Pilot Freight Carriers, Inc.Download PDFNational Labor Relations Board - Board DecisionsFeb 10, 1966156 N.L.R.B. 1396 (N.L.R.B. 1966) Copy Citation 1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stand, especially in view of the fact that such assignment is consistent with awards made by the Joint Board with the interim agreement between the Internationals. Accordingly, we shall determine the instant jurisdictional dispute by deciding that fitters, rather than riggers, are entitled to the work in dispute. In making this determination, we are assigning the work to the employees who are represented by the Respondent, but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute. Fitters employed by Korkoske Plumbing and Heating who are rep- resented by Local No. 85, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, are entitled to perform the work of moving, setting, and erecting the package boiler at building No. 403 at the Dow Corning, Midland, Michigan, plant. Pilot Freight Carriers, Inc. and Albert Eugene Bradshaw. Case No. 11-CA-f701. February 10, 1966 DECISION AND ORDER On October 18, 1965, Trial Examiner Herzel H. E. Plaine issued his Decision herein, finding that Respondent had engaged in and was engaging in certain mzfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial 156 NLRB No. 126. PILOT FREIGHT CARRIERS, INC. 1397 Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein.' [The Board adopted the Trial Examiner's Recommended Order with the following modifications: [1. Substitute the following for paragraph 1(a) : ["(a) Interrogating employees concerning their union sympathies and activities in a manner constituting interference, restraint, or coer- cion in violation of Section 8(a) (1) of the Act." [2. Substitute the following for the first indented paragraph of the notice : [ WE WILL NOT interrogate our employees concerning their union sympathies and activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. [3. Add the following immediately below the signature line of the notice : [NoTE.-We will notify Albert Eugene Bradshaw, if he is serv- ing in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] i The Trial Examiner found that Respondent discriminatorily discharged Albert Eugene Bradshaw on January 28, 1965, because of his union activity. Respondent contends in its exceptions that it discharged Bradshaw for reasons unrelated to his union activity , i.e , because the doctor ' s medical certificate produced by Bradshaw as proof of absence due to illness was a "phony " and that manager Gass suspected Bradshaw had not been ill. We have carefully considered the Trial Examiner 's findings and the arguments of Re- spondent , and we hold that the findings are supported by a preponderance of the evidence. In reaching this conclusion, we do not adopt the Trial Examiner's characterization of Respondent ' s defense as resting on a distinction between a doctor's "certificate" and an "affidavit." Rather, we have reviewed the evidence in the context of the broader defense urged by Respondent. In this light we adopt the Trial Examiner's findings that Re- spondent discharged Bradshaw for union activity , principally for expressing openly his opposition to President Gowen ' s January 5 proposal to postpone union representation. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding was initiated, pursuant to Section 10(b) of the National Labor Relations Act, hereinafter referred to as the Act, upon a charge filed April 21, 1965, amended May 17, 1965, and complaint issued June 11, 1965. The complaint alleged that the Respondent, Pilot Freight Carriers, Inc., herein- after referred to as Pilot, or the Respondent, had engaged in unfair labor practices violating Section 8(a)(1) and (3) of the Act, by discharging and refusing to rein- state employee Albert Eugene Bradshaw, the Charging Party, for his union activities and sympathies, and by interrogating and threatening employees with discharge because of their union activities and sympathies. The Respondent's answer denied the unfair labor practices and asserted that Bradshaw's discharge was for lawful cause. 1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon due notice, the matter was heard before Trial Examiner Herzel H. E. Plaine in Nashville, North Carolina, on August 24, 1965. Following presentation of the General Counsel's case, the Respondent moved for dismissal of the case, which was denied. At the conclusion of the entire case, the Respondent renewed its motion for dismissal, which is disposed of by this Decision Upon the entire record of the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Respondent Pilot is a corporation engaged in the transportation of freight by motor carrier into and through the State of Noith Carolina and other States under certificates issued by the Interstate Commerce Commission. Pilot's main office is located in Winston-Salem, North Carolina, but its terminal in Rocky Mount, North Carolina, is the situs of the principal events in this case. The bulk of Pilot's business involves the interstate movement of goods from which it derives more than $50,000 gross revenue per annum. Pilot is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 391, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (hereinafter referred to as the Union or Local 391), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The background and issues Local 391 has a master contract that covers various motor freight companies, including Pilot, but until February 1965, neither this agreement nor any union con- tract applied to the approximately 10 to 13 regular workers at Pilot's Rocky Mount terminal. Indeed, in an "informal" election conducted on January 29, 1964, by Pilot, apparently with union consent but not active union participation, the