Arrow Gas Corp.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1). 4. The aforesaid unfair labor practices are unfair labor practices affecting com merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Arrow Gas Corporation and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492. Case No. 33-CA-462. August 27, 1959 DECISION AND ORDER On January 27, 1959, Trial Examiner Wallace E. Royster 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices.' Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner only insofar as they are consistent with the findings, conclusions, and order hereinafter set forth. 1. We find, in agreement with the Trial Examiner that: (a) about December 18 or 20, 1957, Robert E. Glass, the Respondent' s manager at its Gallup, New Mexico, terminal, asked Gerald 'Tucker, a truck- driver at the terminal, whether he had signed a union card, and that, when Tucker admitted that he had, Glass asked Tucker why he had signed; (b) in early January 1958, Glass asked Jack Todd, another driver at the terminal, whether he had signed a union card and where and why he had done so; and, in connection therewith, Glass told Todd that the Respondent was providing benefits as attractive as those to be found elsewhere, and warned Todd that "we would all be sorry"; and (c) on or about February 15, 1958, Glass told Tucker and two other drivers, in substance, that he could promise nothing but would 1 The Trial Examiner found that the Respondent did not violate Section 8(a) (3) by laying off BillWilson or by forcing Charles A. Phillips and Daniel Clifton to quit, and that the Respondent did not violate Section 8 (a) (1) by giving less work to employees, thereby lessening their earnings. As no exceptions were taken to these findings , we adopt them pro forma. 124 NLRB No. 88. ARROW GAS CORPORATION 767 attempt to have O. L. Garretson, the Respondent's executive vice president, improve working conditions in exchange for a promise to drop the Union, and that the Respondent had taken every step from the beginning to defeat the Union and that it intended to continue the battle. We further find that the Respondent, by the above conduct of Glass, violated Section 8 (a) (1) of the Act. 2. The Trial Examiner also found that a so-called wage increase instituted by the Respondent was part of its effort to divert the inter- est of the drivers from the Union and that it, therefore, constituted a violation of Section 8(a) (1) of the Act. We disagree. The record discloses that, shortly after January 5, 1958, the Respondent began paying its drivers an additional 1-cent per mile for all "loaded miles" in excess of empty miles," traveled by them on two-way trips. Vice President Garretson testified that the Respondent granted the addi- tional compensation because, at about this time, there was in certain areas a surplus of supplies used by the Respondent, and that the Respondent, for the first time, therefore, began making two-way loaded hauls. This testimony was not contradicted in any respect and was not alluded to by the Trial Examiner. We construe it to mean that, after about January 5, 1958, the drivers first delivered their loads to the Respondent's customers, and that, on their return trips, they picked up supplies for the Respondent, which was a new practice, and that they were paid the additional compensation for carrying such supplies. No reason appears why Garretson's undenied testimony it not entitled to credence. We credit it. As the record thus indicates that the Respondent paid the additional compensation in question for wholly legitimate economic reasons, we find that the Respondent did not violate Section 8 (a) (1) of the Act by granting the so-called wage increase? 3. The Trial Examiner found that the Respondent's dispatchers, Lee Van Horbeck and Odis Brimer, exercised independent judgment in dispatching the Respondent's drivers. He, therefore, concluded that the dispatchers were supervisors and that statements of these dispatchers, involving promises of benefit and threats of reprisal, as more fully set forth in the Intermediate Report, were thus attribut- able to the Respondent. We do not agree. The record indicates that the dispatching work was normally routine in nature and that the dispatchers deviated from a fixed "first-in-first-out" policy set by Respondent for the dispatching of drivers only after consultation with and authorization from the dispatcher's superior. As the Gen- eral Counsel failed to establish by a preponderance of the evidence that the dispatchers exercised independent judgment in directing the work of the drivers or that they possessed any other indicia or super- For the reasons stated by the Trial Examiner , Member Bean would find that the wage increase constituted a violation of Section 8(a) (1). 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory status as set forth in Section 2(11) of the Act, we find that -the two dispatchers were not supervisors. As the dispatchers were not supervisors and as there is no other basis shown for attributing their conduct to the Respondent, we find that the Respondent did not violate Section 8(a) (1) of the Act by any conduct of Van Horbeck and Brimer. 4. The Trial Examiner concluded that the Respondent discharged Jack Todd in violation of Section 8(a) (3) of the Act. We do not agree. In reaching his conclusion, the Trial Examiner relied on find- ings that Manager Glass subjected Todd to a road driving test, which would not have been given but for Todd's union adherence, and that Glass deliberately conducted the test in such a manner as to cause Todd not to pass the test. Admittedly, Todd performed poorly on the test, and his discharge followed. The record does not persuade us that Todd failed to pass the test because of a nervous reaction induced by Glass, as claimed by Todd. Moreover, in concluding that Todd was unlawfully discharged, the Trial Examiner failed to give adequate consideration (1) to undenied credible testimony by Glass that he delayed giving a normally routine driving test to Todd because of the press of other business,3 and that he gave Todd the test after discover= ing that the total damages from what the Trial Examiner character-" iced as a "minor accident," which occurred while Todd was driving,, amounted to about $450; and (2) to undenied credible testimony by Garretson that, when Todd refused to take a second road test offered him, he stated that he wanted to do some more driving with one of the "boys" before taking another test, which indicates to us that Todd thereby indicated to the Respondent that he felt unable to drive the Respondent's large vehicles. Under the circumstances, the General Colmsel has not established by a preponderance of the evidence that the Respondent discharged Todd because of his union adherence.. Accordingly, we shall dismiss that allegation of the complaint. 