The Motor Convoy, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1253 (N.L.R.B. 1980)

THE MOTOR CONVOY, INC
The Motor Convoy, Inc. and Ronald S. Walker.
Case 11-CA-8091
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 30, 1980, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, 2 as modified
herein.
Based on a charge filed on January 10, 1979, the
Administrative Law Judge found, and we agree,
that Respondent unlawfully discharged employee
Ronald Walker on September 8, 1978, because he
filed numerous grievances and complaints alleging
safety and contract violations.3 In addition, he
found that Respondent had previously threatened
to discharge Walker and other employees for filing
grievances and complaints against Respondent for
breaching a union contract or for violating Depart-
ment of Transportation safety regulations. The Ad-
ministrative Law Judge found these threats re-
' Respondent has excepted to certain credibility findings made by the
Administrative Law, Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
We have further considered Respondent's contention that the Administra-
tive Law Judge has evidenced a bias or at least an appearance of bias in
this proceeding We have carefully considered the record and attached
Decision and find these charges unsupported and without merit.
2 The Administrative Law Judge found in his remedy section that the
character of the unfair labor practices warranted a broad cease-and-desist
order However. we believe that the narrow "in any like or related
manner" injunctive language is appropriate in this case See Ilickrnlo
hoods. Inc.. 242 NLRB 1357 (1979) Since the Administrative Law Judge
inadvertently omitted this provision from his recommended Order, we
shall modify the recommended Order accordingly. The Administrative
Law Judge included the narrow language in his notice, and we therefore
do not alter it in that regard
straining and coercive in character and, therefore,
violative of Section 8(a)(1).
The events upon which the independent 8(a)(l)
violations are based occurred between January
1977 and late April 1978. These events were not
part of the charge or the complaint and were ap-
parently introduced by the General Counsel for
background purposes only. This conduct cannot be
the basis for unfair labor practice findings, since
the events occurred outside the 10(b) time period.
We therefore do not adopt the Administrative Law
Judge's findings of violations based on this pre-
10(b) evidence.
It is axiomatic, however, that, although Section
10(b) precludes finding a violation on the basis of
conduct occurring more than 6 months prior to the
filing of a charge, pre-10(b) evidence may be relied
on for the purpose of throwing light on and evalu-
ating the violation which occurred within the 10(b)
period. Alaska Marine Pilotage, Incorporated, 218
NLRB 76 (1975). Here, the Administrative Law
Judge found that Respondent discharged Walker in
violation of Section 8(a)(3) and (1) because he filed
numerous grievances and complaints alleging safety
and contract violations. In so finding, he credited
testimony that, immediately after discharging
Walker, Respondent's terminal manager said to
him, "Walker, I always told you I was going to get
you. .... now I've got you." We find the evidence
of threats against Walker and other employees for
filing grievances and complaints regarding safety
and contract violations significant in shedding light
upon Respondent's motive for discharging Walker.
Upon consideration of the background evidence for
that purpose, we find, in agreement with the Ad-
ministrative Law Judge, that Respondent discrimin-
atorily discharged Walker in violation of Section
8(a)(3) and (1) of the Act. 4
3 Based on the Administrative Law Judge's factual findings and based
on the analysis set forth in our recently issued decision in Wright Line a
Division of Wright Line Inc.., 251 NLRB No 150 (1980), we agree with
the Administrative Law Judge's ultimate conclusion that the discharge
was because of Walker's protected activity which consisted of the filing
of numerous grievances and complaints alleging safety and contract vio-
lations and was thus violative of the Act.
4 Respondent urges that the complaint is re judicata and that the
NLRB Casehandling Manual (Part One). Unfair Labor Practice Proceed-
ings. sec 10122 6, required the Regional Director to dismiss the charge
filed on January 10 1979. because it contained the same allegations found
in a charge filed on December 4 1978. which was dismissed. According
to the Associate Chief Administrative Law Judge. who denied Respond-
ent's motion to dismiss prior to the hearing a complaint issued on the
second charge in light of newly discovered evidence Moreover. we note
that the General Counsel has virtually unlimited control over the disposi-
tion of timely filed charges, and we will not interfere absent a showing of
abuse of discretion California Pacific Signs, Inc., 233 NLRB 450() 451
(1977): Silver Bakery Inc. of Newton 150 NLRB 421. 424-425 (1964).
We corrected certain inadvertent errors in the attached Decision
252 NLRB No. 175
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 3, and renumber the
succeeding Conclusions of Law accordingly.
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 modi-
fied below, and hereby orders that the Respondent,
The Motor Convoy, Inc., Winston-Salem, North
Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Delete paragraph l(a) and reletter the suc-
ceeding paragraph.
2. Insert the following as paragraph l(b):"(b) In
any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the
Act."
3. Add the following as paragraph 2(d):
"(d) Notify the Regional Director for Region 11,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with."
4. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER PENEI.I.O, dissenting:
I would defer to the arbitration award herein
with respect to the complaint allegation that Re-
spondent unlawfully discharged Ronald Walker.
The award is, in my opinion, in full compliance
with the Spielberg standards for deferral.5 My col-
leagues disagree and refuse to defer only because
they believe that evidence relevant to the unfair
labor practice allegation was not presented to the
arbitration panel. For reasons set forth fully in my
dissenting opinion in Suburban Motor Freight, Inc.,
247 NLRB No. 2 (1980), I would adhere to the
rule in Electronic Reproduction Service Corporation.
et al., 213 NLRB 758 (1974), by deferring to arbi-
tration decisions when no unusual circumstances
appear to justify the alleged discriminatee's failure
to introduce evidence of unlawful discriminatory
discipline during the arbitration proceeding. No
such circumstances exist in this case.
Walker was discharged on September 8, 1978,
and immediately filed a grievance. On September
19, 1978, a joint arbitration committee, pursuant to
a binding arbitration clause, denied the grievance
and upheld the discharge. At no time prior to the
filing of his first charge on October 24, 1978, did
:',Spwlhcrg ,1lrpurilcllurtnm (ppipUt, 1 2 NIRI 18() ( I955
Walker claim that he was discharged for union ac-
tivity, or allude in any way to the alleged state-
ments to him upon which my colleagues rely.
The Board majority's willingness to permit reliti-
gation of the discharge issue in spite of Walker's
unexplained failure to introduce evidence of the al-
leged unlawfulness of his discharge denigrates the
parties' collective-bargaining relationship and its
voluntary means for the fair resolution of disputes.
