Trumbull Asphalt Co. of Delaware

TRUMBULL ASPHALT COMPANY OF DELAWARE 1221 (c) Notify the Regional Director for the Fourth Region , in writing, within 20 days from the date of this Order , what steps the Respondent has taken to comply herewith.27 21 In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, as the exclusive representative of all our employees in the bar- gaining units described below with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining units are: Shop personnel, but excluding salesmen, office and shop clericals, and supervisors as defined in the Act. Salesmen, but excluding shop personnel, office and shop clericals, and supervisors as defined in the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act by refusing to bargain col- lectively with the above-named Union or by bargaining directly and individually with employees, or by changing wage rates, insurance or fringe benefits, with- out bargaining collectively therefor with the Union, or by any like or related action. WITHAM BUICK, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania, Telephone Number, Pennypacker 5-2612, if they have any questions concerning this notice or compliance with its provisions. Trumbull Asphalt Company of Delaware and Petroleum, Tire, Automotive Service and Parts Drivers, Warehousemen, Serv- ice Station Attendants , Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local Union No. 977, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 18-CA-1329. November 23, 1962 DECISION AND ORDER On March 23, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report herein, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative 139 NLRB No. 97. 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action, as set forth in the attached Intermediate Report. There- after, exceptions to the Intermediate Report and supporting brief were filed by the Respondent and the General Counsel. 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 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 briefs, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein.' Our dissenting colleague would not enter a remedial order in the cases of discriminatees Maxwell and Xollodge because of alleged mis- conduct engaged in by them during the strike beginning on Septem- ber 15, 1961. The Trial Examiner did not actually credit the testi- mony given with respect to the alleged misconduct. Accepting it at "face value," we found that it had no bearing on the issues in the case. We think the Trial Examiner's view of the evidence was erroneous, but we also reject our colleague's reliance upon it in withholding a remedial order. The Respondent in this case has engaged in serious violations of the Act, and it is the Board's responsibility to fashion a remedy which will effectively remedy those unfair labor practices. The customary remedy for discriminatory discharges, such as were visited upon Max- well and Kollodge, is an order designed to remedy the public wrong which has taken place because of the Employer's defiance of the Act, namely, reinstatement with backpay. Where, however, a discrimi- natee has engaged in misconduct so flagrant or violent as to render him unfit for further service, it Would not effectuate the policies of the Act to order his reinstatement and backpay and, therefore, in such cases, the Board withholds its customary remedy.' In assessing the gravity of the incidents relied upon herein by our colleague, account must be taken of the provocation inherent in the unfair labor practices committed by Respondent as well as of the realities of industrial life. In the Republic Steel Corporation case,3 the court said: "A strike is essentially a battle waged with economic weapons. Engaged in it are human beings whose feelings are stirred 1 We hereby correct a factual error in the Intermediate Report The Trial Examiner, in his discussion entitled "Interrogation ," appears to indicate that Flick, secretary- treasurer of the Union, protested the discharge of the two employees on August 29, 1961 The record shows that Flick , in later testimony, stated that on August 29, 1961, he told Superintendent Taylor that the Union represented the employees , and that he protested the discharges on a date after August 29 2 Republic Steel Corporation v. N.L.R.B ., 107 F. 2d 472 (C.A. 3 ) ; N.L.R B. v. Illinois Tool Works, 153 F. 2d 811 ( CA. 7) ; Puerto Rico Rayon Mills, Inc., 117 NLRB 1355; Stewart Hog Ring Company, Inc, 131 NLRB 310 3 Supra. TRUMBULL ASPHALT COMPANY OF DELAWARE 1223 to the depths. Rising passions call forth hot words. Hot words lead to blows on the picket line. The transformation from economic to physical combat by those engaged in the contest is difficult to prevent even when cool heads direct the fight. Violence of this nature, how- ever much it is to be regretted, must have been in the contemplation of Congress when it provided in Sec. 13 of the Act . . . that nothing therein should be construed so as to interfere with or impede or diminish in any way the right to strike. If this were not so the rights afforded to employees by the Act would be indeed illusory. We ac- cordingly recently held that it was not intended by the Act that minor disorders of this nature should deprive a striker of the possibility of reinstatement." Judged in this light, and considering that the discriminatees may have uttered mere threats which were never carried out, that their acts were not disloyal or insubordinate to Respondent, and that it does not appear that their employment would cause strife or hamper produc- tion, we believe the misconduct in this case, if any, was not of such character as would render Maxwell and Kollodge unfit for further employment.4 In view thereof, consistent with Board and court precedent, we are ordering the reinstatement of Maxwell and Kollodge with full backpay. Anything less will not effectively remedy the ef- fects of Respondent's unfair labor practices or adequately serve to protect rights guaranteed by the Act.' We find, contrary to the Trial Examiner, that the backpay obliga- tions of the Respondent with respect to the discriminatees shall in- 4 Republic Steel Corporation v N L R.B., supra; Stewart Hog Ring Co., Inc, supra; Schott Metal Products Company, 128 NLRB 415 5 Member Rodgers would deny reinstatement and cut oft backpay with respect to Maxwell and Kollodge because of their picket line misconduct. The record clearly and unequivocally shows that pickets Kollodge and Maxwell, during the strike, warned employee Larry D Johnson not to come to work ; told him he "had better have good window breakage" for his car, and told Johnson to get off the plant and to quit work, gave him a time limit of 15 minutes to do so, and told him if he did not leave that "the rest of the Union guys would get me [Johnson] in the morning" Johnson testified that he was put in fear of bodily harm by these warnings Moreover, after he was thus warned, Johnson did not work for 5 weeks, thus losing this amount of work time In addition, employee Vanas testified that about a week after the strike started the pickets blocked the driveway with cars and stopped him Maxwell walked up to Vanas with a "pretty good-sized" rock in his hand and told Vanas: ". . . the screws were on, I couldn't go through the picket line any more. I was the only scab that was getting back and forth and I couldn't come to work that night, if I did, I would have to sneak, and I shouldn't be caught sneaking because they would beat me up and to watch my family and child, take good care of my car because they might put sugar in the gas tank and needs a new paint job." Vanas testified that Maxwell warned him "to take care of" his family, as they, the pickets, knew where his family lived. Superintendent Taylor testified without contradiction that he saw picket Maxwell throw himself in front of a moving truck, owned by Sun Roofing Company, which was attempting to make a delivery. As a result, the driver put on his brakes and the truck was damaged. In these circumstances, ,Member Rodgers would find that the above-described conduct is sufficient to bar Maxwell and Kollodge from reinstatement, and also from backpay dat- ing from the time