Jimmy Kilgore Trucking Co.

Kilgore 8(a)(1) backpay Pursuant lqc) orden 2(b): Kil- POSTED NATIONAL ' See Shwr Loeal 355. Sheet Meral In- temrional Aswciarion, (Zinsco Elerrrical 935 JIMMY KILGORE TRUCKING COMPANY Jimmy Trucking Company and Riley Leon- ard Frasier. Case 10-CA-140 19 February 23, 1981 DECISION AND ORDER On September 25, 1980, Administrative Law Judge Robert G. Romano issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. 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, as modified herein. We agree with the Administrative Law Judge's finding that Respondent violated Section of the Act by being instrumental in or causing the ter- mination of Willie R. J. Smith, an employee of a non-Respondent employer. However, we do not accept his proposed remedy for this violation to the extent that it limits Respondent's liabil- ity to the period prior to the date Respondent noti- fies Smith's former employer, Glen Kilgore, that it has no objection to the latter's employment of Smith. Rather than limit the remedy in this fashion, we reassert that the proper and effective realization of statutory policy requires that a transgressor bear the burden of the consequences stemming from its illegal acts.' Accordingly, in addition to such notice, we shall require Respondent to make Smith whole for all losses of wages and benefits suffered by him as a result of Respondent's discrimination until he either is reinstated to his former or sub- stantially equivalent position or until he obtains substantially equivalent employment elsewhere. ORDER to Section 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 that the Respondent, Jimmy Kilgore Trucking Company, Rainsville, Al- abama, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order, as so modified: I. Substitute the following for paragraph "(b) Notify Glen Kilgore that Jimmy Kilgore Trucking Company has no objection to the em- ployment of Willie R. J. Smith and that it will lease Willie R. J. Smith as a driver to Jimmy gore Trucking Company; and make Willie R. J. Metal Workers' Union Workers' AFL-CIO Products). 254 NLRB No. 92 (1981). 254 NLRB No. 112 Smith whole for any loss of wages and benefits suf- fered by reason of the discrimination against him from the date of his discharge to the date of his re- instatement by Glen Kilgore to his former or sub- stantially equivalent position or to the date he se- cures substantially equivalent employment with some other employer, with interest." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPLOYEES BY ORDER OF THE LABOR RELATIONS BOARD An Agency of the United States Government The Act gives employees the following rights: To engage in self-organization T o form, join, or assist any union To bargain collectively through represen- tatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT unlawfully discharge or be instrumental in and/or cause the termination of employees because they engage in protected concerted activity for purposes of mutual aid and protection. WE WILL NOT in any like or related manner . interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them under Section 7 of the Act. WE WILL offer to Riley L. Frasier, Lyndell D. Smith, and Roy Smith immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges; and WE WILL notify Glen Kilgore that we have no objection to the employment of Willie R. J. Smith, and that WE WILL lease Willie R. J. Smith to Jimmy Kilgore Trucking Company. WE WILL make Riley L. Frasier, Lyndell D. Smith, Roy Smith, and Willie R. J. Smith whole for any loss of earnings they may have suffered by reason of our prior unlawful con- duct towards them, with interest. 1978l 8(a)(l) 2(6) 8(a)(1) 2(6) 1979,2 Pmeduml Bockgtvund. 1977), relied,3 ' ' 10-RM-663 10-RC-11353, infm) lnvcsco waa Indeed 10-RM-663 waa Initial ' Siemons .Wailing 122 the In 1353), alia, 12 same 25), continued herein.e Trucking) Rainsville, + Kil- 1 additionally from 10-RM-663 the I(I). (m). (n), Zenirh Corp. Hezel- tine Foman &vis, U.S. Unired Sreelworkers Mesker Bras Indusrries Inc., F.2d Farknr In- srrumenrs Inc., F.2d (1st 1970). DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION cause the General Counsel had not established that Invesco International Corporation of Alabama, Number STATEMENT OF THE CASE 4, had continued to exist and to operate in that manner.5 ROBERT G. ROMANO, Administrative Law Judge: This case was heard before me at Fort Payne, Alabama, on April 30; and (on reopened hearing) at Birmingham, Ala- bama, on September 4 and 5, 1979. The charge was filed by Riley Leonard Frasier, an individual, on September 26, (amended October 4); and complaint issued on November 8, alleging that Jimmy Kilgore Trucking Company (Respondent Employer) had discharged cer- tain of its employees in violation of Sections and and (7) of the Act. On December 20, Respondent Employer filed its answer denying that it is an employer engaged in commerce, and denying that it has engaged in the commission of any unfair labor practices. The pri- mary issues herein are whether the Board has jurisdiction over Respondent's trucking business and, if so, whether Respondent discharged certain of its employees on August 18, and thereafter has failed and refused to rein- state those employees because they had engaged in cer- tain concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; and whether thereby Respondent Em- ployer has engaged in unfair labor practices within the meaning of Sections and and (7) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consider- ation of the briefs filed by the General Counsel and the Company on June 5, I make the following: A. The The complaint alleges, and at the initial hearing the General Counsel contended, that Respondent Employer met an indirect outflow standard. In a brief filed June 5, 1979, Respondent moved for dismissal of the instant complaint for lack of showing of jurisdiction, asserting that the record in Invesco International Corporation of Alabama, Number 4, Case 10-RM-663 (with Decision and Direction of Election dated May 13, a case on which the General Counsel had had on Respon- dent's review of transcript revealed that jurisdiction had been asserted over that employer on the basis of itself meeting an indirect outflow standard which would thus preclude any of Respondent's trucking services to that corporation from qualifying as indirect outflow;' and be- ' All dates are in 1978. unless stated to the contrary. Neither the General Counsel nor Respondent elected to file a brief subsequent to the hearing reopened on the jurisdictional issue, discussed infm. In Case (and in Case discussed International Corporation of Alabama Number 4, represent- ed by the same counsel as is counsel of record for Respondent Employer herein. The record reflects and Respondent acknowledged that Case was one initially recalled by Respondent. However, a copy of it not available at the time of hearing. Respondent, in that respect, would correctly rely for support on the Board's holding in Service. NLRB 81 (1958). Therein Board defined "indirect outflow'' terms as follows: However, on June 22, 1979, the General Counsel there- upon filed a motion to reopen record to receive a formal Stipulation for Certification Upon Consent Election ex- ecuted (in Case 10-RC-1 inter by Invesco In- ternational corporation of Alabama, Number 4, on May 29, 1978, and approved by the Regional Director for Region 10, on May 22, 1978. The aforesaid stipulation re- veals that, during the months prior thereto, the corporation had then met a direct standard of the Board, as discussed more fully infra. On July 2, 1979, Respon- dent filed its response thereto (dated June in which Respondent did not oppose receipt of the General Coun- sel's Exhibit 2 but opposed a reopening of the hearing on certain stated grounds and further moved that the matter be referred to the Board for decision. Following consid- eration of the parties' stated positions and contentions in the above matter, Respondent's motion for the matter to be transferred to the Board was denied; the General Counsel's motion was granted by order (dated July 17, 1979) reopening the record, receiving the General Coun- sel's Exhibit 2, and directing further hearing for certain limited purposes (in regard to jurisdiction as stated there- in). Respondent's motion to dismiss was under advisement and is resolved by the Decision rendered B. The Jurisdictional Evidence. Jimmy Kilgore Trucking Company (herein Kilgore is an Alabama corporation with a place of business at Alabama, where it has engaged in providing a trucking service of hauling coal for various coal companies. According to Jimmy Kilgore (herein Kilgore), owner of Kilgore Trucking, all of Kilgore Trucking's hauling services for its customers are con- ducted on a day-to-day basis, that is, without any written contract. Kilgore Trucking presently owns and operates seven trucks in the conduct of its business, though it leases additional trucks from other sources as business opportunities dictated. During times material herein, gore Trucking also leased trucks (with drivers) from Chattanooga, Tennessee, and apparently from an (undis- closed) Georgia source. Indirect outflow refers to sales of goods or services to users meeting any of the Board's jurisdictional standards except the indirect out- flow or indirect inflow standard. In passing observe that therein the Board continued its pnor holding to the effect that direct and indirect outflow may be com- bined. as may be direct and indirect inflow but that inflow may not be combined with outflow. Id. at 85. Respondent attached the pertinent supporting stipulation excerpt the record in Case which was not contested by General Counsel. The motion of the General Counsel. Respondent's response, and the aforesaid Order are in evidence as G.C. Exh. and respec- tively. The ruling in the latter is reaffirmed. Radio v. Research. 401 U.S. 321. 331 (1971): v. 371 178. 182 (1962); cf. of America, AFL-CIO, er al. v. 457 91, 93 (8th Cir. 1972); v. Texas 429 849. 851 Cir. cert. denied 401 U.S. 974 (1971). re~pectively.~ ~ e n e r d Kilnore oitflow" jurisdictGnal B ~ a r d . ~ trucking Kil- 1, SS0,000 11 peared same jurisdicti~n.