Central Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1980

250 N.L.R.B. 435 (N.L.R.B. 1980)

CENTRAL FREIGHT LINES. INC Central Freight Lines, Inc. and International Associ- ation of Machinists & Aerospace Workers, AFL-CIO. Case 23-CA-7366 July 7, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENEL LO, AND TRUESDALE On December 7, 1979, Administrative Law Judge Roger B. Holmes issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) of the Act by interrogating employees about their feelings towards the Union, creating the impression of surveillance of union activities, threatening that the employees' selection of the Union would cause Respondent to close its doors, and promulgating an overly broad no-solicitation rule. However, the Administrative Law Judge found that Respondent did not violate the Act by discharging employee Thomas Sessions. The General Counsel has except- ' The Administrative Law Judge found that Respondent violated Sec 8(aX I) of the Act when its terminal manager. Ronny Domino, (I) unlaw- fully interrogated employee Irwin Barthell and. through this conversa- tion, created the impression of surveillance, and (2) on another occasion, unlawfully interrogated Barthell and employee Freddie Lee Martin. In support thereof. the Administrative Law Judge relied on the affidavit of Barthell. who died before the hearing in this matter. Respondent has ex- cepted to the admissibility of this affidavit. contending that the affidavit does not meet the standards for admissibility set forth in Rule 804(b)(5) of the the Federal Rules of Evidence. We agree with the Administrative Law Judge that the affidavit is admissible with regard to the conversa- lion between Barthell and Domino, as it meets the standards of Rule 804(b)(5) As for the conversation among Barthell. Martin. and Domino. we note that the General Counsel had evidence more probative than the Barthell affidavit available to prove this violation-namely, Martin's pos- sible testimony; consequently. we have not considered the Barthell affida- vit with regard to this conversation As the record lacks other probative evidence of unlawful interrogation in this conversation. we find no viola- lion in the three-way conversation This finding does not affect the remedy recommended by the Administrative Law Judge 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- xinces us that the res'olutions are incorrect. Standard Dryv Hll Producti. Inc. 91 NLRB 544 (1950). enfd 188 F 2d 162 (3d Cir 1951) We have carefully examined the record and find no hais for reversing his findings 250 NLRB No. 63 ed to the Administrative Law Judge's failure to find that Sessions' discharge violated Section 8(a)(3). 3 We find merit in the General Counsel's exception. Respondent operates a freight distribution termi- nal in Beaumont, Texas. As discussed more fully in the Administrative Law Judge's Decision, Sessions, a truckdriver, was a prominent supporter of the Union, a fact known to Respondent. He was active in the initial organizing activity, and was involved in certain incidents, predating his discharge, in which we have found that Respondent violated Section 8(a)(1) of the Act. Sessions was involved in three accidents between August and December 1978. In the first accident, Sessions had difficulty attaching a tank trailer to his tractor, with the result that the trailer separated from the tractor and bent the trailer dolly. Re- spondent suspended him from work for I day be- cause of this accident. The second accident oc- curred when Sessions, after filling his truck wih fuel, drove away without removing the fuel line nozzle from the truck, thereby causing $100 damage to the nozzle. For this incident, Domino filed an accident report but did not otherwise disci- pline Sessions. The third accident occurred when Sessions backed his tractor-trailer into another truck, causing a dent in the second truck. Follow- ing this accident, Domino suspended Sessions. Thereafter, on December 27, 1978, Domino dis- charged Sessions, after receiving approval from corporate headquarters, allegedly because he had too many accidents. According to Respondent, Sessions was discharged pursuant to a new terminal policy toward accidents, which Domino promul- gated upon becoming terminal manager in Febru- ary 1977 to replace his predecessor's policies and announced to employees in January 1978. Domino conceded that at the time of the discharge he denied Sessions' request to be transferred to work on the dock rather than be terminated. Domino further conceded that during that period they were very busy on the dock because the business was ex- panding and they were short of help. The Administrative Law Judge found that Re- spondent did not violate Section 8(a)(3) by dis- charging Sessions. He found, in agreement with Respondent's contention, that Domino instituted a stricter policy toward accidents when he became terminal manager in February 1977, and that :' The Administrative Law Judge dismissed allegations that Respondent (I) engaged in unlasful surveillance of union adherents a, they distribut- ed union literature in the plant parking lot. unlawfully told an employee to try to convince other employees to s ympathize sith it, and (3) unlas- fully suspended employee Richard Crumpler for 4 das, No exceptiilo, hase been filed to thee findltlgs DECISIONS OF NATIONAL LABOR RELATIONS BOARD Domino held a meeting with drivers in January 1978, months before the advent of the union cam- paign, to discuss the problem of excessive acci- dents. Furthermore, the Administrative Law Judge rejected the General Counsel's assertion that Ses- sions was disparately treated because other employ- ees with poor driving records were transferred to the loading dock rather than discharged. He found that Sessions was the only employee involved in three "major" accidents during a 12-month period while Domino was terminal manager, thereby ne- gating any showing that Sessions was treated dif- ferently from other employees in similar circum- stances. 4 We find, contrary to the Administrative Law Judge, that Domino did not establish a "more strict and firm policy regarding accidents" when he became terminal manager in February 1977, nor did he inform Respondent's drivers of this alleged- ly "new" policy in January 1978. Domino ad- mitted, during examination by the General Coun- sel, that the terminal policies regarding excessive accidents did not change when he became terminal manager: Q. What was the rule before you became terminal manager then? A. The same rule that I enforced after 1977. Q. What did you do in February? You re- member a while ago I asked you how long that rule had been in effect. What did you do in February to make it become into effect then? A. Well, it was my rule at that time. Prior to that it wasn't my rule at all. It was the prior terminal manager's rule and the only thing I could control was after February of 1977. Thus, the record clearly demonstrates that Domino did not impose new policies toward excessive acci- dents upon his assumption of the terminal manager position. Furthermore, we do not agree with the Adminis- trative Law Judge's finding that Domino promul- gated his accident policy to the drivers before the advent of the union campaign, since Domino's tes- timony is incomplete in this regard. Domino merely testified that, in January 1978, he "held a meeting with the employees, as far as the accidents, excessive accidents, that we were having at that time." Domino gave no other description of his dis- 4Respondent had no written rules regarding discipline for excessive accidents However, Domino testified without contradiction that the usual policy at the Beaumont terminal, as enforced by him, was to dis- charge a driver who is involved in three chargeable accidents within a 12-month period, although exceptions might be made or employees dis- charged for less than three accident if circumstances warranted "Charge- able accidents" included accidents causing injuries or over $25 in proper- ty damage. cussion, and the record contains no evidence that a new accident policy was promulgated to the em- ployees at that meeting.5 Thus, the Administrative Law Judge should have looked to Respondent's treatment of other employees with poor driving records, who may have been disciplined before Domino became ter- minal manager, to ascertain whether Respondent treated Sessions more harshly than other employees in similar circumstances. Our review of the record convinces us that Sessions was, in fact, treated dif- ferently from other employees with poor driving records, since those employees were transferred to work on the loading dock rather than discharged. The record reveals that Respondent transferred two employees, Floyd Biscamp and Joseph A. An- derpont, to the loading dock when it discovered that both drivers had an excessive number of cita- tions on their personal driving records. Moreover, Domino himself transferred employee Ralph Price to the dock after his third accident in a 12-month period. Price was involved in two major accidents before Domino became terminal manager. Thereaf- ter, in October 1977, Price's truck hooked the bumper of a pickup truck, causing what Price esti- mated to be between $20 and $25 worth of damage to the other vehicle. 6 Price did not immediately report the accident to Domino. Upon doing so, Price was transferred to the dock-ostensibly be- cause he had failed to immediately report the acci- dent to Domino, and not because of the occurrence of the accident. Respondent contends that Sessions was dis- charged, while the three employees discussed above were merely transferred to the dock, be- cause Sessions was the only employee to violate Domino's "three major accident" rule, and, there- fore, no disparate treatment has been shown. How- ever, this record establishes that Respondent's longstanding past practice has been to transfer to the dock those drivers with poor driving records, whether due to accidents or traffic citations. Indeed, Sessions was an experienced dockhand, but s Our dissenting colleague suggests that the record contains evidence to sustain the Administrative Law Judge's conclusion that Domino pro- mulgated a new accident policy We note, however, that, beyond the bare assertion that such evidence exists, the dissent fails to make specific reference to the record. ' According to Respondent's unvrilten rule, this accident was not con- sidered "major" or "chargeable," since it did not cause $25 worth of properly damage. See fn. 4, vupra It is worth noting that. while the dis- sent asserts there is no evidence of disparate treatment and seeks to dis- miss Price's accident as "exceedingly minor," in fact by Price's ownl esli- mate it may have met Respoindent's tlandard for a "major" accident. Fur- thermore, Price's prior accidenls were substantial, costing Respondent scevral hundred dollars. yet Price swas merely Iransferred to dock work Anid finlally, we note that Sessiols' accider oIi Decenmbher 23, assuming, argue-ndo. it mel the $25 standaird for a clhargeahle accident, was h) all reports minor In nature 436 CE'NIRAI. RFEIcGlH I NES. INC was not transferred to the dock despite Respond- ent's admitted need for dockhands at that time, even though Sessions, unlike a new hire, would not have had to undergo a lengthy training period. The facts, when coupled with Respondent's unlaw- ful campaign against the Union and Sessions' known activity on behalf of the Union, warrant the conclusion that Respondent violated the Act by discharging Sessions, rather than transferring him to the loading dock.'7 AMENDED CONCI.USIONS OF LAW Insert the following as Conclusion of Law 8 and renumber the subsequent paragraph accordingly: "8. By discharging Thomas W. Sessions III on December 27, 1978, Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(3) of the Act." AMENDED REMEDY Having found that Respondent has engaged in unfair labor practices by unlawfully discharging Thomas W. Sessions III in addition to the viola- tions previously found by the Administrative Law Judge, we shall order Respondent to cease and desist therefrom and to offer Sessions immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. Moreover, we shall order that Respondent make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by paying him a sum equal to what he would have earned, less net earn- ings, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest on the backpay shall be computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977).8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Central Freight Lines, Inc., Beaumont, Texas, its officers, agents, successors, and assigns, shall take action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(f) and re- letter the subsequent paragraph accordingly: i rhc limtnlAn Companiy, 236 NLRB 757 (1978): The Termninul iTaxi Company. d/h/u/ }'llow Cub Co., 229 NLRB 4 3 (1977) " Se. gencrally. Ibis Plumbing h d leaing Co.. 138 NL.RB 716 (19h2) "(f) Discharging or otherwise discriminating against employees for supporting or engaging in activities on behalf of International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization." 