of the misconduct Ekco Products Company (Sta-Brite Division), 117 NLRB 137, at 148-149; see Mid-TVest Metallic Products, Inc, 121 NLRB 1317, 1320; New Hpdcn Coal Company, 108 NLRB 1145, 1148-1149 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elude the payment of interest at the rate of 6 percent per annum. Such interest shall be computed in the manner set forth in Isis Pbwmb- ing c0 Heating Co., 138 NLRB 716.8 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Trumbull Asphalt Company of Delaware, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Petroleum, Tire, Automotive Service and Parts Drivers, Warehousemen, Service Station Attend- ants, Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local No. 977, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, or in any other such organization of its employees, by terminating the employment of, and refusing to reinstate, any of their employees or by discriminating in any other manner in regard to their hire or tenure of employment or any other term or condition of employment, except to the extent permitted by the proviso in Section 8(a) (3) of the Act as modified by the Labor- Management Reporting and Disclosure Act of 1959. (b) Interrogating any of its employees regarding their union membership in, or activities on behalf of, Petroleum, Tire, Automo- tive Service and Parts Drivers, Warehousemen, Service Station At- tendants, Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local Union No. 977, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, or any other labor or- ganization, in a manner constituting a violation of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or mutual aid or protection, or to refrain from any and 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 by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 6 For reasons set forth in his dissent in Isas Plambsng t Heating Co., 138 NLRB 716, Member Rodgers would not grant interest on backpay , and does not approve such an award here TRUMBULL ASPHALT COMPANY OF DELAWARE 1225 2. Take the following affirmative action, which it is found will effectuate the policies of the Act : (a) Offer to Robert Crouse, Charles Jacobson, Larry L. Sumner, Zeno Tomala, James H. Maxwell, Rollo Kollodge, and Lawrence Guck immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; and make whole Robert Crouse, Charles Jacob- son, Larry D. Johnson, Arthur Moen, Larry L. Sumner, Zeno Tomala, James H. Maxwell, Rollo Kollodge, and Lawrence Guck, in the man- ner set forth in the section of the Intermediate Report entitled "The Remedy," as modified by this Decision and Order, for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (b) Preserve, and upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, 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 plant at Minneapolis, Minnesota, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by Respondent or by Respondent's authorized representative, be posted by 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 its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighteenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith? T 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." 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: WE WILL NOT discourage membership of our employees in Pe- troleum, Tire, Automotive Service and Parts Drivers, Warehouse- men, Service Station Attendants, Helpers, Bulk Plant, Parking 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lot and Ramp Employees, Local Union No. 977, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, or any other labor organization, or in any man- ner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist said labor organization, or any other labor organization, to bargain collective through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining 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 organ- ization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act, as amended. WE WILL NOT interrogate our employees concerning the identity of members or supporters of the above-named Union or any other labor organization in a manner constituting interference, re- straint, and coercion in violation of Section 8(a) (1) of the Act. EVE WILL offer Robert Crouse, Charles Jacobson, Larry L. Sumner, Zeno Tomala, James H. Maxwell, Rollo Kollodge, and Lawrence Guck immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make whole Robert Crouse, Charles Jacobson, Larry D. Johnson, Arthur Moen, Larry L. Sumner, Zeno Tomala, James H. Maxwell, Rollo Kollodge, and Lawrence Guck for any loss of pay they may have suffered as a result of our discrimination against them. TRUMBULL ASPHALT COMPANY OF DELAWARE, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Room 316, Federal Building, 110 South Fourth Street, Min- neapolis, Minnesota, Telephone Number, 339-0112, Extension 2601, if they have any question concerning this notice or compliance with its provisions. TRUMBULL ASPHALT COMPANY OF DELAWARE 1227 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Section 151 et seq., herein called the Act. Petroleum, Tire, Automotive Service and Parts Drivers, Warehousemen, Service Station Attendants, Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local Union No. 977, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein sometimes called Local 977 or the Union, on October 9, 1961, filed a charge against Trumbull Asphalt Company of Delaware, the Respondent herein, sometimes called the Employer or the Company, and on Novem- ber 13, 1961, filed a first amended charge against the Respondent, alleging that the Employer "has engaged in and is engaging in unfair labor practices" within the meaning of Section 8(a), subsections (1) and (3) of the Act. The General Counsel of the National Labor Relations Board, on behalf of the Board, by the Regional Director for the Eighteenth Region, on November 22, 1961, issued a complaint and notice of hearing, the complaint setting forth certain alleged unfair labor practices, within the meaning of Section 8 (a) (1) and (3) of the Act, said to have been com- mitted by the Respondent. The Respondent, on November 29, 1961, filed an answer to the complaint, effectively denying all of the allegations of unfair labor practices as set forth in the complaint. On the issues framed by the complaint and the answer, this matter came on to be heard before Trial Examiner Arthur E. Reyman at Minneapolis, Minnesota, on January 9, 1962, and was closed on the following day. At the hearing, each party was afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues, and each was afforded opportunity to argue orally upon the record, to file proposed findings of fact and conclusions or both, and to file briefs. Briefs have been submitted by counsel for the General Counsel and for the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF TRUMBULL ASPHALT COMPANY OF DELAWARE Trumbull Asphalt Company of Delaware is a Delaware corporation maintaining an office and place of business at Minneapolis, Minnesota, where it is engaged in the processing and blending of asphalt products. The Respondent also operates plants in States of the United States other than the State of Minnesota. During the 12 months immediately preceding the issuance of the complaint herein, the Respondent made purchases from points outside the State of Minnesota valued in excess of $50,000 The Respondent is now and at all times material herein has been engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED Petroleum, Tire, Automotive Service and Parts Drivers, Warehousemen, Service Station Attendants, :'_elpers, Bulk Plant, Parking Lot and Ramp Employees, Local Union No. 977, international Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, is now and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that on or about July 27, 1961,1 the Respondent, through named officers and agents, discharged its employees Robert Crouse, Charles Jacob- son, Larry D. Johnson, Arthur Moen, Larry L. Sumner, and Zeno Tomala because they engaged in concerted activities for the purposes of collective bargaining and other mutual aid or protection; that since that time the Respondent has failed and refused