Edwards Trucking Co.

EDWARDS TRUCKING COMPANY 385 gaining representative of its employees, unless we have been certified as the representative of such employees under the pro- visions of Section 9 of the National Labor Relations Act. WE WILL NOT threaten, coerce, or restrain Kagen-Dixon Wire Corporation, Andrew Peterson or any other person engaged in commerce or in an industry affecting commerce where an object thereof is to force or require Kagen-Dixon Wire Corporation, Andrew Peterson or any other person engaged in commerce or in all industry affecting commerce to cease using, selling, han- dling, transporting, or otherwise dealing in the products of Re- public Wire Corporation or of any other employer within our territorial jurisdiction in the State of New Jersey over whom the National Labor Relations Board would assert jurisdiction, or to cease doing business with Republic Wire Corporation or with any other employer within our territorial jurisdiction in the State of New Jersey over whom the Board would assert jurisdiction, or to force or require Republic Wire Corporation or any other em- ployer within our jurisdiction in the State of New Jersey over whom the Board would assert jurisdiction to recognize or bargain with us as the collective-bargaining representative of its em- ployees unless we have been certified as the representative of such employees under the provisions of Section 9 of the Act. LOCAL UNION 522, LUMBER DRIVERS, WAREHOUSEMEN AND HANDLERS, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. 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. R. E. Edwards d/b/a Edwards Trucking Company and Team- sters, Chauffeurs, Warehousemen and Helpers, Local Union No. 991. Case No. 15-CA-1562. October 18, 1960 DECISION AND ORDER On April 15, 1960, Trial Examiner James T. Rasbury issued his Intermediate Report in the above entitled-proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that he cease and desist therefrom and take certain affirma- 129 NLRB No. 47. 586439-61-vol. 129-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive action, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions with supporting brief to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modifications: 1. We find, in accord with the Trial Examiner's conclusions (and with the specific provisions of the cease-and-desist order he recom- mended), that the Respondent violated Section 8(a) (1) of the Act by: (1) interrogating employees as to their or their fellow employees' membership or interest in or activities on behalf of the Union; 2 (2) threatening employees that there would never be a union in his busi- ness establishment and that he would call the Mack Truck Company to take back his trucks before he worked union men; and (3) soliciting employees to withdraw from the Union or making promises to em- ployees that they might return to work if they would forsake the Union. We also find that Respondent violated Section 8(a) (3) and 1 Respondent claims in his exceptions that he was prejudiced in the preparation and conduct of his case because pretrial affidavits given by certain of his employees to the Board's field examiner were not made available to him as requested , either in advance of the trial or in advance of his direct examination of those employees he called as his witnesses. We find no merit in the Respondent's claim of prejudicial error We note that the complaint apprised the Respondent of the nature and the dates of the acts alleged to be in violation of the Act ; that the Respondent did not request a more formalized statement , and did not ask for additional time to obtain or present evidence with regard to the violations specified in the complaint, and that, apart from the bare claim of prejudice, he fails now to specify in what manner he was prevented from litigat- ing his defenses to the complaint or what evidence be was prevented from adducing We note, further , that at the hearing, the Trial Examiner made available to the witnesses copies of their affidavits for their review before testifying , and that when the General Counsel utilized statements in the affidavits for purposes of cross-examination , the Re- spondent's counsel was given the opportunity to review such pretrial statements. Respondent's attempt to obtain a copy of the pretrial statements of witnesses in ad- vance of the hearing or of their testifying, does not fall within the purview of the Board's rules relating to the production of such statements See Section 102 118 of the Board's Rules and Regulations, Series 8. See also Ra-Rich Manufacturing Corporation, 121 NLRB 700. Moreover, contrary to the Respondent's claim, it is clear that the Respondent is not entitled , as a matter of right , to the benefit of pretrial discovery procedures afforded to parties in judicial proceedings by the Federal Rules of Civil Procedure, and that the denial of them here does not amount to a denial of due process See Sealtest Southern Dairies, National Dairy Products Corporation, 126 NLRB 1223, and cases cited in footnote 3. 'In sustaining the findings and order based upon the Respondent's interrogation of employees, we note that it occurred in the context of coercive threats and subsequent discrimination against employees because of their union activities Cf. Blue Flash Express, Inc., 109 NLRB 591 , 593; and Griggs Equipment, Inc, 125 NLRB 1152. EDWARDS TRUCKING COMPANY 387 (1) of the Act by discriminatorily discharging employees Broadhead, Doggett, Coody, and Miller on May 4,1959. 