240 N.L.R.B. 333 (N.L.R.B. 1979)

G.W. Truck

National Labor Relations Board - Board DecisionsJan 29, 1979

240 N.L.R.B. 333 (N.L.R.B. 1979)

G. W. TRUCK 333 G. W. Wilson a/k/a G. W. Truck; Upland Freight Lines, Inc. and Robert C. Dietrich. Case 31-CA- 7648 January 29, 1979 DECISION AND ORDER BY MEMBERS PNELLO MtURPHY, AND TRUESDAIE On August 7, 1978, Administrative Law Judge Jer- rold I-. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondents filed exceptions and supporting briefs, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- 'At the hearing, the Administrative Law Judge revoked portions of the General Counsel's suhpoena duce.s Ieumn on the grounds that the material sought was not relevant. Ihe (;eneral Counsel excepts to this ruling because Respondents had not filed a written petition to revoke within 5 days of receipt of the subpena as required by Sec. 102.31(b) of the National Labor Relations Board Rules and Regulations, Series 8, as amended. While Sec 102.31(b) requires that a written petition to revoke be filed, we find that the General Counsel has not been prejudiced bh the Administrative l.aw Judge's ruling inasmuch as Respondents at the hearing orally objected to the suhpena within the 5-day time period. and we agree with the Administrative Law Judge that the matenal sought was not relevant 2 The (General Counsel and Respondents. respectively, have excepted to certain credibility findings made hb the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inrc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951i .We have carefully examined the record and find no basis for reversing his findings. We agree with the Administrative Law Judge's conclusion that Respon- dents were properl) served with the charge filed in this proceeding. How'- ever, we specifically disavow his finding that Respondents share the same post office box because. after carefull) examining the record. we conclude that there is insufficient evidence to support this finding. 240 NLRB No. 34 lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, G. W. Wilson a/k/a G. W. Truck: and Upland Freight Lines, Inc., Fon- tana, California, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NOTICE To EPiOpYEES POSIE1D BY ORDER OF THE NATIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government WE WILL NOTr interrogate employees about their union membership or activities. WE WIL. NOi discharge or otherwise discrimi- nate against any employee for seeking benefits under the provisions of a collective-bargaining agreement. WE Wil. NOT in any like or related manner interfere with, restrain, or coerce any employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL pay Robert Dietrich for wages he lost as the result of his discharge on December 13, 1977, plus interest. G. W. Wl.SON a/k/a G W TRt :(K: UPI.AND FREIGHT LINES, INC. DECISION STATEMENT OF ITHE CASE JERROLD H SHAPIRO, Administrative Law Judge: The hearing in this case held May 31, 1978, and June 21, 1978, is based upon unfair labor practice charges filed by Robert C. Dietrich, herein called Dietrich, and an amended com- plaint issued on behalf of the General Counsel of the Na- tional Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 31, herein called the Regional Director, which alleges that G. W. Wilson a/k/a G. W. Truck, herein called Respondent G. W., and Upland Freight Lines, Inc., herein called Re- spondent Upland, and collectively called Respondents, violated Section 8(aX() and (3) of the Act by illegally inter- rogating and threatening an employee with discharge, ille- gally threatening employees with a loss of employment, and illegally discharging Dietrich. Respondents filed an answer denying the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the demeanor of the witnesses. and having considered the parties' post-hearing briefs, I make the following: G. W. TRUCK 333 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDIN(;GS OF FACT I. 1IlE BUSINESS OF RESPONDENrS I The parties stipulated that Respondent Upland is a Cali- fornia corporation, that Respondent G. W. is an individ- ual proprietorship doing business under the names of G. W. Wilson and G. W. Truck, and that Respondents are engaged in the business of hauling freight. They also stipulated that Respondents' principal place of business is located at 9993 Almond Avenue, Fontana, California, herein called the Almond Avenue facility, and that Gerald R. Wilson, herein called Wilson, is the president and ma- jority stockholder of Respondent Upland and the owner of Respondent G. W.2 In addition to establishing that Respondents are com- monly owned by Wilson, the record establishes that Re- spondents share the same facility, operate under common management with centralized control over labor relations, and have an interrelation of operations. Consistent with these factors and the stipulation of the parties, I find that Respondent Upland and Respondent G. W. constitute a single employer. II 111 I.AHOR ORANIZAIION INVOLVED General Truck Drivers, Warehousemen and Helpers Union Local 467, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is admittedly a labor organization within the meaning of Section 2(5) of the Act. III IHE SERVICE OF rll UNFAIR LABOR PRACI(L (IIAR(iES Respondents contend that the time limitation imposed by Section 10(b) of the Act, which precludes the issuance of a complaint "based upon any unfair labor practices oc- curring more than 6 months prior to the filing of the charge," requires the dismissal of the complaint for the reason that the charges upon which this proceeding is based were never served upon Respondents. General Counsel takes the position that the charges were personally served. The initial charge herein, filed January 16, 1978, by Diet- rich, names as the charged employer, "G. W. Wilson," and gives as the employer's address 9993 Almond Avenue, Fontana, California, the Almond Avenue facility. 3 On Jan- I here is no question about the Board's jurisdiction. Respondenls corn- cede that their business operations meet the Board's jurisdictional stan- dards. Moreover, the record establishes that Respondents are employers engaged in commerce within the meaning of Sec, 2(5) and (6) of the Act and meet the Board's applicable discretionary jurisdictional standard. 2 During cross-examination Wilson testified that he owned Respondent G. W. in partners with his wife. Respondents previously stipulated thalt Wilson was the sole owner of Respondent G. W. Respondents did not seek to vacate this stipulation but. rather, upon hearing Wilson's testimony, asked for permission to question him on this point and, in so doing, established that the "partnership" between Wilson and his wife was based upon an oral agreement. Whether Wilson owns Respondent G. W. as a sole proprietor. as the parties stipulated. or in parners with his wife does not materially affect the outcome of this case. iOn March 23. 1978, Dietrich filed a first amended charge which, except uary 16, 1978, the charge was mailed by registered mail to Respondent G. W. at the Almond Avenue facility in an envelope bearing the Board's return address and, on Janu- ary 18, 1978, was returned to the Board's Regional Office with the U.S. Postal Service's explanation, "Not delivera- ble as addressed," stamped on the envelope. 