Preston Feed Corp.

PRESTON FEED CORPORATION 629 Preston Feed Corporation and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 789. Case No. 6-CA-2212. November 22, 1961 DECISION AND ORDER On August 10, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and is 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof,' and the General Counsel filed -a brief in support of the Intermediate Report and Recommended Order. 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 Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclu- sions, and the recommendations of the Trial Examiner. ORDER The Board adopts the Recommendations of the Trial Examiner with the modification that provision 2(h) read: "Notify the Regional Director for the Sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 2 1 We hereby deny as being without merit Respondent's motion to strike portions of the General Counsel's brief 2 In the notice attached to the Intermediate Report as the Appendix , the words "A Decision and Order" are hereby substituted for the words "The Recommendations of a Trial Examiner." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 789, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued his complaint, dated May 4, 1961 , against Preston Feed Cor- 134 NLRB No. 67. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD poration, herein called the Respondent. With respect to the unfair labor practices, the complaint alleges, in substance, that Respondent (1) discharged employee Donald Matthews because of his union membership and activities; (2) discontinued its trucking operations because of union activities and to discourage union membership; (3) engaged in conduct which constituted a refusal to bargain with the Union which had been designated as the bargaining agent by a majority of the employees in a specified appropriate unit; (4) refused to reinstate striking employees upon their unconditional application, the strike having been caused and prolonged by Re- spondents' unfair labor practices; (5) engaged in specified acts of interference, restraint, and coercion; and (6) has thereby violated Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. In its duly filed answer, the Respondent denies the unfair labor practice allegations and affirmatively alleges, in substance, that: (1) Matthews was terminated and the trucking operations discontinued for economic reasons; (2) it doubted the Union represented a majority of its employees in an appropriate unit; and (3) it made un- conditional offers of reinstatement to Matthews and the strikers, which offers were refused. Pursuant to due notice, a hearing was held before me at Morgantown, West Vir- ginia, on June 13 and 14, 1961. All parties appeared and were represented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present oral argument, and to file briefs. On July 17, 1961, the Re- spondent and the General Counsel filed briefs which I have fully considered. Upon the entire record in the case,' and from my observations of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a West Virginia corporation, operates a rendering plant at Reedsville, West Virginia, where it is engaged in the processing of animal offal 2 into a com- ponent for poultry and animal feed. During the 12 months preceding March 1, 1961, the value of goods sold and shipped by Respondents to points outside the State of West Virginia was in excess of $50,000. Upon the above admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 789, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the issues Respondent operates a rendering plant at Reedsville, West Virginia, where offal is processed into feather meal, byproduct meal, and a tallow or grease. During the period herein material, the plant operated on 3 shifts with a total of about 11 employees, exclusive of supervisors, consisting of 8 laborers who worked in the plant and 3 truckdrivers who hauled the offal from 3 plants in Pennsylvania and 1 plant at Oakland, Maryland, to Respondent's rendering plant. Respondent's ad- mitted supervisory hierarchy insofar as herein material are as follows: J. W. Ruby, president; A. D. Summers, vice president; Frank O'Malley, director of industrial relations; Kenneth Parks, plant manager of the rendering plant; and Paul Zinn, ' On July 17, 1961, Respondent filed a motion to substitute corrected exhibit and to correct transcript in 13 specified respects Thereafter, the General Counsel filed a memorandum in which he opposed the Respondent's motion to substitute a corrected ex- hibit, and stated that he had no objection to Respondent's proposed correction of the transcript with the exception of proposed correction 9. Upon consideration of the fore- going, I hereby grant Respondent's motion in all respects with the exception of proposed correction 9 Respondent's motion will be Included in the official exhibit folder as Respondent's Exhibit No 13 8 Offal consists of the entrails, head, feet, blood, and whatever is left after the animal is cleaned. PRESTON FEED CORPORATION 631 foreman of the second shift . O'Malley reported directly to President Ruby who was O'Malley's immediate superior. About the middle of February 1961 , Donald Matthews, one of Respondent's truckdrivers, initiated efforts to organize Respondent's employees at the rendering plant and by February 25 union authorization cards had been signed by a majority of these employees . On Friday, March 3, Union Business Agent Clemens mailed a letter to President Ruby, claiming majority representation and requesting recog- nition . This letter was delivered by registered mail on Saturday , March 4. That afternoon , Matthews was informed that his services were no longer needed. On Monday, March 6, Respondent discontinued its trucking operations. That afternoon the employees went on strike and began picketing the plant . The Respondent has refused to recognize and deal with the Union. The principal issues litigated in this proceeding are (1 ) whether the employment termination of Matthews and the discontinuance of the trucking operations were discriminatory within the meaning of Section 8(a)(3) of the Act; (2) whether Respondent's conduct constituted a refusal to bargain within the meaning of Section 8(a)(5) of the Act; ( 3) whether the refusal to reinstate the strikers constituted discrimination with respect to their hire and tenure of employment within the meaning of Section 8(a)(3) of the Act; and (4) whether Respondent's admitted supervisors engaged in specified acts of interference , restraint, and coercion within the meaning of Section 8(a)( I) of the Act. B. Sequence of events 3 1. Matthews' employment as a truckdriver Donald Matthews was employed by Respondent as a truckdriver on December 19, 1960, at $1.25 per hour. After about 6 weeks,,his pay was raised to $1.35 per hour and would have been increased to the maximum of $1.50 per hour if his employment had continued for a short period after his termination. His duties were to drive a tractor-trailer truck from Respondent's rendering plant in Reedsville, West Virginia, to processing plants where the truck would be loaded with chicken and animal offals and then to drive it back to the rendering plant. His normal run was to Pennsyl- vania. He would report to work at the rendering plant about 10 a.m., and would first load the truck with empty barrels. About 11 a.m. he would be ready to start on his Pennsylvania run where he had three stops to make and would return to Reedsville normally about 11 p.m. The trailer would then be unloaded by the laborers. Matthews was regarded by management as a satisfactory employee; he had never had any traffic violations or motor vehicle accidents or any trouble with absences. He had built a small electric hoist which made it easier for the driver to double-deck the barrels. Manager Parks complimented him on this arrangement and indicated that it was helpful. During January and February 1961, Matthews complained to Industrial Relations Director O'Malley about not getting sufficient hours of work per week, and inquired about the possibility of a transfer to another trucking job. He also had frequent discussions with Manager Parks and expressed the view that the drivers should be given more work by being assigned the hauling of Respondent's finished product. 2. February 1961-employee self-organization and Matthews' role therein About the middle of February, Mathews went to see Union Business Agent 'Clemens and discussed the possibilities of organizing Respondent's rendering plant. Clemens explained what had to be done and gave Matthews a number of union authorization and membership application cards. Matthews signed his authori- zation card on February 23, and successfully solicited the signatures of Curtis White, a fellow truckdriver, and Keith McKinney, a laborer. Foreman Zinn had previously relayed Matthews' inquiry as to whether McKinney was interested in helping Matthews get signatures. McKinney agreed to help Matthews solicit the signatures of the other laborers and was given some authorization cards by Matthews for that purpose. By February 25, McKinney had succeeded in ob- taining the signatures of six other laborers to the union authorization cards, which he then turned over to Matthews. The only two employees who had not signed s Unless otherwise indicated, the factual findings in this section are based on credible evidence which is either admitted or undenied. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards by that time were Loren White, the third truckdriver, and Bohan, a laborer, who had a finger amputated as a result of an accident that day at the plant. 