5. The Trial Examiner found that the Respondent laid off Daniel Clifton for several days in violation of Section 8(a) (3) of the Act. As the Trial Examiner found, Clifton had delayed making at least one departure on a scheduled trip, and thus was guilty of neglecting his job. However, the Trial Examiner concluded that the Respondent used the matter of job neglect as a pretext for disciplining Clifton because of his union adherence. In reaching this conclusion, the Trial Examiner relied on statements made by Van Horbeck, set forth in the Intermediate Report, and on Glass' statement that the purpose of -the layoff "was to get Clifton to change his attitude toward the company." However, we have found above that Van Horbeck's statements are 3 The Trial Examiner noted in his intermediate Report that Glass had so testified, but the Trial Examiner did not consider this testimony in his analysis of the evidence^as to Todd's discharge, although, in reaching his ultimate, conclusion, the. Trial Examiner stressed Glass' delay in giving Todd a road test. ARROW GAS CORPORATION 769 not attributable to the Respondent and thus they are not probative to establish the Responndent's motivation in disciplining Clifton. Glass' statement, in our opinion, is as consistent with a conclusion that the Respondent laid off Clifton for wasting company time, thereby im- pairing the Respondent's service to its customers, as it is with the Trial Examiner's conclusion that Glass thereby indicated that the Respondent was disciplining Clifton because of his union adherence. Under the circumstances, the General Counsel has not established by a preponderance of the evidence that the Respondent laid off Clifton because of his union adherence. Accordingly, we shall dismiss that allegation of the complaint. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Arrow Gas Cor- poration, Roswell, New Mexico, and Gallup, New Mexico, its officers; agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening employees with reprisals for engaging in union activities. (b) Promising benefits to employees for not engaging in union activities. (c) Interrogating employees concerning their union membership or activity in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form labor organizations , to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion 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) Post at its terminals at Roswell, New Mexico, and at Gallup, New Mexico, copies of the notice attached hereto marked "Appen- dix." 4 Copies of said notice, to be furnished by the Regional Director 4In 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." 525543--GO-Vol. 12 4-5 0 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Sixteenth Region, shall, after being duly signed by the Re- spondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicious 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. (b) Notify the Regional Director for the Sixteenth Region in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed, insofar as it alleges that the Respondent violated Section 8 (a) (3) of the Act. MEMBER JENKINS, dissenting in part : I disagree with the majority's reversal of the Trial Examiner's find- ings that the Respondent violated Section 8 (a) (1) of the Act by giv- ing the drivers a wage increase and violated Section 8(a) (3) by dis- charging Jack Todd and laying off Daniel Clifton. This whole case must be viewed in the light of Respondent Manager Glass' undenied statement that the "Company had taken every step from the beginning to defeat the Union and would continue to fight the Union tooth and toenail to the bitten end." [Emphasis supplied.] The majority's finding that Respondent increased the compensation of drivers because for a time they made "two-way" rather than "one- way" hauls occasioned by there being suddenly in "certain areas" a "surplus of supplies" used by Respondent is carrying credulity beyond any limits. Truckers accustomed to making one-way hauls do not usually view the sudden ability to make two-way hauls as requiring an increase in the compensation of their drivers. On the contrary, they usually regard it as an opportunity to recoup what otherwise is a loss in operation, and feel no obligation, legal, moral, or otherwise, to suddenly distribute this windfall to their employees. A belief to the contrary is judicial naivete. The Respondent intended to defeat the organizational activities of its employees, said it intended to do so, and proceeded to carry out a program designed to accomplish that illegal objective. As to the wage increase, which took place after the Respondent was on notice that the Union had organized a majority of drivers, I find it discriminatorily motivated. The majority is equating the Trial Ex- aminer's failure to allude to the above testimony of Respondent's vice president as to the reasons allegedly justifying the wage increase with a failure to consider it. The Trial Examiner's failure to allude to conclusionary testimony of dubious legal weight bearing on the ques- tion of motivation is scarcely a basis for upsetting well-reasoned find- ARROW GAS CORPORATION 771 ings based on evidence of undoubted probative value made by the person before whom the case was tried. I do not take it to be a re- sponsibility or duty of a Trial Examiner that he specifically refer to all the evidence in a record lest he be found to have overlooked certain testimony. Such a requirement would foist an almost insuperable burden upon him and would lead inevitably to voluminous Intermedi- ate Reports. When a Trial Examiner does not allude to particular testimony in the record, I believe the fair presumption to be that he considered it, but found it wanting and unpersuasive. On the basis of this presumption and as there is no warrant