Smith Transfer Co, Inc.

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the issue on which they were about to vote and thereby interfered with the employees' freedom of choice in the election. The undersigned, therefore, finds that the objections to the elections raise material issues with respect to the conduct affecting the results of the elections, and recommends to the Board that the objections filed by the Laborers and by the Painters be sustained, and that the elections conducted in Cases Nos. 15-RC- 700 and 15-RC-705 on March 19, 1952, be set aside. SMITH TRANSFER COMPANY, INC. and BIRMINGHAM GENERAL DRIVERS LOCAL UNION No. 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL. Case No. 15-CA-360. August 27,195 - Decision and Order On December 29, 1951, Trial Examiner Alba Martin issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and modifications going to the refusal-to-bargain issues. We agree with the Respondent that in computing the Union's ma- jority for purposes of determining the refusal-to-bargain issues, the unit to be utilized is that claimed by the Union to be appropriate at the time of the request rather than that found appropriate at this time, assuming the two to be different in scope,3 and assuming also 1 Pursuant to the provisions of Section 3 (h) of the Act the Board has delegated its powers In connection with this case to a three-member panel (Chairman Herzog and Members Murdock and Peterson]. ID We find no merit in the Respondent's claim that the Trial Examiner relied upon the affidavit submitted by Respondent 's president , John A. Smith , to a field examiner of the Board, for the purposes of making substantive findings of fact . For, as we read the Intermediate Report, the Trial Examiner's reference to the affidavit was solely for the purpose of determining the credibility of Smith's testimony-a reference and use which is clearly proper. See Quest-Shon Mark Brassiere Co v. N. L. R. B., 185 F. 2d 285 (C. A. 2). In any event, our adoption of the Trial Examiner's substantive findings rests wholly on so much of the testimony adduced at the bearing as was credited by the Examiner and not upon anything contained In the affidavit. 8 Barlow-Maney Laboratories, 65 NLRB 928, hereafter referred to as the Barlow-Haney case ; The C. L. Battey Grocery Company, 10.0 NLRB 576, hereafter referred to as the Bailey case. 100 NLRB No. 116. SMITH TRANSFER COMPANY, INC. 835 that the claimed unit is not essentially inappropriate.4 We also agree that the Union's request to bargain for the "boys" was ambiguous, at least as of May 19 and, that although the Respondent did not then raise any unit issue, the request could reasonably have been construed either as a request to bargain for a unit limited to the Respondent's truck drivers alone or as a request for a unit including the "grease mechanic" classification. Where such ambiguity in the bargaining request exists, we have held in effect 5 that the Union must have in fact represented a majority in the larger, as well as the smaller, appro- priate unit as a condition precedent to asserting a violation of Section 8 (a) (5) of the Act. We are satisfied from the record, however, that the Union here did have a majority of designations in both equally appropriate units 6 and we so find. Thus, addition of the "grease mechanic" to the unit for purposes of majority computation increases the number of employees to be counted in determining the Union's status to 15.' Of this number, as the Trial Examiner found, 8 had authorized the Union to represent them. The Respondent here claims, as it did before the Trial Exam- iner, that the cards of Misseldine and Harrison should not be counted. We find, as did the Trial Examiner, that the inclusions of these 2 follows from the application of established principles. We have uni- formly ruled that employees who, like Misseldine, are on "sick leave" on the crucial date of majority computation,8 and those who, like Harrison, are found to have been discriminatorily discharged and entitled to reinstatements are included in the unit used for computa- tion purposes. We accordingly hold that the Respondent's refusal to bargain on May 19 cannot, under the rulings in the Bailey and Barlow-Many cases, be justified on grounds that "no proper request to bargain" had been made. In any event, the record clearly establishes that by May 21, when_ the Union requested recognition for the second time, and on May 22, when it requested recognition for the third time, the Union has ob- tained sufficient additional designations (three in number) so that its majority status is established without reliance on the cards of either Misseldine or Harrison, and also without regard as to whether the See International Broadcasting Co., Inc., 99 NLRB 130, where the Board held that if the unit requested is per se inappropriate , the Employer's refusal to honor the Union's request is not violative of Section 8 (a) (5), even though the Union clearly represents a majority in the requested unit. b The Bailey case. 9 A unit of truck drivers including the fringe "grease mechanics" category would not be essentially inappropriate. See, e. g. Vancouver Plywood & Veneer Co., 79 NLRB 708, 711, where such employees were included in a truck driver's unit. '' The Respondent had only one employee in the "grease mechanic " classification. s E. H. Sargent Co., 99 NLRB 1318. 9 The Ann Arbor Press, 88 NLRB 391, 394. 227260-53-vol. 100- 5 4 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "grease mechanic" is included or excluded in computing the majority b0 Moreover, we believe and find that the Respondent, as of May 21 and thereafter, in fact knew that the Union's request to bargain was for the truck drivers alone."' In view of the Union's majority status, as above set forth, the Respondent was obliged to bargain with the Union upon request. This it refused to do on each of the three separate occasions, May 19, 21, and 22, on which the Union sought recognition. Although the Respondent claims that its refusal was excusable because it doubted the majority, we, like the Trial Examiner, do not regard this claim as meritorious. The Respondent's attempt to undermine the Union by conduct viola- tive of Section 8 (a) (1) and (3) of the Act establishes, as the Trial Examiner found, that the Respondent's refusals were not motivated by a good-faith doubt of the existence of a majority, but by a rejection of the entire principle of collective bargaining. We conclude that by its independent refusals to bargain on May 19, 21, and 22 the Respondent has engaged in and is engaging in violations of Section 8 (a) (5) and (1) of the Act. Order Upon the basis of the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Smith Transfer Company, Inc., Montgomery, Alabama, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) 'Discouraging membership in Birmingham General Drivers Local Union No. 612, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, AFL, or any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employ- ment, or by threatening to do so. (b) Refusing to bargain collectively with Birmingham General Drivers Local Union No. 612, International Brotherhood of Teamsters, 10 Dating the Respondent's violation of 8 (a) (5) of the Act to a date subsequent to May 20, the date the strike began, would have no effect on the status of the strikers or the remedy we shall provide. For even if the strike be deemed as economic in its incep- tion, the strikers were clearly entitled to reinstatement at all times here material, upon their unconditional application. No replacements had in fact been hired by May 23- when such application was made. Moreover, the strike, no matter what its character may have been at the start, clearly was converted into an unfair labor strike on May 21, upon the Respondent's independently unlawful refusal to grant the Union recognition at that time. 11 Smith's testimony with respect to the conferences held May 21 and 22 for purposes of settling the strike clearly establishes that he was fully aware, at least by that date, that only the drivers were involved in the Union's request This is so not only because it was that group which went on strike, but also because the contract which the Union presented to Smith as a "sample" of the contract it desired was a contract covering "over- the-road" drivers. Cf. The Bailey case, supra. SMITH TRANSFER COMPANY, INC. 837 Chauffeurs, Warehousemen & Helpers of America, AFL, as the ex- clusive bargaining representative of Respondent's employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of employment. (c) Threatening employees with economic reprisals because of union activity. (d) Interrogating employees as to union activity and membership. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Birmingham General Drivers Local Union No. 612, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, AFL, as the exclusive representative of the employees comprising the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) Offer to Arlin H. Harrison, Clayton Bragg, J. R. Haggard, Walter Raybon, James A. Ray, and James F. Ryals, immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to seniority and other rights and privileges previously enjoyed. (c) Make whole Arlin H. Harrison, Clayton Bragg, J. R. Haggard, Walter Raybon, James A. Ray, and James F. Ryals for any loss of pay they may have suffered by reason of the Respondent's discrimi- nation against them, in the manner set forth in the Intermediate Report attached hereto, in the section entitled "The Remedy." (d) 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 records necessary to analyze the amounts of back pay and the right of rein- statement under the terms of this Decision and Order. (e) Post at its office at Hunter Station, Montgomery, Alabama, copies of the notice attached hereto and marked "Appendix A." 12 "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Fifteenth Region, in writing, within ten (10) days from the date of the receipt of this Decision and Order, what steps the Respondent has taken to comply herewith. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in BIRMINGHAM GENERAL DRIVERS LOCAL UNION No. 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, or any other labor organization of our employees, by dis- criminating in regard to the hire and tenure of their employment or any term or condition of employment, or by threatening to do so. WE WILL NOT refuse to bargain collectively with BIRMINGHAM GENERAL DRIVERS LOCAL UNION No. 612, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, as the exclusive bargaining representative of our employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of employment. WE WILL NOT threaten employees with economic reprisals be- cause of union activity. WE WILL NOT interrogate employees as to union activity and membership. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organi- zation, to form labor organizations, to join or assist the above- named Union, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor SMITH TRANSFER COMPANY, INC. 839 organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. WE wiLL offer to Arlin H. Harrison , Clayton Bragg, J. R. Hag- gard, Walter Raybon, James A. Ray, and James F. Ryals imme- diate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to seniority and other rights and privileges previously enjoyed. WE WH.L make whole Arlin H. Harrison, Clayton Bragg, J. R. Haggard, Walter Raybon, James A. Ray, and James F. Ryals for any loss of pay they may have suffered by reason of the discrimi- nation against them. The bargaining unit is: All of our truck drivers, excluding office and clerical em- ployees, all other employees , guards, and supervisors as de- fined in the National Labor Relations Act. SMITH TRANSFER COMPANY, INC.5 Employer. By ---------------------- ------------ (Representative ) (Title) Dated --------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed May 29, 1951, and a first amended charge filed June 15, 1951, by Birmingham General Drivers Local Union No. 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued his complaint dated August 10, 1951, against Smith Transfer Company, Inc., herein called Respondent, alleg- ing that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of ,Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, first amended charge, and the complaint, together with notice of hearing, were duly served upon the parties. With respect to the unfair labor practices, the complaint alleged in substance that from on or about May 1, 1951, Respondent interrogated its employees as to their union affiliations, threatened to discharge them because of their union affiliations, querried employees about the union affiliations of other employees, and threatened employees with discharge if they did not withdraw from the Union. The complaint alleged in addition that Respondent discharged one Arlin H. Harrison on or about May 3, 1951, and on or about May 23, 1951, discharged five additional named employees and has since refused to reinstate them because of their union activities. The complaint alleged also that at all times since about May 18, 1951, Respondent has refused to bargain collectively with the Union. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer, filed September 27, 1951, Respondent admitted certain juris- dictional and other facts asserted in the complaint, but denied the commission of any unfair labor practices. It averred that the employees had not selected the Union by their own free choice and that numerous employees were signed by the Union after the Union had established a picket line for the purpose of preventing those who wished to work from doing so. Pursuant to notice, a hearing was held on October 8-11, 1951, at Montgomery, Alabama, before Alba B. Martin, the undersigned Trial Examiner duly desig- nated by the Chief Trial Examiner. The General Counsel and Respondent were represented by counsel and the Union by its business agent and all participated in the hearing. Full opportunity to be heard, to examine and Gross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing Respondent's motion to separate the witnesses was granted. At the end of the hearing the General Counsel's motion to conform the pleadings to the proof was granted. The General Counsel and Respondent presented oral arguments but filed no briefs. Upon the entire record in the case and from observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Smith Transfer Company, Inc., an Alabama corporation with its principal office and place of business at Hunter Station, near Montgomery, Alabama, is engaged in the transportation of petroleum and petroleum products by tank trucks from interstate pipeline and water terminals within the State of Alabama to points within the State of Alabama. The petroleum and petroleum products flow through an interstate pipeline from Texas and Louisiana to a terminal at Hunter Station, near Montgomery, Alabama, and into storage tanks owned by some of the major oil companies mentioned herein. Petroleum and petroleum products are also carried from Texas and Louisiana by tahkers and are placed in storage terminals in and around Mobile, Alabama. Respondent's tank trucks transport the petroleum and petroleum products from the terminals near Mont- gomery and Mobile to local distributors within Alabama of Standard Oil Com- pany, Pure Oil Company, Pan American Oil Company, Sinclair Oil Company, Arkansas Fuel and Oil Company, and Gulf Refining Company, which companies, the parties stipulated, are engaged in interstate commerce. All of Respondent's operations are within the State of Alabama under a Certificate of Public Con- venience and Necessity issued by the Alabama Public Service Commission. Dur- ing the calendar year 1950 the Respondent received a total revenue in excess of $127,000 for services performed for the above-named major oil companies. It is held that Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Birmingham General Drivers Local Union No. 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion, and the discharge of Harrison 1 (a) In March or April 1951 in a cafe in Mobile, Alabama, Arlin H. Harrison, one of Respondent's truck drivers, spoke to three of the other drivers urging the SMITH TRANSFER COMPANY, INC. 841 benefits of their joining a union, and the matter was discussed among them. The initiative was clearly shown to be Harrison's. Shortly after the discussion in Mobile, Harrison got in touch with E. G. Trantham and requested his assistance in organizing the Respondent's truck drivers. Trantham was a member of the charging union in this case, a truck driver for another company, and the Union's job steward where he worked. Harrison and Trantham made arrangements for a meeting of Respondent's drivers, the place for which was later changed because of their belief that Respondent's president, John A. Smith, had heard about the meeting and 1ilanned to attend it. The meeting was held on May 5, 1951, at Chester's Cafe, situated near Montgomery, Alabama, on the highway to Mobile. At that meeting 9 out of Respondent's approximately 14 truck drivers, without any coercion or improper influence, signed application and authorization cards for the Union and slips authorizing the checkoff of their dues from their wages. (b) Several of the truck drivers testified as to interrogations and threats made by Robert T. Holton, Respondent's dispatcher, and John A. Smith, Respond- ent's president. Holton regularly is in charge of Respondent's trucks and equip- ment, sees that they are properly gassed and lubricated, and assigns the truck drivers to the runs. When Smith is out of the city Holton runs the office and has the authority to hire and fire. Holton hired at least one driver, Julius 0. Adams-the record being silent as to whether Smith was then out of the city. As Respondent's is a relatively small business and its vice president is regularly in Charleston, South