Brown Transport Corp.

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS HEREBY ORDERED that the Employer's motion to amend and clarify certifications be, and it hereby is, granted. IT Is FURTHER ORDERED that the certification of representatives of the employees at the Employer's Covington, Virginia, plant be amended to specifically exclude from the unit described therein the classifications of pipe shop, pipe foreman, construction; pipe shop, pipe foreman, east side maintenance; pipe shop, pipe foreman, west side maintenance; and paint foreman. Brown Transport Corp. and Truckdrivers and Helpers Local Union No. 728, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America and Chauffeurs, Teamsters & Helpers Local Union No . 621, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America . Cases Nos. 10-CA1-4649, 10-CA-4653-2, and 10-CA-4653-3. January 31, 1963 DECISION ANI) ORDER On October 24, 1961, Trial Examiner David London issued his In- termediate Report in the above-entitled proceeding, finding that Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent and the General Counsel filed ex- ceptions to the Intermediate Report and supporting briefs. 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 in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the modifications set forth below. The facts, as more fully set forth in the Intermediate Report, are as follows. For some years, Respondent had been a member of a multi- employer association which bargained with the Southern Conference of Teamsters to which both Charging Unions belong. Prior to the completion of negotiations for a new contract to become effective February 1, 1961, upon expiration of the prior contract, Respondent withdrew its power of attorney to the association to bargain on its behalf. According to the testimony of Cook and Hurt, business agents of Local 728, which the Trial Examiner credited, they had a conversa- tion with Brown, Respondent's president, on January 24, 1961, in which Brown verified the fact of his withdrawal from the association. Cook then requested individual bargaining negotiations with Respond- 140 NLRB No. 85. BROWN TRANSPORT CORP. 955 ent on the basis of whatever final agreement resulted from the multi- employer negotiations. Brown gave Cook no commitment at that time, but stated that he would decide his course of action after he saw the new multiemployer agreement. Three days later, Hurt delivered to Respondent's office a copy of this new agreement. On January 28,1961, at a meeting of Local 728, the members author- ized Cook to call a strike if he was unable to conclude a contract satis- factory to respondent's employees. Respondent never advised Local 728 whether it would accept the terms of the Southern Conference con- tract or wished to negotiate a different one. On January 31, 1961, Respondent closed down its Atlanta pickup and delivery operation and subcontracted it to Hudson Hauling Company, a local cartage op- erator. On the same date Respondent discharged all 58 Atlanta city pickup and delivery employees named in Appendix A of this Decision and Order. Late in the afternoon of January 31, Local 728 received a telegram from its International granting it authorization to pay strike benefits. About 45 or 50 of Respondent's employees met that eve- ning and voted to place a picket line at Respondent's Atlanta terminal and it was so imposed. That same evening, the Respondent's em- ployees at Savannah, after taking a vote, struck the Respondent and commenced picketing at midnight for the purpose, inter alia, of pro- testing the discharges at Atlanta. It is clear, as the Trial Examiner found, that Respondent since early in December 1960 determined that it was not going to negotiate with the Teamsters on any basis, notwithstanding Respondent's awareness that Local 728 continued to remain the representative of a majority of the pickup and delivery employees at its Savannah and Atlanta ter- minals and that Local 621 had a similar status at Knoxville. This conclusion as to Respondent's state of mind is amply supported by its entire pattern of conduct, particularly the statements and activities of Respondent's president, Brown, and Respondent's operations man- ager, Hemmings, at all three of these terminals during December 1960 and January 1961. As more fully set forth in the Intermediate Re- port, Brown and Hemmings each told employees of the Knoxville ter- minal in December that Respondent was not going to sign a contract with the Teamsters. At the same time Hemmings informed employee Strange, shop steward of Local 621, that Respondent desired the em- ployees to join a committee of the over-the-road drivers for purposes of collective bargaining and implied that, since Strange, in Hemmings' opinion, "could do a lot with the men," he could be helpful in effectuat- ing this change in their union allegiance. On at, least seven different occasions in December and January, Brown and Hemmings told em- ployees at Atlanta that Respondent was not going to enter into a new agreement with the Teamsters or that, before doing so, Respondent would close up and go out of business. During the same period Hem- 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mings also suggested to various Atlanta pickup and delivery employees that they withdraw from the Teamsters, form their own union, or join the independent over-the-road drivers committee. On at least four oc- casions during this time Hemmings threatened individual employees at Atlanta that he was going to break the Union at that terminal or that, if the employees did not quit the Teamsters, they would be out of work. In late January, Hemmings also interrogated two Atlanta em- ployees, individually, under coercive circumstances, about their union activities and, about the same time, he told two employees that he had four or five men who let him know "what was going on" at union meetings. At Savannah, Brown attempted, on several occasions in December, to persuade his city drivers to resign from the Teamsters. We conclude, in agreement with the Trial Examiner, that by the fore- going acts of interrogation, threats of reprisal for union activities, solicitation of withdrawal from Teamsters membership, and creating the impression of surveillance, Respondent violated Section 8 (a) (1) of the Act. It is in this context of unrelenting opposition to bargain- ing with the Teamsters that we must evaluate Respondent's defense. Respondent, attacking certain credibility findings of the Trial Ex- aminer, urges in its exceptions that at the meeting of Brown, Cook, and Hurt on January 24, Cook threatened that Local 728 would strike unless Respondent signed the Southern Conference agreement as writ- ten. Respondent further urges that Local 728, in fact, had already decided to strike on January 31, as indicated by its strike vote of January 28 and the telegram, dated January 31, from Teamsters Inter- national granting Local 728 strike benefits. Respondent also urges that its financial condition had progressively worsened over the pre- vious 3 years, culminating in a net operating loss of almost $17,000 in January 1961. It states that as the new Teamsters agreement to be effective from February 1, 1961, called for still higher wages and benefits than it was then paying, it simply could not sign such an agreement and remain in business. Respondent, therefore, contends that the alternatives it faced in January 1961, of either signing an agreement imposing heavy financial obligations or being struck, made it clear that any effort to bargain with Local 728 would have been useless. It concludes that it was there- by relieved of its statutory obligation to bargain and was free to sublet its Atlanta city pickup and delivery operations without notice to Local 728, and to discharge the employees who were doing this work, without violating the Act. Even were we to accept Respondent's version of the facts, we are not convinced that it was presented only with these two inflexible choices, or that it was relieved of its statutory obligation to bargain. Respondent's theory, assuming that Cook made a demand backed up by a strike threat on January 24, as alleged by Respondent, is that BROWN TRANSPORT CORP. 957 this was Local 728's final offer. We are unable to accept this. Ap- parent rigidity in bargaining demands, even at preliminary negotiat- ing sessions, is neither unusual nor unexpected in collective-bargaining practices. A brief display thereof by one party does not automatically signify an impasse. As to Local 728's strike preparations, experience also has shown that it is not unusual for a labor organization, prior to making its bargaining demands, to arrange for a strike should negotia- tions