~ Glm Truck~ng; ia infm. regard 18, complaint sought sin* integrated meanlng I(n) statement ponuons. secretary- Invesco-Ala, e.g., 8, Rapaport October Ra- paport find.1° official + commerce.ll l o based subpenas 22. subpenas Counsel's voluntary oficials position, Rapaport testimony Truck~ng's 1 cenain 1979). Invmo-Ala., 4. wan Nonethelm, am lnthat performed excess SSO.000 l I, 337 JIMMY KILGORE TRUCKING COMPANY Kilgore has two brothers, Don and Glen Kilgore who own two and five trucks, Unlike Kilgore Trucking, neither Don's nor Glen's trucking operation is incorporated; and although they also have individually leased their trucks to Kilgore Trucking, park their trucks at the same place, and share a shop (in unspecified manner) with Kilgore Trucking, they also each individ- ually pay their own drivers who are employed by them, respectively; they each pay for their own fuel separately; and they otherwise keep separate books on their own op- erations for tax purposes. These findings are based in the main on uncontradicted and credited testimony of Jimmy Kilgore. Throughout these proceedings, the Counsel has contended that the owrations of Trucking have met the "indirect standard of the As revealed by the record, this contention is based on Kilgore providing haul- ing services to certain "Invesco" operations for whom Jimmy Kilgore acknowledged at the hearing that gore Trucking has exclusively performed its hauling ser- vices. As stipulated at the initial hearing, Invesco Interna- tional Corporation (herein Invesco) is a Nevada corpora- tion which has certain subsidiary corporations, Invesco International Corporation of Alabama, Number 2, 3, and 4. Of said Invesco (individual) subsidiary corpora- tions, only the status of Invesco International Corpora- tion of Alabama, Number 4 (hereinafter, Invesco-Ala., No. 4) appears material to the ultimate resolution of the contested jurisdictional issue herein. As to Invesco-Ala., No. 4, at initial hearing the parties were in agreement that the Board had asserted jurisdic- tion over the operations of Invesco-Ala., No. 4, but re- femng in regard thereto to Case 10-RM-663. However, Respondent also represented that it did not believe (though was not sure) that Invesco-Ala., No. 4, was still in existence, but otherwise stated that Respondent had continued to perform hauling services for what it (as it turns out mistakenly) understood were Invesco Interna- tional Corporation of Alabama, Number 7, 9, 10, and l l. The parties thus then stipulated that Kilgore Trucking had performed hauling services valued in excess of for said Numbers 7, 9, 10, and (indeed that it had done so for Number 10 alone); and Respondent a p to agree that further finding herein might be made that they were the as Invesco Alabama No. 4, over which it had been agreed the Board had earlier asserted The reopened record has now revealed that Respon- dent was mistaken in its indicated belief that Invesco- From credited testimony of R. L. Frasier, Roy Smith, and Willie R. J. Smith. There is no evidence that Don and Kilgore are officers and/or stockholders in Kilgore nor other than what referred, in to the incident of August presented any evidence of oper- ation of a central or common labor policy in the operations of Kilgore Trucking and the other Kilgore brother operations. In any event, the does not allege, nor has the General Counsel to con- tend either at hearing, or in brief, that Kilgore Trucking and the trucking operations of Don and Glen Kilgore constitute a single employer, or a enterprise for jurisdictional purpose herein. However, conflict developed in briefs, motion, and response as to the intended scope and of same. See G.C. Exh. for the full of party contentions, and ruling thereon. Ala., No. 4, was no longer in existence and further that both parties had improvidently reached stipulation based on inaccurate understanding as to a separate corporate status of Number 7, 9, 10, and 11 operations. In any event, at reopened hearing, pursuant to subpena by the General Counsel, Johnathan Carl Rapaport, treasurer of "Invesco," in addition to confirming that "Invesco" is a holding company which through various subsidiaries, mines and sells coal in the State of Alabama, and that Invesco-Ala., No. 4, is a wholly owned subsid- iary of "Invesco," testified that No. 4 does continue in existence and presently has several coal mining operations in Jackson County, Alabama; each such coal mining operation having its own equipment and work force, and each mine operation being designat- ed by a pit number, 7, etc. explained that when "Invesco" originally entered the coal business, it had been Invesco's policy to set up a separate corpora- tion for each of its new mines and that it had done so with Numbers 1, 2, etc. However, in 1977, determined that a separate corporation for each mine operation was proving too cumbersome; and he ac- cordingly determined then that several mining operations would be thereafter combined under one corporate entity; that the above numbers thus represent pit num- bers of the certain mining operations of Invesco-Ala., No. 4, which is still in existence and operative; and that contrary to the apparent misunderstanding of Respon- dent, Kilgore Trucking has continued as a subcontractor hauling coal for Invesco-Ala., No. 4. I so It has been earlier noted that Respondent did not con- test the receipt in evidence of the General Counsel's Ex- hibit 2, a matter seemingly appropriate for notice in any event. Said stipulation (executed May 19 and ap- proved May 22, 1978) reveals that Invesco-Ala., No. 4, had continued in existence throughout that material period; was thus operative through May 1978; and that the Board had asserted jurisdiction over Invesco-Ala., No. 4, on the basis of its stipulation that its operations in the 12 months prior thereto met a direct standard and that it was an employer engaged in The foregoing is on the credited testimony of Rapport, who testified in response to (unopposed) timely served on "Invesco" on August 1979 (with returnable appearance on September 4). How- ever, response to such was not effected on September 4. When hearing was then continued at the General request to Septem- ber 5 to effect an indicated response by Invesco at that time. Respondent elected to stand on ita prior legal gave notice that it would not participate further in such hearing on September 5, 1979, and did not. In that connection. however. I do note that also testified that his that Kilgore Trucking's hauling services were for Invesco-Ala.. No. 4, was Invesco's interpretation, adding that Kilgore invoices do not show that; and further note that at hearing on September 4, after review of invoices produced by Re- spondent (albeit only for the period January-September the Gener- al Counsel as to such records conceded that No. not reflected by name in such invoices. I wholly satisfied by Rapport's testimony as to the internal affairs of Invesco-Ala., No. 4, and that Respondent has performed hauling services in material times for that corporation. respect I do further note that at reopened hearing Respondent had additionally stipulated that it had hauling ser- vices in of for each of said Numbers 7, 9, 10. and in the year prior to November 1978 and, as well, in the period January through September 1979. The aforesaid stipulation thus specifically provided: Continued vln Rapaport 1. $15,000 olio 11. Operations, yeare, months, Smith13 individual. second Trucking. Robert '4 Thc Alabama ~&poration 12 excesr 550,000 Tenn- Skate Also, p u t purchased received goods exccsl SU).Oa) d ~ r s t l y located Alabama. la unneceaury resolve sel's altemtive wntentiona e.g.. additiodly channel Is appean hewing. I' misundersunding/mis~llcction Frasier witnas was paid Kil- that had conversetion 18 fired because crosszxrmination convenntion K~lgore been h ~ s 1 has been s~gnificantly In conversation diruued infra. ~obinson 2W300 appeara driven Kil- 10 employer(s) viz, infm. 1. opemtions. 12:30 day.'= I n J. drivers were told J. testified Blnck was Invero (i.e.. Invero-Ala.. oficial alwys Conrinud DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, futher testified that from November 1977. through October 31, 1978, Respondent Kilgore Trucking has been paid $1.25 million for such hauling services provided to Invesco-Ala., No. 4, of which was paid to Respondent for one spot delivery made by it directly outside the State of Alabama to a company in Chattanooga, Tennessee. Accordingly, it is clear and I find that during material times Respondent has annually received in excess of $50,000 for hauling services (of direct and indirect outflow nature) per- formed for Invesco-Ala., No. 4, itself an employer meet- ing inter a direct inflow standard of the Board, and that assertion of jurisdiction by the Board is both appro- priate and warranted herein. '= THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's the Setting of the Labor Dispute As earlier observed, Respondent Kilgore Trucking owned and operated seven trucks in the conduct of its business of hauling coal for Invesco-Ala., No. 4, from the latter's mine pits 7, 9, 10, and 11. Roy J. Smith, R. L. Frasier. and Lyndell D. Smith have been employed by Kilgore Trucking as drivers of three of those seven trucks for 2 1-1/2 years, and 6 respective- ly. The record reveals that Willie R. J. has simi- larly worked in hauling coal in the above Kilgore Truck- ing operation though under lease, being directly em- ployed by Glen Kilgore as a truckdriver and paid by the latter All the above truckdrivers are related (within degree cousin kinship). Each is alleged in the complaint to have been wrongfully discharged by Kilgore Kilgore Trucking's remaining truck driven are Lee "Snuffy" Berry, Herbert "Slowpoke" Rolston, Smallee, and E. J. Elvis Brown, Jr. (its oldest driver). Employer is an with a place of business located in Bryant, Alabama where it is engaged in the strip mining of coal. During the past months, the Employer sold and shipped coal valued in of directly m facilities of Valley Authority located in the of Alabama. during the 12 months the Employer and valued in of from suppliers outside the State of I thus find it to reach and the General Coun- that Respondent's trucking operations are such as to constitute a or link in interstate com- merce. The name of Willie R. J. Smith as corrected at the Contrary to apparent of employ- ees R. L. and Roy J. Smith, that Brown was employed by Don Kilgore and, as well, contrary to same contention urged by Respondent in brief, I credit the positive testimony of Brown (called as a by Respondent) that at this time he employed and by Jimmy gore (Kilgore Trucking). I further note although on direct examina- tion Jimmy Kilgore related that in a with Brown at the shop on August he told Brown that Brown was not he was not employed by him. later, on in recounting his to the driven that day, that remark was omitted; and even more convincing, on o t k r occasion testified that at strike time Brown was employed by him, and some time later had employed by brother Don Kilgore. thus credit Brown, as he confirmed by Jimmy Kilgore. himself; and I must further view this as a major inconsistency Kilgore's account of his with Brown, Essentially, the drivers' normal hauling operation was that the drivers would regularly haul coal from the mine pits situated apparently within a 25-mile radius of a cer- tain washer operated by Robinson and Associates (herein Robinson) near Robinson's mine and located on top of a mountain. In doing so, drivers had to travel 6 miles over a dirt road. regularly kept the road watered down by a water truck during hauling operations in order to provide visibility for the drivers. The coal was hauled to the washer site, weighed at a scale house, and then dumped about yards away. The coal was then loaded on a conveyor belt and fed through the washer. It (at least some) drivers may be direct- ed to haul coal to other (delivery) locations. The truckdrivers will make 6-10 such trips a day to the washer, depending upon the amount of coal readied, the number of trucks in use at a pit, and the weather. Drivers will generally start the day at 6 a.m., and will run until 7-8 p.m., or until dark, at which time the washer is shut off because of the danger of a truck turn- ing over. Stopping at 3-4 p.m. was considered shutting down early. As noted, there were 14 trucks owned, and 14 employed, by