Carolina, in the day-to-day operation of it Holton is vir- tually second in command. It is held that at all times material hereto Holton was a supervisor within the meaning of the Act. (c) According to the credited testimony of Clayton Bragg, one of the drivers, sometime in late April 1951 Holton asked him "about what was that about the Union," and then called another employee over and told them both that Smith was going to let a "whole bunch of us go." Holton did not deny that as early as late April 1951 he knew of the union movement among the employees. (d) During the afternoon of May 3, 1951, as J. R. Haggard, Respondent's oldest driver in point of service, drew up to refuel at the gasoline pump on Respondent's property near Montgomery, John A. Smith came over to him and, according to Haggard's and Clayton Bragg's credited testimony, told Haggard that there would be no need for Haggard to gas up because Smith understood that Haggard did not like the way Smith operated his business. A few moments later Haggard saw Smith again and asked him if he was fired. Smith replied, "Yes." Haggard asked what Smith wanted him to do with the orders he had in his pocket and Smith replied to turn them over to Holton. Then Smith drove away. Haggard stayed around awaiting the arrival from the run of Arlin H. Harrison, with whom he customarily drove from and to their homes in Montgomery. Upon Harrison's arrival, Haggard told him what had transpired and they went together into Smith's office and talked with Holton. Harrison told Holton, according to the credited testimony of Harrison and Haggard, that he under- Stood they had fired Haggard because they thought he was the one who was trying to organize the Union, that they had fired the wrong man, that he, Harri- son, was the one who was trying to organize the Union, and that he didn't think it was right for Haggard to lose his job over something Harrison had done. Therefore they should take Haggard back and if they must fire somebody, fire Harrison. Holton replied that he would have to talk with Smith before he could put Haggard back to work. Then Harrison left for home, Haggard not going with him but remaining there. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later, from his home, Harrison tried unsuccessfully to reach Smith by tele- phone at the hotel where Smith lived, and finally reached him by telephone at Smith's office about an hour after Harrison had left there. In the meantime Smith had arrived at his office and had had an opportunity to discuss with Holton what Harrison had previously told Holton. In his affidavit for a Board field examiner, Smith said Holton told him of his conversation with Harrison. According to Harrison's credited testimony he told Smith that he understood Haggard had been fired "for union activities" and suggested that Smith take Harrison's word for it, give Haggard his job back, and if anybody was to be fired, fire Harrison. Smith replied that Haggard had already been put back to work and that Harrison's check was being made out. They then discussed when Harrison could get his check and the latter said he would pick it up in the morning. Neither Holton nor Smith told Harrison in words that he was fired. Although Harrison began work for another employer about May 9, he continued his efforts to organize Respondent's employees, attended meetings with them, and assisted them in their strike May 20-22, 1951. Haggard's credited testimony was that shortly after Smith's rearrival late that afternoon Holton came out to the truck where Haggard was and told him Smith wanted to see him in the office. Smith then apologized to Haggard and told him that if he wanted to go back to work "like it was" for him to get his truck and go to Mobile with a load of gas. Smith said he had changed his mind about Haggard because he had "found out who did it, who started it." (e) The credited testimony of James Frank Ryals, one of the truck drivers, was that he arrived in Smith's office that day as Smith was talking with Haggard in the office. Ryals did not hear what Smith said to Haggard, but as Ryals walked in Smith asked Ryals what he thought about the Union. (f) That same afternoon as Ryals' truck was being gassed, according to the credited testimony of Ryals, Holton told Ryals that the latter was lucky, that four or five of the drivers were supposed to have gotten fired that evening for "talking about the Union." Holton added, that before Smith would " go union" he would close up the shop and pick up his trucks and go back to South Carolina with them. This latter sentiment had been expressed to Ryals by Smith himself near the gas pump one day-Ryals believed about a week before. On several succeeding occasions, between May 3 and May 20, Holton came up to Ryals and said in substance, "If we join the Union, Mr. Smith would pick up his trucks and carry them back to South Carolina ; we'd be without a job." (g) During the period from approximately May 13 to May 20 Holton asked Julius O. Adams, according to the latter, if he knew anything about the Union. (h) Truck driver Clayton Bragg testified that one day between May 3 and May 20, as Bragg pulled in from Mobile, Smith reached into his glove compartment and took his trip ticket : He didn't say anything. He just got the trip ticket book and I asked him what was it for. He told me the way he heard, I didn't like the way he was running his business, and he would have to let us go. I asked him what kind of business, and he said something about a strike. I don't know if he said "strike" or what it was, but anyway, I told him I didn't know any- thing about it; I had been in Mobile all the time, and he walked on in the office, and I followed him in there, and he told me to just go ahead and take my trip ticket book back and just said to forget everything that was said. Bragg continued working. (i) On Saturday evening, May 19, 1951, Smith gave truck driver James A. Ray a lift into town. According to the latter Smith asked him, during the ride, SMITH TRANSFER COMPANY, INC. _ 843 what he knew about the Union, told him there was nothing to a union, that a union could not feed a family ; and said also that if Ray was there Monday morning to take his truck out he could have his job. Smith also discussed with Ray the Respondent's limited income because of regulated freight rates, and said that Respondent just could not pay the union scale of wages. 2 (a) Robert T. Holton, called as a witness for Respondent, said that he had heard some discussion of the Union among the men as early as May 3. He testified on direct examination, in answer to a question as to whether he had talked to some of the employees about the Union from time to time : I asked a few of the boys out there if they were going to pull a strike, and nobody knew anything about it. And I just-I told them, I says, "I don't know what you fellows are up to, but if you are going to pull a strike, you'd better know what you are doing because these things run into complica- tions." I said, "If you pull a strike on a man and you don't have the proper backing . . . you don't know what will happen . . . a lot of folks lose their jobs by pulling these strikes that way. He also told them about the money he had lost while on strike in Cincinnati, Ohio, some years back. Holton testified further that he never told Ryals that if the plant "went union" they would all be out of a job; that, rather, he told the men that if the Union made demands which Smith could not meet, "the company couldn't pay it and still operate and stay in business," that if Smith could not stay in business and make money, he probably would move the trucks to South Carolina, that "if he couldn't make a legitimate profit, he'd be a fool to stay here and try to operate and go broke." Holton added that he made the point that he as well as the rest of them-"all of us would probably be out of a job." Holton denied telling Ryals on or about May 3 that Ryals was lucky, that several of the drivers were supposed to get fired. (b) John H. Smith testified in substance that he knew nothing about the Union on his property until two union representatives called on him on Friday or Saturday, May 19 or 20, 1951, and that prior to that Holton had said nothing to him about the attempts of the men to organize. In the light of the entire record this testimony is not credited. Smith testified that in a general conversation with Holton during a strike of the employees of a Baggett company in another Alabama city in late 1950 or early 1951, Smith had told Holton in substance that rather than "go union" he would have to "just pack up and move out ; that's the only thing I could see we could do . . . because . . . it would be a matter of fact that we would be broke, and there be no sense in sitting down here and going broke when you know you'd be broke all the time." (e) As to the incident concerning Clayton Bragg, Smith, placing it during the same week as the Haggard-Harrison incident, testified: I called him in there (the office) to talk to him about this order business, that they weren't carrying out the orders like they should down there in Mobile-the way they was wrote up, and he said some kind of something-I don't know what it was-to me. I just went up and went out to his truck and opened the glove compartment and taken the tickets out. The time is all made up from the tickets they carry in the glove compartment. I went in there and started to figure out how much I owed him. He says he didn't want to go that far. I says, "If you want to straighten up, I'll forget the whole thing," and I handed him back his tickets, and I said, "Put them back in your glove compartment, and let's get rolling." 