I find such a consequence totally indefensible and
would instead defer to the arbitration award and
dismiss the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in, or
activities on behalf of, Teamsters Local Union
391, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organi-
zation, by discharging and thereafter failing
and refusing to reinstate employees because
they filed grievances or complaints about our
practices which may, or in fact, violate safety
standards or the contract between the Union
and us.
WEI WIl.L NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise and enjoyment of the rights guar-
anteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILl. offer Ronald Walker immediate
and full reinstatement to his former position
or, if such position no longer exists, to a sub-
stantially equivalent position, without preju-
dice to his seniority or other rights and privi-
leges previously enjoyed, and WE WIll make
him whole for any loss of pay suffered by
reason of the discrimination against him, with
interest.
THE MOTOR CONVOY, INC.
DECISION
SIAFI'EMLNI O0F 1HI CASE
EIB.HRT D. GADSDEN, Administrative Law Judge:
Upon a charge of unfair labor practices filed on January
10, 1979, by Ronald S. Walker, herein called Walker or
the Charging Party, against The Motor Convoy, Inc.,
herein called Respondent, the General Counsel of the
National Labor Relations Board issued a complaint
1254
THE MOTOR CONVOY, INC
against Respondent on March 2, 1979, alleging that Re-
spondent threatened an employee with discharge for ex-
ercising the union grievance procedure, in violation of
Section 8(a)(1), and discharged and thereafter failed and
refused to reinstate said employee for exercising the same
rights under the union contract in violation of Section
8(a)(3) and (1) of the National Labor Relations Act as
amended, herein called the Act.
Respondent filed an answer on March 12, 1979, deny-
ing that it has engaged in any unfair labor practices as
alleged in the complaint.
A hearing in the above matter was held before me in
Winston-Salem, North Carolina, on June 18 and 19, 1979.
Briefs have been received from counsel for the General
Counsel and counsel for Respondent, respectively, which
have been carefully considered.
Upon the entire record in this case and from my obser-
vations of the witnesses, I hereby make the following:
FINI)INGS 01 FACt
I. URISI)ICTION
Respondent is now, and has been at all times material
herein, a North Carolina corporation operating under a
certificate of convenience and necessity issued by the In-
terstate Commerce Commission. Respondent is an inter-
state motor freight carrier engaged specifically in trans-
porting motor vehicles.
During the past 12 months, a representative period of
all times material herein, Respondent received gross rev-
enues in excess of $50,000 for services performed directly
outside the State of North Carolina and transported ma-
terials from the State of North Carolina to points direct-
ly outside the State of North Carolina, valued in excess
of $50,000.
The complaint alleges, the answer admits, and I find
that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. Hil- I.ABOR ORGANIZA I ION INVOI VI)
The Union involved herein, which is not in dispute, is
Teamsters Local Union No. 391, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
heusemen and Helpers of America, and is, and has been
at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III HI Al Il(;h1i) UNFIAIR AHOR PRACIICES
A. Background Facts
More specifically, Respondent, a motor freight carrier,
transports new automobiles, trucks, tractors, and some
used cars. Its headquarters is located in Atlanta, Georgia,
and it operates terminals located in Miami, Tampa, and
Jacksonville, Florida; Birmingham. Alabama; Atlanta,
Georgia; Columbia, South Carolina; Charlotte and Win-
ston-Salem, North Carolina; West Virginia; Virginia; and
Nashville, Tennessee. The controversy in this proceeding
involves only Respondent's Winston-Salem and Char-
lotte, North Carolina. terminals.
Operating from its terminals located in the above-de-
scribed 10 cities Respondent picks up the motor vehicles
at various railroad ramps and delivers them to dealers lo-
cated in North and South Carolina, Virginia, West Vir-
ginia, and Tennessee. On Respondent's drivers' seniority
list there are 455 truckdrivers. Approximately 130 of Re-
spondent's employees, of which 112 are truckdrivers,
work out of the Winston-Salem terminal.
At all times material herein, the following-named per-
sons occupied the positions set opposite their respective
names and have been, and are now, agents of Respon-
dent, acting on its behalf, and are supervisors within the
meaning of Section 2(11) of the Act:
Jimmy A. Creed
Wesley A. (Alex)
Shinult
Terminal Manager
Assistant Terminal Manager
Respondent and Teamsters Local Union No. 391, here-
after called the Union, were parties to a contract cover-
ing the period June 1, 1976, through May 31, 1979. The
Charging Party herein, Ronald Stanley Walker, herein
referred to as Ronald, Stanley, or Walker, was hired by
Respondent on June 21, 1976, and was discharged by Re-
spondent on September 8, 1978.1
13. Ronald Walker U'Working Tenure and Exercise of
Complaint Rights Pursuant to the Union Contract
Ronald Stanley Walker was employed by Respondent
as a truckdriver on June 21. 1976. He testified that in
January 1977 he was assigned a truckload that was 6
inches higher than the legal height prescribed by Depart-
ment of Transportation (DOT) regulations for travel
over the highways. In the presence of his brother,
Mitchell Walker, not employed by Respondent (who just
happened to be oil the dock at the time), and fellow
truckdriver Bruce Mathis, he said he complained to Ter-
minal Manager Jimmy Creed that sending a driver out
with an over-height load could cause someone to get
killed; that the contract covered the subject of over-
height loads; and that truckdrivers did not have to vio-
late DOT regulations Walker said Manager Creed re-
plied that the contract was going to get him fired one of
these days and there was not anything the Union could
do about it.
Testimony about Ronald Walker's complaints to Man-
ager Creed was given by fellow truckdriver Bruce
Mathis, who testified that in May 1977 a lift on Walker's
rig was damaged and the fluid line had broken. The fluid
drained out of the lift and was running down on top of
the cargo in the bottom crib. Creed and Walker were
discussing the problem and Walker was trying to explain
what happened. The conversation became heated and
Manager Creed told Walker he could be reprimanded
and Walker said he would take it to the Union. Creed
asked Bruce Mathis to send a mechanic to Walker's rig
and Creed told Walker to stay with his truck. Walker
said he wanted to call the union hall and Creed told him
if he called the union hall Creed would put him to walk-
I ith f.ici %t11 frth ahll I .re III)t dpu d . nd a ire 111c 1 111no IrI (tI t if)
thi r. cord
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. Manager Creed denied he said he would put Walker
to walking. Mathis described Ronald Walker's response
to managerial supervision as follows: Walker is an "out-
spoken type person. If you push him, he would push
back."
