Nates Truck Line, Inc.

52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that WE WILL NOT discourage membership in International Union of Operating Engineers, Local 106, AFL-CIO, or in any other labor organization of our employees, by discharging, refusing to reinstate, or in any other manner dis- crimmatmg in regard to their hire or tenure of employment or any term or condition of employment WE WILL NOT assist, contribute support to, or in any other manner interfere with the administration of Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or with the formation and administration of any other labor organization WE WILL NOT threaten employees with reprisals or make them promises of benefit to discourage membership in or activity on behalf of any labor organi- zation, or interrogate them as to their union affiliation or adherence in a manner violative of Section 8 (a) (1) of the Act WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of the right of self-organization, to form labor organiza- tions, to join or assist any 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 pro- tection, 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 organization as a condition of employment, as authorized in Section 8(a) (3) of the Act WE WILL offer Ernest Johnson and Ernest Germaine immediate and full re- instatement to their former or substantially equivalent positions, without preju- dice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them WE WILL, upon request, bargain collectively with International Union of Operating Engineers, Local 106, AFL-CIO, as the exclusive representative of our employees in the appropriate unit described herein, and, if an understand- ing is reached, embody such understanding in a signed agreement The said appropriate unit is All employees at our Saratoga Springs, New York, plant, exclusive of guards, watchmen, and supervisors as defined in the Act PALLETTE STONE CORPORATION, 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 Nebraska, Illinois, Colorado Express, Inc., d/b/a Nates Truck Line, Inc. and Clealon Bray. Case No 30-CA-697 Novem- ber 12, 1959 DECISION AND ORDER - On June 30, 1959, Trial Examiner Wallace Royster issued his Intermediate Report in the above-entitled proceeding; fi.Iiding 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 125 NLRB No 17 NATES TRUCK LINE, INC. 53 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in the 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, Nebraska, Illi- nois, Colorado Express, Inc., d/b/a Nates Truck Line, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership of any employee in Line Drivers Local No. 961, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organi- zation, by discharging any employee or in any other manner dis- criminating against any employee in regard to his hire or tenure of employment or any term or condition of employment except as author- ized in Section 8(a) (3) of the Act. (b) Questioning or otherwise seeking information from any em- ployee in respect to his membership or interest in any labor organiza- tion in such manner as to interfere with, restrain, or coerce him in the exercise of rights guaranteed by the Act. (c) Threatening any employee with reprisals because of member- ship, or interest, in any labor organization or suggesting by means of threats or questioning that any employee will be discharged if he joins, participates, or evidences any interest, in any labor organization. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, or join or assist Line Drivers Local No. 961, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, to bargain collectively through representatives of their own choosing, to engage in 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. 535828-60-vol. 125-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Clealon Bray 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 in the manner and method set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the National Labor Relations Board or its agents upon reasonable request, for examination and copying, all payroll records, social-security payment records, time- cards, personnel records and reports, and all other records necessary to or convenient for an analysis of the amount of backpay due under the terms of this recommendation. (c) Post in conspicuous places, including all places where notices to employees are customarily posted, copies of the notice attached to the Intermediate Report marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being signed by a duly authorized representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventeenth Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. "This notice is amended by substituting for the words "The Recommendations of a Trial Examiner " the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding with the Respondent and the General Counsel represented was held before the duly designated Trial Examiner in Denver, Colorado, on May 12 and 13, 1959, on the complaint of the General Counsel and answer of Nebraska, Illinois, Colorado Express, Inc., d/b/a Nates Truck Line, Inc., herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a) (1) and (3) of the National Labor Relations Act, herein called the Act. Briefs from counsel have been received and considered. 