Redwing Carriers, Inc.

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 CROOKSTON TIMES PRINTING COMPANY, 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 Redwing Carriers, Inc. and Teamsters, Chauffeurs & Helpers Local Union No. 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Redwing Carriers, Inc. and Alfred B. Hults. Cases Nos 12-CA- 475, 12-CA-476, 12-CA-177, and 12-CA-505 November 24,1959 DECISION AND ORDER On June 30, 1959, Trial Examiner Lloyd Buchanan issued his Intermediate Report an the above-entitled proceedings, finding that tha 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 unfair labor practices and recommended that the complaint be dismissed with respect to such allegations Thereafter, the Respondent filed excep- tions 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 m connection with this case to a three-member panel [Members Rodgers, 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 brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations 2 of the Trial Examiner with the following modifications 1 The Trial Examiner found, and we agree, that the Respondent violated Section 8(a) (1) of the Act by the following conduct 1 The Intermediate Report incorrectly states that Spurlock testified to interrogation and a threat by Cunningham on July 21 , 1958 Spurlock 's testimony does not attribute these acts to Cunningham, but gather to Klein The Intermeaaate Report is corrected accordingly z The Trial Examiner found that employees Wilson, Farrow, and -Tilts were not dis- ,charged for discriminatory reasons As no exceptions have been filed to these findings, -we adopt them pro forma 125 NLRB No 27 REDWING CARRIERS, INC. 323 On July 19, 1958, Respondent's head dispatcher, Cunningham, a supervisor, advised employee Wilson to leave a drive-in restaurant before an expected meeting of union adherents took place. He also told Wilson on that occasion : "If you see any more drivers come this way, you tell them to stay away, or some innocent party may be fired on account of this meeting." On July 26, 1958, Cunningham warned the wife of employee Far- row that her husband was jeopardizing his job, and that if Farrow did not stop "messing around" with those who were trying to get the Union in, it wouldn't be to[o] good for him." 2. The Trial Examiner found that the Respondent discharged Spurlock in violation of Section 8(a) (3) and (1) of the Act. We agree for the following reasons : Spurlock, an experienced truckdriver, was hired by the Respondent on February 4, 1958, subject to a 6-month probationary period. Early in July he undertook to assist Hughes, the president of the Union, in organizing the Respondent's drivers. After obtaining 18 signature cards, Spurlock arranged to hold a meeting of employees at his home on the afternoon of July 19. However, prior to the time set for the meeting, Spurlock went to a drive-in restaurant near his home, where a preliminary gathering was to take place. On arriving at the drive- in, he met and spoke with Cunningham. When Hughes arrived, Spurlock left Cunningham's table inside the restaurant and entered Hughes' automobile which was parked next to Cunningham's in front of the drive-in. Shortly afterward, three other employees joined Hughes and Spurlock in the car. During the meeting, Cunningham came out of the restaurant on several occasions, spoke to Hughes, and observed the members of the group in Hughes' car. Cunningham's understanding that this meeting was connected with union activity and his animus toward such activity are amply demon- strated by his admonitions to Wilson and his subsequent threat to Mrs. Farrow, as set forth above, in our discussion of the Respondent's violations of Section 8 (a) (1). Spurlock was discharged on July 24, 11 days before the end of his probationary period. The asserted reason for his discharge was his violation of the Respondent's no-pushing rule. As pointed out by the Trial Examiner, this rule was honored as much in the breach as in the observance. During his short tenure, Spurlock had been advised on one occasion by both the night dis- patcher and the night shop foreman to have his truck pushed after its engine had broken down on the road. On another occasion the Re- spondent sent a mechanic to assist Spurlock when his truck had become immobilized. In order to change tractors, the mechanic pushed the disabled truck on to level ground. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The incident which allegedly caused the discharge occurred on July 22. In the course of his run on that date, Spurlock's truck became mired at a road construction site. Following a vain attempt to extricate the vehicle by pulling it, the construction superintendent, over Spurlock's objection, freed the truck by having a bulldozer push it. Spurlock reported the incident to the night dispatcher upon his return to the Respondent's terminal. The Respondent's safety direc- tor thereafter discharged Spurlock at the direction of Cunningham. In agreeing with the Trial Examiner, we likewise find that the, asserted reason for Spurlock's discharge was a pretext. Clearly, the Respondent, through Cunningham, knew that Spurlock was engaged in union activity. The Respondent's animus toward such activity was amply demonstrated by its violations of Section 8 (a) (1). Added to this backdrop is the precipitate enforcement of sanctions against Spurlock for his purported breach of a rule which to that point had been enforced very laxly. Further, Spurlock, far from asking the construction superintendent to push his truck, attempted to prevent such action by the only reasonable means immediately at his command,, his own objection. In all the circumstances, we find that the harsh and precipitate application of the no-pushing rule on July 24 was moti- vated by the Respondent's desire to rid itself of an active participant in union activity. ORDER Upon the entire record in the cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Redwing Car- riers, Inc., Tampa, Florida, its officers, agents, successors, and assigns,. shall : 1. Cease and desist from : (a) Discouraging membership in Teamsters, Chauffeurs & Helpers. Local Union No. 79, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or in any other labor organization, by discharging any of its employees or discriminating in any other manner in regard to their hire and tenure of employment,. or any term or condition of employment. (b) Threatening employees in connection with union activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative 'action which the Board finds will effectuate the policies of the Act : (a) Offer to Virgil Spurlock immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to. his seniority or other rights and privileges. REDWING CARRIERS, INC. 325 (b) Make said Virgil Spurlock whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the National Labor Relations Board, and its agents, for examination and copying, all records necessary for the determination of the amount of back pay due under this Order. (d) Post at its terminal in Tampa, Florida, copies of the notice attached to the Intermediate Report marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Company's rep- resentative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twelfth