Redwing Carriers, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1976

224 N.L.R.B. 530 (N.L.R.B. 1976)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Redwing Carriers , Inc. and Teamsters , Chauffeurs,
Warehousemen and Helpers Local Union 991, a/w
International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America, Ind
Case 15-CA-5465
June 9, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On September 29, 1975, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed cross-exceptions and a brief in support thereof
and in opposition to General Counsel's exceptions
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith, and to adopt his rec-
ommended Order, as modified herein
A Independent Violations of Section 8(a)(1) of the
Act
We agree with the Administrative Law Judge that
Terminal Manager Russell's remarks to employee
LaMont that it had been reported to him that La-
Mont was a "navigator" of the Union and that cus-
tomers would withdraw business from Respondent
and that drivers would be replaced by owner-opera-
tors if the Union was voted in constituted a creation
of an impression of surveillance and threat of job loss
in violation of Section 8(a)(1) of the Act We likewise
agree that Russell's solicitations of employees La-
Mont and Cook to discourage other employees from
supporting the Union were violative of Section
8(a)(1) of the Act
We also agree with the Administrative Law Judge
that Pensacola Terminal Manager Bass' actions in
interrogating employee Edwards as to whether he
had heard anything about the Union and the subse-
quent statement to Edwards that if the Union were
successful Respondent would convert to owner-oper-
ators completely were violations of Section 8(a)(1) of
the Act
B The Discharges
Respondent's actions in discharging employees
Byron Duane Lowe, Joseph Turner, and Jack Ed-
wards were alleged in the complaint to be violative of
Section 8(a)(3) of the Act The Administrative Law
Judge found a violation with respect to Lowe's dis-
charge and failed to find violations with respect to
the discharges of Turner and Edwards Contrary to
Respondent's exceptions to the former finding, and
in agreement with General Counsel's exceptions to
the latter, we find all three discharges were predicat-
ed on the employees' union activities and were,
therefore, in violation of Section 8(a)(3) of the Act
The Administrative Law Judge's findings with re-
spect to Lowe's discharge are fully supported by the
record and we find no basis in Respondent's excep-
tions for reversing them
1 Joseph Turner's discharge
The Administrative Law Judge, as well as our dis-
senting colleague, accepts Respondent's contention
that Turner was discharged on August 28, thus limit-
ing his pretermination union activity to his signing
an authorization card The facts, however, belie this
conclusion Boshell's own testimony is explicit that
on August 28 he told Turner that he could not make
a final determination "one way or the other" on his
status until he had checked out the complaint he had
received on him from a customer Boshell further tes-
tified that all he could do was stop him from running
because "I can't terminate until I got all the informa-
tion in " There is no evidence of record that Respon-
dent did anything to terminate Turner's employment
status from that date until Turner's conversation
with Russell on October 7 During that period (Au-
gust 28-October 7) Turner was unable to ascertain
his employment status despite repeated questioning
of dispatcher Robert Turner and Boshell Respon-
dent admits that Turner was neither given a copy of
the complaint letter, nor was the receipt of such a
letter even communicated to him, even when, on Oc-
tober 7, he was finally told that he had been dis-
charged
Our dissenting colleague's attempt to portray
Turner's October 7 call as an effort by a discharged
employee to see if his status had changed totally ig-
nores the overwhelming weight of the evidence to the
contrary Boshell's testimony was that it was
Respondent's practice when a customer complained
about a driver to withhold disciplinary action until
all the facts could be investigated, while merely sus-
pending the driver The Administrative Law Judge
also impliedly found such a practice with respect to
224 NLRB No 73
REDWING CARRIERS, INC
the incident referred to below concerning Crawford
Moreover, Turner's testimony is undenied that on
August 28 Boshell only told him that he could not
run "till further notice," pending receipt of the com-
plaint letter, that Boshell had told him that he did
not know what the trouble was, and that "It might
not even have been you " These facts do not support
the dissent's version of Turner's October 7 call,
which in fact had been precipitated by a call from
one of Respondent's dispatchers the previous day,
first scheduling Turner for another run and then re-
voking the request as a mistake Likewise, Re-
spondent's various actions, which have been
found by the Administrative Law Judge and accept-
ed by our dissenting colleague as violative of Section
8(a)(1) and (3), all occurred simultaneously with the
incidents relating to Turner's discharge These are
the material and decisive facts, which, though left
unmentioned by our dissenting colleague, cannot be
ignored in drawing conclusions with respect to
Respondent's dealings with Turner
We therefore find, based on all the evidence, that
Joseph Turner was not finally terminated until Octo-
ber 7, when he was so informed by Respondent
Although not discussed by the Administrative Law
Judge, the record contains evidence sufficient to
show that Joseph Turner, prior to his discharge on
October 7, before he was finally terminated, had en-
gaged in union activities which were known to Re-
spondent Thus, it is uncontested that Turner signed
an authorization card on August 8, 1974,' and at-
tended union meetings on September 14 and 29 He
also accompanied fellow employee LaMont to Pen-
sacola in September, where they picked up union
cards that had been signed by employees at that ter-
minal
Respondent's knowledge of Turner's union activi-
ty is established by his testimony that just after Bo-
shell told him that he could not run until a customer
complaint had been checked he was talking to anoth-
er employee named Reed, telling him that he hadjust
been laid off until further notice Reed asked if he
thought it was because he had been helping organize
The conversation took place beside the window be-
tween the drivers' room and the dispatch room Su-
pervisor Robert Turner interrupted the conversation
by opening the window and stating, "You know, if
you're successful in bringing the Union in, that Mr
Russell is going to bring in lease operators to take
your place " Neither Reed nor Robert Turner testi-
fied, and Joseph Turner's testimony stands uncon-
tested Moreover, the Administrative Law Judge
credited dispatcher Harmon's testimony that on Au-
I All dates hereafter are in 1974
531
gust 30 he had a conversation with Boshell wherein
Boshell said that he knew that Joe Turner, Lowe,
LaMont, and James Turner had signed union cards
In light of the record, including the various inde-
pendent 8(a)(1) violations found above establishing
Respondent's union animus, as well as the timing of
Turner's discharge only a week before the election,
we find that General Counsel has made out a prima
facie case that Respondent's discharge of Turner vio-
lated Section 8(a)(3) of the Act We now turn to
Respondent's claim of justification which the Ad-
mimstrative Law Judge accepted
Respondent introduced testimony from Remick,
the plant manager of one of its customers, that he
had discovered one of Respondent's drivers in his
office after hours on August 20 He testified that, not
recognizing the driver, the next day he had the office
personnel check the bills of lading for the previous
day and thereby determined that it was Joseph Turn-
er On that basis he called Boshell, complained of
Turner's actions, and barred him from making fur-
ther deliveries
Respondent claims that this complaint was the sole