2.Insert the following as paragraphs 2(b) and (c) and reletter the subsequent paragraphs accordingly: "(b) Offer Thomas W. Sessions III full and im- mediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, with full seniority, privileges, and benefits, and make him whole for any losses he may have suffered because of the discrimination practiced against him, in accordance with the provisions set forth in the section of this Decision and Order enti- tled 'Amended Remedy.' "(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER PENEI.LO, dissenting in part: I agree with the majority in finding that Re- spondent committed numerous violations of Sec- tion 8(a)(l) of the Act. Contrary to my colleagues, however, I find no violation of the Act in Re- spondent's discharge of employee Thomas Sessions. As I believe my colleagues engage in an inappro- priate second-guessing of Respondent's reason for discharging Sessions, I dissent. The salient facts are as follows: Respondent dis- charged Sessions, a truck driver at Respondent's Beaumont, Texas, yard and a union adherent, after he had incurred three chargeable accidents in a 4- month span. In August 1978, Sessions hitched his tractor to a tank trailer in an improper manner, with the result that the trailer became dislodged from the tractor and the trailer's dolly was bent. Sessions' second accident occurred when, after fueling his tractor, he drove away without remov- ing the fuel line, thereby damaging the nozzle. Fi- nally, on December 23, 1978, Sessions backed his tractor-trailer into another of Respondent's trucks. On the basis of this driving record, and consistent with company policy to discharge drivers after three major accidents in a 12-month period, Re- spondent discharged Sessions. Notwithstanding this clearly deficient driving record, the majority finds that Respondent violated the Act in discharging Sessions. In their view, Re- spondent should not have discharged Sessions, but 417 I)V ('ISIO)NS ()OF NATIONAI. LAB()R REI.AI IO(NS IIO()ARI) rather should have transferred him from driving duties to work on the dock. The majority rejects the Administrative Law Judge's finding that Re- spondent established a stricter policy toward acci- dents when Ronny Domino became terminal man- ager in February 1977, and his finding that the new policy was announced to employees in January 1978, before the unionization campaign began. Consequently, my colleagues conclude that Ses- sions was disparately treated when compared with other employees with poor driving records, who were disciplined by Respondent prior to the union- ization campaign. I cannot agree. The record contains substantial evidence to sup- port the Administrative Law Judge's finding that Domino tightened up the policies towards acci- dents by drivers in the Beaumont yard. The record is clear that, upon becoming terminal manager, Domino expressed concern about the accident rate among drivers at the Beaumont terminal and, con- sequently, decided to enforce more strictly the longstanding rules on accidents, and announced the stricter enforcement policy to the employees months before the Union appeared on the scene. There is no evidence that Domino's policy was a sham, or was not related to legitimate business con- cern. Therefore, the majority is unwarranted in concluding, contrary to the Administrative Law Judge, that Domino did not introduce his own policy when he became terminal manager. As Respondent did, in fact, establish its stricter policy on accidents in 1977, the record lacks any evidence of disparate treatment, since Sessions is the only employee to violate Domino's three acci- dent rule. Even assuming, arguendo, that Domino did not promulgate a new rule, the majority errs in finding a violation here. It is clear that none of the employees transferred to the dock for driving defi- ciencies have a driving record comparable to Ses- sions. Floyd Biscamp and Joseph Anderpont were transferred to the dock because of their preemploy- ment record of driving infractions discovered during a routine check with the state motor vehicle bureau. Ralph Price had only one accident during Domino's tenure as terminal manager, and Domino determined that this accident was not a chargeable accident. Respondent disciplined Price not for the accident, but rather for his failure to promptly report it. The record clearly reveals that none of these drivers came close to Sessions' three careless accidents over a 4-month period. On these facts, I cannot say that Respondent violated the Act by discharging Sessions.9 9 I recognize that Respondent has been found by the Board to have violated Sec 8(a)(1) of Ihe Act in a number lof respects, and that Re- spondent had knowledge of Sessions' union activities However. these In sum, I believe that Respondent, through Ter- minal Manager Domino, properly promulgated a stricter accident policy in January 1978, the viola- tion of which resulted in Sessions' discharge. More- over, irrespective of whether a new policy was promulgated, the record contains no evidence of disparate treatment even when Sessions is com- pared to pre-Domino employees. By finding a vio- lation here, the majority impermissibly intrudes into Respondent's management prerogative.t0 As I cannot find evidence to support such intrusion, I must dissent. facts, standing alone, are not sufficient ii shosw discriminatilon, especially where Respondent's discipline of Sessions is compared with that imposed against employees years befo)re under different circumstances. See .4pp/e lree Chevrokl. Inc.. 237 NLRB 867. 874-875 (1978) I" The majority disputes Respondent's categmirization of Price's third accidents as "minor" and Sessions' third accident as "major " Price's own testimony reveals that his accident caused between $20 and $25 in dam- ages, and that he wsas transferred to the dock because of his failure Ito report the accident rather than for the accident itself In Sessitls' case, Respondent did not discharge Sessions until Dominio had reviewed the accident and determined that it was, in fact, a "chargeable" accident As I have stated above. I believe that the majority acts beyond its au- Ihority in questioning Respondent's definition of a "major" accident as one which causes over $25 in damages, so long as that standard is neither promulgated for a discriminatory purpose nor applied in a discriminatory manner 'The record contains no evidence that Domino pronmulgated the stricter enforcement policy because of the threat of union organizing ac- tivity, nor does it contain any evidence that Domino overestimated the damages caused by Sessions' third accident in order to justify the dis- charge of a union adherent. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their feelings with regard to Internation- al Association of Machinists & Aerospace Workers, AFL-CIO; how the Union could help our employees; and about our employees' attendance at a union meeting. WE WILL NOT threaten an employee that se- lection of the Union by our employees as their collective-bargaining representative would cause our company to close its doors and our employees to lose their jobs. WE WILL NOT create the impression of sur- veillance of our employees' union activities by making remarks to an employee to the effect that our company has ways of finding out about union meetings and by telling an em- ployee that his truck had been observed out- side a union meeting. We will not tell an employee not to partici- pate in union activities and to remain neutral. CETN I RAI FREI(GHiIF ILINES. INC WI: II I NOI promulgate a rule which dis- criminates against soliciting by our employees on behalf of the Union during their nonwork- ing time on our premises, and which discrimi- nates against the distribution of union literature by our employees during their nonworking time and in nonw\orking areas of our premises. Wt WI.l. NOT discharge or otherwise dis- criminate against employees for supporting or engaging in activities on behalf of Internation- al Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor orga- nization. WE Witlt NOT' in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by the National Labor Relations Act. WE WII.L rescind our no-solicitation and no- distribution rule insofar as it discriminates against our employees in the manner described in the preceding paragraph. WE WILI. offer Thomas W. Sessions III full and immediate reinstatement to his former job or, if that job no longer exists, to a substantial- ly equivalent position, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered as a result of our discrimination against him, with interest thereon. CENTRAL FREIGHT LINES, INC. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The original unfair labor practice charge in this proceeding was filed on January 8, 1979, by International Associ- ation of Machinists & Aerospace Workers, AFL-CIO, herein called the Union. The first amended unfair labor practice charge in this case was filed on March 7, 1979, by the Union, The Regional Director for Region 23 of the National Labor Relations Board, herein called the Board, who was acting on behalf of the General Counsel of the Board, issued on March 12, 1979, a complaint and notice of hearing against Central Freight Lines, Inc., hereinafter called the Respondent. The General Counsel's complaint alleges that the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) and (3) of the National Labor Relations Act, as amended, herein called the Act. In his complaint, the General Counsel alleges that certain con- duct by the Respondent's terminal manager, Ronny Domino, and the Respondent's dock leadman, James Russell Anderpont, violated Section 8(a)(1) of the Act. The General Counsel further contends in his complaint that Richard Crumpler was suspended for 4 days and Tonmmy Sessions was discharged from his employment in iolation of Section 8 (a)( 1) and (3) of the Act The Respondent filed an answer to the General Coun- sel's complaint, denied the commission of the alleged unfair labor practices, and urged certain affirmativ e de- fenses. In addition, the Respondent filed a motion to quash the complaint and notice of hearing. That latter document and matters relating hereto will be discussed later in this Decision. The hearing was held before me on May 30 and 31, 1979, at Beaumont. Texas. The time for filing briefs was extended to July 26, 1979. Briefs have been received from both counsel for the Cieneral Counsel and the attor- neys for the Respondent. FINDININS 01 F XC 1 JURISI)CT ION The Respondent is a Texas corporation ,with its princi- pal office and place of business located in Waco, Texas, The Respondent also has terminal facilities located in Beaumont, Texas, where the Respondent is engaged in the business of transporting freight as a common carrier by motor vehicle. During the 12 months preceding the issuance of the General Counsel's complaint, the Respondent, at its Beaumont facility, distributed freight, which had origi- nated inside the State of Texas, and interlined freight, which had its origin outside the State of Texas. The Re- spondent has functioned as an essential link in the trans- portation of commodities in interstate commerce In the same period of time, the Respondent received in excess of $50,000 for interlining, with other carriers, general freight and cargo, which moved in interstate commerce from and to points outside the State of Texas. Upon the foregoing facts admitted in the pleadings, I find that the Respondent has been, at all times material herein, an employer engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE L ABOR ORGANIZATION INVOtIVEI) It was admitted in the pleadings that the Union has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Based upon the pleadings and the entire record in this case, I find that fact to be so. III. THE WITNESSES In alphabetical order by their last names, the following nine persons appeared as witnesses at the hearing in this proceeding: James Russell Anderpont has been a dock leadman since August 1977. Anderpont works on the evening shift. Esther Barthell is the widow of Irwin C. Barthell Ill, who was formerly employed by the Respondent. Richard L. Crumpler works as a pickup and delivery driver for the Respondent. He has been an employee of the Respondent for more than 7-1/2 years. Crumpler became a committee member after the first union meet- 4;( I)C('ISI()NS ()t NA I I()NAI I.AI()R RI-I.ATI()NS I()ARI) ing in Augusl 1978. lie is one of the two alleged discri- ini;alces ill the General Counsel's complaint. Ronlv 1l. Domoino has been the terminal manager of the Respondcint's facility located in Beaumont, Texas, since February 22. 