to reinstate said employees to their former positions of employment; that the Respondent through its officers and agents, discharged James H. Maxwell on September 1, 1961, Rollo Kollodge on September 1, and Lawrence Guck on Sep- tember 8, for the same reasons as the discharge of the other employees, and has failed and refused to reinstate these three employees to their former or substantially equivalent positions of employment The complaint further alleges that since on or about August 28, and at various times thereafter, the Respondent through two named agents has interfered with, restrained, and coerced, and is interfering with, 1 Unless otherwise noted, all dates hereinafter mentioned are for the year 1961 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restraining, and coercing, its employees in the exercise of rights guaranteed in Section 7 of the Act by interrogating its employees concerning their support of and activity on behalf of the Union. The acts set forth in the complaint are said to be unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. At the hearing it was stipulated that Crouse, Jacobson, Johnson, Moen, Sumner, and Tomala were former employees whose employment terminated on July 27; that Maxwell and Kollodge were former employees who were discharged on September 1, and that Guck was a former employee who was discharged on September 8.2 The General Counsel in his brief has correctly set forth the issues to be determined herein: 1. Were Crouse, Jacobson, Johnson, Moen, Sumner, and Tomala discharged be- cause they were engaged in concerted activity for their mutual aid and protection? 2. Were Maxwell, Kollodge, and Guck discharged because of their support and activities on behalf of the Union? 3. Were certain remarks made by Plant Superintendent John Taylor to Larry D. Johnson violative of Section 8(a) (1) of the Act? 4. Was Johannes Arnold-bik a supervisor within the meaning of Section 2(11) of the Act, and were certain remarks made by him to Maxwell violative of Section 8(a)(1) of the Act? Background On June 19, Plant Superintendent Taylor was in complete charge of the Min- neapolis plant, reporting to Garrett F. Knoll, area manager and industrial relations manager for the Company, and under Taylor was Foreman Marcel Brenny. The Company then had among others in its employ Crouse, Jacobson, Moen, Sumner, and Tomala. On this day Sumner, Moen, and Tomala met with Superintendent Taylor, Brenny being present, and complained about working conditions in the Minneapolis plant. Sumner, as spokesman for the employees and as head of the delegation, asked for correction of certain working conditions. He said then that the men did not want to lose a day off-Friday or any other day-and be required to work on Sundays; that there should be a wage adjustment, a warm locker room provided, an improved lighting system effected, and an extended vacation plan put into effect. Taylor replied that he would have to "call Chicago" (the executive headquarters); Sumner said then that if nothing was done "they would get the Union in." Again, according to Sumner, Taylor informed him that a straight 6-day week would be put into effect; however, he said Sunday work resumed about 1 week after that meeting and Taylor's telephone call. On about July 24, the same group met. Taylor was present with Brenny. Sumner again was spokesman for the group of employees and for himself, and on their behalf stated plainly that the employees would give their employer "until Saturday" to have the Company meet their demands "or they would shut the plant down." A meeting was set for Thursday, July 27. During the times before men- tioned, it would seem that Taylor was dependent upon the word of Knoll, operations manager and general production manager of the overall operations of the Company, to decide whether the Minneapolis plant of the Company should or should not ac- cept the employees' demands or requests. A meeting was held on July 27, at which Knoll, who had come to the Minneapolis plant for the purpose, was present with Taylor, Brenny, and Gar C. Graham, assistant to Knoll. Sumner and each of the other employees made known their demands to improve their wages and working conditions and all agreed that if their demands were not met, they would close down the plant the following Saturday night, July 29. Knoll inquired from each of the men present whether he joined in the demands and whether or not he intended to adhere to the ultimatum that the demands be met or they would "shut her down" on Saturday, and each man said that that was his feeling. Knoll told the men that he could not accept their ultimatum and that they had quit. Sumner and the others said that they had not quit. Knoll adhered to his position that they had quit their jobs, and upon learning that pay- checks for the men, which were due to be distributed the following day (Friday) were in, he instructed Taylor to hand out the paychecks to the assembled employees since they had quit their jobs.3 The Respondent states in brief that: 2 It further was stipulated at the hearing that the Union, on August 29, filed a petition for certification ("RC" petition) at the office of the Board's Eighteenth Region, which re- sulted in a hearing being convened on October 5 but canceled on October 9, on which latter date the Union withdrew. 8 According to Brenny, he was present when Taylor called Knoll after the meeting on July 24, and heard Taylor's end of the conversation. He said that after Taylor had finished talking to Knoll, he reminded Taylor that he had failed to mention the strike threat but that Taylor said that he had, TRUMBULL ASPHALT COMPANY OF DELAWARE 1229 It is uncontroverted in the evidence that unless the employees' demands for changes in working conditions were accepted by Respondent, the men would go on strike. I believe this to be an accurate statement. A close examination of the record will disclose no great variance in the testimony of each of the persons who described as witnesses what had occurred at the meeting on July 27. The testimony of Brenny, the foreman, coincides greatly with that of Sumner and Tomala. There is some question as to whether General Manager Knoll or one of the employees first brought up the question of whether the checks were in, but to me this is not of much consequence, since the matter of the checks was raised after Knoll had told the men they had quit and after the men had denied that they had quit. The fact remains that the checks were distributed that day, and that Knoll promised an adjustment on vacation pay. The Status of Arnold-bik as an Employee The complaint, as amended at the hearing, alleges that Johannes Arnold-bik, during the times material herein, was a supervisor within the meaning of Section 2(11) of the Act and that as a supervisor Arnold-bik made certain statements to James Maxwell, an employee, to the effect that if he tried to organize a union Max- well would be fired and that the Company would not stand for a union; that when Arnold-bik gave Maxwell the latter's final paycheck, Arnold-bik told him that he had warned him what would happen if he joined the union. Arnold-bik was employed by the Company at its Kearny, New Jersey, plant from about March 1957 to approximately July 31, 1961. A few days prior to the latter date, Gar Graham, a company official at Kearny, informed him that they would like to transfer him to the Minneapolis plant, that he was transferred, and reported for work to the Minneapolis office. At this time the Minneapolis plant was short- handed because of the occurrence of July 27, when Knoll is said to have discharged the full crew. Arnold-bik said that when he reported for work "he operated the plant" which I take to mean that he went to work as an operator and performed the work necessary to the production of company product in ordinary course, his work being that usually previously performed by Moen and the other operators and sometimes by Brenny, the foreman. According to the testimony of Maxwell, he observed Arnold-bik performing duties of a mechanical nature, saw him per- forming manual labor, performing duties similar or identical to what operators and assistant