2. In framing the remedy for the violations found, we note the Respondent's objection to the order of reinstatement on the ground that he offered three of the alleged discriminatees, namely, Doggett, Coody, and Miller, reemployment to their former or to substantially equivalent positions following their discharge. The most important evidence offered on this point was the testimony of Respondent R. E. Edwards, who testified, in rebuttal, that, while he never actually rehired any of the alleged discriminatees, he had attempted to rehire the three mentioned above. More specifically, he stated that sometime in July or August he sent his foreman, Turner, to find Miller and Doggett and to tell them that he "probably could put them back to work then"; that he personally told Coody, "in a round way," that he come back to work at some unspecified future time, and that he (Ed- wards) was told that Turner spoke to Miller and that the latter said he would contact Doggett. Edwards admitted that he never communi- cated with Miller or Doggett personally.3 We do not regard such evidence sufficient to establish that the Respondent unconditionally offered any of the discriminatees full and immediate reinstatement to their former or substantially equivalent positions 4 We therefore find no warrant in the record for withhold- ing issuance of our usual remedial order in the circumstances. Having found that the Respondent has engaged in certain unfair labor practices, in violation of Section 8(a) (1) and (3) of the Act, we shall order him to take certain action designed to effectuate the policies of the Act, as follows : In accord with our usual policy, we shall order the Respondent to cease and desist from the unfair labor practices found and to post appropriate notices. Because the nature of the Respondent's unfair labor practices go to the heart of the Act and reveal a purpose to a The nature of Edward 's testimony on this point is indicated by the following excerpt from the record relating to his conversation with Coody : A I didn't tell him nothing definite right out. I don't know the exact words I did tell him. I didn't say come on back to work I don't think we was working But, I think when we started back something like that because we didn't have enough to do, only getting twenty cars a week Q. Well, then, you weren't working then? A. The day that Mr. Coody was down there, I'm sure that a lot of my trucks wasn't running Q. Then you didn't offer him to come back right away then? A To come back the next morning, I didn't Q. What do you think you told him' What did you tell him ? A. In a round way, I'm pretty sure I told Mr Coody he could cone back to work. Q But you didn 't tell him when he could come back to work? A. Well, I didn't have nothing for him to do. What trucks I had running they was running over at Jackson . I don't think we were hauling to the dam at the time. Q And you told him you would hire him back sometime in the future but you didn't know when in the future. A. That's right and I think that is the last time I talked to him. 4 See Vernon T Mercer, 119 NLRB 673, 691 (offer to reinstate Martin). 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defeat self-organization, we agree with the Trial Examiner that issu- ance of a broad cease-and-desist order is necessary to effectuate the preventive purposes of the Act and to insure the employee's free exer- cise in the future of the organizational rights guaranteed them by the Act.5 To remedy the Respondent's discriminatory discharges of William Broadhead, John Doggett, Mathis Coody, and Herbert Miller, we shall order the Respondent to offer these employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. We shall also direct the Respondent to reimburse these employees for any loss of pay they may have suffered by reason of the Respondent's dis- crimination against them, by paying to each of them a sum equal to the amount they normally would have earned as wages from the date of their discharge to the date of an unconditional offer of reinstate- ment, less their net earnings to be computed on a quarterly basis in the manner established by the Board in F. W. Woo7.vorth Company, 90 NLRB 289, 291-294. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, R. E. Edwards d/b/a Edwards Trucking Company, Silas, Alabama, his officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership of his employees in the Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 991, or any other labor organization, by discriminatorily discharging any em- ployee, or in any other manner discriminating against any employee in regard to hire, tenure, or any other term or condition of employment. (b) Interrogating employees as to their membership in, sympathies for, or activities on behalf of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 991, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) Threatening employees that there would never be a union in his business establishment. (d) Threatening employees that he would call the Mack Truck Company to take back his trucks before he would work union men. (e) Soliciting employees to withdraw from the Union or making promises to employees that they might return to work if they would forsake the union. 5 Consolidated Industries, Inc., 108 NLRB 60, 61. EDWARDS TRUCKING COMPANY 389 (f) 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, 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 pro- tection, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William Broadhead, John Doggett, Mathis Coody, and Herbert Miller immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them by reason of the discrimination against them in the mailer set forth in the remedy section of this Decision and Order. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the rights of employment under the terms of this Order. (c) Post at his present headquarters of operations and particularly at Silas, Alabama, if the Respondent currently has an office at Silas, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Fif- teenth Region, shall, after being signed by Respondent R. E. Edwards, be posted by Respondent immediately upon receipt thereof, and be maintained by him for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. 