employ- ees at Rocky Mount terminal voted against union representation. Thereafter, activities on behalf of the Union continued, including the signing up on union cards of most of the terminal workers by sometime in November 1964. However, there developed a difference of opinion as to whether Pilot, the employees, and the Union had contemplated that the result of the January 29, 1964, election was to be binding for 1 year. Whereupon Pilot called and conducted a meeting of the Rocky Mount terminal employees in the terminal manager's office on January 5, 1965, and in the course of the meeting polled each of the employees on whether he wanted to affirm or repudiate the alleged stipulation postponing until January 29, 1965, any further action looking toward union representation. All but one of the employees signified willingness to abide by the 1-year postponement. Employee Bradshaw, who had engaged in some activities for the Union, openly voted against the postponement and stated why he thought a union contract and representation was needed at once. He gave among his reasons alleged company repudiation of certain promises to the men generally and to himself specifically. Bradshaw was not working at the time but was receiving workmen's compensation while recovering from an operation on his knee as the result of an injury on the job. When it appeared that he was ready to report back to work about 15 days following the January 5, 1965, meeting, he was handed a layoff notice "due to insufficient work," but was advised by the notice to check daily regarding work each succeeding day. A few days later when he advised that he was sick and could not report to a work call for the morning of January 25 he was notified that he had to produce an affidavit from his physician within 48 hours or he would be dropped as an employee. He came back to work January 27 with a doctor's "back-to-work" certificate (indicating an acute gastroenteritis condition in the preceding few days) and worked Janu- ary 27 and 28, whereupon he was discharged and paid off for the 2 days' work without being told the reason for his discharge. .The principal issue is whether employee Bradshaw was discharged, and refused reinstatement, because of his union activities and sympathies, in violation of Section 8(a)(3) of the Act, as charged by the General Counsel, or whether he was legiti- mately dropped from employment, as Pilot's management contends, "for failing to come to work, for deceiving us and telling us a lie." "Deceiving us" and "telling us a lie" is explained as meaning one action, to wit, Bradshaw tendering the doctor's certificate rather than a doctor's affidavit when he last reported back to work. PILOT FREIGHT CARRIERS, INC. 1399 A second issue is whether the conduct of Pilot's management in connection with the employer-employee meeting of January 5, 1965, and with events related to and including Bradshaw's discharge, constituted unlawful interrogation and threat of discharge of employees because of their union membership, sympathies, and activi- ties, in violation of Section 8(a)(1) of the Act. B. The union activities 1 Employee Albert Eugene Bradshaw began his employment with Pilot at the Rocky Mount terminal in 1962, as a part-time worker, and became a regular full-time employee May 20, 1963. He was a dockworker, his job consisting of loading and unloading freight He worked in the early morning hours starting anywhere from 3 to 5 a.m. He took his orders from Leadman Fred Latta, who, it was stipulated, was not a supervisor, but who did have the function of calling the employees to work under direction of supervisory employees. On September 22, 1964, Bradshaw was injured on the job, hurting his knee when he was thrown to the floor while moving freight by a handtruck. He continued to work until October 7, 1964, when a Dr Ballard (also referred to as Dr. Battle in parts of the transcript) took him off working duty for surgery to correct the condition of the injured knee. He was paid workmen's compensation in connection with the injury and ensuing period of disability and was released to go back to work by Dr. Ballard as of January 22, 1965. In the period of Bradshaw's convalescence, activity on behalf of Local 391 appeared to be on the increase. Although the regular employees of the Rocky Mount terminal had rejected union representation (applicable elsewhere to Pilot employees) in the informal vote conducted by the employer on January 29, 1964, union organiz- ing continued, recognition had been requested again in September 1964 and by November 1964 it was evident, testified W. T. Gowens, vice president for industrial relations of Pilot, that Local 391 had signed up a majority of the employees. Willard, president of Local 391, offered to show Gowens the signed applications, but, said Gowens, I refused to look, I did not want to know who of the workers belonged and who didn't. I accepted Willard's representation that he had a majority signed up. Indeed, said Gowens, until the end of January 1965, when the company voluntarily recognized the Union at the Rocky Mount terminal, it was not a question of whether or not we would recognize the Union, but only a question of when. No explanation was offered as to why the delay in union recognition until the end of January 1965 for this unit was important to the company. Nevertheless, Gowens went on to say, that because the Union filed a complaint respecting the representation matter with the employer-employee grievance committee in December 1964, he called a meeting of the Rocky Mount terminal employees on January 5, 1965 (which is described below). Going back briefly, in the period of his convalescence (roughly October 1964- January 1965) Bradshaw took part in the activity for Local 391. He testified that at the