Standard Trucking Co.

STANDARD TRUCKING COMPANY 371 Catholics, and Negroes. He wanted to expose USEA to Goldberg and Weinstein. Sole also denied that anyone but Williams of the Carpenters Union had said anything about men walking off the job. Conclusions The testimony of Goldberg and Weinstein was inconsistent in many respects and I am not persuaded from such testimony that either Fluck or Vernaglia threatened to cause a work stoppage at the Empire project if Atlas was to continue to do the roofing work. Goldberg was not sure of exactly what Flock said during the several conversations, but seems only to have the impression that Fluck said something about pulling men off the job. Weinstein, conceding that neither Flock nor Vernaglia made any threats to cause a cessation of work on the project, nevertheless stated he also had the impression that unless Atlas was removed there would be a work stoppage. Such impressions on the parts of both Goldberg and Weinstein may have come about because of what Carpenters Union Business Agent Williams said. The record, however, is not altogeter clear that Williams made such a threat, but even if he did, it is not attributable to the Respondent Union. While I am convinced from the whole record that the object of Fluck as well as the business agents of the other unions was to get Empire to break its contract with Atlas and discontinue the use of Atlas' roofers, I am also convinced from the testi- mony of Fluck, Vernaglia, Goldstein, and Sole, which I credit, that they attempted to accomplish their objective solely by application of moral persuasion and not by the use of threats, coercion, or restraint. The conduct of the Respondent Union and its agents found above is not the sort proscribed by Section 8(b)(4)(ii)(B) of the Act. The pervading sense of this section of the Act relates to certain activities committed in a context of disputes between employers and labor organizations having to do with the employment of persons because of their affiliation or lack of affiliation in unions, or to promote the interests of labor organizations. What Fluck and the other business agents were seeking to accomplish with Empire was not the employment or unionists over non- unionists or the enhancement of the prestige and welfare of their respective labor organizations, but rather their concern with the threat to social institutions and the democratic process posed by the USEA. They sought by their persuasion to con- vince Goldberg and Weinstein of that peril. Such means to get Empire to cease doing business with Atlas is not in violation of Section 8(b)(4)(ii)(B) of the Act and I so find. Accordingly I will recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of Empire Development Corporation constitute and affect trade, traffic, and commerce among the several States within the meaning of Section 2(6) and 7 of the Act. 2. United Slate, Tile, and Composition Roofers, Damp and Waterproof Workers Association, AFL-CIO, Local Union No. 57, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. [Recommendations omitted from publication.] Standard Trucking Company and James Albert Pennington, William Albert Parton, and Joseph E. McJunkin. Cases Nos. 11-CA-1691-1, 11-CA-1691-2, and 11-CA-1691-3. November 17, 1961 DECISION AND ORDER On April 25, 1961, Trial Examiner William J. Brown 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 134 NLRB No. 39. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that the allegations of the complaint to such extent be dismissed. Thereafter, only the Respondent filed exceptions to the Intermediate Report. 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, Fanning, and Brown]. 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 Respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 1. The Trial Examiner found, and we agree, that the Respondent discriminatorily discharged Pennington. Terminal Manager Case had been instructed to have a talk with Pennington on the operation of his assigned equipment. Instead Case discharged him. For such drastic departure from the instructions of his superior, Case merely advanced the assertion that in his opinion Pennington was "appar- ently" riding the clutch. This was not one of the three specific offenses for which under Respondent's stated rules employees were subject to summary discharge. In contrast to the finality of the action taken in Pennington's situation without any investigation to establish the cause or affix the blame, if any, Respondent did not discharge another em- ployee charged with breach of one of the major offenses listed by it as cause for discharge because after investigation it concluded it could not affirmatively prove that the employee involved had violated the rule. Nor, with respect to Pennington, was there any new occurrence involving the clutch problem which was related in that to Case's deci- sion to discharge him other than the instruction to talk to him about the proper operation of the vehicle. The discharge was, however, directly related in time to the union activity and occurred in the con- text of other unlawful antiunion conduct engaged in by Respondent. Thus, the group of employees met with and joined the Union on Saturday, August 27,1960, and the Union made its demand for recog- nition on August 29, the same day Case interrogated employee MacAbee with respect to union membership and which employees had attended the Saturday meeting. The Union filed its petition on August 30 and Pennington was discharged on August 31, 1960. Respondent asserts, however, and our dissenting colleague agrees, that the record evidence fails to establish Respondent's knowledge or suspicion of Pennington's union activity. We agree with the Trial Examiner that Respondent gained such knowledge through Case's STANDARD TRUCKING COMPANY 373 interrogation of MacAbee. Thus, Case asked MacAbee to name the employees who had attended the union meeting and MacAbee replied that he could name those who had not attended, and proceeded to name six. Both MacAbee and Pennington attended the meeting and there is no contention or evidence that Pennington's name was among the six listed by MacAbee. To the testimony quoted by the dissent should be added the testi- mony immediately following to the effect that although MacAbee could not testify that Case was writing down the names as they were given by him, when Case finished writing MacAbee saw him then count the names he had written down on the pad. Case then asked MacAbee who the leader was, apparently referring to the group which had attended the meeting. When MacAbee did not answer, he asked again. MacAbee, obviously reluctant to identify the leader, then replied, "Mr. Case, we all went." From the foregoing it is clear that Case was making a list of em- ployees for the purpose of identifying and determining those who had engaged in union activity. It is immaterial to the ultimate value of the information whether it was gained by process of elimination as MacAbee chose to give it rather than by the more direct but longer process of attempting to name all the employees who were present at the union meeting. The dissent places significance upon the absence of a showing that MacAbee's recollection, or his recital to Case, was complete and ac- curate. We do not agree. MacAbee told Case, "I can tell you who wasn't at the meeting." If he had any doubt as to the accuracy or completeness of his memory, there is no assertion that he so indicated to Case, nor is there any indication that Case questioned the complete- ness or accuracy at any time. It is sufficient that Respondent relied upon MacAbee's information as accurately identifying those employees who were interested in or engaging in union activity. Case freely admitted that his information that another employee, McJunkin, had "switched