in the record for holding that his conclusion was improper, I would affirm his rejection of the testimony. Accordingly, I would find that the Respondent paid the additional compensation in question at that time not for legitimate economic reasons, but as part of its calculated effort to lessen the interest of the drivers in self-organization, thus violating Section 8(a) (1). Whether or not the majority be correct as to whether the General Counsel proved that Respondent's dispatchers, Horbeck and Brimer, were supervisors within the meaning of the Act, it makes no difference as to my opinion on Todd and Clifton. The majority is reversing the Trial Examiner's finding that the Respondent discharged Jack Todd because of his union adherence. It is necessarily thereby rejecting some of his credibility resolutions without so stating and despite the well-settled Board practice of not overruling a Trial Examiner's credibility findings which are not clearly erroneous or unreasonable.' The Trial Examiner credited Todd's testimony and made the following findings. Glass told Todd he would be sorry for signing a union card. To accomplish Glass' purpose of providing an excuse for discharge, Glass gave Todd the driving test in such a fashion-by surreptitiously applying the brakes while ascending a a grade thereby causing the truck to stall-as to confuse and perplex Todd to such a degree that he could not perform acceptably. In the face of these specific findings, the majority states flatly, without presenting any reason, that the record does not persuade it that Todd failed to pass the test because of a nervous condition on his part for which Glass was responsible. The majority then refers to two factors to which it states the Trial Examiner failed to give "adequate consideration" and which is pre- sumably believes may support its reversal of the Trial Examiner's finding that Todd was unlawfully discharged. With regard to the first factor, the majority points to Glass' testimony that he delayed giving a normally routine driving test to Todd because of the press of other business. Glass also testified, however, that he usually gave the drivers a test, unless he was otherwise satisfied as to their ability. 5Linton-Summit Coal Company, Inc., 120 NLRB 346, and cases cited therein. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And the Trial Examiner found-as Todd had been observed on stu- dent trips by other drivers and must have performed satisfactorily or Respondent would not have entrusted him with an expensive truck carrying a hazardous load over the highways of New Mexico and Colorado-that when Todd was assigned to the Colorado run Glass had satisfied himself in some way that he was competent to handle the job. Clearly this finding of the Trial Examiner constitutes a rejection of Glass' testimony to the extent that such testimony may support a conclusion that Glass had doubts about Todd's competency or that the real reason for giving the test at the time in question was Glass' 'freedom from the press of business rather than Todd's union activity. Again, with respect to the first factor, the majority points to Glass' testimony that he gave Todd the test after discovering that the dam- ages from an accident in which Todd was involved amounted to about $450. However, the Trial Examiner specifically found nothing in Glass' testimony to suggest that the accident prompted the test. On the contrary; the Trial Examiner observed that it was during this very period that Glass questioned Todd concerning his union inclinations,, and the Trial Examiner concluded that the test would not have been given at that time but for Glass' learning of Todd's interest in the Union and using this stratagem as retaliation. In view of the fore- going, I cannot see how the Trial Examiner could have more com- pletely discredited Glass' testimony insofar as it may indicate that the accident was a motivating cause for the test. Regarding the second factor, the majority points to Garretson's testimony that when Todd refused to take a second road test offered to him, he stated that he wanted some more driving with one of the "boys" before taking another test. According to the majority, Todd thereby indicated to the Respondent that he felt unable to drive its large vehicles. But the Trial Examiner clearly credited Todd's testi- mony (which is in conflict with Garretson's) that he was willing to take the second test and refused only when he learned that Glass intended to ride in the cab, saying it was useless to do so as long as Glass was along since he was convinced Glass had determined to disqualify him. I find no basis on this record for reversing the Trial 'Examiner's credibility resolutions with respect to the discharge of Todd, much less for doing so in the manner in which this reversal is being accom- plished by the majority. Accordingly, I would find, as did the Trial Examiner, that the Respondent violated Section 8(a) (3) by discharg- ing Todd. Turning now to the layoff for several days of Daniel Clifton, the Trial Examiner found that this was done for discriminatory reasons. According to the Trial Examiner, Glass' remark on the occasion of the layoff that the purpose of the discipline was . to get Clifton to ARROW GAS CORPORATION 773 change his attitude toward the Company could fairly be interpreted as referring only to Clifton's adherence to the Union. The majority reverses the Trial Examiner's finding that the layoff was discrimina- tory because Glass' statement, in its opinion, is as consistent with the conclusion that Respondent laid off Clifton for wasting company time. 1 ,cannot agree with the majority because to reach a conclusion con- trary to that of the Trial Examiner it is necessary to disregard com- pletely the context in which the layoff occurred, i.e., Respondent's knowledge of Clifton's union activity and its union animus. There- fore, I would find, as did the Trial Examiner, that the Respondent violated Section 8 (a) (3) in laying off Clifton. The Trial Examiner's well-reasoned and carefully explained opin- ion as to the reasons why he found a discriminatory wage increase, a discriminatory discharge of Jack Todd, and a discriminatory layoff of Daniel Clifton is unanswerable on any sound basis that I can dis- cover in the record. APPENDIX 