Arkansas-Louisiana Gas Co.

ARKANSAS-LOUISIANA GAS COMPANY 1083 In these circumstances, in my opinion, the ultimate determination of this dispute must rest on a balancing of the weight of the Em- ployers' assignment to their regular carpenter-employees, and the efficiencies resulting therefrom, against the weight of the Carpenters- Lathers agreement. In this case, I think, the Employers' assignment weighs the heavier. I do not of course believe that an employer's assignment should be given controlling weight; 14 but I do think it is entitled to substantial weight, and should govern the result in the absence of countervailing factors of greater weight. On the facts revealed by this record I cannot accord the Carpenters-Lathers agree- ment such greater weight, let alone controlling weight. I have no quarrel with the proposition that it is a desirable policy for the Board to encourage the settlement of jurisdictional disputes by agreement. It is obvious here, however, that the agreement was consummated with- out consultation with any interested employer representatives, either locally or nationally; and in addition, the Carpenters-Lathers agree- ment has, in fact, settled nothing. Under all the circumstances, I would award the disputed work to the Employers' carpenter-employees. Consequently, I dissent from my colleagues' award of that work to lathers. 3' See my dissenting opinion in Philadelphia Typographical Union , Local No. $ (Phila- delphia Inquirer, Division of Triangle Publications, Inc.), supra. Arkansas-Louisiana Gas Company and Chauffeurs, Teamsters & Helpers, Local Union No. 878, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 26-CA-1279. June 11, 1963 DECISION AND ORDER On November 21, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report herein, finding that the Respondent engaged in 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 filed ex- ceptions to the Intermediate Report and a supporting brief. The General Counsel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record. The Board affirms the Trial Exam- 142 NLRB No. 117. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iner's rulings i and adopts his findings, conclusions, and recommenda- tions 2 with the following modifications : 1. The Respondent excepts to the Trial Examiner's finding that Dispatcher Jenkins was a supervisor within the meaning of the Act. In addition to the evidence as to supervisory duties marshalled by the Trial Examiner in support of his finding, the undisputed testimony of the General Counsel's witnesses shows that Jenkins in assigning drivers to their runs used his independent judgment to equalize their earnings. He also served as a link between management and the drivers, arranging meetings for them with the company officials. In the administrative hierarchy at the time of the layoff, 17 employee drivers reported directly to him, and he himself reported to a vice president in charge of the entire transportation department of the Company. And it was Jenkins, again on his own initiative, who was at least instrumental in securing the reinstatement of McEuen. Under these circumstances, with no-evidence adduced to the contrary by the Respondent, we hold, as did the Trial Examiner, that Jenkins was a supervisor within the meaning of Section 2 (11) of the Act. 1 During the General Counsel 's direct examination of his witness , Mounts, the Respond- ent requested the pretrial statements of Mounts and all other witnesses , including all those who had testified prior to Mounts and all those to come thereafter . The testimony of Mounts was stricken and the Trial Examiner ruled that the Respondent was not en- titled to the statements . We agree with the Trial -Examiner. The production of a state- ment by a witness is for purposes of cross-examination of that witness . Since the testimony of Mounts was stricken there was no need for the production of his statement . And the request for the statements of witnesses who have already testified and left the stand and for the statements of witnesses not yet called does not fall within the purview of the Board's rules relating to the production of such statements. See Section 102.118 of the Board's Rules and Regulations , Series S. Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294, 295-296 ; Edwards Trucking Company, 129 NLRB 385, 386, footnote 1. The Respondent excepted to the Trial Examiner's refusal to permit the Respondent to cross-examine General Counsel 's witness, Creed , as to the operations and the depleted inventory of the Arkla Chemical Corporation , a subsidiary, from which Creed had been hauling materials as a driver Respondent asserted that the depleted inventory necessi- tated a reduction in the number of those hauling such materials and thereby established an economic justification for the layoff. In the conduct of a hearing the question of whether certain lines of inquiry or the responses of witnesses should be curtailed rests in the sound discretion of the Trial Examiner Inasmuch as the subject witness was asked no questions as to the operation or the status of the inventory at the Arkla Chemi- cal Corporation on direct examination , we find the rulings of the Trial Examiner as to the scope to be allowed in cross-examination were within the allowable area of his discre- tion U.S Divers Company, 133 NLRB 986 , footnote 2; 6 Wigmore, Evidence §§ 1885- 1891, p. 532-562 (3d ed. 1940 ) ; Colfax Industries, 133 NLRB 722, 723, footnote 4. In any event the Trial Examiner did not abuse that discretion and his rulings were not prejudicial in this case because the Respondent failed to call its own witnesses to prove the economic justification of the layoff, a matter peculiarly within its knowledge, even after the Trial Examiner informed it that he would hear such testimony , when it put on its case The burden of going forward with the evidence to establish an economic justifi- cation for the layoff as an affirmative defense was upon the Respondent in its own case and not on cross -examination of the General Counsel's witness. Accordingly, the Trial Examiner 's rulings are hereby affirmed. 2 For the reasons stated in their dissenting opinion in Isis Plumbing & Heating Co., 138 NLRB 716, Members Rodgers and Leedom are convinced that the award of interest in this case exceeds the Board 's remedial authority. While adhering to such view, for the purpose of this decision they are acceding to the majority Board policy of granting interest on moneys due. ARKANSAS-LOUISIANA GAS COMPANY 1085 2. The Respondent also excepts `to the Trial Examiner's findings that Albert Stephens, brother of W. R. Stephens, president of the Respondent Company, was an agent of the Respondent, and that by Albert Stephens' interrogation of unlawfully discharged employees as to their union membership and the leaders of the organizing move- ment, the Respondent interfered with, restrained, and coerced employ- ees in the exercise of rights guaranteed by Section 7 of the Act. The record on this point, in addition to the facts cited in the Trial Ex- aminer's Intermediate Report, shows that about the middle of August 1961, upon Lowery's inquiry, Albert Stephens brought a Gas Com- pany application to Lowery, questioned him about his union sympa- thies, promised him a job with the Gas Company, and sent Lowery's application in to the Company. In about 3 weeks Lowery was called by the Company to report to work. Similarly, Newsom, another appli- cant for employment, took one of Respondent's applications to Albert Stephens who approved it. Later he visited Albert Stephens at the latter's request. Stephens said that he had Newsom's application and after discussing Newsom's qualifications as a driver he told Newsom "You know how the Gas Company operates. It is against the Union." He then asked Newsom whether he was for the Union, and Newsom assured him that he was not. Thereafter, Newsom was notified by Albert Stephens when and where to report for work. These incidents, together with those cited by the Trial Examiner, convince us that Albert Stephens was an agent of the Respondent and that, because of his interrogation of the employees regarding their union sympathies and the leadership of the organizational movement, the Respondent violated Section 8 (a) (1) of the Act. 3. We also agree with the Trial Examiner that the drivers were dis- charged because of their union activities in violation of Section 8 (a) (3) of the Act. The discharge of all of those signing union cards while retaining the employees who had not signed union cards; the prompt reinstatement of one employee when it was discovered he had been mis- takenly included among the group supporting the union organizational movement; and the failure of the Respondent to submit any evidence to support its claim that the discharges were occasioned by economic necessity are all circumstances strongly indicating that the employees were discharged because of their union membership. In addition, however, we find that timing and manner of discharge to be significant in assessing the legality of Respondent's conduct. Thus, the discharges began simultaneously with the peak of the organ- izational movement. When Jenkins, who had no prior notice that the employees were to be discharged, ran into the yard to carry out the order to fire "the whole bunch," one of the dischargees was already pulling out of the yard on a scheduled run. The discharges left Jenkins without sufficient drivers to make the scheduled runs, and he 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -was then told that he should utilize the four drivers who had not signed union cards. Shortly thereafter, the Respondent hired a new driver, Jones, and transferred other drivers from Shreveport to per- form the duties of the discharged drivers. This precipitous discharge of union adherents at a time when their services were needed, the retention of nonunion employees, the hiring of a new employee, and the transfer of other employees from another city as replacements at the precise moment that the union organizational movement was at its climax is convincing evidence that Respondent was motivated by anti- union considerations. And this conclusion becomes more compelling when it is considered that Respondent asserted that its real reason for the discharges was a lack of work. For these reasons, as well as those cited by the Trial Examiner, we find that the Respondent was moti- vated by antiunion considerations in discharging the employees in violation of Section 8(a) (1) and (3) of the Act. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, with the following modification: The Appendix is modified by adding the following statement im- mediately below the signature line at the bottom of the notice : NoTE.-We will notify the above-named employees, if 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 and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On May 16 and 22 and July 2, 1962, respectively, the original, first and second amended charges in these proceedings were filed by the above -named labor orga- nization . Upon these charges the General Counsel of the National Labor Rela- tions Board issued an original complaint and amendment thereto on July 6 and 17, 1962, respectively. Service of the charges and the complaint was duly made. Answers from the Respondent were received on July 16 and 23. The complaint alleges and the answers deny that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held in Little Rock, Arkansas, on October 1 and 2, 1962, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented , and were afforded full opportunity to present evidence pertinent to the issues , to argue orally and to file briefs. Briefs have been received from General Counsel and the Respondent. On October 17, 1962, the Trial Examiner received from counsel for the Re- spondent two purported affidavits from individuals named in the complaint as having been unlawfully discharged, and a covering letter moving that said ex-parte affidavits be "made a part of the record." Objections were thereafter received from counsel for the Charging Union and General Counsel. The objections are sustained, and the documents are rejected, on the grounds that the contents of neither are material to the issues in this case , and that their offer is untimely. In order that such ruling may be reviewed by the Board, however, the purported ARKANSAS-LOUISIANA GAS COMPANY 1087 affidavits, the covering letter, and the objections may be placed with the record as rejected exhibits. On November 7 a motion was received from General Counsel to correct the transcript in certain minor respects. The motion is granted as to all specific corrections requested and said motion is hereby made a part of the record. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the conclusion of the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Arkansas-Louisiana Gas Company is a Delaware corporation, conducting an inter- state utility business with places of business in Louisiana, Arkansas, Texas, Okla- homa, Kansas, and other locations, where it is engaged in the sale and distribution of natural gas. It also owns and operates nonutility enterprises, through certain wholly owned subsidiaries engaged in the manufacture and sale of chemicals, gasoline and hydrocarbon products, cement, air-conditioning machinery and equipment, and other products, with places of business in various States of the United States. During the year preceding issuance of the complaint the Respondent received gross revenue of more than $100,000,000. The Respondent is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION Chauffeurs, Teamsters & Helpers, Local Union No. 878, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization admitting to membership employees of the Respondent at its Little Rock, Arkansas, operation. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues The one operation of this huge corporation involved in this proceeding is its Fifteenth Street terminal in Little Rock, Arkansas. (It has another terminal in the same city.) In early May 1962, there were 17 truckdrivers working out of this terminal. In the preceding March employees learned of management's plan to effect a change in its wage structure. Drivers became concerned. Dispatcher Royce Jenkins was asked to arrange a meeting with Transportation Superintendent Crawford. After some delay several drivers, with Virgil Creed acting as their spokesman, were able to talk with Crawford. At this meeting the drivers not only questioned the new pay system but protested what they considered to be the unfairness of the "Ten Point System" (an accident grading) as it was applied to certain of the drivers. Management, however, put a "mileage" plan of pay into effect. A group of drivers, including Creed, complained to Jenkins, asked for his help. One of them remarked to the dispatcher that it looked as if they needed a union. Jenkins was asked to arrange another meeting with Crawford. He reported back to the men that Crawford had said he was "tired of fooling with the truckdrivers" and would not "listen to any more belly-aching and griping." 