4 Upon the return of the charge, the Board attorney as- signed to investigate the case. Lynn K. Thompson, testified that on January 20, 1978, she placed a copy of the charge in an envelope addressed to "G. W. Wilson" at the Al- mond Avenue facility and personally visited the facility that day, at which time she asked Madge Blacksmith if she could speak to Wilson and was informed Wilson was out of the office. Thompson further testified that she placed the envelope with the charge on the top of a desk in full view of Blacksmith and told Blacksmith, "You are hereby served with a charge by the National Labor Relations Board." Blacksmith asked if it concerned "the Dietrich matter." Thompson answered in the affirmative and left the premises. Blacksmith denies this. She testified that Thompson did not serve her with the charge and denies ever seeing Thompson prior to the hearing in this case. Thompson impressed me as the more credible witness. I received the impression from the straightforward manner in which Thompson testified and from her demeanor while on the witness stand that she was candidly testifying about the service of the charge and that her testimony was an accurate recollection of what occurred. 5 In addition, Thompson's account is consistent with the probabilities of the situation. Upon learning that the U.S. Postal Service was unable to deliver the charge, even though it was cor- rectly addressed to Wilson's place of business, it was per- fectly natural for Thompson, the attorney responsible for investigating the charge, to personally deliver a copy of the charge to Respondent's place of business. Also, as was brought out during Thompson's cross-examination, on January 20, 1978, almost contemporaneous with the service of the charge, Thompson reduced into writing a descrip- tion of what occurred when she served the charge, which, in significant part, is consistent with her testimony. Based upon the foregoing, I find that on January 20, 1978, in Wilson's absence, Blacksmith, Respondent Upland's corporate secretary, who is one of the persons in charge of Respondents' day-to-day business operations in Wilson's absence, was personally served at Respondents' place of business with the initial charge filed in this pro- for the fact that it adds Respondent Upland as a charged employer, is identical in all respects to the initial charge. In view of m findings. infra, concerning the service of the original charge, I hare not considered whether the amended charge was served upon Respondents. Respondents share the same post office box. Madge Blacksmith. Re- spondent Upland's corporate secretary, who is also a dispatcher and office secretar) for Respondents. testified that unless a letter is addressed to Re- spondents' post office box it is not delivered, inasmuch as the postal service does not deliver mail addressed to the Almond Avenue facility even though a mall route covers the area in which the facility is located. This testimony does not seem plausible and, in view of the evidence which establishes that the State of California Employment Department. in connection with Dietrich's discharge, mailed correspondence to Respondents' Almond Ave- nue facility which was delivered. it is suspect. The fact that shortly before the hearing in this case a secretary in the Board's Regional Office, in preparing the formal exhibit for this case, back- dated a portion of the service sheet des not detract from Thompson's credibility. G. W. TRUCK 335 ceeding. I further find that inasmuch as Respondent G. W. and Respondent Upland are a single employer, that the service of this charge constitutes service on Respondents. Barrington Plaza and Tragniew, Inc., 185 NLRB 962, 969 (1970). IV THE ALL.EGED UNFAIR LABOR PRACTICES A. Facts 1. Background During the period of time material to this case, Respon- dent Upland employed approximately 10 truckdrivers. The Union has represented Upland's drivers since May 18, 1973, when it was certified by the Board as the drivers' bargaining agent as the result of its victory in a Board- conducted representation election. Lpland Freight Lines, Inc., 209 NLRB 165, 166 (1974). Respondent Upland ex- hibited extreme hostility toward the Union's orgnizational campaign. During the period of time immediately preced- ing the Union's certification, Upland committed several unfair labor practices designed to discourage the employ- ees from supporting the Union. Upland Freight Lines, Inc., supra. However, following the Union's certification, Up- land and the Union succeeded in negotiating a collective- bargaining agreement covering the certified bargaining unit. Upland's current collective-bargaining agreement with the Union is effective from May 16, 1976, until May 15, 1979. Article X is entitled "Pensions" and in substance obligates Upland to contribute into a pension trust fund on behalf of its truckdrivers. Article Xl is entitled "Health and Welfare" and obligates Upland to contribute into a health and welfare trust fund for its regular and casual truckdriv- ers. Article XVII is entitled "Subcontracting" and, in sub- stance, prohibits Upland from subcontracting work to any person who does not observe the wages, hours, and condi- tions of employment set forth in its collective-bargaining agreement with the Union and further provides that if Up- land violates article XVII the Union is free to take eco- nomic action upon 24 hours' notice. Further, article XVII provides that all regular employees listed on Upland's se- niority list shall be guaranteed 8 hours' work or pay before any leased equipment is utilized. In May 1977, Respondent G. W. commenced its busi- ness operations as a subhauler for Respondent Upland. During the period of time material herein, G. W. em- ployed approximately four truckdrivers who worked out of the same facility, performed the same work, drove the same vehicles, and were supervised by the same persons as Upland's drivers, but were not covered by Upland's collec- tive-bargaining agreement with the Union. Wilson, Respondents' owner, formed G. W. to subhaul for Upland because Wilson felt Upland could not afford the economic cost of the collective-bargaining agreement and thought that by using G. W. as a subhauler he would be able to minimize the number of drivers covered by the terms of the bargaining agreement. Indeed, in June 1977, Respondents' Labor Relations Consultant Fenstermacher informed Union Representative Rooks that Upland was unable financially to continue to make pension contribu- tions on behalf of Upland's drivers and, to remain in busi- ness, needed relief from this provision of the collective- bargaining agreement. Thereafter, when all of Upland's drivers agreed to forgo this contractual benefit, the Union and Upland entered into a letter of understanding whereby they agreed that article X of the collective-bargaining agreement, the article dealing with pension benefits, would not be enforced for the duration of the agreement. 2. The events leading up to the August 23 agreement 6 In July 1977, Upland's drivers complained to Union Representative Rooks that Upland's owner, Wilson, was operating another trucking company, G. W., which was subhauling for Upland and that its drivers were performing work Upland's drivers should have been doing. Rooks promptly spoke to Wilson and advised him that his con- duct violated the subcontracting article, article XVII, of the collective-bargaining agreement. In addition, Rooks told Wilson the Union was attempting to get subhaulers, such as G. W., that did business with Kaiser Steel to "be- come union": in return, the subhaulers' employees would receive the health and welfare benefits provided in the Union's collective-bargaining agreement. Wilson told Rooks to speak to Fenstermacher, Upland's labor relations consultant. Later, in July 1977, Rooks spoke to Fenstermacher and, in substance, advised him that, because the drivers of Up- land and G. W. worked in such close proximity, the G. W. drivers felt they should have some of the contractual bene- fits enjoyed by the union (Upland) drivers. Rooks asked if something could be worked out to remedy the situation. Fenstermacher indicated he would talk about the matter with Wilson. Fenstermacher talked with Wilson and thereafter met with Rooks and told him Upland was amenable to resolv- ing the problem created for the Union by Wilson's opera- tion of G. W. Fenstermacher stated Wilson would recom- mend that the G. W. drivers join the Union and, on the subject of health and welfare benefits for G. W.'s drivers, stated that since Upland was in an economic bind, the only way it would agree to include G. W.'s drivers under the contractual health and welfare plan would be if the drivers agreed to pay 50 cents an hour toward the cost of such coverage and have it deducted from their wages.' 