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 threaten employees with reprisals for engaging in union activities, promise benefits to employees for not engaging in union activities, or interrogate employees concerning their union membership or activity in a manner constituting interfer- ence, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Local Union No. 492, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affected by an agreement requiring membership in a labor organiza= tion as a condition of employment as authorized in Section 8(a) (3) of the National Labor Relations Act. ARROW GAS CORPORATION, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint as amended at the hearing alleges that Arrow Gas Corporation, herein the Respondent, discharged its employee, Jack Todd, on January 2, 1958; de- creased work opportunities for its employees Bill Wilson, Charles A. Phillips, and Daniel Clifton in December 1957 and January and February 1958; laid off Bill Wilson on January 26, 1958; and forced the quitting of Charles A. Phillips and Daniel Clifton on February 8 and 14, 1958, respectively, because Todd, Wilson, Phillips, and Clifton joined or assisted International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Local Union No. 492, herein the Union. The complaint further alleges that the Respondent, through its agents, questioned employees con- cerning union affiliation, threatened them with reprisals should they assist or join the Union, promised them benefits if they would abandon the Union, and in January 1958, instituted a wage increase. Respondent's answer denies the commission of un- fair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Examiner in Roswell, New Mexico, on October 14, 15, and 16, 1958. All parties were repre- sented and participated fully in the hearing. The argument of the Respondent was heard on the record. Counsel for the General Counsel has submitted a brief. 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 Arrow Gas Corporation is a New Mexico corporation with its principal office in Roswell, New Mexico, and with terminals, from which it distributes liquefied petro- leum gas, in Roswell, Gallup, and Portales, New Mexico. During the 12-month period preceding the issuance of the complaint, the Respondent shipped more than $50,000 worth of propane and butane to points outside the State of New Mexico. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492, is a labor organization admitting to membership- employees of the Respondent. III. THE UNFAIR LABOR PRACTICES After a short organizing campaign, which apparently began in late November 1957, the Union notified the Respondent on December 18 that it had been designated by a majority of the driver employees at the Roswell and Gallup terminals as bar- gaining representative. The record does not reflect any answer given by the Respond- ent to this communication, but the matter progressed in late January 1958 to the point of hearing before a representative of the National Labor Relations Board on a petition presumably filed by the Union. In December 1957 and January 1958 the Respondent had from 6 to 8 drivers employed substantially full time at the Gallup terminal, and 10 at Roswell, all of whom were engaged in delivering propane and butane gas from various points in New Mexico and Texas to distributors in New. Mexico, Colorado, Arizona, and Utah. The drivers were paid on a mileage basis and their earnings depended on the length and frequency of trips. ARROW GAS CORPORATION 775 On January 1, 1958, O. L. Garretson became Respondent's executive vice president in charge of the terminal and transportation operations and learned immediately that there was dissatisfaction among the drivers. The precise nature of the dissatisfaction is not described in Garretson's testimony, but it is of course obvious that the claim of the Union could be so interpreted by him. In any event the Respondent hired John Price, a Fort Worth attorney who represented the Respondent in this hearing, to make a survey at Gallup and Roswell and possibly other places, apparently to reach the root of whatever difficulty existed. In furtherance of this assignment Price in- terviewed drivers at Roswell and Gallup in late January. The record does not sug- gest that Price's activity in this respect was in any manner violative of the Act. Re- spondent also raised a mileage rate by 1 cent. Jack Todd became Respondent's employee on December 2, 1957, when he was hired by R. E. Glass, the terminal manager at Gallup. Todd was sent almost im- mediately to Roswell where he made a few student trips under the observation of other drivers. Returning to Gallup, Todd was assigned to a semitrailer and ran with some regularity between Gallup and Colorado points. Sometime in the middle of December Todd signed a card designating the Union as his representative. On an occasion which I find to have been in early January 1958, Lee Van Horbeck, the dis- patcher at Gallup, asked Todd if he had signed a union card and where he had done so. Todd made no responsive answer. Van Horbeck continued with the advice that the less said about the Union in Gallup the better off all would be. A little later on the same day Manager Glass asked Todd the same questions, and again Todd avoided answering. Glass, apparently assuming that Todd's avoidance constituted an admis- sion that he had signed a card, asked why he had done so, commented that the Re- spondent was providing benefits to the employees as attractive as those to be found elsewhere, and concluded with the warning that all would be "sorry." Todd soon learned, he testified, that he was to be given a driving test, and a day or so later Glass directed him to take out another semitrailer truck, somewhat longer than the one he had been driving, for that purpose. During the test, according to Todd, Glass surreptitiously applied brakes while ascending a grade, causing the truck to stall and inducing a nervous reaction on the part of Todd. Glass said that Todd could not handle so large a rig and he was not thereafter given any work. A few days later Glass called Todd to the terminal and asked him to listen while Glass spoke to the manager at Roswell to inquire if there was work at that point for Todd on lighter equipment. There was no opening. About January 21, Attorney Price came to Gallup