Wheeling Pipe Line, Inc.

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jority of valid votes cast.' Therefore, we shall certify the Petitioner as the exclusive bargaining representative of the employees of the Employer in the appropriate unit. [The Board certified International Association of Machinists. AFL, as the designated collective-bargaining representative of all production and maintenance employees employed by Rockwell Valves, Inc., at its Sulphur Springs, Texas, plant, including machin- ists, machine operators, assemblers, tool crib attendants, shop clerks and janitors, and trainees working within the bargaining unit, but excluding all other employees, including office personnel, executives, technical employees, engineers, metallurgists, laboratory assistants, time-study and methods engineers, professional employees, guards, watchmen, and all supervisors as defined in the Act.] 2Albson Malleable Iron Company, 104 NLRB 225 ; Vulcan Furniture Manufacturing Corporation, 97 NLRB 1116 , and cases cited therein. WHEELING PIPE LINE, INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOLTSEMEN AND HELPERS OF AMER- ICA, LOCAL No. 568, AFL. Case No. 15-CA-552. January 20, 1955 Decision and Order On July 14, 1953, Trial Examiner Robert E. Mullin issued his Intermediate 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 In- termediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations except insofar as they are inconsistent with the findings, conclusions, and order set forth below.' 1 Member Murdock disagrees with the majority finding that the Respondent violated Section 8 (a) (1) and ( 3) of the Act by paying a smaller Christmas bonus in 1952 to those strikers who had returned to work than they would have received had they not par- ticipated in the strike He considers significant the finding of the Trial Examiner, with which the majority apparently agree, that the Christmas bonus was not an integral part of the Respondent's wage structure, was not related to wages earned, and was not given pursuant to any established agreement or commitment to the drivers . On the contrary, 111 NLRB No. 43. WHEELING PIPE LINE, INC. 245 1. Unlike the Trial Examiner, we make no finding that the Re- spondent violated Section 8 (a) (2) of the Act. The record shows, as the Trial Examiner found, that in the summer of 1952, before the Union began its organizational activities among the Respondent's employees, employee Hogue asked Gentry, one of the Respondent's supervisors, whether a meeting could be arranged between the employees and Newell, the Respondent's president, to present certain complaints to him. Gentry suggested that a com- mittee be selected for this purpose, helped Hogue choose 12 em- ployees to serve as members of the committee, and posted a list of the members on the Respondent's bulletin -board. The committee then met with Newell and he later acted favorably on the requests they made. So far as the record shows, the only further activity on the part of the committee was the calling of a meeting of the em- ployees on October 26, 1952, to consider certain new rules that had been issued by the Respondent. No action was taken at this meeting, and since that time the committee has apparently been dormant. We agree with the Trial Examiner that the committee was a labor organization within the meaning of the Act. There is no evidence, however, that Newell knew of Gentry's participation in its formation; or that the Respondent contributed any further support to it or at- tempted in any way to keep it in existence. Under the circumstances, we believe that the support given to the now dormant committee, by the Respondent at the time of its formation was too inconsequential an infraction of Section 8 (a) (2) to require a cease and desist order to effectuate the policies of the Act. We shall therefore dismiss the 8 (a) (2) allegation of the complaint. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Wheeling Pipe Line, Inc., El Dorado, Arkansas, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of the bonus appears to have been "more or less an appreciation gift " made by the Respondent to its employees at Christmas time in keeping with the Christmas spirit. In essence, it was no different from the employee Christmas baskets distributed by the Respondent during the same holiday period. Member Murdock does not believe that it is the concern of the Act or of the l3oaid to deal with the degree of holiday benevolence displayed by employers to employees The majority agree that the Respondent did not violate the Act by failing to make any Chiistmas bonus payments at all to those strikers who did not return to work until after Christmas. Member Murdock believes that this unanimous finding logically iequires that no finding of discrimination be made because the Respondent made more generous Christmas gifts to some employees than to others 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, Local No. 568, AFL, as the exclusive representative of all its truckdrivers, including those stationed at Helena, Arkansas, but excluding all office and clerical employees, other employees, guards, professional employees, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other con- ditions of employment. (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 568, AFL, or in any other labor organization of its employees, by discriminatorily discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to • their hire or tenure of employment or any term or condition of their employment. (c) Interrogating its employees concerning their membership in, or activities on behalf of, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 568, AFL, or any other labor organization, in a manner constituting inter- ference, restraint, or coercion in violation of Section 8 (a) (1). (d) Threatening to shut down operations if the Union organizes its truckdrivers and soliciting strikers to abandon their concerted activities. (e) In any other manner interfering with, restraining, or coercing its -employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 568, AFL, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Arthur Cross immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." - (b) Make whole John Cross, B. R. Hall, J. W. Harris, Doyle T. Helms, E. W. Lott, A. L. McMurry, John W. Vos, and Floyd L. Wages, by paying to them the difference between what they actually WHEELING PIPE LINE, INC. 247 received as a Christmas bonus in 1952 and what they would have received had their bonus been computed on the basis of seniority acquired prior to the strike. (c) Upon request, bargain collectively with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 568, AFL, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (d) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who went on strike on November 6, 1952, or thereafter, dismissing, if necessary any person hired by the Respondent on or after that date, and make them whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay which they may suffer by reason of the Respondent's refusal, if any, to reinstate them. (e) Upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other rec- ords necessary to analyze the amounts of back pay due, (f) Post at its terminal in El Dorado, Arkansas, copies of the notice attached hereto and marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent violated Section 8 (a) (2) of the Act, that it violated Section 8 (a) (3) by discharging Walter Parks, refusing to reinstate John D. Hogue, C. M. Ludwig, and Petty Graham, and failing in December 1952 to pay the customary 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, theie 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." 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Christmas bonus to employees then on strike, and that it violated Section 8 (a) (1) by paying a Christmas bonus for the year 1952. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 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, Ave hereby notify our employees that: WE WILL NOT interrogate our employees concerning their mem- bership in, or activities on behalf of, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local No. 568, AFL, or any other labor organization, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8 (a) (1). WE WILL NOT threaten to shut down operations if a union or- ganizes our truckdrivers or solicit strikers to abandon their con- certed activities. WE WILL NOT discourage membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local No. 568, AFL, or in any other labor organi- zation of our employees, by discharging or refusing to reinstate any of our employees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organization, to join or assist Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 568, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Arthur Cross immediate and full reinstate- ment to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by rea- son of the discrimination against him. WHEELING PIPE LINE, INC. 249 WE WILL pay to the employees listed below the Christmas bonus they would have received in 1952 if it had been computed on the basis of seniority acquired prior to the strike, less such bonus as these employees actually received in 1952: John Cross E. W. Lott B. R. Hall A. L. McMurry J. W. Harris John W. Vos Doyle T. Helms Floyd L. Wages WE WILL, upon application, offer immediate and full reinstate- ment