operators usually performed and in general filled in at the plant at a time when supervisors and new employees were performing work previously done by the employees whose employment terminated on July 27. There is no substantial testimony in the record to show that Arnold-bik was a supervisor within the meaning of the definition in the Act. He had no right to hire or fire or to effectively recommend hiring or firing; he acted as an operator at the Kearny plant and sometimes as an assistant operator-he performed the same functions at the Minneapolis plant. It seemed to me at the hearing, after the testimony in this respect was in, that Arnold-bik was shown to have been a fully qualified man, brought in to Minneapolis at a particular time when the Company was experiencing difficulty in operating the plant and that he was brought in as a troubleshooter and one qualified to take the place of operators whose employment had been terminated, or who were out on strike. To me, the proof here is not sufficient to show that Arnold-bik acted as a supervisor during the times material herein and therefore I shall recommend that the allegations of contraventions of the Act by the Respondent through him as set forth in the complaint as amended, be dismissed. Concerted Activities of Employees and Results Thereof The meeting of employees with Superintendent Taylor on June 19 was the result of discussions held between Sumner, Crouse, Jacobson, Johnson, Moen, and Tomala concerning what should be done by them in an effort to accomplish an increase in wages and betterment of working conditions at the plant. As noted above, their requests were presented at the meeting of June 19 and repeated at the meeting held on July 24. Thus, on the record, it clearly appears that the employees were engaged in "concerted activity" with a view toward improving their wages and working conditions-and when they met with Superintendent Taylor it was for the purpose of collective bargaining or other mutual aid or protection. Their activities in this respect certainly were those concerted activities protected under Section 7. The meeting on July 24 was definitive in that the Respondent through Taylor was in- formed that if their demands were not met they would shut down the plant and 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD invoke the aid of a union to press their demands. The strike threat was repeated at the meeting of July 27, when their employment was terminated by the action of Knoll who said that they had quit after he had been advised of the position of the employees in regard to their proposed effort to enforce their demands. There is no denial that the demands were made. On the contrary General Manager Knoll testified that he told them that as he saw it he felt they were "essentially quitting." As shown by the record, Mr. Knoll himself asked about the "ultimatum" and Sumner told him that that was correct, an ultimatum had been given to Mr. Taylor and that the men wanted an answer before the end of the week or else the men would "shut her down," meaning, of course, that the men would go out on strike. Taylor and Graham, a visiting official who was also present at the July 27 meeting, cor- roborated in full substance the demands made by the men and their position that they would close the plant down on the following Saturday unless the demands were met. I find, too, that when the six employees unanimously agreed on the demands made upon the Company, collectively and singly upon questioning by knoll, Knoll not only refused to discuss the demands but decided to discharge the employees forthwith in order to discourage their concerted activity and impliedly to unburden the Company of the possibility of having to deal with a union as representative of the men. It should be noted that Brenny, the foreman, resigned his position on July 28, the day after the Respondent terminated the employment of the six employees, he then advising General Manager Knoll that he felt that he was being blamed because of what had occurred: Well, I asked him [Knoll] about what happened the preceding day, who he felt was to blame and he replied I was the number one instigator of it, that I could have, I should have notified him earlier that I had knowledge of it, which I did not. I had equal knowledge of Taylor on the 19th at the time which he did not report it to Chicago, so something he did I should not be held liable for it. So then he spoke up and he used, well, as an example, the men as a bag of apples, if you have one bad apple in the bag you don't leave that one in to spoil the whole works, you get rid of it So he came out point blank and he said that I shuld have fired Sumner and maybe weed out the other guy. So I replied to him, I said, "Well, Mr. Knoll, you say 1 should fire them. According to your labor policy I'm not authorized to fire ..." Brenny also testified that Gar C. Graham, who had been assigned to the Min- neapolis plant to direct the work on the installation of a new fuel system asked h;m: . if the men were bluffing on their demands, and I told him that I was neutral, I did not know actually but I didn't think they were bluffing. That was just merely my o,,, a opinicn. He stated that if they got a union, Knoll, he said, everything will be all right if they 6on't get a union. He said if they did get a union it will take 6 months to get everything squared away before they get any benefits This way, if they are not bluffing, Mr. Knoll may go along with their demands, if they are not too great. The testimony of Brenny confirms the testimony of the employees to the effect that Knoll, upon receiving the so-called "ultimatum" of the men, immediately told them they had quit and that his assertion immediately was denied by the men who took the position that they had been fired. Graham as a witness was not questioned on, nor did he deny, the conversation be- tween him and Brenny as reported by Brenny. General Manager Knoll denied telling Brenny that he should have fired Sumner as being a "bad apple." Knoll said that at the meeting he informed the employees that the management of a business was reserved to the Company and he did not believe that management of the busi- ness should be relinquished to its employees as such, although he certainly was willing to entertain questions o; complaints or suggestions; however, he did not think it was constructive to accept them on the basis of an ultimatum and that the Company could not accept an ultimatum as such, and as he saw it, he felt the em- ployees essentially were quitting their jobs. He said that to this Sumner replied "Well, I guess we are" His testimony, therefore, is more or less in line with the testimony of the other witnesses In full circumstance of the meeting, and without regard as to who first brought up the question of the paychecks being available, I find that Knoll did discharge the employees on July 27 at the meeting and that such discharges were the direct consequence of Knoll's knowledge of the concerted activities of the employees looking toward improved wages and working conditions and their threat of a strike and the calling in of a union. TRUMBULL ASPHALT COMPANY OF DELAWARE 1231 Over the objection of counsel for the General Counsel, I received into evidence personnel records pertaining to Crouse, Jacobson, Sumner, and Tomala, the record as to each man showing as reason for discharge "quit disahsfied." The General Counsel asserts that these records are self-serving. That may be true, as a matter of evidence. However, I shall find that this record as to each man is inaccurate since the whole preponderance of the evidence goes to show that although the men were dissatisfied they did not quit their jobs but were discharged for the reasons stated above. I think motivation on the part of the Respondent is clearly established on the preponderance of the evidence and that the conduct of the Respondent was such that it revealed its hostility toward any concerted activity on the part of its employees as well as an effort to discourage union organization. Johnson, one of the men discharged on July 27, on the afternoon of the following day spoke to Superintendent