1977. Previously, Domino had been the operations manager al that facility since November 1974. FIreddil Let Marrrin has been an employee of the Re- sponidenl for more than 9 years. Martin is a leadman. Among the several issues raised by the parties involving Martin, one issue pertains to whether Martin was a su- pervisor within the meaning of the Act at the times ma- terial herein. Roy James Montalvo is an employee of the Respondent. Ralph Owen Price has been an employee of the Re- spondent for approximately 8 years. Robert W. Saurage had been employed by the Re- spondent for 7 years and 10 months at the time of the hearing. Saurage worked as a pickup and delivery driver, and he was a union committeeman. Thomas W. Sessions III was employed by the Respond- ent from September 1971 to December 27, 1978. He began working for the Respondent on the dock, then became a bobtail driver and loader, then a full-time bob- tail driver, next a combination bobtail driver and trailer driver, then a supervisory trainee, and finally a bobtail driver and tractor-trailer combination driver. IV. CR:I)IBII I rY RiSOI U lIONS In weighing and considering the credibility of the wit- nesses who testified in this proceeding, I have relied on the demeanor of the witnesses on the stand and the crite- ria set forth by the Board in Northridge Knitting Mills. Inc., 223 NLRB 230, 235 (1976). I found Martin's description of the work which he had actually performed for the Respondent and Martin's de- scription of his own duties and authority to be more reli- able than the testimony offered by others. In addition, I have credited Martin's testimony over Domino's testimony regarding the conversations between those two persons. The testimony given by Domino is in direct conflict with the testimony of Martin, Sessions, and Crumpler in many respects, and it also conflicts with the statements made in the affidavit given by Barthell. Acceptance of the testimony given at the hearing by Martin, Sessions, and Crumpler, and acceptance of the statements made in the affidavit previously given by Barthell, as true, necessarily means that portions of the testimony of Domino must not be accepted to the extent that his testimony conflicts with the credited versions. In assessing the credibility of Martin, I have given consideration to the inexplicable change in a portion of his testimony which occurred during the second recross- examination of him by the attorney for the Respondent. Although Martin had previously testified that nothing had been said by Field Examiner Nadine Brown of Region 23 for the Board during their conversations about having a company attorney present, his testimony on that point changed. Martin responded to these ques- tions from the attorney for the Respondent as follows: Q.... Did she ask you do you want to have a representative of Central Freight Lines present during our meeting? Did she ask you that? A. Yes. Q. Oh, she did? A. Yes. Q. Your earlier testimony was she didn't. A. I couldn't remember. Q. She asked you if you wanted to have some agent of the Respondent present? And you told her? A. No. Q. Did she ask you if you wanted to have a lawyer from the Respondent present? A. Right. And I said no. Q. You said no? Did she ask you if you wanted to have your own lawyer present? A. She didn't ask me that. The things we talked about before, I talked to her. She asked me some questions as far as a lawyer and I said no. Q. Did she ask you both of those questions, did you want to have an agent of Respondent present, and you told her no, and did you want to have a lawyer from the company present and you told her no? A. Right. Q. And both of these occurred out here at this Gateway Mall on January 13, 1979? A. Right. Q. And when you told us earlier today that it was never discussed, you were wrong? A. Yes. Q. But it sure can't be both ways, can it? A. Right. I do not find credible this change in his testimony on that particular point. Instead, I credit his earlier testimo- ny that nothing was said between Martin and Brown re- garding whether or not he desired to have a company at- torney present during their conversations. Notwithstand- ing the foregoing, Martin created a favorable impression during the other parts of his testimony. At all other times on the witness stand, he seemed to be attempting to answer the questions truthfully to the best of his ability to do so and without favoritism to any of the parties. Accordingly, I have credited Martin's testimony in other respects. See, for example, the Board's decision in Krispy Kreme Doughnut Corp., 245 NLRB No. 135, fn. 1 (1979), and the cases cited therein. As will be more fully explained later herein in sections IX and X, General Counsel's Exhibit 2 is the affidavit of a deceased person, Irwin C. Barthell III. There is no discernible motivation for Barthell to make a false statement in his affidavit given on January 29, 1979. It was a few weeks later when the Barthell family first became aware that Barthell had terminal cancer. Thus, at the point in time when Barthell gave his state- ment to Field Examiner Nadine Brown, the possibility existed of his being confronted in the future with the al- legations he made in the statement regarding Domino. Although Barthell's affidavit indicates in the typewrit- ten portion that Barthell had been given assurances by 44() CENTRAL FREIGHT I.INES, INC the Board agent that the statement would be kept confi- dential, there is the proviso on that assurance of confi- dentiality, "unless and until it becomes necessary for the Government to produce it in a formal proceeding." Therefore, the possibility existed that the affidavit might be produced at a subsequent hearing, and that the affiant, Barthell, would be confronted with his statements re- garding Domino. In addition to the lack of any evidence that Barthell would be motivated to fabricate his conversations with Domino, there is also the testimony of other witnesses who related having other conversations with Domino. I have found the testimony of the other witnesses to be credible and reliable and I have accepted their versions of the conversations with Domino over the testimony given by Domino. I perceive no basis here for reaching a contrary result by discrediting Barthell's statement in his affidavit and accepting Domino's versions. I have considered the fact that Saurage and Anderpont gave completely different versions of the conversation between the two persons. Based on the demeanor of the witnesses, and the criteria referred to in Northridge Knit- ting Mills, supra, I have credited the version given by Saurage. Acceptance of the testimony by Saurage neces- sarily means that the contrary version given by Ander- pont has not been accepted. One statement which Sessions made in his affidavit given on January 10, 1979, to Field Examiner Nadine Brown conflicted with the testimony of Sessions at the hearing. In his earlier affidavit, Sessions had stated, in pertinent hart, "Domino has never driven around the parking area or chatted with the employees in the past." During his cross-examination by the attorney for the Re- spondent, Sessions acknowledged at the hearing that Domino had on occasion gone out in the lot and checked trailers. Thus, it became clear at the hearing that Sessions' pretrial affidavit was in error on that point. In addition, while Sessions at first indicated that it was Domino who had circled around the parking lot a couple of times on November 13, 1978, Sessions subsequently was candid in admitting that it was his assumption that the person was Domino based on his seeing Domino's car. Sessions testified, "Yes Sir, now I'm not going to lie to you, I recognized the car, it was Ronny Domino's car, the green Ford that's supplied by him. I assume Ronny was driving cause I never seen anybody other than Ronny in it before." The foregoing casts some doubt on the accuracy and reliability of Sessions' account of that particular incident, but in other respects with regard to many other matters, Sessions was a convincing witness. V. THE CONVERSATION BETWEEN SAURAGE AND ANDERPONT IN AUGUST 1978 On a Saturday in mid-August 1978, Saurage attended a union meeting at the AFL-CIO hall in Port Neches, Texas. Saurage went to that meeting in his truck. On the Monday following that union meeting, James Russell Anderpont approached Saurage on the dock at the Respondent's facility. Saurage testified during his direct examination by the counsel for the General Coun- sel as follows: I was on the dock someswheres and he walked up to me and asked me how the meeting wsent, and I said, what meeting, and he wanted to know the one I attended Saturday about the union, and I said no, I didn't attend one. And he said, yes, you were. Your truck was there and I said, oh, did you go by and see it, and he said, that's all right how I found out, but your truck was there, and I said, I w asn't there and I don't know anything about it. And that was all that was said. During his cross-examination by the attorney for the Respondent, Saurage acknowledged that, other than his conversation with Anderpont on that one day, nothing else had been said to Saurage about the Union by anyone in supervision. Anderpont denied the version of the conversation as related by Saurage. Instead, Anderpont gave a totally different version of a conversation which he said had taken place on the dock about the time of the 8 o'clock break. As indicated earlier, I have credited the version given by Saurage. Vi. THE CONVERSATION BETWEEN CRUMPI.ER AND DOMINO IN AUGUST 1978 Approximately 5 to 8 days after the first union meet- ing was held in mid-August 1978, Crumpler had a con- versation with Domino in Domino's office. Crumpler ex- plained at the hearing that he had been at the dispatch window about 8 a.m. when Domino came up and asked Crumpler to come to his office after Crumpler was dis- patched. During his direct examination by the counsel for the General Counsel, Crumpler testified: Well, as we went in there, we started talking about, well, he wanted to know how the union, if I thought how the union could help us any, and we went on and talked about the retirement benefits, and stuff like that. And then he tried to tell me that there \vas no way that the union could give us any kind of retire- ment benefits, and I told him, I said, well, they can't guarantee us nothin' but we could get better benefits. We also talked about different things, like time and a half for overtime. And then he asked me. He says, Richard, who is on the bargaining board-if you was on the bargain- ing board and I was representing the company and you was representing the union, what would you want? What would you want of the company if swe were arguing back and forth? Exactly what would you want. So then we really got into the retirement benefits because there had been a young man, and this was something I wanted to look forward to was a retire- ment, we didn't get into it about the wages, because we was satisfied with the wages that we had, vwe just w:anted some kind of guarantee that we %would have a job at Central and some kind of retirement when we did get up. 441 DI).'CISI()NS ()F NAII()NAI. .ABO()R REI.A(IONS BO()ARI) We felt, or I felt that the retirement plan that we had wasn't sufficient, because at this time we had already had somebody retire and for the amount of money they received, I didn't figure I could hardly live on this amount of money. THE Wl NiEsS: About the only thing I can re- member that we talked about was I talked about where the other companies, the other freight lines in this area that I knew about that I had looked into before we even had the union question, and I just felt that the company owed us, and he told me he didn't feel the company owed us anything, and this was near the end of our conversation. VII. THE CONVERSATION BET WEtEN CRUMPI.ER AND DOMINO REGARDING THE REMOVAL O0 RESPONDENT'S LITERATURE FROM THE BULLETIN BOARD Crumpler related another conversation which he had with Domino and which he said pertained to the remov- al of company literature from the company's bulletin board. According to Crumpler, Domino called him about 8 o'clock one morning and Domino told him that some company literature had been removed from the bulletin board. Domino explained that he was trying to find out who had taken it down and what had happened to the literature. Crumpler informed Domino that he did not know who had taken the literature down, and, further, that Crumpler did not take it down. At the hearing, Crumpler explained that the Company had responded to what the Respondent considered to be false statements in some union literature concerning the number of persons who had been laid off by the Re- spondent in past years. VIII. THE CONVERSATION BETWEEN SESSIONS AND DOMINO ON AUGUST 21, 1978 On Monday, August 21, 1978, Sessions was standing at the dispatch office at the Respondent's facility when Domino walked by and asked to meet with Sessions in his office. Sessions estimated that they spoke for a couple of hours. During their conversation, Domino asked Sessions how he thought the Union could help the employees, and what good could a union do for the Respondent or for Sessions. Sessions replied with a question as to why they could not receive time and a half pay for overtime work. Domino replied that the Respondent could not afford it. Sessions then inquired about retirement benefits and in- surance benefits. He related some facts regarding another employee who had retired after 17 years of work for the Respondent, and he gave his view that the retired em- ployees could not live on the amount of his retirement. Sessions also cited the example of two other nonunion facilities, which he said gave benefits equal to the Union's benefits or better. Sessions also inquired about the Respondent's rules and regulations, and they dis- cussed the retirement benefits at Gulf Oil, where Ses- sions' father worked. Ix. THE CONVIERSATION BEIWI-I N BAR'IHEI . AND I)OMINO IN AUGUST 