that Respondent had such knowledge or belief of Slankard's union activity In my opinion the evidence is of insufficient persuasive value to warrant such an inference. Thus the evidence of overall Teamsters Union activity is meager concerning the time period involved, such activity as was carried on was not of notorious and public fashion, the employees and supervisors do not work on assembly line or in a manner wherein such activity reasonably could be expected to be observed, the reason and circumstances of Slankard's discharge do not reveal a patent ulterior reason from which an inference of discriminatory motivation should be drawn I therefore do not find it proper to draw an inference that the Respondent knew of Slankard's activities on behalf of the Teamsters Union at the time of his discharge on March 8, 1969. The General Counsel's other theory of company knowledge of Teamsters activity, based upon an assumption by Respondent of Teamsters interest by certain employees after the February 26, 1969, TEA disclaimer of interest in Case 26-RC-3412, is not supportable, especially in Slankard's case, since there is no evidence of Respondent's knowledge of his TEA interest or position holding at the outset." With respect to the question of discriminatory motivation regarding Slankard's discharge, the General "The General Counsel contends proof of company knowledge reflected in certain affidavits for which he failed to lay a foundation for affirmative evidentiary use THURSTON MOTOR LINES, INC Counsel argues the `sham" defense, the failure of other firings because of `theft," the failure of Respondent's notation on Slankard's personnel records as alledgedly required by Government rules about the "theft" question the firing for 'dropping a trailer" when others had not been fired for such cause, the number of discharges during the Teamsters campaign as compared to all other discharges throughout the period of time Terminal Manager Banks was at the terminal, and the unerring discharge of Teamsters adherents Considering the evidence thereto and these contentions in the light most favorable to the General Counsel, the evidence of 8(a)(I) conduct found in this case, the discharge of Grisham because of conduct involved in pursuing a contractual grievance, and the Respondent s demonstrated propensity for violating Section 8(a)(1) and (3) of the Act in prior cases, I am of the opinion that the evidence is insufficient to reveal that Slankard's discharge was discriminatorily motivated in violation of Section 8(a)(I), (3), and (4) of the Act Furthermore, the evidence with respect to the foregoing contentions, in my opinion is not greatly persuasive as to revealing the cause for discharge Thus, considering the theft problem, the advice to Banks that if he discharged employees for ' theft," it would be more difficult to get to the bottom of the "theft ' problem, and the fact that Slankard appeared to be a heavy transgressor concerning the theft" problem, I find it understandable that there were not other firings for "theft"" and that Respondent would be motivated to fire Slankard at the slightest incident, even one for which employees were not normally fired Nor do I think it greatly significant that Respondent did not note on Slankard's personnel records, even if required by Government rules, the theft' incident under such circumstances The rules referred to by the General Counsel basically appear designed to protect the public against conduct relating to driving Even under the General Counsel's interpretation, I find the failure to note the `theft" question not to be persuasive as to discriminatory motive Further concerning the sham ' defense argument, that the Respondent contended that Slankard quit" instead of having been fired I am convinced under all the facts, that this does not supply the necessary evidence of discriminatory motivation Suffice it to say that the other contentions are not persuasive when all of the facts are considered Considering all of the foregoing and the entire record, I conclude and find that the evidence does not preponderate for a finding that the Respondent discharged Slankard on March 8, 1969, for discriminatory reasons within the meaning of Section 8(a)(1), (3), and (4) of the Act Rather, I conclude and find that the Respondent was motivated to get rid of Slankard at the first opportunity after discovering his involvement in its theft problem, but not on the purported grounds of theft Arnold Grisham The General Counsel alleges and contends that the Respondent discriminatorily discharged Arnold Grisham "Other than Cogburn who had initially been fired "As indicated General Counsel s theory and arguments touch a total and interrelated evaluation of all facts in the case Specific consideration of the various items of argument has been generally set out at appropriate places in discussion of various issues I find it unnecessary to repeat such consideration with respect to effect on every other issue It is sufficient to say that each issue in this case has been considered on the basis of the total facts 953 on March 10, 1969, in violation of Section 8(a)(1), (3), and (4) of the Act The facts relating to the issues involved may be set forth as follows '" Arnold Grisham commenced work for the Respondent around June 1967 as a warehouseman Later Grisham received a promotion and became a driver It is not clear when Grisham was promoted to driver but his testimony about receiving a letter from the terminal manager concerning his (Grisham) leaving a piece of freight at a freight line suggests that the promotion occurred in 1967 In February 1969 Grisham was told by Terminal Manager Banks that he had received word from Ford Motor Company complimenting Grisham's loading of a trailer Shortly thereafter, Banks received word from the Nashville terminal to the effect that from Respondent's view Grisham had not done a good job on the loading for Ford Motor Company Banks did not inform Grisham of the later criticism Also in February but later, Supervisor Goza complimented Grisham on a job in switching trailers Grisham signed a Teamsters Union card