Kilgore Trucking and Don and Glen gore. All of said driven were paid a 17-percent commis- sion on the coal hauled by the truck they individually drove. However, there were about other trucks and drivers from Tennessee leased by Kilgore Trucking at this time. The Tennessee drivers received a 20-percent commission rate (at least) from their on the coal they hauled from the same mine pits to the same washer. There is some seeming conflict as to how many days a week the drivers were regularly working at this time, whether 5 or 6, and whether they had by that time received Saturday as a regular day off, discussed further B. The Evidence The incidents of August 18. a. The early shutdown of hauling On Friday, August 18, the water truck of Robinson broke down and the road to the washer was thus no longer able to be watered down. Between noon and 1 p.m., though probably closer to p.m., Lester Black, an Invesco-Ala., No. 4, official, told Willie R. J. Smith and other drivers that they were being knocked off for the day because a Federal mine inspector had conducted a surprise inspection, had found the road was too dusty, and ordered that they shut down until they got the water truck fixed and the road wet down. As Willie R. J. Smith and another driver were already loading in the pit, Black instructed them that they should finish that load; but when that load was dumped they would be knocked off for the Significantly, it is clear that when the Respondent objected to the testimony of Willie R. Smith in regard to what the by Black on grounds such is hear- say. However. Willie R. Smith credibly that the No. 4) who instructed the driv- ers as to what they were to do when they (drivers) hauled coal from that enroute percent.le e.g., was lnvesco official direct leaned manna that Invcsco's Rapaport ita Invesco-Ala., subconlmcr; also fonner's des~gnated wan occurrence, performance coal. ru was I* mked testified ralse, raw, fired; they that nccessanly conclude some IS evidence. e l a l wale In orher dnven their Fra- driven. fint 12:30 p.m. Invesco "CB" Resmndent. b k k that Jimmy 1' of most J. meetlng Kil- thus om, 5 week; scheduled ~ t . 939 JIMMY KILGORE TRUCKING COMPANY (the Kilgores' and Tennessee) drivers got to the washer they all stopped work for the day. R. L. Frasier testified consistently and without any objection that Gary Brown, the scale man (at the washer site) told other drivers over the "CB" that they had been knocked off by the Gov- ernment man. Roy Smith, who was at the time to the washer, testified credibly (with corroboration by R. L. Frasier) that the road was just real dusty; that you couldn't see where you were going or if another truck was anywhere near you. Frasier testified without contra- diction that it was too late to get the truck fixed that day; and Roy Smith also confirmed without subsequent contradiction that it was going to be the first of the week before the water truck could be fixed. I am wholly per- suaded by the above credible evidence that all the above driven, including the Tennessee drivers, stopped work pursuant to direction, and not as a result of any strike action. b. The initial gathering of drivers at the scale house As the driven arrived at the end of their run at the washer, they parked their trucks and had an unplanned discussion amongst themselves, each expressing a mutual view to one another that they merited a raise in their commission, rate up to as much as the other (Tennessee) drivers received for doing the same work, and they de- cided that they would go down together and ask Jimmy Kilgore if he would give them the raise to 20 (The foregoing findings are based on mutually consistent and credited testimony of the drivers, Lyndell D. Smith, R. L. Frasier, and Roy Smith.) The driven did pit; and I am also wholly persuaded that Black an recognized by Kilgore Trucking as with authority to all the driv- ers that Kilgore Trucking supplied to haul coal (its own drivers and its driven) in that under its day-to-day contract with Company to provide such hauling services. Moreover, as earlier noted, Secretary-Treasurer testified that Kilgore Trucking hauled coal for subsidiary No. 4, under and he confirmed Kilgore Trucking delivered the coal loaded at the pit mines to sites by people at their mines. I thus find that Black's issuance of instructions to all drivers hauling from that pit a regular operative and thus a procedure and practice followed by Respondent in of ita subcontract to haul the Accordingly, I further conclude that the testimony of Willie R. J. Smith to the above work instruction, and explanation received from Black not inadmissible hearsay, being but in nature instructions given to him (and others) in accordance with Respondent's existing work prac- tice and procedure. Apparently only R. L. Frasier had initial misgiving that if they Kilgore for such raise they would get fired. Thus, R. L. Frasier that he said they can ask, but they will be fired when they do. Brown testified that he told the driven. Including R. L. Frasier, that they all would have to ask for a if just one asked for a he would get fired; and that "if you go one at a time and ask for a raise, you'll get but if we all go. we might get the raise." Brown also testified that Frasier did not say anything about it. However. Roy Smith testified that he heard Frasier say that he thought deserved a raise and if they asked for one, Jimmy would fire them. Initially. I observe these rec- ollections were not inconsistent. However. even were I to inconsistency present, it was not major. and more point- edly the statements of each are plausible in context. On the weight of the I am convinced that Frasier made such comment, and that it is more probable that Brown's remark was made subsequent and in response thereto. In that connection, whik the drivers did not a spokesman at the house, it is clear that Brown, the oldest driver, had taken lead questioning on arrival, as to their views. decide to drive (25-30 miles) in convoy to the shop, but to all meet first at the home of Willie Frasier (Willie sier is the brother of R. L. Frasier). Some of the drivers stopped directly at Willie Frasier's house, while a few went on to the shop, parked their trucks, and promptly returned to Willie Frasier's home. About five to six of the Tennessee drivers regularly parked their trucks at the home of R. L. Frasier (about 3 miles from the shop), as did the latter. Roy Smith testified that as he drove one of the fint trucks to leave the washer he went to the shop and parked his truck there. As he was headed out of the shop to his car, Smith met Jimmy Kilgore. Roy Smith acknowledged that even at that time Kilgore said some- thing to him about working the next day, but as Smith was headed out of the shop and aware that they were meeting (back) at the shop later anyway he replied to Kilgore that they had cut them off for that day and that he had something he really needed to do. With that he left, returning (with one other driver) in his own car to Willie Frasier's house for the second gathering of the All the Kilgores' drivers were there, with one or two possible exceptions. The driven talked further, and about 30 minutes later 12 to 14 drivers returned to the shop, including 2 to 4 Tennessee driven. Kilgore recalled that he heard there was going to be some trouble about noon to when his sec- retary gave him a message she had received from a local secretary of (Invesco-Ala., No. 4). According to Kilgore, the message he received was to the effect that there was a rumor that the men were going to strike; and that the men were not going to work on Sat- urday. In this record, there is credible support only for the latter. Brown. a witness for confirmed that they wanted the men to come and haul on Sat- urday, and that he did not want to work on Saturday after being knocked off on Friday. Brown also testified that all the men did not want to work on Saturday, adding that Saturday was supposed to be their day off. However, I credit the testimony of Willie R. J. Smith, Lyndell D. Smith, and Brown that there was no plan to strike, or " C B talk about a strike. I am also persuaded and credit the testimony of Roy Smith, Lyndell D. Smith, and R. L. Frasier essentially that there was no general protest by the men on working Saturdays. How- ever, I am convinced, and I find, that some of the men did not want to work Saturday." c. The meeting of the drivers with Kilgore at the shop Some time between 3 and 4 p.m. the truckdrivers left Frasier's house and went to the shop to talk to Jimmy That this was not the major consideration the gatherings in any event is seen clearly by the testimony of Willie R. Smith that he heard nothing said about Saturday work prior to the with gore at the shop, not at the Washer and not at Frasier's house. Nor was Brown's uncorroborated testimony, that at this time Saturday had become their regular day persuasive. Frasier, in contrast, testified that they worked or 6 days a and Kilgore's testimony that they had been to work on that Saturday because of prior bad weather, is both plausible and consistent, and I credit Although Brown was actually called by Respondent, he was present at hearing apparently pursuant to subpena of the General Counsel. though not called by came. ')40 talk l 8 drivers "sorta too.20 fired.21 drivers;22 I' Inveaco had Fruier's effect record question J." appumtly than Pruier wra been naked aa d o a In re- s p t . 2 1 Willii essentially said j u t *' Counsel's same as discharge tions same is aa the discriminntee as pmbably recelved war also j u t In beyond discharged. having Kil- S a t ~ r d a y . ~ ~ wu; discriminatn others) Kllgore discriminate Sm~th so find infm. 2J test~fied DECISIONS O F NATIONAL LABOR RELATIONS BOARD Kilgore about a raise. On arrival they saw Don Kilgore and asked him to get Jimmy Kilgore as they wanted to to him. On arrival at the shop, Kilgore asked the men what the trouble was and if they were going to work Satur- day. Brown replied, "They cut us off on account of the dust and we don't want to work tomorrow, a bunch of us have things we need to do." Kilgore replied, "We need to try to work." Three or four of the drivers then responded that if they went over there, they would just shut down again because of the water truck (condition). Brown told Kilgore, "We want to ask you about a raise, we need a raise to 20 percent, like the rest of the were getting." (R. L. Frasier related some were getting as much as 22 percent). Brown testified that he was told by Kilgore he was fired. R. L. Frasier initially testified that Kilgore told Brown that if Brown felt like that, they didn't need him anymore anyway; though on further ex- amination Frasier testified Kilgore told Brown if he (Brown) felt like that, that he was fired. Roy Smith testi- fied that Brown was the spokesman" and that after Brown had asked Kilgore for a raise to 20 percent for all of them, he (Smith) did not believe Kilgore re- sponded to Brown right then. Then Kilgore turned to R. L. Frasier and asked Frasier, if he felt the same way, and when Frasier replied yes. Kilgore told Frasier. "You are fired Kilgore turned to Roy Smith and asked what he thought, and when Smith replied he thought they should get 20 percent. Kilgore told Roy Smith he was fired Then Kilgore said everybody