1978 Barthell's wife testified that she was familiar with her deceased husband's signature and she identified his signa- ture on the affidavit which was introduced into evidence as General Counsel's Exhibit 2. Barthell's wife stated that she was present at the Memorial Hospital located in Houston, Texas, when the document was signed by her husband. General Counsel's Exhibit 2 is dated January 29, 1979. It was not until February 14, 1979, that the Barthell family became aware that Barthell had terminal cancer. Barthell died on March 13, 1979. His affidavit indicates that it was given before Nadine Brown, an agent for Region 23 of the Board. Over the objection of the attorneys for the Respondent, Barthell's affidavit was introduced into evidence under the provi- sions of Rule 804(b)(5) of the Federal Rules of Evidence and Prestige Bedding Company, Inc., 212 NLRB 690, 701, fn. 13 (1974). Except for a few lines which are typewritten in the first paragraph, the affidavit is handwritten apparently by Field Examiner Brown, except, of course, for the signa- ture of Barthell. The document is four pages long. In pertinent part, with regard to a conversation be- tween Barthell and Domino, which occurred the week following August 19, 1978, the affidavit states: I attended the Aug 19, 78 Union meeting. The following week, Domino came up to me and asked if he could go out on my deliveries with me. I said OK. Domino said "What do you think we can do to run this Company better." I said I'd like to see some time and 1/2 pay, some sick pay, and a raise in our salaries. Domino said "We'd go bankrupt if we paid you all those benefits." I said other compa- nies are doing it. Domino said "Yes but that's be- cause they do long-hauling. If we did long-hauling we'd have to get rid of the bob-tail trucks & the drivers." I said "You can't get rid of all those bob- tail trucks overnight." Domino said "The union can't help Central Freight Lines cause. It can only close doors, and cause the loss of jobs. You know you've got to learn to trust somebody sometime," I said "Why in the hell should I trust Central. There wasn't a retirement plan until the information of a union threat. Central never gave a raise or the re- tirement plan until the starting of a union threat," Domino said "Yes, that's true." This conversation lasted for 3 hours. Domino said that "If the union granted us 1-1/2 pay that Central wouldn't be able to pay us 1-1/2 rate and we would have to lay off people." When Domino left my truck he said "Take it easy, I enjoyed the conversation," I said to Domino during the conversation . . . you must have heard about the meeting on Saturday 8-19-78. And Domino said "Yeah." I said how did you find 442 CENTRAL FREIGHT LINES, INC. out. Domino said "1 have ways of finding out things." X. THE CONVIERSATION AMONG BARTHE.IL., MARTIN AND I) OMINO ON OCTOBER 18, 1978 Barthell's affidavit, which was introduced into evi- dence as General Counsel's Exhibit 2 as described above, states the following with regard to a conversation on Oc- tober 18, 1978, among Barthell, Martin, and Domino: Domino came to my hospital room on Oct. 18, 78. 1 remember the date because it was my wife's birthday. Freddy Martin was present when Domino came. Domino said "I can kill two birds with one stone. I was just getting ready to go to your house Martin. What have you all been talking about. What have you been saying about me." Domino said "Why do you & Freddy feel the way you do about Central Freight? What has Central done to you. Why is everyone so unhappy out there." I said maybe it's because we're tired of the way Central is treating us. Domino said "what's the union ever done for you?" I said the union hasn't done a thing for me, I want to know what Central Freight can do. And if Central can't do anything I'll go union to see if they can. Domino said "If you don't like the way things are, you can always find another job." At this point I got upset. I said I don't want to talk to you any longer. I am a sick man. * t$ * * Domino & I have been friends since my employ- ment with Central Freight. I made it clear to him that "My feelings about wanting a union was noth- ing personal." He didn't respond. He only nodded his head. This took place at the 10-18-78 incident in the hospital. Xi. THE SUSPENSION OF CRUMPLER ON OCTOBER 30, 1978 On October 30, 1978, while Crumpler was pulling his truck away from the terminal of the Parker Lumber Company located in Port Arthur, Texas, Crumpler de- cided that he could not complete his turn out of the fa- cility without running over a bundle of lumber in the yard. Crumpler explained, "So I had to finish jackknifing by turning the wheel the opposite way which put the back of my tractor into another position while backing up." As Crumpler proceeded to back up, he pulled under an I-beam. In doing so, Crumpler ran over a board which raised up the level of the trailer and pushed the trailer into the I-beam. That occurred on Crumpler's left side, and he did not realize what had happened. Crumpler explained, "I hadn't any idea that I had got under this I-beam until I heard the racket from it. It had peeled the top part of the trailer off of it." Crumpler ascertained that there was no damage to the Parker Lumber Company facility. Then he telephoned the Respondent and spoke with Darwin Anderpont. Crumpler reported to Anderpont what had happened, and Anderpont asked Crumpler if he had any more stops to make. Crumpler replied that he had one more stop, so Anderpont told him to make that stop, and then to return to the Respondent's facility, and they would take a look at it. After completing the additional stop, Crumpler re- turned to the Respondent's yard where he was met by Domino, Darwin Anderpont, and Shop foreman Jack Gautreaux. Those persons inspected the trailer and told Crumpler to park the trailer in the van yard and also park his tractor. Then he was told to come to the office. Crumpler filled out his bills and went to the office where he was told that he was suspended for 4 days. Crumpler asked Darwin Anderpont why he had been suspended. Anderpont replied that all he knew was that Domino had told him to do so. Anderpont instructed Crumpler to fill out an accident report and to return to work Monday morning. Based on what other persons had told him, Crumpler related at the hearing during his direct examination by the counsel for the General Counsel the circumstances and the names of four other drivers of the Respondent who had been involved in accidents, but who had told him they had not been suspended. Those persons named by Crumpler were: Walter Downs; Ralph Price; Ken- neth Wilburn; and Ronny Willis. Crumpler did not recall the dates of their accidents, but he acknowledged during cross-examination that the accident involving Price did occur prior to the time that Domino became the terminal manager. Crumpler also acknowledged that still another driver, Joe Lee Richard, had told Crumpler that he had been involved in an accident in October 1978, and that he had not been suspended. However, in a subsequent conversation with Richard, Richard told Crumpler that he had, in fact, been suspended for I day. Domino con- firmed in his testimony that Richard had an accident after Domino became terminal manager, and that Rich- ard was given a suspension from work. According to Domino, Kenneth Wilburn was not charged with negligence as a result of the accident, which he had in September 1977 on Highway 73 due to the rain, which had caused the mud left on the highway by dump trucks to be slick. Domino said that Walter Downs received a 2-day sus- pension in 1978 for backing up his truck into a vehicle. Domino had no recollection of any accident involving Ronny Willis. XII. THE CONVERSATION BETWEEN SESSIONS AND DOMINO ON NOVEMBER 13, 1978 On Monday, November 13, 1978, Sessions had another conversation with Domino in his office with regard to the Union. Sessions stated that Domino called him into his office. According to Sessions, the content of that second con- versation regarding the Union was: "Basically it was the same we'd been talking about before. What good could a union do for us, why I wanted a union, whatever pos- sessed me to change my mind and everything like that." (See sec. VIII herein.) 443 I)FCISIONS OF NATIONAL. LABOR RELATIONS BOARD XIII. THf PARKING 1OT INCI)DENI ON NOVIMB ER 13, 1978 On November 13, 1978, Sessions stood in the center of the Respondent's parking lot and handed out union pledge cards to employees. While he was doing so, Ses- sions observed a car, which he said belonged to Domino, going around the parking lot. As indicated earlier in section IV of this Decision, Ses- sions did not actually see Domino driving the car. In- stead, Sessions made the assumption that the person driv- ing was Domino. Furthermore, as also indicated earlier in section IV, Sessions acknowledged during cross-exam- ination by the attorney for the Respondent that on occa- sion he had seen Domino go out into the parking area and check trailers. Domino said that he normally drove around the Re- spondent's parking lot approximately three times a week during August and September 1978. However, in late October and early November 1978, Domino was there more frequently. He explained at the hearing that the Respondent had 13 tanks loaded with corrosive bulk liq- uids in the Respondent's parking lot at one time. After some of those tanks had been delivered to the customer, two of those tanks were found to have bad material. Since eight of the tanks remained in the Respondent's parking area Domino began a practice of physically checking the containers for leaks each day. XIV. THE CONVERSATION AND THE MEETING REGARDING SOLICITATION AND DISTRIBUTION On either Monday, November 13, 1978, or Tuesday, November 14, 1978, there was a conversation between Domino and Sessions regarding a sign announcing the next union meeting. During his direct examination by the counsel for the General Counsel, Sessions testified: Q. (By Mr. Penrice) Did you ever have any dis- cussions with management concerning passing out literature on the premises? A. Right. Q. You did? A. Right, yes Sir. Q. And what person did you talk to? A. Ronny Domino. Q. And about when did this occur? A. This was after that meeting we had in Hunts- ville, there was a sign put up. Q. About how long after the Huntsville meeting? A. The Monday after-the Tuesday after-the next day or so concerning the next meeting we were going to have locally. Q. A sign put up where? A. It was put up on the telephone pole as you enter the parking lot of Central Freight. Q. What did this sign say? A. It told when the next union meeting was going to be. Q. Then what happened after that? A. Well he called and told me and said I'm not accusing you of anything. He said there was a sign put up and he said I don't want to see any more signs put up like that. He said I know you didn't do it but you probably know who did it and you can get the word across. He said I won't say anything I don't know what you're passing out or I don't want your sign on company property on company time, you know. Q. Now go over that again, exactly what he told you about passing it out. I want to get that clear from you. A. He said I don't want to see anymore things being passed out or signed, he said I don't want your sign on company property or company time. And I said okay man, fine, you know, I won't do it no more. About a week later, Domino held a meeting of the Re- spondent's employees on the dock of the Respondent's facility. Sessions testified that Domino told them at that time: He specifically said some people have been hand- ing things back and forth in trailers like that, getting things signed and he said I don't know what they are but I would prefer that it be contained to your lunch breaks, your coffeebreaks and before and after work, I don't want to see it anymore on this dock during company work hours. And that's all there was. According to Sessions, there were football pools which were carried on at the Respondent's facility during company time and in which both the supervisors and employees of the Respondent participated. In addi- tion, Sessions said there was what was known as a flower fund for someone who was in the hospital or someone who had a relative to pass away. He said a pot was put in the dispatch window for voluntary contribu- tions. Anderpont acknowledged to the counsel for the Gen- eral Counsel that he had participated in "football pots" at the Respondent's terminal. XV. THE CONVERSATION BETWEEN SESSIONS AND THOMPSON ON NOVEMBER 18 OR 19, 1978 On November 18 or 19, 1978, Sessions had a conversa- tion with Don Thompson, whom Sessions identified as being a "troubleshooter" for the Respondent. As Thompson was walking up and down the dock at the Respondent's facility he spoke with various persons. Sessions stopped and spoke with Thompson. Sessions asked why the Respondent could not pay the employees time and a half for overtime work. Thompson replied that the Respondent could not afford it. Then the subject of unions came up, and, according to Sessions, Thomp- son, "asked me who do you trust man, there comes a time in a man's life when he's got to trust someone, you know, he said you ought to place your trust in some- thing, you've