fences" and was for the Union was based upon his conversa- tion with MacAbee. MacAbee testified without contradiction, that this was the only conversation regarding the union activity that he had with Case or any company official. For the above reasons as well as those fully expressed by the Trial Examiner in his Intermediate Report, we find, as did the Trial Ex- aminer, that by the discharge of Pennington, the Respondent dis- criminated against him in violation of Section 8(a) (3) of the Act. 2. The Trial Examiner found that Parton was discharged for his union activities rather than for interfering with his own or other employees' work as asserted by the Respondent by union solicitation on worktime in violation of Respondent's no-solicitation rule. Our dissenting colleague, however, considers this case as one in which 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent discharged Parton upon learning of his violation of the no-solicitation rule, which violation the Trial Examiner found to be .de minimis. We agree with the dissenting opinion that discharge ,of an employee for violating a valid rule is not discriminatory and that it is not material that the breach occurred in only one instance. How- ,ever, as we view it, this is not what is involved here. Nor is it, in our -opinion, an accurate description of the Trial Examiner's view. In cases such as this where an employer has clearly demonstrated antiunion animus, has knowledge of an employee's union activity, and assigns as a reason for his discharge one which could constitute good ,cause, we are concerned solely with ascertaining the motive for the discharge. In so doing we must determine on the evidence before us and all the circumstances of the entire case whether the reason given for the discharge was the real reason or whether it was merely a pretext. The so-called no-solicitation rule involved provided : No person will be allowed to carry on union organizing activities on the job. Anybody who does so and do [sic] thereby neglect' his own work or interferes with the work of others will be subject to discharge. It was stipulated that under this rule union solicitation was permis- sible during soft drink "breaks" and "slack work" periods. Parton testified that he engaged in his union solicitation during these "breaks" and "slack work" periods, and the Trial Examiner credited his testi- mony in this respect. As indicated by the Trial Examiner, Case testi- fied that he received reports from certain specified employees of Parton's solicitation, but did not bother to investigate to ascertain their accuracy. It is in this context, as we interpret the Intermediate Report, that the Trial Examiner, having credited Parton's denial of untimely solicitation of other employees including those named by Respondent, credited testimony of Garrett indicating that Parton may have in fact violated the rule in that one instance, which he labels de minimis. However, as noted by the Trial Examiner, Garrett was not among the employees referred to by Case. Garrett's testimony cannot therefore have any bearing upon Respondent's knowledge or motive at the time of discharge. Contrary to the dissenting opinion, it is clear that Parton was not discharged when Respondent learned that the rule had been breached. Indeed, Case's own testimony makes it manifest that Respondent did not know of any violation by Parton when he effected the discharge. Thus, he assertedly relied upon reports which the Trial Examiner had concluded were unfounded and not upon the Garrett incident of which he had no knowledge. It is also clear from his testimony that Case did not discharge Parton for violation of the rule. The most that STANDARD TRUCKING COMPANY 375 could be said is that he claims to have discharged Parton for reports of alleged violations, reports which he made no effort to verify. In admitting that he made no effort to ascertain whether Parton's union solicitation had prevented any of the employees who allegedly reported such solicitation from performing or completing their work, Case was asked : Q. Do I take your testimony to mean that because he was talk- ing to them about the union, that did not have anything to do with it, just the interfering with the work? A. It was soliciting union members that caused the interference. The rule itself imports the requirement of detrimental work per- formance resulting from such forbidden solicitation before the offender would be subject to discharge. Yet, by his testimony Case clearly indicates his interpretation and application to be the subject matter per se-union solicitation-and not the effect upon employees' ability to perform their work. This is in complete contradiction to the import of the stipulation as to when such solicitation was permissi- ble under the rule. Moreover, the rule requires a breach thereof for which the employee is subject to discharge, not merely a report of a breach. From the foregoing it becomes clear that Respondent discharged Parton for his union activity and union solicitation, and that in so doing Case attempted to clothe this unlawful act in legality by a misinterpretation and misapplication of a valid no-solicitation rule. On the record as a whole, we can find no warrant for reversing the Trial Examiner's credibility findings and his conclusion that Re- spondent unlawfully discharged Parton for his union activity. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Standard Truck- ing Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the Union by discharging em- ployees or otherwise discriminating against them in regard to hire or tenure or any term or condition of employment. (b) Interrogating employees concerning their membership in the Union, directing employees to supply information to be used as a basis for determining union membership, or threatening employees that it will never negotiate or contract with the Union. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist the above-named or any other union, to bargain col- 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer James A. Pennington and William A. Parton immediate and full reinstatement to their former or substantially equivalent positions, without prejudice, and make them whole for any loss of earning suffered by reason of the discrimination against them in a manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its terminal in Greenville, South Carolina, copies of the notice attached hereto marked "Appendix." 1 Copies of said no- tice, to be furnished by the Regional Director for the Eleventh Region, shall, after being signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eleventh Region, in writ- ing, within 10 days from the date of receipt of this Order, what steps it has taken to comply herewith. MEMBER RODGERS , dissenting in part : Unlike my colleagues, I would not find that either Pennington or Parton was discriminatorily discharged. As to Pennington, there is no evidence in the record which would support a finding that the Respondent knew that Pennington was a member of the Union or participated in any union activity. The only evidence bearing on the subject whatever is the testimony of employee MacAbee. According to MacAbee, he was called into Case's office and the following transpired : .... He (Case) said, "I have heard that just about everybody up here has signed a union card," and of course I nodded my head IIn 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." STANDARD TRUCKING COMPANY 377 yes, I didn't say anything, and he said, "could you tell me who was at that meeting Saturday ?" and I said, "I can tell you who wasn't at the meeting," so I began to name the ones that wasn't there, and he started writing, and I couldn't say that he was, writing down the names, he was writing as I was calling out the ones that weren't there. Q. And did