reach a deadlock. Strikes do not necessarily follow on the heels of such preparations.' We deem it significant rather, as did the Trial Examiner, that Respondent never attempted to justify to Local 728 its present conten- tion that it could not afford to meet the terms of the new agreement; nor, in fact, did Respondent ever furnish Local 728 with any informa- tion respecting its claimed financial plight. Aside from the necessity for Respondent to provide Local 728 with the facts supporting its as- serted inability to meet wage increase deniands,2 Respondent knew from its own experience that Local 728 could be flexible in bargaining negotiations as it had previously obtained at its request an exemption from the health and welfare provisions of an earlier association agreement.' We do not therefore believe that Respondent's claimed financial inability to accept the Southern Conference contract, or the fact that Local 728 had made strike preparations, excuses Respondent's failure to test the Union's readiness to accept an individual contract. It was still incumbent upon the Respondent to explain and justify its claim that it could not afford to meet those terms and to explore the possibil- ity of negotiating a different agreement on an individual basis. Re- spondent made no attempt to do so but decided rather to preclude all further negotiations by discharging the employees represented by Local 728. Thus, the refusal of Respondent to make an effort to apprise the Union of its claimed business posture, and test the Union's willingness to make concessions to Respondent, as the Union had in the past, leaves the principal thrust of Respondent's economic defense-an inescapable increase in labor costs-supported only by speculation and conjecture. Against the background of the activities of Respondent's officials to discourage its employees from continuing their membership in the Teamsters, and in the light of Respondent's clear intention as early as December 1960 never to enter into a new contract with Local 728, 1 As events transpired , neither the picket line at Atlanta nor the strike and new picket line at Savannah went into operation until after the discharges at Atlanta 2 N L R B v. Truitt Mfg. Co , 351 U.S 149 3 Under the bargaining arrangements of the association to which Respondent formerly belonged , although a basic collective -bargaining agreement would be developed for all the member employers by the association , each employer executed an individual contract with the Teamsters local having immediate jurisdiction over its employees 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we agree with the Trial Examiner that Respondent violated Section 8(a) (5) 4 and (1) of the Act by failing to confer with Local 728 and by unilaterally subcontracting out the Atlanta terminal operations in order to rid itself completely of that Union.5 We further find that Respondent violated Section 8 (a) (3) and (1) by discharging 58 of its Atlanta terminal employees pursuant to this design. Moreover, even if we agreed with Respondent that it acted solely for economic reasons in subletting its Atlanta terminal operations, it nonetheless had a statutory obligation to bargain concerning this change in the terms and conditions of employment of its Atlanta terminal employees. We find that Respondent's failure to inform Local 728 of its intentions and to consider any response it might have made constitutes a violation of Section 8(a) (5) and (1) of the Acts In its brief, Respondent contends that the 58 dischargees should not be awarded backpay because none of them availed himself of the opportunity to work at Hudson Hauling, the subcontractor, notwith- standing the statement in the letter that each received from Respondent on January 31, 1961, that Respondent would recommend them, and notwithstanding the fact that Brown and Hudson called each of Re- spondent's former employees and left word that jobs were available at Hudson if they desired employment. We reject this contention. To hold that employees who have been discriminatorily discharged must, under peril of sustaining willful loss of employment, cooperate with a wrongdoing employer by accepting less than the full reinstate- ment which is their due, while the effects of that employer's unlawful conduct remain unremedied, would provide a discrimination-minded employer with a ready device whereby he might be assured of the benefit of his unlawfulness while being insured against its costs' Respondent also contends that the strike at the Savannah terminal is an economic, and not an unfair labor practice, strike. However, the record establishes that, at a union meeting of Respondent's Savannah employees on January 31, the men discussed the discharges at Atlanta 4In its answer to the complaint , Respondent admitted that its "citywide pickup and delivery drivers at its Atlanta , Georgia , terminal , but excluding all other employees, professional employees , guards, and supervisors as defined in the Act," constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. Respondent denied , however, that Local 728 was the majority representative of this unit we find, in view of the fact that the employees in this unit had not with- drawn their membership in Local 728 at the time Respondent unlawfully subleased its Atlanta city pickup and delivery operations , that Local 728 continued to be the majority representative in the appropriate unit herein at that time 5 American Manufacturing Company o f Texas, 139 NLRB 815 ; Preston Feed Corpora- tion, 134 NLRB 629 , enfd. 309 F. 2d 346 (CA 4). 6 Town & Country Manufacturing Company, Inc, 136 NLRB 1022 ; Fibreboard Paper Products Corporation, 138 NLRB 550 Member Leedom agrees that Respondent violated Section 8 (a) (5) of the Act only because he finds, supra, that Respondent subleased its trucking operations and terminated its drivers for discriminatory reasons See footnote 10 of Town & Country Manufacturing Company, supra. 7 lilectro-Mechanical Products Company, 126 NLRB 637, 647-650. See N L R.B. v. Armour & Co , 154 F. 2d 570 . 577 (C.A 10). BROWN TRAN SPORT CORP. 959 and the fact that no contract had been consummated between the Teamsters and Respondent at that time. Robinson, assistant business agent of Local 728, also explained at this meeting the difference be- tween an economic strike and an unfair labor practice strike, after which the employees determined to strike in protest of the Respond- ent's unfair labor practices. Furthermore, Respondent's president, Brown, and Savannah Terminal Manager Carter had made a num- ber of efforts, recounted above, which we have found violative of Section 8 (a) (1), to defeat the Union at its Savannah terminal by soliciting employees to withdraw from membership in the Teamsters. In view of these facts and the record as a whole, we conclude that the strike at Savannah was in protest, among other things, of Respond- ent's unfair labor practices both at Atlanta and Savannah. THE REMEDY Laving found that Respondent has engaged in certain unfair labor practices , we shall order it to cease and desist therefrom and take cer- tain affirmative action necessary to effectuate the policies of the Act. We have found that the Respondent discontinued and subleased its Atlanta terminal city pickup and delivery operations and discharged its employees on January 31, 1961, because they were members of the Teamsters and continued to authorize the Teamsters to bargain col- lectively on their behalf. Accordingly, we shall order that the Re- spondent reestablish these operations and reinstate its terminal em- ployees8 As the Trial Examiner recommended , we shall also award them backpay. Backpay shall be based upon the earings which they normally would have received from the date of their discharge to the date of Respondent's offer of reinstatement less any net interim earn- ings and shall be computed on a quarterly basis, in the manner set forth in F. IV. IVoolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing cC Heating Co., 138 NLRB 716. We have further found that Respondent terminated its Atlanta pickup and delivery operations to avoid dealing with the majority bargaining representative of its employees and that Respondent there- by violated Section 8 ( a) (5). As we have decided to order resumption of these operations and reinstatement of the drivers , we shall order that Respondent bargain collectively with Local 728 as the exclusive bargaining representative of its employees in the appropriate unit and embody any understanding reached in a signed agreement. We have also found that Respondent violated Section 8(a) (5) by unilaterally subcontracting its trucking operations without bargain- ing with Local 728 over its decision so to do. We shall order that 8 Town & Country Manufacturing Company, Inc., supra; N L.R B v. Brown-Dunkin Company, Inc, 287 F. 2d 17, 20-21 (CA. 10), enfg. 125 NLRB 1379. 