Taylor about returning to work. Taylor told him he would have to talk to General Manager Knoll, that he did speak to Mr. Knoll at the airport and the latter told him he could have his job back, advising him "to keep my feet on the floor, keep my nose clean, and :seep away from trouble." Johnson returned to work and remained at work until on or about September 17 when a strike occurred at the plant. On August 1, Superintendent Taylor sent word through Johnson to Moen that he would like to see Moen; that he called at the plant and Taylor rehired him, telling him that "we would forget all about it and start over again, no hard feelings." Neither Sumner, Crouse, Jacobson nor Tomala applied for reinstatement nor was Sumner, the ringleader, or the other three ever offered reemployment with the Company. One way or the other, it seems to me that the positive and negative ac- tions of the Respondent indicate an interference with the concerted activities of these employees. The Discharges of September 1 and September 8 The Company asserts that at its Minneapolis plant, as in its other plants, it ob- served a probationary period in hiring of employees. (There is testimony in the record that 12 employees are at work in the wintertime and 6 employees at other times of the year.) it reserved to itself the right to terminate the employee within 30 days if his work showed him not to be qualified to perform the duties assigned to him. The employment record for Maxwell, Kollodge, and Guck each showed the entry "terminated-not qualified." The General Counsel contends that each of these men was discharged for reasons other than as shown on the company per- sonnel record. James Maxwell: Maxwell was hired on August 3 by John R. Hurley, the Re- spondent's Michigan manager, as an operator trainee. Maxwell testified that at the time he was being interviewed by Hurley, he asked Hurley specifically about joining a union and was informed that Trumbull "was one big happy family and that they had no difficulties," and further, "Trumbull did not want a union." He started to work as an assistant to Moen, an operator. He said that during the month of August he had a conversation with Moen regarding the Union and also conversa- tions with Arnold-bik, employees Newman, Jensen, Moen, and Kollodge prior to August 28 and during his first 3 weeks of employment. He said that as a result of these conversations he talked to Ray Flick, secretary-treasurer of Local 977, and on August 28 or a day or two before, obtained blank authorization or union mem- bership cards, talked to employees, and later he and other employees took the signed cards to the union hall at about 10 o'clock on Tuesday, August 29. He was ac- companied by Kollodge, Moen, Jensen, and Johnson. Maxwell said that seven signed cards were turned in. Maxwell testified to a conversation between him and Taylor at the end of his workday on August 31, when, he said, Taylor told him to finish up and go home and that he remarked, in respect to doing overtime work to Taylor "you are not paying me for this time anyway, so what difference does it make and then I just sort of snidely remarked that after all if there was a union here we would get paid for it and Mr. Taylor said, `There isn't any' "; that Taylor told him to punch out and go home and then a few minutes later told him he could take the next day off. On September 1, Maxwell said, he was at his home in Grand Rapids; that when he returned to Minneapolis on Saturday he found a telegram with Taylor's signature on it reading "Since you did not come in to pick up your paycheck today, I did not have the opportunity to tell you that your serv- ices are no longer required." It was at this time that Maxwell said that he was handed his check for pay due him by Arnold-bik who said, according to Maxwell, "Why did you do it, Jim? What did you do it for? You knew you would get fired." 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maxwell denied that he had been told at the time he was hired that he was being hired as a probationary employee or was told of any probationary period. He said (it was not denied by Hurley) that Hurley had complimented him for doing a good job although Hurley did say that he did not observe Maxwell very closely while the latter was at work. In the absence of any testimony to the contrary or denial of Maxwell's testimony I shall find that Maxwell was given no reason for his discharge. At the hearing, the Respondent through Taylor asserted that the reasons for Max- well's discharge were these: Maxwell had taken 2 days off instead of 1 and had not reported in, Maxwell had failed by 15 minutes to put a penetration 4 in the bath in the course of his duties, that he had erroneously reported the railroad car num- bers of two instead of three cars on the siding,5 and that Taylor found Maxwell talking to Kollodge an hour and a half after Maxwell's shift had ended, all of which according to Taylor prompted him to telephone General Manager Knoll to report this series of incidents concerning Maxwell at which time he said he told Knoll he wanted to terminate these men. This telephone conversation, according to Taylor, was had on August 28. Taylor said that Knoll agreed with him and instructed him that in accord with the Company's policy, Taylor should let the men work out the week. As pointed out by the General Counsel in his brief, Taylor did not notify Maxwell of his impending discharge during their conversation at the end of the day on August 31, when Taylor told Maxwell to take the next day off, but that he called Knoll to inform the latter that he was going to terminate Maxwell as of September 1 but that Maxwell had failed to report for his check and that Knoll then advised Taylor to send Maxwell a telegram The General Counsel argues that further support of an inference from the evidence that Maxwell and Kollodge were dis- charged because of their union activities is apparent from the minor and trivial as well as insignificant reasons for the discharge of Maxwell. I am inclined to agree with the General Counsel that the incidents mentioned regarding Maxwell's work were more or less passed off at the time the mistakes were made and were recalled only after Maxwell had actually been discharged. Rollo Kollodge: Kollodge was hired on August 1 as a probationary laborer assigned to the day shift (8 a.m to 4.30 p.m ). After 2 weeks he was assigned to the night shift (12 midnight to 8 a.m.). Newman was the operator on the day shift and Moen was the operator on the night shift Kollodge was discharged on Sep- tember 1 by Taylor who told him that he was being terminated because he did not 4 "Penetration was described by Taylor: A penetration Is a test to test the hardness or softness of an asphalt product This material is poured hot into a certain size can and is cooled for a period of time, usually an hour, and then is placed in a penetration bath at a certain temperature, usually 77 degrees, for another hour, at which point It Is taken from the bath and punched on a penthometer, which is a device that upon the release of the needle allows the needle to penetrate into the asphalt. The net reading from the dial tells you the penetration of the asphalt. 