to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, to all those employees who went on strike on or about November 6, 1952, and make them whole for any loss of pay they may suffer as a result of our refusal to reinstate upon such application. WE WILL bargain collectively upon request with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local No. 568, AFL, as the exclusive representa- tive of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All truckdrivers, including those stationed at Helena, Ar- kansas, but excluding all office and clerical employees, other employees, guards, professional employees, and supervisors as defined in the Act. WHEELING PIPE LINE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 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 STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Rela- tions Act of 1947, 61 Stat. 136 (herein called the Act), was heard in El Dorado, Arkansas, from April 27 to 30, 1953 , pursuant to due notice to all the parties. The complaint, issued on March 4, 1953, amended on April 20, 1953 , and further amended at the hearing by the General Council of the National Labor Relations Board,' and based on charges duly filed and served, alleged that the Respondent had 2 The General Counsel and the staff attorney appearing for him at the hearing are re- ferred to herein as the General Counsel and the National Labor Relations Board as the Board. The above-named Company is referred to as the Respondent and the Charging Party, likewise named above , as the Union or Teamsters. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in unfair labor practices proscribed by Section 8 (a) (1), (2 ), (3), and (5) of the Act. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but denied the commission of the alleged un- fair labor practices. All parties were represented at the hearing, the General Counsel and the Respond- ent by attorneys, and the Union by field representatives. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and con- clusions. At the close of its case, Respondent moved to dismiss the complaint. This motion was taken under advisement; it is disposed of as will appear hereinafter in this report. Oral argument was had by the General Counsel and waived by the Respond- ent. None of the parties filed written briefs. Upon the entire record in the case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation, having its principal office and place of busi- ness at El Dorado, Arkansas, is engaged in the transportation of petroleum and related products in Arkansas, Louisiana, Mississippi, Texas, and Tennessee. In the course and conduct of its business in the 6-month period prior to issuance of the complaint it transported over 250,000 tons of petroleum products valued at over $2,500,000, of which 25 percent was transported in interstate commerce between the State of Arkansas and the other States named above. In the conduct of its business the Re- spondent operates some 60 motor vehicles of varying capacity under license from the Interstate Commerce Commission. On the foregoing facts, the Respondent concedes, and I find, that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events Prior to the period involved in these proceedings there had been two unsuccessful attempts to organize the Respondent's employees. In 1945, at a time when the Com- pany had 5 employees, a local of the Teamsters called a short-lived organizational strike which lasted for only a few days and during which 2 employees remained away from work. In February 1951, upon petition of the International Union of Operating Engineers, a Board-conducted election was held at the Company's termi- nal, at which, out of 92 ballots cast, 23 were for that union and 69 were against. In October 1952 the Teamsters initiated another organizational campaign among the Company's drivers. The discharges of Arthur Cross and Walter Parks, an issue herein, occurred shortly thereafter. On November 3, union representatives met with R. W. Newell, president of the Respondent, to request recognition. Respondent de- clined this request and suggested that the Teamsters first file a representation peti- tion with the Board. Three days later the Union called a strike among the Re- spondent's drivers which was still in progress at the time of the hearing. B. The facts and conclusions with respect to the alleged violations of Section 8 (a) (1) and (2) 1. Employee organizational groups About March 1952, a number of the Respondent's employees joined together in a group which called upon Mr. Newell to request that he correct what they con- sidered inequities in the various pay scales then in effect. Newell promised that he would consider their request and meet with them later. In a subsequent conference with the men several days thereafter he told of the steps which the Company would take to comply with their request. Later, during the summer, John D. Hogue, one of the drivers, spoke to Archie Gentry, safety manager and supervisor, about various complaints with which the employees were concerned and asked whether a meeting of the employees might be arranged with Newell. Gentry suggested that, instead of having all the employees participate , a committee of 12 to 15 should be selected for such a conference. He WHEELING PIPE LINE, INC. 251 obtained a list of the drivers employed by the Company and from this he and Hogue selected 12 individuals to serve as members. Gentry then posted the list of names on a company bulletin board and shortly thereafter the committee met with Newell in his office? According to Newell, he did not establish such an employees' committee but at some time during the summer he did tell the drivers to get together and represent themselves. He further testified that he met with the committee in July or August, that the members wanted to discuss a wage increase, that he told them he would see what he could do, and that a month or more later he granted the employees sub- stantially all they had asked for. Although Newell testified that he never directed any supervisor to participate in the formation of such a committee, on the other hand, neither did he testify that he had specifically forbidden them to do so. The testimony as to Gentry's participation is undenied. The General Counsel alleged that the Respondent had violated Section 8 (a) (2) of the Act by dominating the formation of the latter committee. This group of employees unquestionably came within the broad definition of a "labor organiza- tion" as that term is used in the Act. N L. R. B. v. Kennametal, Inc, 182 F. 2d 817 (C. A. 3); Modern Motors, Inc., 96 NLRB 964, 965, enfd. as to this point 198 F. 2d 925 (C. A. 8). And the participation of Gentry at the inception of this com- mittee clearly constituted interference 3 "with the formation or administration of [a] labor organization" as that language appears in the Act. Accordingly, I find that through this conduct of its agent the Respondent violated Section 8 (a) (2). Ibid. 2. The period from October 15 to November 15 a. The outset of the Teamsters' organizational campaign During the week of October 21, the Company issued a new book of rules and regu- lations to all its drivers. The employees were called, in small groups, to Newell's office where the Respondent's president and Gentry discussed the new rules with the men. Many questions arose about the application of various provisions in the book but the rule which aroused the greatest amount of discussion and some oppo- sition was one which required each driver to make a $50 deposit on the tools car- ried in his truck. On about October 22, Arthur Cross, one of the drivers, met with John D. Hogue and C. W. Herron, two of his colleagues, to suggest that the em- ployee committee be called to consider the new rules. Hogue agreed that he would post a notice calling a special meeting of the committee on the following Sunday. Further, as a result of this meeting, Cross contacted L. C. Sanders, a representative of the Union, who promised that he would visit Cross in El Dorado the following weekend. In the meantime Cross discussed the matter of union organization with a number of his fellow employees. On Sunday afternoon the employee committee met at the Respondent's terminal, with from 15 to 18 employees present. Although there was some discussion among the committee about the new rules, no course of action was agreed upon, and the meeting disbanded shortly after being convened. Cross again discussed unionization with several of those present and arranged a meeting for them with Sanders and R. B. Bunch, the Teamsters' representatives who had arrived in town earlier that day. Later that afternoon, the organizers met with the group which Cross had brought together at a point on the outskirts of El Dorado. The following evening Cross was discharged. The issues with respect to this mat- ter are considered below. The discharge of Walter H. Parks, another truckdriver, on October 29, is likewise discussed hereinafter. During the period immediately preceding the strike a number of supervisory per- sonnel made various statements to the drivers which the General Counsel alleged were violative of Section 8 (a) (1) of the Act. These incidents will now be con- sidered. On about October 25, as Cross was contacting his fellow employees at the ter- minal to determine how they felt about organizing a union, he stopped Hugh A. McKinney, one of the drivers, to inquire as to his attitude toward a union. McKin- ney replied that he thought the employees should organize. At this moment, H. A. Kennedy, the traffic manager, walked up and joined in the subject under discussion 2 The foregoing findings are based on the credited, undenied testimony of Hogue. Gentry did not testify 3 But not domination as the Board has construed Section 8 (a) (2) Cf Carpenter Steed Company, 76 NLRB 670 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the statement that "Mr. Bob [Robert Newell] didn't think so, that he would sell out and eat chili and crackers before he'd sign the union contract." 