A. E. Schultz Fuel Co., Inc.

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD What we have before us is a situation in which the Union has sought for a period of some 3 years to regain both recognition and a contract. Further, shortly after it learned on May 25, 1960, that other unions in the Central Labor Council were "amazed" it had no con- tract with Miratti, the Union sought on June 14, recognition on the basis of a card cross-check,4 even though it had abandoned as unsuc- cessful an organizing drive in May among Miratti's employees. Con- sequently, it seems evident to us that the picketing beginning August 8 announcing on the signs that Miratti had no union contract was clearly a continuation of the Union's persistent efforts over several years to gain a contract and reestablish itself as the employee's rep- resentative. Under these circumstances, it is wholly unrealistic to accept the Union's self-serving statement of July 25, 1960, disclaim- ing any recognitional objective as overriding the clear intent of its actions as finally given expression in its picketing.-' Accordingly, we would find that the Union's picketing is for a contract and, thus, tantamount-to a present demand for recognition a It is, therefore, inconsistent, in our view, with the disclaimer and we would, in con- sequence, direct an election. ' Warren testified he mentioned a card cross-check solely to get the Employer's reaction to the idea, a disclaimer of recognitional intent we find unbelievable. "See Normandin Bros. Company, 131 NLRB 1225. 6 See, for example, Witwer Grocer Company, 111 NLRB 936. A. E. Schultz Fuel Co., Inc., and Midwest Bulk, Inc. and General Drivers and Dairy Employees Local Union 563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 13-CA-3655. August 4, 1961 DECISION AND ORDER On February 17, 1961, Trial Examiner Eugene E. Dixon issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. He also found that the Respondents had not engaged in certain other alleged unfair labor practices. There- after, the Respondents and the General Counsel filed exceptions to the Intermediate Report, and the General Counsel filed a supporting brief. 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 McCulloch and Members Rodgers and Fanning]. 132 NLRB No. 53. A. E. SCHULTZ FUEL CO., INC. & MIDWEST BULK, INC . 703 The Board has reviewed the rulings of the Tral Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations.' 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 Respondents, A. E. Schultz Fuel Co., Inc., and Midwest Bulk, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in General Drivers and Dairy Em- ployees Local Union 563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or in any other labor organization of its employees, by discharging, refusing to rein- state, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening its employees with any action that would result in loss of employment or with other reprisals to discourage member- ship in or activity on behalf of any labor organization. - (c) Promising its employees any benefit for the same purpose. (d) Interrogating or polling its employees in an unlawful manner regarding their knowledge or interest in any labor organization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the ex- tent 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, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Herman Knoll immediate and full reinstatement to 1 In their exceptions , the Respondents allege that after the issuance of the Intermediate Report they offered reinstatement and a certain amount of backpay to the discriminatee, Knoll , and that Knoll declined reinstatement but accepted the backpay offer We find that such matters should more properly be left for determination at the compliance stage. See Coca-Cola Bottling Company of Lou,sveile, Inc, 108 NLRB 490 (footnote 23). 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his former or substantially equivalent position, and make him whole for any loss of earnings suffered, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 2 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to or convenient for a computation of the amount of backpay due under the terms of this Order. (c) Post at their plant in Neenah, Wisconsin, copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by each of the Respondents, be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the refusal-to-bargain allegation of the complaint be dismissed. 2 The Trial Examiner inadvertently failed to state that backpay would run from the date of Knoll's discharge to the date of the offer of reinstatement . This inadvertence is hereby corrected 3In 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 National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in General Drivers and Dairy Employees Local Union 563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discharging any of our em- ployees because of their concerted or union activities, or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with any action that would result in loss of employment or promise them any benefit for the purpose of discouraging membership in or activity on behalf of any labor organization. A. E. SCHULTZ FUEL CO., INC. & MIDWEST BULK, INC. 705 WE WILL NOT interrogate or poll our employees illegally regard- ing their knowledge or interest in any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purposes of collective bargaining, or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Herman Knoll immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority or other rights and privileges previously en- joyed, and we will make him whole for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activ- ity on behalf of any such labor organization. A. E. SCHULTZ FUEL Co., INC., MIDWEST BULK, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Appleton, Wisconsin, on July 6 and 7, 1960, pursuant to due notice and with all parties being represented by counsel . The complaint, issued by the General Counsel for the National Labor Relations Board, herein called the General Counsel and the Board, on June 10, 1960, and based on charges duly filed and served, alleged that Respond- ents have engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5 ) of the Act. In its duly filed answer Respondents denied the commission of any unfair labor practices. ' After the close of 'the hearing the General ' Counsel moved to amend the record 706 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD in certain specific respects . No objection having been received from Respondents, the General Counsel's motion is herein granted. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENTS' BUSINESS Respondent Schultz and Respondent Midwest are, and have been at all times material herein, corporate entities duly organized under, and existing by virtue of, the laws of the State of Wisconsin, and have been and are engaged in the business of the wholesale and retail sales, distribution, and transport of coal and fuel oil with principal offices and place of business at Neenah, Wisconsin. There is no question and I find that both Respondents are operated as a single integrated enterprise. In the course and conduct of their business operations during the calender year 1955 Respondents purchased, transferred, and received, all within the State of Wisconsin, coal and fuel oil and other goods and materials values in excess of $100,000, which goods and materials originated from States other than the State of Wisconsin. During the same period of time Respondents sold and distributed products within the State of Wisconsin, the gross value of which exceeded $800,000, of which goods in excess of $100,000 in value were sold to firms each of which in turn during the same period sold and shipped goods valued in excess of $50,000 outside the State of Wis- consin. I find that Respondents are engaged in and have been at, all times material herein engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' II. THE LABOR ORGANIZATION General Drivers and Dairy Employees Local Union 563, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is and has, at all times material herein, been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This is a typical Board case. Within a few weeks after the start of a campaign to organize Respondent's employees (a majority of whom signed union authorization cards, upon which basis an R petition was filed with the Board and a request for recognition and bargaining was made by the Union to Respondent) the leader of the union movement among the employees was discharged. Two days before the discharge, a meeting of the employees took place attended by representatives of man- agement at which a vote was taken by the employees not to have a union. This in broad outline, together with specific threats and other incidents of interference, restraint, and coercion described in the General Counsel's evidence as having taken place on the part of Respondent against its employees, constitutes the General Counsel's case. The Respondent's evidence, besides specifically denying for the most part any and all acts of unfair labor practices attributed to it by the General Coun- sel's evidence, attempts to establish by its evidence that the discharge of its employee Herman Knoll on April 7, 1960, was due to slack work and for the reason that he refused to accept a transfer from daywork to nightwork as he allegedly was requested to do by Respondent. Interference, Restraint, and Coercion Three people play a part in the General Counsel's evidence regarding his allega- tions of Section 8(a)'(1) violations of the Act by Respondent. These people are Clifton Schultz, president and proprietor of Respondent, Spencer Laurin, second in authority over Respondent's operations and in full command thereof in Schultz' absence, and Richard Natrop, general sales manager for Respondent. In its answer Respondent admits Schultz' supervisory status but "neither admits nor denies" the supervisory status of Laurin and Natrop and puts the General Counsel to his proof. The evidence in my opinion is sufficient to show both the latter to be supervisors or agents of Respondent within the meaning of the Act, thus imputing to the Respondent the consequences of any of its unlawful conduct.2 1 For convenience , I shall hereafter refer to Respondents in the singular 2 Laurin's supervisory status is obvious. In addition to the fact that Natrop apparently could effectively recommend hiring and broke in new employees, the part he played (as will appear below) as management's spokesman in a meeting of the employees, in the presence of and with the tacit approval of Laurin, clearly aligns him with management. See Harrison Sheet Steel Co, 94 NLRB 81, enfd. 194 F. 2d 407 (C.A. 7) ; Grand Central Aircraft Co, Inc., 106 NLRB 358. A. E.,SCHULTZ FUEL CO., INC. & MIDWEST BULK, INC . 