you call out any names? A. Yes, sir, I called all of the names that I could remember that wasn't there. Based solely on the above-quoted testimony of MacAbee, the Trial Examiner found, and my colleagues are agreeing, that Case ascer- tained "by interrogation of other employees the identity of the union members, which would presumably produce knowledge of the union membership of Pennington who attended the union meeting of Au- gust 27 and signed a union card." MacAbee's testimony by itself is not, in my opinion, a sound basis for finding that Respondent knew that Pennington was a union member. Significantly MacAbee did not recite to Case the names of those who attended the Union meeting on August 27. All MacAbee did was to recite the "names that I could remember that wasn't there." There is no showing that MacAbee's recollection was complete or accurate, that his-recital thereof to Case was complete or accurate, or that Pennington was in any way singled out or identified as a union member. In short, I refuse to predicate a violation of the Act upon such a tenuous "man-who-wasn't-there" hypothesis. Over and above the General Counsel's failure to show that the Respondent had any knowledge of Pennington's union adherence, the record clearly establishes that Pennington was in fact discharged for cause. Throughout 1960, tractor No. 98 was used almost exclusively by Pennington. The employee who had previously operated this tractor for almost a year regarded it, as the Trial Examiner found, as being in fairly good shape. Yet during the period of Pennington's use of this tractor, it was necessary to repair, adjust, or replace the clutch nine times, to replace or repair the drive line five times, and to replace the drive line joints once. Also during this same period, the Respond- ent had to replace the engine on this tractor and this included the installing of a new clutch. On August 12, 1960, the Respondent had to replace the entire clutch with pressure plates and bearings. Just 12 days later, the Respondent learned that the clutch was again worn out and would have to be replaced. It was at this point that the Respondent discharged Pennington. I think it was entirely reason- able for the Respondent to have concluded that Pennington was "riding the clutch," thereby burning out a number of clutches. Such 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD improper use of the Respondent's equipment which necessitated costly repairs clearly. warranted Penningtons' termination. Accordingly, I would find that Pennington was discharged for cause and not for union activities. As to Parton, the record shows that he was discharged on September 12 for violation of a company rule prohibiting union solicitation. The Trial Examiner found, and the record supports the finding that, be- tween September 5 and 10, Respondent posted on its bulletin board a notice announcing a no-solicitation rule, the violation of which could be ground for discharge. During the same period, each em- ployee, including Parton, received a letter that called attention to the rule. Parton admitted that at the time of his discharge the notice had been posted on the bulletin board for 7 to 9 days, and that he had read it and was familiar with its contents. The validity of Respond- ent's no-solicitation rule is not in issue. The evidence shows, more- over, that Parton solicited certain employees on worktime in violation of the rule. The Trial Examiner found, and my colleagues are finding, that Respondent had a promulgated rule which was violated to some degree by Parton but that it has not been shown that any violations were other than de minimis; and that Parton was discharged for union activities "rather than for interfering with his own or other em- ployees' work." I do not understand why Parton's transgressions of Respondent's no-solicitation rule are regarded as de minimis. No explanation whatever has been given by the Trial Examiner, and the explanation of my colleagues is far from convincing. I see nothing in the case to indicate that Respondent either misinterpreted or misapplied its valid no-solicitation rule, as asserted by my colleagues. Indeed, the record does not show any basis for reaching such a conclusion. What is clear is that Parton violated the promulgated rule, of which he was aware, and that he was discharged when Respondent learned that the rule had been breached. Discharge for violation of the rule had been an announced possibility. That the possibility actually came to pass does not, without more, repair the deficiency in the General Counsel's proof. Accordingly, upon the foregoing facts, I would find that Parton was discharged for violating the rule and his discharge is not in violation of Section 8(a) (3) of the Act. 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, as amended, we hereby notify our employees that : ' STANDARD TRUCKING COMPANY 379, WE WILL NOT discourage membership in Local Union No. 55, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, by discharging employees or otherwise discriminating against them for activities on behalf of the above-named or any other union. WE WILL NOT interrogate employees concerning their activ- ities on behalf of the Union, nor will we instruct employees to furnish us information concerning the names of employees who are members of the Union, nor will we in any other manner inter- fere with, restrain, or coerce our employees in the exercise of their rights of self-organization. WE WILL offer James A. Pennington and William A. Parton immediate and full reinstatement to their former or substantially equivalent positions, without prejudice, and make them whole for any loss of pay suffered as the result of discrimination against them. All employees are free to become, remain, or refrain from becoming or remaining members of the Union, or any other labor organization. STANDARD 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 STATEMENT OF THE CASE Upon charges filed by the above-indicated individuals, the General Counsel of the National Labor Relations Board by the Regional Director for the Eleventh Region, issued the consolidated complaint in this cause . It alleges that the above- indicated Respondent engaged in unfair labor practices in violation of Section 8 (a) (1) and (3 ) of the National Labor Relations Act as amended, hereinafter called the Act. Respondent's answer admits the jurisdictional allegations of the complaint, but denies commission of unfair labor practices. At the hearing the above-indicated labor organization was allowed to intervene.' In the course of the hearing the Trial Examiner granted the General Counsel's motion to amend the complaint by adding an additional allegation of violation of Section 8 (a)(1); the Trial Examiner denied, for failure to state a cause of action, General Counsel's motion to amend the complaint by adding as an additional alleged violation of Section 8(a)(1), the charge that Respondent promised pay increases to those employees who had been loyal to it.2 The hearing herein was held before the duly designated Trial Examiner at Green- ville, South Carolina, on January 4 and 5, 1961. The General Counsel, Respond- ent, and Intervenor were represented and were afforded full opportunity to intro- duce evidence, to examine and cross-examine witnesses, and to participate fully in 1 Respondent's objection to a statement on the record as to the reason why the charges herein were not filed by the Union was sustained by the Trial Examiner. 2 Respondent opposed General Counsel's motion to amend the complaint in both par- ticulars ; I regard his motion as a denial of the allegations contained in the amendment to the complaint. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the proceedings . At the close of the hearing the parties waived oral argument but reserved the right to file briefs; briefs were, however, not filed. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and I find that Respondent is a North Carolina corporation, engaged in the interstate transportation of freight by motor vehicle under a franchise granted by the Interstate Commerce Commission. Re- spondent's principal office is at Charlotte, North Carolina, and one of its principal terminals is located at Greenville, South Carolina; only the Greenville terminal is involved in the instant proceeding. The complaint further alleges, the answer admits, and I find that during the 12 months preceding the issuance of the complaint, a representative period, Respondent's freight transportation in interstate commerce produced revenues in excess of $100,000, and that Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. I find that it would effectuate the policies of the Act to assert jurisdiction herein. If. THE LABOR ORGANIZATION INVOLVED Local Union No. 55, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, hereinafter called the Union, is a labor or- ganization within Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. General introductory matters Respondent's headquarters are at Charlotte, North Carolina, where its principal executives, President T. E. Hemby, Jr., and Vice President Clyde Hemby, have their offices. Clyde Hemby has responsibility for operations and is in daily contact with the managers of the Company's nine terminals. Herman Case is manager of the Greenville terminal and Ray Smith is dispatching and warehouse foreman there. The Union participated unsuccessfully in an election in January 1959 and union activity was renewed on or about August 27, 1960,3 among the 21 drivers and helpers of the Greenville terminal. On August 29 the Union demanded recognition and on August 30 it filed a representation petition; an election was held on November 22 in which the Union was unsuccessful. _ The alleged violations of the Act occurred in the period between the renewal of union activity and the conduct of the 1960 election. The unfair labor practices alleged include interrogations and threats on the part of Terminal Manager Case and Vice President Clyde Hemby in violation of Section 8(a)(1) of the Act and the discriminatory discharge of three employees , Pennington, McJunkin , and Parton in violation of Section 8(a) (3) of the Act. B. Interference, restraint, and coercion 1. Interrogation of employees concerning union membership and activities It is alleged in the complaint that Terminal Manager Case, on or about August 29, and Vice President Clyde Hemby, on or about September 6, interrogated em- ployees concerning union membership in or about the Greenville terminal . To sus- tain the allegations of the complaint in this regard General Counsel called Theron Rainey, William Parton, and Billy MacAbee. It appears that Rainey, who was and still is a driver for the Respondent, was called into Case's office early on Monday morning, August 29, and asked by Case if he had signed a union card . Respondent's salesman, Woodward, and Foreman Ray Smith were, according to Rainey, in Case's office at that time. Shortly thereafter, according to the testimony of Parton, Case called him in, Woodward still being present in the office, and asked Parton whether he had signed. Upon Parton's state- ment that he would refuse to answer except in the presence of a witness of his own choosing, Rainey was asked by Parton to accompany him into Case's office to witness the questioning. Both Parton and Rainey testified that Case put the ques- tion to Parton as to whether he had signed a card. Thereafter MacAbee, who worked for the Company as a driver until sometime 3 Dates are in 1960 except where otherwise indicated. STANDARD TRUCKING COMPANY 381 in September when he quit to accept employment with another carrier, was called, according to his credible testimony , into Case's office and asked as to the names of the employees who attended the union meeting and as to the identity of the leader of the Union. Woodward was not called as a witness by Respondent ; Ray Smith, called as a witness by Respondent, did not deny the foregoing conversations between Case and employees at the terminal on the morning of August 29; Herman Case did not deny the interrogation attributed to him and conceded that on Monday morning, Au- gust 29, he was aware of union activity. The evidence thus plainly indicates and I find that on August 29 Case interro- gated employees concerning union membership and activities. There do not appear to be circumstances present in the instant case which would justify such inquiry and I find that Respondent thereby violated Section 8(a) (1) of the Act. Cf. Blue Flash Express, Inc., 109 NLRB 591. The allegations of the complaint to the effect that Vice President Clyde Hemby engaged in interrogation in or about the Greenville terminal on or about September 6, 1960, are unsupported by evidence and I shall recommend that they be dismissed. 2. The impression of surveillance The complaint alleges and the answer denies that Case on or about August 29 gave employees the impression that Respondent was engaged in surveillance by informing them that it knew of those who had attended the union meeting. It appears from the credible testimony of witness MacAbee, not controverted by that of Case, that in the course of the conversation held in Case's office on the morning of August 29 and referred to above, Case initiated the conversation by referring to MacAbee as an employee to be trusted and then inquiring, "I've heard that lust about every- body up here has signed a union card" to which MacAbee silently nodded affirma- tion. This appears to be the only evidence to substantiate this particular allegation of the complaint. Any evil implication therefrom is attenuated to the vanishing point by the further testimony of MacAbee that Case immediately followed with an in- quiry as to the identity of those who were present at the union meeting. It cannot, in my judgment, be said that the foregoing constituted giving employees an im- pression of surveillance and I find the allegations of the complaint in this regard are not sustained. 3. The order to an employee to report employees not attending the union meeting The complaint alleges and the answer denies that Terminal Manager Case on or about August 29 at the Greenville terminal instructed and/or ordered an employee to report to him the names of those who had not attended the Teamsters meeting of the preceding Saturday. Billy MacAbee testified that in the course of his conver- sation with Case in the latter's office on the morning of August 29 Case asked MacAbee if he could tell him who attended the union meeting. MacAbee said that he could answer by informing him of those who were not at the meeting and he proceeded to name those who were not in attendance. According to MacAbee, Case started writing, presumably the names recited by MacAbee. Case did not deny MacAbee's testimony. I find the allegations of the complaint sustained as to the facts and conclude that in the circumstances of the employment relationship Case's action amounted to an instruction that MacAbee report the names of those not in attendance and that Respondent thereby engaged in a violation of section 8(a)(1) of the Act as alleged in the complaint. 