on September 22, 1968 Either before or after this time but in September 1968, Grisham became a union steward for TEA On March 7, 1969, Grisham reported to work around 8 30 a m Around 3 30 p m Grisham was assigned a job' of delivering a full trailer to another freight line At the time Grisham informed the dispatcher that he wanted to get off early that day, that he would like to get off "on his nine hours ' The dispatcher told Grisham in effect that something would be worked out and to call in around 5 p m Grisham telephoned the dispatcher around 5 p m and asked about relief and was told to call back at 5 30 p m At 5 30 p m Grisham called the dispatcher and asked if he could have a relief man The dispatcher referred Grisham to Supervisor Goza Goza told Grisham that he did not have a relief man and that Grisham would have to stay on the job Grisham stayed on the job and completed the job around 7 p m On Monday, March 10, 1969, Grisham went to see the dispatcher and asked to see Terminal Manager Banks The dispatcher went into Banks' office and returned with Supervisor Goza Goza asked Grisham about his problem and Grisham explained that his problem was about the work problem on Friday Goza left Grisham and went into Banks' office About 15 minutes later Goza returned to where Grisham was and told Grisham to go in and see Banks Grisham went in to see Banks and started relating his complaint about having to work over 9 hours on Friday Grisham demanded in effect that Terminal Manager Banks correct Operations Manager Goza for not letting him off on Friday within his 9-hour period 19 Banks told Grisham in effect that he could answer his question without going into all the details, that his work was not satisfactory, that he was insubordinate, that he had reports from LoVorn (shop foreman) that Grisham had been abusing equipment, that if he did not bring his work up to standard right away and improve, he (Banks) was going to fire him and that things were like that - cut "The facts are not in great dispute and are based upon a composite evaluation of the credited aspects of the testimony of Banks Grisham and LoVorn exhibits in the record and a logical consistency of all of the facts "In accordance with the terms of Respondents contract with the TEA 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and dried. Grisham left Banks ' office and a short time later spoke to Shop Foreman LoVorn. Grisham asked LoVorn if LoVorn had told Banks that he (Grisham) was abusing equipment. LoVorn indicated to Grisham that he had told Banks that all of the drivers were abusing equipment.'° Later during the morning , Grisham saw Goza in Banks' car at the Consolidated Freightways Terminal." Around noon, when Banks was returning to the terminal from lunch, Banks saw Grisham coming around the building in a tractor-trailer. Banks observed that Grisham stopped accelerating the tractor and allowed the unit to idle while moving around the building. Banks observed that Grisham appeared to be looking at him with a smirk on his face.22 Around 5 p.m. Grisham came to the terminal and was given an assignment to put a seal on a trailer . At about this time, Banks spoke to Grisham through the office window and told him that he wished to see him before he left, indicating that he had heard Banks . Some time later, after Grisham had not been in to see Banks, Banks went to look for Grisham and found him sitting in his car with the motor running . Banks told Grisham that he had told him to come in to see him, that this was it, that he could not use him anymore. Grisham told Banks that he had not heard him tell him to report back. Grisham told Banks that he would like to talk to him about it. Banks told Grisham that there was no need to talk about it, that this was it, cut and dried, that he was fired.22 Analysis and Conclusions The General Counsel contends that he has established facts to reveal that the Respondent discriminatorily discharged Grisham in violation of Section 8(a)(1), (3), and (4) of the Act. The Respondent contends that it discharged Grisham for cause. The credited evidence reveals no direct knowledge or belief of Grisham's activities in or on behalf of the Teamsters Union."' For the same reasons as previously set forth with respect to Slankard, I find no warrant to infer company knowledge of Grisham's Teamsters Union activity on the "small plant" theory. The General Counsel, as indicated, argues a theory that the Respondent in effect assumed that Grisham was a Teamsters Union adherent by virtue of the TEA disclaimer in interest in Case 26-RC-3412 on February 26, 1969. The General Counsel also argues that the Respondent fired Grisham as retaliation against him because the TEA filed the aforesaid disclaimer. "I credit Grisham 's version of the conversation with LoVorn over LoVorn' s. However I credit Banks' and LoVorn's testimony to the effect that LoVorn had told Banks that Grisham had been abusing equipment " Considering all of the facts, including Goza's checking of Henderson on his route , I find no persuasive significance to this particular fact. "The facts are not in great dispute . Grisham 's testimony was to the effect that he was driving the way he should under the circumstances, and was not "smirking " The issue is basically one of motivation on Banks' part , and I am convinced that his observation and belief was as testified to by him. "The facts are based upon a composite of the credited aspects of both Banks ' and Grisham 's testimony . As a whole Banks appeared to be the more credible witness and where the testimony is in conflict , I credit Banks over Grisham . Grisham appeared prone to exaggerate and to stretch the truth . Grisham at first denied being in his car during the time but later admitted being in his car. The issue is primarily related to motivation, and it is clear that Banks had reason to believe that Grisham was resisting his instructions at the time The General Counsel argues in effect that the Respondent had a "sweetheart" contract with the TEA, that the Respondent preferred the TEA over the Teamsters, and that therefore it retaliated against known