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent cease and desist from making unilateral changes in the terms and conditions of employment of the Atlanta city pickup and delivery drivers without first consulting their lawful collective- bargaining representative. We shall also order Respondent to abro- gate its subcontract and bargain with Local 728 over any future deci- sion to subcontract these operations.9 Having found that the strike of Respondent's employees at Savan- nah, Georgia, commencing on February 1, 1961, was a strike in pro- test of Respondent's unfair labor practices, we shall order Respond- ent, upon application by the strikers, to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dis- missing, if necessary, all persons hired on or after February 1, 1961, and make the applicants whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned less his net earnings, during the period from 5 days after the date on which he applies or has applied for reinstatement to the date of Respondent's offer of reinstatement. 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, Brown Trans- port Corp., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Truckdrivers and Help- ers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the Employer's citywide pickup and delivery drivers at its Atlanta, Georgia, terminal, excluding all other employees, professional employees, guards, and supervisors as defined in the Act; and unilaterally changing their wages, hours, and other terms and conditions of employment without prior consultation with the above-named Union or any other union which they may select as their exclusive representative. (b) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Locals 728 and 621 thereof, or any other organization of its employees, by discharging or otherwise discriminating against them in regard to their hire or tenure of employment or any other term or condition of employment. D See Town & Country Manufacturing Company, Inc ., supra, and cases cited in foot- notes 14 and 15 thereof . Member Leedom, however, would not order Respondent to bar- gain concerning an economically motivated decision to subcontract. BROWN TRANSPORT CORP. 961 (c) Interrogating its employees concerning their union member- ship, threatening them with reprisals if they maintain their member- ship with any of the above-named Unions, creating the impression of surveillance of their union activities, or soliciting their withdrawal from membership in any of said Unions. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Locals 728 and 621 thereof, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Resume its city pickup and delivery operation in Atlanta, Georgia, and offer to each of the 58 employees named in the attached Appendix A immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each of them whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner provided in the section of this Decision and Order entitled "The Remedy." (b) Upon request, bargain collectively with Truckdrivers and Help- ers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all the employees in the appropriate unit, and embody any understanding reached in a signed, agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amount of back- pay due and the rights of reinstatement under the terms of this Order. (d) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions to all those employees at its Savannah, Georgia, terminal, who went on strike on February 1, 1961, or thereafter, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all persons hired on or after that day, and make such applicants whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate them by payment to each of them of a sum of money equal to that which he normally would have earned less the net earnings, during the period from 5 days after the date on which he applies or has applied for re- instatement to the date of the Respondent's offer of reinstatement. 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its terminals at Atlanta and Savannah, Georgia, and Knoxville, Tennessee, copies of the attached notice marked "Appendix B." 10 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 con- secutive 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. (f) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply herewith. ME-NIBER RODGERS took no part in the consideration of the above De- cision and Order. 10 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 A Anderson, William M. Armour, Thomas N. Barlett, Milton J. Barton, William R. Boles, Eldon L. Bridges, Herman A. Bryant, Earnest Cagle, Selton Chastain, Coleman P. Christian, Joe Boyd Coker, Royston M. Copper, Herman Davis, Harold Davis, John Donahue, Thomas Dupree, Robert G. Elder, John H. Ellison, Edward Faulkner, Billy B. Fowler, James F. Gang, Joseph M. Garrett, Jack Dennis Gentry, Willie Lester Glaze, Marvin D. Hardy, John M. Hector, Emerson Hester, Frank A. Hindsmon, Grady T. Hobbs, John R. Johnson, Turner, Jr. Joiner, N. Dupree Joiner, Leon G. Kennedy, Cleon Leatherwood, Bobby C. Libsey, Oscar McBurnett, Herschel Lee McClure, Max Hubert Mitchell, Robert Lee Morris, Carl Neal, Willie Joe Parker, James L. Patterson, Floyd C. Pethel, A. A. Poole, Charles D. Bawling, Clyde Thomas Renfroe, Douglas C. Smallwood, Norman O. Smith, Arthur H. Smith, Howard N. Sprayberry, Nellie L. Sweatman, Stewart P., Sr. Tapp, James William BROWN TRAN SPORT CORP. 963 Teems, Lewis H. Wesley, Willie A. Thomas, Hugh G. West, Garland C. Thompson, Henry B. Williams, Homer Gene APPENDIX B 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 refuse to bargain collectively with Truckdrivers and Helpers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all employees in the following bargaining unit : All citywide pickup and delivery drivers at our Atlanta, Georgia, terminal, but excluding all other employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL NOT unilaterally make changes in the wages, hours, and other terms and conditions of employment for the employees in the above-stated appropriate unit without prior consultation with Truckdrivers and Helpers Local Union No. 728, Interna- tional Brotherhood of Teamsters, Chauffeurs, WW'arehousemen and Helpers of America, or any other labor organization Which they may select as their exclusive collective-bargaining representative. WE WILL NOT discourage membership in Truckdrivers and Help- ers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, by discharging them, fail- ing and refusing unconditionally to reinstate them, or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment. WE WILL NOT coercively interrogate employees concerning their union membership or other union activities. WE WILL NOT threaten to close or shut down our business, or any part thereof, because of union activities or membership. WE WILL NOT create the impression of engaging in surveillance of the union activities of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- 681-492-63-vol. 140-62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation, to form labor organizations, to join or assist said Local 728, or Local 621 of the same International, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for 1 he purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities. WE WILL offer to the following-named employees immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered as a result of our discrimination against him : Anderson, William M. Armour, Thomas N. Barlett, Milton J. Barton, William R. Boles, Eldon L. Bridges, Herman A. Bryant, Earnest Cagle, Selton Chastain, Coleman P. Christian, Joe Boyd Coker, Royston M. Copper, Herman Davis, Harold Davis, John Donahue, Thomas Dupree, Robert G. Elder, John H. Ellison, Edward Faulkner, Billy B. Fowler, James F. Gang, Joseph M. Garrett, Jack Dennis Gentry, Willie Lester Glaze, Marvin D. Hardy, John M. Hector, Emerson Hester, Frank A. Hindsmon, Grady T. Hobbs, John R. Johnson, Turner, Jr. Joiner, N. Dupree Joiner, Leon G. Kennedy, Cleon Leatherwood , Bobby C. Libsey, Oscar McBurnett, Herschel Lee McClure, Max Hubert Mitchell, Robert Lee Morris, Carl -Neal, Willie Joe Parker, James L. Patterson, Floyd C. Pethel, A. A. Poole, Charles D. Rawling, Clyde Thomas Renfroe, Douglas C. Smallwood, Norman O. Smith, Arthur H. Smith, Howard N. Sprayberry , Nellie L. Sweatman, Stewart P., Sr. Tapp, James William Teems, Lewis H. Thomas, Hugh G. Thompson, Henry B. Wesley, Willie A. West, Garland C. Williams, Homer Gene WE WILL, upon application, offer to all strikers at our Savan- nah, Georgia, terminal, 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 may have suffered as a result of any refusal to reinstate them upon such application. BROWN TRANSPORT CORP. 965 All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of Locals 728 or 621, or any other labor organization. BROWN TRANSPORT CORP., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) N oTE.