that feels that way is Don Kilgore, also present, said that Glen (Kilgore) could not be there but he told Don to tell Jimmy that whatever he did with his (Jimmy Kilgore's) drivers, it was alright to do to his and Don Kilgore stated "my two [drivers] is fired too." Kilgore relates that he received information as to labor counsel that used in the put. According to Kilgore, he called counsel from his home prior to this mating. R. L. testimony to the effect Frasier war told by Kilgore he war fired. w u corroborated by Roy Smith. Willie R. J. Smith, and Bmwn. Roy Smith's testimony to that w u corroborated by Willie R. J. Smith. The reflects that R. L. Frasier recalled the u put to "R. Roy J. Smith rather Willie R. J. Smith whom R. L. otherwise referred to only as Bill or Willie. More- over, as Roy Smith an employee of Jimmy Kilgore, it is more likely he would have singled out and the question. As noted. Willie R. J. Smith's testimony supports the former Kilgore's that The foregoing is according to mutually consistent testimony of R. J. Smith. Roy Smith, and R. L. Frasier. I note, additionally, that, in corroborating. Lyndell Smith testified that Kilgore that he wuld not afford to give it to them and if they felt that way they were fired. There is some variance in the record on this matter. Initially, testi- mony on this matter by R. L. Frasier was on objection sustained, over the General offer of pan of the conversa- However, the matter war then next essentially testified to by Roy Smith, without objection, though he recalled it in terma of "they w u fired." The above statement shown testified to by Willie R. J. Smith, directly involved alleged (employed directly by Glen Kilgore) which I credit being more accurately recalled. Lyndell D. Smith'a version, next over objection of Respondent. essentially corrobortative, though again recalled in terms of "to fire them too." Kilgore har not denied any of the above remarks as made by Don his presence, general denial that the drivers were The foregoing is deemed receivable as evidence of Kilgore testified essentially that he knew his rights, having worked union and nonunion jobs and spoken to counsel before the meeting. He testified that he knew he could not discharge the drivers; that he needed drivers to operate; that he did not fire the drivers that they did it themselves; and that he has never refused to reinstate the employees (named in complaint). gore's version essentially tracks that of the drivers except he has them saying that they would not work without a raise and/or Saturday off, if it meant their jobs; and that he did not fire anyone. Jimmy Kilgore's version of the above discussion was thus as follows: Kilgore testified that 90 percent of the local drivers were present as well as three to four of the Tennessee drivers. Kilgore related that several of the drivers had been drinking and that Brown offered him a beer which he refused. Kilgore asked the drivers what was the problem. R. L. Frasier started to talk but Brown took it over. According to Kilgore, Brown said, "We are not working tomorrow, and I'm not working for 17 per- cent if it meant our [sic] jobs." However, on cross-exami- nation he related the latter remark to both working for 17 percent and working on Kilgore relates that he replied, "Fellers, let me tell you something I've been through here before, and I've worked union and nonunion in about 28 different states and all kinds of jobs and jumped about every rope they can throw"; and that they were going to have to work this thing out and do the best they could. Kilgore told them they were making more money with these trucks than he that he was not running enough to make his payments. He related generally that the men were jumping up and down, wanting to fight a little bit; and then has Brown saying, "Do you mean I'm fired," to which he replied, "No, you don't work for me." (On the latter aspect I do not credit Kilgore's account in regard to Brown, previously noted as inconsistent with his own testimony.) Kilgore related he then asked R. L. Frasier, "How do you feel about this" and has Frasier reply, "Brown spoke for every- body, I'm not working even if it means my job." Then he asked Roy Smith who replied, "Brown spoke for ev- erybody." According to Kilgore he then said, "If that's your deal get your shit and get out of my sight." On cross-examination, Kilgore also testified that in this con- versation he told them that they would get their raise when he got his raise; that they kept on with questions why the other people pay drivers 20 percent and why he cannot pay 20 percent and he told them to get their shit and get out of his sight because he had put up with all what alleged Willie R. J. Smith (as well as were told in the presence of Respondent; but seemingly would remain not properly constituting evidence of what Glen Kilgore may have actually told Don to tell Jimmy, though that alleged Willie R. J. understood it, is clear from his other testimony that "Glen sent word by Don"; and Glen Kilgore essentially confirmed and/or rati- fied it on the occasion of the latter, giving Willie R. J. Smith his check at the shop on the next Friday, Lyndell D. Smith and Roy Smith denied hearing any reference to not working for 17 percent if it meant their jobs; and Frasier no one made that remark in relation to work on Saturdays, and denied that Brown said they were not going to work until they got a raise. intended.24 Dan- "CB" (personal Kil- all matters. ' r-id ievealed circ~mstance that persuade M F~~~~~ also tntified that a Tennesvc driver did why Kilgore ~ i l g o r e R. L. Frasier, who not 20 slnce boss could ~ i l g o r e work with someone else, and did not go back to dr~vers 570.000-S80.00O. aaaarentlv that driving not The that - Willie JIMMY KILGORE TRUCKING COMPANY 94 1 he Kilgore also related that "Peewee" ford Dowdy (a driver employed by Don Kilgore) asked him if he was going to put just anybody on these trucks; and that he replied that it looked like he had just any- body on them, a bunch of drunks, running up and down the road cursing on the all the time, and a bunch of disrespectful people. (Kilgore testified that he had per- sonally trained 90 percent of his driven.) d. Post-meeting activities On August 18, prior to the shop meeting, R. L. Frasier had left his truck at his own house, about 3 miles away from the shop. Kilgore told Frasier he wanted the truck brought to the shop. Frasier told Kilgore that as soon as he got his stuff belongings) out of the truck he would bring the truck to the shop, which he later did that afternoon without incident. Roy Smith took his be- longings out of his truck which was parked at the shop and he promptly left. Willie R. J. Smith took his belong- ings out of his truck and went home. (Kilgore acknowl- edged generally that after the meeting he helped driven get their belongings out of the trucks.) Lyndell D. Smith kept his belongings in his pickup and he just left immedi- ately. Notably, Lyndell D. Smith also testified that he had seen no drinking while he was there. I am fully con- vinced that none of the above four drivers took part in any boisterous drinking before their departure; and gore has accused none of them specifically of such. Kilgore related that after the meeting was over and after the driven had left he remained inside the shop thinking the situation over, when he heard a bunch of shots and someone "turn a tailspin." The shootings had taken place at a lot adjoining his own shop lot where his trucks were parked. Kilgore went to his home for his rifle, and by the time he amved at the location of the shooting the Rainsville police were already on the scene. Apparently there was an eyewitness who could identify the truck and recognized the persons involved, though not by name. In any event, the above four drivers have denied any knowledge of this shooting incident, and no evidence was offered indicative of their involvement in any way therewith. No evidence was offered that there was any damage to the trucks. However, the record re- veals that the Tennessee trucks were later removed from R. L. Frasier's house lot (where they were regularly parked) about 11 p.m. that night. Kilgore remained in the shop area that night, but there was no further incident. e. Subsequent events As noted, Rainsville is a small mountain community. Kilgore related that, on Saturday, rumors were rampant in the community that the drivers (apparently particular- ly the Frasiers and the Smiths who are all related) were going to try to put Kilgore out of business. Kilgore relat- ed that there was no work performed on Saturday be- could not pay the percent his and, as noted. Lyndell Smith recalled that said that he just could not afford to give it to them and if they felt that way they were fired. Kilgore testified he gave his reasons to the which apparently ihcluded that he had trucks valued at and . . others were "junken." cause there were no hands. However, there was no evi- dence offered for the failure of the Tennessee driven to report for work, if indeed such was scheduled and or- dered; itself indicating that there was no attempt made to operate on Saturday, in part because of Friday's frag- menting work force developments but also in significant measure with recognition of the water trucks continued nonavailability over the weekend. In any event, Kilgore utilized the weekend to begin preparation of the equip- ment, and with effort to line up driven in order to be able to operate on Monday. On Saturday and Sunday he made efforts to obtain new driven through the local radio station. Kilgore testi- fied that he also called everyone with a phone who was home to see if they were going to be ready to go to work, but they were sticking together. On Sunday he personally made the trucks ready for operation on Monday. Of the above four drivers, the record reveals that Kilgore directly contacted only Lyndell Smith, no- tably the only one of the above four driven who was both employed by him and whom the General Counsel's witnesses show had not been individually, directly ques- tioned by him in group discussion the day before, and fired. Kilgore personally went by Lyndell Smith's house to talk to him. Lyndell Smith confirmed that Kilgore came by his house on that Sunday and asked him if he was going back to work. According to Smith, he replied "no," and said nothing else at the time; and testified that he (Lyndell D. Smith) has not been back (to work) since. Kilgore did assert that he did not have the time to visit everyone on Sunday as he was busy with other prepara- tion Kilgore does relate that he was called by Rolston on Sunday night, and that Rolston, Berry and Smallee came on Monday but did not work. Kilgore as- serted that he also sent word by Lee Berry (a next door neighbor of Roy Smith) to see what Roy Smith was going to do. However, no evidence was offered that contact and/or inquiry of Roy Smith was made by Berry on Kilgore's behalf; indeed, Berry did not testify, and thus Kilgore is not corroborated that he had made such request for an inquiry of Roy Smith, one of the drivers whom he had allegedly fired earlier. Roy Smith testified only that he did not go back to the Company for a job, though he was aware some of the others did. Kilgore ac- knowledged that he did not