TEA officials when the TEA filed the March 4, 1969, disclaimer in interest in Case 26-RC-3412, wherein the Teamsters had petitioned for representative rights concerning the employees involved herein. The General Counsel contends that the prior Board decisions reveal past conduct of animus against the Teamsters, of preference for TEA over the Teamsters, and of a propensity to engage in 8(a)(1) conduct and discriminatory discharges to support its animus against the Teamsters. The cases for which official notice was taken and referred to previously support such contentions. The evidence reveals that the Respondent and the TEA at the Memphis terminal have had a collective-bargaining relationship since 1956, and that there existed a current collective-bargaining contract at the time of these events. The past Board cases referred to by the General Counsel, however, also reveal opposition at one of the terminals to the TEA. The General Counsel argues that the Respondent did not abide by its contract with TEA and that this proves a "sweetheart" relationship. The General Counsel argues in effect that Respondent's 30-minute lunch period disregarded the contract's provision, that Respondent's requirement that Grisham work more than 9 hours in l day disregarded the contract's provisions, and that Respondent's failure to give the alleged discriminatees warning letters disregarded the contract's provisions. In my opinion the evidence, excepting for the failure to give warning letters, does not support the General Counsel's contentions . At the very least Respondent's 30-minute lunch period is arguably within its right to set a lunch period between 30 minutes and 1 hour, and the not over 9-hour requirement appears, from the contract as a whole, to restrict the Respondent's working of an employee over 9 hours in I day for the purpose of guaranteeing him 40 hours of work. It arguably does not restrict the use of the employee for over 9 hours in l day, provided that the hours over 9 do not count toward the guaranteed 40 hours per week. With respect to the failure to give warning letters to the employees discharged on March 8, 1969, and thereafter, I note that these incidents occurred after the TEA filed its disclaimer in interest in Case 26-RC-3412 involving the same employees then represented by TEA. Although perhaps a contract violation, under the circumstances, I find this evidence of insufficient persuasive value to reveal that the Respondent and the TEA had a "sweetheart" relationship. Perhaps it may be said that the General Counsel's arguments do not reach the point of contending in effect that the Respondent violated Section 8(a)(1) and (2) of the Act by the contended "sweetheart" relationship. In any event he did not allege such in his complaint and his proof does not so establish. The General Counsel's own evidence is to the effect that Terminal Manager Banks approached employees with a design to get them to let him handle their affairs and to do without the TEA. This is hardly suggestive of a "sweetheart" relationship. In sum the General Counsel's theory of retaliation against known TEA adherents because of the TEA'S March 4, 1969, disclaimer in interest, and his theory of 'Grisham 's testimony to such an effect is discredited. THURSTON MOTOR LINES, INC. vicarious knowledge or belief of Teamsters activity by Grisham and others, because of the aforesaid disclaimer, relies basically upon the background evidence of TEA preference over the Teamsters at another terminal. There is no evidence of any statements by Respondent's officials in the current events at the Memphis terminal which reveal TEA preference over the Teamsters or animus against TEA officials because of the disclaimer. Banks' testimony and the evidence as a whole reveal that Respondent's motivation for the discharge of Grisham was engendered and mainly caused by Grisham's speaking to Banks on the morning of March 10, 1969, about Goza' s requiring him to work on March 7, 1969, beyond the 9 hours and allegedly more than the collective-bargaining agreement required. It is clear that Banks knew that Grisham was a job steward for the TEA, and that Banks knew that Grisham was arguing a grievance pertaining to a collective-bargaining contract right. Considering all of the foregoing, and all of the facts in this case, I conclude and find that the General Counsel has failed to establish a basis for fact finding based upon his theory of Respondent's vicarious knowledge of Teamsters Union activity by TEA officers or adherents because the TEA filed a disclaimer in interest in Case 26-RC-3412. For the same reasons I conclude and find that the General Counsel has failed to establish a basis for fact finding based upon his theory that Respondent was motivated against TEA officers and adherents in reprisal against them because the TEA had filed a disclaimer in interest in Case 26-RC-3412. Considering all of the facts, I conclude and find that the evidence fails to establish that the Respondent was discriminatorily motivated in its discharge of Grisham on March 10, 1969, and thus fails to establish that the Respondent, by the discharge of Grisham, violated Section 8(a)(3) and (4) of the Act. The facts, however, reveal that the Respondent discharged Grisham because of his exercising a protected concerted right in the processing of a collective-bargaining contract grievance. Such conduct constitutes conduct violative of Section 8(a)(l) of the Act. I so conclude and find. Roy R. Henderson The General Counsel contends in effect that the Respondent discriminatorily discharged Roy Henderson on March 10, 1969, in violation of Section 8(a)(1), (3), and (4 ) of the Act. Henderson commenced his employment with the Respondent in August 1964 as a dockworker." Around 1 1/2 years later Henderson was promoted to a driver position and worked as a driver until the date of his discharge on March 10, 1969. In September 1968, the exact time is not revealed, Henderson became secretary and treasurer of the TEA Union and functioned as such until the time of his discharge . At some point of time in his employment Henderson apparently had become a member of the TEA and apparently had given or signed written authorization for his dues to be deducted by the Respondent for the TEA Union. It appears clear that he was a TEA member at least from a point of time in September 1968 until March 10 , 1969, and that during such time that his dues "The facts are based upon a composite of the credited aspects of Banks', Henderson 's, and Goza 's testimony , the exhibits in the record, and the logical consistency of the facts. 