1 Shortly after this Crawford was relieved of his position, which was then assumed by Lindsey Hatchett, a vice president. Creed asked Jenkins to arrange a meeting with Hatchett. No meeting was held, Jenkins reporting back to the men that Hatchett said he would "look into it." Apparently frustrated in their effort to obtain a meeting with the superintendent, Creed and another driver went to the office of Local 878, signed application cards, and brought other cards back for distribution among their fellow employees. Creed was the leader in this self-organizational move. Between April 20 and May 8, 10 drivers of the 17 employed at this terminal signed application cards. Between May 11 and 14, all drivers who had thus signed cards were without previous warning laid off and terminated. Only 4 drivers of the 17 were retained- none of the 4 had signed a union card. Another laid-off driver, McEuen, upon tell- 1 The quotations are from Creed's undisputed testimony. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Dispatcher Jenkins that he had not signed a union card , was promptly rehired the next day. The chief issue in the case, of course , is the sudden employment termination of drivers who had thus exercised their rights under the Act. B. The terminations 1. The facts In the context above-described, and without previous warning, drivers who had signed union cards were fired on May 11. Late in the afternoon of that day as employee Creed started out of the yard on a run to St. Louis, for which he had been called earlier in the day by Dispatcher Jenkins, the latter ran out to head him off and informed him "They have just fired the whole bunch." When Creed asked "Fired who?" Jenkins replied, "They have just fired every truckdriver down here." Creed and Jenkins then went into the office shared by the latter and Garage Foreman Lafferty. Creed asked Lafferty what was going on. The foreman said he didn't know, but Hatchett (previously identified as a vice president who took over Crawford's supervision of transportation) had called him and told him to lay off each truckdriver as he came in. Jenkins protested that he had four or five runs scheduled at the time. Lafferty then told him that Hatchett had said he could keep drivers Ford, Younts, Ware, and Roberts. None of these four had signed union cards. Creed asked Lafferty what the "deal was." The latter replied that Hatchett had told him it was an "economic layoff, and we were just going to have to tighten our belts." 2 Creed questioned this reason, declared he believed it was because of the union activity, and said he intended to call the union representative at once. He remained at the garage, and told a number of the drivers, as they reoprted in, of their dismissal. While in Jenkins' office the same afternoon, driver McEuen, who was among those discharged, remarked to Creed that ". . . it looks like I cut my own throat. I did not want to sign one of these cards because I thought I was going to the office ... and I would not be allowed to vote when the Union voted. Now I have messed around and I have no protection at all. I did not sign a card and you boys did, and you have protection, and I haven't." At this point Jenkins broke in, "You did not sign a card?" McEuen turned to Creed for confirmation of the fact, and the latter agreed that he "never signed a card " McEuen returned to work the next day. On the morning of the day after the wholesale discharges Creed and three other drivers met Hatchett in the office to inquire as to their status. He told them that they were "definitely laid off," and that it was an economy "cut-back." He advised at least one of the drivers present to take another job, if he could find one. Driver Ballard reported in at the terminal in the evening of May 11. Jenkins told him that he had bad news-all but four men were laid off. The dispatcher then asked him if he had joined the Union. Baxter, who had a withdrawal card from the Teamsters, replied that he had not joined. Jenkins then told him that Creed and others believed they had been let go because of the Union, but that if he had not joined "I think I can get you back on." 3 On the Monday after the dismissals, Ballard and three other drivers went to Jenkins' office. Jenkins told them that a new driver, Jones, had been hired that morning, and that extra drivers were being transferred in from Shreveport, where the Respondent has its home office. The complaint lists the following nine drivers as having been unlawfully discharged between May 11 and 14: James C. Ballard Harold R. Kauffman Bobby C. Newsom Virgil W. Creed Harold L. Stribling Donald R. Richards Kenneth R. Lowery J. W Harrington, Jr. John H. Baxter Of these nine employees all but Ballard had by the date of their layoff signed a union card. Ballard, as noted above, held a withdrawal card from the Teamsters and signed a card on May 12, the day after his discharge. Two other employees who had signed cards-Williams and Harper-were also discharged at the same time but are not included in the complaint. Employees Grant and McEuen were also laid off in the group discharged. As noted above, as soon as Jenkins learned that the latter had 2 The quotations are from Creed's undisputed testimony. Neither Jenkins nor Lafferty was called as a witness. 