6I1i 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- ment Relations Act, we hereby notify our employees that : AVE WILL NOT discourage membership in Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 991, or any other labor organization, or interfere with employees in engaging in 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities for the purpose of collective bargaining or other mutual aid or protection , by discharging, refusing to rein- state, or otherwise discriminating against our employees in respect to their hire or tenure of employment , or any term or condition of employment. WE WILL NOT threaten our employees with loss of employment because of their union interest or affiliation , interrogate them with respect to union matters or their own union membership , or solicit their withdrawal from the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Team- sters, Chauffeurs, Warehousemen and Helpers, Local Union No. 991, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. WE WILL offer William Broadhead , John Doggett, Mathis Coody, and Herbert Miller immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority and other rights and privileges. WE WILL make whole each of the above-named employees for any loss of pay they may have suffered as a result of the dis- crimination against them. All our employees are free to become or to remain members of the above Union, or any other labor organization. R. E. EDWARDS D/B/A EDWARDS TRUCKING 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on May 6, 1959 , by Teamsters , Chauffeurs, Warehousemen and Helpers, Local Union No. 991 , herein referred to as the Union , the General Counsel of the National Labor Relations Board issued a complaint dated July 31, 1959, against R. E. Edwards d/b/a Edwards Trucking Company, herein referred to as the Respondent, alleging violations of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Pursuant to notice a hearing was held before the duly designated Trial Examiner at Butler, Alabama, on November 2, 3, and 4, 1959. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. EDWARDS TRUCKING COMPANY 391 Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a sole proprietorship, the sole proprietor being R. E. Edwards d/b/a Edwards Trucking Company, who has his principal office and place of business in Silas, Alabama, and was at all times material herein engaged in the business of hauling crushed rock and similar construction materials by truck. During the period from December 1958 through June 1959, the Respondent performed services valued in excess of $100,000 for Vulcan Materials Company, Birmingham Slag Division, in connection with the construction of a Federal project known as the Jackson-Lock Dam in the State of Alabama. Vulcan Materials Company, Birmingham Slag Division, during the calendar year ending December 31, 1958, purchased goods and materials valued in excess of $1,000,000 which were transported to its place of business in Birmingham, Alabama, in interstate commerce directly from States of the United States other than the State of Alabama and performed services valued in excess of $50,000 in States outside the State of Alabama. On these admitted facts I find that at all times material herein the Respondent has been engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case.' II. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 991, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES INVOLVED The General Counsel alleged that the Respondent engaged in the following acts and conduct which is violative of Section 8(a)(1) of the Act: (a) Threatened employees that he would discharge any employee who joined .the Union; (b) threat- ened employees that there would never be a union in his business establishment; (c) threatened employees that he would call the Mack Truck Company to take back his trucks before he would work union men; (d) solicited employees to withdraw from the Union; and (e) promised employees the return of their jobs if they would forsake the Union. The complaint further alleges that on May 4, 1959, Respondent terminated the employment of employees William Broadhead, John Doggett, Mathis Coody, and Herbert Miller and thereafter failed and refused to reinstate said employees because of their membership in and activities on behalf of the Union, all in violation of Section 8 (a) (3) and (1) of the Act. IV. THE UNFAIR LABOR PRACTICES A. Background Respondent owns a small fleet of trucks and at all times material herein hired some 15 to 18 truckdrivers who engaged in driving the Respondent's trucks in hauling crushed limestone which was loaded on the trucks at the railroad depot in Silas, Alabama, and then hauled approximately 16 miles to the Jackson-Lock Dam site where the stone was unloaded for use in the construction of the Federal dam project. Only a portion of the road over which the trucks traveled was hard surfaced and the testimony clearly established that during most, if not all, of the material time herein the road was in a very bad condition. In particular that por- tion of the road which was not hard surfaced subjected the trucks to difficult driving conditions and frequently caused delays, damage to the trucks, and the necessity of frequently having assistance from others to pull trucks out of the mud or ditches where they had become "stuck." On April 1, 1959, three of the dischargees, Broadhead, Doggett, and Miller, went to Mobile, Alabama, where they contacted Charles Hall and Morris Alpert, officials of the Union, to obtain information concerning application and affiliation with the Union and information concerning the procedure to be followed in organizing the Respondent's employees. On this occasion Doggett and Miller completed applica- tions and Broadhead, who had maintained a membership in the Teamsters Union 'Respondent's answer as amended at the hearing admitted the facts set forth above, but denied the Board's jurisdiction. See Siemons Hailing Service, 122 NLRB 81. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Aiken, South Carolina, transferred his membership to Local 991 in Mobile. On the days that immediately followed, these three employees contacted other employees of the Respondent and sought to interest them in the Union. Employees Odom and Coody completed application cards which were returned to the Union. B. Respondent's conduct Sometime during April 1959, the exact date not being clearly established in the record, Edwards called all of the employees then available into his office and, according to his pretrial sworn affidavit (see General Counsel's Exhibit No. 2), there the following occurred: I cautioned all the men about various things including driving habits. I said: "I hear the Union is trying to get me under contract. There will never be a union in my place. I don't take a half hour off for lunch. We talked about the road and trucks." While Edwards was a difficult, rambling, and unresponsive witness, even to the questions propounded by his own attorney on direct examination, he nevertheless made the following response to a question by his attorney when asked what occurred at the assembled meeting. I had learned that some of my men were carrying union cards, trying to sign the other men up. 'I didn't know they had signed up themselves in the Union out on the road but they had cards with them trying to sign the other men up. That's one of the things I brought out. We was going to have to stop it. I had talked to them before. That the job was on a very close margin. Every 5 or 10 minutes of all those trucks stopping how much it was costing. Brought it right down to the penny. Because of the men taking care of the trucks. Watch the rocks; not to run over the rocks, if you got down there to the slab, to get out where they dump the rock on the concrete slab around the back; to get out and move the rocks... . It is crystal clear to the Trial Examiner from Edwards' own testimony, as well as his sworn pretrial affidavit, that in April 1959, at the time of the assembled meet- ing, he had knowledge of union activity and interest among his employees and at that meeting threatened employees that there would never be a union in his place of business. Edward Turner, an employee that had worked for Respondent on prior jobs at other locations and who recanted and deviated from much of his pretrial sworn statement given to the General Counsel and therefore is not fully credited by the Trial Examiner, nevertheless, testified on direct examination, having been called by the Respondent, that: I told Mr. Edwards that these men [Broadhead, Doggett, Coody, Miller, and Odom] had joined the Union and he was going to have to do something with them. That they were tearing his trucks up. Done had one of them tore up. They was going to cause trouble. He was going to have to do something with them. This information was related to Edwards by Turner on May 4, 1959, the date of but prior to the discharges of these men, and was in response to a request by Edwards that Turner find out what was going on among the men. On the afternoon of May 4, 1959, Edwards discharged employees Doggett, Coody, Miller, Odom, and Broadhead. I find no necessity for reviewing all of the various versions of the conversations which occurred at the discharge but feel it sufficient to state that I cannot accept and believe the version of the conversation testified to by Respondent R. E. Edwards and his office manager, Miss Clara Albright. I believe the testimony of employees Broadhead, Coody, Doggett, and Miller and find that Edwards told the men he was discharging them and that the reason given by Edwards was becaused they had joined the Union. This finding is fully justified, not only on the basis of the credited testimony of the dischargees at the time of the discharge, but also on the entire evidence of Edwards himself. Broadhead testified that a few days after his visit to Mobile that the business agent of the Union, Charles Hall, came by where his truck was being loaded and required "if the boys was hauling sand down at the river." After receiving an affirmative reply Hall left. A few minutes later Edwards approached Broadhead and after explain- ing that he (Edwards) recognized Hall as the unionman from Mobile, Edwards then told Broadhead "he would fire any man or the best man he had for fooling with unionmen." I credit Broadhead's testimony and find the remark of Edwards to be a threat violative of Section 8(a) (1) of the Act. EDWARDS TRUCKING COMPANY 393 Coody testified that on May 4, at the time of his discharge and after some admis- sions by Coody to Edwards that he had signed a union application card, Edwards then told him: "If you forget the Union and not fool with it you can come back to work in the morning, your truck will be on the hill , go to work." Coody replied, "Well about the onliest way I could come back there was to pay my book out. I don't want to throw away what I have already paid." Edwards then said , "Well, I ain't going to have no man belonging to the union , fooling with it, I'll fire the last man I got for fooling with the union ." I credit Coody's -testimony and find Edwards' remarks to be violative of Section 8(a) (1) of the Act. Miller testified that at the time of the discharge on May 4 Edwards said: "I will call the Mack Company and let them come get these trucks before I have anything to do with the union." I