Vernon Livestock Trucking Co.Download PDFNational Labor Relations Board - Board DecisionsSep 4, 1968172 N.L.R.B. 1805 (N.L.R.B. 1968) Copy Citation VERNON LIVESTOCK TRUCKING CO. Vernon Livestock Trucking Co. and Line Drivers, Local 224, International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America . Case 21-CA-7719 September 4, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 3, 1968, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not committed certain other unfair labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Deci- sion and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exception, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as herein modified. We agree with the Trial Examiner's conclusion that the record does not establish that the Respon- dent violated Section 8(a)(3) of the Act in connec- tion with the termination of Billington's employ- ment on August 8, 1967. Billington's truckdriving derelictions of July 29, 1967, which necessitated a major repair costing approximately $2,000, and his conduct between July 31 and August 3, during which period he failed to pick up a load of cattle and the Respondent was unable to contact him, gave the Respondent adequate cause to discharge him on August 4. The Union was instrumental in obtaining Billington's reinstatement thereafter, and on August 8, as found by the Trial Examiner, Billington accepted the Respondent's offer to pay him $500 to quit his job. However, like the Trial Examiner , we find that the Respondent's offer and 1805 inducements were not motivated by antiunion con- siderations. Although we note the testimony, which the General Counsel cites in his exceptions but which was not mentioned by the Trial Examiner, in- dicating that the Respondent's president may have been displeased with Billington's filing of a grievance with the Union, we conclude that the General Counsel has failed to sustain his burden of proof by a preponderance of the evidence that the employee's recourse to the Union was a motivating factor in his termination. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the Respondent, Vernon Livestock Trucking Co., Los Angeles, California, its officers, agents , successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. ' See American Poultry and Egg Company, 144 NLRB 650, 664-665 In reaching our decision , we do not rely on those portions of the Trial Ex- aminer 's discussion of the law or speculation concerning the acts which are unnecessary to our determination TRIAL EXAMINER 'S DECISION HENRY S. SAHM, Trial Examiner: Upon a charge filed on August 18, 1967, by Line Drivers, Local 224, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, herein called the Union, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 21, issued a complaint, dated September 28, 1967, against Vernon Livestock Trucking Co., hereinafter referred to as both the Company and the Respondent. The com- plaint alleges the Respondent committed unfair labor practices when it discriminatorily discharged Floyd R. Billington because he engaged in "union or other protected concerted activity ... or other mutual aid or protection" in violation of Section 8(a)(3) of the Act. The complaint also charged that Respondent's president and dispatcher both unlawfully interrogated and threatened employees in violation of Section 8(a)(1). Respondent's answer avers that after Billington was discharged for "incerating" a truck, abandon- ing another truck, dishonestly claiming he was sick, and failing to notify the Company he would be una- ble to pick up a load of cattle he was rehired at the insistence of the Union and thereafter worked until he voluntarily quit his job. Moreover, states the answer, after his discharge, neither Billington nor the Union demanded his reinstatement until the Union filed a charge with the Board. 172 NLRB No. 213 1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel's motion to correct the transcript, filed on January 3, 1968, is hereby granted in the absence of objections. On December 5, 6, and 7, Trial Examiner Henry S. Sahm held a hearing with respect to the issues at Los Angeles, California. Upon the conclusion of the taking of testimony, counsel for the parties filed briefs on January 12, 1968, which have been fully considered. Upon the entire record in the case and from ob- servation of the witnesses,' there are hereby made the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a California corporation employ- ing approximately 23 men engaged in the interstate transportating of cattle with its principal place of business in Los Angeles, California. It annually derives gross revenues in excess of $50,000 from interstate transportation. The allegations of the complaint as to the nature and extent of Respon- dent's business, which is admitted by the answer, are found to be facts, and, therefore, it is concluded that Respondent is an employer engaged in com- merce and in business affecting commerce. II. The Labor Organization Involved It is conceded and found that Line Drivers, Local 224, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, the Union named in the caption, is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Testimony-8(a)(3) Floyd Billington , the alleged discriminatee, was employed by Respondent Company as an extra driver from March 6, 1967, to August 8, 1967 2 The Company has had a collective- bargaining agreement with the Union since October 1, 1957. The then current agreement, which was due to ex- pire on March 31, 1967, provided that all new em- ployees shall join the Union 31 days after they com- mence working for the Company .3 Billington Joined the Union around April 21, 1967. On Saturday, July 29, 1967, Billington, while driving a company truck, called in from Indio, California, to report to Respondent that the truck had broken down. Subsequent examination of the truck revealed that it had been driven without water (although there were two heat indicators on the tractors-a flashing warning light and a tem- perature gauge), causing the motor to become overheated, burning out five pistons of the engine, spitting the head, and necessitating a major over- haul of the motor in the amount of approximately $2,000. The next day, Sunday, July 30, Billington left the company premises at 9 p.m. in an empty truck with instructions to proceed to Maricopa, Arizona, pick up a load of cattle in the morning, and return the cattle to Los Angeles for slaughter. The normal driving time to Phoenix is approximately 9 hours; and to Maricopa, 30 miles beyond Phoenix, about an hour. Billington arrived at Phoenix on July 3 1, at approximately 6 a.m On Monday, July 31, about noon, when L'Ecluse, president of the Respondent Company, was at lunch and Steele, the dispatcher, at home, Jim Jones, the "washboy" at Respondent' s terminal, received a telephone call from Phoenix, Arizona, from Billington 's brother-in-law who stated, "he had taken Mr. Billington to the hospital. He was sick and he wouldn't be able to pick up his load." It is uncontradicted that Billington 's instructions from the Company were to notify both the place where the cattle were to be picked up and also Respondent in the event he was unable to load the cattle at the regularly scheduled time of pickup. The regular loading time is " in the morning." Upon L'Ecluse's return from lunch, Jones gave him the message . When Billington 's brother-in-law telephoned, he had left no message as to where Billington could be reached. L'Ecluse, not knowing where he could be contacted, telephoned Billing- ton's wife to ascertain if she knew where he could be reached. She told L'Ecluse she had not heard from her husband but gave him her brother- in-law's address in Phoenix. She too was unable to contact Billington or her brother- in-law on July 31. L'Ecluse then telephone Lester Goekler, the Company's Phoenix representative, and related to him what had occurred and requested him to at- tempt to locate Billington