Region in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Lucian Wilson, Willie Farrow, and Alfred B. Hults were discharged in violation of the Act. '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 The complaint herein alleges that the Company has violated Section 8 (a)(3) of the National Labor Relations Act, as amended , 61 Stat. 136, by discharging Willie Farrow on August 1, 1958, Virgil Spurlock on July 24, 1958, Lucian Wilson on July 30, 1958, and Alfred B. Hults on August 21, 1958, and thereafter failing and refusing to reinstate them, because of their union membership and activities; and Section 8(a)(1) of the Act by said alleged acts and by warning and threatening against employees' associating with a union representative or prounion employees or former employees, and by declaring an intention to watch an employees' union meet- ing. The answer denies the allegations of unfair labor practices and alleges that the discharges were for valid cause and that the former employees were not returned to work because of their unsatisfactory service record. A hearing was held before me at Tampa, .Florida, on February 12, 13, and 16, 1959. Pursuant to leave granted to all parties, the General Counsel was heard in oral argument at the conclusion of the hearing, and a brief has been filed by the Company. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company , a Florida corporation with principal office and place of business in Tampa, Florida , is engaged in the transportation of 535828-60-vol. 125-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petroleum and other liquid products ; that during 1957 and 1958 it derived income of more than $ 100,000 transporting such products from points within the State of Florida, which products originated and flowed from points outside the State; and that it is a link in interstate commerce and is engaged in commerce within the mean- ing of the Act. It was admitted and I find that the Union is a labor organization within the mean- ing of the Act. II. THE UNFAIR LABOR PRACTICES A. Spurlock Spurlock, an experienced truckdriver , was employed by the Company from February 4 until July 24, 1958 , a period of 5 months and 20 days. He generally drove hot asphalt trucks . On July 5 he spoke with Hughes, the president of this local union , and thereafter got about 18 drivers to sign union cards, mostly at his home. A union meeting was arranged to be held at Spurlock's home at 3 p.m. on Satur- day, July 19 . About one-half hour prior to the time set for the meeting, Spurlock went to a small drive-in restaurant next door to his house , where the men were first to foregather. There he met Cunningham , the Company's head dispatcher and a supervisor within the meaning of the Act, who asked him why he had not come to work that morning, to which Spurlock replied that he had already put in 100 hours and wanted a little rest. Hughes arrived at the restaurant at 3 o'clock and he and Spurlock went outside and got into Hughes' automobile, which the latter had parked in front of the restau- rant, next to Cunningham 's. They were joined in the car by three other employees, Gurnsey, Hults, and Segrest . Other employees allegedly drove by but did not stop. If this was because Cunningham's automobile was parked in front, it is not charge- able to the Company, nor is surveillance alleged. Cunningham's presence does, however, have a bearing on the question of company knowledge , infra. Early Monday morning, July 21, when Spurlock called the night dispatcher for assignment, he was told that he would first have to see Cunningham later that morn- ing. The latter directed that he be dispatched , explaining that he had left word before he went to the drive-in restaurant on the 19th that Spurlock was to see him before going to work on Monday. (This presumably because Spurlock had not come in that day.) Interrogation and a threat by Cunningham on July 21, testified to by Spurlock, were not alleged and are not found. These need not be cited to show Cunningham's knowledge of Spurlock's support and sympathy for the Union, or his own animus, noted infra. Sent out with a load of hot asphalt which was due to be delivered at 9:30 the fol- lowing morning, Spurlock had to cross a new stretch of road which was being built. His truck bogged down and got stuck. (Although Cunningham spoke of the road as already paved, the contractor was then only putting the topping down. As an exaggeration to suggest that it would be hard for Spurlock to get stuck there-it is not disputed that he was stuck-this reflects on Cunningham 's reliability as a witness. ) A caterpillar was hooked up to pull, and it got stuck. A bulldozer operator on that job was then instructed by the contractor to push Spurlock 's truck. When Spurlock objected that it was against his Company 's rules to push a truck, the superintendent on the job replied that he had to get the truck out of there. The bulldozer thereupon started to push Spurlock's trailer at the back bumper , slipped and cut one of Spurlock 's tires. According to Spurlock , his bumper was bent and pushed into the tire, but a cable was put to the bumper and pulled it away , leaving it as good as before . He denied that the tank was bent, while declaring that there had been several dents on the trailer and he could not tell whether there now were any additional ones. Spurlock was away on July 23. When he reported on the 24th , Klein , the night dispatcher, told him that he was to see Roach, the safety director ; the latter ordered him to turn in his equipment . When Spurlock asked why, Roach said it was for being pushed. There is no dispute that the Company's rules forbid pushing; trucks are to be pulled when stuck. But to stop with that is to tell only part of the truth. Spurlock knew the rule and remonstrated against being pushed. The question is whether the rule has been waived 1 at various times and whether enforcement against Spurlock on this occasion was discriminatory . He testified that, about a month before, he had been pushed while hauling asphalt . On that occasion he had called the plant 1 While violation of the rules warranted dismissal , and employees were so told, we shall see various instances of waiver of several rules. REDWING CARRIERS, INC. 327 and reported that the motor would not start, and was told by Klein and the night shop foreman, Elmore, to get a push. Nothing was said about this afterward; he was not threatened with discharge. A second time, when a piston broke, he called the plant and two tractors were sent out with a mechanic and a driver. The mechanic pushed Spurlock's truck to level ground, where the defective tractor was replaced. Nothing was said at this time either about being pushed in violation of the rule. We have no information concerning the night foreman beyond his name and title. Referred to as shop foreman, directing these rescue operations, and evidently in charge (there was no objection to the reference to him as shop foreman), he was, with Klein, the Company's representative for receipt of such information, and his knowledge is imputed to the Company. Whether such imputation depends alone on Elmore's knowledge of breakdowns and pushing, or on that of Elmore and