After returning from a trip on or about June 8, 1977,
Ronald Walker testified that Assistant Terminal Manager
Alex Shinult directed him to load his truck, although
Walker was not scheduled to drive until the next morn-
ing. He did not want to load his truck until the next
morning and he consulted with another truckdriver,
Union Steward George Washington, about the matter.
Washington told him that the contract precluded man-
agement from forcing him to load the truck before the
next morning, and if he wanted to go home, he could go
home. Walker went home and the next morning he was
called to the office of Manager Creed who gave him a
reprimand. Walker protested he was protected by the
contract for his failure or refusal to load the truck on the
prior afternoon. He further testified that the conversation
continued as follows:
A. ... other drivers let things slide around
here, why don't you?
I said, Mr. Creed, Motor Convoy expects me to
live up to my end of the contract and I expect the
same out of them.
Q. What else was said?
A. The contract, you're always hollering "con-
tract," that contract's going to get you fired sooner
than you think.
I believe that's the time he told me I was a Union
activist, or whatever that was, he said one of these
days I am going to take that contract and I am
going to stick it up your rear.
Manager Creed denied he made the above threatening
statements to Walker. However, the last allegedly threat-
ening statement by Creed was essentially corroborated
by Walker's brother, Mitchell C. Walker, Jr., who said
he was present at the terminal at that time.
A few weeks following the above-described incident,
on June 30, 1977, a discussion between Ronald Walker
and Manager Creed (in the presence of truckdriver Ste-
ward George Washington) resulted in an argument
during which Manager Creed discharged Walker.
Walker immediately went to the union hall and talked to
Bruce Blevins, secretary-treasurer of the Union. Blevins
called a telephone conference, including Creed, Walker,
and himself, during which Blevins told Manager Creed,
"let's just forget it and you two quit trying to piss on
each other and go to work." Walker was reinstated pur-
suant to an informal settlement between Respondent
Manager Creed and Union Secretary-Treasurer Bruce
Blevins.
Walker further testified that he complained to manage-
ment about contract violations or cited his rights under
the contract as follows:
In December 1977 he entered the office of Manager
Creed to complain about a matter, the substance of
which he could not recall, but in the course of complain-
ing he cited the union contract to Manager Creed. Man-
ager Creed told him the contract would not do him any
good, all it was going to do was to get him fired and there
was not anything anybody could do about it.
Walker further testified that in April 1978 Manager
Creed approached him and told him to shave his beard
and have his hair cut. Their conversation continued as
follows:
JUDGE GADSDEN: Then what did you say, if any-
thing?
THE WITNESS: I told him our contract covered
me that I could wear my hair and beard anyway I
wanted.
JUDGE GADSDEN: Was that the end of the con-
versation?
THE WITNESS: No, he said that contract is going
to get you fired and its going to be a whole lot
sooner than you think.
Although Manager Creed denied he made the latter
statement, fellow truckdriver Bruce Mathis essentially
corroborated Walker's testimony of the latter statement
made by Creed. Although Walker said the incident oc-
curred in April 1978 and Mathis recalls a similar incident
in March 1978, I nevertheless find Mathis' testimony cor-
roborative as to Creed's last statement, whether or not it
occurred in March or April. I credit Walker and Mathis
in this regard because I was persuaded by their demea-
nor and the logical consistency of the evidence on the
record as a whole that they were telling the truth.
About 2 weeks later, in the presence of Ted Cook,
Gary Shaw, Terry Martin, and two other fellow workers
whom he cannot now recall, Walker testified that the
following occurred:
A. We were sitting in the drivers' room that
morning, we'd all just got our trucks loaded and
were sitting around drinking coffee, filling out logs
and discussing our trips, which is normal procedure.
Mr. Creed walked in and said, well, everybody get
their trucks on the road. Me and Cook went over to
the telephone to call the Union and find out if Mr.
Creed could force us out.
Q. Then what happened?
A. Mr. Creed came back in and told us to get our
damn asses on the road and he said, you've got
three minutes to get your butt on the road. Cook
told him, he said, we're talking to the Union hall.
At which time Mr. Creed says, the Union hall is
going to get you both fired.
Q. Then what happened?
A. After going through all that I was upset and I
was half way sick anyway that morning, and I went
upstairs to turn my trip in. Mr. Creed followed me
upstairs screaming I don't know what at me, and I
told Tommy Hendricks, the dispatcher, that I was
turning my trip in sick. Mr. Creed said, you're not
sick because you've turned your trip in you're fired,
you quit. And he fired me for it.
The above testimony of Walker is essentially corroborat-
ed by fellow employee Ted Cook.
1256
THE MOTOR C()NV()Y, INC
Thereafter, Walker left the yard and went to the union
hall accompanied by Cook, and both filed grievances,
with respect to their discharge. After waiting about 2
months to go before the panel, Walker and Cook were
reinstated to their jobs in June 1978.
During his working tenure with Respondent, Walker
testified, he filed 12 grievances for personal harassment,
breaking DOT laws, hours worked for which he was not
paid, and unjust suspension. However, the record shows
that Walker filed three written grievances and many oral
complaints to management and to Union Secretary-Trea-
surer Bruce Blevins which the latter acknowledged
herein.
Walker further testified that on occasion he com-
plained to Creed, Shinult, or to the dispatcher about how
the cars were loaded on the trucks. He said there was
supposed to be so much clearance between the cars
when they were hauled and Creed would have them
loaded so that there may have been 1/2-inch clearance
between a bumper and a windshield, which on rough
road surfaces made damage to the cars inevitable. It was
this kind of loading about which he made numerous oral
complaints. Manager Creed would simply tell him if he
did not go out and break DOT laws he would fire him
on the spot and the Union could not do anything about
it.