and, speaking to Todd, said that Edwards, the maintenance mechanic, and some others thought that Todd had not been given a fair test and asked Todd if he would be willing to be tested again by Edwards on a truck of Todd's choice. Todd answered that he was. He and Edwards approached the truck which Todd had been accustomed to drive and Glass joined them. Learning that Glass intended to ride in the cab with him and Edwards, Todd refused to take the examination, saying that it was useless to do so as long as Glass was along. Todd testified that he was convinced that Glass had determined to disqualify him. Glass testified that he routinely gave a road test to drivers unless he was satisfied in some other fashion that they were entirely competent to handle the equipment, and that the delay in doing so in Todd's case was attributable to the press of other business. According to Glass, Todd's performance on the test run was woefully inadequate. His gear changes were made incorrectly, he seemed unable to judge the amount of clearance required to turn the truck, and exhibited such a lack of skill as to demonstrate an inability to drive heavy equipment. Daniel Clifton, hired by Glass at Gallup in December 1957, signed a card for the Union sometime in December. In early January, Clifton was taken off a sleeper truck which he had been operating for a few weeks, and thereafter, according to Clifton, given runs not as remunerative. On February 12 or 13, according to Clifton, Van Horbeck asked him if he was on the Company's side, saying that if he would go along with the Company he would make more money, drive a better truck, and in general have a better job for years to come. Clifton answered that he had signed a union card and was with "the boys." Within a day or two Glass spoke to Clifton about a delay in starting a trip, claiming that Clifton had wasted several hours in that fashion. Glass said that he was laying Clifton off for a week or 4 days (the testimony is in conflict on this point) to see if his attitude toward the Company would change. Van Horbeck, who was present on this occasion, said that he and Clifton had had a "man to man" talk and that he thought a layoff would be sufficient to accomplish a good result. Clifton came back in a week and was given a short trip. He waited around for another few days, he testified, and, receiving no other assignment, found other employment. After starting his new job he was called to work by the Respond- ent but refused the opportunity. 776 DECISIONS OF NATICNAL LABOR RELATIONS BOARD Glass testified that he suspended Clifton for 4 days because of adelay in starting a trip. Glass explained that this was Clifton's second offense in that respect and that on the first occasion he had issued a warning to him. Glass denied that union member- ship played any part in his decision to give work to Clifton. Still, according to Glass, after the suspension Clifton was given a trip and was needed for a second almost immediately but could not be located. Glass freely conceded that Clifton was a competent truckdriver and said that he was glad to see him return to work after the suspension. Glass admitted that he had inquired of some employees whether they had signed cards for the Union. Gerald Tucker, an employee at Gallup from March 1957 to May 1958, testified that he signed a union card about December 10. A week or 10 days later Glass telephoned him to come to the terminal and asked him what was going on about the Union and if he had signed a card. Tucker explained he had done so because he felt the drivers needed such representation. According to Tucker until this con- versation with Glass he had been sent out in regular turn, but then more drivers were hired sand the new men were given preferential assignments. On February 15, still according to Tucker, he, with drivers Brannin and Hutzen, met by arrangement with Glass and asked what they could do to bring working conditions back to what they had been. Glass said, according to Tucker, that he could promise them nothing but would see what could be done if they "dropped the cards." Glass commented that Clifton was a strong union man and that the three of them had better talk to him. He, Glass, would talk to the three men recenly hired-Vesper, Manuill, and Hussey. Glass asked them to be patient until he found opportunity to talk to Vice President Garretson. Glass observed that the employees couldn't get a union shop in New Mexico and without such an arrangement the Union would not be much good to them. Still according to Tucker, Glass said that the Company had taken every step from the beginning to defeat the Union and that it would continue to fight the Union to the bitter end. Glass testified that when he met with the three drivers, Hutzen said that the men now believed that they had made a mistake in attempting to have the Union represent them and that they were disappointed in,the Union's failure to perform its promises. Hutzen asked if "things" would go back to what they had been if they would get rid of the Union. Glass said that he could promise nothing but told them that he would discuss the matter with Garretson. Glass testified that he had no recollection of mentioning Clifton. Glass testified that the advent of the Union did not affect the method of dispatch of drivers; that such changes as had occurred were dictated by business conditions. Some witnesses for the General Counsel testified that two additional drivers were hired at Gallup in early January, with the result that men earlier employed were given less work. Thus it is suggested that this method was taken to lessen employee earnings and to penalize them for having brought in the Union. Payroll records indicate, however, that at no time in December or January were more than eight drivers regularly employed at Gallup. Six trucks were operated from that terminal: two of them equipped for sleeper operations and on long trips requiring the assign- ment of two drivers. So it appears that the terminal was not overmanned in respect to drivers. Taking the period December 22, 1957, through February 1, 1958, the weekly earnings of the drivers averaged as follows: Brannin $113.75, Hutzen $114.90, Tucker $127.70, Reed $105.90, and Clifton $97.60. These five were on the payroll before the Union made its request for recognition