-WVe 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 Serv- ice 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., At- lanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE The hearing in this case , with all parties represented by counsel , was conducted in Atlanta, Georgia, on July 18 through 21, 1961, on the complaint of the General Counsel, as amended at the hearing, and the answer of Respondent . The issues to be decided are whether Respondent : ( 1) on or about January 31, 1961, unilaterally, and without prior notice to Local No. 728 above described , the duly designated collective-bargaining representative of the employees affected thereby, subcontracted the work performed by them at Respondent's Atlanta terminal to another person in violation of Section 8(a) (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act; (2) on or about January 31, 1961, discriminatorily discharged the 58 employees named in the amended complaint in violation of Sec- tion 8 (a)(3) of the Act; ( 3) otherwise interfered with, coerced, and restrained its employees in the exercise of their guaranteed rights in violation of Section 8(a) (1) of the Act; and (4) whether the employees of Respondent at Savannah, Georgia, en- gaged in an unfair labor practice strike. Following the close of the hearing , the time to file briefs was, for good cause shown, extended to September 28, 1961 , at which time briefs were received from all the parties and have been duly considered. Mo- tions on which rulings were reserved during the hearing are disposed of in accordance with the findings that follow. Upon the entire record in the case,' and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Brown Transport Corp., Respondent herein, is and has been at all times material, a Georgia corporation maintaining its general offices at Waynesboro, Georgia, a principal operations office and terminal in Atlanta, Georgia, and terminals in Athens, 1 Respondent's unopposed motion, dated September 27, 1961 , to correct three lines of the Transcript of Record is hereby granted 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Augusta, Macon, and Savannah, Georgia, and Knoxville, Tennessee, and is engaged as a common carrier by motor vehicle in the interstate transportation of freight. During the calendar year preceding the filing of the complaint herein, Respondent received more than $50,000 from its interstate transportation of freight Respondent admits, and I find, that during all times material herein it was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Truckdrivers and Helpers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 728, and Chauffeurs, Teamsters & Helpers Local Union 621, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 621, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES During the period beginning February 1, 1958, and ending January 31, 1961, Respondent and Local 728 were parties to a collective-bargaining agreement by which Respondent recognized that local as exclusive representative of all of Respondent's city pickup and delivery employees at its terminals in Atlanta, Savannah, and Macon, Georgia. During all times relevant herein, a similar relationship existed between Respondent and Local 621 at Respondent's Knoxville terminal. Both locals were constituent members of the Southern Conference of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The negotiations which culminated in the foregoing agreements were carried on in behalf of Respondent and a large number of other employers engaged in the trans- portation business in Southeastern United States by a duly empowered negotiation committee of the Southeastern Motor Carriers Labor Relations Association, of which Respondent had been a member at least since 1955 In behalf of the Unions, the negotiations were conducted by the Southern Conference of Teamsters' Negotiation Committee pursuant to power of attorney granted by each constituent local thereof. The contract so negotiated, though signed by the Teamsters' Committee, was sub- ject to ratification by each local, with this modification-if the negotiated agreement was ratified by "a majority of the employees covered by that agreement," it was binding on each constituent local union notwithstanding that particular local may have voted to reject the agreement. Separate agreements were, however, executed by each employer and each local. The agreement was made effective to and including January 31, 1961, and from year to year thereafter unless either party served written notice upon the other at least 60 days prior to the date of expiration of its desire to cancel, or to negotiate changes or revisions thereof. Sometime in November 1960, R. C. Cook, president and business manager of Local 728, forwarded a letter to Respondent indicating that local's desire to continue the existing agreement, but to negotiate certain changes therein. On or about No- vember 14, 1960, Respondent received a letter from the Motor Carriers Association enclosing a copy of what purported to be the Teamsters' "Proposed Amend- ments to the Southern Conference Local Freight Forwarding Pickup and Delivery Agreement." On January 24, 1961, Cook, accompanied by R. F. Hurt, assistant business agent for Local 728, called on Claude Brown, president of Respondent, and told him that during the negotiations with the Motor Carriers Association aforementioned for the contract term beginning February 1, 1961, it developed that Respondent had withdrawn its power of attorney to the Association and that Respondent would no longer be represented by that Association. When Brown verified this information,2 Cook told him that the local was willing to negotiate separately with him at his con- venience concerning the changes that the local desired to make in the pending con- tract. Brown replied "that he didn't know whether it was legal for him to negotiate with 728 or not, due to the fact that he had a contract with his [over-the-road] drivers which conflicted with him negotiating with Local 728 covering the city people " Cook stated that he could not understand such a position and Brown re- plied that he would have to clear the matter with his attorney before be could agree to negotiate with him as he had been advised that he could not do so. During the same conversation, Cook told Brown that, according to his informa- tion, it was Respondent's intention "to go non-union and not to negotiate with 728," and asked Brown whether that was true and whether he was willing to negotiate in good faith with Cook for a contract covering the Atlanta city pickup and delivery employees. Brown did not reply to this inquiry but told him to wait until the 2 Brown testified that the withdrawal took place on or about January 14, 1961. BROWN TRANSPORT CORP. 967 Association had concluded its negotiations and asked to be advised of the results thereof at which time he would contact Cook and let him know whether he would negotiate with hun separately or not .3 On Friday, January 27 , Hurt delivered to Respondent's office a copy of the contract that had been negotiated by the Association and the Southern Conference of Teamsters. At a meeting of Local 728 during the morning of Saturday , January 28 , attended by about 1 ,000 members, Cook was given "authority to call a strike if [he was] unable to conclude a contract satisfactory to the employees employed" by Respondent or any other employer. Cook left Atlanta for Miami , Florida, about 5:30 p.m on Monday , January 30, and during the afternoon of January 31, called his office in Atlanta and inquired whether Brown had contacted the office, as the latter had promised to do, for the purpose of setting up a meeting and was informed that he had not done so During the afternoon and evening of January 31, Respondent discharged all of the 58 Atlanta city pickup and delivery employees named in paragraph 13 of the amended complaint and handed each of them a letter reading as follows: JANUARY 31, 1961. To All Employees: Due to a change in circumstances , we are discontinuing our local pickup and delivery operations in Atlanta as of February 1, 1961 . On and after this date, we will no longer operate a pick up and delivery service here . We are sorry, but after January 31 , 1961, there will no longer be any employment available for these employees here in Atlanta due to