955 were being deducted by the Respondent for the TEA. At some point of time after Henderson became secretary and treasurer of the TEA Union in September 1968 and prior to December 25, 1968, Henderson, Dyer, and Griffin attempted to discuss a grievance about the discharge of an employee named Harry Taylor. Terminal Manager Banks refused to discuss the discharge of Taylor with the aforementioned three on the alleged ground that he (Banks) had no notification of their status with TEA. There was no evidence adduced to reveal that the Respondent in fact had received such notification from the TEA Union. On September 22, 1968, Henderson signed a Teamsters Union authorization card, thereafter talked to some of the other employees about the Union and succeeded in getting several other employees to sign Teamsters Union cards. There is no evidence to reveal that the Respondent had knowledge of any of Henderson's activities on behalf of or interest in the Teamsters Union. Henderson had a conversation with Terminal Manager Banks at a point of time shortly before Christmas 1968 about the TEA Union. Banks asked Henderson what he thought of the TEA. Henderson replied in effect that he did not think the TEA was "doing the employees a nickel's worth of good." Banks asked Henderson why he was a member of TEA if he thought this. Henderson replied in effect that the employees had to be a member of something for representation. Banks told Henderson that as long as he was around, the employees did not need a union , that he would take care of them. Around the first of the year (1969) Henderson was driving a city run and was having difficulty in making all of his deliveries, and in finishing his route on time. The Respondent received complaints from customers about the deliveries. Goza spoke to Henderson about the problem, and checked Henderson's work and the route. Goza was of the opinion that Henderson was spending too much time on the route and was taking too many breaks. As indicated, Goza spoke to Henderson and criticized his work. Henderson offered various excuses. Thereafter Goza rode the route with Henderson. On the occasion that Goza rode the route with Henderson, Henderson finished his route at 1 p.m. instead of 3 p.m. as he normally did.26 Goza told Henderson that if he did not improve that he was going to put him on a trailer until he (Goza) felt he could do better. Henderson's work performance did not improve. Goza thereupon took Henderson off the route and put him on a trailer job for about a week, around the last of January or first of February 1969. After a week Goza returned Henderson to his regular route. It was Goza's opinion that Henderson's work performance did not improve upon his return to his route. Around a period of time between February 26, 1969, and March 4, 1969, a letter addressed to the TEA or to Henderson was sent by the NLRB Regional Office to Respondent's office. This letter related to the filing of a representation petition in Case 26-RC-3412 by the Teamsters Union concerning the same employees represented by TEA at Respondent's Memphis terminal. Around this time a secretary in Respondent's office gave said letter to Henderson and told him that it had been "I credit Goza 's testimony to the effect that he did not tell Henderson that he had a "hell of a route" over Henderson's testimony to such an effect The logical consistency of the facts, the temporary removal of Henderson from the route , and the fact that I found Goza to appear the more frank , truthful , and forthright witness of the two, form the main basis of such credibility resolution. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opened in error. Henderson gave the letter to Dyer who, around March 4, 1969, filed a disclaimer of interest by the TEA in such proceeding. Around March 4, 1969, Dyer advised Terminal Manager Banks that he had filed such disclaimer. During the period of time prior to March 10, 1969, Henderson was returning to the terminal from his route with much undelivered merchandise, and without having picked up merchandise that he should have.27 This resulted in late delivery of merchandise and in complaints from customers. Banks believed that Henderson was goofing off on his job and on March 10, 1969, instructed Operations Manager Goza to follow Henderson on his route. Goza did so and noted that Henderson took two long breaks, approximately around 30 minutes each. Drivers had been instructed to call in when leaving their trucks. Goza checked with the dispatcher and ascertained with respect to the first "break" that Henderson had not checked in with the dispatcher. Goza also noted that Henderson appeared to have taken a longer route between certain deliveries than was called for under the circumstances. Goza returned and discussed the matter with Terminal Manager Banks. Goza and Banks were of the opinion, because of the time involved in the breaks, that Henderson had taken two lunch periods. Banks and Goza decided in effect that they could not put up with such conduct by Henderson and that he should be fired. When Henderson returned to the terminal, Goza discussed with Henderson what he had observed. They engaged in a slight argument as to exactly what had happened. Terminal Manager Banks came in and told Goza in effect to make it "short and sweet." Henderson was discharged and given a termination slip indicating the basis for discharge as "Insubordination and failure to perform duties satisfactory." Analysis and Conclusions The General Counsel contends that the totality of the facts reveals that the Respondent discharged Henderson on March 10, 1969, for discriminatory