got to trust somebody." Thompson added that the president of the Respondent, Linam, was work- ing very hard. Sessions asked Thompson if he were a mason, and Thompson replied that he was not, but that Linam was. 444 CF-NTRAL FlRFIGHT .INE S. INC Sessions told Thompson to ask Linam to whom does he place his trust. Thompson said that he would relay the message. Subsequently. Sessions received a letter dated November 22 from Linam, who said that he appreciated Sessions' thoughts and that he expected to be in Beau- mont the next week. However, Sessions and Linam did not meet. XVI. III tlF rFRMINAIION OF SISSIONS ON [)lCIEMHFR 27, 197R After receiving a telephone call from an unidentified person in early August 1978, Sessions called the Union and arranged for a meeting to be held on August 19, 1978, at the union hall. Sessions spoke with other em- ployees of the Respondent regarding the meeting. At the union meeting on August 19, 1978, the follow- ing employees formed an organizing committee: Irwin C. Barthell; Paul Breaux; Buddy Crumpler; Richard Crumpler; Leonard Folkes; Linwood Little; Freddie Lee Martin; Marvin Sanders; Thomas W. Sessions III; Rich- ard Vega; and Steve Wheeler. Sessions was terminated by the Respondent on Decem- ber 27, 1978. The reason given by the Respondent to Sessions regarding his termination was that Sessions had "excessive accidents within a period of 12 consecutive months. At the time of his termination, Sessions was on suspension from work because of his third accident which had occurred on December 23, 1978. Sessions stated that he did ask Domino about his going back to work on the dock, but Domino said no. The three accidents, which preceded the termination of Sessions, occurred during the period between August and December 1978. The first accident took place in early August 1978 at a chemical facility, where Sessions had gone with a tractor to pick up a load of polyethyl- ene. Sessions experienced some difficulty in getting the loaded trailer attached to his tractor. After he went through several procedures, which he described as being standard procedures, Sessions pulled away from the dock with the trailer attached to his tractor. He proceeded to drive straight for about 100 feet and then Sessions made a left turn in order to go out of the chemical company gate. As Sessions was turning left, the trailer broke loose and slid away from the tractor. Sessions immediately stopped his tractor, but the trailer "caught on the tan- dems and one of the dollies went down to the ground and bent the dolly. I was charged with that." As a result of that accident, the Respondent suspended Sessions from work for I day. The second chargeable accident involving Sessions oc- curred one evening after Sessions had filled his truck with fuel. He forgot that the fuel line hose was still at- tached to the tank of his truck and he drove off without first removing the nozzle from the truck. That accident damaged the threads on the nozzle, but no fuel was spilled. Sessions reported the accident to Domino who told him to come to his office. Sessions testified during his direct examination by the counsel for the General Coun- sel: So I went in his office and he said Tommy what in the hell was you thinking about and I said man I don't know. I just did it. I have no way of know- ing. He said well you better get your mind on your business and all or whatever and that ended that conversation. But he said normally we don't charge people when there's no fuel spilt but in this case we've got to fill out an accident report. So I said okay man. During his cross-examination by the attorney for the Respondent Sessions acknowledged that the accident report showed a damage figure of $100. According to Sessions, he had previously experienced a similar acci- dent in either 1972 or 1973. At that time, Sessions report- ed the accident to the shop foreman who replaced the nozzle. That happened, of course, prior to the time that Domino became terminal manager. Sessions' third accident occurred on December 23, 1978, while he was backing up his truck in the yard. He hit the back end of a bobtail truck driven by James Spen- cer. The accident caused a dent in the bobtail truck about 8 or 10 inches long. After that accident, Sessions spoke with Spencer and said, "I said I'm gone why don't we just forget about it, and he said man we better go say something to Ronny because people saw us and I don't want to get in trouble. And I said okay I'm gone anyway and I know it. I said let's go tell him." Sessions and Spencer then reported the accident to Domino, who suspended Sessions from work until the Tuesday after the New Year holiday. As indicated above, during that suspension, Domino called in Sessions and terminated him on December 27, 1978. Domino gave the reason for the termination of Ses- sions as being his "excessive accidents within a 4-month period." At the hearing, Domino defined his term "ex- cessive" as being determined "due to the frequency and severity of the accidents." He defined a major accident as being "an accident resulting in financial loss, liability to the company, or bodily injury." Since Domino became the terminal manager in February 1977, Do- mino's policy has been to consider any accident above a $25 financial loss to the Respondent as being a major ac- cident. Normally, in reviewing the accident record of a driver, Domino looks at a period of 12 consecutive months. Although the Respondent has had no written work rules or written policy regarding accidents, at least through December 1978, Domino did hold a meeting with employees in January 1978 due to the increase in the number of accidents. Domino examined the personnel file of Biscamp and testified that Biscamp was not accepted as a driver for the Respondent due to his having five entries on his per- sonal driving record within a 5-year period. Therefore, Biscamp was returned to work on the dock. However, because of the passage of time, by the time of the hear- ing, Biscamp's record had dropped below the Respond- ent's minimum of four entries within a 5-year period. Therefore, Biscamp was driving a truck for the Respond- ent at the time of the hearing. 445 l DECISI()NS ()OF NATI()NAI. I.AI)R RE I.A I()NS O()AR1) D)omino said that Joseph A. Anderpont was also unable to qualify as a driver for the Respondent due to the number of entries on his personal driving record. Ac- cordingly, Joseph Anderpont had been put back to work on the Respondent's dock. According to Domino, Philip King was transferred from his position as a driver to work on the dock be- cause of a customer relations problem. Montalvo related an incident which had occurred about 4 years prior to the time of the hearing in this pro- ceeding. Montalvo acknowledged that the incident had taken place prior to the time that Domino was terminal manager of the Respondent. According to Montalvo, he caused a nozzle on a hose to come off. The shop foreman, Jack Gauthier, "fixed it within a matter of minutes." Montalvo explained at the hearing that the nozzle was simply clamped back on the hose by Gauthier. Montalvo did not make an accident report regarding the matter and it was never discussed with him. Price described briefly three accidents which he had within a 12-month period while he was a truckdriver for the Respondent. The first accident involved about $200 damage, and the second accident involved about $400 damage. The third accident occurred in October 1977 and it resulted from Price's making a right turn too short and hooking the bumper of a pickup truck. Price estimat- ed that the amount of the damage to the bumper was be- tween $20 and $25. Price decided not to report that acci- dent to the Respondent. Instead, Price told the other truckdriver that Price would take care of the damage. Later on, Price began to feel bad about his failure to report his third accident to the Respondent. Therefore, he notified Domino of the accident. Domino told Price that if Price had told the truth about the accident imme- diately after it had happened, Domino could have put Price to work on a smaller truck. However, since Price had kept the accident a secret, Domino was going to transfer Price to the dock. At the hearing, Price acknowledged during his cross- examination by the attorney for the Respondent that the reason for his transfer to work on the dock was because Price had tried to cover up the third accident, and the reason for his transfer was not because he had caused a $20 accident. Domino confirmed that fact in his testimo- ny. XVII. THE STATUS OF FREDDIE LEE MARTIN Martin was hired by the Respondent in 1970 as a la- borer. He next worked for the Respondent as a loader and then he became a forklift operator. After working 3 or 4 years in that job, Martin was promoted to the posi- tion of headman effective April 17, 1977. At that time, Martin was given a 5-cent-an- hour wage increase, which resulted in a wage rate of $8.37 an hour. Martin's work shift began at 3 a.m. Normally, the trail- ers are already at the dock because the trailers, which were not completely filled up the previous day, are left there. Normally, Martin knew how much room was re- maining on a trailer, but if he did not, "it is a matter of checking the trailers out and finding exactly how much room we have on each trailer." From a clipboard in the dock shack, Martin obtained the bills of lading. Martin ascertained the large shipments that were on the dock, and he personally loaded the large and heavy shipments on the trailers. In addition, Martin instructed other persons working on the dock as to where to load the different shipments. Martin ex- plained that after he found out where the shipment was going, "it was just a matter of finding the trailer for that shipment to go on." When a trailer was full, a new trail- er was begun or if there was no trailer available for some shipments at the end of the workday, "those shipments we would put them across the dock." Martin testified during his direct examination by the counsel for the Gen- eral Counsel: "Well, as far as the personnel was con- cerned, it would be basically my job to tell them, you know, where, you know, a particular shipment is to be put, either put on a trailer or put on the dock." During cross-examination by the attorney for the Re- spondent, Martin acknowledged that he assigned work to the employees as to what to load and when to load the trucks. In addition, he acknowledged that he had as- signed loaders from one truck to another truck and from one bay on the dock to another bay on the dock. He has also transferred employees working with him to work with other leadmen. It was further brought out during the cross-examination of Martin that, prior to his acci- dent on October 5, 1978, Martin had spent 50 percent of his time instructing new employees and the other 50 per- cent of his time loading trucks. Martin also stated that he had substituted for the regular dock foreman on one oc- casion. Martin has no authority to hire or fire employees. He has no authority to grant time off from work to employ- ees, nor to give permission for employees to report to work late. Martin has never granted any wage increases to employees. Martin has never had any occasion or need to discipline an employee, but he said that no one had ever told him that he could not take disciplinary action. However, he stated that, if an employee failed to load a truck in a manner that Martin thought it should be loaded, Martin could talk with him, but he could not punish him. Martin explained, "it is just a matter of me going to the dock foreman and explaining to him the sit- uation, and if there is any punishment done, he will be the one that will have to do it." According to Martin, the dock foreman in most cases would look into it fur- ther. Martin did not evaluate employees until about a month and a half prior to the time of the hearing in May 1979. At that time, he was requested to comment on an indi- vidual's work ability at the end of the employee's I week training program. During his cross-examination by the attorney for the Respondent, one of the questions asked of Martin was: "As far as your authority is concerned to instruct men, to move them around, to transfer them, you had the same kind of authority as Anderpont had, didn't you?" Martin replied, "Yes, I did." Aside from the fact that Anderpont worked the outbound shift, as distinguished from the inbound shift, Martin acknowledged that his kind of work was "basically the same." He was then 44h (CIN I RAI I RtI(HtI IINES. INC asked: "Your duties and responsibilities were exactly the same, isn't that a fact?' Martin replied, "Yes." Anderpont, who is alleged in the General Counsel's complaint to be a supervisor within the meaning of the Act. and who is admitted to be a statutory supervisor by the Respondent. testified that Martin w as employed in the same job is Andlerpont occupied. except that Martin worked on the morning shift whereas Anderpont worked on the evening shiftl According to Domino, there are approximately 145 employees at the Respondent's Beaumont facility. ie identified Delton Parker as being the assistant terminal manager: Darwin Anderpont as being the dock superin- tendent; L. O. Lambert. Winford Owens. and Martin Talbot as being