707 In this connection the following is shown by the General Counsel's evidence: (1) Martin Rochon testified as to remarks made by Schultz in the garage on or about April 1 to Elmer Hansen in Rochon's presence to the effect that if Hansen "wanted the union, if he wanted to bring the union in, that he could go ahead and bring it in," but that Respondent would cut the hours of work to less than 40. At that time both Hansen and Rochon were working in excess of 40 hours per week. (2) Rochon further testified that on the following day in the garage, Schultz told Martin and two other employees, Clark and Gore, "that if he ever found out who had started the union, tobring the union in, that he would dispose of him or fire him." This comment apparently was made after Clark had told Schultz "that a couple of union guys were at his house the evening before." (3) Rochon further testified that on April 27, while he was working on one of the trucks, Schultz asked Gore, who had put some matches advertising the Union in the trucks; "he said he would like to find out who put them matches in, or who was trying to get that union in." (4) Robert Babcock testified that on or about April 1 Schultz called him into the office and told him that "he had been talking to other employees of the firm and it led to the point where they all pointed their fingers at (Babcock) for starting the . union." Babcock denied being the instigator of the campaign and Schultz said that "he didn't like the idea of a union, he was against it and wouldn't hear of it around there." Schultz further said that "he had in mind putting on leased trucks and pull- ing his trailers" which he advanced as a good way to avoid having to "put up with the union." Schultz further said that the union scale was "out of proportion" and impossible to pay. (5) Babcock also testified about a conversation with Natrop later on the same day. Natrop asked him "about the union." Natrop further men- tioned that "it wouldn't be hard to find a reason to fire anybody and if (they) got the union in there, they would find a reason and eventually get rid of us." (6) Babcock also testified that on the morning of April 27 he was in the office talking to Laurin and asked him for a match. Schultz spoke up and said, "Give him back the rest of the matches that he put in the truck." (7) Later on in the same day, according to Babcock's further testimony, when he was again in the office, Laurin asked him if he had "signed one of those goofy cards." Babcock said he had not. (8) Herman Knoll testified that in the office on April 1 in the presence of Suzy, the office secretary, Laurin asked him what he knew about the Union. When he told Laurin he knew nothing about it, the latter said "that the union was-this thing was getting out of hand and the boss was getting mad about it. If he ever found out the person or persons that started it, out the door he would go." As to (1) above, Schultz testified that he told Hansen in Rochon's presence "that if the union got in I would have no other alternative than to cut it to 40 due to the fact that the coal business was declining as it has been" As to (2) above, while admitting that he may have had a conversation with Clark and Gore on April 2, he denied that he said that if he found out who started the Union he would fire them. When asked if he had had any conversation about union activity on that particular day, his answer was, "I don't recall, Mr. Gill." When he was asked if he had made any inquiries about union activity, his answer was, "I doubt it very much, Mr. Gill, and I don't remember anything about it because I am in the garage and out of the garage continuously all throughout the day and there are so many things said you can't remember everything." There was no denial by Schultz of item (3) above. As for item (4) above, Schultz admitted in his testimony that he called Babcock into the office and "asked him what his feelings were about the union." He denied, however, accusing Babcock of having instigated the union campaign. Although he denied threatening or co- ercing Babcock or promising him anything in this conversation, he did not deny the comments attributed to him about leasing trucks. Moreover, notwithstanding his previous testimony that he had asked Babcock his feelings about the Union, he shortly thereafter testified that he could not recall interrogating any employee about union or concerted activity on that day. As for item (5) above, Natrop could not recall whether he had asked 'Babcock about the Union but denied that he had said it would not be hard to find a reason to fire anybody and that if the Union came in Respondent would do so. As for (6), there was no denial by Schultz that he had made a reference to the matches that he inferred that Babcock had put in the truck. As for (7) above, there was no denial by Laurin that he had asked Babcock whether he had signed one of those "goofy" cards. As for (8), Laurin did not deny asking Knoll what he knew about the Union. When asked if he had said that the union matter was getting out of hand and that the boss would discharge whomever he found had started the Union, his testimony was, "No sir, not that I recall." As can be seen, much of the foregoing testimony of the General Counsel's wit- 614913-62-vol. 132'46 708 .' DECISIONS OF NATIONAL LABOR RELATIONS BOARD -nesses was undenied, and as to that which was denied, many of the denials were made in the context of admitted poor recollection concerning the matters in ques- tion. Accentuating this admitted uncertainty in Schultz' case was his admission that he had interrogated Babcock about the Union and his subsequent testimony that he could not recall interrogating anyone about the Union. In contrast ,to Respondent's indefiniteness and admitted haziness of recollection, the General Counsel's witnesses were precise and articulate. I credit the General Counsel's versions here and find that the following threats and interrogations were coercive within the meaning of Section 8(a)'(1) of the Act: Schultz' threat to Rochon on April 1 to cut hours; to Martin, Goss, and Clark on April 2 to discharge the union instigator; to Babcock on April 1 to use leased trucks to avoid dealing with the Union; Natrop's interroga- tion of Babcock and threat of discharge on April 1; Laurin's interrogation and threat of discharge to Knoll on April 1 and his interrogation of Babcock on April 27; also (in the context of the other violations here) Schultz' comment to Rochon on April 27 about the union matches and his wish to find out who was trying to get the Union in. The April 5 Meeting Martin Rochon testified that on April 5, Richard