reasons within the meaning of Section 8(a)(1), (3), and (4) of the Act. For the same reasons relating to the question of company knowledge of Teamsters Union activity on a "small plant" theory, on a vicarious theory related to the TEA disclaimer of March 4, 1969, and the "reprisal" theory against TEA officers and adherents and set forth in the discussion relating to the discharges of Slankard and Grisham, I find the evidence insufficient to support such theories in meaningful fashion. The evidence relating to Henderson's conversation, prior to Christmas 1968, about the TEA's not "doing the employees a nickel's worth of good" and that he belonged to the TEA because employees had to be a member of something for representation, indicates a possible basis for Respondent's belief that Henderson would support the Teamsters under the circumstances herein. The Respondent contends that Henderson was fired for "goofing off" and wasting time 2' "Among the many arguments by the General Counsel is one pertaining to a question of Respondent 's records. Thus the General Counsel subpenaed from the Respondent alleged records pertaining to driver's work or production . Respondent 's statement in compliance was to the effect that it kept no such records . The General Counsel by questions to Grisham elicited testimony to the effect that certain records were turned in by the driver This matter of records was not followed up to reveal whether such records were kept temporarily or were kept on a permanent basis. Under such circumstances the testimony on this point is of no value Considering all of the facts relating to Company's union animus , all of the facts in the case, and the facts surrounding Henderson's discharge, I am convinced and conclude and find that the evidence is insufficient to establish that the Respondent discriminatorily discharged Henderson on March 10, 1969, in violation of Section 8(a)(1), (3), and (4) of the Act.29 William M. Griffin The General Counsel alleges and contends that the Respondent laid off William M. Griffin, on or about April 9, 1969, for a period of approximately 3 days, in violation of Section 8(a)(l) and (3) of the Act. The facts relating to this issue are based upon a composite of the testimony of Griffin and Banks, and stipulation of counsel. The General Counsel's witness Griffin apparently did not live up to expectation, and the General Counsel attempted to establish his proof by use of Griffin's pretrial affidavit. However, he failed to establish a proper foundation for use of the affidavit as affirmative proof, and the affidavit was received only for the purpose of impeachment of his own witness. Griffin was initially employed by the Respondent in 1967 and was still employed as of the time of hearing in this case. Griffin signed a Teamsters Union card on September 22, 1968. There is no direct evidence of company knowledge of his Teamsters Union activity and for similar reasons, with respect to the discrimination issues previously discussed, the evidence is insufficient to establish company knowledge of his Teamsters Union activities on the General Counsel's other theories, or to establish the General Counsel's theory of "reprisal" against TEA officeholders. The General Counsel's questioning of Banks established, in effect, that Banks believed that Griffin had been a TEA officeholder. When Griffin was believed to have been, or was, an officeholder in TEA was not established. The record establishes that Griffin did not work on the days of April 5, 6, 7, 8, 9, 10, 11, and 12. The record does not reveal Griffin's work record for the days preceding April 5, 1969, or the circumstances surrounding the events of such days It is clear that Griffin reported to Goza that he needed to be off on April 7 and 8 to be at home. It is clear that Goza reported the same to Terminal Manager Banks. It is also clear that Banks, as of April 9, 1969, knew that Griffin's wife had been ill and in a hospital. On April 9, 1969, Terminal Manager Banks spoke to Griffin and told him in effect that he had been off too much and that he was giving him a 3-day layoff because he had failed to report to work, that he had unexcused "Among the many arguments made by the General Counsel as to the meaning of testimony is one that Banks' testimony as to coffeebreaks was inconsistent and contradictory. This argument relies heavily upon a fragmentation of Banks' testimony. Banks' testimony as a whole, with reference to this question , reveals, in my opinion , the fact that "coffee breaks" as such were not recognized as policy but were allowed under proper circumstances. "Although the General Counsel made many arguments relating to the evidence and theories , I note that no contention was made with respect to the use of the word " insubordination" on Henderson 's termination slip This, however, it is noted , may be said to describe his failure to call in when leaving his truck , and his failure to utilize the shortest route between stops as directed to be done As indicated , the evidence reveals a basis for Respondent's belief that Henderson would be for the Teamsters The overall facts , however , are insufficient to reveal that this was the reason for his discharge THURSTON MOTOR LINES, INC. absences,3° and that he should use the 3-day layoff to get his house in order. During the conversation between Banks and Griffin, Griffin had related that he had been looking after his children, washing clothes, ironing clothes, and other things. In the conversation, Griffin did not relate specifics about his wife's condition Banks credibly testified to the effect that he laid Griffin off for the reasons as indicated in the excerpts from his testimony. A. Because he failed to report for work on Monday, and on Tuesday of that week, and in my opinion it was an unexcused absence, and we laid him off for those three days to get his house in order so that there wouldn't be a repetition of that. Banks credibly testified that Griffin's reason to the effect that he was needed at home was unsatisfactory, that he (Banks) was needed at home but also was needed at work. As indicated, the facts