and the truck. L'Ecluse told Goekler that Billington "was supposed to have either been hurt or sick and was in the hospital or the doctor's office, from the word that he had heard." Goekler thereupon contacted all the hospitals in Phoenix and when this proved unsuc- cessful, he drove to the home of Billington's brother- in-law in Phoenix, whose address Billing- ton's wife had given L'Ecluse. When Goekler ar- rived at the brother-in-law 's home about 2 p.m., he was not there but Goekler was informed by his daughter that Billington and her father had used their next door neighbor's telephone to call the Respondent Company and then they had left by au- tomobile but that she did not know where they had gone. As Goekler left the home and walked toward ' N L R B v Dixie Gas, Inc , 323 F 2d 433, 435-437 (C A 5) 2" Extra" drivers were assigned " runs" when there were an insufficient number of regular drivers available to operate the trucks If and when they obtained sufficient seniority, they were regularly assigned to better established routes See para 20 , sec 1, G C Exh 5 ' Article 3(b), p 5, G C Exh 4 VERNON LIVESTOCK TRUCKING CO. his car, he found the company truck parked next to and on the wrong side of the shoulder of the street, near an auto wrecking yard, two houses away from the home of Billington 's brother-in-law.4 Goekler immediately telephoned L'Ecluse who told him to leave a note for Billington on the truck windshield notifying him not to move the truck. Goekler then returned to the home of Billington's brother-in-law about 4 p.m. and was told by the same girl he spoke to before that her father had not returned home since Goekler last spoke to her. The following day, Tuesday, August 1, Leah Billington , the alleged discriminatee's wife, phoned Phoenix in an effort to locate her husband. She spoke to the next door neighbor of her brother-in- law (as he did not have a telephone) and asked them to call her brother-in-law or his wife to the phone. The neighbor went next door and upon her return informed Mrs. Billington that neither her brother-in-law nor his wife were at home. After this phone conversation, Mrs. Billington and L'Ecluse spoke on the telephone about 1 p.m. and she told him she had not yet heard from her husband. Dur- ing this conversation, L'Ecluse told her that her husband was fired. Two hours later, about 3 p.m., Billington telephoned his wife but she neither com- municated this fact to L'Ecluse nor told him where her husband could be reached in Phoenix. On Thursday, August 3, 4 days after Billington had left for Phoenix, he returned to Los Angeles by air- plane. On Friday, August 4, Billington went to the Respondent Vernon Livestock Trucking Company and spoke to Ed Steele, the dispatcher-5 Steele notified Billington he was fired for leaving his truck in Phoenix, not notifying the Company as soon as he should have where he was, and not picking up the cattle. Billington then requested, and Steele gave him, his paycheck for the money which the Respondent owed him.6 The same day, Friday, August 4, Billington called the Union and spoke to MacDivot, a union official, who advised him not to sign a voluntary quit slip if the Company should demand it. It also was ar- ranged that Yandell and Dyer, two of the union of- ficials, would meet him at Respondent's terminal the following Monday, August 7. When they arrived there, Yandell and Dyer went into L'Ecluse's office, but Billington remained out- side. Yandell, the union official, asked the reason for Billington's discharge. L'Ecluse replied it was 'See Resp Exh No I S Steele is a member of the Union herein but when he became a super- visor, the Union issued him a withdrawal card which means he had withdrawn from membership in the Union in good standing but is entitled to readmission upon complying with certain provisions L'Ecluse had previously instructed Steele to tell Billington when he showed up that he was fired because he had abandoned the truck , had not notified the Company, and "left us in a very precarious position with a very valuable customer " r Article 12, p 4 (G C Exh. No 5), provides in pertinent part The Employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at 1807 because of his repeated serious derelictions of duty in the past which culminated in his abandoning his truck in Phoenix a week ago and his failure both to pick up the cattle and notify the Company which resulted in alienating his customer and causing the Company financial loss. The union officials notified L'Ecluse that he could not fire Billington because this was not a dischargeable offense under the con- tract (which had expired on March 31), as article 12 of the collective-bargaining agreement first required that the Company give Billington "a warn- ing notice."7 Yandell, secretary-treasurer of the Union, then demanded that L'Ecluse rescind his discharge of Billington, rehire him with full seniori- ty, compensate him for all time lost, and reimburse him for his air fare from Arizona. L'Ecluse acceded to all the Union's demands. The union officials left the office and told Billington, who was waiting out- side L'Ecluse's office, what had transpired and that he was rehired. Billington returned to work the same day and was dispatched to Somis, California. The following day, August 8, when Billington re- ported for work after returning from his Somis trip, he had a conversation with L'Ecluse in his office. After some discussion, Billington signed a voluntary quit slip or termination notice in consideration of and upon receipt from L'Ecluse of $500 in cash and a check for approximately $150 to cover his plane fare from Phoenix to Los Angles, vacation pay, holidays, and his run to Somis the previous day. L'Ecluse immediately mailed to the Union the quit slip which had been signed by Billington. General Counsel's Exhibit 7. The following day, August 9, Billington went to the Union's offices and gave them a written state- ment which counsel for the Union later mailed to the Regional Offices of the Board This was fol- lowed by the Union's attorney, 5 days later, on Au- gust 14, drafting an unfair labor practice charge which was received by the Regional Office on Au- gust 18.8 The charge alleged Respondent violated Section 8(a)(3) and (5) of the Act by discriminat- ing against Billington and by refusing to bargain with the Union. Yandell, the union officer, testified that, sub- sequent to the time the charge was filed, he told L'Ecluse the Union would withdraw its pending un- fair labor practice charge if L'Ecluse would agree not to discriminate against its members. It was stipulated that the Union never filed a grievance on least one (1) warning notice of the complaint against such employee to the employee in writing, and a copy of the same to the Local Union affected, except that no warning notice need to be given to an employee before he is discharged if the cause of such discharge is dishonesty or drunkenness, or recklessness resulting in serious accident while on duty, or the carrying of unauthorized passengers Article 12 also provides for an appeal from the discharge and if no decision is reached within 30 days the case shall then be taken up as provided for in Article 8 of the Western States Area Master Freight Agreement," which provides for a grievance procedure See G C Exh 4, p 19 1 G C Exh 1(a) 1808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Billington 's behalf as provided in article 12 of the contract, supra, page 4, footnote 7. On August 22, the employees voted to retain arti- cle 12 and to reject a company proposal which would have repealed section 12 of the contract and in its stead provide that in the event of disputes in- volving the discharge or suspension of employees, the controversy shall be decided by an arbitrator.' On September 12, 1967, the Company and Union, which had been holding negotiating sessions since March 1967, executed a new 3-year collec- tive -bargaining agreement . On