4 On about October 29, as Doyle Nichols went into the office of Rudy H. McHenry, the night dispatcher, the latter told the employee that he had originally thought he need not worry about Nichols supporting the Union but that Nichols had "sure fooled him." The employee conceded that he favored a union. At this point Carroll Donahue and another employee entered the room. McHenry then told these em- ployees that Newell did not like unions and would not recognize one, that if the Company were organized Newell could "put a Markel 5 man on us" and find excuses to get rid of anyone, cut the workweek to 40 hours, and impose strict physical examinations which several of the employees (whom McHenry then named) could not pass .6 J. G. Ballew testified that about October 30 Gentry called him and several other drivers into Newell's office to read the rule book to them. After he had finished, Gentry told the drivers that he had fired Cross a few days before because Cross "talked too much, agitated too much, [and] kept too much of a stink among the men." Gentry then asked about the Union and stated, "I guess you boys know more about it than I do." Ballew told the foreman he knew very little about the Union. Before concluding the meeting Gentry told the men that "if we went union . . . there was some drivers on the job that couldn't pass the ICC exam" 7 and then named two employees with physical defects who would be in this category.8 On November 3, W. A. Dutton was talking with Cottrell, driver-supervisor. Cottrell asked whether Dutton was "messed up with this union business" and upon receiving a noncommittal response, the supervisor declared, "Mr. Bob is not going to recognize the union. . He'll close up before he will. . . . We've got some trucks and tanks already bought and Mr. Newell is holding up on those on account of this union business." During the course of the conversation Cottrell asked if Dutton had signed a card. When the latter conceded that he had, Cottrell stated further that "Mr. Bob knew everything that was going on, that one of the other drivers was getting cards signed and was telling him who was signing these cards." 8 On about the same day, or shortly thereafter, Cottrell told Leonard Jones, another employee, that the employees were making a mistake in joining the Union because Mr. Newell would never recognize it.i0 It was undisputed that subsequent to the initiation of the strike Newell talked with several of the employees in an effort to induce their return to work. About November 8, Newell telephoned C. W. Herron, reminded the employee of how much he was losing by staying away from work, and asked that Herron return. The latter declined to do so as long as his fellow employees were on strike. Shortly thereafter, Newell called together four other strikers" whom he met outside the terminal entrance, told them he was anxious to get them back to work , and outlined a plan whereby they could be on hauls that would originate outside El Dorado and obviate their having to cross the picket line at the main terminal. In addition, and contrary to past practices, Newell offered to pay for all expenses incurred for meals and lodgings while on the road, and further promised that if they returned he would endeavor to get new trucks for their use. The version of the employees as to these conversations with Newell was uncontradicted and, at the hearing, Newell conceded • 4 The foregoing is based on the credited, undenied testimony of McKinney. Although Kennedy testified at the hearing, he was asked no questions with respect to McKinney's testimony 5 Markel, as an agent for the Company's insurance carrier, had inspectors make periodic road reports on all the drivers. These were submitted to both the Respondent and the insurance company e The foregoing findings are based on the credited, uncontradicted testimony of Donahue and Nichols McHenry testified at the hearing but at no point denied the testimony of these employees as to this incident. 7 The physical fitness examination required by the Interstate Commerce Commission of truckdrivers for an interstate carrier. 8 The foregoing is based on the credited, undenied testimony of Ballew As noted earlier, Gentry did not testify. 8 The quotations in the foregoing paragraph are from the credited, undenied testimony of Dutton. Cottrell, who testified at the hearing, frankly conceded that Dutton's version of their conversation was substantially correct. 10 This finding is based on the credited testimony of Jones. Cottrell testified that although he could not recall such a conversation that "I wouldn't say that I did not have that conversation " n J. G. Ballew, Arnold Kennedy, E. W. Lott, and J. W. Harris. WHEELING PIPE LINE, INC. 253 that if there was a law against an employer's soliciting strikers to return to work he had violated it. b. Concluding findings The statements of supervisory personnel, such as Kennedy, Gentry, McHenry, and Cottrell, that if the employees were organized the Respondent would cut down on the maximum hours, and impose more difficult physical requirements and working rules and, further, that Newell would cancel orders for new equipment and shut down operations rather than recognize a union, all came within the proscriptions of Section 8 (a) (1) of the Act. It was likewise a violation of that same statu- tory provision for Gentry and Cottrell to inquire as to the union activities and sym- pathies of the drivers (Syracuse Color Press, Inc, 103 NLRB 377) and similarly a violation for Cottrell to tell an employee that one of the purported organizers was, in fact, making regular reports to Newell on the names of those who signed cards. Finally, it was also violative of Section 8 (a) (1) for the Respondent to solicit the return to work of individual strikers by oral appeals and promises of benefit, since at the time, as found, infra, the Union was the majority representative, and such action had the necessary effect of undermining its authority. Sam'l. Bingham's Son Mfg. Co., 80 NLRB 1612, 1613-1614. C. The request to bargain and its aftermath 1. Meeting of the parties On November 3, Bunch and Sanders called on Newell. Bunch opened the meet- ing with the statement that his Union represented a majority of the truckdrivers and desired an opportunity to work out an agreement with the Company. Respond- ent's president thereupon telephoned his attorney to request advice in the matter and after completing this call told the union agents that he had been advised they would have to follow the regular procedure in connection with a Board election before the Company need recognize them. Bunch replied that this was unnecessary since an election would only be held to prove that the Union represented a majority whereas he and Sanders were prepared to prove that fact immediately. There was some further conversation about the question of an election, during which, ac- cording to Newell, Bunch declared, "To hold an election is like handing you a club to beat me in the face with." Newell's testimony in this connection was corrob- orated by Kennedy who heard the entire conversation. Sanders did not recall hear- ing Bunch make this remark. Bunch himself did not testify. It is my conclusion that Newell's recollection as to this phase of the conversation was the more accu- rate and I so find. Whether the Union actually had authorization cards from a majority of the employees on this date is a question that is resolved hereinafter in this report. I am convinced that at the meeting of the parties on November 3, neither Sanders nor Bunch actually referred to the number of cards which they had obtained or presented them to Newell for his inspection. On the other hand, Sanders credibly testified that he and his colleague offered to prove that they represented a majority but that Newell declared he would be satisfied only with an election. Moreover, Newell conceded that during this conference he did not ask the union representatives to prove their majority. He further testified that it was his belief that only by a secret election could the preference of the employees be de- termined fairly. 