Klein, need not be decided. Evidence was received concerning Klein's status and the extent to which he represented the Company, and on the basis of that evidence (there were elements of patent unreliability in Klein's testimony) I find that he served as a conduit between Cunningham and the drivers but that he was not a supervisor within the meaning of the Act even though, to the extent that he controlled assignments, he affected drivers' earnings. Responsible for getting the trucks out, Klein was not responsible for the work of the drivers, nor did he supervise them although alone or with Elmore he did provide assistance or advice when drivers got stuck.2 If Elmore's authority and Klein's right to receive such reports were not sufficient, we would still have the question of an employee's right to rely on specific and con- trary instructions, by those left in charge to issue instructions, as a waiver of this rule, and the Company's estoppel to insist on strict compliance with the rule. Klein also testified that trucks were many times stuck in the terminal and were both pulled and pushed under Cunningham's supervision. Elmore was not called to deny Spurlock's testimony. To the extent that Spurlock's credibility is in issue, it may be noted that a collateral issue was joined in connection with his testimony that he averaged 80 to 90 hours per week on the job. Company pay records, showing that he worked approximately 50 hours, were then produced, presumably to show a marked difference and to attack Spurlock's credibility. But Cunningham testified that Government regulations pro- hibit more than 60 hours' work per week and that the pay records are based not on the drivers' time records but on the number of trips made. So far from impeaching Spurlock, such evidence reflects confusion when the pay records were called for and offered. It does not clearly appear whether Spurlock was doing contract work or was engaged in common carriage, to which the 60-hour limitation applies. As far as other drivers are concerned, in addition to Spurlock's general statement that he had heard that others had been pushed, we have Driver Farrow's testimony that in April and again in May 1958, Cunningham had told him to get a push. I also credit the testimony of Lowe, another driver, that with Cunningham's knowledge he had been pushed in the yard and outside. Mendez, the Company's president and general manager, testified that the rule against being pushed was violated every once in a while and that only sometimes was the driver dismissed, this depending on his length of service; a probationer would be fired immediately. Such inclusion of a time factor itself indicates waiver of the rule. But it appears further that the rule has not been enforced even against a probationer: one driver, when he had been employed only a month, was not discharged in 1953 after being pushed. Another pushing incident involving the same employee in 1957, when he had been employed almost 4 years, was characterized by Mendez as "very minor." Spurlock was a few days short of completing the 6-month probationary period, which we shall further consider, infra. But whatever may be said concerning probation, waiver of the no-pushing rule has been clearly established. . in this posture of the case, with evidence that pushing of trucks had been permitted in spite of the rule, we need not point to what Spurlock should have done when the attempt to pull him out failed and the superintendent on the job directed that he be pushed out of the way. The rules were not cited as covering this point, nor did company witnesses allude to it. Neither have counsel, although requested and promising to do so, indicated any reasonable alternative to that followed by Spurlock and others on this and other occasions. It is no answer to argue that "circumstances do not arise under which pushing is the only manner of freeing a truck." Con- ceivably a crane could be brought in to lift it, but this has not and would not be suggested as a reasonable alternative. Cunningham testified that he had never seen a truck so badly stuck that it needed a push, not that trucks have not been in that Cf. New York State Employers Association, Inc., 93 NLRB 127, 129. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . condition . Whether or not he saw them, he and others have approved pushing, as noted. Reason and the various instances noted supra indicate that the Company did recog- nize an exception to the rule: When conditions appear to require it , as for example when pulling does not succeed, a truck may be pushed despite the general rule. against it. From all of the evidence, it appears that the rule was adopted to dis- courage pushing unless it was necessary rather than to forbid it.3 But whatever the reason for the rule or the practice followed, the salient element here is that pushing- was permitted and had been authorized. Spurlock knew also that he was required to report damage to Safety Director- Roach. Yet this requirement seems likewise to have been honored as much in the breach as in the observance. (The reason given for Spurlock's discharge was that he permitted the push on July 22 with consequent damage to the trailer, not his. failure to report it to Roach. But this latter point will be explored in view of the examination and testimony pro and con lest it appear to have been "overlooked." To the extent that this issue represents a shifting of defense, it also bears on the question of discrimination.) Earlier in July, when an automobile hit the rear of his truck on the highway, Spurlock on his return reported it to Roach and filled out a form at the dispatcher's desk. That was done, he explained, because another auto- mobile was involved and because a State policeman was at the scene of the accident. and accompanied Spurlock to the terminal, at which time the report was filled out and left for Roach; but that "on minor deals" like the one here emphasized, verbal reports were usually made and the foreman or dispatcher would then "take care of it." In support of this Spurlock testified on cross examination that several weeks before,. when a bulldozer pulled in front of his truck and he got stuck on soft ground and had to be pulled out, with damage to the front of his truck, he explained the situation to Cunningham, who was on duty as dispatcher at the time, and when he asked Cunning- ham whether a written report was necessary, the latter replied that he would take care of it. Whereas Spurlock was called in to see Roach after the collision, he had not been called in on this earlier "soft ground" incident. As Cunningham said in the latter instance that he would take care of it, so did Klein on July 22. The dis- tinction which Spurlock noted between a collision on the highway and damage as the result of getting stuck is a valid one. While the Company's rules make no such distinction in connection with reporting damage, it stands uncontradicted that its supervisor declared that in the latter type of situation the matter could be handled orally and indirectly. Certainly word of the July 22 incident was transmitted to Cunningham, who directed Roach to discharge Spurlock. Not only had there been waiver of the requirement for a written report in such a