this changed condition. The local pickup and delivery service formerly performed by us will be performed by Hudson Hauling Company . In our negotiations with them, they have told us that they will need additional employees as a result of their acquiring this additional business , and that they will be glad to consider any of our old employees for employment . If you desire employment with them, we suggest that you contact them at 730 Old Flat Shoals Road, S.E., Atlanta, Georgia. Since we were unable to give you more notice we will have your check for this full week as well as any other checks due you, such as , vacation pay, etc., which you may pick up at this office on Friday of this week. We will be glad to recommend you as per your qualifications to Hudson Hauling Company, or anyone else with whom you seek employment. Yours very truly, ICH:ga BROWN TRANSPORT CORP, I. C. HEMMINGS, Operations Manager On the same day, January 31, Respondent entered into an agreement with the Hudson Hauling Company whereby the latter agreed to perform the pickup and delivery service formerly rendered by Respondent 's discharged employees at the Atlanta terminal . By that agreement , Respondent agreed to advance to Hudson the necessary money to pay the rental on the terminal which Hudson rented on that day, and to advance, on a weekly basis , sufficient funds to meet that portion of Hudson's payroll incurred in the performance of that contract together with an advance for utilities "and other expenses incurred." The agreement further pro- vided that in the event Hudson became unable to perform his part of the agreement "by reason of any labor dispute or for any other reason," Respondent reserved the right to cancel the agreement without notice, and to take over the operation of the pickup and delivery service covered by that contract. Also on January 31, the same parties entered into a separate "Equipment Rental Agreement" by which Respondent agreed to rent or lease to Hudson, "from time to time," the following equipment and for the following rates- City tractors-$ 5 per day 4 City trailers-$3 per day City pickup trucks-$2 per day 3I do not credit Brown's testimony that Cook arbitrarily told him that Respondent had to sign the contract negotiated by the Southern Conference, and nothing else The nego- tiations for that contract were completed on that day, in a distant city , and no copy thereof was then available in Atlanta 4 Brown testified that In 1958 and 1959 Respondent bought 40 new trailers at a cost of approximately $7,500 for each trailer , and in 1960, it purchased 10 diesel tractors at a cost of about $13,500 for each tractor. 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About I or 2 p.m. of the same day, January 31, several of the discharged em- ployees came to the union hall and gave to W. D. Mathis, secretary-treasurer of Local 728, the letter addressed to "all employees" quoted above. Mathis called Cook in Miami shortly thereafter, told him that Respondent had fired all the employees, that he had issued a call for a meeting of the discharged employees at the union hall for 7:30 p m. of that day, and that they would probably have to "strike" Respondent, but that he would call Cook later that evening. About 45 or 50 of Respondent's employees met at the scheduled meeting and voted to put a picket line at Respondent 's premises that midnight and it was so imposed. A. The events at Knoxville On December 6, 1960 , Brown and I . C. Hemmings, Respondent's operation man- ager with headquarters at Atlanta , visited the Knoxville terminal. About 1 p.m. that day, Hemmings told J. M. Strange, shop steward of Local 621, that he wanted to talk to him in the private office of McGee, the Knoxville terminal manager. During the course of the conversation, Hemmings told Strange that he (Strange ) "could do a lot with the men"; that Respondent was "not going to sign a contract this time with the Teamsters," that "most of the men were joining the committee that they had-[the over-the-road] drivers . . . they'd rather have [them] in it," and that Strange could be on the committee. About 6 p.m. the same day, Brown addressed a meeting of six or seven city pickup and delivery employees on the dock of Respondent 's terminal. He told the men that business had fallen off at Knoxville, "that the Union and the Company were further apart at this time than at any other time in history and that he was not going to sign the contract with a union that Mr. Jimmy Hoffa was the head of." B. The events at Atlanta In December 1960, and on January 17, 1961 , M. J. Bartlett, a city driver at Atlanta and a member of Local 728, was told by Hemmings that Respondent was not going to sign a contract with the Teamsters and that the employees had a choice of forming a union of their own and drawing up a contract of their own , or joining the over-the -road drivers' committee. About December 1, 1960, Henry B. Thompson , a city driver and a member of Local 728, complained to Hemmings that his seniority rights in bidding for a job had been violated and asked him to consult the existing collective -bargaining agree, ment. Hemmings did so, but then told Thompson : "I'm going to break the Union here and I'm going to place [the men] anywhere I want." A similar threat was repeated by Hemmings to Thompson on January 18, 1961, when he told the latter "that before they would sign a contract, they would close up and go out of business." About January 1, 1961, Hemmings asked city driver Robert G. Dupree of Atlanta and a member of Local 728, what the men were "going to do, whether [they were] going to strike or if [they were] going to stay on with him or what; . . that Mr. Brown couldn't sign the contract, that [the Teamsters ] were a bunch of hoodlums and gangsters" and that the city drivers "could either come out of the Union or be out on the streets walking the picket, starving." On January 26, 1961 , while Thompson was looking at the employees ' seniority list in Brown's office, Brown , after asking Thompson how he felt, started reading from a pamphlet stating that Hoffa "put out a statement that this new contract would break 25 percent of the small outfits, [and] that he couldn't sign the contract on account of that." Brown added that Thompson, who had been employed by Re- spondent for about 7 years and was high on the seniority list, was a good employee, and that while the contract with the Teamsters would expire on the following Tuesday night, he would be open for business on Wednesday morning and that he hoped that Thompson would be with him on that morning. Be'ween January 16 and 26, 1961 , Brown called to his office city drivers Selton Cagle. Joiner, Norman O. Smallwood, and Thomas N Armour, all of them members of Local 728, and told each of them, individually, that he could not sign the contract with the Union because he had already signed a contract with the over-the-road committee. On or about January 26 or 27, 1961, Hemmings asked city driver James Tapp, employed by Respondent since 195'3, if he was going out on strike and Tapp replied that he would go along with the other men. Hemmings then told him that rather than sign a contract with the Teamsters, Respondent would close down and "take on a cartage company." After promising Tapp that he could arrange to transfer his seniority to the cartage company , Hemmings asked him to keep his "mouth shut" and he would have work for him. BROWN TRANSPORT CORP. 969 On or about January 27, Hemmings told Smallwood "that the boys were going to have a meeting at the union hall," and asked him to come the next morning and let him know what had transpired at that meeting. When the two men met on the following morning and Hemmings inquired whether Smallwood had been at the meeting, the latter replied that he had not attended. Hemmings then told him that it did not matter because he had at least four or five men "there to let [him] know what was going on." 5 About 3 p.m. on January 31, Hemmings asked city driver Earnest Bryant whether he was going to stay in the Union or join the over-the-road committee, and Bryant answered that he "would stick with the Union." Hemmings then told hum that he considered him a good employee, that if he "would come out of the Union" he could continue to work but if he did not he would "be looking for another job." Hemmings added that Brown would not sign the contract under any circumstances and that Hudson would handle the work formerly performed under the Union's contract and that Bryant could have work there. When Bryant replied that "if there wasn't a union, [he] didn't want any part of it," Hemmings told him that in that case he would not "have a job." His final words to Bryant, a native of