dock foremen: and James Russell Ander- pont and Freddie Lee Martin as being leadmen. Martin became a leadman for the Respondent on April 17, 1977. James Russell Anderpont has been a ledman for the Respondent since August 1977. xvlli. rHIm ('ONVI.RSA I IONS BI WItI N M R I IN ANI) I)OMIN(O About a week after Martin had attended a union meet- ing. Martin had a conversation with Domino, During his direct examination by the counsel for the General Coun- sel. Martin testified with regard to that conversation: Well, basically, as far as I can remember, he and I talked about problems that, you know. Central Freight I ines over here was having, I mean as far as the attitude of the men, and I was telling him about different things, as far as the company was concerned, and it seemed like we had a problem in that particular area, and we talked about insurance, the benefits, retirement and all of this. And he was trying to convince me and show me whereas they were doing the best they possibly could, and just like, you know, I told him I under- stood that, you know. He was perfectly right, but what I was basically trying to do was hear both sides of it, you know, from what I saw we needed, you know, some type of improvement. We didn't have any type of job security of any kind. That was my main interest, you know. That's what he and I talked about. About a week later, Domino approached Martin and they had another conversation on the dock. Domino said that he knew that Martin was on the committee, "but he was just a little confused .. ." Domino said that Martin was a leadman, and Domino could not understand why Martin was involved in union activity. Martin responded that he was just trying to find out what was going on and that he had been elected to the committee. In addition, Martin subsequently testified during his direct examination by the counsel for the General Coun- sel: So I asked Ronny Domino, I asked Ronny exact- ly where I stood as far as, you know, as leadman was concerned. And he told mni, as far as Russell and Winford O()wens was concerned, they are leadman in the ca- pacify whereas they will enter into supervision later on. This is just one step from supervision. Q. What did he sayi abhout )ou' A. He said that I was a leadman in the capacity where I was supposed to he in Ihe work force, and this was basically the way it was, you know. We talked about it at great lengths. and he said, you know what I mean, he and I got together and dis- cuss it, you know. a leadman's. you know, responsi- bility, because as far as the job leadman is con- cerned, one of the dock foremens and myself got to- gether and we came up with the idea that we need a leadman, because in effect he needs some kind of help. you know. an experienced man, a person who has heen on the dock, you know, quite a while So we came up with the idea of leadman and we brought this in the front to Ronny [)omino, and we discussed it. Q. When did this conversation take place that you were telling me about'l A. This conversalion must have taken place. it had to be in September of 1978. On October 5, 1978, Martin had an accident. As a result, Martin took a 3-month leave of absence from work. During Martin's leave of absence, Domino visited Martin on two occasions in October 1978 at Martin's house. On that first occasion. they talked about Martin's injury, but Domino also brought up the Union. In that connection, Domino mentioned Martin's classification of leadman, and Domino stated that, "He didn't know ex- actly where I stood." The conversation ended shortly thereafter. About October 20, 1978, Domino again visited Martin at his house. During that second conversation, Domino informed Martin that Domino had just returned from Waco, and that Martin's classification had been changed Martin testified, "I was still a leadman, but it was a lead- man one step from supervision, a leadman supervisor trainee." In addition, Domino told Martin that a leadman was a part of supervision, and, as a supervisor, Martin should not have anything to do with the Union. Domino specifically told Martin that he was to remain neutral, and Martin assured Domino that he would remain neu- tral. Furthermore, Domino told Martin that, as a supervi- sor, Martin was not to ask employees about their union activities. xlY. t1ll CONVIRSATIONS Bl'Iw'l tN MARLiN ,NI) I-ll It) IXAMINE R BROWN IN JANUI ,RY SNI) FI LBRUARY 1979 As a result of receiving a telephone call from Sessions on January 13, 1979, Martin arranged to meet with Field Examiner Nadine Brown, an agent for Region 23 of the Hoard. Martin drove to the Gateway Shopping Mall in Beau- mont on January 13, 1979. where Sessions pointed out 447 I)DICISI()NS ()OF NAI'I()NAL I.AB()R RELATIONS H()ARI) Brown to Martill. Brown advised Sessions that he would have to leave. Martin and Martin's son remained with Brown. Martin identified himself as being a leadman for the Respondent, and he expressed his opinion that he was not a supervisor. A copy of the affidavit, which Martin gave to Brown on that occasion, was introduced into evidence as Respondent's Exhibit 5. As indicated earlier in this Decision, I find that noth- ing was said between Martin and Brown about having a company attorney present during that interview, or about not having a company attorney present. There were two subsequent telephone conversations between Martin and Brown. One pertained to a name, which Martin had forgotten at the moment of their earli- er conversation, and the other took place on February 13, 1979. The notes which Brown made of that conversa- tion are contained in Respondent's Exhibit 6. I also find that there was no mention on that occasion of whether or not Martin desired to have a company attorney pres- ent. XX. CONCI USIONS A. The Respondent'sv Motion to Quash the Complaint,; the General Counsel's Petition to Revoke Subpenas: and the Status of Freddie Lee Martin Two matters which involve interrelated issues pertain to the Respondent's pretrial motion to quash complaint and notice of hearing and the General Counsel's petition to revoke subpenas, which subpenas duces tecum had been served by the Respondent on Regional Director Louis V. Baldovin, Jr., and Field Examiner Nadine Brown. The documents pertaining to the Respondent's motion to quash the General Counsel's complaint are found in the following: General Counsel's Exhibit l(g), which is the Respondent's motion to quash complaint filed on the same date as the Respondent's answer; General Counsel's Exhibit l(k), which is the General Counsel's opposition to the Respondent's Motion; General Counsel's Exhibit I(L) which is a memorandum of authorities filed by the Respondent in support of its motion; General Counsel's Exhibit 1(m), which is the General Counsel's reply to the Respondent's memorandum, and General Counsel's Ex- hibit l(n), which is the Order of Deputy Chief Adminis- trative Law Judge James T. Barker, who referred the motion for ruling by the Administrative Law Judge des- ignated to conduct the hearing. The documents pertaining to the Respondent's subpoe- nas duces tecum and the General Counsel's petition to revoke those subpenas are found in: Respondent's Exhib- it 1, which is a letter dated April 23, 1979, from the Re- spondent's attorney to Regional Director Baldovin and entitled "Freedom of Information Act Request"; Re- spondent's Exhibit 2, which is a letter dated April 27, 1979, from Regional Director Baldovin to the Respond- ent's attorney and in which the Respondent's request under the FOIA was denied; Respondent Exhibit 3, which is a letter dated May 4, 1979, from the Respond- ent's attorney to General Counsel John Irving in Wash- ington, D.C., and in which the Respondent appealed the Regional Director's actions; Respondent's Exhibit 4, which is a letter dated May 25, 1979. from Mary M. Shanklin, Acting Director of the Office of Appeals, who was responding for General Counsel Irving to the Re- spondent's attorney, and in which the Respondent's appeal was denied: Respondent's Exhibit 5, which is the affidavit given by Freddie Lee Martin to Nadine Brown, a Board agent of Region 23, on January 13, 1979: Re- spondent's Exhibit 6, which contains the handwritten notes made by Field Examiner Brown pertaining to her telephone conversation with Martin on February 15, 1979: Respondent's Exhibit 7(a), which is the petition to revoke subpoenas filed by the General Counsel; Re- spondent's Exhibit 7(b), which is a copy of the subpoena duces tecum served by the Respondent on Regional Di- rector Baldovin, and the Respondent's Exhibit 7(c), which is a copy of the subpoena duce.s tecum served by the Respondent on Field Examiner Brown. In addition to the matters which are set forth in the documents referred to above, the counsel for the General Counsel and the attorneys for the Respondent ably argued their respective positions with regard to the Re- spondent's motion to quash the General Counsel's com- plaint and the General Counsel's petition to revoke the subpenas. Furthermore, the subject matter is argued in the post-hearing briefs from the attorneys. After considering the Board's decision and the court's decision in The Singer Company, 176 NLRB 1089 (1969), enfd. in part 429 F.2d 172 (8th Cir. 1970), 1 concluded at the hearing that the issues raised by the Field Examiner's interview of an alleged supervisor of the Respondent were matters which were litigable at the unfair labor practice hearing. However, at the hearing I deferred ruling on the Respondent's motion to quash the General Counsel's complaint until the preparation of this decision because of the factual issues and the legal issues in- volved. Nevertheless, at the hearing I did rule on the General Counsel's petition to revoke the subpoenas duces tecum, which had been served on Regional Director Baldovin and Field Examiner Brown. After the General Counsel and the Charging Party had completed the presentation of their evidence, and before the Respondent presented its evidence, I granted the General Counsel's petition. The subpenas served on Regional Director Baldovin and Field Examiner Brown were identical in describing the documents which the Respondent sought to have them produce at the hearing. In pertinent part, the documents are described in the subpenas as being: [C]opies of all documents, including letters, notes of oral conversations and/or investigations, statements, memoranda, and/or other records in any way relat- ed to the administrative inquiry by the Regional Di- rector referred to in the General Counsel's Reply to Respondent's Memorandum of Authorities in Sup- port of its Motion to Quash Complaint and Notice of Hearing submitted on April 11, 1979, by Mr. Robert L. Penrice, Counsel, for the General Coun- sel, in the above-referenced case. Our request is in- tended to cover all documents prepared by you or persons under your supervision, direction, or con- trol, or persons acting at your request. 448 CENTRAL FREIGHT LINES, INC The reasons for granting the General Counsel's peti- tion to revoke the subpenas rested on several grounds. In summary, those grounds were: (1) Section 102.118 of the Board's Rules and Regulations precludes a regional di- rector and a field examiner from producing such docu- ments as are described in the subpoenas duces tecum and from testifying at a hearing concerning matters which came to their attention in their official capacities. Gener- al Counsel John Irving, under whose control Regional Director Baldovin and Field Examiner Brown were working at that time, had not given his written consent to them to produce such documents as are described in the subpenas, or to appear at the hearing and testify; (2) the lack of probative value of the documents described in the subpoenas duces tecum, because, at that point in time, there was in the record at the hearing the affidavit which Martin had given to Field Examiner Brown (See Resp. Exh. 5) and the notes made by Field Examiner Brown concerning her telephone conversation with Martin. (See Resp. Exh. 6.) I1 found that those two exhib- its were more probative of the facts than were the docu- ments described in the subpenas. In addition, the testimo- ny of Martin regarding his conversations with Field Ex- aminer Brown, both in person and on the telephone, was set forth in the record at that point in time, and (3) the lack of relevance of the documents described in the sub- poenas duces tecum since the documents sought by the Respondent were after-the-fact and related to the "ad- ministrative inquiry by the Regional Director." The op- erative facts, in my view, had occurred earlier in January and February 1979, insofar as weighing the merits of the Respondent's motion to quash were concerned. Section 2(11) of the Act sets forth certain criteria in defining who is a supervisor within the meaning of the Act. It has been held that such criteria are to be applied in the disjunctive. Ohio Power Company v. N.L.R.B., 176 F.2d 385 (6 Cir. 1949), cert. denied 338 U.S. 899 (1950); Arizona Public Service Co. v. N.L.R.B., 453 F.2d 228 (9th Cir. 1971). However, Section 2(11) also provides in defining a su- pervisor ". .. if in connection with the foregoing the ex- ercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judg- ment." In my view, Martin's duties fall into the