case , but as noted Cunning- ham did not cite such failure to report as the reason for the discharge, but rather the damage sustained as a result of having the truck pushed. We come now to the question of motivation in the disparate enforcement of the rule against Spurlock . Whether or not company knowledge of his extensive union activities (mostly at or near his home, as we have seen) could properly be inferred under such circumstances because the plant is small ,4 there is direct evidence that the Company knew of Spurlock's association with the union president , Hughes, whom Cunningham described as its business agent . While I find no evidence of violation by Cunningham in his going to the drive-in restaurant or going out to his car for a drink several times on July 19 (he was a frequent patron), be did meet and talk with Hughes, and saw Spurlock and three other employees in Hughes' car. (One of these, Hults, is considered infra; we do not know the circumstances surrounding the termination of employment of the other two, Gurnsey and Segrest.) This is not to say that the right to violate rules vested in any employee, or that union activities or indicated union sympathy immunized Spurlock against discharge. But it is clear that in his own case, when he had even less service with the Company, and in the case of others , the rule had not been invoked. It does not appear from the conflicting testimony that the damage to Spurlock's trailer on July 22 was greater than that in the prior pushing incidents which he Company had condoned. 8 Such elasticity In application of this rule finds its counterpart In application of the rule concerning reporting for work in the case of employees , noted infra, whose loads can be delivered at indefinite times. Recognition of the latter variances, as we shall see, favors the Company where it cites failure to report as the reason for discharge, and time Is of the essence, for were It held that the rule as set forth must be rigidly adhered to, we would have to find a general waiver in view of those situations where It is not applied. 4 Cf. Wiese Plow Welding Co ., Inc., 123 NLRB 616. The factors Indicated in that decision can be contrasted with the evidence concerning the other alleged discriminatees, infra. I REDWING CARRIERS, INC. 329 Length of service and extenuating circumstances now existed to a greater extent -than before. But Spurlock's union sympathies had now become apparent, and these, I find, "weighed more heavily" 5 in the decision to discharge him than did the pushing of his truck or the alleged violation of rules. We shall see infra that Cunningham and Mendez were opposed to this Union. That opposition made itself manifest in the action taken against Spurlock and in the independent interference to be noted. I find that the rule against being pushed was not consistently applied and that its enforcement against Spurlock by Cunningham on July 24 after the latter head ob- served Spurlock with Hughes on July 19 was discriminatory. A valid rule was "invoked or applied for a discriminatory anti-union purpose." 6 In further defense of its action the Company cites the rule book provision that all new drivers must serve a 6-month probationary period. But such a provision, itself lawful and proper, and even if not waived, cannot be used discriminatorily to deprive probationers of their statutory rights: There is no 6-month period of immunity during which an employer may discriminatorily discharge in violation of the Act. B. Wilson Wilson, an experienced driver, was employed by the Company for 2 months. He signed a union card at Spurlock's home shortly after July 19. Beyond this, as we shall see, there is no evidence of his engagement in union activities and very little of even limited association. He took a truck out at about ^_ or 3 a.m. on July 28, returned to the terminal that afternoon, and asked for and received permission to take the rest of the afternoon off; he did not say that he wanted to be off the nex tday. He did take the 29th off to install a new motor in his pickup truck since the old motor would not work. Al- though he knew that the rule called for him to report at 7:30 a.m. if he did not have an earlier assignment, he had his wife's sister call in for him between 8 and 8:30 a.m. (While at first dubious about the value of the testimony that the call was made to the Company, I later pointed out that the testimony was in fact subject to the safe- guard of cross-examination and that the Company had an opportunity to check with its representatives concerning the call. The conversation was allegedly with the dispatcher; the testimony could have been refuted by denials by Phelps, the day ,dispatcher, and by Cunningham, the latter's name also having been mentioned in that connection. Admittedly the call was received although Cunningham testified that, while he did not know when it was received, he was told about it at about noon that day.) To avoid penalty for failing to come in or telephone by 7:30 a.m., Wilson testified that a driver did not have to report at that hour if he had worked long and late the day before (he had himself on one or more occasions reported after 7:30), but that apparently did not apply on July 29 since he had received permission to leave early the day before. Nor is it relevant that he had been absent on Saturdays 7 and was not supposed to be there at 7:30 on those days, having arranged for such absences, or that he had on one occasion asked in advance to be let off to go to Georgia the following day. Wilson's position was certainly not improved by his testimony that the last time he had called in on a day when he was to report for work was on a Saturday, when he was due at 7:30, and called in about 7 or 7:30 a.m. (Klein "improved" on Wilson's testimony, saying that, instead of the men calling him, he very frequently called or went for them.) None of this absolves Wilson from the penalty for failure to notify the Company by 7:30 a.m. on July 29. While he made a general assertion that many men did not show up at 7:30 during the summer and were not reprimanded as far as he knew, we have little specific and comparable testimony on this ,and do not know the circumstances, whether for example the men had received prior permission. Mendez just as generally declared that between January 1 and September 1, 1958, about six men had been fired for not reporting or for having someone else call in; the latter, he testified, is unacceptable because it can be done to prevent the Company from insisting that the man come in, it having been found many times, on checking after an employee's wife called in, that nothing was in fact wrong. Also, failure to report results in delay in delivery for which, in the case of time loads (asphalt is such), the Company may be liable. 5 N.L.R.B. v. Whitin Machine Works , 204 F. 2d 883 , 885 (C.A. 1). e N.L.R.B. v. Avondale Mills, 242 F. 2d 669, 671 (C.A. 5). 7 We have seen that Spurlock was absent on Saturday , July 19. July 29 fell on Tuesday. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One driver, Cannon, testified that he and Wilson had previously worked elsewhere on a 7-day-a-week job for the Company, and that on his return to Tampa he had reported whenever he got up if not set up on a load. While this indicates waiver of the 7:30 reporting rule, Cannon was at the time hauling gasoline, not asphalt,. deliveries of the latter being important with respect to time. At the time of his dis- charge, Wilson was hauling asphalt on his early loads. Another driver, Reynolds, testified to taking days off, but his loads of acid do not have to be hauled on specific days, much less hours. Quite contrary to the General Counsel's position, his last witness testified that he arrives at the yard or calls in before 7 a.m. each day; that he has taken a few days off, citing as an instance the last time, when he told the night dispatcher the day before and called in the next day. Cunningham's alleged, vagueness concerning Wilson's assignments, cited by the General Counsel, is not answered by reference to noncomparable situations. Still on the issue of reporting, Klein testified that although his hours were from 6 p.m. to 6 a.m., he had been on the job at 7:30 and at 8 a.m., and many times drivers did not report at 7:30 when they did not have loads scheduled. But company records show that between January 1 and August 6, 1958, Klein left by 7:30 or before every day but three, and that he left after 7:30 on only one of those days. As noted above, Klein was not a reliable witness. He cited one driver, Segrest, who had been out drunk for 2 or 3 weeks and at other times, and suffered no more than a tongue lashing. But, whatever Segrest's shortcomings, it appears that his mother- in-law, concerned about him, called Klein and Cunningham about him many times so that this was not a case of failing to report without notice. (Nor, from Klein's testimony, did the Company have any doubts concerning Segrest's condition on those occasions.) Klein also cited an occasion, 1'/z or 21/z years before, when another driver failed to show up: Cunningham almost fired Klein the next day, but the latter believed that nothing was said to the driver. If valid and sufficient reason warranted waiver of the rule (although the proof does not show this), the evidence submitted indicates that Wilson did not have such a reason. It does not appear that the need to replace the motor developed suddenly on the morning of July 29. Further, even if an emergency situation had called for waiver of the rule, this was no emergency since Wilson could have called Klein for assistance in getting to work, as he allegedly had three or four times before. Again, Wilson's wife, who had worked the night before and gotten home about midnight, had driven his car home and it was presumably available to take him to the terminal. (He said that he had walked to work a few times at 11 o'clock at night.) Even Klein's test for discharge, that "a man just deliberately didn't come," was here met. The testimony shows Wilson's conscious but untroubled insouciance on July 29, and the Company was justified in so regarding it. That evening Wilson called the night dispatcher to find out whether he had an early run the next morning, i.e., before 7:30 a.m. (he had not called on. the evening of July 28), and was told that Cunningham had said that Wilson was to see Roach- first at 8 a.m. to find out whether he was to go out. In Roach's office the next day he was told that he had reached "the parting of the ways"; he was fired for being off the day before. Many drivers have been discharged by the Company, and the rea- sons are many. The issue here is whether, despite the reason cited, Wilson's discharge was in fact discriminatory. While, counsel for the Company to the contrary notwithstanding, animus is relevant where discriminatory intent is in issue, such animus does not itself prove that a discriminatory act was committed. Proof of animus on the part of Cunning- ham and the Company we have, but the inference is unwarranted that the discharge of Wilson was for his union activity. Nor does the interference, infra, which calls for findings of violation of Section 8(a) (1), warrant the inference that this discharge was for union activity rather than for cause. The evidence that Wilson was dis- charged for cause is credible and sufficient. For its bearing on the question whether Wilson was discharged because of his union activities, we must consider a statement made to him by one Pierola when Wilson returned to the driver's room from Roach's office on July 30. It being admitted that Pierola is a supervisor for Rockana Carriers, Inc., "a connected com- pany," and that the Board in an election proceeding treated Redwing and Rockana as one employer in determining an approprate unit, Pierola's statement cited herein is to be considered as Redwing's. The question still remains whether such statement was within the apparent scope of his duties. Pierola came into the driver's room after Wilson did and said that "he hated that [Wilson] had gotten fired; that if [Wilson] had left (his) friends alone [he] would have been all right." If we assume that Pierola did not mean that he thought that Wilson had been absent because of some carousing the night before, or that his refer REDWING CARRIERS, INC. 331 ence was to some other nonunion activity, we must consider and weigh his statement as an admission by the Company that Wilson was discharged by the Company be- cause of his union activities or associations. Here we must first assume that the Company or Pierola personally had knowledge of such activities, a question which we shall soon reach. Beyond this is the problem whether Pierola, a supervisory dis- patcher, could by such an admission bind the Company in connection with that discharge. (We are not considering Pierola's statement as possible interference, but as an admission of discriminatory discharge, nor are we dealing with a supervisor who participated in the discharge or one with general and broader supervisory powers.) Finally we have here the question of company knowledge of union activities en- gaged in by Wilson. Cunningham testified that he saw the others in Hughes' auto- mobile on July 19, but that he did not see Wilson there at any time. Admittedly the latter was in the restaurant virtually all of the time Cunningham was there, and did not appear to be part of the group which sat outside in Hughes' car. Wilson had not joined the others when he arrived, but went inside and sat down beside Cunning- ham. Whatever Wilson's reasons, he spent little time at Hughes' car according to his own testimony. He "stopped by to talk to them a while and told them what Cunningham had said." I credit Cunningham's testimony that he did not see Wilson with the others. In fact, Cunningham's statement, as testified to by Wilson, and which I find to have been violative, that he had better get away as they were going to hold a union meeting suggests that Cunningham did not connect Wilson with the union group. (Wilson told Cunningham that he did not know who Hughes was.) Crediting Wilson's testimony over Cunningham's denials, I find that Cunning- ham further violated the Act when he said to Wilson on July 19: "If you see any more drivers come this way, you tell them to stay away, or some innocent party may be fired on account of this meeting." Mendez, who thought that the Teamsters Union "was kind of a decent union" in 1954, was now "scared" of