September 28, the General Counsel by the Regional Director issued a complaint which came on for hearing on December 5, 1967. B. Contentions The General Counsel does not allege the August 4 discharge was a violation; only the termination on August 8. His theory is that Billington was con- structively discharged on August 8 because Respondent forced him to resign for the following antiunion considerations: ( 1) his filing a grievance with the Union; (2) his refusal to vote for the Com- pany's arbitration proposal;" and (3) Respondent's desire to circumvent the agreement it made with the Union to reinstate Billington with full pay. The Respondent contends Billington was fired because he negligently burned up the motor of a company truck, abandoned his truck in Phoenix; dishonestly feigned sickness ; and failed to notify the Respondent that he would be unable to pick up the livestock which eventuated in an angry customer and financial loss to the Respondent. Furthermore, Respondent argues , Billington voluntarily quit when he signed a "termination " paper on August 8, in consideration of $500 paid him by Respondent, knowing full well what he was doing. C. Discussion The issue here, then, is whether Billington , the al- leged discriminatee, was terminated by Respon- dent, as contended by the General Counsel, in violation of Section 8(a)(3) of the Act because of his "union or other protected concerted activity" or, as claimed by the Respondent, "for cause" within the meaning of Section 10(c) of the Act, and whether, when he was later rehired at the Union's insistence, he thereafter voluntarily quit. In deter- mining this question , the burden of proof was on the General Counsel to establish and sustain the al- legations of his complaint by a preponderance of the probative evidence, and, where a discriminatory severance, as here, is charged, then he must establish by a preponderance of the evidence that such severance was discriminatory." The General Counsel in order to prove a prima facie case must show that the alleged discriminatee engaged in ac- tivities protected by Section 7 of the Act; that the Respondent knew he engaged in such conduct prior to discharge, and that he was terminated as a result of having engaged in such activities. Moreover, the burden of proof rests not on the Respondent to prove that the terminations were not in violation of the Act but on the General Counsel to prove they were illegal. Although proof of an affirmative defense, as for example that the employee's discharge was for cause, rests with the employer, nevertheless, the burden is not on him to show the absence of discrimination. The burden is rather on the General Counsel to show its presence.12 Before considering the specific facts in this proceeding, it might be well to discuss some ap- plicable legal principles. Concerted activities are combined action by employees, whether or not unionized, to improve conditions of employment. The basic policy of the Act is one of clothing with affirmative protection those concerted activities of employees which are encompassed in Section 7 of the Act.13 Section 7 provides that the right of em- ployees lawfully to engage in concerted activities for the purpose of mutual aid is protected and any proscribed or interdicted conduct by the employer infringing on those rights is an unfair labor prac- tice." In determining whether a layoff, discharge, or termination is for union activities or for cause, the problem is to ascertain the employer's true, under- lying motive.15 The fact that a lawful cause for discharge is available is no defense where the em- GC Exh 6 At another point in the General Counsel 's brief it is stated as follows "by [Respondent ' s] desire to stop Billington from voting in the union conducted election - " Indiana Metal Products Co v N L R B , 202 F 2d 613, 616 (C A 7), N L R B v Deena Produc ts Co , 195 F 2d 330, 335 (C A 7), cert denied 344 U S 827 1d N L R B v Clew eland Trust, 214 F 2d 95, 99 (C A 6), N L R B v Drennon Food Products Co, 272 F 2d 23, 28 (C A 5) " See N L R B v Schwartz , 146 F 2d 773, 774 (C A 5) " The relevant provisions of the National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U S C , SEC 151, et seq ) are as follows RIGHTS OF EMPLOYEES Sec 7 Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) UNFAIR LABOR PRACTICES Sec 8(a) It shall be an unfair labor practice for an employer- (I) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, s r r • r (3) by discrimination in regard to hire or tenure of employ- ment or any term or condition of employment to encourage or discourage membership in any labor organization . . "N.L R B v. Jones & McLaughlin Steel Corp, 301 U S. 1, 45-60; Radio Officers v N L R B, 347 U S 17, 43-44 VERNON LIVESTOCK TRUCKING CO. 1809 ployee is actually discharged because of his union activities.16 It is the " true purpose " or "real motive " in hir- ing or firing that constitutes the test. Some conduct may by its very nature contain the im- plications of the required intent ; the natural foreseeable consequences of certain action may warrant the inference . And see Republic Aviation Corp. v. Labor Board , 324 U.S. 793. The existence of discrimination may at times be inferred by the Board , for "it is permissible to draw on experience in factual inquiries."17 Since direct evidence of a purpose to violate the Act is rarely obtainable , proof of motive usually en- tails the weighing of conflicting inferences. The task of weighing conflicting inferences is entrusted to the trier of the facts. "The possibility of drawing either of two inconsistent inferences from the evidence [does] not prevent the [trier of the facts] from drawing one of them ...."18 Usually in- ferences may. be drawn of one fact from the existence of another when in common experience there is a "rational connection between the facts proved and the ultimate facts presumed."10 However, it is equally clear that an employer may discharge an employee for any cause or no cause as long as the discharge is not motivated by activities protected by Section 7 or proscribed by Section 8(a)(3) of the Act.20 Section 8(a)(3) of the Act is not intended generally to interfere with the freedom of an employer to hire and fire as he pleases. He may discharge employees as he sees fit; he may discharge them in the interest of efficiency or from personal animosity or mere whim .21 The fact that an employee is a union member affords him no protection against a discharge for cause. Moreover, the existence or assertion of a valid reason for discharge does not necessarily indicate that this reason constituted the real cause for discharge nor does the existence of a valid cause provide a defense unless it is the moving cause for the discharge.22 Nor does failure of an employer in an unfair labor practice proceeding to show proper cause for a discharge relieve the General Counsel from his burden of establishing that the discharge was motivated by proscribed considerations. On the other hand , the convincing or unconvincing character of proffered reasons for a discharge is also a significant factor in determining whether or not the discharge was improperly motivated.23 Although discharge of an incompetent employee is lawful , it may become discriminatory if other cir- cumstances reasonably indicate that the employee's protected activities weighed more heavily in the decision to discharge than did dissatisfaction with him.24 Motivation is, indeed , an elusive factor. In the law of labor relations the term "dis- crimination " most often refers to inequality of treatment based on discriminatory employment practices on the part of employers to discourage employees ' organizational activities for collective- bargaining purposes . The Board has held that the fact that a valid cause for discharge exists does not excuse a violation of the Act, if the evidence shows that the employer's real reason was to discourage union activities of the dischargee . But, an em- ployer's antiunion dispostion , standing alone, does not justify a finding of unlawful discrimination in the face of evidence that an employee was discharged for good cause.25 Then, too, in these types of cases, consideration must be given to the proviso in Section 10(c) of the Act, which forbids reinstatement of an employee discharged "for cause ." The legislative history of the Act reveals that when the meaning of the phrase " for cause " was discussed in the Senate by Senator Taft, he had the following to say with respect to it: It merely states the present rule. If a man is discharged for cause , he cannot be reinstated. If he is discharged for union activity, he must be reinstated . In every case it is a question of fact for the Board to determine.26 It would appear , therefore, that if upon the "pre- ponderance of the testimony taken ," the proof creates an equipoise '21 or that if any essential ele- ment necessary to make a finding of an unfair labor practice is absent or left to surmise , speculation, or conjecture, the trier of the facts is required by Sec- tion 10(c) to dismiss the complaint. It would seem , however, that in evaluating whether an unfair labor practice has been com- mitted, the legality of the employer' s conduct in discharging an employee involves the problem of accommodating the rights of employees under Sec- tion 728 to engage in concerted activities with the right clearly given an employer under Section 10(c) to protect his business by discharging an employee 1'NLRB v Ace Comb Co, 342F2d841 (CA 8) 17 Local 357, Teamsters [Los Angeles-Seattle Motor Express] v NLRB, 365 U S 667,675 18 N L R B v Nevada Consolidated Copper Corp, 3 1 6 U S 105, 106 '''Toty US, 319 US 463,467 20 Magnolia Petroleum Co v N L R B , 200 F 2d 148, 149 (C A 5), N L.R B v Solo Cup Co, 237 F 2d 521, 525-526 (C A 8) 21 N L R B v McGahey, 233 F 2d 406, 412, 413 (C A 5) 22 NLRB v C & J Camp, 216 F 2d 113, 115 (C A 5), NLRB v Texas Independent Oil Co, 232 F 2d 447, 450 (C A 9) 2' NLRB v Ferguson, 257 F 2d 88, 92-93 (C A 5), NLRB. v WTVJ, 268 F 2d 346, 348 (C A 5) 29 N L R B v Whiten Machine Works, 204 F 2d 883 (C A 1) " Sixteenth Annual Report of the National Labor Relations Board, pp 161-162, Seventeenth Annual Report of the National Labor Rela- tions Board, pp 135-136 26 93 Congressional Record 6518 21 This is more than a theoretical possibility, as is shown by the frequency with which juries in a court of law are unable to arrive at a verdict In Scottish law, the jury will often decide that while the prose- cution has not proven its case that the defendant is guilty , there is still enough evidence to deny defendant the verdict of "not guilty " See Eastern Coal Corporation v N L.R B , 1 76 F 2d 131, 136 (C A 4), where the court said " the test is not satisfied by evidence . which gives equal support to inconsistent inferences " See fn 14 1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "for cause ."29 Section 8(a)(3) prohibits discrimina- tion in regard to hire or tenure of employment or any term or condition of employment to discourage union membership . There must be both discrimina- tion, because of protected activities , and a resulting discouragement of union membership , as a viola- tion of this section normally turns on the em- ployer 's motivation . Sometimes a discharge tends to discourage union membership even when the em- ployer did not so intend but was motivated entirely by valid business reasons bottomed upon efficiency and discipline . The Supreme Court has stated that a wide range of employer action has been left un- scathed under Section 8(a)(3) where the action is taken to serve legitimate business interests in some significant fashion even though the act committed may tend to discourage union membership. The Supreme Court points out that such a construction of Section 8(a)(3) is essential if due protection is to be accorded the employer 's right to manage his own business.30 Absent a situation where the facts are such that an inference may be drawn ascribing both a proper and an improper reason for discharge , either rule would be inapplicable where the evidence is such that there is no reasonable basis for inferring the discharge was "for cause "; or conversely , where the evidence clearly indicates serious employee misconduct , inefficiency , or derelictions of duty. These preliminary observations , then, are a prelude to the most difficult question in these dis- criminatory discharge cases: Whether the alleged discriminatee was discharged by the employer, as contended by the General Counsel, in violation of Section 8 ( a)(3) of the Act because of his "union or other protected concerted activity for the purposes of collective bargaining or other mutual aid or pro- tection ."31 or for valid cause as claimed by the Em- ployer. Cases involving discrimination with respect to hire and tenure of employment because of union activities are among the most difficult confronting a Trial Examiner . In those cases which eventually go to hearing the question of discrimination is usually not obvious . Between cases of patent employer dis- crimination and those where a worker obviously has attempted to hide inefficiency or insubordina- tion behind a charge of discrimination , the question of guilt or innocence must be determined on the circumstances and background peculiar to each case . Striking a balance between the employer's management prerogatives and his correlative obligation not to so use his control over his em- ployee 's job as a means of deterring him from en- gaging in union activities , on the one hand , and the inalienable right of the worker to exercise his legal rights without fear that he will be subject to dis- crimination , is the paramount consideration. In such situations , determining where the preponde- rance of the substantial evidence lies is , indeed, an often difficult task in the ever present purpose of attempting to create basic conditions and standards of conduct under which sound collective bargaining can grow as a method of industrial life. Nor is the assertion of a defense binding on the trier of the facts , nor is one required to accept a resondent 's alleged lawful justification for a discharge merely because it has been put forward with supporting evidence.32 But rejection of a defense , without more , is insufficient to sustain the General Counsel 's burden of proof ; he must establish his case by affirmative evidence.33 Furthermore , the trier of the facts is not found to accept uncontradicted evidence , for questions of credibility are not foreclosed by the absence of contradictory testimony.34 The wisdom or the merits , or the justification, of a discharge is not within the competency of the Trial Examiner . As long as the actual reason therefor is not discriminatory , the discharge must be upheld as having been made for cause, re- gardless of its soundness . 35 But this is not conclu- sive . It may nevertheless be shown by the General Counsel that, although cause existed for a discharge , such cause was not in fact the reason why an employee was discharged and that a dis- criminatory motive generated the dismissal . 