credit Miller and find Edwards ' remark to be violative of Section 8(a) (1) of the Act. C. Respondent's defenses The Respondent in his own rambling way attempted to advance a number of other reasons for the discharges. There is much testimony to the effect that the discharged employees loafed on the job, frequently stopped their trucks, spent too much time eating on the Respondent 's time, drove the trucks recklessly and carelessly causing a great deal of damage to the trucks, and to some extent even a shortage of work at the time of the discharge. The veracity of these reasons , however, vanish when considered in the light of the entire testimony including the Respondent's own. The condition of the road was such that more damage than might normally have occurred was a natural consequence ; there was ample testimony to show that the trucks were frequently overloaded ; and that this was a basic cause of much of the resulting damage. New truckdrivers were hired shortly following the discharges. Respondent's own witnesses testified that other employees frequently stopped to eat lunch and frequently stopped at a point along the route known as Bladen Springs where they had coffee or Cokes or purchased cigarettes , furthermore other than the report made to Edwards by Turner , which has been related above and which was pitched entiely on a union activity tenor, there is nothing in the record to indicate that the reasons on which Edwards pretended to base the discharges had not occurred some weeks in advance to the actual discharge . There is a plethora of evidence in the record to support the allegations of the complaint and little or no creditable evidence in the record to indicate anything other than a deliberate and outright violation of the Act by the Respondent. The Respondent sought to show a lack of union animus on his part because he had knowledge that some of his "employees" 2 were members of the Union and he had taken no action against them. The inferences available from this fact the Trial Examiner rejects. The few people involved were working at the damsite and were not a part of the operation herein involved. It is apparent to this Trial Examiner that the Respondent, recognizing certain facts of industrial life, acquiesced (and perhaps even assisted ) in the membership of these few people in order to avoid resulting labor disputes between the primary contractor at the damsite and his employees. The occurrence of any such "labor disputes" might very well have resulted in the "can- cellation" of the Respondent's subcontract . The Trial Examiner is not naive in this field of law and as a consequence this tidbit of information falls on unreceptive ears. It may very well be true, as the Respondent sought to indicate in his testimony, that he could not afford a union on the particular job herein involved, because he had bid too close and union rates would have caused him to lose money . The problem of wages to be paid for labor arises in the area of bargaining , whether with indi- viduals or a collective-bargaining representative , and is legally unrelated to the right of employees to either belong or not to belong to a labor organization without inter- ference or discrimination by an employer. The Trial Examiner was most impressed by witness William Perry who was called by the General Counsel, but as an employee of the Respondent would perhaps have the most to lose by telling the unbiased truth in this case . When asked what Edwards had told him on May 4 concerning the discharge incident , Perry testified : "Well, if I recall right he came into the shop and said `I fired five men .' And I asked him what for, he told me who it was . I asked him who and he told me what for, for organizing. I didn't say anything and he said , `I'll fire any other son-of-a-bitch I find organizing." Consistent with the foregoing, I find that Respondent by the remarks to employees hereinabove related did interfere , restrain, and coerce his employees in violation of 2 The people Involved may very well have been independent subcontractors A deter- mination of their exact status is unnecessary for a resolution of the problems involved herein. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act and further find that Respondent discriminatively dis- charged employees Broadhead, Doggett, Coody, and Miller on May 4 , 1959, because of their activity and interest in the Union in violation of Section 8 (a) (3) and (1) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, 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. VI. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. It will be recommended that the Respondent upon request make available to the Board and its agents all payroll and other records pertinent to the analysis of the amounts of backpay due the discriminatively discharged employees , namely, Broad- head, Coody , Miller, and Doggett. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited , I shall recommend a broad cease -and-desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in these proceedings , I make the following conclusions of law: CONCLUSIONS OF LAW 1. The Respondent is, and has been at all times material to this proceeding, an employer within the meaning of Section 2(2). 2. By discriminatively discharging employees Broadhead, Doggett, Coody, and Miller on May 4, 1959, as found above, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By interfering with, threatening, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] John Breuner Co. and Department & Specialty Store Employees Union, Local 1265, RCIA, AFL-CIO, Petitioner. Case No. 20-RO-4222. October 19, 1960 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before M. C. Dempster, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 129 NLRB No. 49.