2. The strike The union members held a meeting on the evening of November 5, at which the employees present voted to strike in the event Newell rejected any further over- tures for recognition. Pursuant to this directive, Sanders telephoned Newell to ask if a peaceful settlement was possible. Newell reiterated that he would meet with the Union only if it won an election. Sanders then told him that the employees had voted to strike if their request for recognition was rejected. Newell expressed the hope that the men knew what they were doing and closed the conversation. The strike began on the morning of November 6 and a picket line was established about the terminal. At the time of the hearing it was still in progress. One of the factual issues in the case was whether a majority of the drivers joined in the strike. Early in the hearing Newell testified that only a minority had quit work; according to him, a total of 40. Later, it was stipulated by the parties that 38 named employees had done so. The General Counsel offered testimony to prove that three others, Ben Stewart, A. L. McMurry, and Bernard S. Carter were, in fact, on strike. There was credible testimony from both Dutton and Sanders that 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McMurry had joined in the strike for several days and Newell conceded that this employee remained away from work for a short while. On these facts it is my conclusion that McMurry participated in the strike. This is not the case, however, with respect to either Stewart or Carter. Two witnesses, McKinney and Dutton, testified that Stewart was on the picket line for a few minutes on the morning the strike began. Stewart, however, credibly testified that he had not joined in the strike, that on the morning of November 6 his wife was ill, that he had gone to the terminal entrance to meet Cottrell, a close personal friend, and there arrange for Cottrell's wife to care for Mrs. Stewart, and that he had subsequently talked with Newell to explain his absence from work that morning. His testimony was cor- roborated by both Cottrell and Newell. Carter was off work from November 7 to about November 11. However, from the credible testimony of Carter, Cottrell, and Newell, it appears that Carter returned from a haul on Friday with his truck in need of repairs, that he informed Newell at the time that he was not on strike and that as soon as his truck was serviceable he immediately returned to work. In the light of these circumstances it is my conclusion that neither Carter nor Stewart joined in the strike The total on strike, therefore, did not exceed 39. D. The issues with respect to the alleged discriminatory discharges; conclusions with respect thereto 1. Arthur Cross The General Counsel alleged that the Respondent discharged Cross to discourage the unionization of its truckdrivers; the Respondent averred that he was discharged for cause, as Newell testified, on the ground that he was constantly dissatisfied and en- gaged in "unnecessary talking." Respondent first hired Cross as a truckdriver in 1949. After working only a short while he voluntarily quit. In June 1950, he returned to the Respondent's employ and remained there until dismissed on October 27, 1952. Cross credibly testified that during the period of his employment he had never been reprimanded.12 As noted above, throughout the week of October 21, Cross was most active in his efforts to organize the truckdrivers. On one occasion he discussed his activities with one of the supervisors. This was on the evening of October 25, while making a short trip with Cottrell. The foreman told him that the Company had some new trucks on order and that Cross would be in line for one if he wanted new equipment. At one point the conversation turned to the question of labor unions and Cottrell declared that he felt the drivers would be better satisfied if they were organized. Cross told his foreman that at the very time he was trying to organize the drivers and that the matter would probably be decided at an employee meeting scheduled for the following afternoon.13 The next day Cross met with the union representatives and spent several hours going about the town with them as they contacted employees. That afternoon he continued his organizational efforts at the meeting in the terminal where he distributed cards and urged the drivers present to meet with Sanders and Bunch that evening. That night Cross attended the Teamsters' meeting and the following morning, prior to his departure from the terminal, he contacted several more employees whom he urged to join the Union. Upon returning from his trip that day Cross was summoned into the president's office. There Newell asked him several questions concerning dissatisfaction Cross had expressed during the previous week about the new rules, and then told him that he was being discharged immediately, as Newell told him, because "You talk too much." Newell conceded that Cross' work had been satisfactory throughout the period of his employment and assured Cross of a good reference for any subsequent job he might seek. Newell then paid him off with a personal check. Newell testified that he decided upon this course of action when McHenry told him that morning that he could endure Cross no longer and that Newell would have to decide between keeping him or Cross. McHenry gave substantially the same ac- count, testifying that he had found Cross' practice of constantly complaining about working conditions so irritating a habit that he could not tolerate it any further and had decided on October 27 to recommend Cross' discharge because of his "general griping, dissatisfaction, disagreeable and all.. .... The Respondent offered several 12IIe conceded that on one occasion, about 8 or 9 months before his discharge, a fore- man had told him that he was hard on equipment. This conversation, however, had not been followed by any disciplinary action or subsequent reprimand la The foi egoing finding is based on the credited, uncontradicted testimony of Cross. Cottrell was asked no questions as to this conversation. WHEELING PIPE LINE, INC. 255 witnesses to substantiate the allegation that Cross had a propensity to engage in end- less complaining. On the other hand, the same witnesses testified that this was no latter day development. According to McHenry, throughout the entire period that he was night dispatcher he noted very little difference in Cross' proclivities in this regard. William I. Stockman, another of Respondent's witnesses on this point, and one who had known Cross for many years, testified that he had always been "more of a complainer." McHenry testified that he had discussed Cross' tendencies with Newell once before, but McHenry was able to recall few details of the occasion or whether any- thing was ever done as a result of this discussion. Although at the outset of the hearing Newell had given Cross' complaining as the sole cause for his dismissal, later the Respondent offered testimony about an instance when Supervisor Kennedy reported that the operating expenses on Cross' equipment were abnormally high and also an occasion when some company tools had been found in his car. These inci- dents, however, had taken place many months before Cross' dismissal and there was no testimony that the Respondent had ever warned or reprimanded the employee about either of them. According to Newell's testimony he knew nothing of Cross' union activities until after the strike began and the latter appeared on the picket line. He further testi- fied that he could not recall being at the terminal on the afternoon of October 26 when the employees were holding their meeting. On the other hand, two witnesses 14 credibly testified that Newell was present in his office at the terminal that afternoon and at one point during the hearing Newell stated that in the week preceding Cross' discharge, "I think we knew there was some union activity going on." In addition there is in the record the undenied testimony that Cross had revealed his organiza- tional plans to Cottrell on October 25, and that later that same supervisor told an employee that "Mr. Bob knew everything that was going on, that one of the other drivers was getting cards signed and was telling him who was signing those cards." In view of the foregoing, and the further fact that, among the drivers, Cross was the principal union proponent in the week prior to October 27, it is my con- clusion that Newell was aware of Cross' activity before he discharged him. Only 2 days before his dismissal Cottrell assured Cross that in the near future he would be in line for certain new equipment, then on order. Since this would enable Cross to earn more money 15 it was hardly an indication that up to that point his supervisor considered Cross a troublesome employee. At the hearing, Newell described him as "a good worker" and added, "I didn't have anything against him only that talking." There may have been some basis for the Respondent to con- sider Cross a malcontent. On the other hand, it is apparent that his characteristics had never been a subject of concern or reprimand until he became active on behalf of the Teamsters.16 In the light of the foregoing and particularly because of: (1) The precipitate manner in which his discharge was effected; (2) the uncon- vincing nature of the reasons which the Company offered for this action; and (3) the Respondent's knowledge of his union activities, it is my conclusion, and I find, that the real motivation for Cross' summary dismissal was his participation in concerted activities, and a desire on the Respondent's part to thwart the organizational move- ment in its formative stages. N. L R. B v. Link-Belt Co., 311 U. S. 584, 589-90; N. L. R. B. v. Fisher Governor Co., 163 F. 2d 913, 914-5 (C. A. 8); and N. L. R. B. v. Glenn L. Martin-Nebraska Company, 141 F. 2d 371, 374 (C. A. 8). By such conduct the Respondent violated Section 8 (a) (3) and (1) of the Act. 2. Walter H. Parks This employee was discharged on October 29. Prior to that time he had been a truckdriver in the Respondent's employ for approximately 18 months. According to Newell, Parks was discharged for speeding. Parks conceded that, while driving a company truck several weeks prior to his dismissal, he had been apprehended by a traffic patrol some distance from El Dorado and charged with speeding. He also conceded that, some months before, he had 14 John D. Hogue and Carroll D Donahue 15 Newell testified that since the drivers' pay was based to some extent on mileage cov- ered, new equipment, being less subject to breakdowns, would offer an advantage to the employee 16Cf N L. R B v Electric City Dyeing Co. 178 F. 2d 980, 983 (C. A 3), where the court observed in a similar case that, insofar as the respondent there was concerned, the employee's attitude and conduct "apparently became intolerable only after he had joined the union " See also, N L R B v Whiten Machine Works, 204 F 2d 883 (C. A 1). 