5 Taylor described the Importance of the proper identification tank cars as follows: The purpose Is Identification. We know when these tank cars come In by the telegrams we receive or by mail and even, occasionally, by telephone call, what these cars contain, from which refinery they come and we must keep track of them because the material contained in them is often different There are road-grade asphalts, In some of them, and flux grades in others, and you keep a close watch on the tank cars so that we are sure that the proper tank cars go into the proper tank. If you cannot ascertain this. then the wrong material would go into a tank and would virtu- ally spoil it to all intents and purposes, spoil the utility of that tank for quite some time. • • • s • e a TRIAL EXAMINER : What would you showing me the lines mean ? What would that show me? The WITNESS [Mr. Taylor] : Tank lines , pipe lines from the tank cars. Mr. DELLA RoccA: These are tank lines, to transport the asphalt. These cars are loaded with asphalt and it's to transfer the asphalt through the process of these pipes lying on the ground In the yard, and then also to convey it from tank cars to the storage tanks and so on . I guess the yard Is just a mass of pipe and pipe lines. TRIAL EXAMINER : Perhaps I didn't put It very clearly. I just wondered if just showing some lines, what good it would do? What kind of an education are you getting by just looking at these lines? The WITNESS: I think what his intent was that there are not only lines but there are certain valves that open at various places which allows a flow of asphalt. You, can turn the flow of asphalt. TRUMBULL ASPHALT COMPANY OF DELAWARE 1233 have the aptitude for the job. It does not appear that Kollodge was ever repri- manded or cautioned concerning poor work and so far as he himself is concerned he had no knowledge that he was not a satisfactory employee. The Respondent brought up two instances of alleged poor work performance: once through the testimony of Taylor who said that Moen had told him that Kollodge was good only for "watching trucks"; and again Taylor testified that Moen had told him that Kollodge was making some mistakes in the gauging of tanks. (The gauging of tanks involves the use of a measuring rod on a tank to determine the amount of fluid in the tank as it was being drawn off for process.) As pointed out by the General Counsel, although records were kept with respect to the gauging of tanks, no records were produced to sup- port the testimony of Taylor in this regard. Moen said that Taylor first asked him about Kollodge's work performance immediately before he was fired. Moen also said that he told Taylor that Kollodge was not as quick as Maxwell but that Kollodge was doing a good job. It will be recalled that Taylor had told Knoll, during the telephone conversation between them on August 28, of his opinion of "Kollodge's inability." About 3 weeks after he began working, Kollodge had a conversation with Maxwell during which the possibility of organizing the plant through a union was discussed; several days later, Maxwell left several authorization cards with him and Moen; Kollodge signed a union authorization card and also obtained the signatures of several other employees within the plant. On August 29, Kollodge with Maxwell, Jensen, Johnson and Moen, delivered the signed union cards to the union office. There is no direct proof in the record to show that the Respondent or any of its officials had knowledge of the interest of Kollodge in the Union or his activities on behalf of the Union. At the time Kollodge was hired by Taylor he was told that he was hired as a probationary laborer and that his hourly rate would be advanced 15 cents an hour if he passed his probationary period satisfactorily. Ac- cording to the Respondent, the probationary period was of 90 days' duration. Lawrence Guck: On August 19, Guck was hired as a probationary laborer by Taylor and assigned to work on the day shift. He did not recall whether or not Taylor informed him concerning the probationary period at the time of his hire. He said that when he was terminated at the end of his shift on September 8, Taylor gave him a paycheck and told him that he had to lay him off. According to Guck: Well, after I was through working Mr. Taylor told me to come outside and he handed me one of my checks and says, "I'll have to lay you off." I asked him why and he said he didn't know, he just got orders from Chicago to lay me off. He said that he questioned Mr. Taylor concerning his work and Taylor told him that it was satisfactory. Superintendent Taylor said that he had at times watched Guck perform his duties and had observed that he was not working, but was standing around until he saw Taylor and he then made a show of working and that this had occurred on several occasions. Guck signed a union card at the request of Kollodge during the first week in September. There is no direct testimony or proof in the record that the Respondent or its officers had any knowledge that Guck was interested in the Union. ,Interrogation Other than the testimony concerning the alleged questioning of Maxwell by Arnold-bik, who I have found is not a supervisor, the only other instances of inter- rogation in support of the allegations of the complaint concern questioning of Johnson by Superintendent Taylor. Johnson testified that on or about August 30 Taylor asked him if he knew who was for the Union and several days later Taylor again interrogated him and also asked him if he knew who the union leader was. It will be recalled that Johnson, after talking to General Manager Knoll at the airport, returned to the plant and went back to work on July 28. Superintendent Taylor said, in connection with the reported conversation with Johnson on August 30, that: I was walking across the yard when Larry came to me and stopped me as I was walking across and said "I hear you're supposed to get our letter, some- thing about the union," and I said, "Larry, I already have that letter." According to the testimony of witnesses for the Respondent, they first learned of the union activity when Taylor received a copy of the petition for representation filed by the Union. The copy of the petition was received by Taylor on August 30. Opposed to this question of first knowledge is the testimony of Ray Flick, secretary- 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD treasurer of Local 977 to the effect that he telephoned Taylor on August 29 to inform Taylor that the Union represented a majority of the employees. In answer to this testimony of Flick, Taylor testified that Flick called him for the first time on September 1 to protest the discharge of Maxwell and Kollodge. As the General Counsel points out in his brief, this was hardly likely because Maxwell did not receive the telegram notifying him of his discharge until September 2, and even if he had it would have been long after the union office had closed since the telegram was sent after 5 p.m. on September 1. Although the Respondent contends that the decision to discharge Maxwell and Kollodge was made on August 28, prior to the time it says it received the copy of the petition for certification of representative, it is clear that neither one of these employees was told that such a decision had been made until the end of the work- week. Flick testified, credibly, that on the forenoon of August 29 the employees presented him with cards signed by employees authorizing the Union to represent them and that he called Mr. Taylor, who was plant superintendent up there and the reasons for calling was to protest the discharge of two employees and to also notify him, too, at the same time that we represented the people. The General Counsel argues in connection with the discharges of Maxwell, Kol- lodge, and Guck that the circumstances are such, together with absence of any proof of reprimands, the coincidence of time, the Employer's statements upon the discharge of each of them, together with the fact that they were union adherents, that the record must be considered convincing that the discharges were discrimina- torily motivated. The Respondent points out that if Flick's testimony to the effect that he called Taylor on August 29 is accepted, that even so there was still 1 day after the decision was made on August 28 to terminate Maxwell and Kollodge and that therefore Flick's telephone call was made before the Company had knowledge of the union petition. I think the Respondent is correct when it contends that the evidence fails to show that Taylor knew which of his employees had signed union cards or were active in union activities. There were no handbills passed out, no notices of organi- zational meetings on company bulletin boards, no employee signed his union card to the knowledge of Taylor or in his presence, and Taylor was unaware that such cards had in fact been signed until notified by Flick. The Respondent points out, too, that "the fact that at least three other employees engaged in the same union ac- tivities were not discharged is potent evidence that those discharged were not dis- charged for union activity." Respondent