North Carolina, were: "You get a one way ticket to North Carolina and don't come back, because we don't need people like you in the State of Georgia." On numerous occasions commencing in December 1960, Hemmings asked city driver Homer G. Williams how the drivers were "going to go," and told him that he wanted the men "to stay working with him [but] there wouldn't be [any] 728 at Brown Transport." Hemmings assured Williams that he "could stay with him as long as they [were ] operating, but [he] couldn't be with 728." On Saturday , January 28, about 1 p.m., Williams , who had maintained a friendly relationship with Hemmings, dropped in at Hemmings' office as he had frequently done on other occasions when he was not working . Hemmings asked him: "Why don't we talk something over and try to work something out about this thing coming up" so that the drivers "could keep working." According to Williams, whose testi- mony I credit, Hemmings offered ( 1) to let the drivers "pick five men as a com- mittee"; (2) enter into a 5-year contract with that committee; (3) grant a pay increase of 2 cents an hour above the union scale; (4) vacation rights; and (5) the return to work of Marvin Glaze, who had recently been fired. Hemmings then handed Williams the seniority list containing the names of 62 employees , approxi- mately half of whom had telephone numbers listed after their names, and asked Williams to call "and see how many [he ] could get up there to talk it over." Wil- liams tried to call every telephone number listed but was only able to contact about half of that group. Hemmings was on an extension while Williams was making the requested calls. Several of those called "wouldn't talk and several of them got nasty about it." About eight of the drivers came to the terminal at various times during the afternoon and Williams and Hemmings did not leave until 5:30 or 6 p.m. Williams, who apparently thought Hemmings ' offer "was a pretty good idea at the time [because] it was better than . . . walking the street [or] . . going on strike," repeated Hemmings ' offer to the men who came to the terminal. However, "none of them . . . liked it and . . . none of them would go for it ." Except for a few minutes, Hemmings was present during the entire afternoon conferences. C. The events at Savannah It will be recalled that until February 1, 1961, Respondent's city pickup and delivery employees at the Savannah terminal were covered by the same collective- bargaining agreement with Local 728 that was in effect at Atlanta. In the first part of December 1960, Brown called city driver Robert Heath to the terminal office and asked him whether he had "heard about the boys in Macon com- ing out of the Union." When Heath replied affirmatively, Brown stated since "Macon went nonunion, business really picked up " Brown inquired whether Heath was married and he replied that he was single. Brown then asked him "to go home and talk it over" with his mother and father. During the course of the conversation Brown told Heath he would not sign a contract with the Teamsters but instead would "close the gate." About December 20, 1960, Brown approached city driver C. T. Bashlor in the terminal yard and asked him whether he had "thought anything about withdrawing from the Teamsters, . [thatl he wanted to get Savannah in a union like he had in Athens; he'd get all the boys to resign; . . that he had another truckline Hemmings admitted he asked Smal lwood to attend the meeting and to report back to him 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in mind that he wanted to buy out if he could get [the city drivers] to resign from the Teamsters." About the same time, he asked city driver H. O. Carter if he "could get together with the rest of the boys and see what [they] could do about it." 6 Brown added, according to his own testimony, that if they did not get together he would have "to do like the Arabs, fold [his] tent and move on to greener pastures." On or about December 20, 1960, Charles Davis, terminal manager at Savannah, told city driver R. T. Linderman there would be a meeting of drivers in his office and that Brown was coming to Savannah to attend the meeting. Brown testified that prior to that time, Davis had "for some days been talking to [him] about the state of mind of the men in Savannah." Six city drivers and two over-the-road drivers, Savage and Foster, attended that December 20 meeting. According to Respondent's own witnesses, Gilbert Hudson, Jr., and J. H. Rivenbark, Brown told the men he could not sign a new Teamsters contract because it would put him out of business. In Brown's presence, Foster talked "about their union .. a company union" and wanted the city drivers to join their organization. Brown and Davis left for a short period but returned to the meeting when it was suggested that a petition or letter be prepared indicating that the signers thereof were "resigning from the Teamsters." Ralph Shelton, then a member of the Union, typed a number of letters reading as follows: 7 Mr. L. M RoBINSON Local #728, Teamsters Union 2222 Bull Street Savannah, Georgia DEAR SIR: This is to advise you to accept my resignation as a member in the Teamsters Union, Local #728 effective February 1, 1961. This is a free and voluntarily act on my part and no one has influenced me or compelled me to make this decision. This is for personal reasons of my own choosing. Yours very truly, cc Brown Transport Corporation (S) W. L. WEEKS. Savannah, Georgia cc: Mr R. C Cook, President Teamsters Union, Local #728 Atlanta, Georgia At least four or five of the city drivers present at the meeting signed the letter 8 Several city drivers apparently left the meeting early or had not been in attendance, and it was suggested that Brown and Linderman, another city driver, "go out and get them to sign it." In Brown's car, the two men attempted to locate the residence of Otto Haynes, also a city driver, but were unable to do so. The two men stopped at a house where Linderman telephoned Haynes and told him that Brown "wanted to see him about getting out of the Union." Haynes replied that he knew what Brown wanted and that "he didn't even want to talk to him." Brown then drove to the home of Tom Sellers for the same purpose but the men were told that he had gone to church. During conversation with Linderman, Brown told him "he needed every- body they could get [and] that they'd make more money that way." On January 23, 1961, the Union wrote to Davis confirming its previous requests for, and again requesting Davis' assistance in putting an end to the conduct of Re- spondent's over-the-road drivers, during working hours, in attempting to get the city drivers to withdraw their membership in Local 728. Though the record establishes that at least four or five of the resignation letters quoted above were signed by city drivers at the December 20 meeting, the nine such E In lieht of the existing circumstances I conclude that "it" refers to a withdrawal of membership from the Union. , Shelton, appearing as a witness for Respondent, and whose formal education stopped at the 10th grade, testified that he composed and typed these letters without help or assistance from anyone else His entire testimony was so implausible and contradictory that Respondent's counsel subsequently was impelled to repudiate him and to state on the record that Respondent did not believe his testimony and requested that the same not be relied upon or credited Rivenbark, testifying in behalf of Respondent, testified that Foster, chairman and one of the three members of the over-the-road drivers' committee, brought in a copy of a letter, handed it to Shelton, who in turn made a number of copies thereof which were signed by city drivers 8 Gilbert Hudson, Jr , so testified BROWN TRANSPORT CORP. 971 letters received in evidence, though otherwise identical with the letter typed on December 20, were all dated January 28, 1961. The reason ascribed for the use of the January 28 letters, rather than those signed on December 20, was as follows: On January 28, a meeting of both city and over-the-road drivers was held at the home of Walter Weeks, an over-the-road driver. Foster explained that the Decem- ber 20 "letters were in his station wagon and apparently his children had gotten hold of those letters and when he found them they were on the floor of his car and they had gotten dirty." The nine letters received in evidence were mailed to and received by the Union on January 30. During the morning of January 30, Louis M. Robinson, assistant business agent of Local 728 with headquarters at Savannah, had a telephone conversation with Cook in which Robinson told him that he had scheduled a meeting of Respondent's