36 In this connection , it is necessary to show only that "one reason for the discharge is that the employee was engaging in protected activity . It need not be the only reason but it is sufficient if it is a substantial or motivating reason , despite the fact that other reasons may exist.37 It has long been established that for the purpose of determining whether or not a discharge is dis- criminatory ... it is necessary that the true , under- lying reason for the discharge be established. That is, the fact that a lawful cause for discharge is available is no defense where the employee is ac- tually discharged because of his union activities. A fortiori , if the discharge is actually motivated by a lawful reason , the fact that the employee is engaged in union activities at the time will not tie the em- ployer 's hands and prevent him from the exercise of his business judgment to discharge an employee for Southern Steamship Companv v N L R B, 316 U S 31 American Ship Building Co v N L R B, 380 U S 300, 311 The quoted language is excerpted from paragraph I I of the com- plaint See also para 17 of the complaint "NLRB v Texas Bolt Co, 313 F 2d 761, 763 (C A 5) N L R B v Audio Industries , 313 F 2d 858, 863 (C A 7), Portable Electric Tools v N L R B, 309 F 2d 423, 426 (C A 7) 'a N L R B v Howell Chevrolet, 204 F 2d 79, 86 (C A 9 ), affd on other grounds 346 U S 482 See 7, Wigmore on Evidence, Sec 2034(3d ed ) 45 N L R B v Prince Macaroni Co , 329 F 2d 803 , 809 (C A 1), Fort Smith Broadcasting Co v N L R B. 341 F 2d 874 (C A. 8), N L R B V United Parcel Service , 317 F 2d 912,914 (C A 1), Thurston Motor Lines , 149 NLRB 1368 , Norfolk Tallow, 154 NLRB 1052, 1056, strong precedent for this case N L R B v Symons Mfg Co , F 2d 835, 838 (C A 7) N L R B v Whiten Machine Works, 204 F 2d 883 , 885 (C A 1), Wonder State Mfg Co v NL RB , 331 F 2d 737 , 738 (C A 6) VERNON LIVESTOCK TRUCKING CO. cause.38 Misconduct and dereliction of duties on the employee's part cannot insulate him from a legal discharge by the employer, and where a proper motive for the discharge can as reasonably be inferred as an improper motive, the discharge should not be set aside ... where the more substan- tial evidence supports the proper motive.39 D. Issues It is the General Counsel's contention and Billington 's testimony that when he left Los An- geles on Sunday night, July 31, at 9 p.m. for Phoenix and Maricopa to pick up the load of cattle he ate something enroute which made him sick. When he arrived in Phoenix, he went to his brother- in-law's home, parked the truck, and went to sleep in the home of some other person in Phoe- nix, the street location of which Billington did not know. He awoke at noon on August 1 and told his brother-in-law to call the Respondent and in- form them that he was sick and could not pick up the cattle at Maricopa. After locating the truck but not Billington , Respondent sent one of its drivers to Phoenix to return the truck to Los Angeles. Billing- ton returned to Los Angeles on August 3 and was fired on August 4. On August 7, he was rehired at the insistence of the union and the following day he signed a quit slip in return for Respondent paying him $500. The General Counsel claims Billington was con- structively discharged as he did not quit but was forced to resign because: (1) Respondent desired to stop him from vot- ing on whether article 12 of the contract should be changed:40 (2) Respondent 's resentment over Billington going to the Union with a grievance; and (3) Respondent wanted to circumvent the agreement it made with the Union to reinstate Billington with full pay. Respondent claims Billington was discharged for cause on August 4 and that he was rehired over its objections on August 7 at the insistence of the Union . However , argues Respondent , "good cause" still existed on August 8, when he was terminated by mutual agreement and, furthermore , Billington fully and voluntarily assented to this by signing the quit slip and accepting $500 in return for ac- ceptance of his termination. E. Conclusions The testimony not only fails to substantiate the charge of an 8(a )( 3) violation , but also no substan- tial evidence was introduced by the General Coun- sel to show that Billington 's termination had any relationship to his alleged union or protected activi- 38 N L R B v Ace Comb Co, 342 F 2d 841, 847 (C A. 8) 39 N L R B v Ace Comb Co., supra, Fort Smith Broadcasting Co v N L R B, 341 F 2d 874 (C A 8), N L R B v Fox Manufacturing Co, 238 F 2d 211 (C A 5) 1811 ties . Moreover , the oddly self-contradictory and negating dichotomous contentions in the General Counsel 's brief fail to shed any light with respect to his theory of this incident . The burden • of proof is on the General Counsel to establish and sustain the allegations of his complaint by a preponderance of the probative and credible evidence , and, where it is charged Billington was coerced into quitting, pur- portedly in violation of Section 8(a)(3), this alleged discrimination must be established by a prepond- erance of the evidence. Therefore, it is found that the foregoing facts and circumstances detailed above and explicated below fail to expose by a pre- ponderance of the probative and credible evidence that Respondent 's President L'Ecluse 's purpose in offering Billington $ 500 for quitting was either dis- criminatorily or unlawfully motivated.41 Billington did not make a favorable impression. His testimony was ambiguous , equivocal , and, in many respects , incredible. He testified he had no recollection about the trip on July 30, on which he operated the truck without sufficient water result- ing in $2 ,000 damage to the motor ; nor did he know from where his brother -in-law telephoned the Company at noon on August 1, 6 hours after he ar- rived in Phoenix , to notify them he was unable to pick up the cattle . At one point in the record, he testified his brother -in-law had a telephone and at another point he denied testifying to this. He finally testified inconsistently that he did not know if he did have a telephone . He did not know where the house was located at which he stayed in Phoenix when he was allegedly sick from August 1 to 3. This strains one's credulity as obviously he was acquainted with Phoenix since he lived there not only in 1960 , but also from October 1966 to March 1967. It should be noted at the outset that the com- plaint does not allege that Billington 's discharge on August 4 , 1967, was discriminatory because of his Phoenix escapade or because he damaged a truck by operating it without sufficient water. On the contrary , it is explicitly recognized in the General Counsel 's theory of this case that " cause " did exist for Respondent discharging Billington on August 4, but that , on August 8, he was discharged "because he engaged in union or other protected concerted activity for the purpose of collective bargaining or other mutual aid or protection."42 It is not believed because of the testimony detailed above and for the reasons explicated above and below that the General Counsel has met the burden of proving by a preponderance of the evidence that the August 8 discharge was dis- criminatory within the meaning of Section 8 ( a)(3), in that it "discouraged union or other protected concerted activities ." 43 On the contrary, the testimony shows Billington 's discharge was "for 40 See p 4 , fn 7, supra , and last para., p. 5. 41 N L R B v United Brass Works , 287 F 2d 689 (C A 4) 42 See para I I of the complaint 43 See para 17 of the complaint 1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause " Corroborative of this finding of good cause for Billington's discharge is the testimony of Yan- dell, the union official, that immediately after he demanded of L'Ecluse and obtained Billington's reinstatement on August 7, he told Billington ". . to do his job and keep his nose clean ." Dyer, the other union official, also testified regarding the Phoenix incident that there was a doubt whether Billington had notified the Company as soon as he should have that he would be unable to pick up the cattle. Furthermore, Dyer admitted that Billington should have phoned Respondent as soon as he became ill. Implicit in both Yandell and Dyer's testimony is the recognition that Billington was at fault in the Phoenix incident.44 The General Counsel argues that Billington was forced to quit his employment the day following the Union's demand on August 7 that he be rehired, when Respondent's president L'Ecluse " threatened " him with onerous working conditions. There is no evidence that between August 7, when L'Ecluse rehired Billington , and August 8, when he resigned , that Respondent began to harrass Billing- ton, as the General Counsel contends, and treated