reason for Turner's termination pursuant to a long-
standing company rule making any driver barred by
a customer subject to immediate discharge
The Administrative Law Judge noted the fact that
Turner's bill of lading and log for August 20 estab-
lished that he arrived at Remick's plant at 10 30 a in
and left at noon, but nevertheless dismissed the dis-
crepancy as a mistake on Remick's part not render-
ing the remainder of his testimony suspect In addi-
tion, the Administrative Law Judge failed to mention
other uncontested evidence which in our opinion un-
dermines Respondent's defense to the extent that it
must be rejected, especially in light of the evidence
supporting the General Counsel's case
Thus, Boshell testified that it was normal proce-
dure to investigate complaints about drivers, and in-
deed this practice is relied on by the Administrative
Law Judge to distinguish a previous complaint
wherein a driver named Crawford was barred but not
discharged inasmuch as the investigation failed to
substantiate the charge Nevertheless, it is uncontest-
ed and unexplained that Remick's complaint about
Turner was not investigated until after his discharge
and he was never confronted with either the nature
of the charge or the identity of the complainant Had
Respondent followed its normal procedure in
Turner's case, a simple check of his August 20 bill of
lading would have either shown that Remick was
mistaken about his obviously tenuous identification
of Turner or at least led to a further investigation to
determine if discharge was justified
On the basis of the entire record, we find
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's defense to be a pretext, the actual mo-
tivation behind Turner's discharge being his union
activities In reaching our conclusion, we find it un-
necessary to discredit Remick's testimony that he
complained about Joseph Turner on August 20, inas-
much as Respondent's actions in response to that
complaint show that it was merely seized upon as a
convenient way to get rid of a known union advo-
cate We, therefore, find Respondent's action in dis-
charging Joseph Turner on October 7, 1974, to be in
violation of Section 8(a)(3) of the Act
2 Jack Edwards' discharge
Edwards was terminated on September 23, the fi-
nal day on which the consent election agreement was
signed, purportedly because he failed fully to disclose
his driving record in his application for employment
The Administrative Law Judge found that Edwards
had engaged in substantial organizing efforts prior to
discharge and that Terminal Manager Bass, the man
who effected the discharge, had prior knowledge of
Edwards' union activities However, the Administra-
tive Law Judge failed to find Edwards' discharge vio-
lative of the Act, inasmuch as he found there is no
evidence that Respondent had knowledge of Ed-
wards' union advocacy when Respondent's safety di-
rector, Mastrona, first discovered the discrepancy be-
tween Edwards' application and the transcript of his
driving record from the Motor Vehicles Department
and ordered his discharge
The Administrative Law Judge's findings as to Ed-
wards would be more persuasive had Respondent
discharged Edwards at the time Mastrona first or-
dered the action taken However, as Mastrona him-
self testified, in the usual situation involving a discre-
pancy between a driver's application and his record,
the ultimate decision as to whether an explanation
would be sought and accepted was left up to the ter-
minal manager Here Kelly, the terminal manager at
the time, decided to allow Edwards to remain with
Respondent, despite his incomplete application, in
light of his ability as a driver We note that the Ad-
ministrative Law Judge found that the evidence es-
tablishes that other drivers with worse driving rec-
ords who also did not completely disclose their past
records in their applications were allowed to remain
in Respondent's employ When asked, neither Mas-
trona nor Bass could provide convincing testimony
for the obvious inconsistency in the treatment of Ed-
wards, and the Administrative Law Judge specifical-
ly discredits their rationalizations In view of the Ad-
ministrative Law Judge's findings concerning the
Respondent's past practice, Edwards' lack of full dis-
closure could not have provided a legitimate business
reason for his discharge, particularly since Kelly,
with full knowledge of the circumstances, permitted
him to remain employed Where an employee is dis-
charged in the context of established union animus
as evidenced by our findings of violations of Section
8(a)(1) and (3) of the Act, at a time when his union
activities are known, and the reason advanced for
such action has been discredited, we conclude, con-
trary to the Administrative Law Judge and our dis-
senting colleague, that the discharge was illegally
motivated
We find that the record shows that the only other
basis for distinguishing Edwards from drivers who
were allowed to remain in Respondent's employ was
his known union advocacy and the imminence of the
election Accordingly, Edwards' discharge was viola-
tive of Section 8(a)(3) of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Red-
wing Carriers, Inc, Creola, Alabama, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied
1 Substitute the following for the Administrative
Law Judge's paragraph 2(a)
"(a) Offer Byron Lowe, Joseph Turner, and Jack
Edwards immediate and full reinstatement to their
former positions or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to seniority or other rights and privileges and make
them whole for any loss of pay they may have suf-
fered in the manner set forth in the section of the
Decision entitled `The Remedy ' '
2 Substitute the attached notice for that of the
Administrative Law Judge
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part
I agree with my colleagues that Respondent violat-
ed Section 8(a)(1) of the Act as alleged in the com-
plaint, and that employee Byron Duane Lowe was
unlawfully discharged However, I cannot agree with
their findings, contrary to the Administrative Law
Judge's, that the discharges of employees Joseph
Turner and Jack Edwards were also discriminatorily
motivated
With respect to Turner, in order to sustain their
finding of unlawful discharge, my colleagues are
forced to engage in a fiction, namely, "that he was
not finally terminated until October 7, when he was
REDWING CARRIERS, INC 533
so informed by Respondent" For if Turner's em-
ployment with the latter had been terminated on Au-
gust 28 when he reported for work, as I believe the
facts establish, there is no basis for finding his dis-
charge unlawful, since at the time of that event Re-
spondent had not yet learned of Turner's union ac-
tivity (then limited, as it were, to his signing an
authorization card 20 days earlier) Only after Turner
was informed "he could not run," did the incidents
occur on which my colleagues rely to establish such
knowledge Hence, their position is clearly without
foundation if Turner's discharge occurred on the ear-
lier of the two dates
In the discharge interview on August 28, Boshell,
the dispatcher, made it plain to Turner that he could
not drive again for Respondent because of two cus-
tomer complaints lodged against him As Turner tes-
tified, "Mr Boshell told me he had orders from Tam-
pa not to work me anymore " While Boshell's
remarks that he was awaiting a letter from one of the
customers 2 confirming the latter's complaint may
impart some ambiguity to the fmality of the dis-
charge, as conveyed to Turner, the clear tenor of
such remarks was that Turner was terminated as of
then unless the letter did not confirm the gravity of
the customer's complaint as orally communicated
But notwithstanding this vague hint at a possible re-
consideration of the discharge action taken against
Turner, which depended wholly on the customer's
written complaint setting forth something different
than orally recounted, it seems clear that Turner, as
well as Boshell , understood, as Turner's above testi-
mony indicates, that he was no longer in the employ