Savan- nah employees for the following day. Robinson asked him about "the status of the Brown Transportation situation" and was told that they had not been "concluded." Cook further told him "that there was a rumor that they were going to discharge the employees [and that the Union] might have to file charges . . . and strike the Company over an unfair labor practice charge." At the meeting of Respondent's employees at the union hall during the evening of January 31, attended by nine such employees, the men "discussed the Brown Trans- port situation, the discharges of the people in Atlanta . . . and the situation concern- ing the contract with Brown and the Teamsters, . that there had not been an agreement reached at that time." Robinson explained to the men the difference in effect upon employees when they go on strike because of an unfair labor practice by an employer, and when they engage in an economic strike. On the entire record, I am convinced and find that the strike which was voted that evening was imposed both because of the Atlanta discharges and because of the Respondent's failure to negotiate a new collective-bargaining agreement with the Union. A picket line was established at Respondent's Savannah terminal that mid- night and was still maintained at the time of the hearing herein. Concluding Findings The foregoing findings, and those that follow, are based, in part, on undenied testi- mony. As to the remainder, they have been, and are, induced by consideration of the entire record. The testimony of each witness on both sides has been fully con- sidered and evaluated in the light of other evidence which I consider reliable, the inherent plausibility of such testimony in the setting of the surrounding events, and my estimate of the reliability of the witnesses, based on my observation of their de- meanor, their spirit of candor and fairness, or the want of it. The General Counsel, in his brief, correctly summarizes the issues for determina- tion as follows: 1. Did Respondent commit independent violation of Section 8(a)(1) of the Act. 2. Did Respondent, by unilaterally terminating its Atlanta unit employees and subcontracting the work performed by these employees, violate Section 8(a) (5) and (1) of the Act. 3. Did Respondent violate Section 8(a)(3) and (1) of the Act by terminat- ing the Atlanta unit employees 4. Did the employees at Respondent's Savannah, Georgia, operations engage in an unfair labor practice strike. Careful consideration of all the cases cited by Respondent in its exhaustive brief merely confirms what, in my opinion, has always been the state of the law, i.e., that an employer may, for economic reasons, discontinue all or part of its operations, or sublet any portion thereof. It is equally well settled, however, and all the cases re- lied upon by Respondent so recognize, that such action is proscribed if engaged in because of union animus when coupled with a desire to avoid its obligations under the Act Though several of the courts of appeal in the decisions relied upon have disagreed with the Board's findings as to the motive that prompted the employer's change of operations, all have agreed with the principles of law enunciated above The problem in each case was, and here is, to determine the true motive of the employer. The record here clearly establishes that at least since early in December 1960 Respondent made up its mind that it would not negotiate any further collective- bareaining agreements with the Teamsters or any local thereof. Brown, himself. made that clear in his talk to the drivers at Knoxville when he so announced. and when Hemmings urged Strange to use his influence amone the men at that terminal to join the independent over-the-road committee or association 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similar efforts were extended by Hemmings in Atlanta early in December 1960 and repeated throughout the entire month of January 1961 . Indeed, Hemmings on or about December 1, 1960, expressly threatened driver Thompson that he would "break the Union" and later told Dupree that the city drivers' only choice was to "come out of the Union or be out on the street . . . starving." On January 16 or 17, at least a week before the Southern Conference negotiations were completed , Brown told city driver Cagle that he could not sign a contract with the Union because he had already signed an agreement with the over-the -road drivers committee, a statement he repeated , in substance, shortly thereafter to Joiner, Cagle, and Smallwood. The entire record clearly establishes , indeed Respondent does not deny, that it refused to bargain with the Union for a collective -bargaining agreement to become effective February 1, 1961 . Its defense is that because of (1) unverified , hearsay rumors that had come to Brown that early in December 1960, James Hoffa, president of the International , in a speech at Chicago, had threatened that the Teamsters' an- ticipated contract demands "would probably put 25 percent of the motor freight lines out of business"; (2) "Respondent knew that it was "altogether likely that it would be faced with the same increase in labor costs as would be set by the pattern established in the Eastern Area of the United States during the fall of 1960," and Brown knew "that the Southeastern carriers would ultimately be faced with and forced to accept whatever agreement was reached in the Central States area, with reference to wages, vacation , pension funds , and fringe benefits"; and ( 3) the con- tinuing decline in Respondent 's profits made it economically unfeasible for Re- spondent to meet the allegedly anticipated , unyielding demands of the Union. On the entire record, however , I am convinced and find that Respondent's refusal to bargain with the Union , and its unilateral subletting of the Atlanta terminal work and the discharge of the city drivers, was occasioned not by any of the foregoing three factors but by its desire to completely rid itself of the Union as the collective- bargaining representative of its city employees in Atlanta and Savannah. No credible , probative evidence was offered to sustain Respondent's contention that Local 728 could not accept terms from Respondent other than those agreed upon by the Southern Conference , or that Respondent had reasonable grounds for believing so . Indeed , following the execution of the contract then in existence, which had been negotiated by the Southern Conference and the Motor Carriers Association, "Brown asked that he be permitted not to be bound by the health and welfare pro- visions in that contract and that exception was granted to him " And , at the hearing before me , the parties stipulated that Local 728 "makes concessions in contracts with various companies." Even if it be assumed , arguendo, that Respondent had reasonable cause to believe the existence of the state of affairs described in (2) of its defense described above. I find it significant that no claim is made that that subject , nor Respondent's inability to grant any wage increase , was ever mentioned to Cook or any other official of the Union prior to the time that Respondent took the matter into its own hands, uni- laterally subletting its Atlanta city delivery work, and discharging the city drivers.9 Tn any event , and regardless of the status of negotiations in other parts of the country, Respondent was not thereby absolved of its duty to bargain individually with Local 728 after Cook's demand that he do so Respondent was, of course , within its rights when , on January 14, 1961, it with- drew the power of attorney it had previously given the Motor Carriers Association to negotiate in its behalf But by the same token , Respondent was relieved of its obligation to accept any wage scale or other terms agreed upon by that Association and the Southern Conference of Teamsters . It was because of that revocation or withdrawal that Cook offered , in behalf of Local 728, to negotiate a separate con- tract with Respondent. In sum , therefore , Respondent refused to bargain through the Association , and refused to bargain in its oivn behalf. A circumstance which must be considered in determining whether Respondent's conduct herein was illegally motivated , or prompted by economic considerations, and/or its fear that it had no alternative other than to sign the Southern Conference contract.10 is the timing of the contract with the Hudson Hauling Co which . it will be recalled, was executed on January 31, 1961. 