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been involved in a similar traffic violation for which he had paid a small fine. Ac- cording to Parks, he had never been warned or reprimanded in connection with these matters prior to his discharge. Newell on the other hand, credibly testified that in September, on learning of Parks' first traffic violation, he admonished him for "fast and careless" driving, and laid him off for a week. Parks conceded that he had not worked for several days in September, but denied that he was laid off for disciplinary reasons and claimed instead that at the time he was waiting to be assigned to another truck. Parks' ex- planation for not working during that period, however, was quite lacking in candor and most unpersuasive to the Trial Examiner. It is difficult to ascribe any significance to Parks' union activity. The employee signed an authorization card but took no active part in the organizational cam- paign. Parks himself testified that he had not persuaded any of his coworkers to sign authorization cards. On the single occasion that he had talked about the matter with two other drivers he learned during the course of the conversation that they had already signed cards. Prior to his discharge he had been disciplined for speeding and warned that another offense would result in dismissal. Newell credibly testified that it was not until October 29 that he discovered that Parks had paid a second fine for speeding and that as soon as he learned of the incident he concluded that Parks should be dismissed.17 In view of these facts, I conclude and find that Parks was discharged for cause and that the General Counsel failed to sustain the burden of supporting by a preponderance of the evidence his allegation that Parks' dismissal was discriminatory. E. The issues with respect to the alleged violation of Section 8 (a) (5); conclusions with respect thereto 1. The appropriate unit The parties stipulated that all truckdrivers of the Respondent, excluding super- visors and other employees, constitute an appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act. The Respondent's principal terminal is located at El Dorado. In addition, it has others in Arkansas at Stuttgart, Magnolia, 18 and Helena and one at Shreveport, Louisiana. Only the status of the Helena drivers was questioned at the hearing, the General Counsel con- tending that they should be excluded from the unit, the Respondent that they should be included. The Helena terminal, located 256 miles from El Dorado, is operated by one Frank H. Thompson under an agreement with the Respondent whereby Thompson supplies the trucks and supervision in return for a percentage of the gross income. Pursuant to this agreement, Thompson purchased 3 truck tractors and 3 tank trailers from Wheeling 19 in June 1952. The agreement further provided that Wheeling "allocate [to Thompson] ... a sufficient number of qualified licensed drivers for the operation of said equipment, said drivers . . . to remain at all times employees of Wheeling, and remain on Wheeling's payroll, and to remain under Wheeling direction, supervision, and control." [Emphasis supplied.] Respondent maintains all payroll records for the Helena drivers at its headquarters in El Dorado and from this central office pays the same wages to the Helena drivers as it does to drivers at all of its other terminals, as well as making all deductions from their earnings such as those for social security and withholding taxes. All trucks and trailers used by Thompson are registered and licensed by the Respondent with the Arkansas Public Service Commission to which regulatory body the Respondent is fully responsible, under its agreement with Thompson, for all phases of the Helena operation. All trucks and equipment used by Thompson bear the name "Wheeling Pipe Line Company" and the Respondent pays all taxes, insurance premiums, and vehicle license and permit fees. Thompson sends to the Respondent daily 17 Although the General Counsel presented testimony that in at least one other case in the preceding 2 years the Respondent had ignored the fact that an employee was involved in a traffic violation, the Respondent offered uncontroverted evidence that, during the fall of 1952, when the Company learned from its insurance carrier that two other em- ployees were involved in speeding offenses they were dismissed summarily. 19 This appears to have been a temporary base 19 The agreement had no provision on specific payments for the truck tractors other than a clause providing that Wheeling "deduct from compensation due Thompson . . payments as and when required to be made by Wheeling on said purchase price " WHEELING PIPE LINE, INC. 257 receipts covering products delivered and the latter does all billing and collecting for such deliveries from its headquarters in El Dorado 20 From the foregoing it is apparent that although the Helena drivers are not under the immediate direction of the Respondent, they are subject to a very high degree of control and supervision by the Company's El Dorado headquarters, and are, in fact, employees of the Respondent. Flint Oil Company, 88 NLRB 634, 635-636; Standard Oil Company (Indiana), 81 NLRB 1381, 1382-1384; O. Z. Hall Motors Inc., 94 NLRB 1180, 1181-1182.21 For this reason, and because their work and working conditions are the same as those for all other drivers employed by the Respondent, it is my conclusion that the Helena drivers should be included in the unit. 2. The refusal to bargain On November 3, as noted above, Sanders and Bunch called on Newell to request recognition for their Union on the ground that it represented a majority of the Respondent's employees. The Respondent declined to grant the request and sug- gested that the union representatives petition the Board for an election. The Gen- eral Counsel alleged that at the time the Union did, in fact, represent a majority of the employees and that the failure of the Respondent to treat with the Union as the designated representative of the employees was an unfair labor practice. The parties stipulated that during the period in question there were 81 22 truck- drivers on the payroll in the unit found above to be appropriate. They further stipulated that 43 authorization cards bearing dates from October 26 to November 2, were signed on or about the dates they bore. In addition, 5 other cards bearing similar dates were received in evidence, thus making a total of 48 cards signed prior to November,23 and more than a majority of the employees in the unit found appropriate. From the above it is apparent that on November 3, when Sanders and Bunch met with Newell, the Teamsters represented a majority of the drivers. It is undis- puted that the Respondent did not, either then, or later, recognize or deal with the Union as requested. Throughout that period and to the present the Respondent's position has been that until the Union won a representation election the Act imposed on it no obligation to recognize or bargain with the Teamsters. In the event an employer has an honest doubt as to the Union's purported ma- jority, or the unit which the Board would find appropriate, it is well settled that he may insist on a formal representation proceeding and a Board-conducted election to resolve such doubt before being obligated to bargain. N. L. R. B. v. Jackson Press, Inc., 201 F. 2d 541 (C. A. 7); Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as mod., 185 F. 2d 732 (C. A., D. C.), cert. denied 341 U. S. 914. On the other hand, such a position on the part of an employer is not tenable should the evidence develop that he did not entertain any real doubts of the Union's majority and that his in- sistence on certification was motivated largely by a desire to gain time to destroy the Union's support. N. L. R. B. v. W. T. Grant Company, 199 F. 2d 711 (C. A. 9), cert. denied 344 U. S. 928; N. L. R. B. v. Star Beef Company, 193 F. 2d 8 (C. A. 1); N. L. R. B. v. Ken Rose Motors, Inc., 193 F. 2d 769 (C. A. 1) ; Smith Transfer Co. v. N. L. R. B., 204 F. 2d 738 (C. A. 5); Stilley Plywood Company, Inc., 94 NLRB 932, 968, enfd. 199 F. 2d 319 (C. A. 4), cert. denied; Everett Van Kleeck and Com- pany, Inc., 88 NLRB 785, enfd, 189 F. 2d 516 (C. A 2); Globe Products Corpora- tion, 102 NLRB 278; E. H. Sargent and Co., 99 NLRB 1318, 1322-1324. Mr. Newell testified that he declined to recognize the Union upon the request of Sanders and Bunch because he did not believe it represented a majority of the em- ployees and because he felt that a secret election was the only fair manner in which the desire of the individual employees could be determined. In support of this posi- tion, Respondent seems to rely, in part, upon the fact that shortly after the union request for recognition, the Teamsters called a strike in which no more than 39 em- 20 The parties to the agreement may terminate it for cause or on 30 days' notice. 