On one occasion Walker said he complained to the dis-
patcher about the overload and requested that it be
changed, but the dispatcher refused to do so. He drove
his load out of the yard and contacted the first state
trooper he saw on the road and informed him that his
load was illegal. The trooper measured the height of the
load and gave him a citation which he returned to man-
agement upon his return to the terminal, telling manage-
ment he requested it. 2
Consequently, based upon the foregoing credited testi-
mony, I conclude and find that, under the direction of
Respondent's management, the trucks were so snugly
loaded that such loadings were frequently in violation of
the height limitations prescribed by DOT; that such
loadings were frequently the cause of damage to cargo in
transit; that such loadings were frequently the subject of
complaints primarily by Ronald Walker, but also by
other truckdrivers; and that the chronic complaints by
Walker, sometimes citing violations of DOT regulations
and provisions protecting truckdrivers under the union
contract, often provoked Manager Creed to make the
threatening statements to Walker and other employees as
follows:
2 I credit Ronald Walker's testimony. and discredit Manager Creed's
denials of his responses to Walker's continuous complaints about safety,
the legal height of loads prescribed by DOT regulations, the too snug
loading of the trucks which often contributed to cargo damage, and load-
ing directives from management which were in conflict with DOT height
regulations, and provisions of the contract between management and the
Union. I credit Walker's account not only because was persuaded by
his demeanor that he was testifying truthfully, but also because his ver-
sions were in part essentially corroborated by witnesses Ted Cook. Bruce
Mathis, and, in one instance, by his brother Mitchell Walker Mitchell
Walker's corroborative testimony is credited not only because he, too.
appeared to be testifying truthfully, but because the subject of his cor-
roborative testimony was essentially consistent with other threatening
statements made by Manager Creed in response to loading complaints by
Ronald Walker
1. The contract is going to get you fired one of
these days and there isn't anything the Union can
do about it.
2. That contract will not do you any good, all it
is going to do is get you fired and there isn't any-
thing anybody will be able to do about it.
3. If he [Walker] called the Union Hall, [Respon-
dent] would put him to walking.
4. Other drivers let things slide around the termi-
nal, why can't he'?
5. You Walker] are always hollering "contract,"
that contract's going to get you fired sooner than
you think. You are a "union activist."
6. 1 [Creed] am going to take that contract and
stick it up your rear [or words to that effect).
7. The Union Hall is going to get you both
[Walker and Cook] fired.
8. Discharge of Walker and Cook because they
contacted the Union Hall.
Since the credited testimony shows that Walker's nu-
merous complaints, formal (written) or informal (oral),
related to safety, legality (DOT regulations), and protec-
tive provisions under the union contract (when to load a
truck), such complaints by Walker (made on behalf of
himself and fellow workers alike) constituted protected
activity under the Act. Thus, Manager Creed's threaten-
ing responses to such complaints were restraining and
coercive in character and therefore were violative of
Section 8(a)(l) of the Act.
C. Ronald Walker's Accident and Discharge and
Truckdrivers' Modes of Operating the Hydraulic
System
On September 7, 1978, Walker made a delivery of two
units to City Motors, a Ford dealer in Salisbury, North
Carolina. After leaving City Motors, he passed through
an underpass at Klumac Road without incident. Howev-
er, when he proceeded to pass through an underpass lo-
cated at Julian Road and Interstate 85, his cargo struck
the underpass. He heard metal hit and glass breaking.
The truck on his load which struck the bridge was in
what is called the high spot or "craddle" of the trailer
delivery truck. He got out of the tractor cabin to investi-
gate the problem and noticed that the front part of the
craddle had voluntarily elevated nearly to its highest (4
feet) up position, while the lower part of the craddle and
the rear part of the high spot remained down. He called
dispatcher Tommy Hendricks in Winston-Salem and ad-
vised him of the damage.
Thereafter, Walker said he drove on to Kannapolis
where he hooked the hot wire to the trailer, jiggled it
around the selinoid and it became operational. He made
his delivery and proceeded on to Charlotte to make a de-
livery. When he got to Charlotte he had trouble with the
tailgate. He could not get the lift motor to operate the
tailgate. The yardman saw him having trouble and came
over and suggested he take it to the shop. The repair
was made about 30 minutes later. He unloaded his units
and returned to Winston-Salem. When he attempted to
sign in he was told by dispatcher Tommy Hendricks to
1 257
I)F' CISI()NS ()F: NAlI()NAI. I A()R RLATI()NS I()ARI)
go to the office to see Creed. Creed told him he would
be held off the delivery hoard and Walker went home.
Terminal Manager Jimmy Creed testified that, immedi-
ately after Ronald Walker reported his accident on Sep-
tember 7, he called and reported the incident to Vice
President Charles Bates, in charge of personnel and
labor, and Julia Jessup, in charge of safety. He said Bates
wanted additional information concerning the height of
the underpass struck by Walker's cargo, the severity of
the damage resulting therefrom, and Walker's driving
record. Consequently Creed said he held several conver-
sations with Bates on September 7 and 8 with respect to
the accident and the information requested. After several
conversations with Terminal Manager Creed, Vice Presi-
dent Bates testified he concluded that Walker's accident
resulted from his negligence, in that Walker either left
the lift valve open when he left the first dealership, or he
had failed to operate the hydraulic system properly,
causing the lifts to go up while in transit. Bates said he
therefore concluded after considering Walker's past driv-
ing record that Walker should be discharged.
As Walker himself testified, when he returned to the
terminal on September 8, Manager Creed informed him
that he was discharged and gave him a copy of the acci-
dent investigative report and his final paycheck. A letter
of discharge was sent to Walker several days thereafter.
Terminal Manager Creed further testified that on Sep-
tember 8, 1978, he contacted the Charlotte terminal and
talked with the mechanic, Frank Holloway, regarding
the operation of the selinoid and switches and the valves
on Walker's truck. He said Holloway told him he re-
placed the switches but did not check them before he re-
placed them because that is standard procedure. He said
it takes more time and costs more money to check the
switches than to replace them. After he replaced the
switches and reconnected the wires, the switches, selin-
oid, and lifts were operational. Holloway also acknowl-
edged he did not try operating the lifts before he
changed the switches because he saw Walker having dif-
ficulty with the equipment. Hence he took Walker's
word for it that the switches and selinoid were not oper-
ational and that they were the problem.
Creed said he then asked the Charlotte terminal man-
ager to send the switches which were replaced to the
Winston-Salem terminal to his attention. The switches
from the Charlotte terminal arrived at the Winston-
Salem terminal by truckdriver on approximately Septem-
ber II. Thereafter Manager Creed said he had his me-
chanic reinstall the switches removed from the truck pre-
viously driven by Walker and, thereafter, Manager
Creed, as did the mechanic, testified that the switches
were operational. Creed said he also told the new truck-
driver who replaced Walker, to watch the truck, make
sure everything was all right, and to give him a report
on its condition.