request variously of Dotson, the business agent, or Willard, the president, he informed Rocky Mount employees of union meetings, he attended these meetings, and in the case of the discharge of shop steward Sherlin he attended a bi-State griev- ance committee meeting in Charlotte, North Carolina, in early January 1965, as a potential witness on the subject of the Company's attitude toward the Union. The i The facts set forth in sections "B" and "C" of this Decision have been provided mainly by employee Albert Eugene Bradshaw, testifying for the General Counsel, and by Vice President for Industrial Relations W T Gowens and Terminal Manager Rex Gass, testifying for the Respondent. Except for one matter noted, infra, footnote 6, in general, Bradshaw's account of the major happenings coincided with the account by the Respondent's witnesses Gowens and Gass plus some minor supplement by the Respond- ent's witnesses Operations Manager Melvin W. Creech and employee J. L. Mitchell The General Counsel's witnesses, in addition to employee Bradshaw, namely, his father Grover M Bradshaw, employees Futrell and Sherlin, and Union Business Agent Dotson, gave testimony of a generally corroborative nature, involving no substantial conflict with other testimony. Leadman Fred Latta, who figured in a small way in the events related to employee Bradshaw's discharge, was not called to testify, but what Bradshaw had to say concern- ing his dealings with Latta appears to have been accepted by, and coincided with testi- mony of, the Respondent's witnesses. 1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance committee was made up of union and company representatives who met regularly once a month for the airing of grievances. At the January meeting of the grievance committee Bradshaw saw Gowens and they exchanged greetings? As already indicated, on January 5, 1965, Vice President Gowens of the Company called a meeting of the regular employees of the Rocky Mount terminal, which excluded the part-time employees but included Bradshaw, who was considered a regular employee despite his then inability to work because of the leg injury. The meeting was held in the terminal manager 's office and conducted by Gowens. It was also attended by the supervisory force at Rocky Mount, including Rex Gass, the terminal manager , Melvin Creech, the operations manager, several foremen, and the leadman on the freight dock, Fred Latta. One of the principal purposes of the meeting, as announced by Gowens, was to clear up whether Gowens had lied to Wil- lard, the president of Local 391, about the men having signed an agreement in Janu- ary 1964 binding themselves for 1 year against union representation. Gowens said he reminded the men of the vote against union representation on January 29, 1964, and of the stipulation to be bound by the result for 1 year, although he conceded on cross-examination that the letter signed by the employees in connection with the January 29, 1964, election did not contain any such stipulation. Apparently, how- ever, there was no open disagreement about the 1-year stipulation, at this meeting .3 Gowens then said the only further question to decide was whether to wait till the 1 year's time expired or to go on with union representation now 4 He said Pilot had no room in its organization for anyone that would break an agreement and he did not think any of the fellows wanted to break it. He then asked for a show of hands as to who wanted to live up to the agreement. Some, but not all, raised their hands. Gowens said he wanted everybody participating, and on a second showing again some but not all raised their hands He then asked how many did not want to abide by the 1-year agreement, and three men raised their hands. Bradshaw was one of these. Gowens then said that from the show of hands, for and against, everyone was not voting. Terminal Manager Rex Gass said, as employee Futrell testified, "We've got the majority." But, as Gowens testified, he, Gowens, told the men that as a group working together everybody should express himself; and because, he said, some of the men might be hesitant with Gass the terminal manager there, he asked Gass, Creech, or anyone else not a "party to the agreement" to leave the room. Gowens then went around the room polling each employee by name as to whether he was for or against living up to the agreement. On the individual poll, all of the 12 or 13 eligible employees present, except Bradshaw, indicated they were for abiding by the 1-year agreement. Bradshaw then obtained permission to speak, and explained why he thought a union was needed at the Rocky Mount terminal. He spoke of alleged broken prom- ises by Terminal Manager Rex Gass to hire casual help only when the regular men had made their full time and were not on "lay-off status"; to divide time fairly so that each man earned pay for about the same number of hours; and, in his own case, to receive checker's pay when he worked as a checker. Consequently, as employee Futrell testified, Bradshaw told Gowens he felt if the company made a bargain it, as well as the employees, should stick with it, but if the company did not live up to its bargain he thought the employee had as much right to break the bargain. Gowens replied, said Bradshaw, that if Gass had made these promises Pilot should have lived up to them, because an agreement was an agreement . Apparently on this note the meeting ended. 2 Bradshaw was not sure whether the January grievance committee meeting took place immediately before or after the January 5, 1965, meeting of the employees called by man- agement, which is next described. There was no testimony respecting the exact date, but the Respondent's counsel in his oral argument asserted that the regular monthly date was the Tuesday prior to the second Wednesday of each month, which would have been January 12, 1965. 