21 Sinclair Refining Company, 93 NLRB 1115, 1117-1118 , The Dispatch Printing Com- pany, Incorporated, 93 NLRB 1283; and Nehi Bottling Co, Inc., 101 NLRB 68, cited by the General Counsel in oral argument to support his contention that the Helena drivers are employees of an independent contractor are plainly distinguishable on their facts. 22 This figure includes the drivers at Helena It does not include Arthur Cross. 23 This tabulation does not include the card of Walter Parks, signed on October 27, because, as found above, by November 3, he had been discharged for cause The card of Arthur Cross, however, is included in the tally of 48 since it has been found that his dis- charge was discriminatory and as a result, he remained an employee within the meaning of the Act. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, and less than a majority in the unit, responded. The Board, however, has held that neither participation in strike activities,24 nor the nonparticipation in such activities,25 is determinative of the question as to the number of employees whom a union represents. More important in connection with the question as to the fairness and good faith of the Respondent in the present situation is the fact that within the preceding 2 years the Company had experienced a somewhat similar situation. In October 1950, the International Union of Operating Engineers had claimed that it represented a majority of the Wheeling employees and had filed a representation petition supported by 48 authorization cards. When an election was held, however, out of 92 eligible voters only 23 voted for the Operating Engineers and 69 voted against it. Significantly, the losing party filed no objections to the election and did not question the conduct of the Respondent in the preelection period. The absence of an antiunion history in previous years and the Respondent's experience with the Operating Engineers within the preceding 24 months all lend great weight to the Company's contention that it was entitled to a Board-conducted election without having its good faith impugned for taking such a position On the other hand, in support of the General Counsel's allegation that the Re- spondent did not have a bona fide doubt as to the Union's majority, the following factors must be considered: First, at the meeting on November 3, although Newell expressed the belief that the Union did not have a majority he did not ask Sanders and Bunch to prove their majority, as they might have done by a check of the author- ization cards. Secondly, in determining the question of good faith in a case such as the present, the Board and the courts have considered significant the character of any contemporaneous attack made on the Union's attempt to organize the plant. N. L. R. B. v. Top Mode Mfg. Co., 203 F. 2d 482 (C. A. 3); Joy Silk Mills, Inc., supra; Artcraft Hosiery Company, 78 NLRB 333, 334; E. A. Laboratories, Inc., 80 NLRB 625, 684. Here, the discharge of Cross on October 27 (a dismissal found above to have been discriminatory), the course of interrogation as to the union atti- tudes and sympathies of the employees, the threats voiced by supervisorial personnel that if a union came in the workweek would be cut to 40 hours and strict physical examinations would be imposed, and the undenied testimony that during this par- ticular week Driver-Supervisor Cottrell told one of the employees that Newell "is not going to recognize the Union . . . he'll close up before he will," and that Traffic Manager Kennedy told several other drivers that Newell "would sell out and eat chili and crackers before he'd sign the union contract," all cast a cloud over the purported good faith of an employer who, in such a situation, refuses recognition to a union which in fact represents a majority of his employees. Finally, the Re- spondent's subsequent solicitation of individual strikers to return to work provides additional evidence of a determination on the part of the Respondent to ignore the Teamsters and to refuse that Union any recognition. In the light of the foregoing it is my conclusion, and I find, that on November 3, the Respondent did not have such a good-faith doubt of the Union's majority stand- ing with the employees as would support the Respondent's insistence upon a Board- conducted election before it would recognize and treat with the union representa- u Cf McGougli Bakeries Corp , 58 NLRB 849, 853 (mod as to another point and enfd 153 F. 2d 420 (C. A 5) ), where the Board stated : In our opinion, the Union's striking and picketing activity did not conclusively settle the existing question conceining representation of the Respondent's employees The failure of those employees, who were scheduled to work for the respondent during the brief period of the strike, to cross the picket line in front of the plant entrance does not necessaiily mean that their participation in the strike indicated selection of the Union as collective bargaining iepresentative Employees may, and frequently do, refuse to cross picket lines foi reasons wholly unrelated to the merits of the particular labor dispute involved of to union membership and preference , often, for example, they are motivated by fear of personal violence, social ostracism, or being termed "scabs " 25 See Knickerbocker Plastic Company, 104 NLRB 514, where the Boaid iejected the contention that an employee ievoked her union authoiization card by going through a picket line. In Stewart Die Casting Corp v N L B. B , 114 F 2d849,854 (C A 7), cert denied 312 U S 680, the Court stated "It is aigued that this in itself [the fact that 195 striking employees had returned to work] is an indication that they were not meinheis of the Union . . . We think there is no merit in such contention. The fact that they retuined to work proves nothing concerning their Union membership, or the authority of the Union to act as their bargaining agent." See also Cherokee Hosiery Mills, 93 NLRB 590, 592-593 WHEELING PIPE LINE, INC. 259 tives. In consequence , by its refusal to recognize and to bargain with the Teamsters then, and during the subsequent months, the Respondent violated Section 8 (a) (5) of the Act. West Coast Luggage Co., 105 NLRB 414; N. L. R. B. v. W. T. Grant Co., and cases cited, supra. F. The issues with respect to the strike ; conclusions with respect thereto There was no dispute between the parties that the strike which began on Novem- ber 6, was initiated by the Teamsters to secure the recognition which the Respondent had denied. As found above, on November 3, the Union had already achieved the majority status which entitled it to exclusive recognition and the refusal of the Re- spondent to acknowledge that status thereafter was unlawful . The Board has held that where a union strikes for recognition in such circumstances the work stoppage is an unfair labor practice strike. West Coast Luggage Co., supra; Stilley Plywood Co., Inc., supra. On the basis of these authorities it is my conclusion that the strike here involved is likewise an unfair labor practice strike. Consequently , those em- ployees who joined in it were unfair labor practice strikers , entitled, upon applica- tion, to reinstatement regardless of whether they had been replaced. Respondent rehired a number of the strikers . At the hearing it contended that all who requested reemployment were returned to work. With the exception of John D. Hogue, C. M. Ludwig, and Petty Graham, the three individuals whose cases are discussed below, the General Counsel did not allege that the Respondent had discriminatorily denied reinstatement to any of the strikers. 1. The alleged discriminatory refusal to reinstate strikers a. John D. Hogue This employee had been a driver for the Respondent approximately 5 years when the strike began. Late in October 1952, Hogue notified the Respondent that he planned to go in business for himself and to resign, effective November 15. Subse- quent to the date he so notified the Company , but prior to the date his resignation was to become effective , the employees went out on strike. After the strike began, and until November 15, Hogue did not cross the picket line. Hogue's plans to es- tablish his own business subsequently failed to materialize and as a result, about 6 weeks after the initiation of the strike , he asked the Respondent for reemployment. Cottrell, whom he contacted first, told him that the Respondent had a rule that any- one who voluntarily quit would not be rehired . He suggested that Hogue see Newell. Hogue did so, but Newell offered him no encouragement and commented at the time, "All of the boys know that you have turned in your resignation and quit, better let that stick." On this same occasion Newell presented Hogue with a wrist watch, the Company's traditional award for 5 years of service to which Hogue had become en- titled on November 11. At the hearing Newell testified that he had no objections to Hogue's work record or his past performance and that the sole ground for his refusal to rehire the man was his reluctance to take back an employee who had voluntarily resigned. Hogue had taken no active part in the prestrike