and might be pre- sumed by the Respondent to be individuals who had designated the Union, as in fact they had. Among the newer employees the weekly average is, for Hussey, $112.90; for Turner, who worked the first 2 weeks of this period, and for Vesper, who worked the last 4, a combined average of $103; for Todd, who worked the first 3 weeks, and Manuill, who worked the last 3, an average of $100. These figures do not support the contention of the General Counsel that the old men were discriminated against in regard to their earnings, except possibly in the case of Clifton. But Clifton agreed in his testimony that he had taken a few days off in late January in order to make a trip to California, and this is at least a possible explanation for the lowness of his average. Bill Wilson, a driver at Roswell hired December 4, testified that one of the results of the Union's organizing was that the Respondent no longer delivered gas to El Paso as it had in the past. Leased equipment and drivers were used for such de- liveries thus depriving the Roswell drivers of a profitable run. Charles A. Phillips, ARROW GAS CORPORATION 777 another Roswell driver, testified to the same effect. In January, Wilson was laid off and has not since worked for the Respondent. He testified that a week or two before his layoff he was told of his probable fate by one Odis Brimer, who com- mented that as one laid off he would not be able to vote in the representation election. Whatever meaning might be attributed to this remark by Brimer, which he denied making, is unimportant. The payroll records, which I find here to be more reliable than the memory of the witnesses, show that Wilson last worked some time during the week ending January 18, 1958. Brimer became the dispatcher at the terminal on January 24 and prior to that date occupied a position which the General Counsel does not assert to be one constituting him a responsible agent of the Respondent. Absent a showing to establish respondent superior there remains no other basis for attributing whatever Brimer may have said to the Respondent. Charles A. Phillips was hired at Roswell in November 1957 and signed a union card in December. He testified that he had been making runs to El Paso but the leased trucks put an end to that. He complained to Brimer about it, who said that the Company was saving money by the lease arrangement. Phillips asked, he testified, what the drivers could do to improve their earnings. Brimer answered if the drivers would get together with Garretson and promise to get rid of the Union everything would be brought back to what it was before. In late January, according to Phillips, he earned only $42 in 1 week. He then borrowed $60 from the Re- spondent and made another run on January 31. He was offered another trip in a day or two but, in the belief that he could not make a living working for the Respondent, did not take it. Hugh Stevens, a driver who had signed a union card, testified for the Respondent that Marvin Russell, the dispatcher who was Brimer's predecessor, had favorites among the drivers and those who were not on the list of friends made little money. Stevens testified that he was victimized by this practice but that after Brimer became a dispatcher he thereafter got a fair share of the work. Brimer denied that he told Phillips on any occasion that things would be better after Garretson learned that the men were giving up the Union. Respondent's payroll records indicate that for the period November 3 through December 21, 1957, drivers Copeland, Glass, Howard, Teague, and Knight each averaged over $126 a week; Stevens averaged $111; Traweek, $92.70; Phillips, $105; Marsh, $117.60; Howard, $92; and Wilson, $73. From December 22, 1957, the week immediately following the Union's request for recognition, through February 1, Copeland's average fell from $140 to $121.70; Glass' from $136.70 to $109.50; Teague's from $149 to $119.50; and Knight's from $126 to $97.70. These four, however, still continued to do better than the others. Stevens' earnings fell to an average of $70.70; Traweek's to $82; Phillips' to $72.60; Marsh's to $66.50; Howard's to $77.40; and Wilson's rose slightly to $81. It is obvious enough that all of the drivers made substantially less money in the latter period. But no change in the pattern of discrimination, if it is proper to call it that, seems to have occurred following the advent of the Union. The favored drivers still remained favored, and those who had been earning less for the most part earned still less. It is true that Stevens' earnings dropped very sharply. More than $40 a week on the average. But he stoutly maintained in his testimony that this was attributable only to the disfavor in which Russell held him. Following the appointment of Brimer as dis- patcher, the payroll records indicate that the men at the Roswell terminal were, in general, afforded more uniform work opportunities. I credit the undenied testimony of Tucker that Glass told him that the Respondent had taken steps from the beginning to defeat the Union and intended to continue the battle. Both Glass and Van Horbeck questioned drivers at Gallup concerning the signing of union designation cards, and Glass told Todd that he would be sorry for having done so. I have no doubt and find that the mileage rate increase was instituted in early January to lessen the interest of the drivers in self-organization. The efforts of Attorney Price to discover from the drivers at Gallup and Roswell the nature of their grievances clearly was to give the Respondent an opportunity to correct inequities and thus to make it less likely that the drivers would adhere to the Union. Glass, testifying as to Van Horbeck and Garretson, as to Odis Brimer, said that these dispatchers were not supervisors, lacking power to hire or discharge. But Brimer testified that he could make recommendations concerning the drivers to his superior and that the decision in late January to attempt a more equitable division of runs among drivers at Roswell was reached in conference with Vice 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD President Garretson and his assistant, Goss. Van Horbeck did not testify and is no longer in Respondent's employ. Glass testified that he and Van Horbeck together made decisions concerning the assignment