him so intolerably because of antiunion considera- tions that he was forced to quit. It is unrebutted that the $2,000 damage to the truck on July 30 was due to his neglect and that he was at fault in the Phoenix incident. There is no probative evidence that Billington 's quitting on August 8 was involun- tary. He accepted the $500 consciously and volun- tarily; he had his Union behind him which was powerful support when it is considered negotiations for a new contract were in progress and it is not too unreasonable to assume that L'Ecluse did not want to provoke the Union at such a crucial time, as evidenced by his rehiring Billington when the Union peremptorily demanded he do so. In the abstract, it might be reasoned that L'Ecluse had more than ample reason not to be in- timidated by the Union's demand that Billington must be rehired ( as it is clear there were valid reasons for firing him), yet, realistically, L'Ecluse had no other alternative but to submit to the Union 's uncompromising demand . This disinclina- tion of L'Ecluse to antagonize the union officials was probably due to a painful awareness that he must avoid precipitating a cleavage between the Union and himself. He was in the dilemma of know- ing he was not only in the midst of negotiating a new contract but also avoiding a strike, which did eventuate , and vividly realizing, at the same time, that he would have to continue to deal with the Union in the years to come and that his trucking business ' future well being was to a considerable extent dependent on his not antagonizing the Union, in order that it would be favorably disposed toward his small company. These subjective con- siderations, which the cold record fails to capture, " McCoy, the union steward, who was called as a witness by the General Counsel, disparaged Billington's conduct as a truckdriver See pp 15 and 16 pervade this proceeding and constitute the intangi- ble imponderables which belie the General Coun- sel's recondite and transcendent theory of this case. L'Ecluse's testimony is credited that Billington was not coerced when he accepted the $500. The motivating and proximate cause of his accepting the $500 was not fear but Billington 's desire and need for money. McCoy, the union steward, credibly testified that on August 8, the same day the General Counsel claims Billington was forced to quit, Billington told L'Ecluse in his office, "that he was going to stay there [at his job] at least until he could get all of his bills paid; that he had gone in debt since working over there, and he wasn't going to quit...." It was then that L'Ecluse told Billing- ton he was not getting along well and asked him how much he would take to quit his job. When Billington agreed to resign in return for $500, L'Ecluse paid him the money and the transaction was completed. This was a voluntary quit with no misrepresentations, coercion, or threats. Billington testified on cross -examination that when he accepted the $500 from L'Ecluse it was understood by him that the money was being paid under an agreement for him to quit his job. It is not too unreasonable to infer that implicit in this answer was the recognition by Billington that if he were fired, he would not receive $500, but if he quit he would. It is found, accordingly, that he voluntarily quit in return for a consideration of $500 which he has never returned to the Company. Lending support to this finding that Billington was not coerced into signing the quit notice on August 8 is his own testimony that MacDivot, a union offi- cial, on August 4 reassured him of the Union's sup- port and advised him not to sign a quit slip.45 Moreover, this money might be considered liquidated compensation in return for Billington's resigning rather than waiting for the outcome of lengthy and uncertain litigation by his accepting prompt payment of $500, and thus removing him- self from the labor market of Respondent. As a compliance matter , it would appear Billington has waived any claim to backpay and reinstatement.46 Furthermore, to foist Billington on Respondent by ordering his reinstatement and backpay , in addition to the $500 he kept, would be inequitable and con- trary to the purposes and policies of the Act when it is considered that Billington was not discharged for engaging in any activities protected by the Act. Finally, the remedy requested by the General Counsel, under these circumstances, might be con- sidered punitive, if it can be shown that it "is a patent attempt to achieve ends other than those which and fairly be said to effectuate the policies of the Act."47 The General Counsel contends that Billington was discharged; first, because he was a staunch sup- porter of the Union; second, L'Ecluse feared that ` See sec 111, A, supra 'fi See Deena Artwald, lac , 112 NLRB 371, 378 " Virginia Electric & Power Co v N L R B , 319 U S 533, 540 VERNON LIVESTOCK TRUCKING CO. he would support the Union in Respondent's dispute with respect to eliminating article 12 from the contract ; 48 and third , L'Ecluse was incensed because Billington had filed a grievance with the Union . There is a lack of credible testimony that Respondent 's termination of Billington was motivated by union animus or discriminatory in- tent . Militating against such a finding is the irrefuta- ble fact that Billington did not join the Union until April and was neither an active nor an articulate union adherent. Moreover , McCoy , the shop steward , a fervent union proponent who was the General Counsel's witness and who testified honestly , frankly, and fairly, stated that he told Billington in L'Ecluse's of- fice on August 8 that he was at fault : " I felt that he was wrong towards the rest of the drivers and everything ." On cross-examination, McCoy testified that he told Billington in L'Ecluse's presence that he was " 100 percent wrong " because "he shouldn 't leave a man 's truck in Arizona like that without notifying the company . . under those conditions . From what I heard , such as the pills and all this, he was in the wrong ."49 McCoy testified also that he "had no use for Billington" and that he told him in L'Ecluse's presence on August 8 that working conditions were fine and that the drivers were doing well financially. L'Ecluse denied he was antiunion or that he discharged Billington because of any reasons proscribed by Section 8(a)(3) of the Act. There is no evidence that the Company and Union ' s relation- ship has been anything other than harmonious in the past . It is uncontradicted that Respondent has had a collective-bargaining agreement since 1957 with Local 224 , the Union herein . This contract provides that all employees must be union mem- bers . L'Ecluse was formerly a union official. He categorically stated that no one could successfully accuse him of being antiunion. "I'm anti Teamsters Union ," he testified , " because their history throughout the last few years has been nothing but convicted heads...." He had a right to voice this opinion under Section 8(c) of the Act . Further- more , there is no evidence that L'Ecluse has had any proclivity for discriminating against his em- ployees for engaging in union activity. There are indications in this record from which it is not too unreasonable to infer that some of the proposals made and actions taken by the litigants in this proceeding may have been motivated by con- siderations other than those averred in the com- plaint . It has long been established that the Act is to be administered in the public interest . It is doubtful whether the public interest was the motivating reason for the drafting of the charge on August 14. It is not too unreasonable to infer that when Billing- 48 See fn 7 , p 4, supra 44 Bdlmgton , on cross-examination , admitted McCoy had told him on August 8 that he was "100 % wrong in his conduct " 5o " the administrative agency has an affirmative duty to seek out and develop whatever facts are required to enable it to formulate 1813 ton was discharged 6 days before the charge was filed , this was grasped on as a tempting opportunity to file a charge and thus bring pressure to bear to effectuate the execution of a contract . When it is considered that the contract had expired 4 months before ; that negotiations were at a standstill; and L'Ecluse was adamantly opposed to executing a new contract until the Union would agree to a revi- sion of article 12, it is not too unreasonable to as- sume this was a motivating consideration . 