6The descnption of the several conversations in this section between Rooks, Fenstermacher. and Wilson and between Rooks and Fenstermacher are based upon the testimony of Fenstermacher and Wilson Rooks' testimony conflicts with Fenstermacher's and Wilson's in several significant respects. particularly on the subject of whether Wilson or Fenstermacher indicated to Rooks it was Upland's intent to deduct the cost of the G. W. employees' health and welfare benefits from their wages. I have credited Fenstermacher's testi- mony In this regard because he was a very convincing witness who impressed me as a more credible witness than Rooks. Although Wilson was not an especially convincing witness, his testimony was not inconsistent with Fenstermacher's regarding significant matters, and he impressed me as a more criedible witness than Rooks. T'he parties disagree about the meaning of the August 23 agreement. General Counsel contends that the agreement unambiguously requires Re- spondent Upland to pay the cost of the G. W. drivers' health and welfare benefits Respondents contend that the August 23 agreement is ambiguous in this respect and. in order Io ascertain the meaning of the agreement, it is (Contlnued G. W. TRUCK 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next meeting relevant to this case was between Rooks, Fenstermacher and Wilson early in August 1977. Rooks indicated his desire to have G. W.'s drivers join the Union and pointed out that at one time Upland employed between 30 and 40 drivers, but now only listed 10 or 11 on its seniority roster, and expressed his concern that Upland's drivers were being phased out by Wilson's use of the nonunion drivers employed by Respondent G. W. Rooks stated that the Union wanted Upland to employ a minimum of 10 regular drivers. Wilson indicated that he would be favorably disposed to employing a minimum of 10 regular Upland drivers, would encourage G. W.'s driv- ers to join the Union, and give the drivers employed by G. W. health and welfare benefits if the Union agreed that Upland could continue to use G. W. as its subhauler, even though, in violation of the contractual subcontracting arti- cle, G. W. did not observe the terms and conditions of employment set forth in the Union's collective-bargaining agreement. Wilson emphasized, however, that he would not force G. W.'s drivers to join the Union but would en- courage them to do so, explaining it would be beneficial to the Company that they have union cards, inasmuch as they picked up and delivered at companies whose employees were represented by unions. Wilson also stated, in connec- tion with health and welfare benefits for G. W.'s drivers. that the cost of such benefits would be deducted from the wage scale of those employees who expressed a desire to participate in the health and welfare program and ex- plained to Rooks how the money would be deducted.8 Fen- stermacher indicated that when he and Rooks were in San Francisco the following week, dealing with other business, they could discuss further the matter of the health and welfare benefits. On approximately August 10, 1977, Rooks and Fenster- macher, while in San Francisco on business unrelated to the events pertinent to this case, met for lunch with Jack Crotty, the Teamsters Union joint state chairman for Southern California.9 They asked Crotty whether it was possible for G. W.'s drivers to be covered by the collective- bargaining contract's health and welfare trust even though G. W. was not a party to the contract. Crotty suggested that this could be accomplished by placing G. W.'s drivers on Upland's seniority roster, and, in this way, Upland could make the payments on their behalf into the health and welfare trust at the same time it submitted payments on behalf of its own drivers. Fenstermacher indicated that necessary that I examine the discussions between the parties which resulted in the signing of the agreement. General Counsel argues that such evidence is not admissible because of the Parol Evidence Rule. I disagree. Even as- suming that the meaning of the August 23 Agreement is clear on its face and constitutes an integrated agreement. "it is . . . well established that evi- dence may be introduced for the purpose of ascertaining the correct inter- pretation of [thel Agreement." Inrer-Lakes Engineering Companyv, 217 NLRB 148, 149 (1975), and the authorities cited therein, where the Board considered extrinsic evidence in order to ascertain the meaning of an unam- biguous agreement. The evidence here was taken in order to ascertain the meaning of the August 23 Agreement, not to vary its terms. Under these circumstances, it was properly received for that purpose. 8 Employees who earned $6 or more an hour would have 50 cents an hour deducted from their paychecks. whereas those who were earning less than $6 would receive a pay raise of only 50 cents an hour rather than their scheduled $1 hourly increase. 9 Crotty did not testify. this procedure was acceptable to him but reminded Rooks that the only way Upland would contribute money on be- half of G. W.'s drivers was if the drivers paid toward the cost of the insurance benefits. The discussion ended with Fenstermacher and Rooks agreeing that Fenstermacher would draw up a written agreement for the parties to sign. On August 23, 1977, Fenstermacher visited Wilson's of- fice for the purpose of drawing up an agreement. He phoned Rooks and indicated he was in the process of drafting an agreement for Rooks' signature and read him the following: (A) LETTER OF UNDERSTANDING AND AREEMENI by and between UPLAND FREIGHT LINES, INC. AND TEAMSTER'S UNION LOCAL 467. It is agreed between the parties hereto that the em- ployees of G. W. Truck, sub-hauling for Upland Freight Lines, Inc., shall be shown on a separate se- niority list of Upland Freight Lines, Inc., for the pe- riod of time that G. W. Truck continues to sub-haul for Upland Freight Lines, Inc. A copy of this separate seniority list shall be mailed to Teamster's Union, Lo- cal 467 each thirty (30) days. Those employees shown on the separate seniority list of Upland Freight Lines, Inc., (G. W. Truck em- ployees), shall have the same Health and Welfare pre- miums paid on their behalf, by Upland Freight Lines, Inc., as Upland Freight Lines, Inc. pays on it's regular employees. All other provisions of Article 32 of the Western Master Freight Agreement shall remain in full force and effect. (B) LETTER OF UNDERSTANDING AND AGREEMENT by & between UPLAND FREIGHT LINES, INC. & TEAMSTER'S UNION LOCAL 467. It is agreed that as a condition of signing the letter of agreement dated August 23, 1977, between Upland Freight Lines, Inc., and Local 467, that the provisions of Article 17 of the California Intrastate Truckload and Steel Supplemental Agreement shall not apply to those operations of Upland Freight Lines, Inc. and G. W. Truck. It is further agreed that Upland Freight Lines, Inc. shall maintain a minimum of ten (10) men on the reg- ular seniority roster for the life of the agreement. It is further agreed that Local 467 withdraws any strike notices in effect at the time of the signing of this letter of understanding. The Health & Welfare payment contributions, made by Upland Freight Lines, Inc. for the employees of G. W. Truck, shall become effective October 1, 1977. It is agreed that the separate seniority list of G. W. Truck is not to be dovetailed into nor intermingled with the seniority roster of Upland Freight Lines, Inc. G. W. TRUCK 337 Rooks asked