are somewhat fragmentary. Considering all of the facts and the foregoing, I conclude and find that the General Counsel has not established that the 3-day layoff of Griffin, around April 9, 1969, was for discriminatory reasons within the meaning of Section 8(a)(I) and (3) of the Act. John S. Stevens Stevens was hired as a probationary employee on April 6, 1969 and worked until April 26, 1969, for the Respondent. Stevens was a probationary employee and did not work a full 40-hour week during the 3-week period. The NLRB election in Case 26-RC-3412, involving the Teamsters, was held on April 25, 1969. The only evidence of union activity on Stevens' part involved talking about the Union to fellow employees. There is no evidence to reveal that the Respondent had any knowledge of Stevens' union interests or beliefs at the time of his discharge on April 26, 1969. On April 26, 1969, Dock Foreman Majors informed Stevens that his status was that of a probationary employee, that he was no longer needed, and that his application was not accepted." Stevens pursued the question with Terminal Manager Banks and received in effect the same reasons for his termination. Banks credibly testified to the effect that he made the decision to discharge Stevens and based his decision to discharge Stevens upon his own observation of Stevens' work, that the observation revealed a failure of Stevens to apply himself and be productive. Banks further credibly testified that he had had some discussion with a foreman about Stevens but did not remember who or the specifics. Majors credibly testified that he told Stevens of his termination upon instruction from Banks, that he had discussed Stevens' work with Banks on April 26, 1969, and that Banks had said that they could not use Stevens anymore. Majors testified that he had reports from foremen about Stevens' work, that Supervisor Munns had reported that Stevens' work was unsatisfactory, and in effect that he had observed Stevens' work to be unsatisfactory. "It appears Respondent 's contention is that Griffin merely reported what he was going to do on April 7 and 8 to Goza, and that Respondent did not consider that by such Griffin received authorization for an excused absence . The totality of the evidence so reveals. "Stevens testified confusedly about a question of "references" or "application " being accepted . Considering the logical consistency of all of the facts, I find the facts as set forth. 957 Considering all of the facts and the foregoing, and the many contentions of the General Counsel as to this case in whole, I conclude and find the evidence to be insufficient to reveal that the Respondent discriminated in violation of Section 8(a)(I), (3), and (4) of the Act in the discharge of Stevens. Donald E. Spears Donald E Spears commenced working for the Respondent as a dockworker in February 1968 and worked thereafter until May 1, 1969, when he was fired. Spears' work required that he check incoming freight against invoices, note any shortages on said invoices and sign said invoices, and write up such shortages on a separate sheet. Prior to and during Spears' employment, Respondent had encountered a theft and shortage problem. In February, an employee named Cogburn had been discharged in connection with the theft and shortage problem. Spears had been told in effect by someone that Cogburn had been signing for freight, taking it away, and thus having the Respondent with missing freight. At the commencement of Spears' employment he had been advised of the necessity of accurately checking the incoming freight. Around the time of Cogburn's discharge, it appears that Swanton met with Spears and others and discussed the necessity of accurately checking the incoming freight. Swanton credibly testified to the effect that he had reported several incidents to Terminal Manager Banks and Supervisor Munns of mischecking of freight by Spears. Company invoices in-the record reveal a basis for Swanton's determination of such mistakes as to freight chucking on February 24 (one invoice) and April 23 (two invoices). It would appear that knowledge of such "mistakes" was obtained within a matter of hours or a few days. Swanton credibly testified to the effect that company policy was to the effect that Supervisor Munns would have discussed the mistakes with Spears. Swanton further credibly testified to the effect that Munns had told him later that he had talked to Spears. Spears testified in denial that anyone had spoken to him specifically about the mistakes referred to. Swanton, in his testimony, indicated that the invoices concerning the mistakes had not physically been given to Munns. Considering the fact that the "mistakes" constituted a financial liability to the Company, and the fact that Munns was not given the invoices, I am convinced that Munns spoke to Spears in general about the need for accuracy 32 Around May 1, 1969, Swanton discovered that Spears had signed an invoice for the Jones Truck Line indicating the receipt of two bundles of four boxes and one box weighing 285 1/2 pounds all from Bear Brank Hosiery Co. Swanton also discovered that there was no Respondent record of the receipt of such freight. Swanton reported this matter to Banks who instructed him to fire Spears. Swanton, apparently, a short time later spoke to Spears on the dock. Swanton told Spears in effect that he was going to have to let him go because he wasn't working out, that he was making too many mistakes. Spears asked Swanton to tell him what kind of mistakes. Swanton pulled out a copy of the Jones Trucking Line invoice and discussed the matter of the invoice with Spears." "Under such circumstances I am convinced Spears has forgotten such conversations and did not construe such as a correction "The facts are based upon a composite of the credited aspects of the 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the time of Spears' employment there is no evidence of any involvement by him with the TEA. The evidence also reveals that he did not sign a Teamsters Union card and that he did not attend any union meetings . I credit his testimony to the