8 Ballard's account of this interview is uncontradicted. On May 12, the day after his discharge, he signed a union application card. ARKANSAS-LOUISIANA GAS COMPANY 1089 not signed a card he was reinstated at once. Grant, who had not signed a card, was reemployed in early September 1962. Of the employees listed in the complaint, it was stipulated at the hearing that the following were reemployed on the dates appearing opposite their names: Ballard 9/4/62 Kauffman 9/7/62 Richards 6/1/62 Stribling 8/30/62 Although the Respondent's answer claims that the May 11 layoffs were "for reasons of an economy program ," and according to the testimony of the discharged employees they were given similar reasons at the time, the Respondent called no witness from management to substantiate the claim, nor were any records brought forward to support it. 2. Conclusions In the opinion of the Trial Examiner the foregoing facts, without more, amply sustain General Counsel's contention that the nine drivers listed in the com- plaint were summarily discharged to discourage umon membership and activity. In summary, the following factors point directly to unlawful dismissal: (a) All nine had signed union cards-except one, who held a withdrawal card. (b) All four drivers retained had not signed union cards. (c) Upon informing Jenkins that he had not signed a card employee McEuen, who had been dismissed with the others, was promptly reinstated? In the absence of any evidence from the Respondent, either to rebut the plain inference to be drawn from the foregoing facts, or to support its claim of economic necessity, the conclusion of a violation of the Act appears inescapable. The Trial Examiner therefore infers and finds that the nine individuals listed above were dis- charged on or about May 11, 1962, to discourage umon membership and activity, and that by such unlawful conduct the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. The record also contains a good deal of uncontradicted testimony which throws additional light upon the nature of the discharges. Such testimony established the following facts: (a) W. R. Stephens, president of the Respondent corporation, and his brother, Albert Stephens, both live in Grant County which abuts the county in which Little Rock is located . It appears, however, that the brothers do not live in the same home. (b) Albert Stephens was directly instrumental in the hire of a number of the discharged drivers who also lived in Grant County. For example, after employee Harrington had sent in an application for employment to the Little Rock office of the Respondent, he was called to the home of Albert Stephens, where the latter in- formed him that he had "a job" for him provided another applicant turned it down. He asked Harrington how he felt about a union, and the latter told him he did not like a union . The next day Stephens told him to go to Little Rock, take a physical examination, and report to Hatchett. Harrington was put promptly to work. Again, Stephens offered a job with the Respondent to Kauffman, and gave him an application blank . Stephens put his "okay" on this application, said he would send it to the office , and warned Kauffman that he knew what to do about a union. Shortly after this interview Kauffman was called to work for the Respondent. Stephens also approved the application of employee Newsom. (c) A few days after the general layoff Stephens stopped at Kauffman's home, asked him about the dismissals , said he had learned about the union activity at the Little Rock office of the drivers, and asked Kauffman directly if he had signed a card-telling him that his own cousin , J. W. Harrington, had admitted to him that he had a union card. Stephens told Kauffman that he wanted to see him and others of the Grant County group at his home. (d) The next morning three or four of the discharged drivers, including Creed, went to Stephens' home. He demanded of them that they all tell him what the Union "deal" was, and said he wanted "straight" answers to his questions. He declared that if they would tell him "who started this union activity" and "who all was in it" he would guarantee to get their jobs back. When he added, how- 4 The Respondent adduced no evidence to support its contention that Dispatcher Jenkins was not a supervisor within the meaning of the Act. Undisputed testimony of General Counsel's witnesses show that Jenkins assigned drivers to their runs , granted time off, authorized purchase orders , and in other respects functioned as a management representative. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, that he was not a "representative" of the Company, Creed questioned the validity of any "guarantee" he could offer. Stephens countered by asking "How did you get your jobs to start with?" When the men appeared reluctant to give him the desired information he told them to come back later, after talking it over among themselves. General Counsel, in his complaint, alleges that Albert Stephens served as an agent of the Respondent. This the Respondent denies, and, it introduced testi- mony from officials of the Respondent to the effect that Stephens, even if he en- gaged in the above-described conduct, was without authority to do so. The Trial Examiner believes that the preponderance of credible and undisputed evidence con- cerning the relevant facts fully supports