that a third letter of understanding be pre- pared for the parties' signatures identical in content to (B) supra, except that the final paragraph be deleted. Rooks explained that he wanted to show this third letter of under- standing to other employers under contract with the Union, who used subhaulers, because he did not want these other companies to know the extent that the Union had gone along with Upland's use of G. W. as a subhauler. Fenstermacher agreed to prepare the third document. Also, Fenstermacher informed Rooks that as had been stated previously, the cost of the health and welfare benefits for G. W.'s drivers would be deducted from their wages. Spe- cifically, he stated that those employees currently receiving $6 an hour would have 50 cents an hour deducted from their pay if they wanted health and welfare benefits and those whose pay was scheduled to be raised to $6 an hour would only be raised to $5.50 if they wanted to participate in the health and welfare program. Later that day, August 23, Fenstermacher went to Rooks' office, where he delivered to Rooks copies of the three letters of understanding described supra, herein called the August 23 Agreement. Fenstermacher once again stated that the only way Upland could contribute into the health and welfare trust fund on behalf of the G. W. drivers was to deduct money from the employees' wages, as had been previously stated. Rooks indicated he had no objections to this, but left the office to discuss the August 23 Agreement with the Union's President Lee Col- bert. Rooks reentered the office with Colbert and indicated the August 23 Agreement was satisfactory as written. Rooks and Fenstermacher affixed their signatures to the documents. Rooks for the Union, Fenstermacher on behalf of Respondent Upland. 3. The implementation of the August 23 agreement The truckdrivers employed by Respondent G. W., in- cluding Robert Dietrich and John Corp, joined the Union late in August 1977 after Rooks, the Union's representa- tive, explained that if they joined the Union, Respondent Upland would pay for their health and welfare benefits and, to support this assertion, showed them the August 23 agreement. Soon after the signing of the August 23 agreement, the owner of Respondents, Wilson, in late August or early Sep- tember, spoke separately to Corp and Dietrich about the Union and the cost of the health and welfare benefits. In speaking to Corp, Wilson asked whether all of G. W.'s drivers, including Corp, had "went down to the Union." Corp answered in the affirmative, explaining to Wilson that the Union had told them that if they joined the Union their health insurance benefits would be paid and also had told them that sooner or later they would have to carry a union card to enter Kaiser Steel's facility, where they made most of their pickups. Wilson informed Corp, "I wish you would have been a man about it and came to me first instead of going to the Union." This was the extent of their conversation. Also. during the same time period, Wilson spoke to Corp about the cost of health and welfare benefits. Wilson told Corp that the Union wanted G. W.'s drivers to receive health and welfare benefits and asked if Corp would be willing to pay 50 cents an hour to receive these benefits.' Corp stated he was not interested. In speaking to Dietrich, Wilson asked if he was "one of those that had went down and joined the Union." Dietrich answered in the affirmative. Wilson asked why Dietrich had not come to him. Dietrich explained it was his under- standing that Kaiser Steel, one of Respondents' principal customers, intended to start asking the drivers to show union cards and that by joining the Union he had gotten a union card and would also receive health insurance bene- fits. Wilson acknowledged that he had spoken to Union Representative Rooks and that there was something going on which meant everyone would have to have a union card to enter Kaiser Steel. Dietrich stated he had not joined the Union to make trouble but to get a union card and to get health and welfare benefits. Wilson stated he would like to have Dietrich remain in his employ because he was a good driver who learned fast and stated that there was a chance Dietrich could go to work for Upland after an Upland driver had quit, inasmuch as Dietnch was next in line for a job with Upland. On the subject of health and welfare ben- efits, Wilson told Dietrich that he thought the G. W. driv- ers should have such benefits if the drivers themselves were willing to pay 50 cents an hour, which would be deducted from their pay. l Dietrich asked what the other drivers had said about this. Wilson stated they had refused. Dietrich indicated that he thought 50 cents an hour was extremely high but if the other drivers agreed, he would go along with them as he did not want to be in the minority. This much of the aforesaid conversation between Diet- rich and Wilson is undisputed. In dispute is Dietrich's testi- mony that during the conversation Wilson warned him he would close his business, take the trucks, and open up else- where without the Union. Dietrich also testified that, im- mediately after this conversation, he overheard Wilson speaking to a group of Upland's drivers and that Wilson told these drivers, "I can close this place today, take my trucks and open up somewhere else." Wilson testified he made no such threats either to Dietrich or to Upland's drivers. Rather, Wilson testified that he told Upland's driv- ers he was happy they were working hard and that, for the first time in several years, business conditions looked fa- vorable for Upland and thanked them for agreeing to res- cind the provision in the Union's collective-bargaining contract dealing with pension contributions.' 2 Wilson fur- ther testified that he told the Upland drivers there ap- peared to be a lot of bickering between them and G. W.'s drivers, that the G. W. drivers were complaining that Upland's drivers were calling them scabs and leeches and the Upland drivers were also complaining about G. W.'s drivers. Wilson stated that it would be better if the drivers from the two companies worked together in harmony and warned Upland's drivers that if they did not do so, he 9 Corp at the time was earning over $6 per hour. Dietrich was earning $6 an hour. J2 The Union, in June or July 1977. as I have found supra, with the per- mission of Upland's drivers. agreed not to enforce the provision in ts con- tract with Upland calling for pension contnhutions G. W. TRUCK 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would take (. W.'s trucks and move them to another loca- tion. Wilson and Dietrich did not impress me as convincing witnesses when they gave the aforesaid testimony. How- ever, in this instance, Wilson impressed me as the more reliable of the two. In addition, although Dietrich was pres- ent for approximately 20 minutes when Wilson spoke to Upland's drivers, he was vague and evasive when ques- tioned about the context in which the alleged threat to close was voiced 13 and, other than the alleged threat and Wilson's introductory remarks, was not able to remember anything else that Wilson said at this meeting. For all these reasons, I have rejected Dietrich's testimony insofar as it attributes a threat by Wilson to close his business because of union considerations. In early September 1977, following Wilson's aforesaid conversations with them, Dietrich, Corp, and another G. W. driver complained to Union Representative Rooks that Wilson had indicated he intended to deduct 50 cents an hour from their pay to cover the cost of health and welfare benefits. They asked Rooks whether the Union had agreed to this. Rooks stated that no such agreement had been made with Wilson by the Union, but the employees did not have a valid grievance until Wilson actually de- ducted the money from their pay. If Wilson did