those people, but would not answer directly whether or not he wanted them. While I find that he was opposed to the Union, he did not himself interfere with employees' union activities: the Company through its repre- sentatives manifested a polymorphous attitude. Interference by Mendez is not claimed; by Cunningham, it is. What Mendez did not do does not exculpate for what Cunningham did, considering Cuningham's position and Mendez' reliance on him as typified by Mendez' reaction early in August to the Hults' situation, infra, and by his acceptance of Cunningham's decisions with respect to Wilson and Farrow, also infra. Mendez approved Wilson's discharge but testified that at the time of such approval he did not know that Cunningham had even seen Wilson at the drive-in restaurant. I credit this testimony, as infra. Mendez did not take the initia- tive in the discharge any more than he did when Wilson later reapplied; he left it up to Cunningham. Where union activities are shown, company knowledge thereof may be inferred. Here the activity was apparently limited to signing a union card, and there is no basis for inferring that the Company had knowledge of this limited activity by Wilson.8 We also have Wilson's testimony that on July 22 Cunningham told him that he was keeping bad company and he had better stay away from the drive-in (this was not alleged or tried as a violation), and that on the 26th Wilson invited Cunningham to Spurlock's home for supper, Cunningham refusing. (It appears that this was the shrimp supper which was served in the drive-in restaurant.) While one might argue the inference from Cunningham's remarks to Wilson on July 19, which we have seen constituted unlawful interference, and the related statement on July 22, that the Company knew or believed that Wilson was engaged in union activities, it is at least as reasonable to infer that Cunningham spoke thus to Wilson in the hope of preventing the latter from becoming thus involved, and without knowledge that he was a member of the Union. According to Wilson, Cunningham identified Hughes to him on July 19. Only Wilson's invitation on July 26, when be met Cunningham at the drive-in and suggested that he join some of the others for supper at Spurlock's, can be regarded as having even remotely suggested cooperation between Wilson and the others, and even more remotely suggested a connection between Wilson and the Union because Spurlock and some others had been seen with Hughes. Considering the possibilities for showing such cooperation or con- nection and the fact as noted that Wilson's conduct indicated the contrary, the in- 8 See also Alamo White Truck Service, Inc., 122 NLRB 1174, where although all of the alleged discriminatees were members of the union, the Board declared : "There is, however, no evidence that the Respondent was aware of the union activities of the 4 other discriminatees." 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vitation of July 26 constitutes insubstantial basis for inferring that the Company had knowledge or believed that Wilson engaged in union activities . It has not been shown that Wilson was discharged for such activities. I have not overlooked but do not rely on Cunningham's testimony that there had been some complaints that Wilson was late in deliveries ; Cunningham did not recall who had complained, nor did he recall whether he had warned Wilson of discharge if there were more complaints . Cunningham further testified quite unreliably that he believed that Wilson was "set up to work " on several days on which he failed to report. C. Farrow Farrow, an experienced driver who had been employed by the Company for more than 5 years and off and on for about 131/2, testified that he signed a union authoriza- tion card and attended several meetings, no company official being present at any of these. On or about July 26 (he placed it a few days earlier ), Farrow and his wife drove up to the drive-in restaurant while Spurlock and some of the others were hav- ing a shrimp supper. These came out to Farrow's car and invited him to join them, but he was having stomach trouble and declined. Cunningham was parked directly behind Farrow (which of them arrived first does not appear ), and after the others returned into the restaurant, Cunningham, who had had a few drinks , blinked his lights and kept blowing his horn and sent a curb girl to summon Farrow. (The restaurant offers curb service. ) The latter was feeling too bad and did not go. Cunningham then sent for Mrs. Farrow , who went to his car. She testified that she told him that her husband was not feeling well, and asked Cunningham what he thought of the Union at Redwing, at which he laughed and said that it would never go through and that her husband was jeopardizing his job in that company; if he did not stop messing around with those who were trying to get the Union in, it would not be too good for him . She repeated this to her husband on her return. Cunningham was visibly nervous as he denied making such statements ; I do not credit this denial. He did not limit himself to a reply to Mrs. Farrow 's question, but made an unlawful threat in violation of the Act, and I so find. Beyond this incident there is no testimony which even remotely indicates that Farrow engaged in union activities or that the Company had knowledge or belief of such activity on his part . To point to the fact that other drivers came to his automobile and invited him to supper as indicative of Farrow 's joinder in union activities (Hughes was not present on this occasion ) is to ignore the fact that Cun- ningham , who was similarly invited, saw that he did not join the others and was therefore more likely to conclude that Farrow was not in fact one of the union supporters. And aside from Cunningham 's impression or possible belief , his threat against Farrow 's messing around with the others cannot be related to any acts by Farrow of which Cunningham had any knowledge according to the testimony, nor did such acts thereafter occur. Farrow's presence at the restaurant was not unusual; he and his wife had been there before when Cunningham was there , and the three had had dinner together about a dozen times. To say that Farrow's discharge on or about August 1 (he placed it variously at about August 12 and on a Monday) was motivated by company knowledge of his union activities is to rely on an inference of discrimination which is not reasonably supported by the evidence and which in fact is contrary to the reasonable implication inherent in the single item of evidence which was offered in this connection. True, one may wonder about the fairness of a 3-day suspension which Cunningham thereafter imposed on Farrow about a week after July 26 (probably on August 4, which was a Monday ), when the latter arrived at the terminal late after calling in and leaving word that he had a flat tire on his car and would be delayed . Farrow testified that he had been late before after calling in and that nothing had been said to him on those occasions . We have noted supra other limited testimony that the established rule for reporting could be and was at times waived by the Company. On the other hand, repetition of the offense by Farrow may have prompted