Natrop told him that they were going to have a meeting that night and asked him to tell each driver to come if he wanted to. In substance the General Counsel's evidence as to what occurred at this meeting as reflected in the testimony of Rochon, Babcock, and Herman Knoll is as follows: All of the drivers except Fred Palmer and Horn were present at the meeting which began around 8 p.m. In addition to the drivers both Natrop and Laurin were present. Natrop called the meeting to order and conducted it. Ac- cording to Rochon's testimony Natrop said that the "reason he called the meeting was that the boss wanted to find out if [they] wanted the Union in"; that they were going to take a vote and that "if not voted in, it was supposed to be dropped that evening." Natrop further said that "if this union deal hadn't come up, Mr. Schultz had a better vacation plan, and a raise in mind for [the employees]." Natrop also said that the Respondent had people with their own tractors "ready to move in" and that Respondent's tractors would be taken off the road if the Union got in. He further pointed out that the talk of more money and a better vacation plan "couldn't be brought out while that union talk was going on"; "that Mr. Schultz didn't like the Union and didnt want any part of it around there. Natrop also indicated that the Union could not do anything for the employees that Schultz would not do for them. He admonished the employees not to forget the Christmas bonus and hams that Schultz gave them and added that if the Union came in Schultz would no longer pay insurance and laundry for coveralls. Finally it was agreed that a vote should be taken. Laurin did not vote nor did Natrop vote for himself; however, he indicated that he was voting for Palmer at the latter's request which he did. The votes were opened and tallied by Knoll and Natrop. The result was seven against the Union and one for the Union. After the election "there was quite a commotion when Herman [Knoll] started voicing his opinion as to what a union was all about. Knoll talked at this time in favor of the Union. It was either during this discussion or during the general discussion that took place before the vote occurred that Knoll had asked several questions and pointed out things that the Union could do for the employees, such as providing 6-paid holidays and eliminating work on Sundays for straight time only. It is clear that of the drivers Knoll took a more active part in the meeting than the others and that this part was patently in favor of the Union. After the discussion, according to Babcock's testimony, Natrop told him that they "could sure tell who was for the Union." According to Laurin's testimony neither he nor Natrop participated in the meet- ing. Nevertheless he was unable to say for sure whether or not Natrop called the meeting to order. According to him the meeting came to order spontaneously. He further claimed that he attended the meeting simply out of curiosity; that he "prob- ably" learned of the meeting when he was asked for permission to use the office. He could not recall who had asked such permission and finally denied that he had been asked, testifying that "they" may have asked someone else . He further claimed that he did not know that Natrop was going to be at the meeting. Yet he also indicated that Natrop's "intentions were not to vote." Schultz denied any prior knowledge of the meeting whatsoever or of taking any part in arranging it. Natrop testified that he did not initiate the April 5 meeting nor was it his idea to hold it. His explanation of how the meeting originated was as follows: I walked out into the garage from the office, which I do on many occasions. And there was a so-called rumble out there again, which there had been many A. E. SCHULTZ FUEL CO., INC . & MIDWEST BULK, INC. 709 of, and again they were arguing pro and con against the Union. There were a number of people at that time drifting back and forth and getting into the conversation. I don't recall the exact people who they were. However, it was brought up at that time that-why don't we get together and settle this thing, why don't we have a meeting and hash it over, get it done, this constant fighting back here, everybody was very unhappy. . . . I stuck my nose in and said, "I think it's a real good idea, why don't we. I will be happy to come down and open up the place if you people want to come down and talk it over." And they accepted it, which I did. Mr. Rochon in the meantime advised every- one that they were going to go ahead with original planof having the meeting, etc. According to Natrop, Rochon "advised" everyone about the meeting but not on Natrop's instructions. He took it upon himself to do so . Natrop admitted opening the meeting explaining that everyone was sitting around "evading the point " talking about everything other than the Union so he said, "Look, we know what we are here for. Why don't we get to it." He then told the employees that he knew what Schultz' feelings were indicating that Schultz did not want the "constant bickering" that had been going on.3 Although he denied making any suggestions about work- ing conditions he admitted having been asked questions by the employees about mat- ters pertaining to the work . He then testified as follows: I said there is one thing I want to impress and one thing I want to get across, that I know Mr. Schultz doesn 't care whether this thing goes union or not, one way or another. But he wants to get it over with, but what are we standing to gain? Are we going to gain anything financially ? I as an individual am not affected by this, but let's consider what the Company has done in the past years. So we went on to discuss some of these things, the improvements have been made in working conditions , annual pay increases that generally take place about the time all