subsequently hear from Roy Smith. In that connection however, that Roy Smith had remained interested in employment by Kilgore is readily discernible from the he was one of a group of driven who met the Tennessee driven who were operating at the mine pit on Monday and asked them not to haul coal in order to see if that might Kilgore to give the driven the 20 per- cent they had requested and all of the Tennessee drivers did stop work that day in support. did not contact did have a phone. Frasier testified that he subsequently ob- tained Respondent for a job. Willie R. J. Smith apparently also R. J. Smith did go by the shop the following nails/tacks was nails.26 sumcient it.86 driven 8(a)(1) 8(a)(1) thnt convemtions driven. Chattanmgq Term-, to inqu~re unionhoard percent, fired, nail/tacks aner Rainsvilk. is w o r d testified, withoutSpecific eslabliah the vri, others) cod, if Harvard ." arguendo, v~olative 8(a)(l). condi- 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friday to pick up his last check and arrived at a time when Kilgore was at the shop. Kilgore said nothing to him; and Willie R. J. Smith waited for a few minutes and picked up his check from Glen Kilgore when he arrived. Kilgore acknowledged that on Monday the coal-haul- ing operation ran only at 30 percent. Kilgore asserted in offered explanation that some of the drivers had received threats. However, no direct evidence thereof was of- fered; and more pointedly, there is nothing in this record to link any of the above four drivers therewith, in any way. There is evidence in the record that on Monday even- ing, were thrown out by someone along the mine entrances, roads, and some homes; and that several operating trucks and Kilgore's personal vehicle suffered flat tires. Kilgore contacted Brown that evening and pressed him for information on this development with as- sertions that he regarded this as a wholly different matter. The short of it is that Brown admitted to Kilgore that he (alone) with Willie Frasier when the latter bought some Brown denied that he had personal- ly thrown any nails and testified that after he found out what was done with the nails he was out of it, and so informed Kilgore. More pointedly, all of the four above drivers have denied any personal knowledge of the nail/ tack strewing incidents; and there is no record evidence of stature to connect any of them with Kilgore then contacted a number of the again, Monday evening, pressing damage to trucks was a differ- ent matter. With new hires and the drivers returning, work resumed on Tuesday. 2. The contentions of the parties The complaint alleges, the General Counsel contends, and Respondent denies that, on August 18, Respondent discharged and thereafter failed and refused to reinstate Riley Leonard Frasier, Lyndell D. Smith, Roy J. Smith, and Willie R. J. Smith, because they engaged in concert- ed activities with other employees for the purposes of collective bargaining and other mutual aid and protec- tion in violation of Section of the Act. There are no independent violations of Section alleged. Essentially it is the General Counsel's contention that the evidence herein reveals that certain of Respondent's employees banded together on August 18 at one of their work places after they had been shut off from work for dangerous road conditions, and at that time decided amongst themselves that they were due an increase in The record reveals after the with the Tennessee Willie Frasier and Brown had left the other drivers (including Roy Smith) and gone to of some what could be done about their employer not paying them 20 but were allegedly told that being already they could not be helped. The incidents (in time) occurred they had returned to It clear of that Kilgore's view was the nails were picked up by them and thrown out on their return from Chat- tanooga. Roy Smith, who war in the car earlier in the day, testified (I find credibly) that he did not see nails in the car at that time. Willie R. J. Smith did testify that he picked up nails from his own driveway; confirmed by his brother Lyndell D. Smith who also did not know how they got there. R. L. Frasier contra- diction, and I find credibly so, that he knew nothing about any fight; and further Kilgore did not that any of Smiths before me en- gaged in any specific unlawful conduct. their commission rate of pay from 17 percent to 20 per- cent so as to bring their pay up to that received by other drivers working in the area doing exactly the same work. However, when they thereupon went to Respondent's shop and requested a raise in their pay to 20 percent from Respondent's owner, Jimmy Kilgore, they were im- mediately discharged by Kilgore. Respondent denies anyone was discharged. Essentially Respondent requests the Board to be par- ticularly attentive in this matter to the setting in which these various incidents occurred, noting that Rainsville, Alabama, is a small mountain town and all involved are mountain people. Respondent requests as well that the record be scrutinized as being one involving a so-called "magic word" case, "fired." It is Respondent's con- tention that these individuals were not fired. Respondent contends that Jimmy Kilgore learned via a " CB report that the men were going to strike; that the men made de- mands which were not met; that Jimmy Kilgore did not subsequently fire the men, but rather the persons named in the complaint (and actually engaged thereafter in a strike which lasted at least through the following Monday. Respondent would rely on an absence of any motivation on the part of Kilgore to fire the men whom he needed to haul and as well on certain later ac- tions of the men themselves which Respondent argues in- dicate they themselves did not believe that they were fired. Respondent further contends that at the time of the al- leged discharges Jimmy Kilgore had been given an ulti- matum by the men which essentially was that the men were not going to work on Saturday, and also that they were not going to haul coal anymore for less than 20 percent, it meant their jobs. It is Respondent's conten- tion that, after consulting counsel, Jimmy Kilgore was at the time faced with a confrontation of an angry crowd; nonetheless made a plea to the men "admittedly not , stated on his knees or as a Law School graduate would have stated it . . . but which was in essence an invitation to "work this thing out and do the best we can." Thus Respondent argues that when Kilgore later rejected their "deal" and ordered the men off his proper- ty, the men may have construed his words to mean they were discharged, but they were not. The General Counsel contracontends Respondent has vacillated in its positions from essentially the contention that the men resigned to the contention the men engaged in a strike. Alternatively even assuming, that Kilgore did not use the words "you're fired" the General Counsel argues the test in any event is whether the state- ments and actions of the Employer would reasonably lead its employees to believe they were discharged, and argues the words Kilgore concedes he used, did just that; and further even assuming the employees had threatened to discontinue working until their demands were met, to discharge them for even that conduct would be of Section The General Counsel alternatively fur- ther argues that in the circumstances of this case, by virtue or Section 502, any contemplated work stoppage on Saturday was due to abnormally dangerous nail/tack impermissible nails/tacks, *' 8(aXI) I p r o t e c t i ~ n . ~ ~ '' has hereln hat Frasler as hlmself dld the IS dlffer~ng) mo- tlvations via deslre brlieved) early Kil- 8(a)(l) I persuaded alio - Kilgore's ~ i m k ~ ~ i i g o r e 'Thus themz9 wlsh \ame agatn 2B Sec. 13 Sec. 501(2) JIMMY KILGORE TRUCKING COMPANY 943 tions, which by definition of the statute is not to be con- strued as a strike. At the hearing, Respondent advanced the in- cident, etc., as bearing on potential reinstatement issues, but has not advanced any such contention as to any of the above four individuals in brief, though appearing therein to have the reserved right, inter alio, to do so. In regard to reinstatement, the General Counsel argued that as to any conduct that may have occurred in regard to shooting, or threats, there was no evidence offered that any of the employees named in the complaint engaged in any such conduct. Respondent finally has contended that the complaint allegation as to Willie R. J. Smith must, in any event, be dismissed, as the record has revealed clearly that Willie R. J. Smith was simply not an employee of Respondent Kilgore Trucking, the only employer alleged in the com- plaint. The General Counsel has not addressed that issue in brief. 3. Analysis, conclusions, and findings Section of the Act makes it an unfair labor practice for an "employer . . . to interfere with, restrain, or coerce employees in the exercise" of their Section 7 rights. One such Section 7 right clearly guaranteed by the Act is the right of employees to "engage in . . . con- certed activities for the purpose of mutual aid or protec- tion." Clearly, in banding together at the washer and in en- gaging in discussions about their wages and their having to work the next day, the drivers of Kilgore Trucking (and of Don and Glen Kilgore) were all engaged in pro- tected concerted activity for their mutual aid or protec- tion as they were again when they later presented to Jimmy Kilgore at the shop their collective request that they be paid at a commission rate of 20 percent, the same as the Tennessee drivers were (at least) then receiving for doing the same work. have also found that Brown and some other drivers had initially told Jimmy Kilgore at the shop, on the occasion of his broaching the subject of their working the next day, that they did not want to work that Saturday. The expression by these employees of their desire not to work on the following Saturday under the existing and (reasonably) viewed questionable safety conditions brought about by the known break- down in the water truck, was no less an engagement in protected concerted activity for their mutual aid and It is clear that the drivers' demands for a It is observed the complaint does not allege, and the General Coun- sel not sought, to contend Respondent unlawfully dis- charged and/or refused to reinstate Brown. (It appears that Brown was called several times before employment by Don Kilgore 3 to 4 months later.) It wilt be recalled that Riley L. filed (amended) charge an individual on October 4 only on behalf of and three other drivers. but not include Brown. As the complaint does not contain allegation that Brown's discharge was unlawful. nor General Counsel sought to contend such herein, on the facts of this case, I do not address such consideration further. This so whatever may have been individual (even if of the employees involved in stating that position, whether out of not to work that particular Saturday on which some drivers had already planned to do other things, where they were being directed lo work (or so they only because they had been shut down that Fnday due to a failure of equipment and through no fault of 20-percent rate commission and not to work Saturday di- rectly addressed terms of their wages, hours, and work- ing conditions. I readily