the conclusion General Counsel urges. Whatever might be the determination of "agency" in some other forum, the Trial Examiner believes that under this Act, concerned with employer-employee matters, the relationship between Albert Stephens and the Respondent has been such that, so far as employment is concerned, a real and genuine "agency" exists. By solicit- ing and approving employment applications he had, in effect, established himself in the eyes of these employees as an employment agent upon whom they could rely. And his conduct after the discharges, as to which the evidence is undisputed, fur- ther demonstrated the extension of such agency. The Trial Examiner therefore concludes and finds that by Albert Stephens' inter- rogation of unlawfully discharged employees as to their union membership and leaders, above described, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. During his examination of Vice President Hatchett, as an adverse witness, Gen- eral Counsel interjected an issue not raised in the Respondent's answer. He asked Hatchett if he considered drivers Creed and Harrington to be "ineligible for recall." Hatchett replied: "If it was left up to me, that is the way I would look at it." Gen- eral Counsel then drew from this official his reasons which in substance were: (1) that Creed was "accident prone," and (2) that Harrington had been placed in "a number of different positions and we never were able to keep him satisfied." The Respondent's own records clearly deprive Hatchett's claims of any merit. As to Creed, it was developed through Hatchett that drivers are subject to what is termed a "Ten Point Driver Evaluation Program." At least since October 1960, drivers have been penalized according to the seriousness of accidents by the deduction of one or more points from the no-accident standard of 10 points. The records show that Creed had a single accident in that period, losing 2 points. Stribling, however, lost 4 points, yet he was recalled as noted above. Driver Reed has lost all 10 points, yet he continues to drive. Flatly contradicting Hatchett's claim that Reed has driven only a few times since his accidents, more than 50 log sheets of that driver show that he had made trips practically every working day from late July through to the time of the hearing. And as to Harrington's being an unsatisfactory employee because dissatisfied, as Hatchett would have it believed, that employee's testimony is undisputed to the effect that he had held only two positions during his employment. Once he had asked for transfer into the office and later asked for transfer back to driving. Both requests were promptly granted. Further evidence of the satisfactory nature of Harrington's employment is contained in the following letter to him from the president of the Company, The stringing of pipe on line "T" was handled in a most acceptable manner and you, as one of the truck drivers, deserve a tremendous amount of credit. Slim Halbert, Vernon Banks, and John Taylor have all told me what a good job you did under most adverse conditions. The loyalty and devotion to duty of employees like yourself have made this Company great and I want to congratulate you on a job well done. In short, the Trial Examiner finds Hatchett's testimony concerning Creed and Harrington to be wholly untrustworthy. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. ARKANSAS-LOUISIANA GAS COMPANY V. THE REMEDY 1091 Having found that the Respondent has engaged in unfair labor practices , the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. As found above, four of the nine employees listed in the complaint have been re- employed (Ballard, Kauffman, Richards, and Stribling). Ballard's testimony is un- contradicted to the effect that upon his return to work he was informed that his seniority had been broken. It appears reasonable to assume, in the absence of con- trary evidence, that others similarly recalled were also deprived of their seniority rights. It will therefore be recommended that the Respondent offer immediate and full reinstatement, to their former or substantially equivalent positions and without prejudice to their seniority or other rights and privileges, to employees Creed, Lowery, Newsom, Baxter, and Harrington, and that all such rights and privileges be immediately restored to the above-named employees who have been recalled. It will further be recommended that all nine employees be made whole for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that he would have earned as wages, absent the discrimination, from the date of dismissal to the date of recall or the date of offer of reinstatement, as the case may be, and in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. The backpay obligations of the Respondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the serious and continuing nature of the Respondent's unfair labor practices, it will be recommended that it cease and desist from in any manner in- fringing upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Chauffeurs, Teamsters & Helpers, Local Union No. 878, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminatorily discharging