In a letter dated September 12, 1978, Ronald Walker
was advised by Respondent that his cargo damage
record was bad; that the pickup truck that was damaged
during the accident of September 7 was a total loss; and
that according to Respondent's rules and regulations he
was discharged. The letter did not cite the specific rules
and regulations referred to therein. It was signed "J.A.
Creed, Terminal Manager."
In reference to his operation of the hydraulic system
and his accident on September 7, 1978, Ronald Walker
further testified that when the master valve is open and
the other control valves are closed the hydraulic lift goes
down and stays down. He said he always shuts off the
master valve tightly when driving because that is the
way he was taught to do it by fellow truckdriver Buddy
Parker. The other valves he would just twist them but
not tightly. After the accident on September 7, 1978, he
noticed the valves had voluntarily turned some degrees
on their own and the motor had shorted out. He said the
lifts must operate to raise the truck but the lifts can go
down without the power of the motor.
Clarence Edward (Buddy) Parker, Jr., has been in the
employ of the Respondent for 11 years as a truckdriver.
lie testified he trained several drivers, including Ronald
Walker, and that his training mostly involved observing
Walker drive, unload, and load the rig. He acknowl-
edged he did tell Walker to keep all valves closed while
in transit. He described Walker's performance as an aver-
age driver. With respect to operation of the hydraulic
lifts, he said he is not sure that Respondent ever had a
particular policy on the position of the master valve.
However, he did hear rumors among the drivers that the
master valve should be kept open. He said if such a
policy or practice was ever in existance it has never been
enforced by Respondent. Later he acknowledged there is
a difference of opinion between the drivers and the Com-
pany as to whether the master valve should be left
opened or closed. There was never any dispute that the
individual valves should be closed and he said vibrations
from the operation of the trucks can cause the individual
valves to voluntarily open sometimes.
Terminal Manager Jimmy Creed testified that he di-
rected experienced drivers to train new drivers the best
way they knew how. He acknowledged he did not give
any specific instructions to the trainers as to how new
drivers should operate the hydraulic valves, although,
according to him, the main valve or master valve was to
be left open and all other valves closed during transit.
Respondent's witness, Shop Foreman for Maintenance
Raymond Sell, has been with Respondent for 17 years.
He testified that to secure the system, all of the valves
can be tightly closed including the master valve, or the
master valve can be open and all of the other valves se-
curely closed, and none of the lifts will raise. He denied
that the valves can vibrate open. He went on to testify
that a motor starter can short out if two wires touch
each other or if fluid or water gets to the wires. He said
2 years ago Respondent put a killswitch in 25 of the
trucks. Respondent also tried turning the starter switch
upside down so as to lessen the chance of water accumu-
lating around the switch. The killswitch cuts off all the
power which prevents any of the lifts from raising.
Truckdriver Robert Taylor has been driving for Re-
spondent for 3 years. He testified that when the selinoid
switch shorts out, it causes the starter motor to run,
which activates the hydraulic system on the trailer. If
the main valve is closed and another valve is open going
1 258
THE M()OT)KR C()NVOY, INC
to one of the lifts, that lift will raise. If the main valve is
closed and other valves are open, the starter will run
until it runs out. If the main valve and all other valves
are closed, the starter will run until it builds up enough
pressure and probably will burn itself out. Taylor stated
that 80 percent of the truckloads are loaded too tightly.
He has experienced shortouts causing the lifts to raise
and he has never seen a notice which directed drivers to
drive with the master valve open. Nor have they been
given any special instructions about how to operate the
valves with respect to leaving them open or closing
them. He leaves his master valve open while driving.:'
Manager Creed's Attitude Toward Union Contract
Complaints; Walker's Discharge
Edward Wilson was employed by Respondent as a dis-
patcher from September 1977 until April 30, 1978, when
he resigned. He testified that in the spring of 1978 he
overheard a conversation between Ronald Walker and
Jimmy Creed in the drivers' room. Present were fellow
employee Ted Cook and others. At that time Creed
asked Walker what was he doing there and Walker said
he was checking with the Union to find out whether he
could be forced out on a trip. Creed told Walker that
Walker worked for him, not for the Union, and ordered
Walker to get off the yard.
Wilson also testified that in the fall of 1978, after
Ronald Walker had had an accident with the truck, he
overheard an open discussion in the office among man-
agerial personnel (Alex Shinult, Tommy Hendricks, and
the first shift dispatcher). One of the people in the room
said Walker messed up that unit and Creed said, "We fi-
nally have him." Although Manager Creed said Wilson
worked on another shift and he did not see Wilson at the
terminal on that day the evidence does not establish con-
clusively that Wilson was not in fact there.
William Ted Cook further testified that in mid-July
1978 the following occurred:
A. I was sitting down there waiting on my truck
and Jimmy asked why didn't I take an extra rig and
I told him, you know, according to the contract,
the Union, or whatever, I could wait on a truck and
about that time my truck did clear the shop; so I
went out there and proceeded to load the truck and
Jimmy come out there checking loads like he usual-
3 I credit the fregoing testimony of truckdrivers Robert Taylor, Cla-
rence (Buddy) Parker, and Ronald Walker, and Respondent Shop Fore-
man Sell to the effect that Respondent did not establish or enfoirce a defi-
nite policy or practice as to whether drivers should operate their truck
with the master valve open or closed while n transit; that some drivers
drove their trucks with the master valse closed and others drole with it
open, that motlr and switch shorting out was and is a common ruck
malfunction on practically all of Respondent's trucks: and that a reason-
able explanation was made for driving with the master valve closed. Ad-
ditionally, neither Manager Creed nor Company Vice President Bates
disputed the several witnesses' description of what ill result if the
master valve were left closed Consequently, since Walker's testimony is
corroborated by Parker. Taylor, and, in part, by Shop Foreman Ray-
mond Sell. such testimony is and should he credited. Although Vice
President Bates said he made the decision to terminate Walker, I do not
credit his testimony in this regard because I was not persuaded that he
was telling the whiole truth, since an abundance of the credited record
evidence clearly shows, infra. that said decision w;as made lolnily ith,
or upon the instigation of. Manager Creed
ly does, just walking around he come up to me and
said, there's no driver around here that's worth 47
cents a mile of $9.07 an hour he told me also, if you
would do just like these other drivers instead of
messing with the Union you'd be a whole lot better
off.