find on this record that the driv- ers, in presenting either or both as demands made on gore Trucking (which had the subcontract with Invesco), were thereby engaged in protected concerted activity for their own mutual aid and protection. The charge and complaint alleges that four of their number, upon engaging in such protected concerted ac- tivity, were promptly discharged by Respondent Kilgore Trucking in violation of Section of the Act. Re- spondent defends that these drivers (and others) were not discharged at all, but had previously planned to engage in a strike, and simply did so (presumably prematurely). Not only to a man have the General Counsel's wit- nesses testified that they had no prior plan to strike, but Respondent's own witness, Brown, on direct, confirmed such was the case. Kilgore, for his part, admits to no personal knowledge of employee prior stated strike intention, and in support of his claim he only offers a report of a secretary that is suggestive of the contrary of what all the other witnesses have testified was the case. I do not find such insubstan- tial offer a convincing base to support a finding that the drivers had an established prior plan to strike if their de- mands were not met. T o the contrary, on the weight of the credible evidence I specifically do find that the driv- ers had neither discussed amongst themselves nor planned to strike before their meeting with Respondent at the shop. On the other hand, am by the weight of the evidence that the drivers had been informed by local Invesco officials that work was scheduled for the next day (Saturday); and that some drivers, inter dis- cussed that matter amongst themselves though not as uniformly as they discussed their real and mutual desire for a raise in their commission rate to 20 percent. I have also found that they expressed their desire directly to Kilgore that they did not want to work that Saturday and pressed their desire in the face of urging that they needed to try to work, with statement of rea- sons (essentially relating to the broken down water truck). Construing their stated position of not wanting to work on Saturday as a demand made upon Kilgore Trucking, it would appear readily apparent that they did so at a time when they had already been knocked off from work for that day. The drivers had no more as- signed work to perform that day after they returned to the shop, had parked their trucks, and then requested to see to discuss their demands. the drivers, being then in a nonwork status, were seemingly (at best) only threatening a limited future strike action of not working that Saturday, if Kilgore Trucking required it of Be that as it may, either conduct by the as- their own: or. s more probably appears collectively was the case, be- cause they did not to work that Saturday due to their (reasonable) expectation that, in the absence of a functioning water truck. the unsafe and/or adverse working conditions would soon arise as had led to their shutdown earlier that Friday, and concurrent belief that if they did attempt to work, they would only be promptly shut down again. of the Act preserves the right of employees to strike: and defines: Continued 8(aX1) is, Kil- driven driven hoec verbo, de- term lncludes in- termption So striken jobs N.LR.R Stomge Cbrporation. F.2d 1953). at Inc.. 104041 substquent picket~ng actlv- ~ t y of rarlier 1040. mands Kil- supm response(s), 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sembled drivers (threatening strike, or engaging in a strike) is itself concerted activity, and protected where it is accomplished for purposes of "mutual aid or protec- tion," as it clearly was in present circumstances; and any discharge by Kilgore Trucking for either activity by its employees would in turn be violative of Section of the It however, readily apparent and I find on overwhelming evidence presented herein that it was the pressing by the drivers for a raise to 20 percent in their commission rate what was the precipitating factor in the outcome of their confrontation with Jimmy gore at the shop on Friday. Consequently, in my view, and contrary to Respondent's apparent urging, the con- tinued pursuit of an attainment of that very increase by certain affected drivers through an explanation to the Tennessee on Monday of what had happened (on Friday) and the expression of a request of the Tennessee drivers for their support by a cessation of their work for Kilgore Trucking in order to help the drivers get the de- sired 20 percent is a wholly consistent course of action. Accordingly, the circumstance that the request made of the Tennessee drivers was in terms of obtaining the com- mission rate that the Tennessee were (at least) al- ready receiving, and not expressly in terms that the driv- ers could get their jobs back (which would appear to follow an employer subsequent willingness to grant the raise), is, in my view, simply not persuasive that these drivers had not been previously discharged and were at that time only (voluntarily) striking employees. The central factual issue in this matter may be now simply stated and considered in terms of an analysis of the evidence of that Friday's events, and is: did Kilgore Trucking "fire" these named employees (in or otherwise) for threatening to refuse to work Saturday, and/or, but essentially, because they pressed for a raise in their commission rate to 20 percent; or did Kilgore not tell the drivers that they were "fired" at all, but rather, in contended context of the drivers saying that they would not work Saturday or for 17 percent any longer if it meant their jobs, did Kilgore, in telling them that if that was their deal to get their shit and get out of his sight because he had put up with all he intended, simply, essentially, only reject their demands, so that their subsequent conduct was voluntary (strike) action on their part. Subordinate questions of fact on the latter are whether the employees ever in fact placed their demands in terms of if it meant their job; or whether the employ- ees would, in any event, reasonably understand that they were terminated, or (though inartfully stated by Kilgore) should have and/or did understand only that their The "strike" any strike or other stoppage of work by employees . . . and any concerted slowdown or other concerted of operations by employees. It is not open to question that it is an unfair labor practice to dis- charge economic prior to the time when their are filled. v. United States Cold 203 924. 927 (5th Cir. cert. denied 346 U.S.818; as it is to discharge employees a time when they have only threatened to strike. American Truck Stop. 218 NLRB 1038. (1975). In passing. I further observe that engagement in continued concerted strike or by employees is neither inconsistent nor incompatible with a finding an unlawful discharge of employees for threatening to refuse to work. id. at were not to be met; or whether they then simply voluntarily struck to enforce their demands. To begin with, contrary to Respondent's urgings, I conclude and find that the General Counsel's witnesses have testified in a essentially corroborative, mutually consistent, and otherwise convincing manner that gore told initially certain individuals (employed by him) who continued to press him for a raise to 20 percent that they were fired; and then immediately to everybody else who felt that way (which by its terms reasonably would extend to all the drivers assembled) that they were fired also. Apart from Kilgore's uncorroborated denial that he discharged any driver, Respondent's major points of ar- gument in support of Kilgore are for discredit of the General Counsel's witnesses. The arguments would appear to be that they had earlier planned to strike, and did subsequently engage in conduct incompatible with earlier discharge but compatible with voluntary strike ac- tivity with purpose to obtain their initial demand for the raise (arguments considered and found wanting in persuasion); that the General Counsel's witnesses have exhibited a fatal inconsistency in their accounts of the discharges in that only R. L. Frasier and Brown have testified that Kilgore initially told Brown that he was fired, while others did not so testify; and finally, because these witnesses who otherwise supply the so-called magic word "fired," are all related. I observe, firstly, that the General Counsel's other wit- nesses have not testified that such a response to Brown did not occur; their testimony, excepting Roy Smith who has testified only that he did not believe Kilgore re- sponded to Brown, initially (but did not affirmatively deny any specific utterance), rather is silent as to any re- sponse by Kilgore to Brown, and they were not ad- dressed to this fact issue by specific question. Nonethe- less, there is some variance in their testimony and that of Brown and Frasier in that aspect. On the other hand, Brown, a witness called by Respondent, was corrobora- tive of certain testimony of the General Counsel's wit- ness, R. L. Frasier, that he was told he was fired; though Frasier had also testified initially that Kilgore had told Brown he did not need him anymore before posing the question to Frasier how he felt and firing Frasier when he received a similar answer from Frasier. With that background observation I address the remainder of the evidence as to Kilgore's statements to the drivers. Secondly, it is observed that Kilgore confirms that Brown had been a prominent speaker to him on the sub- jects of employees' desire not to work Saturday and for a raise to 20 percent. The variance in fact is thus not whether the two had a prominent discourse (which many witnesses confirm) but as to Kilgore's if any, to Brown. I have earlier noted that Kilgore's version in- cluded (as to Brown) his response to an asserted question posed by Brown-"Do you mean I'm fired" (noted as being wholly compatible with Frasier's initial recollec- tion that Kilgore had told Brown that they did not need him anymore anyway)-was "nov-that Brown did not work for him. However, Kilgore's asserted response was otherwise not supported in the record; and indeed ap- pears itself to be wholly inconsistent with Kilgore's still cross-examination, appeat persuaded haec wrba, 8(a)(l) (e.g., ap all Lyn- 945 JIMMY KILGORE TRUCKING COMPANY other testimony on the point of Brown's employment during the (argued) strike. Thus, on direct examination by Respondent's counsel in regard to Brown's employ- ment, Kilgore had also testified: "He worked for me during the strike and he come back driving for my brother." The record reveals that Kilgore was in context testifying as to employees who had worked prior, and had returned. In contrast, Brown in testifying as to his prior employment was nothing short of categorical on the point that at that time he had worked for and was paid by Kilgore. I am thus not at all persuaded to readily accept Kilgore's uncorroborated and self-inconsistent version over Frasier's and Brown's essentially consistent recollections in that regard, particularly where others have not only also recalled Brown's prominence as a speaker but have otherwise all confirmed that contempo- raneously, Kilgore informed R. L. Frasier, Roy Smith, and everybody else who felt the same way that they were fired. Neither am I persuaded