this started, bonuses, and so on. When the boys are low in cash, they are never refused, they are always helped out. All those things entered into it, and those were in general the things that were discussed at that meeting. Natrop denied that either he or Laurin suggested taking a vote on the matter. Natrop's description of the details of the vote was as follows: Well, we took a piece of paper and divided -the pieces as equally as we could so it wouldn't be discriminatory towards any one individual , so they all looked ,alike. . Uniform in size, and there were no markings of any kind of this thing, and then they were asked to vote and to put down Yes if they were for the union and No if they were against it. Everyone was instructed, and I did that myself, how to fold the ballot . And they were put back in the hat so you couldn't tell one from the other . And I went on to tell them, I said, "I'd like to have you fellows get this thing ironed out." It wasn 't a healthy condition, and that we would keep it in secrecy as far as management was concerned. So there would be no ill feelings among anyone or anyone concerned. As already indicated, neither he nor Laurin voted for themselves ; but he voted for Fred Palmer who had instructed him to vote against the Union which he did. In addition to the testimony of Natrop and Laurin on this matter , three of the employees were called by and testified on behalf of Respondent. None of them denied that Natrop made any of the statements attributed to him by the General Counsel's witnesses. Their testimony was simply that they heard no such state- ments.4 Moreover, one of these witnesses, George Nelson, testified that he heard -Natrop say that the hours of work would be reduced if the Union got in. He also testified that Natrop said "he was going to have this meeting to settle it and see whether we were going to have it [the Union] or not ." According to Nelson's further testimony Natrop also said that Schultz wanted to know and that was why the meeting was called. Despite Natrop's attempt to portray an air of aloofness and injured innocence about this meeting, it is clear from the contradictions between Respondent's wit- 8 Elsewhere in his testimony Natrop denied stating at the opening of the meeting that the meeting had been called because "the boss" wanted to know whether or not the employees were going to have a union 4 One of Respondent's witnesses , Donald Gore, testified on cross-examination that he did not recall Natrop doing any talking. 710 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'nesses B and the inconsistencies and admissions in Natrop's own testimony 6 that the General Counsel's testimony on this matter must be credited. Accordingly, I find Respondent responsible for holding the meeting and that it coerced and threatened employees therein for engaging in union activities, promised economic benefits if they rejected the Union, and conducted an election among the employees concerning their preference for membership. in the Union all in violation of Section 8(a) (1) of the Act. Discrimination Herman Knoll worked for Respondent from June 1959 to April 7, 1960, when he was discharged. In August, Knoll took it upon himself to get the Union interested in organizing Respondent's drivers. To this end he visited the union office where he apparently made known his purpose to Robert Schlieve, secretary-treasurer of the Union. He next saw Schlieve in February 1960 and about March 1 made his home available for a union meeting at which Schlieve and three of Respondent's other drivers, Rochon, Babcock, and Hansen, were present. Late in March he attended another union meeting. Between the two meetings he and other supporters of the Union carried on their campaign among the employees. The singular prounion part played by Knoll at the company-sponsored meeting on April 5 and Respond- ent's cognizance thereof has been noted. Significantly, 2 days later Knoll was discharged. According to Schultz' testimony, Knoll had been asked two or three times in the 2 or 3 weeks prior to his discharge to work nights, Receiving no reply from him,7 Respondent interpreted his silence as a refusal to accede to its request and discharged him for that reason and for the additional reason that work was getting slack. According to Knoll's testimony when he asked Laurin why he was being let go the latter referred him to Schultz. In the office Knoll asked Schultz the reason for his termination and was told he "had refused to go on nights and this work was getting slack.. " Knoll protested that since he had more seniority than Palmer and Horn he "didn't see why (he) shouldn't go on nights and let those guys get laid off." Schultz went back to his newspaper and Knoll walked out. According to Schultz' version, besides denying that he ever "opened" a newspaper in his office from the time he started in business in 1935, he claimed to have given Knoll the opportunity then nand there to take the night job but that Knoll just turned around and walked out. I credit Knoll here. When he started with Respondent, Knoll was assigned to night work which he performed until the first week in January when he was offered daywork and accepted it. Late in January he asked Laurin if he could go back on the night shift. Laurin told him he would take the matter up with Schultz and let him know. According to Knoll's testimony he heard nothing further from Laurin about it and he denied that Laurin had later asked him to work nights. Knoll further testified that the only thing he had heard about nightwork after his request to go back to it was his receiving a telephone call from Suzy, the office girl, on the Friday before his discharge in which she asked if he was still interested in nightwork. To his reply that he was not "exactly" interested at that time, she said that if he was