of drivers. I find that both Brimer and Van Horbeck as dispatchers, responsibly direct the drivers at the two terminals. In January, at least, drivers were not sent out in regular turn and although Respond- ent's witnesses denied that considerations of union membership were given any weight in making assignments, their own testimony makes it clear that many factors had to be considered by the dispatchers. I find that Brimer and Van Horbeck both occupied positions which necessitated the exercise of independent judgment in dis- patching drivers and the result of their separate judgments affected drivers' earnings. Naturally, they were regarded by the drivers as the representatives of management that they were. Crediting the testimony of Todd and Clifton as to conversations with Van Horbeck, as I do, I find that Van Horbeck warned Todd that all would be better off at Gallup if no mention were made of the Union and that he told Clifton in February he would make more money, drive a better truck, and have a better job if he would stay on the Company's side. These promises of benefit and predictions of trouble constituted interference, restraint, and coercion in respect to the rights guaranteed in Section 7 of the Act and the Respondent thereby violated Sec- tion 8 (a) (1) of the Act. I credit Phillips' testimony that Brimer told him in late January that a promise to Garretson to get rid of the Union might serve to improve working conditions. Here again was an interference, restraint, and coercion of employee rights protected by the Act and a further violation of Section 8(a)(1) of the Act. The same character of violation is detailed in the substantially unde- nied testimony of Gerald Tucker when on February 15 Glass told Tucker and two other drivers at Gallup that he would attempt to have Garretson improve working conditions in exchange for a promise to drop the Union. I find here a further vio- lation of Section 8 (a) (1) of the Act. Although it seems obvious enough that drivers at Roswell lost earning opportunities by reason of the leased truck arrangement running into El Paso, I credit the testimony of Garretson that the leased trucks started their runs on November 25, a date well before any manifestation of union interest was made to the Respondent. I do not find that the lessened earnings of the Roswell drivers due to the operation of the leased trucks is attributable to any discriminatory purpose of the Respondent. The evidence surrounding the discharge of Jack Todd presents some puzzling aspects. He had been observed on student trips by other drivers of the Respondent and must have performed satisfactorily or the Respondent would not have entrusted him with an expensive truck i carrying a hazardous load over the highways of New Mexico and Colorado. Yet this is what happened. I must conclude that when Todd was assigned to the Colorado run Manager Glass had satisfied himself in some way that he was competent to handle the job. After about 4 weeks and almost immediately following questions by Glass as to his union inclination, he was told that he must take ^a driving test. It is true that during that 4-week period he had been involved in a minor accident, but there is nothing in the testimony of Glass to suggest that this incident prompted the test. The evidence convinces me that it would not have been given to Todd at this time had not Glass learned of his interest in the Union and used this stratagem as retaliation. Todd heard from another driver, he testified, before the test was given that Glass was determined he should not pass. The other driver was not called to testify, so of course the only value of this testimony by Todd is to explain his frame of mind when he climbed into the truck with Glass. He said that he was nervous and that Glass further confounded and dismayed him by surreptitiously setting trailer brakes. I have no doubt that Todd did not perform well on this occasion, but Glass seems to have had something on his conscience. If Todd was the incompetent pictured in Glass' testimony, it seems odd that he would make an effort to obtain employment for Todd at Roswell. Somehow Glass felt a compulsion to justify himself in Todd's eyes and arranged for Todd to be present when he spoke to the Roswell manager by telephone in order to persuade Todd of his good faith. Finally, at the suggestion of Attorney Price, Todd was offered a driving test with the maintenance mechanic, Edwards; a test which he refused to take when he learned that Glass would accompany them. When asked to explain what purpose the test could serve in the light of the result of the earlier one, Glass said that he was willing to give Todd another chance. If the first test 1 Albeit, a leased one. ARROW GAS CORPORATION 779 .had been given in circumstances fairly designed to reveal Todd's competency or lack of it, I do not see how Glass could conscientiously let Todd or anyone believe that .a second test might demonstrate that Todd was after all worthy of employment. Glass had told Todd that he would be sorry for signing a union card, and I am con- vinced conducted the driving test in such a fashion as to confuse and perplex Todd to such a degree that he could not perform acceptably. I find that the test was .given in such a fashion as to accomplish Glass' purpose to provide an excuse for -discharge. About January 11, 1958, Clifton was taken off his assignment on a sleeper truck which he had had for a few weeks. Manuill, who replaced him in the remaining 3 weeks of Clifton's employment, earned more than Clifton. By losing the sleeper truck assignment Clifton apparently suffered a loss in earnings. Glass explained in his testimony that the sleeper truck was not performing properly; that he did not know whether the fault lay with the truck or with the driver; and that he took Clifton off that assignment in order to see if another driver could handle the truck better. Of course this is a valid enough reason for the change, but there is no sug- gestion in Glass' testimony that he thereafter paid any particular attention to the truck's performance. I am left at large to speculate whether the new driver did the same, better, or worse than Clifton. Considering Glass' expressed opposition to the Union, one is inclined to suspect that the change in assignment derived from that