of the Respondent unless he heard otherwise 3 In
other words, the impact of Boshell's discharge state-
ments was, to put such in the vernacular of our times,
"don't call us, we'll call you"-if ever
Respondent subsequently received the letter con-
firming the complaint, and insofar as it was con-
cerned, the matter of Turner's employment with it
stayed closed effective August 28, the day it refused
to let him further drive for it Thus, when over a
month later Turner called to ascertain if since that
2 Halby Division , Argus Chemical Corporation According to the testimo-
ny of John Russell , the manager at the Creola terminal , a complaint against
Turner from Contact Battery `was ignored '
3 Boshell s testimony that he told Turner that he could not make any
determination ` one way or the other" and "can 't terminate until [he] got all
the information in" is not inconsistent with this conclusion , as the majorit)
implies To the contrary , such remarks are indicative only of the fact that as
I have stated here , if the customer complaint was confirmed in writing the
discharge would stand The crucial fact ignored by the majority is that
whatever else Boshell said to Turner on August 28 he clearly stated and
Turner just as clearly understood, that the latter could not run for Respon
dent because of the customer complaint , and Boshell's testimony that he
"discharged" Turner upon receipt of the letter about a week later without
further ado only serves to emphasize the pro forma nature which this confir-
matory step bore to the earlier discharge action
date there might have been a change in his status as
an ex-employee, the factual response simply was that
there had not been,4 and it was in that context that
this information, on which my colleagues erroneous-
ly place their reliance, was received by Turner
In view of the foregoing, and for the reasons set
forth by the Administrative Law Judge as well, I can-
not find a violation of the Act with respect to
Turner's situation, and I would dismiss the complaint
in that regard
As for Edwards, the reasons for reversing the Ad-
ministrative Law Judge are even less compelling The
majority does not quarrel with the Administrative
Law Judge's finding that there was no evidence to
establish that Respondent had knowledge of Ed-
wards' union sympathies when Mastrona, Re-
spondent's safety director, on August 8, ordered his
discharge upon discovering, during the course of a
routine check on Edwards' safety record,' a discrep-
ancy between the employee's driving application
and the transcript of his driving record on file at the
Motor Vehicles Department Instead, they seize upon
the fact that the order to discharge Edwards was not
then carried out by Kelly, the terminal manager, who
subsequently was replaced by Bass 6 However, they
ignore the following facts That Mastrona did not
work out of the Pensacola terminal where Edwards
was employed but out of the headquarters office in
Tampa, that Mastrona was unaware of Kelly's fail-
ure to carry out his order until about September 22
when he discovered from paperwork crossing his
desk that Edwards was still employed, and that
forthwith Mastrona called Bass and instructed him
to carry out the order which Kelly had disobeyed
In view of the above facts, I agree with the Admin-
istrative Law Judge, for similar reasons, that the
4 The majority s finding that between August 28 and October 7 Turner
was unable to ascertain his employment status despite repeated questioning
of dispatcher Robert Turner and Boshell overstates the facts, to say the
least and suggests a conclusion which is unwarranted On August 30 Jo
seph Turner testified he called Robert Turner merely to find out if the letter
had been received and was told that it had not been That was the extent of
Turner s questioning on that occasion He testified that on September 3
he visited the terminal and spoke to Boshell who in answer to a similar
question replied that the letter had not yet arrived in the mail That was the
gist of that inquiry into his ` employment status ' The two incidents together
constitute the entire efforts of Turner ` to ascertain his employment status
until October 7 when he called to check out two calls he had received the
day before from "Don' apparently a dispatcher who first had called to
schedule him for a run and next to cancel it Turner on October 7 was told
by Robert Turner that Don had ` called the wrong man He should have
called James Turner (another driver on the Respondent s payroll) There-
after Turner spoke to Russell who confirmed the fact that he had been
discharged on August 28 because of a customer complaint
5 It was standard operating procedure to check out all new hires as Ed-
wards was in this manner
6 The majority notes that in the usual situation the terminal manager is
left with the ultimate decision to terminate after seeking an explanation for
a driver s failure to submit an accurate application Whatever the `usual
situation may be it is clear that Mastrona did not, in Edwards' case leave
the decision to Kelly As Mastrona s uncontradicted testimony establishes
his order to discharge Edwards was unequivocal and final
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel did not prove his case concerning
Edwards Clearly, Mastrona, at the time he instruct-
ed that Kelly dismiss Edwards, had no reason to ex-
pect that his instruction would not be followed Just
as clearly, when several weeks later, on September
22, he found out that Kelly had disregarded it, he
took immediate action to have the discharge order
implemented by Bass, Kelly's successor as the
terminal's manager There is no evidence showing
that Mastrona had found out before then that Ed-
wards had not been discharged, as originally ordered,
or that Mastrona subsequently learned of that other
than as he testified In such circumstances, the lapse
in time between the decision and initial order to ter-
minate Edwards, both made on August 8, and the
date the discharge finally was effected, September
23, is wholly explainable without the need to infer an
unlawful motive as arising in the interim
Certainly, Mastrona, whose authority was flouted
and ignored by a subordinate without his immediate
knowledge, had every right to insist that such author-
ity be fully observed when the insubordination and
its resultant inaction came to his attention Nor does
the fact that in the intervening time Respondent
gained the knowledge it lacked of Edwards' union
adherence when first it ordered his dismissal alter
that conclusion It is axiomatic that an employee's
participation in union activities will not insulate him
from discharge I Without affirmative evidence that is
lacking here to show that Mastrona's reordering of
Edwards' discharge was at least in part motivated by
such activities, I cannot join my colleagues in their
conclusion that he was discharged in violation of the
Act I therefore dissent from their failure to dismiss
the portions of the complaint on which they make
such a finding
WE WILL NOT threaten employees with loss of
jobs or other reprisals for engaging in union ac-
tivities
WE WILL NOT create the impression we are
spying on the union activities of our employees
WE WILL NOT ask employees to speak to other
employees against supporting a labor organiza-
tion
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their
membership in, or activities on behalf of, Team-
sters , Chauffeurs, Warehousemen and Helpers
Local Union 991, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Ind, or any other labor
organization
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form labor organizations, to join or assist the
above-named Union or any other labor organi-
zation, to bargain collectively through represen-
tatives 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 any and all such activities
WE WILL offer Byron Lowe, Joseph Turner,
and Jack Edwards immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and WE WILL make them whole for any loss of
earnings they may have suffered as a result of
their discriminatory discharges with interest at 6