interested he "should let them know." According to Laurin's testimony, besides having asked or told Knoll on March 23 or 24 to work nights, he repeated the request on April 5. On both occasions, Knoll indicated that he would "let (Respondent) know." Laurin conveyed Knoll's answers to Schultz who (on the April 5 occasion) told Laurin to let Knoll finish out the next 2 days and then release him. Laurin admitted that from this point, no attempt was made to ascertain what if any decision had been made by Knoll and that the next step was when he agave Knoll his check and told him he was through because of his refusal to work nights. Notwithstanding the decision • to wait 2 days before dis- 5 For instance in conflict with Natrop 's testimony was Laurin 's testimony that Natrop took no part in the meeting; and Nelson's testimony that the meeting had been called because Schultz wanted to know whether the employees were going to have a union. For Instance , Natrop's denial about making any suggestions about working conditions and his subsequent testimony to the contrary. 7 According to Laurin's testimony , when he told Knoll he would have to work nights about March 23 or 24, Knoll said he would "let [Respondent ] know." According to Laurin's further testimony, one of the night drivers, Joe Horn, had indicated that he was leaving sometime around April 1. This plus the fact that work was getting a little slack and some of the industrial accounts were insisting on nighttime delivery necessitated putting one of the daymen on nights Knoll had the least seniority of the daytime drivers and night driving was assigned on the basis of seniority. A. E. SCHULTZ FUEL CO., INC. & MIDWEST BULK, INC. 711 charging Knoll, according to Laurin's further testimony, although Respondent had on file a current list of job applicants, it was not until after Knoll was discharged, or around 4:45 that afternoon, that Knoll's replacement, one Wisnefske, "was selected to be the one to be interviewed and also tried out" for work that very night .8 Analysis and Conclusions Analysis of the foregoing evidence in the light of Respondent's various acts of interference with the rights guaranteed its employees in the Act with particular refer- ence to the repeated threats that if Respondent found out who started he Union he would be discharged and culminating in the April 5 meeting and the unique stand taken therein by Knoll convinces me that Knoll was discharged because of his union activity and not for "refusing" to work nights as contended by Respondent. I so find. It may be that Respondent, at the time of Knoll's discharge, was anticipating the resignation of one of the night drivers and that Knoll (as evidenced by his request to Laurin in January to go back on nightwork and his subsequent indication to Suzy, the office girl, that he was then no longer "exactly" interested) was somewhat equivo- cal about his feelings in the matter of nightwork.9 These factors, I believe, have been seized upon by Respondent as a convenient and fairly ,plausible explanation to justify Knoll's discharge and take it out of the purview of Section 8(a) (3) of the Act. Laurin's unreliability as a witness was demonstrated among other ways in his testimony that neither he nor Natrop took any part in the April 5 meeting when Natrop's testimony (in agreement with the General Counsel's version) showed the contrary. Accordingly, I am inclined to believe that the only conversation Knoll had with Laurin about nightwork was his own request in January to Laurin and the latter's promise to see the boss about it.19 I credit Knoll's version of the nightwork matter in toto. Even if Respondent's evidence about Knoll's supposed requests to work nights had not been rejected, there are so many inconsistencies and implausibilities in Respondent's story that I would still be constrained to find that the nightwork matter had been utilized by Respondent as a pretext to mask Respondent's real antiunion motive for discharging Knoll. For instance, in addition to the numerous threats to discharge the one responsible for bringing in the Union and the other 8(a)(1) con- duct of Respondent, it seems to me highly unlikely that Respondent would wait until the last minute to "select for interview" and try out (as Respondent claims) a replace- ment for Knoll when it was decided 2 days earlier to replace him, and if it could be said that the purpose for so waiting was to see what Knoll's decision was about nightwork, the question then is (as it would be in any event) why was Knoll dis- charged without being given a chance to voice his decision or without a demand being made for that decision? Having found that no request was made of Knoll about work- ing nights except Suzy's, it is clear to me that Respondent's precipitous discharge of Knoll so soon after the revealing meeting of April 5 was based on his prounion activ- ity and not for the reason advanced by Respondent. I so find. The Refusal To Bargain On April 4, the Union wrote Respondent in pertinent part as follows: This is to advise that this Local Union represents a majority of the employees of the above-subject companies for the purposes of collective bargaining in the matters of wages, hours of work and general working conditions." 8 In this connection, a great deal of testimony was concerned with whether or not Knoll had seen Wisnefske and Natrop in one of Respondent 's trucks the day before Knoll's discharge. I deem it unnecessary to resolve the conflict or to make any finding on this matter. 