3 At the meeting the manner of presentation by Gowens left little room for open dis- agreement with him by the employees on this point The question for them to answer, as presented, literally was whether he (a chief representative of the employer) was a liar. He reminded them of a one year "stipulation," and he held up a letter which he said was their signed agreement, signed almost a year ago. Even Bradshaw, who later spoke out against abiding by the "agreement," believed the letter contained such a stipulation, which evidently was not the case. 4 Gowens explained to the men that he did not want to know of their union member- ship but that he assumed from what Willard, the president of Local 391, had told him that the Union was ultimately going to represent them. Bradshaw said Gowens added he could tell us how to get out of the Union. PILOT FREIGHT CARRIERS , INC. 1401 Following the January 5, 1965, meeting, sometime between January 5 and 15, Bradshaw saw Gass at the Rocky Mount terminal when Bradshaw came in to pick up his check for workmen's compensation, which was continuing until January 21. Gass said he did not know about the check or have time to look for it. According to Bradshaw, Gass went on to say that since the boys were voting the union in we are going to live by the contract-one mistake, and that's it-and there will be all new faces around here in 12 months.5 Bradshaw responded, maybe the union con- tract was needed all the time, and terminated the incident by walking out on his crutches. C. The discharge His knee having healed, Bradshaw discussed coming back to work beforehand with the operations manager of the terminal, Melvin Creech, on January 20, 1965. At that point he was handed a layoff notice, signed by Creech effective January 21. The notice said the layoff was "due to insufficient work" and advised the recipient to "check with your supervisor each evening and he will advise you tomorrow's work schedule." (General Counsel's Exhibit No. 5.) Creech also told Bradshaw that before be could return to work he needed a physical examination. Bradshaw com- plied and obtained back-to-work certificates from Dr. Ballard (or Battle) on Janu- ary 21 and from a Dr. O. E. Bell on January 22. He turned both certificates in to the Respondent on January 22, 1965, which was a Friday. Bradshaw testified that beginning late the following night, Saturday January 23, and continuing through Sunday January 24, he was sick with a "stomach ache, stom- ach disorder, running off at the bowels and could not keep anything on my stomach." Sometime after 7 p m., Sunday night he went into Rocky Mount to obtain something for his internal disorder from a drugstore but found all three stores (which were nearby the Post Office) closed. He then telephoned from the Post Office to Leadman Fred Latta at his home, in keeping, he said, with the layoff notice to check with his supervisor each evening regarding work for the following day. He told Latta he was calling to say he was sick, telling him what it was, that he had not had anything to be able to check the bowel movement, and would not be able to work the next day. Latta said to Bradshaw that he had called the Bradshaw house earlier and left word with Bradshaw's father (Grover Bradshaw) for (Albert) Bradshaw to report for work 3 a.m Monday morning, January 25, but since he was sick Latta would get someone in his place. Bradshaw then went to the house of Joseph Sherlin, an employee of Pilot, who also served as shop steward at Rocky Mount for Local 391 members. Bradshaw came to inquire whether he had made his call-in to Latta within allowable time, and he told Sherlin of his illness and of his conversation with Latta. Sherlin told Bradshaw that he had telephoned within time (at least 2 hours before reporting was apparently the permissible time). Sherlin testified that he suggested to Bradshaw that he ought to try to punch in, and then punch out if he could not continue to work; but if he was not able to go in to also call Operations Manager Melvin Creech in order to avoid any slip-up. Bradshaw returned home. His father told him of Latta's call to report for work and Bradshaw told his father he had already talked with Latta about his stomach dis- order and inability to report in. Bradshaw then called Creech, the operations man- ager, at his home, to tell of his call to Latta, of his condition, and that he did not know whether it would clear by 3 a.m. in the morning. The next day, Monday, January 25, Bradshaw received a special delivery letter (General Counsel Exhibit No. 3) entitled "warning notice" from Pilot, prepared and signed by Rex Gass, the Rocky Mount terminal manager, referring to Bradshaw's clearance for return to work January 22 by the two doctors, referring to the two tele- phone calls between Latta and Bradshaw and the call from Bradshaw to Creech January 24, and concluding: As of 12:00 noon Monday, January 25, 1965, you have failed to report for duty as instructed. If you are ill, please have your attending physician furnish 6 Gass denied that he made this statement to Bradshaw. This Is one of the few in- stances where Bradshaw's statement of the principal happenings is denied. Nevertheless I do not believe the denial by Gass is worthy of credit, since he was too glib elsewhere in denying knowledge that Bradshaw was for the Union, or knowledge of how Biadshaw voted at the January 5 meeting, in the face of evidence which has made it plain that he could not help knowing of Bradshaw's union sympathies if not activities and how he voted at the January 5 meeting. I accept Bradshaw's account of this incident. 