percent per annum
7 Tennessee Plastics, Inc, 203 NLRB 1 (1973), and Star News Newspapers
Inc, 138 NLRB 1003, 1004 (1970) My colleagues look to the inconsistency
of Respondent's treatment of Edwards vis-a vis other drivers who did not
fully disclose their past driving records in their applications as proof that the
discharge was discriminatorily motivated But that ignores the fact that
Mastrona 's order to discharge Edwards was as inconsistent with the treat-
ment of those drivers when it was first given without knowledge of Edwards
union activates as when it subsequently was reiterated with such knowledge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate our em-
ployees regarding their union membership, ac-
tivities, or sympathies
REDWING CARRIERS, INC
DECISION
STATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge Upon a
charge and an amended charged filed by the above-named
Union on October 7 and November 15, 1974, respectively,'
a complaint, dated December 3, 1974, was issued against
Redwing Carriers, Inc 2 The complaint, as amended at the
hearing, alleged that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Joseph A Turner, Byron
Duane Lowe, and Jack N Edwards The complaint further
alleged independent unlawful conduct by the Respondent
in violation of Section 8(a)(1) of the Act The Respondent
Unless otherwise indicated, all dates hereinafter refer to 1974
2 The formal papers were amended at the hearing to show the correct
name of the Respondent as it appears in the caption
REDWING CARRIERS, INC 535
denied it has engaged in the alleged unfair labor practices
Hearing was held before me on January 22-23 and April
1-2, 1975
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the fol-
lowing
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Based upon the pleadings, I find that the Respondent, a
Florida corporation, is engaged in the furnishing of freight
transportation services from its terminals in Creola, Ala-
bama, and Pensacola, Florida During the 12-month period
preceding the issuance of the complaint, the Respondent,
from each of these two facilities, derived gross revenues in
excess of $50,000 from its business of furnishing freight
services directly to points located outside the States of Ala-
bama and Florida, respectively Based on the foregoing,
and as admitted in Respondent's answer, I find that the
Respondent is engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Teamsters, Chauffeurs, Warehousemen and Helpers Local
Union 991, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
The Union has had a contractual relationship with the
Respondent covering the employees at the Tampa and
Taft, Florida, terminals The Union commenced an organi-
zational campaign among the employees at the Creola, Al-
abama,3 and Pensacola, Florida, terminals in July On Au-
gust 30, the Union filed a representation petition seeking
an election in a unit composed of the employees at both
terminals Based upon a stipulation for consent election
agreement executed by the Company and the Union on
September 20 and 23, respectively, elections were then con-
ducted on October 10 in two units (1) All truckdrivers and
shop employees at the Creola terminal, excluding all office
clerical employees, lease drivers, watchmen and/or guards
and supervisors as defined in the Act (2) All truckdrivers
at the Pensacola terminal, excluding office clerical employ-
ees, lease drivers, watchmen and/or guards and supervisors
as defined in the Act A majority of the valid votes cast
were in favor of the Union in each election and on October
21 the Union was certified as the collective-bargaining rep-
resentative in each of the two units The dispatchers were
excluded from the units
The Respondent is headquartered in Tampa, Florida,
with terminals located in other cities in Florida and Ala-
bama in addition to the two terminals involved herein Of
the approximately 67 employees at both terminals, about
50 are drivers The Creola operation is a regular trucking
operation with the dispatchers sending the drivers on over-
the-road hauls The drivers receive as compensation a per-
centage of the gross revenue of the load At the Pensacola
operation, the drivers work in two-man teams, operating
the same tractor-trailer rig on different shifts The drivers
make three runs to and from the terminal and the sulphur
fields, receiving a flat amount per run John Russell is the
terminal manager of the Creola terminal, as well as opera-
tions manager in charge of all Alabama and the Pensacola
terminals Bill Boshell is the assistant terminal manager
and chief dispatcher at Creola and his duties extend to the
Pensacola operation At the Pensacola terminal Mr Kelly
was the terminal manager until September 5 when he was
succeeded by George Bass The maintenance operations
for both terminals, in the main, are located at Creola under
the supervision of Don Logan All the individuals above
named are admitted supervisors
The General Counsel contends, and the Respondent de-
nies, the dispatchers at the Creola terminal are supervisors
within the meaning of the Act The Creola terminal is in
operation around the clock with a dispatcher on duty on
each of the three shifts During the relevant period herein,
Robert Turner was the dispatcher on the day shift and
Marion Eubanks and Junius Harmon were the dispatchers
on the other two shifts Boshell and Russell are normally at
the Creola terminal only during the daytime hours and
leave by 5 p in Thus, for more than half of the day's opera-
tion, no admitted supervisor was present at the terminal
Turner prepares the dispatch schedule for the following
day and assigns drivers for specific runs When changes are
to be made in assignments during one of the other shifts,
the dispatcher on duty effects the change The dispatchers
are salaried whereas the drivers receive a percentage of the
gross revenue of the load There are approximately 30 driv-
ers on the board at the terminal Dispatchers have the au-
thority to send a driver home if he appears unfit for duty or
refuses to take a specific load There is a conflict of testi-
mony as to the authority of the dispatcher to discharge
drivers, but I find it unnecessary to resolve this conflict It
appears, based on the foregoing, the dispatchers exercise
significant authority over the drivers and exercise mean-
ingful independent judgment in the assignment of work to
the drivers I find and conclude the dispatchers are supervi-
sors within the meaning of Section 2(11) of the Act d
B Independent Acts of Interference, Restraint,
and Coercion
I James LaMont, a driver at the Creola terminal, was
injured in a job-related accident and was at home conva-
lescing when he received a call on September 17 from dis-
patcher Robert Turner to report to the terminal to see Rus-
3 Referred to sometimes in the record as the Mobile terminal
4 Groendyke Transport, Inc 171 NLRB 997 (1968)
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sells LaMont credibly testified Russell told him someone
no longer connected with the Company told them LaMont
was the "navigator" of the union campaign and was getting
people signed up Russell said he could not understand
why LaMont wanted a union and pointed out LaMont was
the second highest paid man at the terminal despite not
being high in seniority Russell said he knew if the Union
became the bargaining representative the Respondent
would lose business because their customers would then
divert business to other carriers Russell stated the Respon-
dent would replace the drivers with owner-operators Rus-
sell said LaMont was respected by the other drivers and
asked him to talk to the other drivers about the Union-
"that he would appreciate anything I do to help defeat the
union so it looked better for him if we defeated the union "
Russell , in his testimony , admitted calling LaMont to the
terminal for the purpose of discussing the union situation
He admitted discussing LaMont's high earnings when
compared to his seniority standing He indicated that with