in that context that any such variance has critical significant bearing on the credibility of all these witnesses who have otherwise tes- tified in a mutually consistent and corroborative manner, and whose cumulative testimony, if credited, leaves no area of misconception by each driver present that they were fired if they held that view, clearly inclusive of those who had previously declared that very view, thus including Brown. The circumstance that the General Counsel's witnesses are all related is but one factor bearing on their overall credibility; and on this record and from my observations, is far from being determinative that they should all be discredited on that account. To the contrary, the cumu- lative weight of the testimony of these sequestered wit- nesses, in the light of their extensive makes it to as far more probable than not that Kilgore did eventually tell them on that occasion that they were fired, in the manner they collectively have re- lated, which would also explain their so testifying, irre- spective of such relationship. In contrast, while this record of events in several respects would appear to indi- cate that Kilgore was a self-made and self-sufficient indi- vidual with prior varied work experience of his own to draw upon, and had also consulted Counsel that after- noon prior to the meeting, the same record inescapably reveals, and I find, that Kilgore was also both an excit- able and unpredictably expressive person who viewed the actions of the drivers he had trained as disrespectful. Neither did I find myself by Kilgore's uncor- roborated testimony ascribing to both Brown and Frasier the phrase "if it meant his, their jobs," in the face of the again mutually consistent and corroborative denials by the drivers that such remarks were heard made by anyone present. On the basis of all of the above circumstances, I thus conclude that the weight of the credible evidence has predominated in support of the General Counsel's con- tention that when the drivers had continued to press their request for a raise, they were told that they were fired, in the manner they have mutually testified above; albeit I am as well convinced that such did not occur until after they had told Kilgore that they did not want to work the next day and had rejected (with reasons stated) an initial (but not thereafter continued) urging on Kilgore's part that they at least ought to try to work; and after as well, and far more significantly, the drivers had requested and had continued to press Kilgore for a raise to 20 percent, despite his offered explanation for not granting them the raise which was because, essential- ly, that he was not running enough to make payments on his trucks which cost more and were better for them to drive, and thus he could not afford it. I would otherwise find there is substantial merit in the General Counsel's al- ternative contention based on what Kilgore has asserted he said to the drivers on this occasion. Thus, even were Kilgore's version to be accepted that he did not tell the assembled employees that they were fired, in in the light of all the other attendant circumstances found above, and even assuming that there existed a presently stated threat by the assembled drivers to strike or refuse to work in the future if their demands were not met, I would nonetheless reach the same con- clusion that these drivers were, in substance and effect, told they were discharged for their concerted activity in those respects, and that a violation of Section is made out. Kilgore's ultimate recollection is that he essen- tially had only told the assembled drivers that if that was their deal threatened strike action in support of their demands), they should take their shit and get the hell out of his sight, because he had taken he intend- ed. Whatever slight area of ambiguity might be said to exist in Kilgore's remarks which might be (presently) ad- vanced as sufficient to enable argument that Kilgore did not really intend thereby to discharge the drivers, and that their fear of discharge that preexisted had made them susceptible to drawing a conclusion that they were discharged, but unreasonably so; any such ambivalence of the remark was promptly dispelled by Kilgore's subse- quent actions when Kilgore immediately thereafter called in his equipment from Frasier, and immediately actively participated in the prompt removal of their belongings . from his trucks. Under of these circumstances, even were I to accept Kilgore's version of what he had finally said to the drivers before their departure, I would find that the grieving drivers would have reasonably under- stood therefrom and been promptly confirmed in their understanding from Kilgore's own subsequent actions, that they had been fired. Finally, in my view, Kilgore's statement and subsequent actions were simply not so much construable as a final direction to the drivers to report for work as scheduled under their established terms and conditions of employment (which was Respon- dent's unquestioned right), leaving the ultimate decision of whether (or not) to actually report for work as sched- uled then up to the drivers, but rather a preemptive an- nouncement on Kilgore's part of a present termination of those who had already declared, and any that did there- after intend to press their demands in that fashion, as they then all well (and reasonably so) understood, Sigma Service Corporation, 230 NLRB 316 (1977); AMP, Incorpo- rated, 218 NLRB 33 (1975). Accordingly, for all of the above reasons, 1 find that Respondent Kilgore Trucking has discharged its own employees Riley L. Frasier, dell D. Smith, and Roy Smith in violation of Section 8(a)(I) Act.31 evi- 8(a)(l) em- sub- (hereinafler 8(a)(1) Kil- 8(a)(1) 8(a) relati~nship.~~ 1 addreas abnonnally In was Sat- orday; rnvolve J 2 enterprise, party Stores, Inc., 243 A. M. Sfeigenuold 1512. 1515 stantial h i pattern.34 Kil- I n v e ~ c o . ~ ~ date.36 sole costomer, viz, Compony. 101 1257, (1952); Hudgens N.L.R.B, YJ7, 510, Inc.. rupm Satm Be- lams Inc, The Glen as l e a d T ~ c k i n g . 1-1/2 yean, testilied trucka contimed Rapaport Invesce Ala., omcials. confirmed Kil- T ~ c k i n g ; teatilied varylng Tennesee compmiea, $52,000. Kil- Company's operation so w ~ t h Ieastng 946 DECISIONS O F NATIONAL LABOR RELATIONS BOARD of the There remains to consider Respon- dent's final contention raised in defense that it did not discharge Willie R. J. Smith. 4. The alleged discharge of Willie R. J. Smith Thus. Respondent has contended that the allegation of the complaint that it has discharged its employee Willie R. J. Smith Smith) in violation of Section must in any event be dismissed because Smith was not employed by Respondent Kilgore Trucking, but by Glen Kilgore. Respondent has cited no authority. The General Counsel has not addressed this specific issue, having contended only generally that Respondent gore Trucking had discharged all the above employees named in the complaint because they had persisted in making a request upon Kilgore for an increase and urged it upon him as necessary. Respondent has correctly observed that it is Kilgore Trucking that is alleged in the complaint as Respondent and to have discharged its employee Smith for having engaged in the protected concerted activity with the other employees (as heretofore found) in violation of Section of the On the evidence before me, I conclude that Smith was employed by Glen Kilgore. However, this conclusion would appear not to end the inquiry; for to the extent Respondent would contend herein that there cannot be a violation of the Act by Kilgore Trucking simply because Smith was not an employee of Kilgore Trucking, clearly such argument cannot prevail without further consider- ation of the evidence, in the light of existing Board and Court precedent to the contrary. Thus as recently stated by the Board: . . . In implementing the statutory protections pro- vided for employees who exercise their rights guar- anteed in Section 7 of the Act, this Board has con- sistently held that an employer may violate Section of the Act not only with respect to actions taken affecting its own employees, but also by ac- tions affecting employees who do not stand in such immediate employer-employee find it unnecessary to the General Counsel's still additional contention that even a refusal to work on Saturday would not constitute a strike based on presence of dangerous working conditions and the cases cited the General Counsel's brief as hearing thereon, beyond noting that I have found above that the drivers were discharged before there actual failure on their pan to perform any work on and a discharge on that Friday for (only) threatening to refuse to work on Saturday because of anticipated conditions would be violative of the Act whether the employees had correctly viewed the working condi- tions of the next day as likely to abnormally dangerous working conditions, or not. In that connection, the complaint does not allege, nor has the Gen- eral Counsel sought heretofore to contend that the operations of Kilgore Trucking and Glen (and Don) Kilgore are such as to have constituted them a single integrated or a single employer; nor for that matter. that Kilgore Trucking was a joint employer of Smith, with Glen Kilgore. Glen Kilgore has not been joined as an individual or joint Respondent in an alleged commission of any unfair labor practice. nor has Glen (or Don) Kilgore participated in this proceeding. Lucky NLRB 642 (1979). See also Co.,236 NLRB (1978). Thus the Board has held that there is no requirement to support such a violation that it be established that there was a direct employer-employee relationship if the dance otherwise is such as to establish that a measure of association exists between the respondent and the ployer of the thus affected employee. Sufficient, or enough association been found to exist to support violation where the association is shown to have been of an intimate business character, or is one of clear employer community of interest, or the involved em- ployers have themselves created a mutually beneficial I find that such a substantial measure of asso- ciation has been shown to exist in this matter; indeed an association which has features of all three above associ- ation characteristics readily appearing present. Clearly, the business association of Glen's (and Don's) trucks and drivers, all being under leased service to gore Trucking, the latter providing exclusively a hauling service to Invesco (with its own and leased trucks and drivers), but itself under only an oral, day-today subcon- tract to do so, reveals an association of an intimate busi- ness character, indeed one with obvious pervasive sensi- tivity to the wishes of That their association partook of the character of a mutually beneficial pattern, and was one which served all their community of inter- est, is also readily to be observed from Kilgore's explana- tion of that relationship having had its origin in the avoidance of an understandably undesired risk (nonpay- ment) involved in operating in that business; and that their eventual and now long time business relation with Invesco had produced the desired effect (timely pay- ment) to Finally, even the very nature of Kilgore Trucking's business relation to its an Austin NLRB 1259 v. 424 U.S. fn. 3 (1976); Holly Manor Nursing Home. 235 NLRB 426. 