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 RESPONDENT The Respondent, a Colorado corporation with its principal place of business in Denver, Colorado, is engaged in the transportation and delivery of meat and meat products and miscellaneous freight to and from Chicago, Illinois; Detroit, Michigan; Omaha, Nebraska; and Denver, Colorado. During the calendar year ending December 31, 1958, the Respondent received revenues in excess of $50,000 for transportation services from the delivery of freight to and from the cities men- NATES TRUCK LINE, INC. 05 tioned above . I find that the Respondent is engaged in commerce and in an activity affecting commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Line Drivers Local No. 961, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The evidence In the summer of 1958, Clealon Bray, whose discharge is alleged to have been unlawful, was in the employ of Curtis, Inc., a trucking company with a terminal in Denver. Bray occasionally spoke to Oscar Mandel and Donald L. Foreman, Re- spondent's president and vice president, respectively, in an effort to obtain employ- ment with the Respondent. In December 1958, Bray quit his job with Curtis and about December 10 began work for the Respondent as a "second driver." The evi- dence establishes, and I find, that the Respondent's trucks are manned by two drivers, one designated as "first" and the other as "second." The first driver is in charge of the vehicle, handles the expense money, determines the route to be followed, where stops are to be made, and receives $5 more per trip than the second driver. Returning to Denver from the first trip that he made in the early morning hours, Bray was instructed to be at hand at 5 a.m. to assist in unloading. He over- slept and did not appear for work until about 4 hours later. His absence necessitated the employment of another to assist in the unloading and caused Mandel to comment to Bray that if the latter did not want to work he need only say so. Despite this delinquency, Bray was promoted to first driver in late December and continued in that capacity until his discharge. His run generally was from Denver to Detroit and Chicago. In late 1958 or early 1959, the Union was engaged in an effort to gain membership among the drivers of Curtis, Inc. At the solicitation of a Curtis driver, Bray signed a union card. On January 6, 1959, with Second Driver Edward Fantaski, Bray set out on a trip to Detroit. Arriving there January 8, Bray unloaded and telephoned Mandel for instruction. Bray testified that the phone call to Mandel was made at about noon, that Mandel told him to go to Chicago for a load, that he told Mandel he could not get there in time to load out that day, and that Mandel told him to be in Chicago by 7 a.m. on the 9th. Whereupon Bray left Fantaski with the truck and visited with a relative. Returning to the truck that evening, Bray and Fantaski drove to Chicago arriving there at about 2 a.m. About 24 hours later a trailer load was avail- able for delivery to Denver and Bray prepared to start off with it. But some sort of difficulty had developed between Bray and Fantaski. Bray testified that he had seen Fantaski drinking beer during the evening and that he felt it unwise to let him drive. Fantaski insisted that he be permitted to do so and in consequence Bray telephoned Mandel for instruction. Bray told Mandel that Fantaski had been drinking but that he was not drunk. Mandel told Bray to use his best judgment and if he could not reach accord with Fantaski to send the latter back to Denver by bus. Bray left Chicago alone and Fantaski returned to Denver by bus. At some time after leaving Denver on January 6, Bray had confided to Fantaski that he had signed a card for the Union. Arriving in Denver in the evening of January 11, Bray was met by Foreman who immediately dispatched him on another trip to Omaha. Presumably because Fantaski had not yet returned, another driver was hired to accompany Bray for the Omaha round trip. Ready to return to Denver in the evening of January 12, Bray was instructed by Foreman to get in by 5 a.m. Bray protested that it was im- possible for him to make the trip that rapidly and actually arrived, he testified, at 6:45 in the morning of January 13. The facts recited up to this point are not substantially disputed. It is true that Bray's log for January 8 shows him to have been off duty in Detroit at 8 a.m. rather than at noon, as he testified. According to Bray, hours of work and some other items are entered in such a fashion as to satisfy on-duty and off-duty requirements of the Interstate Commerce Commission and frequently do not truly reflect the actual hours worked. I believe that Bray's testimony in this particular is reliable and I accept it. What happened between Bray and representatives of the Respondent on January 13 and thereafter is, however, in sharpest dispute, beyond possibility, for the most part, of reconciliation. I will set down first the version of Bray and his supporting witness, Vollie Penrod. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After delivering his freight on the morning of January 13, Bray went to Foreman's office. There, in the presence of Fantaski, Foreman asked Bray to tell him about the "trouble" in Chicago. Bray said that Fantaski had taken a few drinks and that he did not want Fantaski to drive. Fantaski said that if he could not drive he would not ride so, after phoning Mandel, Bray gave Fantaski his bus fare to Denver and returned alone with the truck. Foreman asked Fantaski if Bray had made a truthful report and Fantaski agreed that he had. Foreman said that the two of them had best not drive as a pair any longer as there always would be friction between them adding, "You are both good drivers. I don't want to lose either one of you." Bray left but returned to the office at about 11 to turn in some bills and papers in con- nection with his last trip and to get his pay. Mandel told him that Foreman wanted to see him. Sometime soon after noon, Foreman called Bray to his office and said, "I better give you a trip off before I get mad and fire you." Bray asked if there was something wrong with his work. Foreman said that there was not but "didn't you sign a damned union card?" Bray admitted that he had. Foreman said that news of this had first come to him the day before and that it had angered him greatly. Bray suggested that there was nothing wrong with the Union and Foreman said he had nothing against the Union but that the Respondent could not afford "to go union." Foreman went on to explain that Bray was being paid more for the Detroit run now than he would get under a union mileage rate. Bray said that he was getting $8.50 less for a Chicago trip than he would get under a mileage arrangement. When Foreman asked Bray why he would like to have a union Bray answered that working conditions would be better and that if he had a union behind him Foreman would not be able to make him take a trip off as the latter said he was about to do. The conversation ended when Foreman told Bray to take a trip off so that both of them might "cool off," suggested that Bray might decide to forget the Union, and said, "We can't afford to go union, we will never go union." Fore- man told Bray to bring the card he had signed to him; that he wanted to see it. That evening the truck which Bray had been driving left with Fantaski in Bray's place. Four or five days later, Bray asked Foreman when he could go to work. Foreman asked if Bray had retrieved his card. Bray said that he had been unable to do so. Again on January 19, Bray asked for work and again Foreman asked to see the union card. Bray still asserted his inability to get it back. Foreman said that Bray had "better do something." On January 21, attempting to reach Foreman by telephone, Bray spoke to Mandel and asked what his status was. Mandel said that Foreman had not discussed the matter with him and that he did not know. When Bray said that he might seek relief from the "Labor Board," Mandel retorted that Bray could be discharged for other reasons, among them his alleged misplacing of some papers in connection with his last run from Omaha and his failure to bring that run into Denver at the early hour directed. A day or two later Bray and Penrod met Foreman at the yard where Respondent kept its trucks. Still again Bray asked when he could go to work. Still again Foreman asked for the union card and said that when Bray brought it to Foreman, "we'll see what we can do." On January 24 Bray and Fore- man met at Curtis' yard. In response to Bray's question Foreman said that he did not know when there would be work for him but that he was considering putting on another truck which would necessitate hiring another driver. Bray said that he wanted to start drawing unemployment compensation if he could not work and Foreman said that he might consider himself to be in a layoff status. Bray filed for such compensation that day. On some later date, but probably still within the month of January, Bray asked Foreman if he would provide Bray with a good reference in connection with a new job Bray then had in prospect. Foreman said that he would. Now to turn to the testimony of Vollie Penrod, Jr., Bray's friend, his brother-in- law, and a driver for Curtis, Inc., who signed a union card at about the same time as Bray. On the morning of January 13, Penrod came to the Respondent's office in the expectation of meeting Bray. There he became engaged in conversation with Foreman. The talk quickly veered from the subject of trucking to the Union. Fore- man commented that it seemed that the Curtis drivers were interested in the Union. Penrod agreed that this was so saying that about 90 percent of them favored it. Foreman asked if the drivers were trying to lose their jobs. Foreman went on to predict that Curtis would never deal with a union; that