a union drivers would probably be dispatched by seniority,
and his earnings , as well as those of others with low senior-
ity, would be affected Russell admitted discussing loss of
business and admitted this information was not imparted
to him by customers He was not asked about bringing in
owner-operators or about soliciting LaMont to talk to
other employees
I find Russell's remarks to LaMont that it had been re-
ported LaMont was a "navigator" of the union campaign
was of such character as to create an impression of surveil-
lance in violation of Section 8(a)(1) of the Act 6 I find that
Respondent threatened job loss in violation of the Act by
Russell's statements that its customers would withdraw
business from the Respondent and the drivers would be
replaced by owner-operators if the Union was successful 7
Russell's solicitation of LaMont to discourage other em-
ployees from supporting the Union was undertaken in the
context of other unlawful acts and I find such conduct
likewise violative of the Act
2 Willie Crook, a mechanic's helper still employed by
the Respondent testified he was called to Russell's office
together with another helper, Mickey Moore , on October
7 Russell first told him a story about "a dog and a bone "
Russell then reviewed the raises Crook had received to
date According to Crook, Russell told him "there wouldn't
be any more raises period besides what the union gives
you " Crook testified Russell also offered him $50 to solicit
employees not to vote for the Union He testified the re-
ceipt of the $50 was contingent upon the Umon losing the
election The Union won, Crook did not get the $50 Rus-
sell testified he did discuss the union campaign with Crook
and Moore in his office and related the "dog and bone"
story He testified he reviewed the history of the increases
Crook had received during his employment He told Crook
if the Union won the Respondent could not be as flexible
as in the past with raises and it would be unable to give
5 LaMont returned to work in mid-December and was still employed at
the time of the hearing
6 Pfasticord Company, 168 NLRB 135 (1968)
7 Blaser Tool & Mold Company, 196 NLRB 374 (1972)
8 Moore was no longer employed by the Respondent at the time of the
hearing and was not called as a witness
them any increases other than that which was negotiated
with the Union Although he denied offering Crook any
money in connection with the union campaign , he was not
asked whether he solicited Crook to discourage other em-
ployees from supporting the Union
Crook did not impress me as a witness who related the
substance of his meeting with Russell with certitude and
conviction Rather, I believe Russell 's account of his state-
ments concerning future raises was the more reliable Nor
do I believe Russell offered Crook money to solicit other
employees On the other hand, in absence of a denial by
Russell and since a similar appeal was made by Russell to
LaMont, I find Russell solicited Crook to discourage other
employees from supporting the Umon In light of my earli-
er finding concerning unlawful conduct by Russell, I find
his solicitation of Crook violative of the Act
3 The General Counsel has alleged the Respondent in-
stituted a wage increase at the Pensacola terminal in an
attempt to persuade the employees to reject the Union The
Pensacola drivers are paid a fixed rate for each run At a
meeting of Pensacola employees with management repre-
sentatives on September 7, the primary purpose being to
introduce Bass as the new terminal manager, an open dis-
cussion ensued relating to working conditions , safety fea-
tures , etc The Union was not mentioned at all9 Com-
plaints were registered by employees about the amounts
being received on runs, and employees commented they
were entitled to higher compensation for certain runs Rus-
sell explained the Company would first have to receive a
rate increase from its customers so that it could pass on the
added revenue to the employees Russell said he would try
to get the rate increased The Respondent had, in the
meantime, applied for an increase , and unbeknownst to
Russell at the time of the meeting, the application had been
approved , and the higher rate to the customer had been
effected On September 17, the formal announcement was
made of the increased driver rates for certain designated
runs effective as of September 1 Under the circumstances
described above, I find the evidence insufficient to estab-
lish that the granting of the increase was motivated to in-
terfere with the organizational campaign I shall recom-
mend dismissal of this allegation
4 Edwards testified that several days before his dis-
charge,10 en route back to the Pensacola terminal with
Bass, they stopped at a restaurant Bass asked him if he
had heard anything about the Umon Edwards replied he
heard the petition had been signed and an election was to
be held 11 Bass said if the Union was successful the Re-
spondent would convert to owner-operators completely
Bass denied any conversation with Edwards about the
Union after he became terminal manager I credit Edwards
and find, as alleged by the General Counsel , the Respon-
dent here , too, threatened job loss if the Union became the
bargaining representative of the employees, and engaged in
unlawful interrogation in violation of Section 8(a)(1) of the
Act
s The Union s petition had been filed on August 30
10 He was discharged on September 23
11 The stipulation for consent election agreement was signed by the Re-
spondent on September 20
REDWING CARRIERS, INC
C The Discharges
1 Byron Duane Lowe
Lowe had previously worked at the Creola terminal from
February to September 1973 when he was terminated He
was reemployed by Boshell as a driver at Creola in January
1974 He was discharged on August 28 The General Coun-
sel contends Lowe was discharged because of his union
activities whereas the Respondent contends he was dis-
charged for tampering with the governor on one of the
Respondent's tractors
All tractors are equipped with governors to regulate the
revolutions per minute which the engine turns The gover-
nor is set by shop personnel at a maximum of 2,300 rpms
and a seal is affixed to prevent tampering with the gover-
nor If the governor is set at a higher rpm, the tractor will
not only go faster but the engine will eventually blow On a
number of occasions seals were reported by the drivers to
be missing and the drivers were permitted to take out the
tractors after an inspection to insure the governors were
properly set Over a period of time, the Respondent ex-
pressed concern because governors were set too high, but it
had been unable to discover the drivers responsible A
company rule (rule 62) states in pertinent part, "any driver
who tampers with the, governor on a truck he drives is
subject to dismissal " In July 1973 Russell issued a notice
to all drivers stating that unknown drivers had been tam-
pering with the governors and, if the identity of such driv-
ers became known, immediate termination would result In
a June 1974 memorandum issued by Russell to his terminal
managers, Russell reminded them of the problem of drivers
tampering with governors and discussed preventive mea-
sures by spot checks and pretrip inspections Lowe was not
assigned to any particular tractor As he testified, during a
1-month period he could drive as many as 15 different
tractors On August 15 he went on a run in tractor #541
and returned to the terminal about 7 p in that evening
Lowe testified that when he returned to the terminal from
his run he reported to one of the mechanics the rpms were
too high He was not certain who he reported this to, but
thought it was Willie Crook, a mechanic's helper He testi-
fied the mechanic checked the rpms in his presence but did
not say anything The mechanic did not look under the
hood to examine the seal Lowe testified that before he had
gone out on his run he made a pretrip inspection and noted
the seal was affixed He however, did not look to examine
the seal when he returned All he reported to the mechanic
was that the rpms were too high That was the last time