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the entire record in the case, Bragg's version of this incident is credited. V (d) Smith's version of the. conversation with James A. Ray during the Saturday evening ride into town was as follows : I says, "You going to join up into this union?" He says, "Mr. Smith, I got the best job I've ever had, . . . I'm satisfied." I says, "Okay," I say's,' "I'll be looking for you to come to work." He says, "I'll be there." And we possibly talked on. I says, "Who is going to support you boys?" Or, "Who is going to feed your families?" He says, "I'm not going to get into it." I says, "Okay." It is held that during this ride Smith asked Ray if he intended to join the Union and-told Ray that if he showed up for work Mond.1y morning he could have his job-the clear inference being that if he did not show up he would not have his job. (e) Holton testified that Haggard was discharged twice for the same thing, the first time about 4 weeks before Harrison's termination and the second time about 4 or 5 days before Harrison's termination. The cause, in each case, was that Haggard, like Bragg, did not make his runs on schedule but changed the order of them to suit his personal convenience-to the distraction of the oil companies who wanted their orders on schedule. According to Holton there was no incident concerning Haggard on May 3, Harrison's last day, and when on that day Harrison said to Holton that they had fired the wrong man, Holton didn't understand what he was talking about. Smith testified in contradiction to Holton that Haggard was fired and rehired on the same day that Harrison was terminated. As the cause for Haggard's discharge he assigned the same reason as that assigned to Holton, although this was in contradiction of a prior sworn affidavit prepared by the witness for the Board's field examiner. In the affidavit, executed June 16, 1951, Smith gave as the reason for Haggard's dis- charge the fact that Haggard refused to tell him the cause of an "unrest" Smith had discovered among the drivers. According to Smith's testimony he discharged Haggard because he mixed up his schedule of runs, and then a few moments later engaged Haggard in conversation concerning the alleged "unrest." Haggard professed to know nothing about the "unrest," although Smith had shortly before been informed by another driver that Haggard could tell him all about it, where- upon Smith told Haggard that if he didn't get to the bottom of this thing he was going to fire everyone of his drivers and start over. Smith then left and went to his hotel where he testified he received a telephone call from Harrison, discussed below, then returned to his office and, having thought over his discharge of Haggard, put Haggard back to work. A few days before this, according to Smith, one of his drivers, Holliday, had quit, saying that he was scared and that if Smith would talk to Haggard the latter could tell him what the trouble was : And the first thought that hit me was that somebody had gone to stealing again and he was afraid it was going to be placed on him, and he was afraid he was going to be involved in it in some form or other and he wanted to get out of it before the thing broke to a head. The "stealing" to which Smith's mind allegedly reverted on this occasion had occurred some 6 or 8 months before or "even before that," when Smith had dis- charged several drivers for stealing products from the tank trucks they were driving. Smith's mind reverted immediately to that incident despite any inter- vening developments and even though there bad been no threat of a reoccurrence SMITH TRANSFER COMPANY, INC. • 845 since.' The "unrest" to-which Smith referred a few days later in talking with Haggard was Smith's suspicion that another plot to pilfer gasoline was brewing. Asked if it occurred to him that the "unrest" was the attempt of the men to organize, Smith replied : Numbers of things occurred to me ; numbers of things occurred along that time, but this old occurrence was more in mind than anything else, that maybe some of them were doing that same old stealing again. Smith was asked, "Did the fact that the men were trying to organize occur to your mind ?" His reply was, "I didn't know they were trying to organize." He was then asked, "Well, then, it didn't occur to your mind?" And he replied, "I didn't know they were trying to organize." Based on his suspicion alone Smith allegedly said to Haggard : In my mind . . . the thing is pretty serious and somebody is going to have to tell me, or I'm going to fire the last doggone one of you and start all over again. Later, when he changed his mind and decided to rehire Haggard, Smith testified he decided to make no further inquiries as to this "unrest" but to make a personal investigation of the matter and try to catch any guilty party in the act of stealing. As he expressed it, I . . . decided I'd try to get to the bottom of it by spying on someone, and see who was causing this disturbance, shortage, or whatever it might be that these boys were afraid of. - So, as he testified, he followed some of the men from time to time to see if, as had happened in the previous plot, they were driving off the road and being met by other cars equipped with cans and drums. He stated that he discussed his suspicion with Holton and asked Holton to talk among the men to see if he could learn anything about it, and that Holton reported that he was unable to dis- cover anything that was causing the "unrest." In testifying concerning the second discharge and rehire of Haggard, which he said occurred 4 or 5 days before May 3, Holton made no mention of this alleged "unrest," of Smith's alleged suspicion of accomplished or intended thievery, of Smith's alleged re- quest to talk among the men, or of his doing so, and making a report of the results. And in his eight and one-half page affidavit, in which Smith expressed himself freely and in his own language, he made no mention whatsoever of any previous theft of gasoline or of any suspicion that the "unrest" he found among his employees resulted from a reoccurrence of it. In his testimony he explained that he had refrained because he hadn't intended to raise that subject at all (presumably in this proceeding) and also because he didn't want to put his suspicion in writing until he had found the guilty party. As to why Haggard was rehired by Smith the same day he was fired, Holton speculated that the reason was "I suppose Mr Smith saw maybe he might go and give the boy the benefit of the doubt and put him back to work." In his oral testimony Smith assigned no reason for his change of mind other than that in the meantime he had thought the matter over. In his affidavit he said, in substance, that when he discharged Haggard he intended to discharge all his drivers unless he could get to the bottom of the "unrest"; but then it occurred to him that it was towards the end of the week and if he fired all his drivers he 1In April a hose from one of the trucks was missing and Smith paid $5 to get it back. Also in April, Haggard misplaced two Stilson wrenches and brought them back when Smith threatened to dock his pas for them These were minor matters compared with a plot to steal gasoline, oil, and other products carried in the trucks. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wouldn't have anybody to drive his trucks on Monday . So he decided not to discharge all of his drivers , and having made that determination , decided also not to fire any of them . So he rehired Haggard. (f) Respondent's position is that on May 3, 1951 , Arlin H. Harrison quit his employment with Respondent , which he had done once before and been rehired. It points out that Harrison also quit the job just before and the job just after his last employment with Respondent. Harrison worked for Respondent during 1950 for 8 or 9 months , and for at least part of the time as the dispatcher . He returned to work for Respondent as a truck driver on about March 15 , 1951 , and continued until the incident of May 3, now under inquiry. Respondent's defense is that a Mr. Hurst, superin- tendent of the Southeastern terminal , the interstate pipeline terminal which was located just across the street from Respondent's property, had loaned a wrench to Harrison , had spoken to Smith several times to get it back , the last time on that very day of May 3; and that Smith had left word with Holton to tell Harri- son he wanted to see him about the wrench . Harrison's undenied testimony was that while he was the dispatcher, sometime during 1950, Hurst asked Harri- son about the wrench and quoted some of Respondent 's employees as saying Harrison had borrowed it to do some work at his home. Harrison denied this to Hurst. Holton testified that Hurst spoke to him about the wrench when he first became dispatcher , which was in about February 1951 , and said that Harri- son had borrowed it when it was cold to work on a leaky or bursting water pipe at his home ; then Holton had telephoned Harrison about it and Harrison had said he did not have it. Concerning just what happened on May 3 Holton testified in substance that when Harrison came in Holton told him Smith wanted to talk with him, Harrison asked "what about," Holton replied "he didn't know," and Harrison replied, "Well, I guess I'm fired." Harrison then telephoned Smith from the office in Holton's presence and asked Smith about getting his money. Smith testified that he received Harrison's telephone call at his hotel in Montgomery , that the first thing Harrison said was, "Mr. Smith , when can I get my money," that Harrison did not use the word, "If." Thereafter , according to Smith , he made out Harrison's check. In his affidavit , contradicting his oral testimony, Smith stated that he received the telephone call from Harrison while Smith was in his office. If Holton's testimony and Smith's affidavit were to be accepted, Harri- son and Smith would be having a telephone conversation with each other while both were in the same room talking over the same instrument. George S. Webb , business agent for the charging union, testified without contradiction that in Smith's office on the afternoon of May 21 , in the presence of Smith, George M. Hughes, Respondent's vice president , and Mr . Burns, direc- tor of the Alabama State Department of Labor, Webb said to Smith , "Mr. Smith, didn't you fire Harrison for union activities ?" and Smith replied, "Yes, I did, . . . ." 3. Conclusions as to interference, restraint, and coercion, and the discharge of Harrison (a) By his demeanor. on the witness stand and by the character and nature of his testimohy, John A. Smith did not impress me as a credible witness. At times he was confused in his testimony and at other times evasive, resistant, rambling, unresponsive, and self-contradictory. His words seemed more de- signed for the expediency of the moment than for the conveyance of the truth as he knew it. SMITH TRANSFER COMPANY, INC. 847 The entire record in this case suggests that Smith was not familiar with the collective-bargaining principle ; and makes clear beyond any doubt that he did not accept that principle, that he was resolved to resist the organization of his men even to the extent of closing down his business in Alabama and returning to South Carolina. One of Smith 's early moves against the organizing of his m ^n was to discharge Haggard because he thought Haggard was the chief organizing spirit. When informed otherwise through Holton by Harrison , whose word for it he accepted, he corrected his error by reinstating Haggard and discharging Harrison. Harrison and Haggard impressed me as more credible witnesses than Smith or Holton, and their version of the events of May 3, 1951 as more likely to be the truth than the self-contradictory version of Smith and Holton. Respondent contends that as Smith did not, on May 3, tell Harrison in words that he was fired, he was not discharged but quit. This contention is not accepted . When he returned to his office that afternoon Smith learned from Holton that Harrison had said they had fired the wrong man and that Harrison was the real leader of the Union . Insofar as the record shows Smith had no reason not to take Harrison at his word ; in fact Smith testified that Harrison was not only a "very good truck driver" but also a "reliable" man. Smith being a man of quick decision based on scanty facts as shown by his own testimony, it is highly probable and it is found that when he learned what Harrison had told Holton, Smith instantaneously made the decision to correct his error and to reinstate Haggard and discharge Harrison . It was a single-package decision involving both men, Smith's objective being to be rid of the leading spirit in the organizational movement . It is held that the decision was reached shortly after Smith's rearrival and before the Harrison -Smith telephone conversation. Later, when Harrison called, Smith told him that Haggard had already been put back to work and that Harrison 's check was being made out. The record reflects no reason why Smith should have told Harrison this if, in fact, Haggard had not already been put back to work and Harrison's check was not being made out. Haggard had made himself available by waiting around rather than going to town with Harrison . Respondent's theory does not explain why he did so if in fact Harrison quit. Harrison gave Smith an opportunity to execute his previously made decision to discharge him by saying that if anyone was to be fired it should be Harrison , and Smith accepted the opportunity. He accepted the opportunity to get rid of the real leader of the Union even though it meant discharging a "very good truck driver " and a "reliable" man. Smith's deep antagonism toward the Union, and his determined intent to have none of it, led him to discharge one of his seasoned drivers whom he trusted. Respondent offered no proof of any motive why Harrison should quit and none is shown. The record indicated , on the contrary, that Harrison set about trying to remedy any dissatisfaction he had with his wages and working conditions not by quitting, but by attempting to organize the-men so that they could seek such remedy by collective action. In view of the self-contradictory nature of Respondent 's defense concerning Haggard and Harrison, and its improbabilities , I am unable to credit any of it. Although Smith and Holton agreed at the hearing as to the reason for the dis- charge of Haggard, they did not agree on the date , and Smith's testimony con- tradicted his prior sworn affidavit as to the cause. It is impossible on this record to credit Smith's testimony about the "unrest" among the drivers. While he was talking with Haggard he spoke to Ryals about the Union, which suggests that any "unrest" he was thinking of was related to the Union rather 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than to some vague suspicion of a reoccurrence of a theft plot. If in fact Smith had mentioned this suspicion to Holton it is likely that Holton would have made some mention of it in connection with his testimony, about the discharge and reinstatement of Haggard. If in truth Smith suspected wholesale thievery at this time it is unlikely that he would have omitted some mention of it in his long affidavit. In their testimony neither Smith nor Holton were very sure of their dates or bothered much with them. Harrison testified in substance that the discus- sions concerning the wrench took place well before May 3, 1951, and the testi- mony is undenied that the wrench had been borrowed, if at all, when it was cold and before or immediately after Holton became dispatcher in February. The testimony that the wrench question in any way entered into the conversations or action of May 3 is not credited. Nor do I credit Respondent's testimony concerning the Harrison-Smith telephone conversation in view of its self- contradiction and contradiction with Smith's affidavit. It is held, in conclusion, that on May 3, 1951, Smith discriminatorily dis- charged Harrison to discourage activity and membership in the Union, in violation of Section 8 (a) (3) of the Act, and that by such discharge Respond- ent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1). (b) It is held that Respondent further interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1), by the following acts and conduct : t Holton's interrogation of Clayton Bragg in late April, of Ryals on May 3, and of Julius O. Adams later in May. Smith's interrogation of Ryals on May 3. The several threats of Holton and Smith to Ryals substantively to the effect that rather than do business with the Union, Smith would close up and go back to South Carolina. Ryals' version of the conversations is credited-in which the threat of reprisal is clear. Even in Holton's more expanded version the threat of reprisal is apparent, so that the statement was not permissible free speech. Smith's discriminatory discharge of Haggard on May 3 and his threatened discharge of Bragg a few days later, for the purpose of discouraging activity and membership in the Union. - Holton's statement to Ryals on May 3 that four or five of the men were sup- posed to have been fired that evening for "talking about the Union"-a clear threat that talking about the Union might lead to reprisals. Smith's interrogation of James A. Ray on May 19, and his implied threat that unless Ray showed up for work the following Monday morning he would lose his job. B. The refusal to bargain and the strike. 