3. Sunday, February 26-Matthews' conversation with Foreman Zinn During a visit by Foreman Zinn to Matthews' home on Sunday, February 26, Matthews discussed with Zinn the changes that should be made in the plant and with the trucking operations in the event the Union became the bargaining agent. They talked about whether working foremen should do any manual work, about the possibility of having all of Respondent's trucking handled by Respondent's truck- drivers,4 about improving the plant working conditions and about the wage increases to be requested. Matthews told Zinn that he had in his possession all the signed union cards and was going to turn them in .5 4. Sunday and Monday, February 26 and 27-accident of Curtis White On Sunday night, February 26, Curtis White, employed by Respondent as a truckdriver for over a year, was in an accident while riding as a passenger in a private automobile. The next morning, Monday, February 27, Curtis White tele- phoned Manager Parks and reported that he had been in an automobile accident, had one eye bandaged, and did not know how long he would be unable to work. 5. Thursday, March 2-Foreman Zinn's instructions to Matthews During the week of February 27, Matthews and Loren White, Respondent's two remaining truckdrivers, performed all the truckdriving required that week. Each day they alternated between the Pennsylvania and Oakland, Maryland, runs. Mat- thews' last day of work that week was on Thursday, March 2, because by that time he had already accumulated substantially 40 hours for the week whereas Loren White had only 29 hours.6 Manager Parks had instructed Foreman Zinn to inform Matthews that he was to report Monday morning to make his Pennsylvania run. Zinn relayed these instruc- tions to Matthews that Thursday.? 6. Events of Friday, March 3 a. Conversation between Matthews and Parks As Friday, March 3, was a payday, Matthews went to the plant that morning to pick up his check. On that occasion, he had a lengthy conversation with Manager Parks in front of the plant. Matthews talked about the Respondent enabling its truckdrivers to get in their full time and about Respondent making different trucking * At that time, Respondent's finished products were hauled by drivers employed by Sterling Faucet Company which, together with Respondent, formed part of the Sterling Enterprises over which Ruby was president and O'Malley was industrial relations director ' Foreman Zinn testified that during the week of February 27, Manager Parks asked him at various times if he knew anything about the Union, if he knew how many men had signed up, and if he himself had signed a union card Zinn further testified that on such occasions Parks told him, in substance, that Matthews was the chief organizer try- . ing to get the Union in there ; that if Matthews got the Union in, they would close the doors ; and that if they would get rid of Matthews, their troubles with the Union would be over Parks admitted that during that week he had heard a rumor about union activity in the plant, that he had asked Foremen Zinn and Greaser if they had heard anything about it, and that they both replied they had heard nothing Parks denied having made any of the other queries or statements attributed to him by Zinn. At the time of his testimony in this proceeding, Zinn had signed a union card and had joined the strikers, having quit Respondent's employ in June. Zion's testimony was contradicted in material respects by Respondent's counsel and by Matthews and McKinney, witnesses for the General Counsel Under all the circumstances, I credit Park's denials and find that he did not make the queries or statements attributed to him by Zinn I further find that, although Zinn was aware of the union activities, as found in the text, he did not disclose them to Parks. In view of the credibility findings herein made, I will henceforth credit Zinn only when, his testimony is uncontradicted or corroborated by other credible testimony 9 white therefore also worked on Friday and Saturday 'The findings in this paragraph are based on Zinn's credited and uncontradicted testi- mony Parks did not deny having given such instructions to Zinn PRESTON FEED CORPORATION 633 .arrangements so as to have its own drivers perform the long hauls of finished prod- ucts out of the rendering plant which at that time were being made by the drivers of Sterling Faucet Company ; mentioned the need for improving some of the plant .conditions ; and suggested better ways for the handling of the containers and that another hoist should be put in the back of the trucks to facilitate the lifting of the -waste barrels off the ground. Parks replied that he agreed with Matthews' sug- gestions for improvements, but stated that the Company would not allow it because it would cost too much. At the end of the conversation, Parks told Matthews that he was to go on his regular run to Pennsylvania on the following Monday, March 6.8 b. Union mails letter to Respondent's president That evening, the Union mailed a registered letter, signed by Business Agent Clemens, to John W. Ruby, c/o Sterling Faucet Company , Morgantown, West Virginia. This letter, dated March 3, 1961, and addressed to John W. Ruby, who -was the president of Respondent and of all the companies which together made up the Sterling Enterprises, stated that the employees of Respondent had selected the Union as their bargaining representative for the purpose of negotiating a collective- bargaining agreement, requested recognition of the Union as such bargaining repre- sentative , and advised that the Board had been petitioned on the same for certification as such representative. 7. Saturday, March 4-union letter delivered and discharge of Matthews The registered return receipt of the Union's letter to President Ruby shows that -the letter was delivered on Saturday , March 4. Moreover, in view of the time stamped thereon by the Morgantown post office in mailing it back to Clemens, I find that it was delivered that morning. About 2:30 on Saturday afternoon, Matthews was informed by his mother that O'Malley had telephoned to speak to him. Matthews promptly telephoned O'Mal- ley,9 who advised Matthews that Parks was making different arrangements for the hauling, that Matthews' services were no longer required , and that there was nothing else available for him. Matthews then telephoned the union hall and, in Clemens' absence, informed the secretary that he had been discharged . He was advised that she would have Clemens contact him. 8. Sunday, March 5-employees vote to strike Clemens telephoned Matthews on Sunday morning and arrangements were made -to hold a union meeting that evening at Matthews' garage. Matthews, Curtis White, and six of the laborers attended the meeting . Clemens informed the men that Matthews had been dismissed and a strike vote was taken . The men voted -unanimously to strike. 9. Events of Monday , March 6 a. Respondent's hauling is performed by Sterling Processing Company at Oakland, Maryland Loren White had worked on Saturday, March 4 . Pursuant to prior instructions, he reported to the plant shortly before 11 o'clock on Monday morning and was told by Parks to get the truck ready for the Pennsylvania run. White thereupon drove -the truck to the service station , about a quarter of a mile away, from whence he was to leave on his run. While he was there, a message was received by White that his run had been canceled and that he should report back to the plant. When he returned to the plant, Parks only told White that "there had been some trouble" and that they would call him "when things were straightened out." White thereupon went home, which was about 25 miles away.io 8 The findings with respect to the conversation which Matthews had with Parks on Friday, March 3 , are based on the credited and undisputed testimony of Matthews Parks admitted that he saw Matthews at the plant that day , that he gave Matthews his pay- check, and that he did not "recall any particular discussion " with Matthews , although it would not have been unusual if they had a discussion He did not deny telling Matthews that morning to report for his regular run to Pennsylvania on Monday morning, March 6. 9 O'Malley admitted that Matthews' telephone call was made shortly after O'Malley had telephoned and left a message for Matthews to call. 10 The findings in this paragraph are based on the credited testimony of Loren White. Parks testified that on Monday morning he had called White to come in to make this 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From that time on, the hauling of the offal to Respondent's rendering plant was performed by the drivers of Sterling Processing Company 11 out of Oakland, Mary- land, which shortly thereafter leased the equipment used by Respondent. b. Clemens' conversation with O'Malley On Monday morning, Clemens went to see President Ruby at his office in Reeds- ville. When he explained his business to the receptionist, she told him that O'Malley handles these matters and that he was at Manheim, West Virginia, where Respondent has another plant. Clemens thereupon drove to Manheim and met O'Malley on the porch of the office building shortly before noon. Clemens introduced himself as the business agent of the Union, referred to the letter he had mailed to President Ruby on March 3, and stated that the Union had been requested to represent the employees of Respondent in Reedsville for collective bargaining. O'Malley asked what em- ployees the Union claimed to represent. Clemens replied that they claimed the truckdrivers, the laborers in the plant, and the working foreman at Reedsville, but that he would not insist upon the foreman being in the unit. O'Malley made no claim that Respondent no longer had any truckdrivers or that Respondent's hauling operations had been transferred to another company. Clemens also told O'Malley that because he had fired Matthews, the man who had done most of the organizing, the men would stay out on strike unless he agreed to reinstate Matthews and to guarantee to maintain the jobs and the labor force without change "until we could have