4. The threats to fight the Union and never to operate under it The complaint alleges and the answer denies that Vice President Hemby threatened employees by informing them that Respondent would fight the Union in every way and would never operate under a Teamsters union. Vice President Hemby admits addressing Greenville employees on Tuesday, Sep- tember 13,,and concedes that his words on that occasion expressed opposition to the Union's organizing campaign. Issue is drawn as to precisely what was said by Hemby on that occasion. The General Counsel called in support of his position on this item of the complaint Theron Rainey, James Burns, and Francis Little. Rainey's recollection as to Hemby's statements with respect to the Teamsters Union was that Hemby said he would never negotiate with the Union or sign a union contract. Burns, also a company truck- driver, testified that Hemby stated he was not going to recognize any union, pariticu- larly the Teamsters Union 55, that the Company was going to install a timeclock 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Greenville terminal, and further that he was going to fight the Union in every way that he could. Little, a dockworker and occasional driver for the Company, testified that Hemby stated that he did not believe in the Union and was going to do everything in his power to keep it out. For the Respondent, Vice President Clyde Hemby testified that on the morning of September 13 he addressed employees on the subject of organization by the Union, his own presentation extending for 15 or 20 minutes , and being followed by a ques- tion and answer running some 20 or 25 minutes. Hemby stated that his address consisted of expressing a surprise that organization was occurring in view of his readiness to discuss problems at all times with the men and that he told the em- ployees that the Company was going to fight the Union in every legal way that it could. He further testified that he said that he did not think that the Company, inasmuch as it was a short-line carrier, could operate under the present union contract. There was no record made of the speech and Hemby conceded that he possibly said a few things in regard to the Union other than those referred to in his testimony. Terminal Manager Case corroborated Hemby's testimony that the latter expressed an opinion that due to its short-line nature the Company could not operate under the Teamsters' contract and stated that the Company would fight the Union in every legal way. Warehouse Foreman Smith testified that he also was present at the September 13 speech and that Hemby said he did not see how the Company could .operate under the Teamsters Union as a short haul carrier and that the Company -would do everything in its legal rights to keep the Union out. The Respondent also called as its witnesses as to this item of the complaint, drivers Kenneth White and Jack Johnson, both attending the hearing under subpena of the General Counsel. White testified that Hemby said that being a short-haul carrier Respondent could not operate under the Teamsters Union and was going to fight the Teamsters with every legal right it could. With some prompting from Respondent's counsel he finally gave us his best recollection that Hemby expressly made it a mat- ter of his opinion as to whether the Company could operate under the Teamsters' contract. White's testimony was not weakened by cross-examination on this point. Johnson testified that Hemby stated that he did not see how the Company could operate since it was a short-haul carrier and he would take every legal action he could to keep the Teamsters out. On his cross-examination Johnson was unshaken as to his recollection of Hemby's utterances and generally confirmed Hemby's testimony as to the duration of the meeting and Hemby's statement of the basis for his surprise that the employees would feel it appropriate to select a collective-bargaining agent. Under this particular item of the complaint the issue is whether or not Hemby threatened employees by stating that he would fight the Teamsters Union in every way and that Respondent was never going to operate under the Teamsters Union. I find the facts to be that on September 13 Hemby addressed employees and expressed his surprise at union organization in view of his ready accessibility for discussion of problems of grievances. I find that in the course of his talk to the employees on that occason Hemby stated that he did not see how .the Company could operate under the Union as a short-haul carrier and that he would do everything in his legal rights to keep the Union out. In making this finding I am accepting as credible witnesses Respondent's witnesses Ray Smith, White, and Johnson. As to this item of the complaint I find that Hemby's utterances were no more than an expression of opinion respecting the difficulties of operation under a union agree- ment, in view of the nature of Respondent's operations, coupled with the assertion that he would use every legal means to keep the Teamsters out. These statements do not amount to a violation of Section 8(a)(1) of the Act. 5. The threat never to bargain or negotiate a contract By amendment to the complaint allowed at the hearing the General Counsel has alleged as a violation of Section 8(a) (1) that Vice President Clyde Hemby on or about September 12, 1960, threatened employees by informing them that the Com- pany would never bargain with the Teamsters Union or ever negotiate a contract with it. The testimony as to Hemby's remarks on .the occasion of his speech to the employees on September 13 is recounted above. 'I credit Rainey's testimony that Hemby, in the course of his talk, stated that he would never negotiate with the Union or sign a union contract. These utterances amount to more than an expression of opinion as to impossibility of operating under the Teamsters' contract; they are rather an assertion of 'a threat in the nature of an anticipatory refusal to bargain and therein amount to interference in violation of Section 8(a)(1). STANDARD TRUCKING COMPANY 383 C. The discriminatory discharges The complaint alleges violations of Section 8(a) (3) in the discharges of Penning- ton on August 31 , McJunkin on September 6, and Parton on September 12, 1960. Respondent asserts that each was in fact discharged for cause. The circumstances surrounding the discharges and the justification offered by Respondent in each case is a separate matter and they are therefore separately considered below. 1. James Albert Pennington Pennington was hired as a warehouseman on April 1 , 1958. He had had several years prior experience as a truckdriver for another carrier. Shortly after hire he was put on driving and worked as a driver until his discharge . During most of 1960 he was operating tractor No . 98 which was known among a number of the employees as "Pennington's tractor." It was also derogatorily referred to by some of the em- ployees as a "dog" or a "tramp." 4 The General Counsel stated that his case as to Pennington rests upon the timing of the discharge 5 and the circumstance that the reason given to Pennington as the basis for his discharge was false and necessarily known by Respondent to be false. The reason given Pennington at the time of his discharge and the position asserted throughout this proceeding by Respondent is that Pennington was discharged for "tearing up company equipment ," specifically, for riding the clutch and thereby caus- ing damage to tractor No. 98. Pennington was assigned to tractor No. 98 in mid -September 1959. Previously No. 98 had been operated by Billy Troy Gosnell who operated it for almost a year up until June 1959. Gosnell regarded it as being in fairly good shape although he experienced some difficulty with air leakse. He knew .that No. 98 was receiving a substantial amount of use as a road tractor on nightly runs to Charlotte while in use in the daytime for peddle runs. Pennington recalled that the clutch was twice replaced in tractor No. 98 during the period it was assigned to him. He concedes that there might have been additional changes in the clutch that he did not recall or have personal knowledge of. He testified that on the morning of his discharge the clutch was in good shape. It appears from the testimony of Pennington and other witnesses that during the time Pennington operated No. 98 on the peddle run to Westminster during the day- time, it was in use at night by other drivers for switching operations at the terminal and for interchange with other carriers in the metropolitan Greenville area. The amount of use received by No. 98 from operation of other drivers appears to have been 10 percent or less of its total use. It does appear however from the testimony of witnesses (and it would indeed be a matter of commonsense ) that switching and interchange by their very nature would call for more frequent and strenuous use of the clutch than over-the-road operations. Four fellow drivers of Pennington testified to the generally bad condition of tractor No. 98. MacAbee testified that he operated tractor No. 98 on several occa- sions during 1960, and testified that the clutch was in extremely bad condition. Generally he observed that tractor No. 98 was the worst -as to its general operating condition of the seven or eight tractors attached to the Greenville terminal. James Burns, who was assigned to No . 