1402 DECISIONS OP NATIONAL LABOR RELATIONS BOARD us with a written affidavit to that effect within 48 hours of the receipt of this letter, or you will be dropped as an employee of Pilot Freight Carriers, Inc., Rocky Mount, N.C. Gass testified that on the morning of Monday, January 25, he asked Creech and Latta about Bradshaw and was informed of their telephone conversations with Brad- shaw the night before. At noon he wrote the warning notice letter to Bradshaw, because, said Gass, he was suspicious and wanted an affidavit from the physician that attended Bradshaw if he was too sick to come to work Bradshaw telephoned Gass Monday night at home after he had received the special delivery letter, and asked if Latta and Creech had told Gass what his sickness was, and Gass said yes. Bradshaw then asked why he needed an affidavit to return to work and Gass said he replied "the letter clearly states the requirement, and I do not feel it necessary to elaborate any further." On Tuesday morning January 26, Gass instructed Operations Manager Creech and Leadman Latta that Bradshaw was required to have an affidavit from a physi- cian stating that he was ill; if he came in with it to let him go to work. Creech described the instructions from Gass as requiring a doctor's "certificate" from Brad- shaw stating that he was sick in the period from the 23d to the 25th of January. Meantime Monday night after his telephone conversation with Gass, Bradshaw made an appointment with a Dr. Ratchford and saw him Tuesday, January 26. When he saw Dr. Ratchford he was not longer sick. He showed the doctor the letter. After taking a temperature and discussion of what the symptoms had been, Dr. Ratchford told Bradshaw he had had diarrhea, and, in Bradshaw's words, the doctor "wrote me an affidavit." 6 This was a typical doctor's pad-type certificate (with printed lines and blocks for checking or filling) which, in this case (General Coun- sel's Exhibit GC-4), was a statement by Dr. Ratchford dated January 26, 1965, addressed to Pilot concerning employee Albert E. Bradshaw, showing "Diagnosis- acute gastroenteritis Saturday evening January 23 to January 26," and under "Dis- position" a check mark in the block "Back to work" with the "Date January 27, 1965," and the doctor's signature. That night, Tuesday, January 26, Bradshaw called Gass, again at home, told him he had the affidavit and asked about reporting to work the following day. Bradshaw went to work Wednesday morning January 27. He showed the "affi- davit' to Latta who said, according to Bradshaw, he did not know what it was but punch in. Bradshaw worked 6 hours, and Latta gave him the starting time for the next morning. Bradshaw testified he gave the doctor's certificate to Gass at 9 a.m. the first morning, Wednesday, when Gass came out on the shipping dock and asked for it. Gass testified it was the following morning, Thursday, that he was away from the Rocky Mount terminal on Wednesday. In the light of what transpired the differ- ence is immaterial, and the difference in recollection on this point has no bearing on the credibility of either witness. Suffice it to say that Gass asked for and received the doctor's paper from Bradshaw, took it back to his office, and checked it on the telephone with Dr. Ratchford who said he had not attended Bradshaw in the period of his illness but had provided him with a back-to-work certificate. (Gass made a notation of this conversation in red ink on the face of the doctor's certificate, Gen- eral Counsel's Exhibit 4.) Bradshaw worked about 5 hours Thursday morning January 28 when the Leadman Fred Latta told him (and two others, Charles Bradshaw and Jimmy Drake) to punch out because there had been some misunderstanding or trouble in the office. The three men punched out on the timeclock and remained in the front office for a brief time talking. At that point Operations Manager Creech came out of Terminal Manager Gass' office bringing word to Bradshaw that Gass would like to talk with him and would he wait.? Bradshaw waited, he said, about 3 or 4 minutes, and when it 6 Bradshaw testified that Dr. Ratchford made clear to him that he could not say he treated him, but that he could say from Bradshaw's statements that he had had acute gastronenteritis or diarrhea. 'In connection with this encounter Bradshaw testified that Creech asked him if he was giving his companions a union pep talk. Creech, who testified for the Respondent, did not deny the remark ; but counsel for the Respondent suggests that it was made purely in jest. PILOT FREIGHT CARRIERS, INC. 1403 appeared to him that Gass was not going to interrupt some typing he was doing in order to talk he asked Creech to inform Gass that he would see him later and he left.8 Gass left the terminal at noon that day and returned at 7 p m. to relieve Creech in checking the drivers. He found Bradshaw among those waiting to see him. Brad- shaw said he had returned to talk since he hadn't time to talk in the morning. Gass told Bradshaw that insofar as he Gass was concerned, Bradshaw was no longer an employee of Pilot Bradshaw asked why. Gass replied, "You didn't have time to talk to me this morning, I don't have time to talk to you now." At Bradshaw's request, Creech then wrote a paycheck for 111/4 hours covering the work of the past 2 days. The only formal notice by the Company of the discharge, and the only notice of a reason assigned for the discharge, came to Bradshaw by mail considerably after Jan- uary 28 (his last day of work) in the form of a copy of a separation notice dated Februaiy 2, 1965, filed by Pilot with the Unemployment Insurance Division of the North Caiolina Employment Security Commission (General Counsel's Exhibit No. 2). The notice stated that Bradshaw was discharged for misconduct connected with his work, the detailed reason being "This man failed to report for work, as instructed." The notice