some kind of election." O'Malley did not deny having had any knowledge of Matthews' union activities. Clemens further stated that he would agree to any method which would give the Union an opportunity to prove its representation and explained that this could be accomplished by agreeing to a consent election, or by checking the union authorization and application cards which had been submitted to the Board's Regional Office in Pittsburgh, together with a petition for an election, or, by having some impartial person, such as a minister, conduct an election in the plant. O'Malley replied that it would take time for him to give an answer, that he would have to get in touch with his superiors, and that he would inform Clemens as soon as he could.'2 c. Clemens reports to employees and picket line is established Clemens, accompanied by Matthews, returned to Reedsville between 1:30 and 2:30 p.m. and met with the employees at the service station. He informed them of his conversation with O'Malley. The men informed Clemens that after one of Respondent's drivers had gassed up his truck, referring to Loren White, he was recalled and that a driver from the Oakland, Maryland, processing plant came there to take his truck. - Thinking that the Company was trying to eliminate the drivers, the men decided to set up a picket line at once. Shortly before the commencement of the second shift at 3 p.m., the men set up a picket line at the Fairfax Road entrance to the plant, which was about a quarter of a mile up the road from the picket line. The picket signs read, "On strike, Teamsters Local 789." The second shift was unable to begin operations on schedule, as all the laborers were on strike. run, that he had called the service station to have White return to the plant, and that he then informed White that the system had been changed , that Sterling Processing of Oakland, Maryland , was going to do the hauling from then on, that there had been a mixup in scheduling at Oakland, and that Oakland had called to say that they were sending their driver on this run. White denied that Parks had so informed him that Monday morning Loren White had refused to sign a union card when solicited by Matthews the preceding Friday, was not interested in the Union , crossed the picket line to work as a laborer in the rendering plant for a short period during the strike, and left the Respond- ent's employ of his own accord and on good terms He testified that lie would not have appeared as a witness if he had not been subpenaed and was clearly a neutral and dis- interested witness in this controversy . He testified in a candid and forthright manner and made a very favorable impression upon me as a credible witness . Under all the circumstances , I do not credit Parks' contrary testimony. n This is a poultry processing plant at Oakland , Maryland , which is part of the Sterling Enterprises over which Ruby is president, Summers is vice president, and O'Malley is director of industrial relations. 12 The findings in this paragraph are based on the mutually consistent testimony of Clemens and O'Malley. O'Malley testified that he did "not remember " whether Clemens mentioned Matthews in this conversation. PRESTON FEED CORPORATION 635 d. O'Malley talks to Clemens at picket line Between 3 and 4 p.m., O'Malley drove up to the picket line. While sitting in his car, O'Malley asked Clemens what was going on. Clemens replied that the members had to strike in self-protection but that if the Company would maintain conditions as they were and put Matthews back to work until "we have an opportunity to prove that we represent the people" the men would go back to work. O'Malley replied that the establishment of a picket line was putting him in an impossible position to get a receptive attitude for Clemens' request.13 e. Taking of pictures that evening That evening, President Ruby, Vice President Summers, O'Malley, and others drove up to the picket line. Although the cars of the strikers were not blocking the road, Respondent's officials required the men to move their cars. Several pictures of the strikers on the picket line were also taken by Vice President Summers.14 10. Statements to employees during the strike Replacements began to be hired by Respondent on March 7; the plant soon resumed full operations and continued to do so throughout the strike, which was still in progress at the time of the hearing in this proceeding. Charles Knotts was hired on March 8 as a laborer on the day shift, under the supervision of Manager Parks, and worked for about 3 weeks. During his employ- ment interview, Parks asked what he thought of the Union. Knotts replied that he believed there would be better working conditions with a union. Knotts was then interviewed by O'Malley. When Knotts asked how Matthews happened to be fired, O'Malley replied that it was because they found out he belonged to the Union. During the time of his employment, he also asked Parks the same question and was given the same answer. Parks also told Knotts that the Teamsters were a "bunch of rack- eteers, they drove big cars, and bought million dollar homes off of the members." During the first week of his employment, Knotts asked Parks about the possibility of getting a different kind of job. Parks replied that if the Union did not get in, Knotts stood a "pretty good chance" of getting one of the truckdriving jobs, that they were going to take on new drivers if the Union did not get in. Knotts had stated on his application that he had truckdriving experience. On another occasion during his employment, Knotts asked Parks how he should vote if the union matter came to a vote, or whether it mattered how he voted. Parks replied that it does make a difference and that Knotts was supposed to vote against the Union.15 Bohan had been employed by Respondent since March 1960, but had not worked since February 25, 1961, when he lost a finger in a plant accident. During the first 13 The findings in this paragraph are based on the mutually consistent testimony of Clemens, Matthews, and O'Malley. With respect to the last statement of O'Malley, Clemens merely testified that "I don't recall him saying that." Matthews admitted that he did not hear the entire conversation between O'Malley and Clemens 34 The findings in this paragraph are based on the credited and uncontradicted testi- mony of Matthews and McKinney. Summers did not deny having taken such pictures ss The findings in this paragraph are based on the credited testimony of Knotts, who was testifying under subpena O'Malley did not deny having made the statement as to the reason for Matthews' discharge, set forth in the text Parks denied telling anyone that Matthews had been discharged for union activity. He further testified that he neter had any conversation with replacements about union activities and that, on those occa- sions when he was asked what would happen about the strike, he replied that if the Union was voted in the strikers would probably come back to work. He did not deny having made the above-stated disparaging remarks about the Teamsters, nor did he deny having told Knotts that they were going to hire new drivers if the Union did not come in and that Knotts stood a pretty good chance of getting one of the truckdriving jobs. I have previously found Parks not to be a credible witness in certain respects . Knotts never joined the Union , never signed a union card, and crossed the picket line. He testified under subpena in a positive and sincere manner. He readily admitted having pleaded guilty to a misdemeanor and having served some time in the penitentiary for this offense. His concealment of this offense in answer to a question on Respondent 's employ- ment application, while not condoned, is understandable and does not in itself require that he be discredited Giving due consideration to all the foregoing , I am convinced and find, particularly in view of O'Malley's failure to deny the statement attributed to him and Parks' failure to deny some of the statements attributed to him, that Knotts is a credible witness. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week of the strike, Manager Parks telephoned Bohan at his home, asked how he was getting along and when he would be able to get back to work, told him there was a picket line at the plant, and also inquired if he had signed with the Union. In re- sponse to Bohan's query as to what union Parks had reference, Parks replied, "The Teamsters." Bohan then stated that he had not signed. Bohan then asked Parks who was working. Parks mentioned some names, including Donald Matthews, and then laughed and stated that Matthews' name was "outlawed" there. He also stated that he believed Matthews was the cause of the strike. About a week later, Bohan crossed the picket line and returned to work for a very short period. At that time Bohan asked Parks what would happen if the Union came in. Parks replied, that he did not believe it would get in because these people "knew they would be out of a job." 16 During the first week of the strike, Parks telephoned Loren White and inquired whether he would like to work as a laborer in the plant "until the situation was over." Parks told White that they had transferred the truck hauling "for the time being" and that they would be back on the road "after a while." After first expressing some doubt as to whether he would like working in the plant, White agreed to try it. After working about a week, he voluntarily gave notice and quit his job. At that time Parks told him that he was a good man and that he (Parks) would like to have him back as a truckdriver.17 During the strike, Parks accidentally met Curtis White at the service station. Parks asked White when he would return to work. White replied that he was on sick leave and that he would not return as long as the "strike situation was on" because he would not drive