98 'after the discharge of Pennington, also operated it before August 31, 1960, and characterized it as an old rundown tramp of a truck . He observed that the clutch was slipping and in fact reported the poor condition of the clutch to Terminal Manager Case and Dispatch Foreman Smith on two or three occasions in 1960 . The poor general condition of No 98 is also attested by the fact that on the day of Pennington's discharge , Burns drove tractor No. 98 about 2 miles from the terminal when it quit on him and another truck had to be sent out to rescue him. Burns did observe that substantial overhaul work had to be done on No. 98 about 2 months before Pennington 's discharge and he also observed that following ,the discharge of Pennington No. 98 was placed in the shop for repairs Ansel Garrett, who had operated tractor No. 98 to some extent in 1959 , testified that sometime in the summer of 1960 Pennington called him over to observe No. 6 Of the seven or more tractors at Greenville, No 98 appears to have been the one in poorest operating condition in 1960. 5 The discharge occurred only 2 days after the Union's demand for recognition and Terminal Manager Case's ascertaining by interrogation of other employees the identity of the union members, which would presumably produce knowledge of the union member- ship of Pennington who attended the union meeting of August 27 and signed a card. At least one clutch burned out during Gosnell's period of operating No 98 384 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD 98 and at that time he observed that the clutch was slipping so badly that he ad- vised Pennington to refuse to drive it. Little operated No. 98 during part of 1959 and •1960 and found it in pretty rundown condition and specifically with a slipping clutch. For the Respondent, Ray Smith testified that during 1960 he was present at sev- eral meetings in which Pennington and Case discussed the condition of the clutch and the drive line on tractor No. 98. It appears to be part of Smith's duties to check equipment together with Terminal Manager Case and he checked the clutch on No. 98 about a month before Pennington's discharge and together with Case checked the clutch again on August 31 and found it loose. On that date, however, they did not start the engine to test the clutch in operation but relied upon the tension pedal of the pedal itself. About the middle of August 1960 Vice President Hemby instructed Terminal Manager Case to put a close watch on tractor No. 98 since the records of the Company showed excessive maintenance cost. Hemby identified Respondent's Ex- hibit No. 2 ase summary of repairs to tractor No. 98 during the time it was oper- ated by Pennington. It shows substantial and frequent expenditures for clutch adjustments and installations. Hemby testified that following the repairs of Sep- tember 3, 1960, which included a clutch replacement, there have been no addi- tional difficulties with the cluch in tractor No. 98 although it has been in daily use at,the Charlotte termmal.7 Case testified that there had been no difficulty with the clutch on tractor No. 98 before September 15, 1959, when it was assigned to Pennington and that he talked to Pennington about riding the clutch in January 1960 and again sometime in the middle of the year. Pennington impressed me as thoroughly credible notwithstanding his interest in the proceedings. I credit his denial that he rode the clutch and I credit his testimony that he so informed Case. I also find Smith to be a thoroughly credible witness; there is no necessary conflict in Pennington's denial that he had a discussion in 1960 with Case in the presence of Smith about the number of clutches Pennington was burning out and Smith's testimony that he was present at a conversation in 1960 between Pennington and Case about the clutch and drive line in the No. 98 tractor. Although Case testified that sometime about July 1960 he and Smith both talked to Pennington and accused him of riding the clutch, on the specific accusation of riding the clutch Case was not corroborated by Smith. I find and conclude that the reason assigned by Respondent at the time of Pen- nington's discharge and asserted throughout this proceeding was not in fact the true reason for his discharge. Respondent well knew that tractor No. 98 was regarded by a substantial number of its drivers as an inferior tractor and it also knew that it received a substantial amount of use (varying according to the estimates from 5 to 10 percent of the total use) by several operators other than Pennington; their use was of such a nature as to be more wearing on the clutch and the drive line. Pennington was an experienced driver and had never been criticized for any of his operations other than on the occasion of his discharge; in fact he had been praised by his superiors for the excellence of his work. Hemby testified that at one point he instructed Case to "have a meeting with his man and talk to him and explain to him how to do." This instruction of Hemby appears to me to be the way the Respondent would, absent antiunion motivation towards Pennington, have operated Case however did not follow through in line with these instructions but discharged Pennington although the most he could assert was that Pennington was "apparently" riding the clutch. I find and conclude that by the discharge of Pennington, the Respondent discriminated against him in violation of Section 8(a)(3) of the Act. 2. Joseph E. McJunkin In his opening statement, General Counsel asserted that the discriminatory char- acter of the discharge of McJunkin would be established by an antiunion utterance at the time and by a showing of the false character of the reason allegedly given McJunkin for his discharge, namely, his failure to live up to a settlement agreement with another motorist for meeting the cost of a collision: Respondent has main- tained throughout that the basis of McJunkin's discharge was his failure to report an accident involving his operations McJunkin was hired at the Greenville terminal in August 1958 and assigned to drive a combination truck on local pickup and delivery between Greenville and Anderson. He attended the union meeting on August 27 and signed a card. The. evidence indicates that at the time of the prior election at the Greenville terminal 7 No attempt was made to show comparability of use with that during Pennington's tour of duty on it. STANDARD TRUCKING COMPANY 385 in 1959 Case had been, to the knowledge of the Company, opposed to the Union. On Thursday, September 1, while unloading merchandise in Anderson, he collided with a 1949 Chevrolet operated by one Snipes. Because of prior accidents on his record he did not report the accident to his employer but worked out