9 Laurin admitted that Knoll asked him in January to be put back on nightwork. Since Suzy did not testify, Knoll's testimony about her call stands uncontradicted on the record. There being no showing that Suzy was unavailable to testify, Respondent's failure to produce her is grounds for an inference that her testimony would not conflict with Knoll's. Accordingly, I credit Knoll. io As indicated, Laurin admitted that Knoll had asked him in January to be put back on nightwork and that he had told Knoll he would look into it. But he was unable to recall whether he conveyed any information to Knoll "later on . . . about his request." "At this time there were nine employees in the unit , five of whom had signed cards authorizing the Union to represent them as their collective -bargaining agent. However, one of the signers , Joe Horn, quit his employment with Respondent on April 8. 712 . DECISIONS OF NATIONAL- LABOR RELATIONS BOARD, A petition for a representation election has been filed with the Thirteenth Region of the National Labor Relations Board by the undersigned. If you would care to meet and discuss a stipulation for the conduct of such election, please advise. Further, if you would agree to meet and accept our proof of majority, we would be willing to enter into negotiations for a labor contract. - 1. According to the testimony of Union Organizer Donald Tilkins, on April 6 while Schlieve was absent, Schultz called the Union 12 and said, "I want to see proof of this majority that you claim you have with the employees of the Company." Tilkins replied, "Mr. Schultz, this is purely an act of secrecy. We never show these cards to anybody, but we can substantiate our proof by a third party, by either a minister or a priest." Tilkins was then asked where Schheve was and upon being informed that he was not present, the conversation ended with Tilkins promising to leave a message for Schlieve upon his return to call Schultz. On April 8 Respondent received a copy of the R petition which had been filed with the Board by the Union on April 6. The petition described the bargaining unit as "all employees employed by the employer including truckdrivers, mechanics, and yard workers and excluding office and clerical employees, guards, and supervisors as defined in the Act." 13 The petition also indicated that no demand for recognition had been made of the employees by the Union.14 According to Schlieve's undenied and credited testimony, returning to his office on the morning of April 8 he found the message to call Schultz and did so telling Schultz he was returning his call. Schultz said, "I didn't call you." Schlieve replied that if Schultz had not called him then they "certainly (had) nothing to talk about." Nevertheless, Schultz said he wanted "to see those cards." Schlieve replied that he "would not under any circumstances show him ,the signed cards" but was "willing to meet with him," prove the majority, "and enter into collective bargaining for a con- tract for these people." Schultz asked when they could meet. Schlieve indicated any time that was convenient to Schultz. The latter then, because he was going to be out of town, suggested that Schlieve call him the following week. Schlieve did not call until April 13. Then, after discussing Knoll's discharge m which Schlieve said he thought it was strange to hire a replacement if work was so slow as Respondent con- tended, Schlieve said, "Well, Mr. Schultz, I'd like to prove my majority and bargain an agreement." Schultz said, "Well, the National Board has a meeting set up for the 21st, so to hell with it. We will jet them take care of it." On April 21, the Union withdrew its R petition and filed charges with the Board alleging certain 8 (a)( I) conduct and the discharge of Knoll, in violation of Section 8 (a) (3) of the Act. The filing of the charges and the withdrawal of the R petition occurred on the very day that a meeting had been arranged to discuss the details of a consent election which the Respondent apparently had agreed to. On May 27, the Union wrote Respondent as follows: The purpose of this letter is to reaffirm and reiterate our demand for negotiations on behalf of your employees which was previously made on April 6, 1960. The employees whom we represent are employed as truckdrivers, mechanics and yard workers at the A. E. Schultz Fuel Company and Mid-West Bulk, Inc. We do not seek to represent any office or clerical employees, guards, or supervisors as defined in the National Labor Relations Act. We suggest that the bargaining meeting be held in our office on the third of June 1960, Friday, at 10 a.m., if time, place, or date or inconvenient for you, please advise us and we will work out mutually acceptable arrangements. In reply to this letter Respondent's counsel wrote the Union on June 3, as follows: This will acknowledge your letter to Mr. C. A. Schultz, dated May 31, 1960, in which you requested a meeting for purposes of collective bargaining. Under date of April 6, 1960, you petitioned the N.L.R.B. for representation election. On April 21, 1960, an N.L.R.B. conference was scheduled for the purpose of working out the detail of a consent election to which we agreed. "Laurin testified that it was he who called the Union on this occasion and not Schultz. It is immaterial who called since there was no denial by Laurin of Tilkins' testimony as to the substance of the conversation. I credit Tilkins. 