this, Rooks promised he would act. In late September or early October 1977, Wilson asked Dietrich whether he had given any more thought to paying 50 cents an hour for health insurance benefits. Dietrich answered that it sounded extremely expensive. Wilson told him "they" were considering only charging the employees for 40 hours of work, not their overtime hours. Dietrich stated he still felt it was too expensive and also expressed the view that he did not think he should have to pay for health and welfare benefits because he was already paying dues to the Union and that the Union had advised him that there was an agreement between Wilson and the Union stating that G. W.'s drivers' health benefits would be paid for. Wilson acknowledged that there was an agreement be- tween himself and the Union, but explained to Dietrich that the Union had told Wilson he could charge the drivers 50 cents an hour.l4 Later that same day, after speaking with Wilson, Diet- rich phoned Rooks and told him Wilson had asked him to pay 50 cents an hour for health insurance benefits. Rooks advised Dietrich that he did not have to pay, as the Union had a signed agreement with Wilson. A few days later, Dietrich and Corp visited Rooks, at which time Dietrich told Rooks they had been advised by Wilson that he had the right to charge them for health insurance benefits be- cause the Union had given him that right. Rooks denied this. He told Dietrich and Corp that Wilson had signed an o Likewise. Dietrich was vague and esasie when questioned about the context in which Wilson voiced the threat to him when thee were alone. 14 'The description of this conversation between Wilson and D)ietrich is based upon Dietrich's testimony. Wilson testified that he spoke to Dietrich several times about health insurance and that Dietrich rejected it. giving the reason that he had just purchased health insurance elsewhere. Then Wilson inconsistently testified that Dietrich rejected it. giving the reason that it was too expensive and he thought he couldpurichase it elsewhere. In this instance, Dietrich impressed me as the more convincing witness. agreement with the Union which obligated him to pay the cost of the employees' insurance and not deduct it from their wages. Rooks, to support this assertion, showed them the August 23 agreement. During October 1977. when Rooks discovered that Up- land had not made any contributions into the health and welfare trust on behalf of G. W.'s drivers, he complained to Fenstermacher 15 and Blacksmith 16 that Wilson had not complied with the terms of the August 23 agreement in that he was not contributing into the health and welfare trust fund on behalf of G. W.'s drivers." Wilson was apparently out of town during this period and neither Fenstermacher nor Blacksmith was able to satisfy Rooks' complaint; so, on October 28, 1977, Rooks mailed a letter on the Union's stationery to Wilson and a copy to Fenstermacher, which stated: "Your company has failed to meet your obligation under our Letter of Agreement. October I, 1977, you were to pay contributions on employees of G. W. Wilson Truck l.ine as per our agreement, therefore this is our 72-hour notice of intent to strike." 18 Late in October and in the middle of November 1977. Blacksmith spoke to Dietrich '9 and told him the Union had been asking about the health insurance and that Wil- son wanted to know whether Dietrich had given any more thought to paying 50 cents an hour for the insurance. Diet- rich replied that he would not pay for the health insurance, explaining to Blacksmith that the Union had said he was not obliged to pay for it and that he did not understand why he had to pay twice for the same insurance. 2 0 l einstermacher is Upland's labor relations consultant who had negoti- ated tie August 23 agreement. 16 Blacksmith is Upland's corporate secretary and is In charge of Respon- dent's business operations in Wilson's absence. Blacksmith testified that during this period of time she spoke to Rooks over the telephone and informed him that [)ietrich and Corp did not want the health insurance. Since Rooks impressed me as the more credible wit- ness oin this ]p)int, I reject Blacksmith's testimniny to the extent that it is incolnsistenl with Rooks' description of his phone conversations with Black- smith at this point of time. I note that Blacksmith was vague and evasive when questioned about the content of these phone conversations and, al- though she supposedly spoke about several matters with Rooks, could only recall one item. namely. that she told Rooks that Dietrich and Corp did not wallt the insurance. She had absolutely no recollection of what Rooks said during these conversations. S Despite Wilson's failure to comply with Rooks' interpretation of the August 23 agreement, the Union never carried out the strike threat nor has it taken any other action against Upland. The Union has apparently accepted the August 23 agreement as interpreted by Respondents. 1Blacksmith testified that at Wilson's request she spoke to all the G. W. drivers. including Dietrich, to find out if the) wanted health insurance. She was an unconvincing witness on this subject. She gave the impression of ha ing no independent recollection of her conversation with Dietrich. When asked to describe it, she testified in terms of "1 would have said." She testified that she offered Dietrich the insurance and asked if he wanted it at "pay scale" but did not explain to Dietrich what she meant by "pay scale." Inconsistently, she also testified that she spoke only to C'orp and Dietrich. not to all the G. W drivers and that she did not speak to Corp and Diet- rich about the insurance at Wilson's request, but the subject came up fortui- tously and she "discussed" it with them. This is contrary to her testimony that she spoke to them at the request of Wilson and did not discuss the subject with them but,. without explanation, offered them the health insur- ance at "pay scale " In short, Blacksmith impressed me as an unreliable witness when she testified about these conversations; thus. I have credited Dietrich. who seemed to me to be the nmore credible of the two on this particular matter. ' As noted previously, Union Representative Roo)ks initially told G. W.'s drivers that, by joining the Union, they would receive health and welfare benefits pursuant to the t!nion's August 23 agreement with Upland. G. W. TRUCK 339 4. Dietrich's discharge On December , 1977, pursuant to the health and wel- fare program contained in Upland's contract with the Union, Dietrich filed a $6.65 health insurance claim with the administrator of the health and welfare trust. The claim was returned to Dietrich by the administrator approxi- mately December 8 with the notation, "this person has not been reported." Dietrich phoned Union Representative Rooks and told him what had happened. Rooks stated that the notation meant Dietrich's insurance had not been paid. Rooks promised to check into the matter. Thereafter, on two occasions, Rooks phoned Wilson, who was out of his office, so Rooks spoke to Blacksmith. Rooks told Blacksmith that Dietrich had filed a health in- surance claim which had been returned with an indication that Dietrich was not covered by the health insurance plan. Rooks also stated that Dietrich's wife had phoned the Union's office and spoken to a secretary abusively about the claim not being paid. Rooks stated that he wanted to get the matter straightened out. Blacksmith told him that Dietrich did not have insurance coverage. Rooks indicated that he knew this, but wanted the matter straightened out, inasmuch as he did not feel that an office secretary should take abuse from a driver's wife. After Blacksmith spoke to Dietrich about the matter, Dietrich spoke to his wife and denied that she had phoned the Union's office about the insurance claim. Blacksmith also told