an agreement with Snipes to pay the estimated cost of $119 for the repair of Snipes' vehicle .8 Thereafter on Tuesday, September 6, shortly after he reported for work, he was in- formed by Dispatch Foreman Smith that he was to be transferred to a tractor-trailer, a more desirable form of work since it involved less manual effort and would eventually lead to over-the-road operations, although at the time there was no im- mediate increase in his compensation. McJunkin took the tractor-trailer to Anderson and tried to communicate with- Snipes in connection with their settlement under- standing but was unable to reach him. In the meantime Snipes called into the Greenville terminal and informed Case of the accident and of the arrangement worked out between himself and McJunkin. When McJunkin returned to Greenville about 6 o'clock on the evening of September 6, he was told by Smith to report im- mediately to Case. McJunkin's version of the conversation on the occasion is that Case opened it by saying that he knew McJunkm had signed with the Union and he wanted to know why he had changed from being a company man. Thereafter, according to Mc- Junkin, Case said that Snipes had called in and that because McJunkin had failed to live up to his settlement agreement he had no alternative but to discharge him. McJunkin then, according to his testimony, attempted to explain to Case the circum- stances of his unsuccessful efforts to contact Snipes but Case told him this was not material to the case. McJunkin testified that at no time in the course of his discharge conversation did Case say anything about McJunkin's failure to report the accident. McJunkin further testified that neither Case nor any other official of the Company at any time told him of any rule about reporting accidents. Case's version of the conversation is that he immediately asked McJunkin why the accident had not been reported and McJunkin said that he wanted to keep his record clear and he knew he would be discharged if he reported it. Case further denies that he had any talk with McJunkin on that occasion about the Union. McJunkin's statement that at no time was his failure to report the accident dis- cussed in the course of the discharge conversation is to me incredible. The record in this proceeding is replete with evidences of the safety consciousness of the Respond- ent Company and of its inflexible requirement that any accidents of any nature be reported as a part of the Company's safety program. Drivers who denied that they were ever personally instructed by officials of the Company to report any operating accidents conceded that they knew as a matter of commonsense and of basic understanding in the truckdriving trade that accidents were required to be reported irrespective of whether the driver is at fault. Vice President Hemby, in charge of safety operations, testified that the standard operating procedure is that terminal managers are instructed as to the requirement of reporting accidents at the time of their hiring. Hemby also credibly testified that in the more than 16 years he has been with Standard Trucking, he recalled not a single instance of an unreported accident other than McJunkin's and Case added that at the time McJunkin was hired he was told that accidents must be reported under penalty of dismissal. It also appears from the testimony of Hemby and Case that about the time of the starting of school in August 1960, Hemby spoke at a safety meeting at the Green- ville terminal and repeated the rule on the reporting of accidents. McJunkin. was present at that meeting. The estimates of the time that McJunkin was in Case's office on the day of his discharge varies from the 5 or 6 minutes estimated by Case, to the 15 to 45 minutes estimated by McJunkin. Even accepting McJunkin's estimate as closer to the fact. he does concede that about 90 percent of the time was spent talking about the Snipes. situation Therefore, even accepting McJunkin's testimony that the Union was dis- cussed and discrediting Case in this regard, I find that any discussion of the Union on that occasion was limited to a more or less casual inquiry from Case as to why McJunkin changed from being an antiunion man to being one of the union supporters This, however, plainly does not appear to have been an operative factor in the dis- charge. On the record in this proceeding, the compelling weight of the testimony is s McJunkin's testimony that the reason he did not report the Snipes accident was be- cause he knew the Company' s antiunion feelings would entail his discharge impressed me' as a patently floundering effort to bolster his case He also obviously quibbled as to his- understanding of company requirements on accident reporting 630849-62-vol. 131-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the effect that the real reason for the discharge of McJunkin was his failure to report the accident. I find and conclude that Respondent did not violate Section 8 (a)(3) of the Act by the discharge of McJunkin , and that in truth and in fact, he was discharged for cause. 3. William Albert Parton Parton was discharged on September 12, the assigned reason being violation of a company role prohibiting union solicitation resulting in neglect of the solicitor's work or interfere with the work of others. General Counsel contends that the rule invoked at the time of Parton's discharge was invalid because ( 1) it was posted and applied only at the time of union campaigns and (2 ) the intermittent nature of operations at the Greenville terminal do not necessitate such a restriction . Finally, General Counsel contends that the evidence will establish that, in any event , Parton did not violate the rule. The Respondent's position is that the employer has the right to determine the manner in which worktime will be used and that it may, by specific approval in each case , allow the use of worktime for solicitation for selected charitable agencies or other favored purposes while at the same time denying its use for union solicitation. Parton was hired in April 1959 as a freight checker, warehouseman , and occasional fill-in driver. He signed up for the Union on August 27 and was interrogated by Case as to his union membership on the morning of August 29. Parton 's testimony that he insisted upon a witness to his affirmative answer to Case's question is cor- roborated by Rainey and, indeed, not denied by Case. His regular tour of duty commenced at 1:30 a.m . in relief of employee Robinson and his duties were to check and assist in the loading and unloading of trailers arriving in the nighttime and into the morning and additionally to see that the premises were clean and neat. On the morning of September 12 Parton drove an interchange load within the Greenville area then called in for instructions and was told by Case to report back to the terminal . On reporting to Case's office he was shown a copy of a notice ad- dressed to employees referring to the union campaign , and containing in paragraph 6 the following: No person will be allowed to carry on union organizing activities on the job. Anybody who does so and do thereby neglects his own work or interferes with the work of others will be subject to discharge. According to Parton's testimony the ensuing conversation consisted merely of Case's reading off paragraph 6 and informing him that he was discharged for violation of the rule therein set forth. Parton testified that he inquired as to whom he had been carry- ing activities on with and that Case refused to say anything further at that time. Smith was present at this conversation . Parton testified that Case stated he did not want to hear any argument from Parton and that sometime in the conversation, according to Parton, Smith started to say something but Parton told him to keep his mouth shut. Case