18 It was stipulated and I find that this is an appropriate unit within the meaning of the Act 14 If I understand Schlieve's testimony correctly (which was not clear) he apparently had instructed the attorneys to file the R petition before he wrote his letter of April 4 to Respondent. A. E. SCHULTZ FUEL CO., INC. & MIDWEST BULK, INC. 713 On April 21 , we were notified by the N.L.R.B . that you had filed unfair labor practices against the Company and that you had withdrawn the petition for an election. Under date of May 2 , 1960, you amended the charges to include additional unfair labor practices . The notice of the amendment showed these to be the first amendment and we therefore presume you have others in mind. In view of the foregoing we decline to engage in collective bargaining with Local 563 for the units requested . At no time, however, have we ever objected to a petition for election and at no time have we ever refused or would refuse to bargain with any labor organization certified by the N .L.R.B. as the collective bargaining representative of the employees. Conclusions Admitting that there may be some question as to the adequacy of the demand for recognition in the Union's letter of April 4, the General Counsel nevertheless contends that it was a valid demand particularly "when read in tandem" with the R petition. I disagree. In my opinion the letter made no demand for recognition but gave Respondent the choice of going to an election either by consent or the more formal procedure or, if it wished, to accept the Union's claim of majority and to recognize it on that basis. There is some indication in the record as a whole that the Union may have itself placed this interpretation on its April 4 letter when in its May 27 letter it referred to its original request for recognition as having been "previously made on April 6, 1960." 15 It was on April 6 that the R petition was filed. The General Counsel contends, "that a Representation Petition lawfully constitutes a demand for recognition." Even if true (which it is not) in this particular case the fact the R petition in the answer to question 7a therein indicated that no demand for recognition had been made would take it out of the operation of such a rule. Ob- viously, any question that Respondent might have had up to that point as to just what the Union's letter of April 4 means vis-a-vis the matter of recognition was quite clearly answered in 7a of the R petition.is Furthermore, shortly after the filing of the R petition, specifically on April 8, there is further indication that the Union may not have considered that the R petition, together with its April 4 letter constituted a demand for recognition and bargaining. I refer to Schlieve 's statement over the telephone to Schultz (when he had told Schlieve that he had not called him) to the effect that if Schultz had not called him, they "certainly (had) nothing to talk about ." I find it difficult to understand why Schlieve, if he had an outstanding and unanswered demand for bargaining, would have made such a statement to Schultz at that time. In any event, what was said in the remainder of the conversation , according to Schlieve's undenied and credited testimony, clearly absolves Respondent of any refusal to bargain up to and through April 8. When Schlieve indicated that he was "willing" to meet with Schultz , prove his majority, "and enter into collective bar- gaining," it was Schultz who asked when they could meet and left it up to Schlieve to call him the following week about a meeting. By the time Schlieve called, Horn had quit and the Union no longer had a majority. Thus Schlieve 's demands of April 13 and May 27 for recognition placed no legal obligations in that respect on Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Respondent's activities set forth in section III, above , occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and- tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ss The evidence shows that Respondent received the April 4 letter on April 6. Never- theless , in view of subsequent events , it is possible that the Union in referring to its de- mand as having been made on the 6th had in mind the letter only In the context of the R petition. - le That this would be the result for Respondent Is true regardless of the validity of Schlieve's explanation as to why the petition , dated 2 days after the date of the letter of demand, indicated that no demand had been made 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that Respondent discriminated in regard to the hire and tenure of employment of Herman Knoll by discharging him on April 7, 1960, the Trial Ex- aminer will recommend that the Respondent offer him immediate and full reinstate- ment to his former or substantially equivalent position , without prejudices to his seniority or other rights and privileges , and make him whole for any loss of pay he may have suffered by reason of said discrimination by payment to him of a sum of money equal to that which he would have earned as wages from the date of the offer of reinstatement less his net earnings during such period , in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. Since the violations of the Act which the Respondent committed are related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is reasonably to be anticipated from its past conduct , the preventive purpose of the Act may be thwarted unless the recommendations are coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaran- teed employees by the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Herman Knoll, thereby discouraging membership in the Union , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent 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 within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not refused to bargain with the Union in violation of Section 8 (a) (5) of the Act. [Recommendations omitted from publication.] Northern Virginia Steel Corporation and Shopmen's Local Union No. 486 of the International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO. Case No. 5-CA-1587. August 4, 1961 DECISION AND ORDER On October 10, 1960, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed a motion to remand the proceeding to the Trial Examiner,' and the General Counsel and the Respondent filed exceptions to the Inter- mediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at i On December 7, 1960, the Board's Executive Secretary notified the Respondent by letter that its motion would be considered by the Board along with the entire record in the proceeding. 132 NLRB No. 50.