for the Company or against the boys. Parks asked White if he was "part of the situation." White parried the question by replying, "You don't know do you?" Curtis White also met O'Malley accidentally during the strike at the gas station and had a conversation about coming back to work. White gave O'Malley the same answer he had given Parks. On that occasion O'Malley for the first time informed White that Respondent's truck hauling operations had been transferred to Oakland. In response to White's request for a transfer to another part of the organization, O'Malley replied that that was not in his department.18 11. Requests for, and offers of, reinstatement during the strike By letter dated April 18, 1961, from Business Agent Clemens to John W. Ruby, president of Respondent, the Union made an unconditional offer of an immediate return to work on behalf of eight named strikers and of Matthews. By letter dated April 24, 1961, President Ruby replied, advising Clemens that the strike was "wholly economic in character," that all strikers had been permanently replaced and no jobs were available for them at that time, that hauling operations had been dis- continued and that "there is not now and will not in the future be any vacancy for truck drivers," and that these employees would be considered for employment "for such jobs as may be available in the future on the same basis as any other applicant for employment" but "only if they indicate individually their interest in future em- ployment by completing an application at the Company office." The Union replied by a'letter from Clemens to Ruby, dated April 28, stating that, contrary to Ruby's contention, the strike was caused "solely by your unfair labor practices, including your refusal to recognize" the Union, and reiterating the Union's demand for recog- nition as the exclusive bargaining representative. By identical letters, dated May 4, 1961, from Industrial Relations Director O'Malley to Matthews and to each of the strikers listed in the Union's letter of April 18, the Respondent offered each one immediate reinstatement to the job held prior to the strike. By identical letters, dated May 5, Matthews and the other strikers replied that they were interested in returning to work immediately but would not do so " unless and until" the Union had been recognized as the employees' exclusive collective- bargaining representative, and indicated their intention to continue on strike for such recognition. O'Malley replied within a few days by identical letters, stating that Respondent had "attached no conditions to its offer of reinstatement and will 1e The findings in this paragraph are based on the credited and undisputed testimony of Bohan 17 The findings in this paragraph are based on the credited and undisputed testimony of Loren White. 18 The findings in the last two paragraphs are based on the credited and uncontradicted testimony of Curtis White and admissions by Parks and O'Malley. PRESTON FEED CORPORATION 637 accept none as a condition to your returning to work," and that the "questions of representation must be determined by the National Labor Relations Board." 19 C. Legality of Respondent's conduct in transferring its trucking operations and terminating Matthews' employment The General Counsel contends that the Respondent's transfer of its trucking operations and the discharge of Matthews were motivated by the Union's letter requesting recognition and by Matthews' union activities and hence were unlawful. The Respondent contends that (1) Matthews' employment was terminated because of the discontinuance of its trucking operations and (2) the discontinuance, and transfer to Sterling Processing Company, of its trucking operations were for economic reasons. In support of its position, Respondent relies upon the testimony of Plant Manager Parks, Industrial Relations Director O'Malley, Summers, who was vice president in charge of transportation of both Respondent and Sterling Processing Company as well as of all other companies which together make up the Sterling Enterprises, and Earl Wise, manager of Sterling Processing Company. The composite testimony of these witnesses is, in substance, as follows: The rendering plant had been operating at a loss during the year 1960 and it was felt that this was due to the trucking operations which involved abnormal turnover of drivers and excessive safety and maintenance costs. As a result of discussions to find a possible solution, O'Malley recommended in January 1961 that Respondent's trucking operations be discontinued and taken over by Sterling Processing Company, which is controlled and operated by the same top management. Summers and Wise agreed with this recommendation. Shortly after February 15, Summers inquired of O'Malley as to how soon the Respondent's hauling operations could be taken over by Sterling Processing. O'Malley replied that "we would not replace any of our present three drivers" but in view of past experience they would soon be able to transfer the operation gradually by relying on normal attrition to take care of it. Summers did not dissent from this recommenda- tion. On Monday, February 27, O'Malley was informed by Parks that Curtis White had been in an automobile accident and would not be available for some time. O'Malley that day contacted Summers and they mutually agreed that now was the time to make the permanent change. That same day Summers informed Wise of the situation and wanted to know if he could take over the hauling operations im- mediately. Wise replied that he possibly could but would prefer to wait until the following Monday, March 6, because the drivers had already been scheduled for that week. Summers agreed to have the transfer made on the following Monday, informed O'Malley to that effect, and advised that Respondent should handle the hauling for the rest of that week with two drivers. O'Malley informed Parks that the hauling should be handled for the rest of the week with the two remaining drivers and that it would be permanently transferred to Sterling Processing. O'Malley was in Oakland on Friday, March 3, at which time Wise confirmed that he would be able to take over the hauling on Monday, March 6. About noon, Saturday, March 4, O'Malley notified Parks that Sterling Processing was going to take over all the haul- ing beginning Monday and that he should inform the drivers of the change in opera- tions. Parks agreed to notify Loren White and O'Malley agreed to notify Matthews. Parks and Summers testified that they had no knowledge of any union activities at Respondent's plant before the strike of March 6; O'Malley testified that he had no knowledge of the Union's recognition letter or of any union activities before his meeting with Clemens on Monday morning, March 6. After careful consideration of Respondent's contentions and the foregoing testi- mony, which consists primarily of self-serving declarations, I am unable to accept the contentions or to credit the testimony relating to the circumstances surrounding the transfer and discharge of Matthews or Respondent's true motivation for its con- duct. A consideration of the entire record as a whole leads me to conclude that Respondent's conduct with respect to the transfer of its trucking operations and the termination of Matthews' employment was discriminatorily motivated. Foremost among the factors which lead me to this conclusion are the following: 1. The timing of the transfer of the operations and the precipitous method by which it was effected: Although Respondent's witnesses allegedly were aware as early as February 27 or 28 that the transfer of the trucking operations to Sterling Processing was to become effective on Monday, March 6, it, is admitted that no notice or inkling ' The Union's representation petition, which had been mailed to the Board's Regional Office,' was subsequently withdrawn by the Union with the consent of the Regional Director, 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of any kind that such action was even being contemplated was given to any of Re- spondent's employees until Matthews was informed of his termination on Saturday afternoon, March 4. Parks' entire conduct was hardly consistent with such an alleged arrangement. Matthews had made the last run for that week on Thursday, March 2, by which time he had already accumulated substantially 40 hours and therefore was not scheduled to work on Friday and Saturday. Pursuant to Parks' instructions to Foreman Zinn, the latter informed Matthews on Thursday to report Monday morning for the Pennsylvania run, as previously found. Also, as previously found, on Friday morning when Matthews was at the plant to get his paycheck and engaged in a lengthy conversation with Parks, the latter told Matthews that he was to take his regular run to Pennsylvania on the following Monday, March 6, giving him no inkling of any decision to transfer the work to Sterling Processing. Indeed, Parks admitted that when he came to work on Monday morning, March 6, he followed his normal practice of telephoning to the Pennsylvania and Oakland plants to find out what days they would be working that week so as to enable him to schedule the drivers accord- ingly. If in fact arrangements had previously been made for Sterling Processing to begin the hauling operations that morning, there would have been no need for Parks to make these calls to Pennsylvania and Oakland. Moreover, when Loren White reported that Monday morning, pursuant to prior instructions, Parks admit- tedly told him to prepare his truck for the Pennsylvania run without at that time giving him any inclination about a decision to transfer the trucking operations. And while White was at the service station getting gas for the truck, he was suddenly recalled and told by Parks that his run was canceled because of "some trouble" and that he would be called "when