employees to discourage membership and ac- tivity in the above-named labor organization the Respondent has engaged in and is engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the Trial Examiner recommends that Arkansas-Louisiana Gas Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activity on behalf of Chauffeurs , Teamsters & Warehousemen , Local Union No. 878 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organiza- tion, by discharging, laying off, or refusing to reinstate any of its employees be- cause of their union membership and activity, or in any other manner discriminat- ing in regard to hire or tenure of employment, or any term or condition of em- ployment. (b) Interrogating employees as to their union membership or activities in a manner violative of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives 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 or all such activities. 2. Take the following affirmative action , which will effectuate the policies of the Act: 712-548-64-vol. 142-70 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Offer the following named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges: Virgil Creed John Baxter Kenneth Lowery J. W. Harrington, Jr. Bobby Newsom (b) Restore seniority and all other rights and privileges enjoyed by them prior to their unlawful discharge to: James Ballard Donald Richards Harold Kauffman Harold Stribling (c) Make whole all employees listed above in the manner set forth in the section entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying all records necessary to analyze the amounts of backpay due and the right of reinstatement under these recommendations. (e) Post at its Fifteenth Street terminal in Little Rock, Arkansas, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent im- mediately upon receipt thereof, in conspicuous places, and maintained for a period of 60 consecutive days. 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 Twenty-sixth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply therewith .6 6In the event that these Recommendations be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Circuit Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 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 the 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership of any employee in Chauffeurs, Team- sters & Helpers, Local Union No. 878, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discharging or laying off any employee, or in any other manner discriminating against any employee in regard to hire, tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their membership in or ac- tivities on behalf of any labor organization in a manner violative of Section 8(a)(1) of the Act. WE WILL NOT interfere with, restrain, or coerce employees in any other manner in connection with the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives 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 or all such activities. WE WILL offer to the following named immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges: Virgil Creed J. W. Harrington, Jr. Kenneth Lowery John Baxter Bobby Newsom BOWMAN TRANSPORTATION, INC. 1093 WE WILL restore all seniority and other rights and privileges to: James Ballard Donald Richards Harold Kauffman Harold Stribling WE WILL make whole all of the above-named employees for any loss of pay suffered as a result of our discrimination against them. All our employees are free to become, remain , or refrain from becoming or re- maining, members of the above-named or any other labor organization. ARKANSAS-LOUISIANA GAS COMPANY, 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 the right to full reinstatement upon ap- plication 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, 714 Falls Building, 22 North Front Street, Memphis, Tennessee, 38103, Telephone No. Jack- son 7-5451, if they have any question concerning this notice or compliance with its provisions. Bowman Transportation, Inc., Petitioner and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Southern Conference of Teamsters.' Case No. 10-RM-353. Jtme 11, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Kathryn M. Rossback, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. Upon the entire record in this ease, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved herein claim to represent cer- tain employees of the Employer. At the hearing, Locals Nos. 612 and 71, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a The International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as International, and the Southern Conference of Teamsters, hereinafter referred to as Southern Conference, were jointly certified by the Board in Case No . 10-RC-4862 , not published in NLRB volumes of Board decisions, as the bargaining representatives. Southern Conference participated at all stages of the hearing. Although the International was served with notice of the hearing, it failed to appear. We do not construe the International's unexplained absence from the hearing as a disclaimer of Its interest in representing the employees . Cross Paper Products Corporation, 88 NLRB 1037. 142 NLRB No. 115.