Dietrich, "you know you don't have insurance." In response, Dietrich stated that he thought he was covered by the health insurance program, explaining to Blacksmith that it was his understanding that when he joined the Union or received his membership card from the Union that it covered his insurance.2 ' In the meantime, Blacksmith phoned Wilson at his home and informed him that Rooks phoned, stating that Dietrich had filed a health insurance claim, On either December 12 or December 13, 1977, the first day Wilson returned to his office following Blacksmith's message, Wilson phoned Rooks and asked him about Dietrich's insurance claim. Rooks stated that Dietrich had filed an insurance claim, that the Union did not have his name among those for whom Wilson was making contributions, that Dietrich wanted to know why he did not have any insurance cover- age and Rooks also wanted to know the reason. Wilson explained that the reason no contribution had been made for Dietrich was that the agreement between the Union and Wilson was that Wilson was not to force the employ- ees to take the insurarce and that Dietrich had told Wilson he did not want the health insurance.2 2 Thus. Dietrich thought that his Union dues and fees constituted his pay- ment for the health and welfare benefits. hence, his belief that by allowing Wilson to deduct the cost of the benefits from his pay. he would be pa)ing twice for the insurance. 21 The description of Blacksmith's conversations with Dietrich is based upon Blacksmith's testimony. Dietrich testified that on approximately De- cember 9 1977, Blacksmith asked whether he had filed insurance claims against Wilson. Dietrich admitted having done this. Blacksmith. according to Dietrich, told him that the Union had phoned about the claims and wanted to know why Wilson had not paid Dietrich's health insurance and that the Union had said it was going to strike the Compans. Blacksmith, in this instance, impressed me as the more credible witness. On the morning of December 13, 1977. Wilson dis- charged Dietrich. Wilson informed Dietrich that he was discharged for being dishonest, in that he had submitted a health insurance claim knowing he was not covered by the health insurance program, inasmuch as Wilson had previ- ously given him an opportunity to participate in the pro- gram, but Dietrich had declined to do so. 5. The events postdating Dietrich's discharge On December 14, 1977. Dietrich filed a grievance with the Union protesting his discharge. The gnevance stated: "I was told I was fired because of dishonesty. When I asked them to explain, they said because I filed a claim for insurance through the Union when I was supposed to have known that this insurance was not paid by Wilson." On approximately December 15, Rooks phoned Fenstermach- er and told him that Wilson had fired Dietrich for dishon- esty and that Rooks intended to file a grievance on Dietrich's behalf challenging the validity of the discharge. Fenstermacher stated that such a grievance was improper because Dietrich's employer. Respondent G. W., did not have a contract with the Union. Rooks indicated he agreed with Fenstermacher's position, but since Dietrich was a member of the Union, Rooks had to see if he could do something for him. Rooks asked if there was any way to persuade Wilson to reinstate Dietrich. Fenstermacher stat- ed he would discuss the question with Wilson. Fenstermacher did not speak to Wilson until approxi- mately December 19, 1977. Fenstermacher then spoke to Rooks in Rooks' office. Fenstermacher stated that Dietrich should go and talk to Wilson, as Wilson had agreed to reinstate him and give him a second chance and would reduce his discharge to a suspension. Rooks indicated his approval.23 During this meeting between Fenstermacher and Rooks, Dietrich phoned Rooks and asked "how is it going, when do I go back to work." Rooks told him that he was talking at that moment with Fenstermacher and they had discussed the situation and would like him to talk with Wilson on Thursday, December 22. Dietrich agreed. On Monday, December 26, 1977. Dietrich went to Re- 22 Rooks denied speaking with either Blacksmith or Wilson about Dietrch's health insurance claim prior to his discharge. The descriptions In this section of Rooks' conversations with Blacksmith and Wilson concern- ing Dietrich's health insurance claim are based upon Wilson's and Blacksmith's testimony, inasmuch as the) impressed me as more credible witnesses on this point than Rooks. In addition, the probabilities inherent ii the situation support the conclusion that Rooks, upon receipt of I)letrich's complaint. on December 8 phoned Wilson as Blacksmith testified he did. In this regard. as noted previously. Dietrich admits that Blacksmith. In their conversation on December 9, indicated that Wilson had learned about etrinch's health insurance claim from a representatie of the nion. There is no suggestion in the record that Wilson could have learned about Dietnch's claim from any source other than Rooks The description of Fenstermacher's conversations with Rooks in this section, whenever there Is a conflict, is based upon Fenstermacher's testi- mon,. Rooks, n substance, testified that prior to Dletrch's postdischarge conversation with 'Wilson there was onls one conversation between Rooks and Fenstermacher, at which time theV agreed the) would try to arrange a meeting between Wilson and Dietrich. To the extent that Fenstermacher testified, there were two consersatsns between himself and Rooks during this period and. to the extent his version of the first conversation differs from Rooks', I credit him because he impressed me as a more credible winess G. W. TRUCK 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondents' place of business and spoke to Wilson.24 He was escorted into Wilson's office by Blacksmith, who then went back to her desk, which was between 15 to 18 feet from Wilson's office. The door of the office was open and, al- though she was working at the time, Blacksmith, who was curious about the meeting, listened to the conversation be- tween Dietrich and Wilson.25 Blacksmith, Dietrich, and Wilson testified about the meeting. A composite of Wilson's and Blacksmith's testimony, which is substantially in agreement, establishes that Wilson offered Dietrich his job back and explained to him that the offer was a voluntary one, without any pressure from the Union. Dietrich disputed this, stating that the Union had forced Wilson to reinstate him. Wilson denied this and ex- plained to Dietrich that he had discussed the matter with his labor relations consultant and the Union and was rein- stating him as a favor. Dietrich accused Wilson of lying, reiterating that Wilson was being forced to reinstate him. At this point Wilson informed Dietrich that if that was his attitude, "we don't need it" and asked whether they really had anything to talk about. Dietrich answered in the nega- tive and stated that Wilson could "shove the damn job up your ass" and that he had seen a lawyer and had been to the National Labor Relations Board. This ended the meet- ing. Dietrich's version of the meeting is that he told Wilson that the Union had sent him to talk about returning to work because the grievance he had filed protesting his dis- charge had been decided in his favor. Wilson stated there was nothing for them to talk about and that the grievance had gone against Dietrich. Dietrich stated that someone was lying to him and at this point got into a brief discus- sion with Wilson about the reason for his discharge. The meeting ended with Wilson stating there was nothing for them to discuss and Dietrich saying that, if Wilson felt like that, then he, Dietrich, had already phoned the National Labor Relations Board and would see him in court. Wilson and Blacksmith, whose testimony in essential re- spects was mutually corroborative, impressed me in this instance as more credible witnesses than Dietrich. Accord- ingly, I have credited their version, which has been set out above. In sum, I find that on December 26, 1977, Wilson offered to reinstate Dietrich to his former position but, when Wilson refused to acknowledge that Dietrich's dis- charge grievance was meritorious and his reinstatement was the result of this, they got into an argument, and, in a fit of anger, Dietrich, in effect, refused to return to work absent Wilson's acknowledgment that Dietrich's discharge for dishonesty was without justification. B. Ultimate Findings 1. The threats and interrogation The amended complaint alleges that in late August or early September 1977, Respondents violated Section 24 Dietrich had gone to the facility on Thursday. December 22, as sched- uled, but Wilson was not there. 