showed among other things, last date worked January 28, 1965, and date separation known February 1, 1965; but no one for Pilot could identify who prepared or who signed the notice (the signature on the exhibit is blurred). At the hearing in the present case, August 24, 1965, the reason given for Bradshaw's discharge was not the same given in the February 1965 notice. Gass repeated several times that the reason was "for failing to come to work, for deceiving us and telling us a lie." He explained that "deceiving us" and "telling us a lie" meant the one action, namely, Bradshaw tendering the doctor's certificate (General Counsel's Exhibit 4) when he reported in for work January 27, 1965, rather than a doctor's affidavit that he was too ill to come to work. D. Conclusions respecting the discharge and restraint of union activities I am impressed that both reasons now assigned for the discharge of Bradshaw (failing to report to work, and deceiving us) were thinly disguised technicalities seized upon to cover Pilot's hurriedly dropping of an employee who was active and vocal on behalf of the Union by, among other things, challenging management's deci- sion to delay union recognition and openly criticizing management's handling of employment policies. A number of factors lead to this conclusion. Bradshaw was not given any reason for being dropped at the time of his discharge. One reason (failing to report to work as instructed) was obliquely furnished him a week or more later in a copy of a notice filed by Pilot with the State unemployment insurance agency. The full alleged reasons were not given him until about 7 months later in the hearing room in this case. Looking at the alleged reasons, it is obvious that Bradshaw had not deliberately failed to report to work. On the contrary he sought to return following recuperation from his injury and operation, he complied with the reporting requirements in con- nection with the brief intervening illness which temporarily delayed his return, and he actually worked for 2 days before he was dropped. The obstacles to his further working for Pilot came from the employer's end. Bradshaw was handed a layoff notice when he first reported back for work, a notice indicating insufficient work. The effect was to place him under daily obligation to inquire for work, since the notice stated he was to check each evening about reporting for work. This action came on a weekend, but apparently there was no insufficiency of work because Bradshaw was called to report for work on the following Monday morning. His temporary illness, involving stomach upset and diarrhea, prevented his coming in that morning but he was in touch in advance the night before with two of his supervisors (Creech and Latta) and by Monday morning Gass, the terminal manager, was fully informed. The unusual action of Gass in dispatching forthwith a formal letter notice to Bradshaw making the demand, unprecedented in Gass' tenure as manager, of producing an affidavit from a doctor, created an impos- sible condition for Bradshaw to comply with, and Gass knew it. By the same Monday night, Gass new directly from Bradshaw that he was able and ready to 8 Creech agreed that Gass kept Bradshaw waiting but that Bradshaw waited less than 2 minutes before leaving. 1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come back to work but Gass insisted on an affidavit from a doctor to account for the absence that morning, when it was apparent that no doctor was involved.9 Bradshaw obtained and delivered the only kind of doctor's statement that was obtainable in his circumstances on Tuesday, January 26, 1965, to the effect that he was able to go back to work and (from his description of previous symptoms to the doctor) that he had had acute gastroenteritis in the period including January 25. Delivering this statement to Latta and Gass involved no deception.1° None of the principals in this event were lawyers, in fact from the testimony it appears they were using the words "affidavit," "certificate," and "written statement" interchangeably in their conversations. The notice from Pilot to Bradshaw demanding proof of his illness did say "affidavit," and for the claimed "deception" of having brought in a doctor's certificate rather than a doctor's affidavit, a claim revealed about 7 months after the employee's discharge, Pilot would have it believed that the employee was dropped for good cause.11 In the circumstances of this case I find that both of the assigned reasons for the discharge of Bradshaw were sham and a pretext for discharging him because of his union sympathies and activities In this connection there can be little question of Respondent's awareness of Bradshaw's sympathies for, and activities on behalf of, the Union prior to the discharge. Without more, his actions at the January 5 meeting of employees in voting openly, and ultimately alone, for union representation with- out delay (with full awareness of all present that he was opposing the employer's view), followed by his speech on the need for a union agreement now, which was critical of management's employment policies, marked him unmistakably in manage- ment's eyes as a leading union man. His presence, almost immediately thereafter, at the Bi-State Grievance Committee meeting in Charlotte in the company of the union representatives, was further confirmation for management, if any were needed. Gowens, Pilot's vice president for industrial relations, knew of these things first hand. By his own testimony be also knew of the organizing activity going on at Rocky Mount, he knew that practically all of the employees had signed up with Local 391 by late 1964, and he was of the view that recognition was only a matter of time On the matter of who had signed up, he said, he was prepared