union campaign or in any of the picketing during the period from November 6 to 15. On the morning the strike began he started for work and, upon learning of the picket line, returned home where , accord- ing to his testimony , he became sick. Later in the morning McHenry called to ask whether he planned to work that day and Hogue told the dispatcher he was sick and unable to report. When McHenry asked if it was the picket line which was keeping him away, Hogue replied , according to his own testimony, "No, I am just not able to, go. You get John Lanother driver] to go out because I don't want to get involved in any of your trouble." Hogue testified that on I or 2 days during the strike he had driven up to the picket line and visited with his friends but he conceded that he never engaged in any picketing himself. Hogue had signed a union card and he testified that he served on a union committee to take care of needy members during the strike, but it does not appear that he achieved any prominence as a union advocate in connection with this activity. Insofar as the Act is concerned, the Respondent's refusal to l-eemploy one who voluntarily resigned may be based on a good reason , a bad reason, or no reason at all, so long as it is not because of the applicant's prior union activity . Cf. N. L. R. B. v. Budd Mfg. Co., 138 F. 2d 86, 90 (C. A. 3). The burden of proving the latter rests on the General Counsel. Here, in view of the frank and credible manner in which Newell explained his position on the matter, Hogue's inactivity during the 344056-55-vol 111-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike and the Respondent's award to him of a watch on the very day the General Counsel alleges he was discriminatorily refused reemployment, it is my conclusion that the General Counsel has failed to prove, by a preponderance of the evidence, that the Respondent discriminatorily denied Hogue reemployment. b. C. M. Ludwig Ludwig was a driver for the Respondent approximately 3 years. He lived at Junc- tion City, Louisiana, a point some distance to the south of El Dorado, and during most of the period of his employment with the Respondent he had runs into Louisi- ana which permitted him to keep his truck at Junction City overnight rather than having to return it to El Dorado each evening. Ludwig joined in the strike and asked for reemployment in January. The General Counsel alleged that when he did so Ludwig was discriminatorily refused his former job; Respondent, on the other hand, averred that Ludwig was offered substantially the same job held before .and that he refused it. At the outset of the hearing, the General Counsel called Newell as an adverse wit- ness. During the course of this cross-examination, Newell testified that when Lud- wig asked for reemployment he was told that he had lost the run through Junction City and when the General Counsel suggested that this was a "penalty of the strike," Newell stated that it was. Despite the apparent concession in Newell's statement that Ludwig was penalized for striking, the facts subsequently developed at the hearing point to a contrary conclusion. Ludwig testified that in January he telephoned Newell to ask for reemployment, that the latter told him "come on up . . . you know we never turn anybody down," that he then asked about getting the same haul he had prior to the strike and Newell said, "Well . I don't know about that . . . You know Billy Ray Hall got that and he's an older man than you are." Ludwig then went to the company headquarters where Newell told him that although at the moment there was nothing available he planned on giving him two hauls into Louisiana and would contact him as soon as possible. Ludwig then obtained other employment and 8 days later the Re- spondent's dispatcher called to ask if he would drive a truck to Prescott, Arkansas, that day. Ludwig declined on the ground that he would be unable to get off in time. Later that day he saw Cottrell who told him that another truck would be available for him the following morning if he was ready. Cottrell added, however, that since business had declined, Ludwig would not be permitted to keep his truck over- night in Junction City but, as Cottrell put it, he would "have to pull back north and catch a load like the rest of the boys or whenever they can." Ludwig did not accept this offer and never returned to ask for another assignment. Newell credibly testified that a driver, although generally kept on the same truck, was never consistently assigned to any set run, since the exigencies of the business from time to time necessitated moving the drivers from one particular run to another. According to Newell, this was his practice both before and after the strike and that as a result there was no specific run to which a returning striker could be assigned. The Company offered Ludwig two opportunities to go back to work, the first a run to Prescott, Arkansas, which he was unable to take, and the second a trip the 'following day which he rejected. At the hearing Ludwig did not question Cottrell's statement that current business conditions required that he return to EI Dorado in the evening for assignment to the next available load, and he frankly conceded that he fully realized the Company was experiencing a poor business season at the time ,he sought reemployment. He likewise testified that after declining the second trip which the Respondent offered him he had never returned to ask for another. Yet Newell had promised him a few days earlier that trips into Louisiana might be arranged ,later. Hall, the one who was then driving the route which Ludwig had driven for some time prior to the strike, had also been out on strike, and, like Ludwig, made his home at Junction City. Finally, there was no showing that Ludwig would have suffered any loss of pay on the assignment which the Respondent admittedly offered him. In view of the foregoing, it is my conclusion that Ludwig -was not discriminatorily denied reinstatement c. Petty Graham At the conclusion of the hearing the General Counsel moved to amend the ,complaint to allege that on or about April 29, 1953, the Respondent had discrimi- natorily denied reinstatement to Petty Graham. This motion was granted. Prior to the strike, Graham had been 1 of 8 drivers employed at the Respondent's Shreveport terminal. Graham and three others went out on strike, the rest did not. In support of the allegation that Graham was the object of discrimination the General WHEELING PIPE LINE, INC. 261 Counsel relied solely on certain testimony of Edgar H. Foster, terminal manager at Shreveport. Foster testified that Graham telephoned him on April 28, 1953, to ask if Foster had a job for him, and that he told Graham it would be necessary for him to see Newell. Foster further testified that although he had the authority to hire drivers he did not need any more at that particular time. There was no testi- mony as to whether Graham ever followed Foster's suggestion and asked Newell for reemployment, as to whether any replacements had been hired at Shreveport subsequent to the strike, or whether the nonstriking drivers were still the only other employees at that terminal. On this state of the record, the Trial Examiner dismissed the allegations as to Graham at the close of the hearing on the ground that the General Counsel had failed to sustain the burden of proof. This ruling is now reaffirmed. 2. The alleged discriminatory payment of a Christmas bonus For a period of from 10 to 12 years the Respondent had customarily given its employees a Christmas bonus. Such a bonus was paid in 1952. The amount of the bonus was determined on the basis of years of service with the Company, those employees with less than 6 months getting $25, and those with more seniority receiving proportionately greater amounts up to a maximum of $250. Insofar as the record indicates the bonus was not related to wages earned nor was it given pursuant to any established agreement, contract, or commitment with or to the drivers. Newell testified it was "more or less an appreciation gift" to his employees at Christmas time. The General Counsel questioned the Respondent's good faith in paying a bonus after the strike had begun, largely because Newell had told the employees some months before that the Company could not afford one that year. It was undisputed that at a meeting with the employees during the preceding summer Newell told the drivers that the insurance rates were so high that it seemed unlikely that the Company would be able to afford a bonus. According to Newell, the Respondent's liability insurance premiums for the year ending July 1952, cost $26,000, a figure more than double the rate for the preceding year, and that, as a result, during the summer of 1952 he assumed that if his insurance expenses increased at the same rate in the year ahead, the cost of that item alone would approximate $45,000. Newell credibly testified that in an effort to cut down on this expense he had changed his insurance carrier in July and that by Christmas time, when it was apparent that on the basis of the new insurance contract and fewer accidents, his insurance charges would not be excessive, he concluded that the Company could afford to pay a bonus to the employees. On the basis of these facts, it is my conclusion that the Respondent's payment of a Christmas bonus in 1952 was not, as the General Counsel alleged, a per se violation of