their trucks would be sold if necessary to avoid such a result. The talk continued and Foreman said that he understood that Bray, too, had signed a union card. Penrod suggested that Foreman put that question to Bray. The conversation ended with Foreman saying that neither the Respondent nor Curtis could afford "to go union" and that he had been angry enough with Bray to fire him. Later in the day, while Bray was closeted with NATES TRUCK. LINE, INC. 57 Foreman, Penrod had a talk with Mandel. Mandel commented about the Union signing up Curtis employees, said that Curtis did not have the revenue to meet union pay demands, and predicted that the Curtis drivers would lose their jobs because Curtis would sell its equipment . Penrod then waited outside Foreman 's office for Bray to appear . As Bray opened the door to come out, Penrod heard Bray ask if he was fired. Foreman said that he was not but that he should take a trip off and "you get that card back and everything will be all right." About January 22, Penrod and Bray were in a yard where Curtis equipment was kept when they saw Foreman . Bray asked Foreman when he could go to work. Foreman asked if Bray had taken care of "that little matter ." When Bray said that he had not , Foreman said that when the card was brought to him "we'll get things straightened out." The testimony of Foreman and Mandel in respect to the conduct and words attributed to them by Bray and Penrod follows: Foreman testified that Bray , on the occasion of his hire, said that he had some sort of a union card and that Foreman's comment was that the Respondent did not pay the union scale. On January 12, Foreman learned from Fantaski that Bray had left his truck in Detroit for 11 or 12 hours on January 8 and that in Chicago on the night of January 9 had missed some freight loads at a terminal because he was un- willing to leave a television program he was watching in the lobby of a motel. As a result Bray and Fantaski were delayed for several hours until another load developed. Foreman met Bray when he arrived in Denver from Omaha in the morning of January 13 , asked him why he was late, and directed him to go to Respondent's office. There Foreman asked for Bray's account of the difficulty with Fantaski. Bray said that Fantaski had been drinking , but not to the point of intoxication, and had been sent to Denver by bus. Foreman asked if Bray had left the truck "un- attended"' all day in Detroit. Bray admitted that he had . Foreman commented that Bray's attitude in general was bad and that he was not at all satisfied with him. Foreman told Bray to come back later in the morning to talk further . Bray re- turned at about 11 and met with Foreman and Fantaski . Foreman said that he had received conflicting versions of incidents on the trip from the two of them. Fantaski said that he had only one bottle of beer in Chicago. Foreman asked Bray if he had left the truck in Detroit all day as Fantaski had reported . Bray again said that he had but asserted that he had the permission of Mandel to do so. At this point Mandel was called in from his adjoining office and asked if Bray's assertion was true. "No," said Mandel . Bray protested that Mandel had told him he need not be in Chicago until the morning of the 9th . According to Foreman, Mandel answered, "I told you to get right into Chicago and get loaded out because we needed you back here." Bray did not speak further on the point . Foreman asked Bray if he had passed up two or three opportunities to leave Chicago earlier while he watched TV in the motel . Bray conceded that he had and defended his conduct by saying that he had left Chicago in "plenty of time ." Foreman asked Fantaski if it was true that Bray wanted to spend a disproportionate amount of time in the sleeper berth. Fantaski said that it was and Bray denied it. Fantaski confirmed his earlier report to Foreman that Bray wanted to make "a lot of coffee stops along the way." Bray said he made no more than the normal number of stops for that purpose . Through- out the questioning Bray evidenced an "I don't care" attitude. Foreman concluded that Fantaski was in the right and Bray in the wrong. He then told Bray that be- cause he had left the truck unattended in Detroit , had failed to take the early opportunities to load out of Chicago , and because of his attitude in general, the Respondent had no further use for him . Bray left. There was no conversation at an open door and Penrod was not in sight. Foreman denied that he had any con- versation with Bray at any later time in the presence of Penrod . On some later occasion, on meeting Bray away from Respondent 's premises, Bray said that he was going to apply for unemployment compensation , that he thought he might try to get into a used furniture business , and asked if Foreman could use him from time to time as an extra driver. Foreman made no commitment to him. On a still later date Bray called at the office , said that he had another job in prospect , and asked for a recommendation as to his honesty. Foreman said that he would be happy to supply it. Shortly after the discharge , Bray telephoned Foreman and asked if he could go back to work. Foreman said he could not; that his discharge was not being reconsidered . Sometime in February , after the charge in this proceeding had been filed, Bray telephoned Foreman and in abusive and profane terms accused Foreman of telling untruths about the case to an agent of the Board. Prior to the discharge 1 Actually it is not contended that Bray left the truck "unattended ." Fantaski stayed with it during Bray's absence. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foreman found occasion to be critical of Bray because of his "griping," because of his failure to keep the wheels and exhaust pipes on his truck cleaned and painted, and because he overslept on a morning when he should have been helping to unload. Foreman denied that the subject of the Union came up at any time in the con- versations with Bray on January 13 or thereafter, denied that he saw or spoke to Penrod on January 13, and denied that he spoke to Bray at any time after his discharge in the presence of Penrod. Now to the testimony of Mandel. Sometime subsequent to July 1, 1958, but before the date of Bray's hire, Oscar Mandel testified, Bray said that he had signed a union card at the Curtis operation and asked Mandel if that circumstance would hurt his chance of employment with the Respondent. Mandel said that it would not. In the small hours of January 10, Mandel received a telephone call from Bray speak- ing from Chicago. Bray told him that he was having trouble with Fantaski; that the two of them had been arguing and that Fantaski had been drinking. Mandel suggested that, as Fantaski was not drunk, Bray should permit him to ride in the truck. Bray answered that the two had been arguing so violently that he feared for the safety of the truck. Mandel then spoke to Fantaski who admitted that he had drunk a couple of beers, that he was having quite a bit of trouble with Bray, and that he would give Mandel full information on his return to Denver. Speaking again to Bray and hearing Bray say that he was afraid to have Fantaski ride with him, Mandel told Bray to give Fantaski bus fare to Denver and to bring in the truck. Mandel testified that he had no recollection of speaking with Penrod on January 13 and that "as to the best of [his] knowledge" he did not tell Penrod that the Curtis employees would lose their jobs if they "went union." He also denied that he told Bray on any occasion that he could find a pretext to justify Bray's discharge. There is no mention in Mandel's testimony of any participation in the investigation conducted by Foreman concerning the day that Bray spent away from the truck in Detroit. According to Foreman, Mandel on January 13, denied in Bray's presence that Bray had permission to spend some time in Detroit. A consideration of the testimony of Bray offered in rebuttal tends to bring in sharper contrast the conflict, particularly between Bray and Foreman, as to what actually happened. Bray testified in considerable detail about what Fantaski and he did in Detroit and Chicago but it is by no means clear that Bray reported everything he testified to on the stand to Foreman in Denver. Bray denied that Foreman ac- cused him of missing any opportunities to get loaded out of Chicago earlier than the hour at which he left and explained that it was not until about 12:30 a.m. on January 10 that his trailer finally was loaded. During the preceding evening, accord- ing to Bray, he and Fantaski made several trips from the motel to the loading dock to discover when they would be fully loaded as there was no arrangement whereby this information would reach them at the motel. Bray denied that Mandel came into Foreman's office at any time while he, Foreman, and Fantaski were there and further denied that he was told by Foreman on January 13 that the Respondent no longer could use him. B. Conclusions Too obviously this case must be decided by resolutions of credibility. The con- flicts in the various versions offered for consideration are beyond reconciliation, can- not find accommodation behind an understandable lapse of memory or permissible misinterpretation, and can be explained only by a finding that one or more of the witnesses has testified falsely. I listened to Bray and Penrod testify, observing them the while, became aware that cross-examination did not detract from the force of their testimony, and when they were excused found that 1 believed them. Foreman and Mandel denied utter- ing any words or engaging in any conduct that would tend to indicate that the Respondent had committed an unfair labor practice. I thought at the close of the hearing that their testimony did not merit belief and after a review of the record and a consideration of the briefs, I adhere to that conviction. Because my resolution in this matter rests in large measure upon a subjective reaction to the witnesses as they testified it is difficult satisfactorily to detail reasons for belief or disbelief. It may be expected that a