to take the word of the union president. Obviously Gowens did not need confirmation from this source of what he already knew. Gass and Creech, Bradshaw's immediate supervisors, also were fully aware from some of the foregoing events, and from other knowledge, of Bradshaw's union activities and sympathy, and let him know that they were aware, for example, Gass in the warning to Bradshaw in the office encounter following the January 5 meeting, 6 Gass, as an intelligent person and experienced manager, was bound to know that even a doctor who might actually have been in attendance would not take the time and trouble of providing a workman, who was off for a day's illness , with a formal, attested legal document when the doctor's simple certification was a usual and acceptable form for employers who requested medical verification. Indeed, the printed form used by Doctor Ratchford in this case and supplied to Gass (General Counsel's Exhibit No. 4) indicates what was no doubt typical in Rocky Mount in a doctor' s dealings with employers and employees. Moreover there was no history of Bradshaw ever "playing sick" to appear to justify either the need of an affidavit or threatening him with the extreme penalty of discharge for being absent one day. The only testimony on the subject was of the opposite tenor, to wit, that Bradshaw was not a complaining type, and that after he injured his knee on the job, September 22, 1964, he continued to work despite the injury for a week or 10 days until the swelling made further work impossible and the doctor ordered him off the job for surgery. Gass conceded this was the only case in which he had ever required an employee to bring in a written statement from a doctor. 10 Gass has not charged that Bradshaw was pretending to have been ill and was not ill in fact January 24 and 25-although Gass said he was suspicious at the time. The alleged deception is Bradshaw describing as a doctor's affidavit what turned out to be a doctor's certificate. 11 In relation to the first reason (failure to report for work as instructed), the only reason given in February 1965 to the North Carolina Unemployment Division and one which obviously could not stand up under analysis, the second reason (deceiving us), not advanced until the holding of this hearing, can be characterized as "afterthought," see Young Spring and Wire Corporation, 138 NLRB 643, 644. PILOT FREIGHT CARRIERS, INC. 1405 and Creech on the morning of the firing, January 28, in the remark (jesting perhaps, as the Respondent's counsel suggests) to Bradshaw about giving the boys a union pep talk.12 From the circumstances of this case the discharge of Bradshaw, on January 28, 1965, following close in time upon his union activities (the immediate object of which his employer opposed), without cause alleged at the time and for later asserted reasons that are without substance, can be inferred to have been, and I find was, a discriminatory discharge because of Bradshaw's union activities and sympathy to discourage such activities and sympathy in violation of Section 8(a)(3) of the Act.13 I find that the discharge of Bradshaw following the earlier threat by Terminal Manager Gass to the men voting for the Union (one mistake, and that's it, etc.) in the encounter with Bradshaw after the January 5 meeting, was a violation of Section 8(a)(1) of the Act, as a threat to employees of discharge because of their union membership, sympathies, and activities. I find that the actions of W. T. Gowens, Pilot's vice president for industrial rela- tions, in calling and conducting the January 5, 1965 meeting of employeees and super- visors, requiring the employees to express their views on, and to vote openly for or against, delay in union representation in an atmosphere hostile to their free choice, was coercive interrogation of the employees concerning their union sympathies which constituted interference with and restraint upon their rights under Section 7 of the Act in violation of Section 8(a) (1) of the Act 14 The conduct of Operations Manager Creech on January 28, 1965 (see footnote 13, supra), was not an interrogation or action of the same character as that of Gowens on January 5 and, I have found, did not constitute a violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act Because Respondent discriminatorily discharged its employee, Albert Eugene Brad- shaw, it will be recommended that the Respondent offer him immediate and full reinstatement to his former position, or to a substantially equivalent position, with- out prejudice to his seniority or other rights or privileges. It will be recommended 111 do not find that this exchange between Creech and Bradshaw on January 28, 1965, constituted an unlawful interrogation of employees as charged in paragraph 8(a) of the complaint. 1i Malone Knitting Company, 152 NLRB 643; Joseph Antell, Inc, 152 NLRB 818; and see, N.L R.B. v. Syracuse Stamping Company, 208 F. 2d 77 (CA. 2) ; and- NLRB. v. Whitin Machine Works, 204 F 2d 883 (C A 1). 11 The circumstances of the repeated polling and the interrogation of the employees conducted by Gowens for the employer In the terminal manager's office with employer's representatives present, requiring all of the employees to vote and to express their preference and views in the face of the clearly expressed employer's preference, provide a coercive character to the polling and interrogation in violation of the statute, notwith- standing a possible contrary intention of the employer, N L R B. v Sy) acuse Color Pi ess, Inc., 209 F. 2d 596, 599-600 (CA 2), cert. denied 347 U.S. 966; Emma Gilbert, et at., d/b/a A L. Gilbert Company, 110 NLRB 2067, 2071-2072. In the instant case the em- ployer's conduct achieved the desired restraint, namely, a unanimous-but-one vote in favor of delay in union representation as evidence by the success in ultimately getting all of the employees to express views and having two of them change their previous negative votes to favor the company position once the interrogation began But a show- ing of such success is not essential to establish coercion, and the fact that the Respond- ent later entered into a representation agreement with the Union does not disturb the finding of coercion or eliminate the providing of a necessary remedy, N L R B. v. Brown- Dunkin Company, Inc., 287 F. 2d 17 (C.A. 10) ; Murray Envelope Corporation of Mississippi, 130 NLRB 1574, 1576. 