Manager Creed denied he made the latter statement.4
D. Truckdrircrs' Accidents Cargo Damage. and
Disciplinary Action
Truckdriver Willis R. Richardson was a truckdriver
for Respondent for 15 years until April 25, 1979, when
he was discharged. He testified that he received 8 or 10
reprimands for cargo damage and he had one major
damage at a cost of $1,500 to $2,500 within the last 2 or
3 years when he struck an underpass. He received at
least a 3-day suspension. The case went to court and he
was found not guilty.
Roger Virden was employed by Respondent for a year
and a half as a truckdriver. He testified that he received
12 to 20 reprimands, the majority of which were for
minor cargo damage. He said he struck an underpass on
May 31, 1979, and received "a minor chargeable acci-
dent," with no other disciplinary action. The damage
was minor.
Lester Blanton has been in the employ of Respondent
since 1962 as a truckdriver. He testified that he has re-
ceived 20 to 25 reprimands since May 1976, most of
which were for minor cargo damage, three times with an
underpass. In one instance he said he tore the top off of
two pickup trucks and damaged the corner of the bed of
his rig. He received a 7-day layoff for the pickup truck
damage in April 1976 when it was a total loss. He had
another accident in May 1976 when a pickup truck was
damaged at total loss. He was discharged but took it to
the union arbritration and was reinstated on May 24,
1976, with no backpay. For his accident in April 1979,
when he damaged the bed, he received a major charge-
able accident with no time off.
Truckdriver Clyde Rufus Pickrell has been in Respon-
dent's employ 14 years. He testified that he had three ac-
cidents with bridges, one caused by shorting out of the
hydraulic lift motors in October 1975. There was damage
to a Lincoln Mark IV (rear glass shattered and the roof).
He received no disciplinary action.
Truckdriver Bruce Mathis has been in the employ of
Respondent 14 years as a truckdriver and testified that
he had 10 or II accidents of which 6 involved cargo
damage. One accident was in the summer of 1978 when
he struck an underpass as a result of the cargo being
loaded too high. Three pickup trucks on the top were
damaged and the middle car was a total loss, according
to Shinult. He did not receive a reprimand or warning
4 credit the foregoing testimonial accounts of truckdrisers Edward
Wilson and William ('Ted) Cook, with respect to Manager Creed's re-
marks, "We filnally have him." and Creed's suggesimon that Cook stop
"messing" wilh the Union I credit the above versions because I was per-
suaded not only by the witnesses' demeanor on the stand, but also be-
cause the record is rplete ssith reldence of Creed's desire and efforts to
get rid of Walker. as sell as the several antunimon or uncomplimentary
remarks about the Union by Creed
1259
DECISIONS OF NATIONAL LABOR RELATI()NS BOARD
for this accident. Creed was terminal manager at the
time but Creed denied he had any knowledge of the ac-
cident because it was apparently not recorded. Mathis
acknowledged that he did not complete a cargo accident
report or any report. However, Mathis acknowledged he
received a reprimand in the form of a 3-day layoff on
Thursday prior to this hearing. He said the accident re-
sulted from snug loading of cargo and he had told dis-
patcher Tommy Hendricks that he did not have turning
room. He said snug loading is a common practice and he
had trouble (malfunctions) with his rig (truck) about
once a week. The hydraulic lift is a common problem in-
volving the starter buttons shorting out and Respondent
has been trying to remedy the problem by ordering new
trucks with a new and different power system.
Record Evidence
Mathis' record shows the following:
12/27/78 24-hour layoff
12/29/78 Layoff suspended, 1978
03/05/79 1 day-layoff
02/27/79 3 day-layoff, suspended
06/14/79 3 day-layoff
Manager Creed testified that other employees dis-
charged or for laid-off cargo damage were: (I) Gad-
frey-resigned rather than be discharged; (2) Leslie
Rouse-discharged or resigned; (3) Tucker-discharged;
(4) Rhodes, L.R.-hit an underpass; (5) David Benjamin
Roberts-discharged; (6) Roger Virden-struck an un-
derpass-received time off, employed 9 years by the Re-
spondent; (7) Gary Crawford-discharged-hit under-
pass; (8) W. R. Richardson-laid off for hitting an under-
pass. He had 15 years of service and no disciplinary
action was given. The damage was $15.
Creed said the first time he learned that the valves
were a problem was when Clyde Pickrell had an acci-
dent. He said Pickrell was not given a reprimand because
the motor was replaced.
Robert Taylor has been in the employ of the Respon-
dent for 3 years. He testified that during that period he
received reprimands on January 10, 1978, and on No-
vember 10, 1978, for cargo damage. Both reprimands
contained a notation: "May I remind you that future vio-
lations of these rules and regulations will result in more
severe disciplinary action." In the first accident, referred
to above, he said there was a broken windshield and in
the second accident two small indentations were im-
pressed in the cab of a truck. He also said the average
truckdriver will have minor cargo damage on two out of
six trips; and that the most frequent cause of minor cargo
damage is loading cars too close, one to the other, in
order to get them on the truck. The closeness of the
loading on his truck was the cause for both accidents
and reprimands. He has complained about the cars being
too closely loaded, and that management will allow them
to reload or to reduce the load 2 times out of 10 requests
to do so.
Respondent's unopposed motion to correct the tran-
script is hereby granted. Also, having found that the cor-
rections to the transcript submitted by the reporting
company to be correct, I hereby adopt them.
Analysis and Conclusions
Respondent argues in its brief that further consider-
ation of the merits of Walker's discharge in this proceed-
ing is precluded under the Spielberg Manufacturing Com-
pany. 112 NLRB 1080 (1955), principle, because Respon-
dent's truckdriver-employees were covered by article 7,
section 8(c), of the National Master Automobile Trans-
porters Agreement and the Eastern Conference Area
Truckaway, Driveaway, Yards and Shop Supplement.
As pertinent therein, article 7, section 8(c), provided as
follows:
Any decision of any Joint Arbitration Commit-
tees referred to above, shall be final and conclusive
and binding upon the Employer and the Union, and
the employees involved.