category of those duties of a merely routine nature, which genuinely do not require the use of independent judgment. That is not said in any critical sense, or in any demeaning sense. Obviously, the loading of trucks is an essential part of the Respondent's business operations. However, it will be recalled that Martin performs manual work, and he earns only 5 cents an hour more as a leadman than Martin did as a loader. More importantly, the evidence is persuasive that Martin lacks any true authority over other personnel and his instructions to workers on the dock are simply routine in nature. Martin instructs other workers on the dock in loading the trailers, according to where the shipments are to be sent, and according to the physical space of the trailers. Thus, Martin's assignment of work and his movement of employees from one truck to another, from one bay to another bay, and from leadman to leadman, are routine matters which are predetermined by the destination of the shipments and the capacity of the trailers. If a trailer fills up, then another trailer is loaded. That process indi- cates routine and repetitive work both by Martin and by the persons who work with him. In a real sense, Martin's duties are limited by the very nature of the work performed. That does not mean, how- ever, that the nature of the work would preclude a find- ing of supervisory status, if any of the criteria set forth in Section 2(11) of the Act had been conferred on Martin. For example, note a case where a dock foreman and truck supervisor disciplined employees, as well as re- sponsibly directed their work and used independent judgment. H. M. Parker & Son, 179 NLRB 540 (1969) (Thomas A. Fratus at p. 541). In this connection, see also the Board's decision in The New Jersey Famous Amos Chocolate Chip Cookie Corporation, 236 NLRB 1093 (1978). (Note there that both Boyd and Griffin were found to possess the authority to discipline employees.) Without repeating the facts here which have been pre- viously set forth in the findings of fact, it will be remem- bered that it is undisputed that Martin did not actually discipline any employees or recommend tile discipline of employees. The fact that Martin was never told that he could not discipline employees is not the equivalent of being affirmatively told that a person did possess such authority. Furthermore, Martin's testimony regarding what he would anticipate occurring, if an employee had failed to follow his instructions, is indicative that Martin did not possess the authority to discipline employees or to effectively recommend such a personnel action. In another case where the Board found certain work- ing foremen to be supervisors within the meaning of the Act, the Board found that the foremen had authority to direct the employees assigned to their particular bays and possessed the authority to issue reprimands to em- ployees, as well as to adjust and resolve grievances. Earle M. Jorgensen Company, 240 NLRB 1296 (1979). See also the Board's decision in The Western Union Tele- graph Company, 242 NLRB No. 128 (1979), where an as- sistant manager, a chief of the traffic department, and a supervisor on the late night shift were found not to be supervisors because of their very limited discretion in the performance of their duties. Martin's duties and responsibilities are limited by the type of work involved, and, more significantly, by the absence of evidence that Martin possessed or exercised any one of the items of authority specified in the defini- tion of a supervisor in Section 2(11) of the Act. As indi- cated above, the evidence does not establish that Mar- tin's instructions to employees were other than of a rou- tine nature and not instructions which required "the use of independent judgment." I found the testimony by Martin regarding his own duties to be more reliable and persuasive than the testi- mony regarding Martin offered by Domino and Ander- pont. While at one point Martin agreed that his duties and responsibilities were the same as those of Anderpont, the basis for that conclusion was not revealed. It will be recalled that Martin and Anderpont worked on different shifts, and it was not established that Martin had such 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personal knowledge of Anderpont's duties and responsi- bilities. Accordingly, I have given less weight to such conclusionary testimony. After considering the foregoing and the matters which are more fully described in the findings of fact regarding Martin, I find that Martin was not a supervisor within the meaning of Section 2(11) of the Act at the times ma- terial herein. Consistent with the foregoing finding, I further find that the Respondent's motion to quash the General Counsel's complaint lacks merit on the factual basis that Martin was not a supervisor within the meaning of the Act. That finding is made even assuming, arguendo, that the Respondent's motion would present a valid legal basis for quashing the General Counsel's complaint, if the facts had supported such a motion. Accordingly, I hereby deny the Respondent's motion to quash the Gen- eral Counsel's complaint. B. The 8(a)(1) Allegations Without reiterating here the findings of fact which have already been set forth in Section 5 of this Decision, I conclude that Anderpont interrogated Saurage in mid- August 1978 regarding his attendance at a union meeting the previous Saturday. In addition, I find that Anderpont in the same conversation created the impression of sur- veillance of the employees' union activities by telling Saurage that his truck had been observed there. Although actual surveillance, as distinguished from creating the impression of surveillance, is not alleged in paragraph 8 of the General Counsel's complaint, counsel for the General Counsel urges in his brief at page 7: "Su- pervisor Anderpont's conversation with Saurage clearly established he had been by the Union hall the previous Saturday or had sought out information concerning who was present." However, I conclude that his conversation with Saurage does not prove actual surveillance of the union hall by Anderpont or by an agent of the Respond- ent. Note that Anderpont carefully avoided a direct answer to the inquiry by Saurage, "Did you go by and see it?" Under the circumstances, I conclude that actual surveillance was not established. The fact that Saurage did not respond truthfully to Anderpont's interrogation about his attendance at the union meeting has been pointed out, because Saurage stated at the hearing that he did, in fact, go to the meet- ing in his truck. Nevertheless, it is well-established that the truthfulness, or the lack of truthfulness, of an em- ployee's reply to a supervisor, when the employee is being questioned about his union activities, is not deter- minative of whether or not the supervisor's interrogation violated the Act. In the Board's decision in Paceco, a Division of Freu- hauf Corporation, 237 NLRB 399, 405 (1978). the Board held: However, an interrogation of an employee's union sympathies or his reasons for supporting a union need not be uttered in the context of threats or promises in order to be coercive. The probing of such views, even addressed to employees who have openly declared their prounion sympathies, reason- ably tends to interfere with the free exercise of em- ployee rights under the Act, and, consequently, is coercive. With regard to creating the impression of surveillance of an employee's union activities, the Board has held in South Shore Hospital, 229 NLRB 363 (1977), the follow- ing: "In determining whether a respondent created an impression of surveillance, the test applied by the Board is whether employees would reasonably assume from the statement in question that their union activities had been placed under surveillance. Schrementi Bros.. Inc., 179 NLRB 853 (1969)." After considering the foregoing, I conclude that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by its interro- gation of Saurage and by creating the impression of sur- veillance of his union activities. Based on the findings as set forth in section VI herein, I conclude that Domino interrogated Crumpler about his union feelings and how the Union could help the Re- spondent's employees. I note that in paragraph 7(a) of the General Counsel's complaint, the date of that interro- gation is alleged to be "on or about August 1, 1978." Ac- tually, the conversation between Crumpler and Domino occurred sometime later in August 1978. However, I find this minor difference in the date does not warrant dis- missal of that allegation. I conclude that the Respondent further engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act by its interrogation of Crumpler. With regard to the findings of fact set forth in section VII, I note that no violation was alleged in the com- plaint regarding the brief telephone conversation be- tween Crumpler and Domino regarding the removal of the Respondent's literature from the bulletin board. Based on the findings of fact previously set forth in section VIII and Section XII herein, I conclude that Domino interrogated Sessions regarding his union feel- ings on or about August 21, 1978, and again on or about November 13, 1978, since the contents of those conversa- tions were basically the same. Although the dates of those two conversations were later than the General Counsel's allegation in paragraph 7(a) in his complaint, I conclude that the matter was "fully litigated" by the ex- amination of both Sessions and Domino, who are the two participants in the conversation. With regard to the findings of fact set forth in section IX herein, I conclude that Domino during the week after August 19, 1978, threatened Barthell that selection of the Union by the Respondent's employees would cause the Respondent to close its doors and the employees to lose their jobs. The General Counsel makes substantially that allegation in paragraph 7(d) of his complaint. However, with regard to the General Counsel's allegation in para- graph 7(c) of his complaint, I find that the preponder- ance of the evidence does not support that allegation. Without repeating all of the facts, it will be recalled that Domino said that the Respondent would go bankrupt if it paid all of the benefits which Barthell desired. After Barthell pointed out that other companies did so, Domino gave his view that the other companies were 450 CENTRA. FRIGHIHF I.INES. INC able to do that because they performed long hauling, but if the Respondent performed long hauling, the Respond- ent would have to get rid of its bobtail trucks and driv- ers. Note that this occurred prior to the mention of the Union in their conversation. Note also that the statement about getting rid of the bobtail drivers was predicated upon the Respondent's performing long-hauling work Domino's remarks at the end of his conversation with Barthell regarding his having ways of finding out things is not alleged in the General Counsel's complaint as an unfair labor practice. Nevertheless, the counsel for the General Counsel in his brief did not "affirmatively dis- claim his intent to urge the finding of a violation." See Albertson's. Inc., 243 NLRB No. 60, sl. op., p. 2 (1979). To the contrary, in this case the counsel for the General Counsel affirmatively argues in his brief that the Re- spondent did create the impression of surveillance by Domino's remarks. (See pp. 5, 6, and 7 of the G.C. br.) In these circumstances, I conclude that the Albertson's case is distinguishable, and that I should follow the Board's decision in .41exander Dawson, Inc. d/b/a .41lcxan- der's Restaurant and Lounge, 228 NLRB 165 (1977), enfd. 586 F.2d 1300 (9th Cir. 1978). 1 find that the matter "swas fully litigated" by the introduction of Barthell's affidavit and by Domino's testimony regarding the conversation. (With regard to the introduction of Barthell's affidavit, see Prestige Bedding Company, Inc., 212 NLRB 690, 701, fn. 13, and ,41vin J. Bart and Co., Inc., 236 NLRB 242 (1978).) Accordingly, I conclude that Domino created the im- pression of surveillance of employee union activities during his remarks to Barthell towards the end of their conversation, and, thereby, the Respondent engaged in further unfair labor practices within the meaning of Sec- tion 8(a)( I1) of the Act. Based on the findings of fact as set forth in section X herein, I find that Domino interrogated Barthell regard- ing his union feelings and desires during their conversa- (ion on October 18, 1978. Although that date is not al- leged in the General Counsel's complaint, as observed earlier, I find that the matter was "fully litigated," and that the Respondent additionally violated Section 8(a)(1) of the Act by its interrogation. With regard to the findings of fact set forth in Section XII herein, I find that a preponderance of the evidence does not support the allegation in paragraph 7(h) of the General Counsel's complaint. In Chemtronics, Inc., 236 NLRB 178 (1978), the Board held: The Board has held that "Union representatives and employees who choose to engage in their union activities at the employer's premises should have no cause to complain that management observes them."2 As the October 8 meeting between Re- spondent's employees and the Union's representa- tives was conducted in full public view on Re- spondent's own parking lot, Respondent did not engage in unlawful surveillance of that meeting. 