Lowe drove #541 He thereafter drove other tractors On
August 27 he called the terminal and asked Robert Turner
if he was set up for a run Turner said he had no assign-
ments for him but Lowe should come in the next morning
to see Boshell The next morning Lowe came to the termi-
nal Boshell was not there and he spoke to Robert Turner
who told him he had orders to terminate Lowe for breaking
a seal Lowe then spoke to Russell who told him he could
come back the following day for his termination papers
That same evening, Lowe telephoned Boshell at his home
and asked why he had been fired Boshell replied it was for
breaking the seal on #541 Lowe pointed out he had last
537
driven that tractor on August 15 and asked why it took so
long to discharge him Boshell explained that he had been
busy in Pensacola and had not had time to get around to
it 12 Lowe testified he had never broken a seal or tampered
with a governor He testified that once before, about June,
he had reported the rpms were too high on another tractor
He had reported broken seals a number of times
Johnny Underwood, a driver still employed by the Re-
spondent, was called as a witness by the Respondent He is
the driver who regularly was assigned to tractor #541 On
August 16 he inspected #541 before going out on a run
He noticed the seal was missing and then raced the engine
and discovered it was turning up to about 2,600 rpms He
reported this to mechanic Phillip Nabb Underwood had
last driven #541 on August 14 and did not work on August
15 Phillip Nabb, a mechanic still employed by Respon-
dent, testified that when Underwood reported the defects
to him he reported this to Russell The shop foreman, Lo-
gan, was on vacation at this time Nabb said when he in-
spected the tractor the governor was set at over 2,500
rpms and the seal had been broken That same day he
replaced the seal and reset the governor Nabb testified
that on some other occasion Lowe had reported the rpms
were too high on another tractor However, on this particu-
lar occasion, Lowe did not report the irregularity At the
time Underwood reported the defect to him on August 16,
Nabb was unaware Lowe had been the previous driver on
the tractor Russell testified that Nabb reported the defects
on tractor #541 He then checked and discovered Lowe
had last driven the vehicle He alerted Boshell who was
then in Pensacola of what had transpired They agreed ac-
tion would be taken against Lowe when Boshell returned
to Creola Boshell testified that when he returned to Creola
he discharged Lowe
Willie Crook, a mechanic's helper still employed by the
Respondent, testified as a witness for the General Counsel
He testified Lowe returned the tractor to the shop and re-
ported to him the rpms were too high Crook said he then
took the keys from the tractor and placed them on the
foreman's desk According to Crook, it was not until the
following Monday that Nabb and he reset the governor I
do not credit his testimony His timecard introduced in
evidence showed that on August 15 Crook had punched in
at 6 42 a in and punched out at 2 41 p m It is undisputed
Lowe did not return to the terminal until 7p m
I find it was Underwood who reported the irregularities
on #541 to Nabb on August 16 I do not credit Lowe's
testimony that he reported the irregularity on the governor
when he returned to the terminal on August 15 Prior to the
discharge of Lowe, no driver had been discharged for
breaking a seal or turning up the governor But seals had
been broken in the past and governors had been turned up
I must profess some skepticism as to Respondent's expla-
nation for not taking any action against drivers in the past
is The Respondent had experienced equipment and personnel problems
at the Pensacola terminal and from the last week in July to about September
5 when a new terminal manager Bass was appointed there, Boshell spent
most of his time at the Pensacola terminal He returned to Creola full time
on September 5 but thereafter was off work from September I I to January
1975 because of illness
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shop Foreman Logan explained it as follows
JUDGE NESS If the employee reported that the gov-
ernor was turned up and the employee that drove be-
fore him did not so report, would you blame the per-
son before him even if he denied it9
THE WITNESS I think I would But I couldn't come
up and fire him for it because I couldn't prove that
unless I had known it had been checked out when he
went out and when he came back in
JUDGE NESS What was so convincing about Lowe
as compared to other cases?
THE WITNESS Well, the truck had been driven most-
ly by one man and it was checked because the driv-
er-one man had been driving-Underwood is a fast
driver I mean, he just normally runs-he holds the
maximum speed that he can get away with And I had
kept an eye on his truck and the seal It had been on
there approximately a year I knew he had not messed
with it And there was just one day there that Lowe
had drove his truck I had previous discussions with
Mr Lowe about previous trucks he had driven being
turned up And he denied it, which he told me he
come in and told me before I believe it was 553 that
the truck was turned up But he had been driving it a
few days and he didn't report it before he went out but
I couldn't prove the seal was on it before he went out
with it
Boshell also testified the Respondent couldn't "prove" it in
the past On the other hand, Russell's memorandum issued
in 1973 and another again in June 1974 clearly indicated a
confession that the Respondent had been unable to discov-
er the perpetrators
Lowe had signed a union card on July 27 and had solic-
ited several employees in early August LaMont and he
had delivered union cards to the Pensacola terminal for
drivers to sign in early August 13 On the morning of August
26, Lowe was at the fuel pump in the company yard to gas
up the tractor prior to going out on a run Boshell at the
time was in the dispatcher's office The intercom system
allows a two-way conversation between the person near the
pump and the individual in the dispatcher's office The
intercom is turned on by the dispatcher in the office After
the intercom was turned on, Lowe gave his mileage reading
on the tractor and began fueling the tractor Lowe engaged
in a conversation with a fellow employee, Mims, about the
Union while they were standing about 15-20 feet from the
pump Lowe asked Mims to sign a card At about the time
they had finished talking and the tractor had been fueled,
Boshell came up to them and, according to Lowe, in a
rather abrupt way, told Mims he wanted to see him in the
office Immediately after, Lowe heard static on the inter-
com and realized it had been open while Mims and he had
been talking about the Union Mims is still employed by
the Respondent but was not called as a witness by either
party Both dispatchers Eubanks and Harmon credibly tes-
tified that when the intercom was open the dispatcher in
the office could hear employees at or near the pump con-
versing I do not credit Boshell's testimony he did not over-
13 Corroborated by LaMont
hear this conversation between Lowe and Mims I find that
Boshell overheard Lowe speaking favorably on behalf of
the Union and soliciting Mims to sign a union card On
August 30, in a conversation between Boshell and dis-
patcher Harmon about the Union, a conversation initiated
by Harmon, Boshell said he knew Lowe, together with Joe
Turner, also named as a discriminatee in the complaint,
LaMont, and a James Turner had signed union cards I
credit Harmon's testimony Boshell admitted discussing
the Union with Harmon on this occasion He did not deny
identifying the individuals as favorable to the Union His
entire testimony as to this conversation follows
Q Mr Boshell, have you ever had a discusssion
with Jake Harmon concerning union leaders9
A I may have I probably have, yes sir
Q When was that, sir9
A It was along about the first of September, the
middle of September, something like that
Q Was that the conversation to which Mr Harmon
testified to yesterday?