50 Confir- mation of this inference is the testimony of L'Ecluse that in order to persuade him to sign the contract , Yandell , the union official , on two occa- sions offered to withdraw the charge the Union had filed with the Board 's Regional Office on Billing- ton's behalf if L'Ecluse would agree to sign the Union 's proposed contract. The Supreme Court has held that the Board "may decline to be imposed upon or to submit its process to abuse " - it may "properly withhold or dismiss its own complaint if it should appear that the charge is so related " to questionable conduct.51 In Hollywood Ranch Market , 52 the Board held that its processes had been abused and, therefore, it would act in the public interest by dismissing a complaint alleging that employers discriminatorily discharged employees at the insistence of a union, where the charging parties did not invoke the processes of the Board to secure a remedy for violations of the Act but merely did so to assist their union in a scheme to force the employers to replace members of the contracting union with members of their union . The Board held this to be a "palpable abuse of the Board 's machinery." It will be recalled , however , that L 'Ecluse had been opposed , since the beginning of negotiations in March , to the Union 's steadfast insistence that article 12 be retained in the new contract . In return for its deletion and the substitution of the company proposal for an arbitration procedure, L'Ecluse agreed to " offer [Yandell ] more money than he wanted ," in order for the Company "to get out of the grievance machinery [ article 121 ." It was agreed by Yandell and accepted by L'Ecluse to set- tle the matter by submitting the dispute to a vote of the Respondent 's drivers on August 22, which they rejected . A charge alleging violations of Section 8(a)(3) and ( 5) was drafted by the Union on Au- gust 14, filed on August 18, and on September 12, the Company and Union executed a new 3-year contract . Two weeks later , on September 28, the complaint issued. The General Counsel also alleges in his brief that, when L'Ecluse received Billington 's resignation in return for payment of $ 500, this was a violation of Section 8 ( a)(1) of the Act in that the Union was not consulted. This allegation was neither alleged in its 'legislative' role [and] to take action in the public interest " 27 Federal Bar Journal 385 (1967), John W Macy , Jr, the AIA, and the Hearing Examiner '' N L R B v Indiana & Michigan Electric Co, 318 U S 9, 18-19 52 93 NLRB 1147 , 1153-54 1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint, litigated, nor stated at the hearing to be the General Counsel's theory of the case. It is well settled that matters not alleged in a complaint may not be held to constitute an independent viola- tion of the Act.53 As the court stated in H. E. Fletcher, supra. . . The complaint, much like a pleading be- fore a court, is designed to notify the adverse party of the claims that are to be adjudicated so that he may prepare his case, and to set a standard of relevance which shall govern the proceedings at the hearing." Where the Board improperly makes its finding on a charge not contained in the complaint, and the record dis- closes that the basis of this finding has not been litigated at the hearing, such finding is not entitled to enforcement [citations omitted]. To hold the Respondent liable for this unlitigated allegation where it was never charged with such an offense would be a violation of its constitutional guarantee of due process. Justice Brandeis in defin- ing due process stated: . . that no finding shall be made except upon due notice and opportunity to be heard; that the procedure at the hearing shall be consistent with the essentials of a fair trial . .54 Furthermore, it is clear from the evidence presented and the record of the hearing that the Respondent did not understand the issue nor was he afforded full opportunity to justify his conduct as innocent rather than discriminatory.55 It would be unfair to consider this unaverred allegation as Respondent did not have full opportunity to fully litigate the issue, the facts, or the law relevant to the alleged violation. Another aspect of this situation is exemplified by N.L.R.B. v. Tennsco Corp., 339 F.2d 396 (C.A. 6), where the court held that a respondent cannot be found guilty of an unfair labor practice of which he had no fair notice and which was not encompassed by the complaint. The court stated that the respon- dent must be apprised of the issues and "the Government's theory of the case" as "The right of a [respondent] to know the issues in an adjudicatory proceeding adheres to a proceeding in which it is a right and not a matter of grace." Moreover, the Supreme Court has held that an employer may bargain directly with his employees with respect to those aspects of the employment relationship which are not covered by a collective- bargaining agreement, provided it is neither incon- sistent with the collective agreement nor intended to interfere with employees' rights under the Act.56 L'Ecluse offering and Billington accepting the $4500 was not inconsistent with the collective agreement. It was not necessary for Respondent to have discussed Billington 's voluntary quit with the Union as the Board has held that there is no violation when the unilateral action, even though it is a man- datory subject of bargaining, occurred following the expiration of the contract. 57 By analogy to the case at bar, since the discharge of Billington occurred after the expiration of the contract here, it is likewise no violation. In the absence of a collective- bargaining agreement, an employer, absent dis- crimination , has the right to discharge an employee at any time for any cause satisfactory to the em- ployer. Under the circumstances here presented, Respondent not only has such a right but valid cause for implementing it. There is meager evidence to support the allega- tions of the complaint . Billington repeatedly showed himself to be an incompetent employee and his discharge rested on legal and bona fide grounds, which conclusion is sustained by a preponderance of the evidence detailed above. If discrimination can be inferred from Billington's mere union mem- bership, that inference disapears when evidence supports the more reasonable finding that valid cause motivated the Respondent's discharge and ul- timate termination of Billington when he voluntari- ly accepted $500 for resigning. 