Section 8 (a) (1) of the Act. During the Christmas season Respondent sent Christmas baskets 26 to all its em- ployees who were still on strike. It did not, however, pay them any bonus. The General Counsel alleged that the strikers should have received the bonus and by not doing so the Respondent had discriminated against them. This conclusion seems unwarranted. The individuals in question were unfair labor practice strikers. As such they would be entitled only to such back pay as would accrue 5 days after a request for reemployment was denied by the Respondent. It is the latter date from which they are to be made whole (and then only if discriminatorily denied reinstate- ment) rather than the date on which they went out on strike. Thus, strikers who ap- plied for reinstatement on January 1 would not be entitled to any back pay, over- time pay, or related premium wages paid nonstrikers during a Christmas rush season at a time when nonstrikers might have had abnormally high incomes. So here, hav- ing found that the bonus was not per se discriminatory, it is my conclusion that as to those strikers who did not return before Christmas the Respondent was under no obligation to pay them any bonus. Cf. Reliance Clay Products Company, 105 NLRB 135 (back pay order as to Sitton).27 This is not the case, however, as to those strikers who went back to work prior to the Christmas season. The parties stipulated that these individuals received the mini- mum bonus. Newell explained that this was "because they were new men." The 26 Containing a turkey or a ham. 17 On the facts in this case, the bonus plan does not appear to have been "an integral part of the Respondent's wage structure" (Niles-Bement-Pond Company, 97 NLRB 165, enfd 199 F. 2d 713 (C A 2)) If it were, the Union might have insisted (although here it did not do so) that the amount of the bonus be the subject of collective bargaining. N. L. R. B v Niles-Bement-Pond Company, 199 F. 2d 713 (C A 2). 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel alleged that by this action the Respondent discriminatorily denied these employees a portion of their bonus. Since the Act contemplates that unfair labor practice strikers, when returned to work, be returned without prejudice to seniority or other rights and privileges the Respondent was not free to treat the re- turning strikers as new employees. It was, instead, obligated to accord them the status which they had achieved prior to the strike. This would properly include af- fording' them all the rights and privileges to which that seniority acquired prior to the strike would normally secure for an employee. For this reason, it is my con- clusion that the General Counsel correctly asserts that the employees rehired sub- sequent to the strike and prior to the payment of the Christmas bonus were entitled to have the amount of their bonus computed on the basis of seniority acquired before the strike 28 For the Respondent to have done otherwise was a discrimination as to their hire and tenure of employment which violated Section 8 (a) (3) and (1) of the Act. I so find, IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, 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 thereof. V. THE REMEDY' Having found that Respondent has engaged in certain unfair labor practices, T- will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent's supervisory personnel contributed time and effort to the establishment of the employee committee hereinabove found to be a labor organization within the meaning of the Act. Although this organization ap- pears to be dormant at the present time it will be recommended that the Respondent cease and desist from such conduct. Since it has been found that the Respondent discriminated with respect to the hire and tenure of employment of Arthur Cross, it will be recommended that the Respond- ent offer Cross immediate and full reinstatement to his former or substantially equiv- alent position without prejudice to seniority or other rights and privileges. See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. It will be recommended further that Respondent make whole Cross for any loss of pay suffered by reason of this discrimination. Said loss of pay, based' upon earnings which he would normally have earned from the date of the discrimina- tion against him to the date of the offer of reinstatement , less net earnings, shall be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289. N. L. R. B. v. Seven-Up Bottling Co., 344 U. S. 344. Since I have found that the strike, which began on November 6, 1952, and which, was still in progress at the time of hearing, was caused by the Respondent's unlawful refusal to bargain with the Union, the strikers were entitled to reinstatement, upon application, irrespective of whether or not their positions have been filled by the Re- spondent. City Packing Company, 98 NLRB 1261. Accordingly, in order to effec- tuate the policies of the Act by restoring the status quo that existed prior to the time the Respondent engaged in the unfair labor practices, I shall recommend that the Respondent offer, upon application, reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges, to all its employees who went on strike on November 6, 1951, or thereafter, dismissing, if necessary, any person hired on or after that date. I shall also recommend that the- Respondent make whole said employees for any loss of pay they have suffered or may 28 The employees so affected were • John Cross, B. R Hall, J. W Harris, Doyle T Helms, E W Lott, A L McMurry, John W Vos, and Floyd L Wages Ben Stewart and Bernard S Carter were included on the list of employees who allegedly received less than the cus- tomary Chi istmas bonus On the other hand, the Respondent maintained throughout the hearing that neither Stewart nor Carter was ever on strike Since I have found that this was in fact the case and because the General Counsel offered no independent evidence to prove that these employees were treated any differently from all other nonstrikers, there is no substance to the allegation that they were discriminated against with respect to the- payment of a Christmas bonus. WHEELING PIPE LINE, INC. 263 suffer by reason of the Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date of his application to return to work to the date of the Respondent's offer of reinstatement. It will be further rec- ommended that those striking employees found herein to have been returned to work as new employees 29 and paid a Christmas bonus on that basis be made whole by paying them the difference between what they actually received and what they would have received had their bonus been computed on the basis of seniority acquired prior to the strike. It will also be recommended that the Respondent, upon reasonable request, make available to the Board and its agents, all payroll and other records pertinent to an analysis of the amount due as back pay. Since it has been found that Respondent, by various acts, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in the Act and particularly because the discriminatory discharge found herein "goes to the very heart of the Act," and (N. L. R. B. v. Entwhistle Mfg. Co., 120 F. 2d 532, 536 (C. A. 4) indicates a purpose to defeat self-organization of its employees, I am persuaded that the unfair labor practices committed are related to other un- fair labor practices proscribed and that the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus ef- fectuate the policies of the Act, it will be recommended that Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed by the Act. May Department Stores v N. L R. B., 326 U. S. 376, 386-392. 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. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. All truckdrivers of the Respondent (including those stationed at Helena, Arkansas ) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. All office and clerical employees, guards, professional employees , supervisors , and other employees should be excluded from such unit. 3. At all times since November 3, 1952, the Union has been and now is the ex- ,elusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since November 3, 1952, to bargain col- lectively with the Union as the exclusive representative of the employees in the aforesaid unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (5) and ( 1) of the Act. 5. By contributing support to a labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act 6. By discriminating in regard to the hire and tenure of employment of Arthur Cross and of the other individuals who are referred to under the preceding section entitled "The Remedy," thereby discouraging membership in the Union , Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and ( 1) of the Act. 7. By interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engag- ing 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 com- merce within the meaning of Section 2 (6) and ( 7) of the Act. 9. The Respondent has not discriminated with respect to the hire and tenure of employment of Walter Parks, John D . Hogue, C. M. Ludwig, or Petty Graham; nor has it violated Section 8 (a) (1) of the Act as alleged in paragraph XII, sub- section (h), of the complaint by paying its employees a Christmas bonus. [Recommendations omitted from publication.] =8I e, John Cross, B R Hall, J W Harris, Doyle T. Helms, E W. Lott, A. I, MeMur- ry, John W Vos and Floyd L. Wages.