428. fn. 4 (1978); Lucky Stores at fn. I I; and 226 NLRB 744, 748 (1976). foregoing is based on the following findings: Although Smith war employed and paid by Kilgore. for about a year, he regularly worked a driver to Kilgore R. L. Frasier, a Kilgore Trucking driver for without contradiction, and I find credibly so, that wherever the of one brother have run. the trucks of all brothers have run; and that all trucks had run for Invesco. Kilgore that he hauled exclusively for Invesco; and clarified Kilgore Trucking performed its hauling services for No. 4, hauling coal from several of its mine pits. All driven regu- larly took delivery directions from lnvesco Further, Kilgore that all of Glen and Don Kilgore's trucks were leased to gore and Frasier without contradiction that Kilgore additionally daily leased (and released) numbers of additional trucks and drivers from as requirements arose and diminished in service of the needs of Invesco. Kilgore relates that prior to his Company's providing exclusive hauling services to Invesco, he had provided hauling services for various coal including some that might pick up today and shut down tomorrow, beating everybody out of their pay; and Kilgore testified that he had one such experience wherein he lost In that context. gore explained the origin and relation of his and that of his brothers as follows: . . . and a man can't own a bunch of trucks himself and haul coal; so I started hauling coal and they bought them a couple of trucks and started hauling and we park them all at the same place, use the share of the same shop. Kilgore, however, also testified that his business relations lnvesco had been different in result, and that he (and thus, it would Appear rea- sonably to be presumed, also others to him) had suffered no loss in payment for service rendered to lnvesco to date. KlLGORE brothen' 8(a)(l) N.L.R.B. Bretz 104 (1953).38 8(a)(l) 8(a)(l) e.g., =' Kllgore [he ruch assembled raise, emplilyee way being actlon hlatemmt develop~ng c~rcumstances). v ~ e w 1s herem. ~ l ~ s a v o w clarify prlor rathcr iou!~d :lbove. F.2d 1954). (1979). 8(a)(3) Inc., Inc.. 8(aXl) 1. 2(6) Lyn- 18, 8(a)(l) 2(6) 8(a)(l), 7 Kil- 947 JIMMY TRUCKING COMPANY oral subcontract of service on a day-to-day basis, wholly convinces me that substantial control over his perfor- mance under that contract, that is, over his Company's trucks and drivers and that of all the trucks and drivers leased to his Company, rested in Jimmy Kilgore as owner of Kilgore Trucking. Thus, although Kilgore has asserted that he had nothing to do with his drivers (and it is clear they paid for their own fuel and drivers), Kilgore also testified, far more convincingly, in my view, in realistic recognition of the above, that he could be fired (lose the oral contract with Invesco) any day, if he was not on the job, seeing that that job was going. In that respect, the Board has reflected upon simi- lar varied business associations that come before it, that it need not be blind to similar such industrial realities. Additionally, all the drivers here recognized who was really in charge of the hauling services for Invesco and whom it was necessary to approach with a request for a raise in their commission rate if they were to hope to succeed in getting one, viz, Jimmy Kilgore. On this record, in my view, I can realistically conclude no less. Although I am persuaded by the evidence presented on the complaint allegations before me that Respondent Kilgore Trucking did not thereby discharge its employee Smith because Smith was not its direct employee, I am, as well, convinced, and find, that Respondent Kilgore Trucking, by the conduct of its owner, Jimmy Kilgore, who was knowingly instrumental in and/or caused the termination of Smith because of the latter's protected concerted activities with the other drivers in seeking a raise, did so in violation of Section of the whether Kilgore's action is to be viewed in substance and practical effect as an exercise of Respondent's actual power to exclude Smith from continued service under Respondent Kilgore Trucking's (sole) subcontract with Invesco to which all drivers of Glen were leased. Austin Company, supra; Hudgens v. supra, fn. 3, Holly Manor Nursing Home, supra at 428; or whether Kilgore's action is to be viewed as an usurpation or arrogation of that discharge power, based on the industrial reality of their business association, cf. Fuel Company, NLRB 371, 372 In either event, Smith has clearly been effectively interfered with by Respondent Kilgore Trucking in the exercise of his Section 7 rights in violation of Section of the Act. Any question that might be deemed left open in regard to a restrictive construction of Section in circumstances where the interference has affected "hire or tenure of employ- ment or any term or condition of employment," as In reaching this conclusion I d o not overlook the circumstance that there were also similar remarks attributed to Don by the drivers. However. all drivers place remarks after Kilgore had made his pronouncement to all the drivers pressing for the that any w h o felt that was fired. Thus, whether D o n Kilgore told Smith and other dnvrrs, and wholly apart from whether it was true or not (the remark for such purpose clear hearsay), that in sub- stance. Glen's message to Jimmy Kilgore was that he left on his drivers up to Jimmy Kilgore, or lo just fre his drivers too (the latter as a made being less plausible under the in my immaterial to the violation found Kilgore did not or his statements, but implemented it as Rrvsrxd o n other grounds 210 392 (4th Cir. See also Central Transport, Incorporated, 244 NLRB 656 in the case of discrimination (see and compare Fabric Services 190 NLRB 540, 542 (1971)). it would appear has been answered in the negative, Satra Belarus, supra. Accordingly, I find that Respondent Kilgore Trucking, by the above conduct of owner Jimmy Kilgore was knowingly instrumental in and/or caused the termination of Smith because Smith had en- gaged in protected concerted activity with the other drivers in requesting a raise, thereby interfered with Smith in the exercise of his Section 7 rights and in viola- tion of Section of the Act. Respondent Jimmy Kilgore Trucking Company is an employer engaged in commerce within the meaning of Section and (7) of the Act. 2. By discharging its employees Riley L. Frasier, dell D. Smith, and Roy Smith, and by being instrumental in and/or causing the termination of Willie R. J. Smith, on August 1978, because they engaged in concerted activities with other employees for purpose of mutual aid and protection, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion and Section and (7) of the Act. 3. Respondent has not engaged in any other unfair labor practice as alleged in the complaint. Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Re- spondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act. Respondent having wrongfully discharged Riley L. Frasier, Lyndell D. Smith, and Roy Smith in violation of Section I find it necessary to order it to offer them full reinstatement and to make them whole for any loss of earnings, with interest. In that connection, while the record reveals that Jimmy Kilgore made inquiry of Lyndell D. Smith as to whether he was going back to work, and the latter declined without comment, as a wrongfully discharged employee, Lyndell D. Smith was entitled to have an unconditional offer of reinstatement, which is provided him herein. The record does not reveal that similar inquiry of Kilgore was ever delivered to Roy Smith, and such an employment inquiry would in any event suffer the same offer infirmity. As I have found Respondent has not discharged its employee Willie R. J. Smith, but rather was instrumental in and/or caused the termination of the latter, thereby interfering with the exercise of Section rights by Willie R. J. Smith, I shall recommend that Respondent Kilgore Trucking in addition to notifying the latter's employer, Glen Kilgore, that Respondent Kilgore Trucking has no objection to the employment of Willie R. J. Smith and that it will lease Willie R. J. Smith to Respondent gore Trucking, that Respondent Kilgore Trucking make Willie R. J. Smith whole (with interest) for any loss of earnings he may have suffered from August 18, 1978, to date of said notice to Glen Kilgore or date of reemploy- ment and lease to Kilgore Trucking, whichever may backpay backpay F. W. Woolworth Company, (1950), Corpomtion, (1977).=* Iqc) officers, 1. se- '' generally. IsLr & Heating Ca. 138 (1962). 'O event as Sec. and Lobor Board, and recommended ss Scc. 102.4 be finding% and aMl be deemed waived all purposes. backpay A."" Reawnable Statea Appals, Stares Appals National 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have occurred first. Other circumstances herein such as may potentially affect the amount of due may await compliance proceedings. Any due and in- terest thereon is to be computed in the manner pre- scribed in 90 NLRB 289 and Florida Steel 231 NLRB 651 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section of the Act, I hereby issue the following recommended: The Respondent, Jimmy Kilgore Trucking Company, Rainsville, Alabama, its agents, successors, and assigns, shall: Cease and desist from: (a) Discharging, or being instrumental in and/or caus- ing the termination of, employees because they have en- gaged in protected concerted activity for purposes of mutual aid or protection. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer immediate and full reinstatement to Riley L. Frasier, Lyndell D. Smith, and Roy Smith to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their See. Plumbing NLRB 716 In the no exceptions are filed provided by 102.46 of Rula Regulations of the Nationd Relations the find- ings, conclusions, Order herein shall, provided in of the Rula and Regulations, adopted by the Board and become its conclusions, and Order, d l objections thereto for niority or other rights and privileges, and make each of them whole for any loss of pay suffered by reason of his unlawful discharge in the manner set forth in the section of this Decision entitled "Remedy." (b) Notify Glen Kilgore that Jimmy Kilgore Trucking Company has no objection to the employment of Willie R. J. Smith and that it will lease Willie R. J. Smith as a driver to Jimmy Kilgore Trucking Company; and make Willie R. J. Smith whole in the manner described in the section herein entitled "Remedy." (c) 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 due under the terms of this Order. (d) Post at its Rainsville, Alabama, shop copies of the attached notice marked "Appendix Copies of the notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Company's au- thorized representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. steps shall be taken by the Company to ensure that said notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days of the date of this Order, what steps it has taken to comply herewith. In the event that this Order is enforced by a Judgment of a United Court of the words in the notice reading "Posted By Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United Court of Enforcing an Order of the Labor Relations Board."