In Spielberg, supra, the Board held that in advancing
the desirable objective of encouraging the voluntary set-
tlement of labor disputes the Board will recognize an ar-
bitrators' award where the following standards are met:
(1) The proceedings have been fair and regular; (2) all
parties have agreed to be bound by the award; (3) the
decision of the arbitration panel is clearly not repugnant
to the purposes and policies of the Act.
The record shows that Ronald Walker filed a griev-
ance pursuant to the above-cited section against Respon-
dent for his discharge. A hearing was held before the
Eastern Conference Area Arbitration Panel on Septem-
ber 19, 1978. Walker was present and represented by
Local 931's secretary-treasurer, Bruce Blevin. Respon-
dent shows that the proceedings therein appeared to
have been fair and regular. However, the evidence of
record fails to demonstrate, as counsel for the General
Counsel argues, that the unfair labor practice charge,
whether Walker was in any way discharged for union or
concerted activity, was neither presented nor decided, as
required. Ford Motor Co., 151 NLRB 1462 (1965), and
Monsanto Chemical Co., 130 NLRB 1097 (1961). Since
the evidence does not establish the third criterion set
forth by Spielberg, supra, it cannot be determined wheth-
er or not the decision of the Arbitration Panel is repug-
nant to the purposes and policies of the Act. Consequent-
ly, such failure of the evidence does not render the Spiel-
berg principle applicable to the facts herein, nor pre-
cludes this proceeding from litigating the merits of Walk-
er's discharge. Ford Motor Co., and Monsanto Chemical
Co., supra.
I find that Manager Jimmy Creed made numerous
threatening statements to Ronald Walker and other em-
ployees as previously enumerated above, in violation of
Section 8(a)(1) of the Act. The evidence describing
Walker's accident on September 7, 1978, and the events
preceding and including his discharge by Respondent on
September 8, 1978, is essentially free of conflict. While
the evidence shows that Walker had prior accidents in-
volving cargo damage, so did it reveal the driving re-
cords of other truckdrivers who were involved in several
accidents with resulting cargo damage.
In this proceeding, Respondent contends that it dis-
charged Walker on September 8 because, having consid-
1260
THE MOTOR CONVOY, INC.
ered Walker's past driving record, involving accidents
with cargo damage, it received the investigative report
of the accident and concluded that the September 8 acci-
dent was occasioned by Walker's negligence. By "negli-
gence," Respondent said it meant Walker either left the
truck 's lift valve open when he left his first stop, or he failed
to operate the hydraulic system properly, thereby causing the
lifts to elevate while the truck was in transit.
Hence the primary issue raised by the evidence for de-
termination herein, is:
Did Respondent discharge Walker on September 8
because of his past driving record and because it
honestly believed the accident was caused by Walk-
er's negligence, or was Respondent's decision to dis-
charge him based solely, or in part, upon Walker's
numerous complaints (grievances, oral or written)
asserting safety violations of DOT regulations or
truckdrivers' rights protected under the contract be-
tween the Union and Respondent?
In answering this question, the credited evidence of
record as a whole must be kept in mind, and Respon-
dent's past threatening conduct in violation of Section
8(a)(1) cannot be divorced from considerations in deter-
mining its motive for discharging Walker. Thus, in ad-
dressing Respondent's first contended reason of negli-
gence for discharging Walker in the shadow of its prior
manifested union animus, translated through its coercive
and restraining conduct, it is observed that Respondent
first assumed that Walker must have left his lift valve
open. In this regard, it is noted that Respondent did not
specify which lift valve to which it made reference.
However, an analysis of the credited evidence clearly es-
tablished that Respondent had no established policy as to
whether any of the valves were to remain open or closed
during transit. Drivers were not given any specific
instructions from management regarding the position of
the master valve during transit.
With respect to practice as contrast to policy, it was
clearly established that as a matter of practice some driv-
ers drove with the master valve open while others, in-
cluding Walker, drive with it closed, as he was taught by
truckdriver Clarence (Buddy) Parker. At the time of the
September 7 accident, Walker said he had closed the
master valve as he always does. There was no dispute
among the driver witnesses, including Walker, that as a
matter of practice the individual valves are closed in
transit at all times. Walker maintained he closed all of his
valves and that all of said valves were closed at the time
of the accident.
Additionally, the evidence is virtually without conflict
that shorting out of switches and selinoid were common
and relatively frequent in occurrence. After the accident
the corroborated evidence shows that Walker was
having a problem getting the tailgate and lifts on his
truck to operate while at the Charlotte terminal. Termi-
nal mechanic Holloway saw Walker having difficulty op-
erating his lifts and took his word for it that the lifts
were not operating properly. Holloway changed the
switches and selinoid and the hydraulic system became
operational. Walker thereupon returned to the Winston-
Salem terminal. When he arrived, the Company had al-
ready undertaken an investigation of the accident and he
was told he was not scheduled to drive so he went
home. When Walker reported to work the next morning,
September 8, Creed informed him that he was dis-
charged, and said, "Walker, I always told you I was
going to get you. . . . now I've got you."5
Moreover, the record is unequivocally clear that
Ronald Walker appeared to be a strict constructionist of
employees' contractual protections and a chronic com-
plainer about what he thought constituted infractions of
them by Respondent. The evidence also shows, as any
reader of the facts might expect, that Walker was an an-
noying thorn in Creed's side, as the latter's reactions
thereto illustrated above. It is clear that Creed wanted to
get rid of Walker. In this respect, the evidence further
shows the extent of Creed's involvement in the investiga-
tion of the accident and the several conversations held
with Vice President Bates on the fruits of the investiga-
tion and Walker's driving record. When these factors are
borne in mind while recalling Creed's union animus and
8(a)(1) conduct hereinbefore found, it may be reasonably
inferred that Creed was instrumental, if not solely re-
sponsible, for bringing about Walker's discharge.
The above conclusions are further substantiated when
it is observed that Creed went to great lengths after the
discharge of Walker to establish that the switches and se-
linoid replaced on Walker's truck at the Charlotte termi-
nal were not defective, but were operational. However, I
find Respondent's evidence in this regard self-serving,
not only because I do not credit Creed's testimony but,
also, because the Winston-Salem mechanic who rein-
stalled the switches and selinoid on Walker's truck, had
no way of knowing, and the evidence does not conclusively
show, that they were the same equipment removed from
the truck at the Charlotte terminal. As eager as Creed
was to get rid of Walker, it is possible he could have
given the mechanic switches which were operational.