A That I knew there was talk of a union9 Yes, sir
Q No Yes, sir Did he raise the subject or did you?
A I believe he asked me about it, if I had heard
anything on it
Q Mr Boshell, did you tell him or indicate to him
in any way that the company was going to fire any-
body?
A No, sir
Q Are you positive of that9
A Yes, sir
But yet at another point in his testimony, he denied any
knowledge of the union activities of the alleged discrimina-
tees Accordingly, I find that by August 26 the Respondent
was aware of Lowe's support for the Union
I am not persuaded the Respondent discharged Lowe
because it believed he had tampered with the governor
Rather, I believe the Respondent was seizing upon a pre-
text to mask its real reason The incident concerning the
seal and the governor was similar to many other instances
when drivers reported such irregularities But yet Lowe was
the only one who was ever discharged, allegedly, because
he turned up the governor In the past when a turned up
governor was reported by a driver the Respondent would
then question the driver who had last driven the tractor
The Respondent took no disciplinary action against any
employee who denied breaking a seal or turning up the
governor-because the Respondent couldn't "prove" it
But here Lowe was not even given an opportunity to deny
such conduct Nothing was said to him about the seal or
the governor from August 16 to August 28 In the mean-
time he continued to drive for the Respondent I am per-
suaded the decision to discharge Lowe was not made when
the governor incident was first reported on August 16
Rather I believe the decision was made after the Respon-
dent became aware of Lowe's support of the Union It was
on August 27 that Robert Turner told Lowe to come in to
see Boshell I find unworthy of belief the explanations of
Russell and Boshell that the delay in effecting the dis-
charge of Lowe was because Russell left it to Boshell and
Boshell was preoccupied at Pensacola Boshell did not
REDWING CARRIERS, INC 539
spend all his time at Pensacola during this period He also
was at Creola at various times during this same period It
seems implausible that under these circumstances the Re-
spondent would have waited 2 weeks to discharge Lowe I
also find it implausible to believe that Russell, himself the
Creola terminal manager, and on the scene, would not
have discharged Lowe himself without waiting for Boshell
to physically appear on the scene As it was, Robert Turner
first told Lowe he was discharged, not Boshell According-
ly, I find that the Respondent discharged Lowe on August
28 because of his support for the Union in violation of
Section 8(a)(1) and (3) of the Act
driver, Crawford Harmon reported this to Boshell but
could not identify the individual who had called Crawford
was not discharged But I find this incident dissimilar Bo-
shell credibly testified that when Harmon reported this in-
cident he called the customer and attempted to find out
who had registered the complaint, but nobody there knew
anything about it He therefore felt there was insufficient
basis to take disciplinary action against Crawford
I am satisfied that the Respondent discharged Turner
because of a customer complaint not, as contended by the
General Counsel, because of union activities Accordingly,
I shall recommend this allegation of the complaint be dis-
missed
2 Joseph Turner
Turner commenced his employment as a driver at the
Creola terminal in May 1974 Other than signing a union
card on August 8 given to him by Lowe, he did not engage
in any union activity prior to his termination On August
20 he made a run to Halby Division of Argus Chemical
Corp in LeMoyne, Alabama The following day, Colby
Remick, Halby's plant manager, called Boshell and said he
did not want Turner on his premises again Boshell re-
quested that Remick write him a letter to this effect Rem-
ick confirmed this in a letter dated August 22, directed to
Boshell at Creola Remick, called as a witness for the Re-
spondent, testified he found Turner in his office after office
hours and Turner offered no explanation for his presence
there but just walked out 14 The next morning Remick
checked the bill of lading and identified Turner as the driv-
er He then called Boshell and explained why he did not
want Turner on his premises When Turner reported to the
terminal on the morning on August 28, Boshell told him he
was waiting for a letter from a customer complaining about
Turner and that until he saw the letter, Turner could not go
out on a run 15 Turner questioned Robert Turner and Bo-
shell about his status during the course of the next several
days but was told the letter had not yet been received 16
Finally, on October 7, Turner called Russell who, after ex-
amining the file, told Turner he had been discharged effec-
tive August 28 because of customer complaints I
Rule 17 of the Company's rules provides that employees
are subject to immediate dismissal if they are barred by a
customer from making deliveries at the customer's place of
business The uncontroverted evidence disclosed the Re-
spondent had uniformly terminated employees where a
customer complained about an employee and asked that
the driver not be sent again to the customer's premises The
General Counsel, in his brief, argues this rule was not uni-
formly applied He refers to the testimony of dispatcher
Harmon, who testified a customer had complained about a
14 The record shows that Turner arrived at Halby at 10 30 a in and left at
noon Turner denied being in Remick's office Remick was obviously mis-
taken as to the time of day Turner was there I credit Remick in all other
respects Interestingly, the record disclosed Remick had complained about
another driver in May 1974 The employee was discharged (Resp Exhs 9
and 10)
15 Boshell had stopped at the Creola terminal to pick up equipment for
Pensacola
16 Boshell said the letter came about a week later
17 It will be recalled Boshell became hospitalized back on September I i
3 Jack Edwards
Edwards commenced his employment on June 6, 1974,
as a driver at the Pensacola terminal He had been a Team-
sters member about 6 years and signed a union card in
about mid-August He gave cards to two other employees
and spoke favorably about the Union to Bass both before
and after Bass became terminal manager on September 5
Edwards was discharged on September 23
When a driver is initially hired he is required to fill out,
together with his employment application, a report listing
all accidents and traffic convictions within the preceding 3
years After the driver is hired, the Respondent's safety
department in Tampa then verifies the employee's driving
record by obtaining a transcript of his record from the
Florida Department of Highway Safety and Motor Vehi-
cles Safety Director Mastrona received Edwards' tran-
script from the state agency on August 8 Several accidents
and convictions listed on the transcript were not shown on
Edwards' employment application On this same date he
called the Creola terminal and told Eubanks he had Ed-
wards' driving record and Edwards was to be terminated 18
Eubanks relayed the message to Kelly who was then termi-