did not give any different version of the conversation occur- ing at the time of the discharge but added that Parton did not deny the charge that he had been soliciting. The record is not crystal clear as to the precise date on which the no-solicitation rule was promulgated either in the form of letters sent to all employees or in the form of a blown-up version of the letter posted on the bulletin board . Although MacAbee testified that the notice was not posted until September 12 or 13, on cross- examination he conceded that the notice was posted by the date of McJunkin's dis- charge September 6. He testified also that he received his copy through the mail shortly after September 2. Pressed by Respondent's counsel to admit that the bulletin board notice was posted on August 31 following the union meeting of the 27th , MacAbee could not deny that it was there as early as that date. Parton on his cross-examination testified that at the time of his discharge the notice had been posted on the bulletin board for 7 to 9 days and that he read it and was familiar with its contents .9 The letter transmitting copies to employees is dated September 1, but some delay occurred in mailing . I find that the notice was posted and the letter re- lating to it mailed sometime in the period September 5 to 10. - The evidence indicates that the nature of the operations in the terminal are such that occasional slack work periods occur in the course of which the employees engage in conversations , drink soft drinks, and otherwise relax; it was stipulated that solici- tation for the Union would be allowed on such break times when employees were not 9 The evidence indicates that the same or a similar notice had been posted shortly before the election in 1959 and had been removed at that time at the instruction of representa- tives of the Board. STANDARD TRUCKING COMPANY 387 working. Parton testified that he solicited for the Union on such break periods and specifically recalled soliciting employees Williams, Johnston, and Fuller. Case, however, testified that he had received reports from employees Robinson , Williams, Johnston, and Miss Merck that they had been solicited by Parton at times when such solicitation interfered with their work .iO I credit Parton's testimony that at the time of his discharge he asked Case for the names of the employees he was supposed to have solicited in violation of the rule and his further testimony that Case refused to give him the particulars in this regard . I credit also the testimony of employees Rainey, Burns, and Little that they were not solicited by Parton and they never saw him solicit others on worktime although this testimony is as pointed out by Re- spondent, essentially negative. Garrett, who impressed me as a credible witness, did testify that Parton solicited him on worktime . Garrett was not, however, one of the ones whom Case referred to as having complained to him about Parton's solicitation and I can only conclude that this testimony , on direct examination , came as a sur- prise to all parties. Nor can I find much significance in Case's testimony that Parton never denied the charge in view of the testimony , which I credit, that Case refused to supply him particulars. I find that Respondent had a promulgated rule ii which was violated to some degree by Parton but that it has not been shown that any violations were other than de minimis; appraising the evidence in its entirety , it clearly appears that Parton was discharged for his active role in organization rather than for interfering with his own or other employees' work. I find his discharge to be violative of Section 8(a) (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstrucing commerce and the free flow of commerce. V. THE REMEDY In view of my finding that Respondent has engaged in several acts of interference, restraint, and coercion, I shall recommend that it cease and desist therefrom. Also in view of my finding that Respondent discriminated with respect to the tenure of employment of James Albert Pennington and William Albert Parton , I shall recom- mond that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice in any way, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them by payment to them of sums of money equal to those which they normally would have earned from their discharge dates to the date of Respondent's offer of reinstatement , less net earnings during that period . Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, I shall recommend the posting of an appropriate notice. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 2. Local Union No. 55 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating its employees concerning union membership , by directing an employee to report the names of union adherents , and by a speech addressed to employees including a threat never to negotiate or contract with the Union, Re- spondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. ' 'Olt appears that Case never checked out these reports Only Miss Merck testified on the subject of Parton's solicitation. I credit Parton 's testimony as to the time of his solicitation. "The rule Is not necessarily Invalidated by the fact that its promulgation coincided with the resurgence of union activity or that other solicitation was allowed with specific prior approval of management Carolina Mirror, Corporation, 123 NLRB 1712 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By discriminating in regard to the tenure of employment of James A. Pennington and William A. Parton , thereby discouraging membership in the above -named Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Allegheny Pepsi-Cola Bottling Company and Chauffeurs, Team- sters and Helpers, Local Union No. 771 , International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 4-C, 4-3257. November 17, 1961 DECISION AND ORDER On May 22, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent 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 Intermediate Report attached hereto. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that these particular allegations be dis- missed. Thereafter, Respondent filed exceptions to the Intermediate Report together with a supporting brief. 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 [Chairman McCulloch and Members Rodgers and Leedom]. 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 this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. 1 We agree with the Trial Examiner that the Union 's majority is unaffected whether Bruce Snyder be included in, or excluded from , the unit of driver-salesmen and ware- housemen at the Lancaster warehouse . We shall , however, as requested by the Respond- ent, determine Snyder 's unit placement . Snyder drives a tractor-trailer from Respondent's Harrisburg plant to Lancaster where the bottled soda is unloaded and replaced with empties for the return trip to Harrisburg . Although Snyder drives to the Lancaster warehouse sometimes twice daily during the summer , his trips during the winter months are usually made only once it week . The tractor-trailer is garaged and serviced in the Harrisburg area where Snyder lives and receives his paycheck . In these circumstances, we believe Snyder's interests are not identifiable with those of the employees at the Lancaster warehouse . Accordingly, Snyder is excluded from the unit . When, therefore, on November 8, 1960 , at a meeting of the nine employees in the Lancaster warehouse unit , Respondent interrogated employees as to union affiliation and five of the nine answered in the affirmative , it was clear that the Union commanded majority support. Further , as the Trial Examiner found, by November 9 when Respondent received the- Union's letter dated November 7 requesting recognition, six of the nine employees had 134 NLRB No. 50.