58 It is believed that the evidence elicited by the General Counsel as to his 8(a)(3) allegation is not substantial, when viewed in the light that the record in its entirety furnishes, including the evidence opposed to his view . Billington quit because he knew he was wrong, as he was told so by the union steward, and because he wanted the $500, and not because he was "forced to quit in the face of discriminatory treatment calculated to make [his] job unbeara- ble."59 There is no evidence to support the allega- tion that the circumstances on August 8 constituted discrimination or was discriminatorily motivated. The evidence here is devoid of any credible dis- criminatory reason for Respondent's discharging Billington . There is no basis in the record for con- cluding that Billington was discharged for proscribed reasons. L'Ecluse is credited that his reasons for discharging Billington were because of his being an incompetent driver and not for anti- union considerations.60 The discharge based on legitimate and substantial business justifications constituted a lawful exercise of managerial right and prerogative. The Supreme Court, in one of the v, The Columbus Show Case Co, I I I NLRB 206, 207, 1 F Sales Co, 82 NLRB 137, 138, fn. 6; N L R B v. H E Fletcher Co , 298 F 2d 594, 600 (C A I) Engineers & Fabricators, Inc v N L R B , 376 F 2d 482, 485 (C A 5) See N L R B v Johnson, 322 F 2d 216, 219 (C A 6) v, St Joseph Stock Yardv v U S, 298 U S 38, 73 See Allied Dis- tributing Corp v N L R B, 297 F 2d 679 (C A 10) 'v See N L R B v Mackay Radio & Telegraph Co, 304 U S 333, 349-350 '" J I Case v N L R B, 321 U S 332, 339-341 Cf Douds v Local 1250, 173 F 2d 764 (C A 2) Bethlehem Steel Co, 136 NLRB 1500 N L R B v Stafford, 206 F.2d 19, 23 (C A 8) se N.L R.B. v. Saxe-Glassman Shoe Corp , 201 F 2d238,243 (C A 1). "See sec 111, E, supra VERNON LIVESTOCK TRUCKING CO. 1815 first Board complaint cases it decided, stated:6' The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The em- ployer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and represen- tation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion. It is found, therefore, that the General Counsel has failed to sustain his burden of proving by a pre- ponderance of the evidence that Respondent discharged Billington in violation of Section 8(a)(3) of the Act. Accordingly, it shall be recom- mended that the 8(a)(3) allegation in the com- plaint be dismissed.62 F. Alleged Violations of Section 8(a)(1) The complaint avers that L'Ecluse, the Respon- dent's president, and Steele, its dispatcher, a super- visor within the meaning of Section 2(1 1) of the Act, interrogated and threatened employees. In determining whether an employer's connduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to in- terfere with the free exercise of the rights guaran- teed by the Act.63 It is found that Respondent violated Section 8(a)(1) when: (1) Steele told Jack Wingfield, a driver em- ployed by Respondent, at a time subsequent to April 1967, that the Company "would find a way to get even" with the employees if they did not vote to rescind article 12 of the contract, the grievance procedure then in effect for the discharge or suspension of truckdrivers. The fact that Wingfield was neither fearful nor apprehensive of his rights is immaterial as the test whether an employee is in- timidated is not an objective one but rather subjec- tive from the standpoint of employees.64 (2) After the vote on August 22, 1967, in which the employees rejected the Company's arbitration proposal, L'Ecluse interrogated employee James Latta as to how he had voted. Latta credibly testified that when he replied he had voted against the Company, because Steele would fire him the "first chance he got," L'Ecluse said: "Why don't you quit?" Latta answered that he liked working for the Company.65 (3) L'Ecluse violated Section 8(a)(1) when he threatened Autrey, an employee , on March 6, 1967, "Remember the way you vote means whether you keep your job or not. 1166 Separate findings as to other instances of alleged specific violations of Section 8(a)(1) are not made as some are embraced within those found above and others , if found , merely would be accumulative adverse findings which do not add to the obliga- tions of the order which independently must issue. The same kind of restraining order will issue whether predicated on one or more violations of the same type so that no good purpose would be served by considering each incident separately with a view of determining whether it constitutes a viola- tion . 67 Inasmuch as evidence of interrogation and threats violative of Section 8(a)(1) have already been found , and because further findings of such conduct, if such there are, would be cumulative in nature , it is not deemed necessary to consider the legality of these additional threats and interrogation incidents , if any. THE REMEDY Having found that the Respondent has engaged in the unfair labor practices set forth above, it shall be recommended that it cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. In view of the limited nature of the unfair labor practices found herein, it is recommended that a narrow cease-and- desist order should issue. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in a busi- ness affecting commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act, as set forth above, the Respondent has engaged in and is engaging in un- fair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 6i N L R B v Jones & Laughlin Steel Corp, 301 U S 1, 45-46 62 See True Temper Corp, 127 NLRB 839, 843, 844, and Harvey Aluminum, Inc, 156 NLRB 1353, 1364 61 Time-O-Matic, Inc v N L R B, 264 F 2d 96,99 (C A 7), N L R B v Illinois Tool Works, 153 F 2d 811, 814 (C A 7), Russell-Newman Mfg Co, Inc, 153 NLRB 1312, 1315, Neco Electrical Products Corp, 124 NLRB 481, 482. 64 See N L R B v Thompson Products, 130 F 2d 363, 368 (C A 6) Cf NLRB v Link-Belt Co, 311 U S 584 65 Latta, on cross-examination, testified he voted without fear and as his conscience dictated See fn 63, supra 66 Ct Struknes Construction Co, 165 NLRB 1062, Ldlicton Imple- ment Co., 171 NLRB No. 19, N L.R.B. v Roberts Brothers, 225 F 2d 58 (C A. 9) 61 American Newspaper Publishers Assn v N L R B, 193 F 2d 782, 806 (C A 7), cert denied 344 U S 812 1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , Vernon Livestock Trucking Co., a corporation, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Interrogating coercively its employees with respect to how they will vote or did vote in elec- tions regarding union matters, (b) Threatening reprisals against employees if they do not vote as the Respondent desires; (c) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of their rights to self-organization , to form, join, or assist Line Drivers, Local 224, Inter- national Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, or any other labor organization , to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection , or to refrain from any or all such activities. 2. Take the following affirmative action: (a) Post at its offices and terminal in Los An- geles , California, copies of the attached notice marked "Appendix." 68 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative , shall be posted by Respondent im- mediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter , in con- spicuous places , including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced , or covered by any other material. (b) Notify the Regional Director for Region 21, in writing , within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.69 It is recommended that the complaint be dismissed insofar as it alleges that Floyd R. Billing- ton was discharged in violation of Section 8(a)(3) and (1) of the Act APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify our employees that. WE WILL NOT interrogate our employees coercively concerning how they voted in union matters. WE WILL NOT threaten to take reprisals against employees as to how they voted or will vote in elections regarding union matters. WE WILL NOT in any like manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join Line Drivers, Local 224 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , or any other labor or- ganization , to bargain collectively through representatives of their own choosing , or to en- gage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. VERNON LIVESTOCK TRUCKING CO. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office , Eastern Columbia Building , 849 South Broadway , Los Angeles , California 90014, Telephone 688-5229 '' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board ' s Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order " 61 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing , within 10 days from the date of this Order, what steps Respondent has taken to Comply herewith 172 NLRB No 213 Copy with citationCopy as parenthetical citation