nal manager at Pensacola Kelly told Edwards of the direc-
tive to discharge him but said he was a good driver and
everything would work out Kelly did not discharge Ed-
wards 19 According to Edwards, sometime in mid-August
he picked up a copy of the transcript at the Creola terminal
and told Boshell one of the accidents listed in the transcript
did not involve him and was incorrectly listed Boshell told
him not to worry about it Boshell returned to the Creola
terminal full time on September 5 but then was hospital-
ized September 11 On or about September 22, Mastrona
called Bass and wanted to know why Edwards had not
been discharged Mastrona testified he had noticed from
some paperwork crossing his desk that Edwards was still
employed at Pensacola Bass, who was then terminal man-
ager less than 3 weeks, said he would discharge Edwards
On September 23, Bass told Edwards he was discharged
because of his driving record and gave him a copy of the
transcript received from the State Edwards disputed the
18 Although Mastrona was generally unconvincing and self-contradictory
in other areas of his testimony, the above finding is made based upon Eu-
banks corroborating testimony and the transcript received from the State
with Mastrona s notations appearing thereon (G C Exh 3)
19 Based upon Edwards' testimony Kelly, no longer employed by the
Respondent, was not called as a witness
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accuracy of the report Shortly afterward, Bass checked
with the highway patrol and noted the information regard-
ing Edwards' driving record was identical to that on the
transcript received by the Respondent earlier Sometime
after the discharge, Edwards himself cleared up his record
with the Florida Department of Highway Safety and Mo-
tor Vehicles and obtained a copy This copy did not list the
accident shown on the earlier transcript received by the
Respondent and which Edwards claimed was not his But
Edwards never notified the Respondent of this correction
Documentary evidence introduced in the record dis-
closed other drivers had been retained by the Respondent
despite their having records at least as bad as that of Ed-
wards and where they failed to list accidents and convic-
tions Mastrona had not ordered their discharges when the
transcripts were received from the state agency Although I
am not satisfied with Mastrona's explanations for the in-
consistency in the treatment of Edwards, I am not con-
vinced Mastrona directed the discharge of Edwards on Au-
gust 8 because of Edwards' union activity For at that time
Edwards had not even signed a union card, union activity
was in its infancy stage, and there is nothing to indicate the
Respondent had any reason at that time to believe Ed-
wards supported the Union Although the timing of Ed-
wards' discharge itself on September 23 is somewhat suspi-
cious, being effected just days after the Respondent
executed the stipulated consent election agreement, I be-
lieve Mastrona's explanation for his call to Bass and the
resulting discharge effected by Bass entirely plausible I
find that the General Counsel has not proved by a prepon-
derance of the evidence that Edwards was discharged be-
cause of his union activities Accordingly, I shall recom-
mend this allegation of the complaint be dismissed
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 By engaging in the conduct described above in sec-
tion III, B , Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
4 By discharging Byron Lowe for engaging in union ac-
tivities, Respondent violated Section 8(a)(1) and (3) of the
Act
5 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act
6 Except for the foregoing, Respondent has committed
no unfair labor practices under the Act
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act
It having been found that Respondent discriminatorily
discharged Byron Lowe, it will be recommended that Re-
spondent be ordered to offer him full and immediate rein-
statement, without prejudice to his seniority or other rights
and privileges and to reimburse him for any loss of pay he
may have suffered Backpay shall be computed on a quar-
terly basis, plus interest at 6 percent per annum, as pre-
scribed in F W Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co, 138 NLRB 716
(1962), from the date of discharge to the date reinstatement
is offered
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed
ORDER 20
Respondent, Redwing Carriers, Inc, Creola, Alabama,
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Threatening employees with reprisals or loss of jobs
because they engage in union activities
(b) Soliciting employees to dissuade other employees
from supporting a union
(c) Creating the impression of spying on the union activ-
ities of employees
(d) Coercively interrogating employees about their
union activities
(e) Discouraging membership in Teamsters, Chauffeurs,
Warehousemen and Helpers Local Union 991, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Ind, or any other la-
bor organization, by discriminatorily discharging its
employees or by discriminating in any other manner with
respect to their hire or tenure of employment or any term
or condition of employment
(f) In any other manner, interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act
(a) Offer Byron Lowe immediate and full reinstatement
to his former position or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges and make him whole
for any loss of pay he may have suffered in the manner set
forth in the section of this Decision entitled "The Reme-
dy"
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records and reports, and all other records necessary to
analyze and compute the amount of backpay due under
the terms of this Order
(c) Post at its terminals in Creola, Alabama, and Pensa-
cola, Florida, and at all other places where notices to em-
ployees are customarily posted, copies of the attached no-
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
REDWING CARRIERS, INC 541
tice marked "Appendix " 21 Copies of the notice, on forms thereafter, in conspicuous places, including all places
provided by the Regional Director for Region 15, after where notices to employees are customarily posted Rea-
being duly signed by Respondent's authorized representa- sonable steps shall be taken by the Respondent to insure
tive, shall be posted by the Respondent immediately upon that the notices are not altered, defaced, or covered by any
receipt thereof, and be maintained for 60 consecutive days other material
(d) Notify the Regional Director for Region 15, in writ-
21 In the event the Board's Order is enforced by a Judgment of the United
ing, within 20 days from the date of this Order, what steps
States Court of Appeals the words in the notice reading "Posted by Order
the Respondent has taken to comply herewith
of the National Labor Relations Board" shall read "Posted Pursuant to a IT IS FURTHER ORDERED that the complaint be dismissed
Judgment of the United States Court of Appeals Enforcing an Order of the insofar as it alleges violations of the Act not specifically
National Labor Relations Board " found herein