argues that in view of the fact that the three discharged employees were probationary employees, it is just as reasonable to infer a lawful motive for the discharge, and, therefore, an unlawful motive for the discharge may not be inferred. The General Counsel cites strong authority in support of the proposition that evidence of a justifying ground for dismissal is no defense if it is a pretext and not the moving cause (Solo Cup Company, 114 NLRB 121); that the reason for the discharge of a known union adherent is pretext if insignficant and minor occurrences are relied on by an employer (Cook Paint & Varnish Company, 129 NLRB 427); that knowledge and motive may be inferred from the record as a whole (Lapeer Metal Products Co., 134 NLRB 1518). The General Counsel also cites Shoenberg Farms, 129 NLRB 966, where the court held that the circumstances there, including lack of previous reprimands, the coincidence of time, and the discharge of the union adherents only, were convincing on the record. The Respondent asserts that the probationary period and its length from 30 to 90 days was discretionary with the plant superintendent. The Company says that it is within the prerogative of management to decide during the probationary period whether the probationary employee measures up to the job and if not, if so decided by management, the employee may be summarily discharged. I think here, in connection with the alleged interrogation of Johnson and the dis- charges of September 1 and 8, that company knowledge of union activity is most important. Taylor and Johnson gave different versions of their conversation on August 30, although both agree that the Union was mentioned. The conversation between them of 2 or 3 days later when, Johnson says, Taylor asked who was the union leader, remains undenied on the record. It reasonably may be inferred that the Company did have knowledge of union activity on August 29 and it also may be inferred that the Company was in error in not imparting to Maxwell and Kollodge its decision to discharge them before they actually were discharged. Presumption arises that the final decision to discharge these two was made after the Company became aware of union activity. I accept the testimony of Flick that he communi- cated with Taylor on August 29. TRUMBULL ASPHALT COMPANY OF DELAWARE 1235 My concern in making findings concerning alleged interrogation and the alleged unlawful discharges of September 1 and 8, lies in the fact that the record is lacking in proof that company management had knowledge that the individuals involved were union adherents. However, I have resolved this on the basis of the whole record, and have concluded that there is sufficient circumstantial evidence in the record to justify an inference that the Company did have knowledge sufficient to prompt it to act as it did in an effort to discourage the employees in their support of and activities on behalf of the Union. Concluding Findings I think the preponderance of the evidence demonstrates that, notwithstanding the fact that they were probationary employees , Maxwell, Kollodge, and Guck were discriminatorily discharged in violation of Section 8(3) and ( 1) of the Act. The interrogation of Johnson by Taylor is not important as such, except to demon- strate that Taylor did have knowledge of union activity and apparently assumed that Johnson, as a union adherent, knew who the union leader was and, inferentially, who other of the seven employees had joined the Union or had indicated their sup- port of the Union. On the question of the right of reinstatement or the propriety of an order for reinstatement, the Respondent introduced evidence concerning a strike at the plant beginning on September 15. Evidence was adduced to show that Moen, Kollodge, and Maxwell, on September 15, warned Johnson not to come to work and that he had better have good window breakage for his car . It is asserted and proven that Johnson was put in fear of bodily harm; that on September 17, he was told by the strikers to get off the plant and to quit work and was given 15 minutes to do so, and was told that "the rest of the union guys " would get him in the morning if he did not quit work . Taylor testified that on September 16, Maxwell threw him- self in front of a truck to prevent the driver from crossing the picket line, with con- sequent damage to the truck caused by the sudden stop. Roy Vanas, an assistant operator hired by the Company about the middle of August, testified that he was stopped by pickets blocking the driveway of the plant ; that after the strike had begun on September 15, Maxwell walked up to him with a good -sized rock in his hand, told him the screws were on, if he was caught sneaking they would beat him up and to watch his family and child and take good care of his car because someone might put sugar in his gas tank . Accepting all this testimony at face value, never- theless I feel that it has no direct bearing on the issues raised. The occurrences mentioned took place after the alleged interrogation and discriminatory discharges and I feel are not material or pertinent insofar as the resolution of the issues herein are concerned. Turning now to the events of July 27, and the meeting between management and the group of employees on that day, it is clear enough that the employees then were engaged in concerted activity for the purpose of mutual aid or protection, and that their activity was protected activity under Section 7. I find that General Man- ager Knoll fell into error when he took the position that the employees , by reason of their demands and the so-called ultimatum , had quit. I find in the circumstances of the meeting , with due regard to all that was said by Mr. Knoll and by each of the employees , that the discharge of those employees on that day, for concerted activity, was a violation of Section 8(a)(1) of the Act. I further find that the so-called ultimatum which amounted only to a threat that they would go on strike unless relief requested was granted, did not in itself terminate their employment. The position of the employees transmitted to management that they would "shut her down" on July 29 unless their demands were met, constituted a threat to strike in the future and was made for the purpose of inducing the employer to grant their wage and other demands and as such was protected concerted activity . Southern Pine Electric Cooperative, 104 NLRB 834. In Latex Industries, Incorporated, 132 NLRB 1, the Board held that the discharge of employees who participated in ad hoc group presentation of wage and other demands involving working conditions was a violation of the Act. See also Springs, Inc., 121 NLRB 892; Elwood C. Martin, et al., d/b/a Nemec Combustion Engineers, 100 NLRB 1118; Tex-Togs, Inc., 112 NLRB 968, enfd. 231 F. 2d 310 (C A. 5). As noted above, Johnson returned to work almost immediately after he, as a member of the group of employees , was discharged on July 27. Moen was away from work as a result of that discharge for 1 day. I find that by terminating the employment of Crouse, Jacobson , Johnson, Moen, Sumner, and Tomala on July 27, the Respondent has discriminated against those employees and is coercing , restraining, and interfering with them in the exercise 672010-63-vol. 139-79 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their rights guaranteed by Section 7, in violation of Section 8(a)(1) of the Act. I find further that by discharging Maxwell , Kollodge, and Guck, the Re- spondent has discriminated against them and is discriminating against them in violation of Section 8(a)(1) and ( 3) of the Act. I find that the interrogation of Johnson by Taylor is a part of the whole circumstance , the congeries of the case, and there f ore find that by such interrogation , the Respondent violated Section 8(a) (1) of the Act. IV. TIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company as set forth 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended herein that the Respondent cease and desist therefrom and take certain affirmative action found necessary to effectuate the purposes of the Acts I shall further recommend that the Respondent make whole the employees referred to above for any loss of pay they may have suffered by reason of the Respondent's discrimination , by payment to them of a sum of money equal to the amount each would normally have earned from the date he was terminated to the date of an offer of reinstatement , less his net earnings during such period, to be computed on a quarterly basis in the manner established in F. W. Woolworth Co, 90 NLRB 289. 