things were straightened out." A driver from Sterling Processing then took over. Parks' testimony that he had White prepare to make the run to Pennsylvania that morning because Oakland had telephoned to report a mixup in drivers' schedules and to request him to make that run, does not bear scrutiny and is not credited. On direct examination, Parks testified that he was the one who called Oakland and that his purpose in calling was to find out what days they were working, information which was no longer necessary if Respondent did not have to schedule the drivers to pick up Oakland's offal. Manager Wise testified that they had forgotten to notify a driver to make the Monday run to Pennsylvania before he left for the weekend and were at first unable to locate him that Monday morning. This strains credulity to the breaking point if, as Wise testified, he had in fact had a full week's advance notice to take over Respondent's hauling operations as of Monday, March 6, had instructed his dispatcher to have a driver make the run to Pennsylvania on Monday, and had confirmed the arrangement the preceding Friday. Moreover, if the decision to make the transfer effective as of March 6 had in fact been made about a week in advance, there would have been no need for O'Malley to have notified Parks about noon on Saturday that Sterling Processing would take over .the hauling the following Monday. Finally, O'Malley gave no explanation for suddenly reversing his previously agreed upon program of not discharging any of Respondent's drivers but of making a gradual transfer of the operations while wait- ing until all the jobs had been eliminated through normal attrition. 2. Transfer not regarded as a fixed and firm arrangement: On Monday morning, March 6, Parks had told Loren White, after his recall from the service station and the cancellation of his run, that "there had been some trouble" and that he would be called "when things were straightened out." A few days later, Parks did tele- phone Loren White and inquired whether he would like to work as a laborer in the plant "until the situation was over." White agreed to try it out and worked for about a week. Parks also told White that they had transferred the truck hauling "for the time being" and that they would be back on the road "after a while." When White voluntarily quit his job in the plant, Parks told him that he was a good man and that Parks would like to have him back as a truckdriver.20 During their conversation at Manheim on Monday morning, O'Malley asked Clemens what employees he claimed to represent. Clemens listed the truckdrivers and laborers at Reedsville. O'Malley made no claim that the truckdriving had been eliminated and the operation transferred to another company. Charles Knotts had been hired as a strike replacement on March 8. During the first week of his employment, Knotts asked Parks about the possibility of getting a better job. Parks replied that they were going to take on new drivers if the Union did not get in and that Knotts would then have a "pretty good chance" of getting one of the truckdriving jobs. 20 Significantly, Respondent's brief makes no mention of these undenied statements of Parks after White was contacted to work in the plant. PRESTON FEED CORPORATION 639 During the strike, Parks also asked Curtis White, whom he accidentally met at the service station, when he would return to work. White replied that he was on sick leave and that as long as the "strike situation was on," he would not drive for the Company. That the transfer of the trucking operations was not regarded by Respondent as a fixed and firm arrangement is further shown by Respondent' s willingness to resume these operations only 2 months later when O'Malley informed Matthews of Respond- ent's offer of reinstatement to his former truckdriving job. Such resumption did not pose any difficult problems because both companies are controlled and operated by the same management. 3. Lack of economic necessity for the transfer: Respondent offered no records into evidence in support of the testimony that its rendering plant operated at a loss during 1960, or that, if such loss did occur, it was due to its trucking operations. That Re- spondent's officials felt that there was no urgency about effecting the transfer of its hauling operations but were willing to wait until the driving jobs were eliminated through the normal attrition of Respondent's drivers, tends to rebut this contention. Still stronger evidence refuting this contention appears in Parks' statements to Loren White and Knotts, as above set forth, and in Parks' admission of Respondent's will- ingness to resume its trucking operations if Matthews had accepted O'Malley's offer, made on May 4, of reinstatement by Respondent to his former truckdriving job. It is difficult to believe that, if Respondent had incurred losses because of its trucking operations and had made the transfer to Sterling Processing for the purpose of effect- ing economies in such operations, it would have been ready and willing to resume these operations only 2 months later and only about 10 days after President Ruby had informed the Union that there would not be any future vacancies for truckdrivers. 4. The disparate treatment accorded to Matthews: Matthews was an admittedly satisfactory driver with a good employment record. He was regarded as a safe, dependable driver and was complimented by Parks for constructing an electric hoist for loading the trucks more efficiently, a device which Loren White admittedly also used. He had seniority over Loren White and would have been raised to the maxi- mum of $1.50 per hour within a short time after his termination. Yet, Matthews was the only driver whose employment was terminated. As previously found, on Saturday afternoon, March 4, O'Malley informed Matthews that Parks was making different arrangements for the hauling and that his services were no longer required. No termination notice was ever given to Loren White and Curtis White, the other two drivers. Despite the fact that Matthews had not worked on Friday and Saturday whereas Loren White had worked those 2 days, the fact that Matthews lived only about 8 or 10 miles from the plant whereas Loren White lived about 25 miles away, and the fact that Matthews had seniority over Loren White and had such a good employment record, Parks instructed Loren White, and not Matthews, to make the Pennsylvania run on Monday morning, March 6, before it was called off. During the strike, Parks offered Loren White, who had neither signed a union card nor joined in the strike or picketing, another job in the plant and later told him that he would like to have him back as a truckdriver. Both Parks and O'Malley inquired of Curtis White, who was regarded as being on sick leave, as to when he would return to work. That Parks did not know whether Curtis White was a union supporter or adherent is apparent from his inquiry as to whether White was part of the strike "situation." No such offers, promises, or inquiries were made with respect to Matthews. Of the three drivers, Matthews was the only one who had frequently complained to O'Malley and Parks about not receiving sufficient hours of work and had also made frequent suggestions for increasing the hauling operations as well as for improving working conditions, none of which were acceptable to Respondent. Matthews then took the initiative in getting the employees interested in the Union and having a ma- jority sign the union authorization cards. Parks admitted that about a week before the strike he had heard rumors about union activity at the plant. The Union's letter, requesting recognition for the purpose of negotiating a collective-bargaining agree- ment, was received Saturday morning, March 4. That afternoon, Matthews was sum- marily notified that his services were no longer needed. The following Monday morning when Clemens accused O'Malley of having fired the man who had done most of the organizing, naming Matthews, O'Malley made no disclaimer of lack of knowl- edge of Matthews' role or activities in this respect During the first weer of the strike both O'Malley and Parks told employee Knotts that Matthews was fi-ed be- cause they found out about his union activity, as previously found. During the same period, also as previously found, Parks told employee Bohan that Matthews was no longer working because he had been "outlawed," adding that Matthews was believed to be the cause of the strike. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings Respondent's whole course of conduct, hereinabove detailed, is more consistent with, and more reasonably explained by, the following which I find truly reflects what actually occurred: Whether or not the transfer of Respondent's trucking oper- ations had been under prior consideration, there was no pressing economic necessity for effecting such a transfer. As previously found, the Union's letter, advising of its selection by Respondent's employees as bargaining representative for the purpose of negotiating a collective-bargaining agreement and requesting recognition as such representative, was received on Saturday morning, March 4. O'Malley was informed of the contents of that letter immediately upon its receipt and it was at that point that a decision was made to effect an immediate transfer to Respondent's trucking opera- tions as a maneuver to combat the Union. O'Malley, then, for the first time, com- municated his decision to Parks. According to Parks' own testimony, it was not until about noon on that Saturday that O'Malley informed him that all hauling opera- tions would be taken over by Sterling Processing as of the next working day, Mon- day, March 6. Thereafter, hurried arrangements were made with Manager Wise of Sterling Processing to take over the hauling operations the following Monday but not in sufficient time to enable him to contact a driver to be available for the Monday morning run to Pennsylvania before Loren White was required to prepare to make the run himself. Matthews was then treated differently from the other two drivers, and his employment terminated, because his union activities became known. The alleged economic considerations advanced by Respondent at the hearing as the as- serted reason for its conduct was seized upon as an afterthought to cloak its dis- criminatory motivation. I find that the decision to make the transfer of Respondent's hauling operations to Sterling Processing, effective as of Monday, March 6, was motivated by the Union's recognition letter, that the transfer was designed as a maneuver to dis- courage adherence to the Union and to undermine the status of the Union as the employees' collective-bargaining representative, and that Matthews' employment was terminated because of his union activities.21 By such conduct,' Respondent has dis- criminated with respect to its employees' hire, tenure, and terms and conditions of employment, thereby discouragaing membership in the Union in violation of Section 8(a)(3) and (1) of the Act. D. The refusal to bargain 1. The appropriate unit Respondent's rendering plant is located at Reedsville, West Virginia. It is en- gaged in the processing of poultry and animal offal into ingredients used for poultry and animal feed. The finished products of this plant are feather meal, byproduct meal, and a tallow or grease. The only nonsupervisory help employed by Respondent at the rendering plant are laborers and, prior to the transfer of its trucking opera- tions, truckdrivers. The Respondent also operates a feed mill at Manheim, West Virginia, about 25 miles from Reedsville, where it is engaged in the grinding, mixing, and pellatizing of feed owned by another corporation of the Sterling Enterprises. Only about five or six employees were working at this plant at all times material herein. The Respondent contends that, unless the employees of the Manheim plant are found to be agricultural employees, the only appropriate unit is one of the employees a I have fully considered, and found unpersuasive, the following additional factors relied upon by Respondent: (1) Sterling Processing is represented by the Meat Cutters and Teamsters Unions ; (2) Knotts was hired, despite his reply, in response to Parks' query as to what Knotts thought about the Union, that he believed there would be better-, working conditions with a union ; (3) District 50 made some attempt to organize Re- spondent's plant in 1959 and no one was fired; and (4) Matthews and three other em- ployees were hired by O'Malley although they had been employed by Armour and had been members of the Teamsters Union As to (1), the record does not disclose the circum- stances under which these unions were recognized As to (2), the Respondent was in no position to be selective, as it was in need of strike replacements, and it was not taking much of a chance in hiring an employee who was willing to cross the picket line and work during the strike As to (3), all that the record shows about District 50 is that Foreman Zinn had heard that men were signed up for District 50 and that he told Parks about It; this is hardly comparable to the instant case where the Union had succeeded in signing up a majority of the employees and the Respondent was confronted with a letter requesting recognition. As to (4), the record does not disclose that O'Malley was aware that these men had been employed by Armour and had been members of the Teamsters Union. PRESTON FEED CORPORATION 641 of both plants. The General Counsel contends that, regardless of the status of the employees of the Manheim plant, a unit confined only to the employees of the rendering plant is an appropriate unit. As previously noted, the two plants are located 25 miles apart. They operate under separate immediate supervision, with no interchange of employees. The em- ployee classifications differ and the wage rates are not necessarily the same. There is no bargaining history and no union is seeking a single unit of both plants. In view of the foregoing, I find, even assuming that the employees of the Manheim plant are not agricultural employees, that a unit confined to the rendering plant alone is an appropriate umt.22 Accordingly, I find that all employees of Respondent's plant at Reedsville, West Virginia, excluding supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Union's majority status The undisputed evidence shows that as of February 25 and March 4, 1961, there were 11 unit employees at Respondent's rendering plant, and that 9 of these em- ployees had signed valid union authorization cards by February 25, 19,61. I therefore find that the Union had been designated as the collective-bargaining representative by a majority of the employees in the appropriate unit by February 25, 1961.23 I further find that at all times on and after February 25, 1961, the Union has been and is the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. Conduct constituting a refusal to bargain in violation of the Act As previously found, on Saturday morning, March 4, Respondent received the Union's letter, advising that it had been selected by Respondent's employees as bar- gaining representative for the purpose of negotiating a collective-bargaining agree- ment and requesting recognition as such representative. The only answer Respondent ever made to this letter was to engage in the unfair labor practices of transferring its trucking operations and discharging Matthews, as previously found. In his con- versation with O'Malley on Monday morning, March 6, Union Business Agent Clemens in effect renewed his recognition request by referring to the Union's letter of March 3 and stating that the Union represented the employees at the Reedsville plant. Clemens also accused O'Malley of having discharged the Union's chief or- ganizer, and offered to prove the Union's majority representation by either a card check, a consent election, or an election by a neutral person, if O'Malley would re- instate Matthews and agree to maintain the status quo. At that time Clemens was unaware of the decision to transfer the trucking operations. When Clemens re- ported back to the men that afternoon, he was informed of the fact that Loren White had been called back while in the process of having his truck serviced and that his run was taken over by a driver from Sterling Processing of Oakland, Maryland. Realizing for the first time at this point that Respondent was eliminating its truck- driving jobs, a picket line was immediately set up. When O'Malley met Clemens on the picket line that same day, Clemens again offered to agree to a method for prov- ing the Union's majority if Respondent would reinstate Matthews and restore the- status quo as to the drivers. This Respondent never agreed to do The Union re- iterated its demand for recognition in its letter of April 28. The first and only reply- ever made by Respondent was O'Malley's letter, dated May 5, in which he stated that the question of representation must be determined by the Board. I find no merit in Respondent's contention that its failure to recognize the Union was based on a good-faith doubt as to the appropriate unit and as to the Union's majority representation. Clemens made it clear to O'Malley that the Union repre- sented the employees of the rendering plant at Reedsville. It was not denied that at no time did O'Malley or any other representative of Respondent express any doubt to Clemens on these matters.24 Indeed, it was Respondent who failed to agree to- Clemens' offer to prove the Union's majority in various ways Moreover, any genuine doubt as to the Union's majority representation should have been dispelled- when a majority of the employees of the rendering plant took part in the strike See, e g, Kearfott Company , Inc, 112 NLRB 978, 981; Gulf Soap Corporation, 48 LRRM 1313 ( not published in NLRB volumes). It is significant to note that even if the five or six employees of the Manheim plant= were included in the unit , the Union still maintained its majority representation. 24 See, e.g., Arts 1 Crafts Distributors, Inc., 132 NLRB 166. 630849-62-vol . 131 12 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which began on March 6 .25 Finally, Respondent's asserted good faith is completely belied by the unfair labor practices in which it engaged for the purpose of discourag- ing adherence to the Union and undermining the Union's representative status in response to the Union's first letter requesting recognition. During the first week of the strike, Respondent committed additional unfair labor practices violative of Section 8(a)(1), as hereinafter found. As a free election was thus made im- possible because of Respondent's unfair labor practices which Respondent refused to remedy, the Union made a timely withdrawal of its representation petition and pro- ceeded to establish its bargaining rights through this complaint proceeding.26 The Union's March demand for recognition as bargaining representative for the purpose of negotiating a contract for employees in an appropriate unit imposed upon Respondent a duty to grant such recognition and to bargain which Respondent may not, as it did, evade by failing to make or delaying its response, committing unfair labor practices, and then belatedly questioning the appropriate unit and the Union's majority status.27 In view of all the foregoing, I find that Respondent's failure and refusal to recognize the Union on and after March 4, 1961, constituted a refusal to bargain within the meaning of Section 8(a)(5) and (1) of the Act. E. Discrimination with respect to the hire and tenure of employment of the strikers 1. Nature of the strike The testimony is undisputed that the employees voted to strike to protest the dis- charge of Matthews