Cunning- ham's action now as he and Mendez testified . Whether on the day in question Farrow was needed to take a regular run on schedule or whether he was to have been dispatched on another early run is not clear. But despite suspicion in this connec- tion, in the absence of proof of company knowledge of union activities engaged in by Farrow, it cannot be said that his suspension was discriminatory. This disposes of the main question of discrimination against Farrow, which centers on his 3-day suspension even if his termination be considered to have occurred after he failed to appear for work at the end of the 3-day period . It cannot fairly be disputed that, if the Company properly imposed the suspension , its refusal REDWING CARRIERS, INC. 333 to change and extend it into a 5-day vacation was proper, and that Farrow's insistence on such an extension and his consequent absence in the face of that refusal consti- tuted insubordination and sufficient cause for discharge. The suspension itself provoked an argument between Cunningham and Farrow, the latter wanting to extend the period to 5 days, but as a vacation, and Cunningham, refusing to permit that, saying that if Farrow stayed away more than 3 days, he could take the "rest of the time" off. Cunningham and Mendez testified that they had discussed Farrow's prior lateness, and that after the 3-day suspension Cunningham was authorized 9 to fire Farrow if he gave any more trouble. Since, as found, the suspension was not shown to have been discriminatory, there was no unlawful provocation to support Farrow in his failure to return to work later that week. Such failure, per se and as insubordinate, therefore justified the discharge of which Farrow had been warned. (There does not appear to have been a formal discharge. Farrow just took the "rest of the time" off.) D. Hulls Hults, a truckdriver for 4 or 5 years, was employed by the Company from ap- proximately June 14 to August 21, 1958. He attended several union meetings and signed a card about the end of July. Cunningham saw him in Hughes' automobile outside the drive-in restaurant on July 19. Further bearing on the question of the Company's knowledge of his attitude toward the Union, Hults testified that early in July, in a discussion of unions with Pierola, he told the latter that he thought unions generally were a good thing. Then, about the middle of August, when another driver told Cunningham that he did not care for the Union, Hulls remarked that it would be "100 percent advantage over the conditions at Redwing" at the time. About a week after July 19 Safety Director Roach told Hulls that he was being fired because he was less than 25 years old. Understandably concerned with safety and insurance premiums, the Company had in 1945 or 1946 adopted a 25-year minimum for drivers. Hults was born on March 9, 1934, but had listed his date of birth as March 9, 1933, on his employment application in order to meet the Com- pany's age requirement. This had troubled his conscience, and about July 10 he had told Roach about it, the latter replying, "Forget about it. You are not the only one." Now told that he was fired, Hults pointed out to Roach that he had just gone to great expense to move close to the terminal and that he was a responsible family man. Roach thereupon told him to sit in the waiting room until called and, after 3 or 4 hours, told him that he would be permitted to drive again. Although not alleged to have been discriminatory, this abortive discharge may be considered for any light which it may cast on other events. (This principle is similar to that cited when counsel objected to other testimony concerning intent.) On the one hand it may be appraised as indicating discrimination based on Hults' statement to Pierola and his association with Hughes. On the other, it can be pointed to as indi- cating no discriminatory intent despite the Company's knowledge of Hults' union sympathy inasmuch as he was restored to duty. Under the circumstances I shall not rely on this incident in evaluating the discharge of Hults on August 21. On the latter date Roach discharged Hults, telling him that it was Cunningham's doing. Reminded that he had told Hults a month before that he could forget the matter of his age, Roach now replied that there was "pressure from upstairs." Hults then spoke to Mendez, who said that, if Cunningham made the decision, it would stand but that he would look into it. That evening Hulls asked Cunningham in what respect his work had been unsatisfactory, and Cunningham replied that some people had called in, but he made no further reply when Hults asked who these were. Cunningham also allegedly told Hults that he had been laid off to make room for a Rockana driver. Hults was a bright witness and appeared to be generally honest. But concededly he falsified his application, and at the hearing he was guilty of exaggeration when he testified that he was 241/2 years old when he was hired on June 14: he was only 24 years and 3 months at that time. If it be urged that the latter difference is slight, it would have been quite as easy for Hults to say that he was 24 years old, omitting the fractional period if one-quarter of a year or 3 months seemed unneces- sarily specific; it is no more involved to deduct and omit reference to months than to add 3 more. 9 Cunningham has authority to fire those who, like Wilson , have been employed by the Company between 1 and 5 years, but he must first discuss these situations with Mednez. Only the latter may discharge those with 5 years or more of service. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the middle of July, just a few days before the gathering at the drive-in restaurant on July 19, Hults had pushed over a fire hydrant while making a delivery. He explained that it was not his fault, and the Company evidently agreed: there seems to have been no reference to the incident during the layoff discussion with Roach later that month. According to Mendez, Roach had told him about August 1 that he had intended to discharge Hults because of his age (this was evidently at the time or shortly after the discharge which did not "take"), and when Mendez declared that the rule must be observed, Roach told him that Cunningham knew of the case. The latter then told Mendez that Hults seemed to be the type of man they would want, and Mendez approved on condition that Hults be discharged immediately if he did not live up to their highest expectations. A few weeks later, when Mendez learned of the earlier fire plug incident and that Hults had now "torn up" two tractors, he instructed Cunningham to discharge him at once, and Cunningham in turn gave the "final instructions" to discharge Hults. There was considerable testimony pro and con concerning Hults' responsibility and carelessness. The rule for stopping when a noise or knock develops was cited; Hults explained that he did stop and that he had reported the noise several times before. If Cunningham did not cite the rule concerning noise in the motor on August 21, the rule and the circumstances were clear to Hults. Although Hults testified that he had no warning of the piston trouble, I credit Mendez' testimony that a pounding precedes and warns of such a condition. Here we must remember that Mendez had in apparent good faith set higher standards for Hults because of his own doubt of the wisdom of employing a younger man. (The wisdom of setting higher standards is not here in issue.) In any event, on the issue of discriminatory intent with which we are here concerned, we have no evidence of union activity by Hults or company impression of such activity after his appearance in Hughes' automobile on July 19 except for his mid-August statement noted supra to the effect that conditions would be markedly improved under the Union, and it was after July 19 that the Company waived the age requirement and restored Hults to duty. (I have consistently, emphasized and relied on the presence of employees in Hughes' automobile on July 19 as witnessed by Cunningham. The finding of discrimination against Spurlock is based on this. But Hults was not discriminated against for that reason. Of course it is not necessary for a finding of discrimination to show that it was manifested against all employees involved.) 