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. Trumbull Asphalt Company of Delaware is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Petroleum, Tire, Automotive Service and Parts Drivers, Warehousemen, Serv- ice Station Attendants, Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local Union No. 977, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By discriminatorily discharging Robert Crouse, Charles Jacobson, Larry D. Johnson, Arthur Moen, Larry L. Sumner, Zeno Tomala, James R. Maxwell, Rollo Kollodge, and Lawrence Glick, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act 4. By interrogating an employee at a time when said employee was at work, the Respondent interfered with, restrained, and coerced its employees in the exercise of O Counsel for the General Counsel has requested the Trial Examiner to recommend that interest be added to any amounts of backpay which would result from a recommended order herein, and has filed a brief in support of the Board's authority to require payment of interest of backpay awards Section 10(c) of the Act provides in part. "if , the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practices, then the Board shall state its findings of fact and shall issue and cause to be served on such person an Order requiring such per- son to ce•i°e and desist from such unfair labor practices, and to take such affirmative action including reinstatement of employees with or without backpay as will effectuate the policies of this Act: Provided That where an Order directs reinstatement of an em- ployee, backpay may be required of the Employer or labor organization, as the case may be, responsible for the discrimination suffered by him . " The brief in support of the proposition that the Board has authority to require payment of interest of backpay awards is persuasive, and the cases cited therein are strong It seems to me, though, that the cases cited have to do with statutes and situations dissimilar to cases arising under Section 10(h) of this Act It has been firmly established that a Section 10(b) proceeding is a proceeding in the public interest and does not directly contemplate litigation on be- half of individuals insofar as judgment for damages or penalties in the way of backpay may be involved The Act does not contemplate the prosecution of claims for wages due individual employees , the Act merely provides a vehicle by which the Board through the backpay device may effectually enforce the policies of the Act Therefore, I shall decline to recommend the award of interest on backpay which is recommended in this Inter- mediate Report. TRUMBULL ASPHALT CO: iPAN Y OF DELAWARE 1231 their rig':-Is guaranteed in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) 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. RECOMMENDED CNDF_?, Upon the entire record in the case, it is recommended that the Respondent, Trumbull Asphalt Company of Delaware, its officers, representatives, agents, and successors shall: 1. Cease and desist from: (a) Discouraging membership in Petroleum, -ire, Automotive Service and Parts Drivers, Warehousemen, Service Station Attendants, Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local No. 977, International Brotherhood of Teamsters, Cnaufieurs Warehousemen & Helpers of America or in any other such organization of its employees by terminating the employment of, and refusing to reinstate, any of their employees or by discriminating in any other manner in regard to their hire and tenure of employment or any other term or condition of employment, except to the extent permitted by the proviso in Section 8(a)(3) of the Act as modified by and Labor-Management Reporting and Disclosure Act of 1959. (b) Interrogating any of its employees regarding their union membership in, or activities on behalf of, any labor organization, or taking any affirmative action to determine who among its employees are or are not members of any labor organization. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist the above- named Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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 by Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959 2. Take the following affirmative action, which it is found will effectuate the policies of the Act- (a) Omer to each employee who is deprived of work by being discharged on July 27, 1961, or on September 1 and 8, 1961, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and in accordance with the other conditions set forth in the section of this 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, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its place of business in its office and places where notices to its em- ployees are customarily posted at its place of business in Minneapolis, Minnesota, copies of the notice attached hereto marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by an official representative of the Respondent, be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighteenth Region, in writing, within 10 days from the date of this Recommended Order, what steps have been taken to comply herewith.8 7 In the event that this Recommended Order shall be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by it decree of a United States Court of Appeal. the words "A Deciee of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Deci- sion and Order" 8In the event that this Recommended Order shall be adopted by the Board, this provi- sion shall be modified to read Notify said Regional Director in writing within 10 days fiom the date of this Order what steps the Respondent has taken to comply herewith 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 National Labor Relations Act, as amended, we notify our employees that: WE WILL NOT discourage membership of our employees in Petroleum, Tire, Automotive Service and Parts Drivers, Warehousemen, Service Station Attend- ants, Helpers, Bulk Plant, Parking Lot and Ramp Employees, Local Union No. 977, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor . organization or in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form, join, or assist said labor organization , or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for .the purpose of collective bargain- ing 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 National Labor Relations Act, as amended. WE WILL NOT interrogate our employees concerning the identity of members or supporters of the above-named union or any other labor organization in a manner constituting interference , restraint, and coercion in violation of Sec- tion 8 (a) (1) of the Act. WE WILL offer Robert Crouse, Charles Jacobson, Larry L. Sumner, and Zeno Tomala, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make each of said employees whole for any loss of pay suffered as a result of the discrimination against him. And further, we willmake whole Arthur Moen for any loss of pay he may have suffered by reason of the dis- crimination against him. TRUMBULL ASPHALT COMPANY OF DELAWARE, 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. Employees may communicate directly with the Board's Regional Office, Room 316, Federal Building, 110 South Fourth Street , Minneapolis, Minnesota, Telephone Number, 339-0112, Extension 2601 , if they have any question concerning this notice or compliance with its provisions. Franklin Lumber and Basket Co. and United Brotherhood of Carpenters and Joiners of America. Case No. 12-CA-2248. November 23, 1962 DECISION AND ORDER On July 11, 1962, Trial Examiner James T. Barker issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not engaged in other unfair labor practices and recommended dismissal of the complaint as to them. Thereafter, the Respondent and the General 139 NLRB No. 96.