1. The appropriate unit and the Union's representation of a majority therein The complaint alleged, the answer admitted, and I find that all of Respondent's truck drivers, excluding office and clerical employees, all other employees, guards, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. At the time of the requests and refusals to bargain, considered below, Respond- ent employed 14 truck drivers, as follows : Julius O. Adams, Clayton Bragg, 2 Cf. Standard-Coosa-Thatcher Company, 85 NLRB 1358; Empire Pencil Company. Di'ci- sion of Hasacnfeld Bros, Inc., 86 NLRB 1187. SMITH TRANSFER COMPANY, INC. 849 W. W. Dickey, J. I. Griffin, J. R. Haggard, Arlin H. Harrison, H. P. King, Edgar Mann, J. W. Misseldine, James Frank Ryals, Walter Raybon, C. S. Campbell, C. K. Connell, and James A. Ray. Harrison is included as an employee because his prior discriminatory dis- charge was illegal and did not affect his status as an employee. Misseldine is included because his employment status had not changed at the time of the request and refusal, which took place May 19, 1951. Five days before -that date, on May 14, Misseldine had an accident with one of Respond- ent's trucks. He was hospitalized until May 17 or 18, and complained of head- aches for several weeks thereafter. Shortly after he left the hospital he went out to Respondent's property and told Holton the doctor did not want him to go back to work for awhile. After the strike (which occurred May 20-22, 1951) Misseldine told Holton that it would probably be a pretty good while before he could return to work. Holton told him not to try to rush himself ; to take care of himself and find out about the dizzy spells. A few weeks later, as Mis- seldine was doing some part-time work for another company, he talked with Holton about returning to work for Respondent and Holton replied that they would have to await a report from the insurance company. As it turned out Misseldine has never worked for Respondent since his accident, but the testi- mony indicates beyond question that as of May 19 neither Respondent nor Misseldine thought of his employment with Respondent as having ceased. As of May 19, 1951, the following drivers had voluntarily signed cards au- thorizing the Union to represent them for collective-bargaining purposes: Julius 0. Adams, Clayton Bragg, J. R. Haggard, Arlin H. Harrison, H. P. King, J. W. Misseldine, James Frank Ryals, and Walter Raybon. Thus the Union then represented 8 out of the 14 in the appropriate unit, a clear majority. 2. The request and refusal According to the credible and credited testimony of George S. Webb, business agent for the charging union, he and one Henderson, a new employee of the Union who was just "learning the business," first contacted Respondent by calling at Smith's office during the morning of Saturday, May 19, 1951, having first unsuccessfully tried to reach Smith by telephone to make an appointment. Smith arrived at his office shortly after they arrived. Webb introduced himself and Henderson by name, said that they represented the Teamsters' union out of Birmingham, that a majority of his "boys" had made application with the Union (he had the 8 cards mentioned above in his pocket), and that Webb would appreciate it if Smith would sit down and "try to negotiate a contract with us. And I told him that I have all the contracts in my band, and I laid it out on his desk there"-referring to a copy of a contract the Union had entered into with some 25 companies in Alabama, the so-called Southeastern over-the-road con- tract. Smith replied that: he didn't have anything to talk to me about. And he didn't know who I was. And so I told him, I said, "Well, I have introduced myself. I can give a phone number and you can call and verify who I am, if you doubt my work- (referring to his boss in Birmingham)-. And he said it wasn't necessary, that he just didn't care to talk to me. I told him, I said, "Well, Mr. Smith, I would appreciate it if you'd sit down and go over the contract, or look over it and see if you wouldn't like to sit down and try to do business with us." And he says, that he didn't want the contract, and that I was wasting his time. And I asked him, "Was that the end of the conversation?" And he said, as far as he was concerned . So I told him I was glad I met him and we left. 850 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Webb testified that during the meeting, which lasted 15 or 20 minutes, Smith did not question whether in fact, as represented by Webb, a majority had then signed up in the Union. At no time during this or any subsequent conference was there any discussion as to what constituted the appropriate unit. At the end of this conference Webb did not leave a copy of the Southeastern over-the-road contract, since Smith had evinced no interest in it. According to Smith's testimony this first meeting occurred Friday afternoon, May 18. During the introductions Webb said he represented the Teamsters' union, giving the complete name of the Union. After the introductions Smith invited them to sit down and the following conversation took place : And Mr. Webb says, "You want to sign one of our contracts?" I said, "No." He says, "Why?" I •said, "Well, I have several reasons why." "Well," he says, "Name one." I says, "In the first place . . . I don't know you fellows. And in the second place, I do not know whether you represent the majority of my operators, or not. And . . . there may be other reasons that I just don't care to-discuss." Then, according to Smith, Henderson made some remarks in the nature of threats to him. Sometime on May 19 after Webb and Henderson had been in Smith's office, Smith placed a long distance call to Respondent's vice president, George M. Hughes, in Charleston, South Carolina, told him that some union, people had been in to see him, that the Union was rather active and he didn't know what would happen. That evening, May 19, 1951, Webb met for the third time with,a group of_ the drivers. Those of the drivers who had attended previous meetings with several representatives of the Union, including Webb, had been instructed in the elements of the collective-bargaining process, had been told that if Smith would not bargain with the Union, the men might be called out on strike. They had been told this at meetings on May 12 and May 18, 1951. According to Webb, on cross-examination by Respondent's counsel, the men had indicated that they were generally dissatisfied with their wages and working conditions and needed the Union badly. They were told that any time the Union wished it could call them out on strike and they would be without means of support for their wives and families ; and they replied, according to Webb, that "they'd take care of that; they'd been hungry a long time." At the meeting on May 19, Webb reported to those present what had trans- pired that morning in Smith's office. He told them that Smith had "refused to even think about negotiating, and that he wanted no part of the Union." Webb then stated that "it looks like that we would have a strike, and if they was in favor of it." The drivers replied, according to Webb, that "if Mr. Smith refused to sit down and negotiate at all, that they all wanted to come out on strike until the contract was negotiated." The drivers struck from Sunday, May 20, at about 11 a. in. until Tuesday, May 22, at about 7 p. in. The strike was defeated by an injunction served May 22 late in the afternoon at the request of Respondent. During the strike 4 additional truck drivers signed cards authorizing the Union to represent them for collective-bargaining purposes : James A. Ray on Sunday, and C. S. Campbell, J. L. Griffin, and W. W. Dickey on Monday morning. I find, contrary to Respondent's contention, that they signed up voluntarily and without any coercion upon them to do so. On Monday afternoon during the strike, Webb and Henderson met with Smith, Hughes, and Respondent's general counsel, Jack Crenshaw, in' the SMITH TRANSFER COMPANY, INC. 851 latter's law office in Montgomery, at the Respondent's request. Later that day Webb and Henderson met in Smith's office with Smith, Hughes, and Mr. Burns, Director of the Alabama State Department of Labor, at the latter's request. The following morning Webb met in Burns' office with Burns and one of his lawyers and Crenshaw. The positions of the parties were stated at the meeting in Crenshaw's office ; there was much talk and some repetition ; but the positions did not change at the subsequent meetings. It does not appear necessary to set forth exactly what each person said at each meeting or in what order the points were made. Webb took the position that his Union represented the majority of Respondent's employees, that he