10 I accept as credible and reliable Mendez' testimony concerning the reasons for his insistence on the 25-year age minimum, and concerning the seriousness with which he viewed the exception permitted and the conditions imposed on Hults' continu- ance, and, albeit not without doubt in the light of Hults' statement that the Union would bring many advantages, I find that Mendez directed his discharge because he was involved in damage to the equipment after his earlier short-lived discharge, all of this indicating that Hults did not measure up to the high standards set for him. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section II, above, occurring in connec- tion with the 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. IV. THE REMEDY Having found that the Company has engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by threats against employees associating with a union representative or prounion employees, interfered with, restrained, and coerced their employees in violation of Section 8(a) (1) of the Act. I shall therefore recommend that the Company cease and desist therefrom. It has been further found that the Company, by discharging Spurlock, discrimi- nated against him in respect to his hire and tenure of employment in violation of Section 8(a)(3) of the Act. I shall therefore recommend that the Company cease and desist therefrom and from infringing in any other manner upon the rights guaranteed in Section 7 of the Act. I shall recommend that the Company offer to 10 W. C. Nabors, d/b/a W. C. Nabors Company, 89 NLRB 538, 541-542. REDWING CARRIERS, INC. 335 Spurlock immediate and full reinstatement to his former or substantially equivalent position 11 without prejudice to his seniority or other rights and privileges. I shall further recommend that the Company make Spurlock whole for any loss of pay he may have suffered by reason of the discriminatory action aforementioned by pay- ment to him of a sum of money equal to that which he would normally have earned less his net earnings, computation to be made in the customary manner,12 from the discriminatory discharge to the date of a proper offer of reinstatement. I shall further recommend that the Board order the Company to preserve and make avail- able to the Board upon request payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. For the reasons stated in the subsections entitled "Wilson," "Farrow," and "Hults," I shall recommend that the complaint be dismissed insofar as it alleges the discrimina- tory discharge and failure and refusal to reinstate those three employees. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Teamsters, Chauffeurs & Helpers Local Union No. 79, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to hire and tenure of employment of Virgil Spurlock, thereby discouraging membership in a labor organization, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By such discrimination and by threats against employees in their associations', thereby interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Company has not engaged in unfair labor practices within the meaning of the Act by discharging and failing to reinstate Lucian Wilson, Willie Farrow, and Alfred B. Hults. [Recommendations omitted from publication.] 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 1' Crossett Lumber Company. 8 NLRB 440; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7; P. IV. Woolworth Company, 90 NLRB 289, 291-294. 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Teamsters, Chauffeurs & Helpers Local Union No. 79, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by dis- charging any of our employees or discriminating in any other manner in respect to their hire and tenure of employment, or any term or condition of employ- ment. WE WILL NOT threaten employees in connection with union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organi- zations, to join or assist Teamsters, Chauffeurs & Helpers Local Union No. 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. WE WILL offer to Virgil Spurlock immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the interference, restraint, coercion, and discrimination against him. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become , remain, or to refrain from becoming or remaining members in good standing in Teamsters, Chauffeurs & Helpers Local Union No. 79, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. REDWING CARRIERS, 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 243, Brotherhood of Painters, Paperhangers and Deco- rators of America, AFL-CIO and International Brotherhood of Painters, Paperhangers and Decorators of America, AFL- CIO and Richardson Paint Company, Inc. Case No. 39-CD-37. November 04, 1959 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF CASE This proceeding arises under Section 10(k) of the Act, -which pro- vides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8(b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair labor practice shall have arisen . . . ." On April 29, 1959, Richardson Paint Company, Inc., herein called the Company, filed charges alleging that Local 243, Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO, herein called Local 243, and International Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO, herein called International Painters, had engaged in and were engag- ing in certain unfair labor practice's within the meaning of Section 8 (b) (4) (D) of the Act. It was charged, in substance, that the Unions had induced and encouraged employees of Stone & Webster Engineer- ing Corporation to engage in a strike or concerted refusal to work, with the object of forcing or requiring Richardson Paint Company, Inc., to assign certain work to employees who were members of Local 243 rather than to employees who were members of International Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW. Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.79 and 102.80 of the Board's Rules and Regulations, the Regional Director investigated the charges and provided for an appropriate hearing upon 'due notice. Hearings were held on June 25 and 26, 1959, at Beaumont, Texas, before Franklin R. Sears, hearing officer. 125 NLRB No. 39.