25 Wilson is hard of hearing. so) he speaks in a loud tone of voice: thus, it would not have been difficult to hear him from where Blacksmith was sit- ting. 8(a)(l) of the Act when Wilson "threatened an employee with discharge if said employee refused to stop engaging in union or other protected concerted activities" and "threat- ened to close Respondents' business operations and to re- locate them elsewhere should employees persist in engag- ing in union or other protected concerted activities." These allegations are based upon the testimony of Robert Diet- rich, which, as described supra, has been rejected. I shall for this reason recommend that this portion of the amended complaint be dismissed. The amended complaint alleges that in late August or early September 1977, Respondents violated Section 8(a)(l) of the Act when Wilson "interrogated an employee about why he and other employees had joined the Union." The record, as I have found previously in this decision, establishes that, in early September 1977, shortly after G. W.'s drivers joined the Union, Wilson spoke to drivers Corp and Dietrich about the Union. Wilson asked if Corp and the other drivers "went down to the Union." Corp answered in the affirmative and explained to Wilson why he had joined the Union. In response, Wilson stated that he wished Corp had spoken to Wilson before joining the Union. Wilson asked Dietrich if he was one of those who had "went down and joined the Union." Dietrich answered in the affirmative. Wilson then asked why Dietrich had not come to him instead of joining the Union. In reply Dietrich explained that he had not joined the Union to make trou- ble for Wilson and explained his reasons. In my opinion, the seeking out of Corp and Dietrich, questioning them, in effect, if they had joined the Union, and asking Dietrich why he had joined the Union, were calculated to force these employees to reveal to Wilson their Union sentiments. I further find that, in the absence of any justification or explanation. Wilson's questioning these employees about their Union activities and senti- ments, without assurances of nonreprisal, was coercive in violation of Section 8(a)(1), especially since Wilson indi- cated to the employees that they should have spoken to him first before joining the Union, thus indicating that he looked with disfavor upon their conduct of joining the Union. It is for these reasons that I shall find that by inter- rogating employees Corp and Dietrich about their Union sympathies and activities, Respondents have violated Sec- tion 8(a)(1) of the Act. 2. Dietrich's discharge The General Counsel takes the position that in filing his health insurance claim Dietrich was attempting to imple- ment the terms of a collective-bargaining agreement, which constitutes protected concerted activities, and was dis- charged for engaging in this conduct. I agree. In concluding that in filing the health insurance claim Dietrich was attempting to enforce a provision of a collec- tive-bargaining agreement pertaining to health and welfare benefits and that Respondents knew this to be the case, I was influenced by these considerations. Respondent Up- land had entered into an agreement with the Union, the August 23 agreement, which in part provided that G. W.'s drivers were covered by the health and welfare program included in Upland's contract with the Union. In this re- G. W. TRUCK 341 gard, the August 23 agreement provides that, effective Oc- tober 1, 1977, the "(G. W. Truck Employees), shall have the same health and welfare premiums paid on their behalf, by Upland Freight Lines, Inc., as Upland pays on it's regu- lar employees." The negotiations which resulted in this agreement and its implementation reveal that the parties were referring to the health and welfare plan contained in Upland's collective-bargaining agreement with the Union. Subsequent to the signing of the August 23 agreement, Union Representative Rooks persuaded Dietrich and other G. W. drivers to join the Union by telling them if they joined the Union that Upland would pay for their health and welfare benefits and, to demonstrate that this was true, showed them the August 23 agreement. Thereafter, Diet- rich told Wilson, Respondents' owner, that based upon the August 23 agreement it was his belief that he was covered by the Upland drivers' health and welfare program and, subsequently, filed the insurance claim which resulted in his discharge. In concluding that Dietrich was discharged because he filed the health insurance claim, I was influenced by these considerations. On December 13, 1977, Wilson explained to Dietrich that he was discharged for filing a health insur- ance claim with the knowledge that he was not covered by the health and welfare program, having previously refused Wilson's invitation to participate. Hence, Wilson told Diet- rich that he felt Dietrich had acted dishonestly in filing the claim. Also, Wilson testified that Dietrich filed the claim knowing he was not covered by the health and welfare program, as he had turned down Wilson's invitation to par- ticipate in the program, and that, in these circumstances, Dietrich had acted dishonestly, which resulted in his dis- charge. Based upon the foregoing, I am persuaded that in filing the health insurance claim Dietrich was asserting a claim under the terms of the August 23 agreement and, in assert- ing this claim, sought to implement a collective-bargaining agreement applicable to him as well as the other G. W. drivers and, since the implementation of such an agree- ment by an employee is but an extension of the concerted activity giving rise to that agreement, Dietrich was thereby engaging in protected concerted activities.2 6 The fact that Dietrich, in relying upon the terms of the August 23 agreement, misinterpreted the agreement 27 is not relevant to the issue of whether he engaged in protect- ed concerted activities, for the protection of the Act is not 26 It is settled that an employ)ee who asserts a claim pursuant to a collec- tive-bargaining agreement s engaged in furtherance of the same concerted activit which resulted in making of the agreement. L RB v. Interboro ( ntractors, Inc., 388 F.2d 495. 500 (2d (ir. 1967); Merl'n Bunnec and Clar- eni Bunnes. Partners, Bunnes Brr (struciln ('mpani,. 139 N.RB 1516. 1519 1962). 