In any event, assuming, arguendo, that the switches
and selinoid were operational, such fact could not have
had a causative bearing on Respondent's reason for dis-
charging him.
With respect to Walker's driving record (involving
cargo damage), counsel for the General Counsel pro-
duced several witnesses (some of whom are currently
employed by Respondent and some who are not) who
testified to having had several (in some instances, consid-
erably more than Walker) accidents involving cargo
damage. For such accidents some of them received repri-
mands and/or several days' suspension, while others re-
ceived no disciplinary action at all. More significantly,
none of them was discharged as was Walker for acci-
dents involving cargo damage. In fact Walker was the
first nonprobationary employee ever discharged for an
accident involving cargo damage. Respondent attempted
to explain the discrepancy between its disciplinary action
taken against Walker as compared with its actions taken
s Walker's testimony to this remark by Creed was credited because it
is consistent with all of Creed's credited threats to discharge him, and
because a similar remark by Creed, "We finally have him," was over-
heard by credited witness Edward Wilson herein
1261
DECISIONS OF NATIONAL. IABO()R RLATIONS 13()ARD
against other truckdrivers for accidents involving cargo
damage. However, I find no significant difference be-
tween the driving records and the disciplinary actions
imposed against such drivers and the disciplinary action
imposed against Ronald Walker, except, some of the
other truckdrivers had considerably more cargo damage
accidents than did Walker and were not discharged
therefor.
Finally, it becomes clear that Respondent's discharge
of Ronald Walker on September 7, 1978, was substantial-
ly, if not totally, motivated by Walker's union activity in
filing oral and written grievances pursuant, or purported-
ly pursuant, to the union contract and Walker's assertion
of rights thereunder. Respondent's contention that it dis-
charged Walker for cause (negligence and a poor driving
record) in now clearly exposed as a pretext, advanced by
Respondent in an effort to conceal the real reason, Walk-
er's chronic complaints about safety and his assertion of
rights, and filing of grievances and complaints pursuant
to the contract (Certainly protected concerted or union
activity). As such, the discharge of Walker was discrimi-
natory and violative of Section 8(a)(1) and (3) of the
Act.
Assuming that Ronald Walker was in fact a poor and
incompetent employee, the issue presented for determina-
tion is not whether he was in fact a poor and incompe-
tent employee but, rather, whether Respondent dis-
charged him because he was a poor and incompetent em-
ployee, or whether Respondent's discharge of him was in
any way motivated by his protected union and/or con-
certed activity in filing grievances and making com-
plaints to management pursuant to safety or to provisions
in the union contract.
IV. TII1 IFIC IS OFT HI. UNF AIR l.ABOR PRACTICIES
UPON COMMERCE
The activities of Respondent set forth in section I11,
above, occurring in close connection with its operations
as described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
TH RMDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall rec-
ommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies
of the Act.
It having been found that Respondent on several occa-
sions interfered with, restrained, or coerced its employ-
ees in the exercise of their Section 7 rights, by threaten-
ing them on several occasions with discharge for repeat-
edly filing grievances or complaining about safety infrac-
tions of, or asserting employees' rights under, the con-
tract between the Union and Respondent, in violation of
Section 8(a)(3) and (1) of the Act; and that it discrimina-
torily discharged employee Ronald Walker and thereaf-
ter failed and refused to reinstate him to employment be-
cause he filed numerous grievances or complaints with
management about what he believed to be safety and
contract violations, in violation of Section 8(a)(1) of the
Act, the recommended Order will provide that Respond-
ent make Ronald Walker whole for any loss of earnings
within the meaning and in accord with the Board's deci-
sion in F: W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977),
except as specifically modified by the wording of such
recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other
manner interfering with, restraining, or coercing employ-
ees in the exercise of their rights guaranteed by Section 7
of the Act.
Upon the basis of the above findings of fact and upon
the entire record of this case, I make the following:
CONCI.USIONS OF LAW
1. The Motor Convoy, Inc.. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters Local Union 391. affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening Ronald Walker on at least five occa-
sions that, because of his complaints about Respondent
violating Department of Transportation safety regula-
tions and/or the union contract, Respondent would dis-
charge him, Respondent violated Section 8(a)(1) of the
Act.
4. By discriminatorily discharging Ronald Walker on
September 8 because he continued to file grievances and
complaints against Respondent for allegedly or in fact
violating safety regulations and provisions of the con-
tract between Respondent and the Union, Respondent
violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 6
The Respondent, The Motor Convoy, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Repeatedly threatening employees with discharge if
they file grievances or complaints about Respondent's
practices which may, or in fact, violate safety standards
or provisions of the contract between Respondent and
the Union.
In the event no exceptions are filed as provided by Sec 1(12.46 of
Rules and Regulations of the National Labor Relations Board, the find-
ilgs, conclusions, and recommended Order herein shall, as provided in
Sec 102 48 o)f the Rules and Regulations. hbe adopted by he Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deenied waived for all purposes.
1262
THF MO)1TOR CONV()Y, IN(C
(b) Discouraging membership in, or activities on behalf
of, Teamsters Local Union No. 391, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by discharging employees because
they file grievances or complaints about Respondent's
practices which may, or in fact, violate safety standards
or provisions of the contract between Respondent and
the Union.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Ronald Walker immediate and full reinstate-
ment to his former position of truckdriver held on Sep-
tember 7, 1978, or, if such position no longer exists, to a
substantiallly equivalent position, without prejudice to
his seniority or other rights previously enjoyed, and
make him whole for any loss of earnings suffered by
reason of the discrimination against him, with interest, in
the manner described in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at Respondent's plant and places of business
located in Winston-Salem, North Carolina, the attached
notice marked "Appendix." 7 Copies of said notice, on
forms provided by the Regional Director for Region 11,
after being duly signed by Respondent's authorized rep-
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by Respondent for hO
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
7 In the eent this Order is enforced by a Judgment of the United
States Court of Appeals. the .ords in the notice reading. "Posted hy
()rder of the National Labhor Relations Board" shall read "Posted Pursu-
ian Io a Judgment of tihe United States Court of Appeals lnfoircing an
Order of the National I.abor Relations Board"
12h3