2 M.lto,. Incr cI al., 15' NLRB S12, 814 (196h) Sec alsoI Larurnd Leiurhcll,. Inc. 211 Nl RB 197. 205 (1974), aInd .Millhl/l Plui,- Incorp.proaicd. 150 Nt.RH 1574. 1576 (19h6) Based on the findings of fact as set forth in section XIV herein, I conclude that the Respondent has discri- minatorily promulgated a rule against union solicitation and distribution of union literature., while permitting so- licitation for other matters. In George Washington Univer- sity Hlospital a Division of the George Wa'fshingtonl Universi- ty, 227 NL.RB 1362 (11977). the Board held, "The short answer is that the rule was discriminatorily promulgated and enforced, and is thus invalid whatever might be its lawfulness otherwise." In its decision in Paceco, a Division of Fruehauf Corpo- ration, 237 NLRB 399 (1978), the Board held: By its terms, the work rule forbids such conduct "while on company time" and "in [the company's] plant." These time and place restrictions are cleerly overbroad.' Moreover, an employer may not main- tain a no-solicitation rule which prohibits union ac- tivity but which permits solicitations of other types, such as for a particular charity.10 Finally, there is no evidence that the Respondent has maintained the no-solicitation rule for any legitimate business reason. Therefore, we conclude that the Respond- ent's maintenance of the no-solicitation rule im- pinged on its employee's rights under Section 7 of the Act and thereby violates Section 8(a)(l). i ' See. e g. C & E LSrcs. Inl. C( & E Sup rvalu Divii,,.n. 221 NL RH 1321, 1324-1325 (1976) and l7orida Stlee (Crrporatrin. 215 NLRH 97, 98 99 (1974) (Member Fanning dis.enting on other grounds), regarding the "company time" re'sriction See. c g . Pepsi-cola /BoalinX Co, ] L, .4 Angeloe. 211 Nt RB 7() (1974L. p*th respectl To Ihe "company plant" limialaion to Set' I: B C Grauphic. Inc. 214 NRB I(X)3. )1005 (1)Q74) Imcco (Contailer Companun. 2( 8 NL.RB 874. 878 ( 1974) It Ihe fact that the Respondent did 1nol ernfirce the rule loe,, not insulate it fronm the proscriptions of the Act As We stacted in luarh Muanulctucrlng Co mpcany. 187 N Ri e)1 "()2 (14970) "[l ]hc nterc mainlrllen; ce iof the rule Iielnt ,cre t ii ,Inhhibit the emnploce, ' engaging in ,tlhrl- pr[rltec-lted otlglniltll,.i io l tl11 it', In this connection, see also Lance.Inc., 241 NLRI3 655 97 (1979); American lara Corporation, American Carbon Paper Division, 242 NLRB 1230 (1979). Based on the foregoing, I further find that the Respondent has addi- tionally engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. With regard to the findings of fact previously set forth in section XIII herein, I conclude that Domino told Martin not to participate in union activities and to remain neutral. In view of my earlier finding above that Martin was an employee, rather than a supervisor within the meaning of the Act, I conclude that the Respondent further engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act by Domino's instructions to Martin, because Martin, as an employee, had a right under Section 7 to participate in union activi- ties. The allegations set forth in paragraph 7(e) of the Gen- eral Counsel's complaint were dismissed at the hearing In addition, I find that the evidence does not support the allegations of paragraph 7(b) of the General Counsel's complaint. Accordingly, I hereby dismiss that latter alle- gation also. 451 I)tFCISI()NS OF NATIONAL LABOR RELATIONS BOARD C. h/ie 8(a)(3) Allcgationl Based upon the conversations related in sections VI, VII, VIII, XII, XIV, and XV herein, I conclude that the Respondent had knowledge of the prounion feelings of both Crumpler and Sessions prior to the time that the Respondent suspended Crumpler and prior to the time that the Respondent terminated Sessions. Furthermore, the findings of unfair labor practices in violation of Section 8(a)(1) of the Act, as described above, have been considered in an attempt to determine whether the Respondent had a discriminatory motivation in taking its adverse actions against Crumpler and Ses- sions. However, the presence of contemporaneous unfair labor practices by the Respondent is not the only matter to be considered in reaching a conclusion as to whether or not the Respondent discriminated against Crumpler and Sessions. Another matter contested by the parties is whether the evidence establishes disparate treatment by the Respond- ent of the two alleged discriminatees. Without repeating the findings of fact previously set forth, it will be re- called that Domino became the terminal manager of the Respondent's Beaumont facility in February 1977. Domino was the one who enforced a more strict policy regarding accidents by the Respondent's drivers. Note that he had held a meeting with employees in January 1')78 regarding the increase in the number of employees' accidents, and that meeting occurred many months before the union activity, which began in August 1978. The attorneys for the Respondent argue persuasively in their brief, page 24: "Although all who testified on the subject seemed to be aware of the three-accident rule, Domino confirmed that Sessions was the only employee with three major chargeable accidents within a twelve month period since he had become Terminal Manager in February of 1977." The Respondent argues similarly with regard to the absence of disparate treatment in the suspension of Crumpler. (See, for example, pp. 28-31 of the Resp. br.) Whatever the predecessors of Domino had done in past years when they had occupied the position of termi- nal manager, the situation changed when Domino became the terminal manager. I conclude that he had a more strict and firm policy regarding accidents, and that his concern with employees' accidents was made known and preceded the advent of the union campaign. The evi- dence does not show that Domino disparately applied his policies after he became the terminal manager. I conclude that Sessions, in fact, had three chargeable accidents which, according to the Respondent's policy, fell within the definition of "major accidents." Those three accidents occurred between early August 1978 and December 23, 1978. Thus, those accidents came within the parameters of the Respondent's 12-month time period. Crumpler also, in fact, had an accident on Octo- ber 30, 1978, which immediately preceded his suspension from work on that date for 4 days. It will be recalled that others had been suspended from work by the Re- spondent for shorter durations after having an accident. For example, note that Sessions was suspended in August 1978 and that Richard was suspended in October 1978. Notwithstanding the findings of independent violations of Section 8(a)(1) of the Act, I conclude that the evi- dence does not establish that the reasons given by the Respondent for the suspension of Crumpler, or for the termination of Sessions, were pretextual, or that Crumpler and Sessions were treated disparately by the Respondent. Klate Holt Company, 161 NLRB 1606 (1966); Golden Nugget, Inc., 215 NLRB 50 (1974); Lance, Inc., 241 NLRB 655 (1979); Conroe Packaging, Inc., 243 NLRB No. 132 (1979). Accordingly, I conclude that a preponderance of the evidence does not support the allegations in paragraphs 9, 10, 11, 12, and 14 of the General Counsel's complaint. Therefore, I hereby dismiss those allegations. CONctLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By interrogating employees about their feelings re- garding International Association of Machinists & Aero- space Workers, AFL-CIO; how the Union could help the employees, and about an employee's attendance at a union meeting, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By threatening an employee that selection of the Union by its employees as their collective-bargaining representative would cause the Respondent to close its doors and the employees to lose their jobs, the Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By creating the impression of surveillance of its em- ployees' union activities, by making remarks to an em- ployee to the effect that the Respondent had ways of finding out about union meetings, and by telling an em- ployee that his truck had been observed outside a union meeting, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 6. By telling an employee not to participate in union activities and to remain neutral, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. By promulgating a rule, which discriminates against soliciting by employees on behalf of the Union during their nonworking time on the Respondent's premises, and which discriminates against the distribution of union lit- erature by employees during their nonworking time and in nonworking areas of the Respondent's premises, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. THI RlM I-I)Y Since I have found that the Respondent has engaged in unfair labor practices within the meaning of Section 452 CFN IRAI IFRI:t(ll I I INF S. INC 8(a)(1) of the Act, I shall recommend to the Board that the Respondent be ordered to cease and desist from en- gaging in those unfair labor practices. I shall also reconmmcnd d to the Board that the Respond- ent take certain affirmalive action in order to effectuate the policies of the Act. In accordance with the Hoard's decision in flicAkioll Ioods,. Inc., 242 NLRB No. 177 (1979), 1 shall recom- mend to the Board a narrow remedial order Uponl the basis of the foregoing findilngs of fact. con- clusions of law, and the entire record in this proceeding. and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the fiollowing recommended: ORDER' The Respondent. Central Freight l ines, Inc. lBeau- mont, Texas. its officers, agents. successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their feelings re- garding International Association of Machinists & Aero- space Workers, AFL-CI()O, how the Union could help the employees, and about an employee's attendance tit a union meeting. (b) Threatening an employee that selection of the Union by its employees as their collective-hargaining representative would cause the Respondent to close its doors and the employees to lose their jobs. (c) Creating the impression of surveillance of its em- ployees' union activities by making remarks to an em- ployee to the effect that the Respondent had ways of finding out about union meetings and by telling an em- ployee that his truck had been observed outside a union meeting. In Ihe cvenl no cxc piolls aire filed i.s prolided hN Sv c 10)2 4h Ihe Rules and Regulatilns ofr the Natillnal t.;lhor Relt.lion,s Boardl. tle Find- ings. conclusions, anld recommended ()rder heremi shalll. i. pr.s dcei ill Sec 10)2 48 of Ithe Rulc, ll.rd Rucillallon.ll hbc adopltd hy ihe HBs.lrd and(1 become ils findings. conclusiilsn. .itll ()rderr n11 ill ohie l(oll, IhCerel( shall he deemed Wvlived for ilil purlroses (d) Telling an employee not to participatc in Ihnion aic- tivities an(d to remain nieutral (C) Prollilgatiilg i rule, vxhlich di scrimllill;ln,its Igii soliciting hby employees o behalf oof the ULlioil durilig their nions:orkirig time onl the Respondent's pi'eiisesi and w.%hich discrinminates against the distrihution of union lil- erialure hy cniplox ces during tlheir 1oill\\o.-kilg tilll .;lld iln nonxvorkiig areas of' the Respondent's p'irilist's (f) In1 an; like or related llatllrr intirtfrinig \Nlh. ic.- straining, or coercinig its emploseCs, ill the \cr isc (it' the rights guarainteed to them by Sectioni 7 of the Act 2. Take the following affirmative action \vhich is leemed ilecessary ill order to effectlate the policlis of the Act: (a) Rcscinid its no-solicitation and no- distributlion rule iiisofar as tlhe Respondetit's rule discrininaiic,,s agtinlll sio- liciting by enlployees osn hehalf of the Unioii duling thlcir inonworking time oil the Rcspolldelt'is plicllsPs lid Alis- criminates against the distribution of union literature hs emplosees during their nonroiirkinig tinic ird ill noll- ,working areas of the Respondent's prenmiscs (b) 'Post at I3cealmolit, I exas. facilit copies ol the ;il- tached notice nlarked "Appendix."' ('opiL's ot' said notice, soin I'orns provided by the Regional Director l'lo Region 2 3, after being duly signed by RCespondleCnl's rep- resentative, shall be posted by it inlnlediacl s upipon re- ceipt thereof, and be maintained by it ;Or h() coisechtil". t (days thereafter. ill conllspicuous places, inclnlinig all places x&here notices to Respolltildel rire cuslonlitilNis posted. Reasonable steps shall be tiaken b Respohllrtdr to insure that sa;id lotices are not altered, defacedl or co',- ered by alny other material. (c) Nolify the Regional I)irector for Region 23. in w\riling, iitlhil 20() days from the date of this ()rder. what steps the Respondent has taken to comply herewsith. - i tl Ihe t( sr.1 111i1il Ih ls ()lid s JtltldI .- s'1 hit iii . I I td Slill s, (1stil i Xi, 1r.Ls tl, -lt ,dl"i, 1it 11 c tlltR r(.illn idl {)g 1 t . hs ()rder o) 1lit NLiti l I ahll ir Rh loltm ioard" shhall rc.aid "l' c;d 'tlrm ianr s l icr l ki dgrc .'iis i li tL 11si t ii t 's L 1i ts (I',,llll of . pp als ti '1cl 1 ,i ll ()r . ir I 1 g1ti Nclitll, li. I , iht sJ RtLi.tiic, . sll' d "si