effect, however, that he revealed his interest in voting for the Teamsters Union to company supervisors Braizel and Pruitt." Conclusions Considering all of the facts and the foregoing, I conclude and find that the evidence preponderates for a finding that Spears was discharged for cause on May 1, 1969, and not in violation of Section 8(a)(1), (3), and (4) of the Act." I so conclude and find. Grady C. Camp, Jr. Camp commenced employment with the Respondent on May 1, 1968. Initially he worked on the dock for about a week, and thereafter until his discharge on May 14, 1969, worked as a city driver. Camp attended a Teamsters Union meeting on September 22, 1968, and either at the meeting or elsewhere on said date signed a Teamsters Union application for membership card. Camp also, at an unknown date, attended another Teamsters Union meeting. There is no evidence that Camp' s union activities or beliefs were ever known to the Respondent at any time prior to his discharge on May 14, 1969. As indicated previously, Camp and Banks had several discussions in April 1969 preceding the April 25, 1969, NLRB representation election . As indicated previously, I found that Respondent, by Banks, violated Section 8(a)(1) of the Act by statements indicating that raises were not forthcoming at the time because of the pendency of the NLRB election. This however does not reveal knowledge of Camp' s union activities or interest or of animus directed specifically toward Camp because of such union activities or interest As previously indicated, the facts reveal that throughout the period of time, at least from February 1969 onward, the Respondent was concerned about a theft and shortage problem. As indicated previously, the facts reveal that the Respondent, by Supervisor Hastings , violated Section 8(a)(1) of the Act by telling Camp in effect that the men who had voted for the Union would be fired because Mr. Thurston would find out some way or another how they voted and they would be fired. The facts reveal that testimony of Swanton and Spears and a fair inference therefrom Spears' testimony on direct examination was to an extent to a different effect. On cross-examination Spears' testimony , after being confronted with his affidavit , changed and was consistent with Swanton 's. I discredit the portions of Spears' testimony on direct examination inconsistent with the facts found . Considering the total testimony of the two witnesses , Spears' contradiction by his affidavit , and the more forthright demeanor of Swanton , I credit Swanton ' s testimony over Spears ' where in conflict "I discredit Pruitt's denial that he ever heard Spears so indicate The circumstances of Pruitt 's remarks (on April 26 , 1969) to Spears are indicative of knowledge. I found Stevens ' testimony to such an incident very persuasive and believable. "in doing so , I have considered all of the evidence indicating union animus on the Respondent's part , as well as the fact that Respondent had knowledge of Spears ' union interest . In my opinion the evidence preponderates for a finding that Spears was discharged for cause in view of Respondent 's problem relating to theft and shortages. Supervisor Hastings and Camp were close friends, like brothers. Although, as indicated, Hastings ' remarks violated Section 8(a)(1) of the Act, the remarks do not reveal knowledge of Camp' s union activities or beliefs or animus specifically directed to Camp. Around 6 p.m. on May 14, Operations Manager Goza discharged Camp. Goza told Camp in effect that he had not picked up freight in accordance with the freight bills. Goza showed Camp some freight bills. Camp asked Goza how he knew that one particular bill was short. Goza told Camp that he hadn't checked it but was going by the fact that an employee named Wilson had checked it. Camp went to see Office Manager Swanton. Swanton told Camp that he did not have anything to do with it, to see Goza and Banks . Camp tried to see Banks and ultimately saw Banks on May 15, 1969. Camp asked Banks, in effect, about the reason for his discharge. Banks told Camp about the history of theft at the Company, the fact that Camp had been told of the importance of signing for freight," that the Company had to pay for the freight signed for and not received, and that they could not use him anymore. Camp and Banks then discussed the question of Camp's vacation pay, with Banks ultimately indicating that he would try to get Camp's vacation pay for him." The facts reveal that Camp on several occasions had signed for incoming freight in a different aiiount than appeared received by company records and checking. The facts also reveal that Camp had signed for "free astray" freight without following company instructions as to the handling of receipt of such merchandise. The facts also reveal that Camp was involved in other mischecking and mishandling of freight. It is also clear that the Respondent, during this time, was concerned about a theft and shortage problem. Conclusions Considering all of the foregoing and all of the facts and arguments , I conclude and find that the facts preponderate for a finding that the Respondent discharged Camp on May 14, 1969, for cause . Accordingly, it will be recommended that the allegations that Camp was discriminatorily discharged on May 14, 1969, in violation of Section 8(a)(1), (3), and (4) of the Act, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section 111, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. "It is clear that Camp had been told of the importance of accurately signing for receipt of freight , and Goza had posted a notice in November 1968 to such an effect , and warning of reprimand and discipline. "As indicated elsewhere I find that the Respondent , by Goza, on May 23, 1969 , violated Section 8(aXI) of the Act by telling Camp in effect that he would not receive his vacation pay because he had filed charges Also, since Respondent did not thereafter pay Camp his vacation pay which was due, I found such conduct violative of Section 8(a)(4) of the Act Under the circumstances I am convinced that the failure to pay Camp his vacation pay was because he filed charges and not because of the reasons connected with his discharge. THURSTON MOTOR LINES, INC. 959 V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases, as provided in the Recommended Order below, which is found necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Having found that the Respondent discharged Grisham on March 10, 1969, because of his protected concerted activity in the processing of a grievance, it is recommended that Respondent offer him full and immediate reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by him because of the discrimination, by payment to him of a sum of money equal to the amount he would have earned from the date of his discharge to the date of Respondent's offer of reinstatement, less his net earnings during said period. Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the Respondent has withheld vacation pay, due Camp in connection with his employment, because of Camp's participation in the processing of NLRB charges, it will be recommended that the Respondent make him whole by payment of such vacation pay, with interest in accordance with the Isis case aforesaid. Because of the type of conduct involved herein, including the discharge of Grisham, and in consideration of Respondent's prior record as revealed by National Labor Relations Board decisions, it is found that a broad cease-and-desist order is necessary. CONCLUSIONS OF LAW 1. Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 2. Thurston Motor Lines, Inc., the Respondent, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By withholding vacation pay from an employee due such pay because the employee had utilized the NLRB processes in protection of his rights , the Respondent engaged in conduct violative of Section 8(a)(4) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER successors, and assigns, shall: 1. Cease and desist from: (a) Withholding vacation pay from employees because of their utilization of National Labor Relations Board processes by filing unfair labor practice charges, participation in processing such charges by giving affidavits, or by other cooperation. (b) Interfering with, restraining, and coercing employees in the exercise of protected concerted activities by discharging them. (c) Threatening employees with the withholding of wage increases because of employee engagement in union or protected activities, or because of the pendency of processing of National Labor Relations Board proceedings. (d) Threatening employees with discharge if they vote for, or because they voted for, the Union in a National Labor Relations Board representation election. (e) Threatening employees with loss of vacation pay benefits because of their utilization of National Labor Relations Board processes. (f) Interrogating its employees concerning their, or other employees', union affiliation or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Arnold M. Grisham, immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges. (b) Notify Arnold M. Grisham if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole Arnold M. Grisham for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to his loss of earnings from the date of his discharge to the date of Respondent's offer of reinstatement in the manner set forth in the section of this Decision entitled "The Remedy." (d) Make whole Grady C. Camp, Jr., by payment to him of his vacation pay (with interest) withheld because of his activity in connection with the filing and processing of National Labor Relations Board unfair labor practice charges. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, 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 Recommended Order. (f) Post at its terminal in Memphis, Tennessee, copies of the attached notice marked "Appendix."38 Copies of Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, "In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 39 IT IS FURTHER RECOMMENDED that, except for the conduct specifically found to be violative of the Act herein, such other allegations as to conduct violative of the Act be dismissed shall, as provided in Section 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 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board an agency of the United States Government WE WILL offer Arnold M. Grisham immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and WE WILL notify Arnold M Grisham if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL make whole Arnold M. Grisham for any loss of earnings he may have suffered by reason of the discrimination against him, all in accord with and in the manner set forth in the "Remedy" section of this Decision WE WILL also make whole Grady C Camp, Jr., for his vacation pay (with interest) withheld because of his activity in connection with the filing and processing of National Labor Relations Board unfair labor practices WE WILL NOT withhold vacation pay from employees because of their utilization of National Labor Relations Board processes by filing unfair labor practice charges, participation in processing of such charges by giving affidavits, or by other cooperation WE WILL NOT interfere with, restrain, or coerce employees in the exercise of protected concerted activities by discharging them WE WILL NOT threaten employees with the withholding of wage increases because of employee engagement in union or protected activities, or the pendency of processing of National Labor Relations Board proceedings. WE WILL NOT threaten employees with discharge if they vote for or because they voted for the Union in a National Labor Relations Board representation election WE WILL NOT threaten employees with loss of vacation pay benefits because of their utilization of National Labor Relations Board processes WE Wit L NOT interrogate our employees concerning their or other employees' union affiliation or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed by Section 7 of the Act Dated By THURSTON MOTOR LINES, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 N Main Street, Memphis, Tennessee 38103, Telephone 534-3161 Copy with citationCopy as parenthetical citation