had cards in his pocket authorizing him to represent them, and he requested Respondent to bargain with him Neither side raised the question as to which of Respondent's employees constituted an appropriate unit. Respondent took the position that It questioned his majority, asked him if he had been certified by the National Labor Relations Board, and since he had not, demanded an election. Respondent wanted the strikers to return to work immediately. Webb refused to submit the issue to a Board election on the ground that he understood he did not have to submit to one and on the further ground that Respondent would use the time necessary to set up and hold such an election to discharge enough employees to reduce his majority to a minority and he would therefore lose the election. Respondent offered to consent to a Board election and to cooperate with the Board to get an election. Webb stated that he could not keep Respondent from petitioning the Board for an election, but that lie would not do so. Respondent asked Webb how many employees had signed up with the Union that morning and Webb replied three. Respondent stated that it did not know how many of the employees had signed up for the Union voluntarily. Webb offered to allow Burns or a judge or other disinterested party to check his cards against Respondent's payroll, or to have Burns or Crenshaw or himself bring in the strikers and conduct an instantaneous secret balloting in the back of Burns' office. Webb stated that if Crenshaw would give him a letter recognizing the Union as the exclusive bargaining representative, the men would be back at work in 10 minutes. In Crenshaw's office Webb called his boss in Birmingham, M. It Sherman, secretary-treasurer of the Union, and had Crenshaw talk with him. After that Crenshaw stated that it looked as though they could not get together, that he would not discuss a contract at all unless the Union would submit to a Board election Respondent said that if the Union won a Board election, Respondent would sit down and try to negotiate a contract with it. Henderson made some indiscreet observations such as "We have put bigger people than you out of business," and to the effect that sometimes people get hurt during labor questions. Henderson was a large man So were Smith and Hughes Smith does not look like one who frightens easily. His testimony that under all the circumstances he "considered" that Henderson was threatening him is not credited. It is held that Henderson's remarks did not excuse Respondent from any obligation it otherwise had to bargain with the Union. On May 21, Crenshaw wrote the Board's Regional Director requesting an elec- tion and appropriate blank forms for use in filing unfair labor practice charges. On May 24 the Regional Office forwarded petition forms and charge forms. 227280-53-N ol. 100-55 • 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Conclusions • By May 19, 1951, when he talked with Smith, George S. Webb had been serving as business agent for his local union for some 10 months With that seasoning and in the light of Webb's demeanor before me I find it impossible to credit Smith's version of Webb's approach or the content of Webb's language at that first meeting. I believe Webb's testimony. It is found that at the first conference, which took place May 19, Webb, having properly identified himself, claimed to represent a majority of Respondent's "boys" at a time when in fact he represented a majority in an appropriate unit, and requested Smith to bargain with him and to try to negotiate a contract with him. Smith flatly refused to bargain with him, said that they had nothing to talk together about and that the union representa- tives were wasting his time. Smith did not at that conference raise the issue of the appropriate unit or question Webb's claim to represent a majority. Smith's flat refusal followed closely upon the series of acts and statements found above to have interfered with, restrained, and coerced Respondent's employees and to have discriminated against them for the purpose of discouraging activity and membership in the Union. In the light of this background, it is found that on May 19, 1951, Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, in violation of Section 8 (a) (5) of the Act, thereby further interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. It is found that the strike resulted from and was a protest to all of the unfair labor practices found above and that it was precipitated by Respondent's refusal to bargain on May 19. It was, therefore, a so-called unfair labor practice strike. During the strike Respondent met with the Union and tried to bring about an adjustment that would end the strike and put the men back on the highways hauling •oil and gasoline, but did not bargain towards a contract. During this period it questioned the Union's majority and insisted upon a Board election. The question arises as to whether this insistence upon an election was made in good faith or whether Respondent was motivated not by any bona fide doubt as to the Union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the Union s Within a period of a few weeks prior to Respondent's expression of a doubt about the Union's majority and its insistence upon a Board election, it com- mitted acts, as yet uncorrected, which indicated both a repudiation,of the collec- tive-bargaining principle and a desire to undermine the Union. Thus it dis- charged the instigator of the Union, threatened to discharge others for talking about the Union, threatened to close up shop rather than deal with the Union, and committed other acts enumerated above. The aggravated nature of these offenses, plus absence of any proof of a sudden change of heart by Smith, bar any possibility that Respondent's later questioning the majority was made in good faith and indicated that it was motivated, in questioning the majority, both by a rejection of the collective-bargaining principle and by a desire to gain time within which to undermine the Union. It is so held. It is held that Respondent refused to bargain collectively with the Union not only on May 19 but also on May 21 and 22 and from that time on, in violation of Section 8 (a) (5) of the Act, thereby further interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Sec- tion 8 (a) (1). S Cf. Joy Silk Mills, Inc., 85 NLRB 1263, enforced 185 F. 2d 732, cert. denied 341 U. P. 914. Ab SMITH TRANSFER COMPANY, INC. -' C. Refusal to reinstate the five drivers 853 Late Tuesday afternoon, May 22, 1951, the strikers abandoned the strike and on Wednesday morning, May 23, made an unqualified offer to return to work. Respondent reinstated all but five of them, but refused to reinstate Clayton Bragg, J. R. Haggard, Walter Raybon, James A: Ray, and James F. Ryals. As these men had participated in an unfair labor practice strike and had made an unquali- fied offer to return to work, they were entitled to reinstatement unless they had forfeited that right by engaging in unprotected concerted activity during the strike. Respondent contends that these five men were singled out for nonreinstatement because they constituted the group surrounding one of their number who said to an outside merchant who came on to the Smith property during the strike, "Give us two or three weeks after we go back to work ... and we'll shake those sons-of-bitches to pieces"-referring to Respondent's trucks. The testimony indicated, and it is found, that James A. Ray made this remark to Julian A. Pierson, whose testimony is credited. Pierson was copartner of General Truck Sales Company, which repaired Respondent's trucks, and went out there to try to sell Smith a GMC truck. One of the strikers asked him if he was trying to sell Smith a GMC truck. Pierson replied that he would like to. then Ray made the statement quoted above. Immediately one of the other strikers said to Ray, a new driver with Respondent and only 23 years old, "Hell, you can't drive a mule and wagon." Whereupon Pierson laughed and so did the others in the group. The group consisted of "from 10 to 15" according to Pier- son's uncontradicted testimony Smith testified in substance that just before he heard about this conversation from one of Pierson's assistants who phoned him for Pierson, Smith had come onto the property and had seen Pierson going out. According to Smith as he went in he noticed Bragg, Haggard, Raybon, Ray, and Ryals in a group, and immediately after the phone call he stepped out and noticed those five were still together in a group. So he deduced that one of those five had made the threat to shake the trucks to pieces and that the other four were equally responsible for the utterance by virtue of their presence. Neither Smith's testimony nor his theory of guilt-by-presence is accepted. It is reasonable to assume that any fair-minded employer seeking to learn who was responsible for what he considered a serious threat to his equipment would have questioned the men involved in