27 On its face the plain meaning of the health and welfare language con- tained in the August 23 agreement is that LUpland shall pay for the cost of the drivers' health and welfare benefits floeser, the evidence set forth. rupra, concerning the negotiation meetings which resulted in this language overwhelmingly establishes that the parties agreed that the cost of the health and welfare benefits for (. W.'s drivers would he paid hb the drivers inso- far as their normal hourli rate of pas would be reduced 50 cents if thes chose to participate n the program. Moreover at all times subsequent to the signing of the August 23 agreement. Upland's conduct has been consistent with this interpretation and the nion has apparentl) not taken an' action against t pland dependent upon a correct interpretation of a collective- bargaining agreement or on the merit or lack of merit of the concerted activities. See N.L.R.B. v. H. C. Smith Con- struction Co., 439 F.2d 1064 (9th Cir. 1971); Anaconda Alu- minum Company, 160 NLRB 35, 40 (1966): Mushroom Transportation Co., Inc., 142 NLRB 1150, 1157 58 (1963). Nor does the record establish that Dietrich, in filing his insurance claim, acted frivolously or in bad faith or out of a desire to harass management; rather, it reveals that Diet- rich held a reasonable basis for believing that his interpre- tation of the August 23 agreement was the understanding which had been agreed upon. The facts, set forth in detail, supra, depict a context of events preceding the filing of Dietrich's insurance claim which indicate that Dietrich's conduct was the result of a good faith and reasonable be- lief that the August 23 agreement provided him with health insurance coverage that was paid for by Upland.28 Thus, after the signing of the August 23 agreement, Union Repre- sentative Rooks persuaded Dietrich to join the Union by informing him that if he joined he would receive health and welfare benefits paid for by the employer and, in order to convince him of the truth of this assertion, showed him the August 23 agreement. The meaning of the pertinent part of the August 23 agreement which deals with health and wel- fare benefits-"[G. W. drivers] shall have the same health and welfare premiums paid on their behalf, by [Upland] as [Upland] pays on it's regular employees" 9 -is clear on its face. The meaning a person would normally ascribe to this language is that Upland had obligated itself to pay the cost (premium) of the health and welfare benefits on behalf of G. W.'s drivers. When Dietrich and Corp informed Union Representative Rooks that Wilson had said the Union ver- bally agreed that Wilson could reduce the drivers' wages by 50 cents an hour to pay for their health and welfare benefits, Rooks vigorously denied such an agreement and informed Dietrich and Corp that the August 23 agreement obligated Wilson to pay the cost of these benefits and again showed them a copy of the August 23 agreement. These circumstances establish that, in filing the insurance claim, Dietrich acted in good faith with a reasonable belief that he was covered by the health and welfare program contained in Upland's contract with the Union and that Upland had entered into an agreement with the Union to pay for the insurance on behalf of G. W.'s drivers. In view of this, it is immaterial that, in discharging Dietrich, Wil- son may have thought that when Dietrich filed his insur- ance claim he had acted dishonestly or in bad faith. See, N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964); Paul 28 In s concluding, I have carefully considered the fact that. prior o the time Dietrich filed his insurance claim. Wilson. in effect. notified him that he was not covered by the applicable health insurance program and would not be covered unless he permitted Wilson t deduct 50 cents an hour from his pay. his circumstance. however, when viewed in the context of the entire record. particularl5 the factors set forth ira. is insufficient to im- pugn Dietrich's got)d-faith belief that the August 23 agreement meant exact- ly what it stated: "[G. W driversl shall have the same health and welfare premium paid on heir hehalf h [LUpland at lIpland pars n its regular emp/o ree. [Emphasis added.l It is undisputed that pland pays the cost of the health and welfare benefits for its regular emplosees: and, presumabls I)letrich wht worked in close proximity to these drisers. knew f this As noted prevsiousl,. Upland pays the cost of the health and welfare benefits for its regular employees. and I)ietrich who worked In close prox- imity it these drivers. presumably knew this G. W. TRUCK ' 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C'usano, et al. trading as American Shuffleboard Conmpatn,. etc., 92 NLRB 1272, 1274 75 (1951). Based upon the foregoing, I find that Wilson's discharge of Dietrich for asserting a health and welfare claim under the terms of a collective-bargaining agreement 31 interfered with, restrained, and coerced him in the exercise of his right to engage in such activity and, thereby, violated Sec- tion 8(a)(1) of the Act."' (CON(C.USIONS OF lA.w By interrogating employees about their Union member- ship and activities and by discharging Dietrich for assert- ing a claim for health and welfare benefits under a collec- tive-bargaining agreement, Respondents engaged in unfair labor practices within the meaning of Section 8(a)(1) and 2(6) and (7) of the Act. rhi RMEI)Y I shall recommend an Order directing Respondents to cease and desist from their unfair labor practices, to make Dietrich whole for losses sustained as a result of the unlaw- ful discharge, and to post an appropriate notice. I shall recommend that Respondents make Dietrich whole for any loss of earnings he may have suffered by reason of his discharge by payment of a sum of money equal to that which he normally would have earned as wages from the date of his discharge. December 13, 1977. to December 26. 1977. the date he was offered reinstatement to his former position, less his net earnings during such period with backpay computed in the manner established in F W. Woolworth CompanY, 90 NLRB 289 (1950), with interest to be computed in the manner set forth in Florida Steel Corpo- ration, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: I Upon a careful consideration of the Ahole record. I havte concluded that the evidence does not warrant a finding that D)ietrich "as discharged because f UInion animus or because he enlisted the [nion's help il t- tempting to implement the August 23 agreement. t I find it unnecessary to determine whether D)ietrich's discharge also violated Sec. 8(a(3) of the Act. ORDER 32 The Respondents, Upland Freight Lines. Inc., and G. W. Wilson a/k/a G. W. Truck, Fontana, California, their officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Interrogating employees about their union member- ship and activities. (b) Discharging or otherwise discriminating against any employee for asserting a claim under the terms of a collec- tive-bargaining agreement. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the purposes of the Act: (a) Make Robert Dietrich whole, in the manner set forth in the portion of this Decision entitled "The Remedy," for losses sustained as a result of his discharge on December 13, 1977. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards personnel records and reports, and all other records neces- sary or useful to an analysis of the amount of backpay due under the terms of this Order. (c) Post at their place of business in Fontana, California, copies of the attached notice marked "Appendix." 33 Cop- ies of said notice, to be furnished by the Regional Director for Region 31, shall, after being duly signed by a represen- tative of Respondents, be posted by them immediately upon receipt thereof, and be maintained b them for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 12 In the eent no ecceptiins are filed a.1 provided h Sec. 102.46 of the Rules .and Regula;tins of the Naltonl I a bor Relations Board, the findings. conclusiions, and recommended Order herein shall. as provided in Sec 10)2.4 of the Rules and Regulitions. be adopted by the Board anid become its findings, conclusions, and (rdcr, and all objections thereto shall be deemed waived for all purpoises In the event that this Order is enforfed bh a udgment of a United St.tcs ( ourt f ppeaIs. the wuords in the mivtice reading "Posted h (Order of the National abor Relations Blid" shall read "Posted Pursuant to a Judgment of the United States (Court of ppeMls EInforcing an Order of the National .ahor Relations Board.