and to obtain recognition of the Union. That the Respondent's conduct in withholding recognition while engaging in unfair labor practices was a contributing factor to the cause and prolongation of the strike became apparent when the employees and Clemens became aware, after his conversation with O'Malley on Monday, March 6, that Respondent was eliminating the jobs of truckdrivers. Indeed, it was Respondent's conduct in this respect which triggered the immediate setting up of a picket line. Any doubt that Respondent's refusal to recognize the Union was a contributing factor to the cause and prolongation of the strike is completely removed by Clemens' letter to President Ruby, dated April 28, 1961, in which Clemens states that "this strike was caused solely by your unfair labor practices, including your refusal to recognize Teamsters Local Union No. 789, as the exclusive bargaining representative of your employees in spite of our letter of March 3, 1961, requesting recognition." In any event, Respondent's failure to recognize the Union was clearly an additional factor which immediately contributed to the prolongation of the strike. I find that the strike, which began on March 6, 1961, and was still in effect at the time of the hearing in this proceeding, was caused and prolonged by Respondent's unfair labor practices in discharging Matthews and in failing and refusing to recog- nize the Union, as previously found. By identical letters dated May 4, 1961, Re- spondent offered the strikers and Matthews unconditional reinstatement to the job which they held prior to March 6. By identical-letters dated May 5, the strikers and Matthews refused to return to work unless Respondent recognized the Union, and indicated their intention to continue to protest Respondent's unfair labor practice in refusing such recognition. I find that on and after May 5, 1961, the strike was prolonged solely by Respondent's unfair labor practice in refusing to recognize the Union and that Matthews became an unfair labor striker on that date. 2. Failure to reinstate strikers As previously found, by letter dated April 18, 1961, the Union made an uncon- ditional request for reinstatement on behalf of eight named strikers. This request was refused by Respondent in a letter dated April 24. However, as previously noted, the strikers were offered unconditional reinstatement by letters dated May 4. At that time the strikers refused to accept this offer until Respondent recognized 25 Majority support of a strike is evidence that the Union represents a majority Seven-Up Bottling Company of Miami, Inc . 92 NLRB 1622, 1623, Irving Taitel, Ruth Tastel and Jerome Taitel, d/b/a I Taitel and Son, a partnership, 119 NLRB 910, 924; Michael Benevento and John Benevento d/b/a M. Benevento Sand & Gravel Co , 131 NLRB 358. Contrary to Respondent's assertions in its brief, strike replacements are not counted in determining the Union's majority status where the strike is caused and prolonged by Respondent's unfair labor practices, as hereinafter found _ 'Arts & Crafts Distributors, Inc, 132 NLRB 166. 27 Ibid. PRESTON FEED CORPORATION ` 643 the Union, and made known their intention to continue on strike in protest against Respondent's unfair labor practices in refusing to recognize the Union. Respondent was obligated to reinstate the unfair labor practice strikers upon their unconditional request, discharging, if necessary, any replacements in order to provide work for the strikers.28 Respondent's failure and refusal to do so during the period from April 18 to May 4, 1961, constituted discrimination against the strikers in violation of Section 8(a) (3) and (1) of the Act. F. Interference, restraint, and coercion In agreement with the General Counsel , I find, as alleged in the complaint, that Respondent interfered with , restrained , and coerced its employees in the exercise of their. statutory rights, in violation of Section 8(a)(1) of the Act, by the following additional conduct: 1. Plant Manager Parks' interrogation during the strike, as previously found, (a) of Knotts, who was applying as a strike replacement, as to what he thought of the Union, (b) of Bohan, who was on sick leave because of a plant injury, as to when he could return to work and if he had signed a union card, and (c) of Curtis White, who was on sick leave because of an injury, as to whether he was part of the strike "situation." 29 2. Parks' promise, in response to employee Knotts' inquiry as to opportunities for a better job after he had been working a short time as a strike replacement, that if the Union did not get in Knotts would have a "pretty good chance" of getting a truck- driving job, as previously found. 3. The photographing by Vice President Summers on the first day of the strike of the employees engaged in peaceful picketing on the entrance road leading to Re- spondent's plant, as previously found. In the absence of any explanation of justifica- tion for its conduct in this respect (and none appears in this record), such conduct has been held to constitute unlawful surveillance.30 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 the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discontinued the operations of its trucking services with its own employees in violation of Section 8(a)(3) and (1) of the Act, I will recommend that Respondent be ordered to resume operations of its trucking services with its own employee driver. The hauling operations are still needed in the conduct of Respondent's business; its performance for the Respondent was merely trans- ferred to a corporation controlled and operated by the same top management and constituting part of the Sterling Enterprise. As previously found, the transfer of these operations was not regarded by Respondent as a fixed and firm arrangement and their resumption by Respondent posed no difficult or serious problems. Under these circumstances, the requirement that Respondent be ordered to resume the hauling operations with its own employees imposed no undue hardship, is adapted to the situation calling for redress , and is necessary to effectuate the policies of the Act .31 As Respondent's unlawful discontinuance of its trucking operations eliminated the truckdriving jobs, it is necessary in order adequately to effectuate the policies of the Act to require Respondent to remedy any loss of jobs or earnings incurred by anyone employed at that time as a truckdriver, whether or not he has any interest ° See,'e g, Winchester Electronics, Incorporated, Pyne Moulding, Inc, 128 NLRB 1292, Walsh-Lumpkin Wholesale Drug Company. 129 NLRB 294 ^ It is clear from' the context that such Interrogation was not engaged in for the pur- pose of ascertaining the validity of the Union's majority claim. '' See, e g, Radio Industries, Inc, 101 NLRB 912, 914, 625; Hudson Hosiery Company (Monroe Road Plant), 109 NLRB 1410, 1411, 1416 Hugh Major d/b/a Hugh Major Truck Service, 129 NLRB 322 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Union or has been specifically named in the complaint. At the time of the discontinuance of the trucking operations , Respondent admittedly had in its employ three truckdrivers, Loren White, Curtis White, and Matthews. All three were deprived of their truckdriving jobs as a result of Respondent's unlawful conduct. I will therefore recommend that Respondent be ordered to offer to Loren White and_ Curtis White, if physically able to resume said work, immediate and full reinstate- ment to their former or substantially equivalent positions as truckdrivers, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings each may have suffered as a result of the discriminatory dis- continuance of the trucking operations by payment to Loren White of a sum of money equal to the amount he normally would have earned as a truckdriver from March 6, 1961, the effective date of the discontinuance of the trucking operations,. and by payment to Curtis White of a sum of money equal to the amount he normally- would have earned as a truckdriver from the date he was physically able to resume such work, to the date of Respondent's offer of reinstatement in each case, less his. net earnings during said period, with backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Matthews' case must be treated differently, as he refused Respondent's uncondi- tional offer of reinstatement to his former position on May 4, and at that time be- came an unfair labor practice striker. However, as I have previously found that Matthews was discharged on March 4 because of his union activities, the Respondent shall be required to make him whole for any loss of earnings he may have suffered- as a result of the discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as a truckdriver from March 4, 1961, the date of his discharge, to May 4, 1961, the date of Respondent's uncondi- tional offer of reinstatement, less his net earnings during said period , with backpay- computed in the same manner as above. Having previously found that Respondent discriminated against the unfair labor- practice strikers by failing and refusing to reinstate them, upon their unconditional- request, during the period from April 18 to May 4, 1961, 1 will recommend that Respondent be ordered to make each whole for any loss of earnings each may have suffered during this period as a result of such discrimination, in the same- manner as above. Having found that the strike continued to be prolonged on and after May 5 - by Respondent's unfair labor practice in refusing to recognize the Union, I will further recommend that Respondent be ordered to offer to the unfair labor practice strikers, including Matthews, listed in the Appendix hereto, upon their unconditional applications, immediate and full reinstatement to their former or substantially equiv- alent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any person hired on and after March 6, 1961, to provide- places for the returning strikers. I will also recommend that Respondent be or- dered to make said striking employees whole for any loss of pay they have suffered' or may suffer by reason of Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which each normally would have earned as wages during the period from 5 days after the date on which an individual employee applies for reinstatement to the date of Respondent's offer of reinstatement, less his net earnings during said period , in accordance with the formula prescribed in the Woolworth case, supra.32 Having found that Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, I will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of- all its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. In view of the nature and extent of Respondent 's unfair labor practices, I am convinced and find that there exists the danger of the commission of similar and other unfair labor practices proscribed by the Act. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order therefore to make more effective the interdependent guarantees of Section 7 to prevent a recurrence of unfair labor practices , and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of- the Act, I will recommend that Respondent be ordered to cease and desist from infringing - in any other manner upon the rights guaranteed in Section 7 of the Act. 82 See, e g, Concrete Haulers, The, Wamie, Inc., and Red-D-Mix, Inc., 106 NLRB 690,_ 693-694, enfd . 212 F. 2d 477 ( C.A. 5) ; Buffalo Arms. Inc. Division of Frontier Industries,. Inc., 110 NLRB 816. PRESTO N FEED CORPORATION 645 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. All employees of Respondent's plant at Reedsville, West Virginia, excluding supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 789, a labor organization within the meaning of Section 2(5) of the Act, has been at all times on and after February 25, 1961, the exclusive representative of all the -employees in the aforestated appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By failing and refusing at all times on and after March 4, 1961, to bargain ,collectively with the above-named labor organization as the exclusive representative of its employees in the aforestated appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) •of the Act. 4. By discriminating with respect to the hire, tenure, and terms and conditions of employment of its truckdrivers, including Donald Matthews, and of the unfair labor practice strikers who were denied reinstatement from April 18 to May 4, 1961, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 5. By the foregoing and by the conduct set forth in section III, F, supra, the Respondent has interefered with, restrained, and coerced its employees in the exer- cise of rights guaranteed by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The strike, which commenced on March 4, 1961, was caused and prolonged by Respondent's unfair labor practices, as set forth in section III, E, 1, supra, and hence was an unfair labor practice strike. 7. 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 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Preston Feed Corporation, Reeds- ville, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Teamsters, Chauffeurs, Warehouse- men & Helpers Local Union No 789, or any other labor organization of its em- ployees, by discriminatorily transferring its trucking or any other operations, by .discriminatorily discharging or refusing to reinstate any of its employees , or by dis- ,criminating in any other manner in regard to its employees ' hire and tenure of em- ployment or any term or condition of employment. (b) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, with the above-named labor organization , as the exclusive representative of its employees in the following appropriate unit : All employees of Respondent's plant in Reedsville , West Virginia, excluding supervisors as defined in the Act. (c) Promising employees opportunities for better jobs or other economic bene- fits if the Union does not become the employees ' collective-bargaining representa- tive, engaging in surveillance, and interrogating employees or applicants for em- ployment concerning their union membership, attitude , sympathies, or activities, in a manner constituting interference , restraint, or coercion within the meaning of Section 8 (a)( I) of the Act. (d) In any other manner interfering with , restraining, or coercing its 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, to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified Thy the Labor-Management Reporting and Disclosure Act of 1959. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and con- ditions of employment, and embody in a signed agreement any understanding reached. (b) Resume trucking operations with its own employee drivers and offer to Loren White and Curtis White, if physically able to resume such work, immediate and full reinstatement to their former or substantially equivalent positions as truckdrivers, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them in the manner set forth in "The Remedy" section of this report. (c) Make whole Donald Matthews for any loss of earnings he may have suffered from March 4, 1961, the 'date of his discriminatory discharge, to May 4, 1961, the date of Respondent's unconditional offer of reinstatement, in the manner set forth in "The Remedy" section of this report. (d) Make whole the remaining employees listed in the Appendix hereto for any loss of earnings each may have suffered as a result of Respondent's discrimination against them during the period from April 18, 1961, the date of their unconditional request for reinstatement, to May 4, 1961, the date of Respondent's offer of rein- statement, in the manner set forth in "The Remedy" section of this report (e) Upon application, offer to Donald Matthews and to the employees referred to in the preceding paragraph, all of whom are listed in the Appendix attached here- to, immediate and full reinstatement to their former or substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any persons hired on or after March 6, 1961, and make them whole for any loss of pay .they have suffered or may suffer by reason of the Respondent's refusal, if any, to reinstate them, in the manner set forth in the section of the Inter- mediate Report entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary for the de- termination of the amount of backpay due and the right of reinstatement under these Recommendations. (g) Post at its plant in Reedsville, West Virginia, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being duly signed by the Respondent's authorized representative, 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 to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for the Sixth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report, what steps it has taken to comply herewith. I further recommend that unless within the prescribed period the Respondent notifies the said Regional Director that it will comply with the foregoing Recom- mendations, the National Labor Relations Board issue an order requiring the Re- spondent to take the action aforesaid. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Teamsters, Chauf- feurs, Warehousemen & Helpers Local Union No. 789, or any other labor or- ganization of our employees, by discriminatorily transferring our trucking or any other operations, by discriminatorily discharging or refusing to reinstate any of our employees, or by discriminating in any other manner in regard to our employees' hire, tenure, or any term or condition of employment. WE WILL NOT promise employees opportunities for better jobs or any other economic benefits if the above-named Union does not become the employees' collective-bargaining representative; WE WILL NOT engage in surveillance; GENERAL PLANT PROTECTION CORPORATION 647 and WE WILL NOT interrogate employees or applicants for employment con- cerning their union membership, attitude, sympathies, or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce em- ployees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive bargaining representatives of all employees in the following unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All em- ployees of our plant in Reedsville, West Virginia, excluding supervisors as de- fined in the Act. WE WILL resume trucking service with our own employee drivers. WE WILL offer to Loren White and Curtis White, if physically able, imme- diate and full reinstatement to their former or substantially equivalent positions as truckdrivers, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them. WE WILL, upon application, offer the following employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they have suffered by reason of our refusal to reinstate them. David L. Adams Kenneth G. Croft Darwin Bohan Joseph P. DeSantis Buck D. Cole Keith E. McKinney Jack L. Cole Ronald L. Waybright Donald Matthews WE WILL further make Donald Matthews whole for any loss of earnings he may have suffered from March 4 to May 4, 1961, and the remaining employees, listed in the preceding paragraph, whole for any loss of earnings they may have suffered from April 18 to May 4, 1961. All our employees are free to become, remain, or refrain from becoming or re- maining, members of any labor organization, except to the extent that this right may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment. PRESTON FEED CORPORATION, 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. General Plant Protection Corporation and United Plant Guards Amalgamated, Local No. 5. Case No. 19-CA-2213. November 00, 1961 DECISION AND ORDER On September 6, 1961, Trial Examiner William Spencer issued his Intermediate Report, finding that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8 (a) (3) 134 NLRB No. 68.