9 Brown admitted that Respondent 's inability to grant any wage increase was not mentioned in his conversation with Cook. to Though this was Respondent ' s defense interposed at the hearing, Brown in his testimony, admitted that he told "some employees that [he] couldn't sign the contract due to the fact that it would conflict with the contract [ he] had with the road drivers," an independent organization of Respondent 's over-the -road drivers BROWN TRANSPORT CORP. 973 Brown testified that on or about November 14, 1960, when he "first received the Teamster's proposals, . . . Respondent's Exhibit 29, and it first came to [his] at- tention that contracts were being concluded in the East," he reached a conclusion that Respondent "could not pay the provisions of that contract and stay in business, [that the] pickup and delivery cost in certain areas had gotten out of hand, [they] couldn't continue on that basis." Nevertheless, it was not until the afternoon and night of January 30, 1961, 21/2 months later, that he made his arrangements with the Hudson Hauling Co. to handle the Atlanta pickup and delivery operations. And, the negotiations for a lease of the terminal to be used by Hudson for the subleased work were not commenced until January 30 and not concluded until January 31. My rejection of the reasons assigned by Respondent for subletting the Atlanta city work is buttressed by Respondent's inconsistent testimony. Thus, though he testified that he knew from past experience that the Southern Conference always adopted the wage scale of the central and eastern areas, and that no local of the Southern Con- ference could vary the terms that had been negotiated by the Conference, he further testified that from January 14 on he "was grasping at a straw . . . always hoping that something would happen that will make conditions where you can live with it " Respondent's conduct toward its employees convinces me that the "something" which Brown left unexplained, but which he hoped would happen, did not pertain to any more acceptable contract proposals, but to the successful prosecution of Re- spondent's campaign to have its city delivery employees reject the Union as their collective-bargaining representative, thereby freeing Respondent from any obligation to bargain with that organization. The findings pertaining to events at Knoxville, Atlanta, and Savannah, clearly establish that Respondent carried on such a campaign as early as December 1, 1960, and vigorously prosecuted it until the late afternoon of Saturday, January 28, 1961, when Respondent definitely ascertained that none of the Atlanta employees who had been asked to participate in that campaign "would go for it." It was on the following Monday, January 30, that Respondent negotiated with Hudson to take over the Atlanta city delivery work. Brown, the owner of all the capital stock of Respondent," did not impress me as a businessman who, if he really believed the existence of the state of affairs upon which Respondent now relies, would have waited until January 31, 1961, to make a deal which Respondent would now have me believe, would have resulted in "net savings" of approximately $144,000 in the operation of the Atlanta terminal alone if it had been in effect during 1960.12 Other significant factors should be noted in connection with Respondent's claim that it would save $144,000 by its deal with Hudson. Brown testified that during the preceding 4 or 5 years Respondent had profitably sublet its local cartage work in four other cities in Georgia and found that they "could operate cheaper" in that manner. Respondent also introduced into evidence its income tax and profit-and-loss statements for the years 1958, 1959, and 1960, showing that its net income after taxes, from all of its operations during those years, dropped from $37,104.01 in 1958 to $10,027.93 in 1960. I cannot believe that Brown, who impressed me as an extremely shrewd businessman, would, in light of the profitable experience in four other cities, wait until January 30, 1961, to inaugurate a similar method of operations in Atlanta which would realize "net savings" of $144,000. All of the foregoing compel the conclusion that the deal with Hudson was not made for the reasons assigned by Respondent, but to avoid Respondent's obligation to bargain with the Union and to forever rid itself of that organization, thereby violat- ing Section 8(a)(1) and (5) of the Act. I further find, and for the same reasons, that by discharging the 58 Atlanta city pickup and delivery employees named in the attached Appendix that Respondent violated Section 8(a) (3) and (1) of the Act. Morris and David Yoseph, d/b/a M. Yoseph Bag Company, 128 NLRB 211, re- manded on other grounds sub nom. District 65, Retail, Wholesale & Department Store Union v. N.L.R.B., 294 F. 2d 364 (C.A. 3); Kelly & Picerne, Inc, 131 NLRB 543; Brown-Duncan Company, Inc., 125 NLRB 1379. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- "A corporation whose freight revenues in 1960, for its entire system, weree approxi- mately $2,400,000 12 According to Respondent's Exhibit No. 35, this amount should be $155,000, but Brown, in his testimony , conceded that an error had been made in the preparation of this exhibit and that the "net savings" figures should be reduced by approximately $11,000 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Having found that the 58 employees were discriminatorily discharged on Janu- ary 31, 1961, it is recommended that Respondent be ordered to offer each of said 58 employees immediate and full reinstatement to his former or substantially equiva- lent position, without prejudice to his seniority and other rights and privileges, and make each of them whole for any loss of earnings he may have suffered because of the discrimination against him by payment of a sum of money equal to the amount he normally would have earned as wages from the date of discharge to the date of offer of reinstatement, less his net earnings during said period, with backpay com- puted on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289, 291-294 It is also recommended that Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. It having also been found that Respondent abandoned its city pickup and de- livery operation at its Atlanta terminal on January 31, 1961, it is recommended that Respondent be ordered to resume that operation and offer to the employees desig- nated above immediate and full reinstatement, with backpay, as described above is In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I, therefore, recommend that Respondent be ordered to cease and desist from in any manner in- fringing upon rights guaranteed to its employees by Section 7 of the Act 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. Truckdrivers and Helpers Local Union No 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Chauffeurs, Teamsters & Helpers Local Union No. 621, thereof, are each labor organizations within the meaning of the Act 2. Respondent's citywide pickup and delivery drivers at its Atlanta, Georgia, ter- minal, but excluding all other employees, professional employees, guards, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 3. At all times since February 1, 1958, Local 728 has been, and presently is, ex- clusive representative of the employees in the unit described above for the purpose of collective bargaining. 4. By unilaterally subletting its Atlanta city pickup and delivery work on Janu- ary 31, 1961, without prior notice to Local 728, Respondent violated Section 8(a) (5) and (1) of the Act. 5. Respondent, since on or about January 31, 1961, and at all times thereafter, refused and has continued to refuse to bargain collectively with Local 728. 6. By discriminatorily discharging the 58 employees on January 31, 1961, Re- spondent violated Section 8(a) (3) and (1) of the Act. 7. By interrogating its employees concerning their union membership and activi- ties, by threatening them with reprisals if they maintained their membership in the Union, by keeping under surveillance the union activities of its employees, and so- liciting their withdrawal from membership in the Union, Respondent violated Sec- tion 8 (a) (1) of the Act. 8 The strike in which Respondent's employees are, and have been, engaged at Respondent's Savannah terminal since February 1, 1961, is an unfair labor practice strike, having been caused by the discharge of the Atlanta employees and Respond- ent's refusal to bargain with the Union 14 9 The aforesaid unfair labor practices are unfair labor practices affecting commerce. [Recommendations omitted from publication.] 13 The R C Mahon Company, 118 NLRB 1537, 1544, and Jays Foods, Inc, 129 NLRB 690, enforcement denied in 269 F 2d 44 (C.A 6) and 292 F 2d 317 (C A 7), respec- tively, but on other grounds 14 Winter Garden Citrus Products Cooperative, 114 NLRB 1048, enfd as mod 238 F 2d 128 (C.A. 5), enforcement denied, in part, on other grounds.