1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of a suns of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings, if any, during this period. The backpay shall be computed on a quarterly basis as prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), approved in N L.R.B. v Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344 (1953), and shall include interest at 6 percent per annum as provided by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Carey Manufactu,mg Company v. N L.R.B., 331 F 2d 720 (C.A. 6, 1964) and cases cited. Because the Respondent by its conduct violated fundamental employee rights guar- anteed by Section 7 of the Act, and because there appears from the manner of the commission of this conduct a disposition to commit other unfair labor practices, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing facts and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Pilot Freight Carriers, Inc , the Respondent, is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 391, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights under Section 7 of the Act, and by discriminating with respect to the employ- ment and discharge of Albert Eugene Bradshaw, as found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. In light of the preceding conclusions, the Respondent's motion to strike the evidence and to enter an order of dismissal, on the ground that the evidence does not support the complaint, is without merit and is denied. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that Respondent, Pilot Freight Carriers, Inc , its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Interrogating its employees concerning their union sympathies and activities. (b) Discouraging membership in or activities on behalf of Local Union No. 391, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America of any other labor organization of its employees, by discharging or threatening to discharge an employee, or in any other manner discriminating in regard to hire, tenure, or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights of self-organization, or to form, join, or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities. 2. Take the following affirmative action which I find necessary to effectuate the policies of the Act: (a) Offer to Albert Eugene Bradshaw immediate and full reinstatement to his former position or to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled "The Remedy" for any loss of earnings he may have suffered as a result of the discrimination against him. (b) Notify Albert Eugene Bradshaw, if he is serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. PILOT FREIGHT CARRIERS, INC. 1407 (c) Preserve and, upon request , make available to the Board and its agents for examination and copying all payroll records , social security payment records, time-- cards, personnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this Recommended Order. (d) Post in the Respondent 's Rocky Mount Terminal , Rocky Mount , North Caro- lina, copies of the attached notice marked "Appendix " 13 Immediately upon receipt of the copies of said notice , to be furnished by the Regional Director for Region 11 (Winston-Salem , North Carolina ), the Respondent shall cause the copies to be signed by one of its authorized representatives , to be posted , and to be maintained for a period of 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing , within 20 days from the date of the receipt of this Decision , what steps the Respondent has taken to comply therewith.16 15 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words " the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." ra In,the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing , within 10 days fiom the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act , as amended , we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their union sympathies and activities. WE WILL NOT discourage membership in or activities on behalf of Local Union No. 391, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , or any other labor organization , by discharging or threatening to discharge any of our employees or in any other manner discrim- inating against any employee in regard to hire, tenure , or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights to self-organization , or to form, join, or assist the above -named Union or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from engaging in any or all of such activities. WE WILL offer to Albert Eugene Bradshaw immediate and full reinstatement to his former position , or to a substantially equivalent position , without prejudice to his seniority or other rights and privileges , and will make him whole for any loss of earnings suffered as a result of the discrimination against him. All of our employees are free to become or remain, or to refrain from becoming or remaining , members of any labor organization. PILOT FREIGHT CARRIERS, INC.. Employer. Dated----- -------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 1831 Nissen Building , 310 West Fourth Street, Winston -Salem, North Carolina, Telephone No. 723-2302. Copy with citationCopy as parenthetical citation