party witness, and Bray, Foreman, and Mandel fall into that cate- gory, will be influenced consciously or not in his testimony by his interest in the outcome of the controversy. It is clear that Penrod and Bray are friends but I doubt that Penrod for that reason would be willing to concoct a story in Bray's aid, at least not in a forum where he would be, as he was, subjected to the cross- examination of experienced counsel. Penrod's self-interest is not involved. I fully believe that Penrod had the conversations with Foreman and Mandel in the morning of January 13 as set forth in his testimony and upon the basis of his testimony find that on that date Foreman said he had learned that Bray had signed a union card NATES TRUCK LINE, INC. 59 and had been angry enough to fire him. I also find that on that date Penrod heard Foreman tell Bray to get the card back. It will be recalled that Bray filed his claim for unemployment compensation on January 24 and testified that not until that date did he become certain that he had little or no prospect of further work with the Respondent. There is no suggestion in this record that Bray had no need to earn a living and I think it reasonable to assume that he was dependent upon employment for income. Certainly, his repeated at- tempts to come back to work for the Respondent tend to indicate this. This being so one searches for a reason to explain the delay in registering as an unemployed person and filing for unemployment benefits. If Bray had been discharged on Janu- ary 13, as Foreman testified, it seems probable that Bray would promptly have registered and made his claim for compensation. The fact that he did not do so until January 24 supports his testimony that not until that date did he learn that he was discharged or at least laid off for an indefinite period. I find that Bray was not told until about January 24 that his employment was at an end. The whole of Respondent's defense rests upon testimony that Bray was discharged on January 13 and for cause. Prominent among the reasons advanced for this action was that he left his truck for several hours in Detroit on January 8. Bray said that he had Mandel's permission to do so. Foreman says that he had not. Yet one will not find in this record any testimony by Mandel on that point. It is asserted that by the delay in Detroit the Respondent was unable to keep the truck busy and thus lost revenue. But there is no evidence that Bray could have been loaded in Chicago in the evening of January 8. Bray said that there was no load ready for him there and it is the fact that the truck remained in Chicago for about 24 hours before it was loaded out. Fantaski, who perhaps could have shed some light on whether Bray left Chicago as promptly as he should have, is no longer in Respondent's employ and was not called as a witness. Whether he has left the Denver area is not shown. I credit Bray in his testimony that he had permission to delay in Detroit and that he left Chicago without unreasonable delay when a load was available to him 2 Foreman testified that in regard to the happenings in Chicago during the 24 hours that Bray and Fantaski were there he believed the account of Fantaski and that Bray did not deny Fantaski's assertions in any important particular. Bray, of course, denied that Fantaski made the accusations that Foreman testified to. This much is certain, that Bray thought it unwise to permit Fantaski to drive because he had the odor of alcohol about him. I think that Bray's good faith in the matter is demon- strated by the telephone call to Mandel in the early morning to describe the situa- tion. I think that it can hardly be doubted that Bray acted prudently in the matter and it would seem that Fantaski rather than Bray would be called upon to explain his conduct to Foreman. Nonetheless Bray was discharged and Fantaski took his place. I am convinced and find that Foreman learned of the fact that Bray had signed a union card, perhaps from Fantaski, and that this was the factor that moved him to lay Bray off and finally to discharge him. I credit Bray's testimony that until January 24 at least, Foreman held before him the bait of further employment if he would retrieve the union card and bring it to Foreman. Foreman's testimony that Bray had an "I don't care" attitude toward his work and was lax in keeping wheels and exhaust pipes cleaned and painted derives, I find, from an attempt to dredge up inconsequential irritations to justify an unlawful act. I do not credit Foreman's testimony that these factors played a part in reaching the decision to discharge Bray. Mandel denied that he told Bray that his discharge could be justified onrounds amounting to a pretext. Again I credit Bray. This evidences an awareness on the part of Mandel that the Respondent was keeping Bray off work for reasons that could not withstand examination. I find that the Respondent on January 13, 1959, laid off Bray and later discharged him because he had signed a card for the Union. By the layoff and discharge the Respondent discouraged membership and activity in behalf of the Union and thereby violated Section 8(a) (3) of the Act. By the discharge, by questioning Bray about signing a union card, by telling both Bray and Penrod that Curtis drivers would lose their employment because they 2 Bray readily conceded that he made entries on his drivers' log which were not in accord with fact. He sometimes showed himself to be driving when off duty and vice versa. He did not always make the stops indicated on the log or follow the route shown. According to Bray, he was following a usual and accepted practice. Whether this is so I do not decide . The circumstance does not weaken my conviction that Bray was a truthful witness. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favored the Union, and by telling Bray he could not work until he delivered the card he had signed to Foreman, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and 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 found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discharged Clealon Bray on January 13, 1959, in violation of the Act, it will be recommended that the Respondent offer him 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 he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount of wages he would have earned on and subsequent to January 13 until the date of a proper offer of reinstatement, less his net earnings from other employment in that period. Loss of pay shall be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. As the character of the unfair labor practices found herein is such as to strike at the heart of rights guaranteed to employees in Section 7 of the Act, and because there is in my opinion reasonable ground to anticipate that the Respondent will further infringe upon such rights unless appropriately restrained, it will be recommended that the Respondent refrain in the future from abridging any of the rights guaranteed employees in the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Respondent is and at all times material to this proceeding has been an employer within the meaning of Section 2(2) of the Act. 2. The Union is and at all times material to this proceeding has been a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Clealon Bray as found above, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(3) of the Act. 4. By the discriminatory discharge and by unlawful interrogation and threats the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merceoryithin the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Line Drivers Local No. 961, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging any employee or by discriminating in any other manner against any employee in regard to his hire or tenure of employment, or any term or condition of employment, except as authorized in Section 8 (a) (3) of the National Labor Relations Act. LOCAL 19, INT'L BROTHERHOOD OF LONGSHOREMEN 61 WE WILL NOT question or otherwise seek information from any employee in respect to his membership or interest in any labor organiaztion in such manner as to interfere with, restrain, or coerce him in the exercise of rights guaranteed by the Act. WE WILL offer to Clealon Bray 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 he may have suffered as a result of the discrimination against him. WE WILL NOT by means of questioning or threats directed to employment tenure or in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to join or assist Line Drivers Local No. 961, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, to bargain collectively through representatives of their own choosing, to engage in 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 organization as a condition of employment as authorized in Section 8(a)(3) of the Act. All of our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization except to the extent that this right may be affected. by an agreement in conformity with Section 8 (a) (3) of the Act. NEBRASKA, ILLINOIS, COLORADO EXPRESS, INC., D/B/A NATES TRUCK 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. Local 19, International Brotherhood of Longshoremen, AFL- CIO and Chicago Stevedoring Co., Inc. Cases Nos. 13-CB-541 and 13-CB-641. November 12, 1959 DECISION AND ORDER On December 10, 1958, Trial Examiner Gerard Ryan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the amended complaint, and recommending that the complaint be dis- missed in its entirety. Thereafter, the General Counsel, the Respond- ent, and the Charging Party 1 filed exceptions to the Intermediate Report and supporting briefs. The amended complaint alleges, inter alia, that Respondent did and continues to refuse to bargain collectively with a voluntary asso- ciation (herein called the Association) by demanding as a condition precedent to signing the agreement with Chicago Stevedoring, a mem- ber of the Association, that it agree to grant to the Respondent juris- diction over work which that Company does not perform and that such request has been repeatedly rejected. 1 Herein sometimes called Chicago Stevedoring. -125 NLRB No. 1.