it. Smith did not. (In testifying he flatly contradicted himself, saying several times that he did not, and then saying he did.) As to Bragg, Haggard, Raybon, and Ryals it is held that Smith seized upon this opportunity to deny them reinstatement because of their union and concerted activities, in violation of Section 8 (a) (3) and Section 8 (a) (1) of the Act. As to Ray, it is clear from the evidence that he made the remark in question in levity and that the others gathered around, including Pierson, took it as a joke. It is held that his making this remark did not deprive Ray of his right to reinstatement ; and that Smith seized upon it as a pretext for not reinstating him because of his union and concerted activities, in violation of Section 8 (a) (3) and Section 8 (a) (1) of the Act. Respondent contends in substance that as less than a majority in the appropri- ate unit voted to start the strike, none of the strikers should be reinstated. The evidence shows that less than a majority were present at the meeting Saturday night, May 19, when by unanimous consent they decided to strike. However, prior to that all who had signed up for the Union had been informed of the possibility of a strike and had indicated no protest against it; and during the 4 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike most of those who had signed up for the Union, if not all of them, par- ticipated in the strike without any coercion upon them to do so. Respondent contends that one of its two gates-the exit gate-was blocked by automobiles belonging to the strikers so that no trucks could go out. When the strike started Respondent locked that gate and kept it locked throughout the strike, and during a few hours of,the strike, at most, as many as three cars were parked between the gate and the highway. I find on the evidence, however, that at all times the other gate was unblocked and afforded free ingress and egress to either automobiles or trucks. Respondent contends in substance that because of mass picketing none of the strikers should be reinstated. The evidence proves that there was absolutely no mass picketing, that there was no picket line, that it was very hot, and that during most of the time the strikers lay under one and then the other of two pecan trees located completely off of Respondent's drive, trying to take ad- vantage of the shade there afforded. Respondent contends that during the strike Henderson, the union representa- tive, told one Albert Sides that they could cause him trouble if he went on the Smith property to get his son-in-law who was working. Sides did not impress me as having a memory capable of remembering a given conversation. The strikers questioned about it did not hear Henderson make any threat. Henderson did not testify and was not present in the courtroom. After the alleged threat Sides, who had come to take his son-in-law home for lunch, joined the pickets under the pecan tree (where they were eating sandwiches and drinking coca colas) until his Bon- in-law came out. It is held that Henderson did not make the remark attributed to him by Sides and that nothing Henderson may have said to Sides amounted to a threat to cause him harm. During the strike a truck belonging to the Govan Auto Supply Company went in and out of Respondent's gate one or more times without molestation by the strikers. During the strike two telephone calls were received at the Govan office, the person at the initiating end saying in each case that "they" were on strike and it would be best that Govan's truck not come out there any more. The person or persons who initiated these calls were completely unidentified. They might have been persons unfriendly.to the strikers or competitors of Govan I find no act here which converted the protected concerted activity into unprotected concerted activity. During the strike one of Respondent's trucks was hauled to General Truck Sales for repairs. Webb and Henderson asked Pierson to see that it did not get into the hands of some driver and to see that it was returned to the Smith prop- erty. According to Webb's testimony, which is credited, neither he nor Henderson made any threats to Pierson. I find here no reason for not reinstating the drivers. In conclusion I find that all of the strikers' concerted activity was protected concerted activity, and that on May 23, 1951, Respondent discriminatorily dis- charged Clayton Bragg, J. R. Haggard, Walter Raybon, James A. Ray, and James F. Ryals, because of their union and concerted activities, and has at all times since then refused to reinstate them, in violation of Section 8 (a) (3) of the Act. On Wednesday morning, May 23, 1951, as Smith was selecting what drivers he would reinstate he asked a number of them when they joined the Union. By such questioning he interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1). IV. T$E EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities, set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, SMITIi TRANSFER COMPANY, INC. 855 and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having discharged and refused to reinstate Arlin H. Harrison, Clayton Bragg, J. R. Haggard, Walter Raybon, James A. Ray, and James F. Ryals because of their union and concerted activities, I recommend that Respondent offer to each of them immediate and full reinstatement to his former or a sub- stantially equivalent position 4 without prejudice to his seniority and other rights and privileges and make each whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from May 3, 1951, in the case of Harrison , and from May 23, 1951, in the case of Bragg, Haggard, Raybon, Ray, and Ryals, the date of the dis- crimination against them, to the date when, pursuant to the recommendations herein contained, Respondent shall offer them reinstatement, less the net earn- ings of each during said period.' Loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quarter or portion thereof, their net earnings, if any, in other em- ployment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. The quarterly periods described herein shall begin with the first day of January, April, July, and October.' It is recommended further that Respondent make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of back pay due.' Because of the Respondent's unlawful conduct and its underlying purpose and tendency, I find that the unfair labor practices found are persuasively re- lated to other unfair labor practices proscribed and that danger of their com- mission in the future is to be anticipated from the course of the Respondent's conduct in the past 8 The preventative purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a reoccurrence of unfair labor practices, and thereby to minimize industrial strife which bur- dens and obstructs commerce, and thus effectuate the policies of the Act, I will recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Smith Transfer Company, Inc., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 4The'Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 6 Crossett Lumber Company, 8 NLRB 440, 497-8 . Republic Steel Corporation v. N L. R B., 311 U. S. 7. 6 F. W. Woolworth Company, 90 NLRB 289. 7F. W. Woolworth Company, supra. 8 N L R B. v Express Publishing Co., 312 U S 426. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Birmingham General Drivers Local Union No. 612, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Arlin H. Harrison, Clayton Bragg, J. R. Haggard, Walter Raybon, James A. Ray, and James F. Ryals, thereby discouraging membership and activity in the above-named Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. At all times material herein, the following employees of Smith Transfer Company, Inc., have constituted and now constitute a unit appropriate for the purposes of collective bargaining: all truck drivers, excluding office and clerical employees, all other employees, guards, and supervisors as defined in the Act. 5. On May 19, 1951, and at all times thereafter, Birmingham General Drivers Local Union No. 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, was and now is the exclusive repre- sentative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By refusing on May 19, 1151, and at all times thereafter to bargain collec- tively with said Union as the exclusive representative of all its employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (a) (5) of the Act. 7. By said acts and other acts Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and Roy STONE TRANSFER CORPORA- TION. Case No. 6-CC-60. August 28,1962 Decision and Order On December 20,1951, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent, herein sometimes called Local 636, had engaged in and was engaging in certain unfair labor practices, and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner' made at the hearing and finds that no prejudicial error was committed. The 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston , Styles, and Peterson]. 100 NLRB No. 137.