attitude. But there is nothing in this record which points surely to the conclusion that Glass was aware in early January when the change was made that Clifton was .among the union supporters. Considering the conversation between Glass and Clifton in February, it is at least arguable that Glass was not certain until that date on whose side Clifton had aligned himself. I find upon a consideration of all the .evidence that the General Counsel has not established that the change of assign- ment in respect to the sleeper truck was a discriminatory one. In February, as has been related, Clifton was laid off for several days following a conversation with ,Glass and Van Horbeck concerning a delay in starting a scheduled trip and the question of Clifton's union sympathies. It may well be that one of the reasons .impelling this layoff was Clifton's failure to leave the terminal on one or two occasions as promptly as he should have. But considering Clifton's undenied and credited testimony with Van Horbeck as to which side he was on and the glowing picture of benefits which Van Horbeck painted if Clifton would align himself with the Respondent, I find that Clifton's answer that he was with "the boys" constituted -another. Glass' remark on the occasion of the layoff that the purpose of the dis- cipline was to get Clifton to change his attitude toward the company, I think, can fairly be interpreted as referring only to Clifton's adherence to the Union. I think it unreasonable to suppose that such a reference would have been made to tardy departures. I find that Clifton was laid off in February because Glass knew him to be one who adhered to the Union and that the mention of the late departures was made to provide a plausible pretext for this action. Glass thought highly of Clifton as a driver and I believe would not have imposed such discipline except for the union consideration. Returning from layoff, Clifton encountered further delay in getting a trip and then in disgust left Respondent's employ. Clifton may have been ,correct in his appraisal of the situation-that the Respondent was determined to discipline him further by giving him only occasional opportunities to work. But the payroll records for the week following his return indicate that the earnings of all drivers dropped rather sharply and it is probable that Clifton did not give Respond- ent's good faith a sufficient test. I find that Clifton was laid off in early February for discriminatory reasons and that the Respondent, by virtue of the layoff, discrimi- nated in regard to his hire and tenure of employment in violation of Section 8(a) (3) and (1) of the Act. I do not find the evidence to support, however, the further allegation in the complaint that Clifton's quitting was forced upon him. Although I have no reason to doubt that the Respondent was as determined at Roswell as it was at Gallup to discourage its employees from having a bargaining representative, I do not find the evidence to support the allegation in the complaint that drivers' earnings generally at Roswell were lessened because of their interest in the Union. Phillips' wages dropped considerably from December 22 through February 21, but so did the wages of all other drivers. For a portion of that period he was incapacitated for work because of illness. Phillips may have been correct in his decision in late January that the job was not worth keeping, but I find a lack 780 DECISIONS OF. NATIONAL. LABOR RELATIONS BOARD of evidence to establish that this was so because Phillips was an object of unlawful discrimination. The same considerations control the case of Bill Wilson. Contrary to his recollec- tion, he last worked sometime during the week ending January 18, after having been notified a week or two before that he would be laid off. I find no reason outlined in this record to suspect that Wilson was selected for layoff because of his member- ship in or activity in behalf of the Union. Having found that the mileage rate increase effected in January was part of Respondent's effort to divert the interest of the drivers from the Union, I find that it constituted an interference, restraint, and coercion in respect to rights guaranteed in Section 7 of the Act and that the Respondent thereby violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations 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 of commerce. V. THE REMEDY Having forma that the Respondent discriminatorily discharged Jack Todd, it will be recommended that it cease and desist from such conduct and that it offer Todd immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay which he may have sustained by reason of the discrimination against him by paying to him for each quarter of the calendar year or portion thereof from the date of his discharge in early January 1958 to the date of offer of rein- statement a sum equal to what he normally would have earned during that period, but for the discrimination, less his net earnings. Having found that the Respondent discriminatorily laid off Daniel Clifton for several days in February 1958, it will be recommended that it cease and desist from such conduct and that it make Clifton whole for any loss of pay which he sustained by reason of the discrimination against him by paying to him a sum of money equal to that which he normally would have earned during the period of his layoff, less any earnings he may have gained elsewhere during that period. Having found that the Respondent has interfered with, restrained, and coerced its employees by threats of retaliation, promises of benefit, and by instituting a mileage rate increase, it will be recommended that the Respondent cease and desist from such conduct. 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 Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and t enure of employment of Jack Todd and Daniel Clifton, the Respondent has discouraged membership in and activity on behalf of a labor organization and has thereby engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By such discrimination, by promising benefits, by granting benefits, and by threatening reprisals, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not discriminated in regard to the hire and tenure of employment of Bill Wilson or Charles Phillips. [Recommendations omitted from publication.]