Stafford Trucking Inc.

1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our opinion, unduly hamper year-round employees in the enjoyment of their rights under the Act. We believe, therefore, that it will best effectuate the purposes of the Act to direct an immediate election herein. r I Accordingly, the case is hereby remanded to the Regional Director for Region 5 for the purpose of holding an election- pursuant to his Decision and Direction of Election, except that the payroll period for determining eligibility shall be that immediately preceding the date above. Stafford 'Trucking Inc. and Drivers, Salesmen, Warehousemen, Milk Processors,' Cannery, Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 30-CA-20 (formerly 18-CA-1668). Janu- ary 15, 1965 DECISION AND ORDER On June 17, 1964, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, and recom- mending that- it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Decision. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of the complaint thereto. Thereafter, the Respondent filed exceptions to the Decision and a brief in support thereof.' 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 Fanning, Brown, and Jenkins]. ' 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 Trial Examiner's Decision, the exceptions, and brief, and the entire record in the case, and finds merit in certain exceptions of the Respondent. Accordingly, the Board adopts the findings of the Trial Examiner except to the extent noted hereafter. 1 On November 18, 1964, the General Counsel filed a motion to,remand and consolidate the instant case with Case No. 30-CA-103 and the Respondent filed suggestions-in op- position , to the General Counsel's motion to remand and consolidate . The complaint in that case, issued November 17, 1964 , alleged that subsequent to this hearing Becker and Immel were discharged in violation of Section 8(a) (3). The record here is sufficient to make a determination as to the allegations set forth in this complaint. As , the subsequent alleged discriminatory discharges can now also be adequately litigated on their merits, the motion is hereby denied. 150 NLRB No. 107. STAFFORD TRUCKING INC. 1037 'Respondent is engaged in the trucking business and maintains its principal office and place of business in Milwaukee, Wisconsin, and a dispatch office and truck terminal at Portage, Wisconsin, where it employs approximately a dozen drivers. 'Around the middle of June 1963, employee' Immel talked to employees about organizing a union, passed out membership cards, and was instrumental in' arranging a meeting with union representatives for June 22.2 'All of the drivers attended 'the union meeting including Clifford and Wiley Stafford, the two• sons of'owner'Jack Stafford, who were immediately asked to leave the meeting. The Respondent' is charged with violations of Section 8 (a) (1) and (3) of the Act during the union organizational period in that it allegedly interrogated and threatened employees, discriminatorily discharged employees Lowitz, Becker, and Immel on or about July 7 and 24 and August 19, respectively, and discriminatorily refused to recall employee Toivonen for employment .3 Based on the credited•testimony'and 'for the reasons more fully set forth by the Trial Examiner in his attached Decision, we concur in his conclusion that 'the Respondent, ' through its president, Jack Stafford; violated Section 8'(a) (1) of the'Act by interrogating and threatening employees because of their union activity and by threatening to enforce 'company rules more strictly and to discharge employees for any infraction thereof if the Union became bargaining representative. The Trial Examiner also concluded that the Respond- ent discriminatorily discharged employees Lowitz, Becker, and Imniel and' discriminatorily refused to 'recall' employee Toivonen. We agree that Lowitz and Imme14 - were' discriminatorily discharged and Toivonen was discriminatorily denied recall to 'his job, but, for the reasons more fully discussed herein, we conclude that Becker was not discriminatorily discharged. Becker was discharged on the inoriiing of July 23, 1963, Respond` ent maintains; because of his involvement in'an incident while un- loading sand' at Biefeld's, a customer of the Respondent. It is undis- puted that while unloading sand from his truck into the bin, a binder chain from the conveyor on the rear of the truck fell into the bin. Although informed by 'a Biefel'd employee that something had ap- parently fallen into the bin,' Becker, after briefly checking his truck 2 Local 695, Teamsters. 3 On June 25 the Union filed a representation petition and a mail ballot was conducted and tallied on September 26 for all employees employed in the payroll period preceding August 19 The ballots of four employees allegedly discriminatorily discharged have been challenged and the decision here will determine whether they were eligible to cast valid ballots in the election. r 4 Member Jenkins does not rely on the size of the business and the community to establish Respondent's knowledge of Immel's union activities , but does find such knowl- edge in view of the presence of Stafford 's sons at the union meeting and the overall cir- cumstances of the case. 1,038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and concluding that nothing was missing, resumed his unloading of sand. When finished with his unloading, Becker discovered that the binder chain was missing and informed Ziege, the Biefeld manager, that it had probably fallen into the bin. Ziege became angry and threatened to call Jack Stafford about the matter and Becker stated that he was sorry and commented that, if Ziege called Stafford he would be fired.-' Ziege's anger was prompted in part because sand was removed -from the bin by an auger mechanism costing about $1,400 to repair which could be damaged by the chain and also by the fact that one of his employees told him that Becker had ignored the earlier warning that something had fallen into the bin. The following day, Friday, July 19, Ziege,called Jack Stafford and complained about the incident and Stafford stopped at Biefeld's that day to investigate the matter. According to Stafford, he was in- formed that Becker had failed to stop the unloading although, told something had fallen into the bin. At the hearing herein, Ziege, while not denying that he had so informed Stafford, indicated-that whether or not Becker had temporarily stopped unloading his truck, he was responsible for not finding the chain and should have gotten up there and found it. Stafford went to Portage to get Becker's ver- sion of the incident and claimed that Becker denied that anyone had told him that "anything had gone up in there [into the bin]." Stafford returned to Biefeld and so informed Ziege., Ziege then became more upset because he had been forced to utilize, several- men to hand-shovel tons of sand to avoid having the auger mechanism fouled up by the chain and told Stafford that Becker should never be sent there again and that if he were he would find other ways to get the sand delivered. Stafford visited Portage on Tuesday, July 23, at which time he called Becker to the office and discharged him because of the Biefeld incident. The decision to terminate Becker was made in' Milwaukee and his final paycheck was signed on Monday, July 22, 3 days after Stafford had learned of the incidents , The Trial Examiner found that Becker was discharged in violation of Section 8(a) (3) relying, inter, alia, on the fact that Becker was discharged on July 24, 1963, 6 days after the, Biefeld incident, and the day after Respondent was served with unfair labor practice charges. As previously noted, however, the record discloses that-the decision to discharge Becker was made on July 22, 4 days after the Biefeld incident, with a weekend intervening, and before the Re- 5 Becker then added that maybe he wouldn't be fired because they were organizing a union Becker was rehired by the Respondent on August 23, 1963. STAFFORD TRUCKING INC. 1039 spondent received service of the unfair labor practice charges. We find that the time between the incident and the discharge was used by the Respondent to investigate the matter, enabling it to decide whether the actions of Becker were a sufficient cause for discharge. Upon a review of the aforementioned facts, we conclude that the Respondent did in fact discharge Becker as a result of the Biefeld incident and not for his union activities and the Trial Examiner's Recommended Order will be modified accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner and orders that the Respondent, Stafford Trucking Inc. its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications : Paragraph 2(a) of the Order shall be amended as follows: Delete the words "along with Donald Becker." Paragraphs 2(b), 2(c), and 2(d) are redesignated 2(c), 2(d), and 2(e), respectively, and a new paragraph 2(b) is included as follows: "Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment 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." The second indented paragraph in the Appendix attached to the Trial Examiner's Decision is amended as follows : Delete the words "and Donald Becker." Add the following immediately below the signature line in the Appendix : . WE wrrL 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. The second paragraph below the signature line of the Appendix is amended as follows : "Employees may communicate directly with the Board's Regional Office, Room 230, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Telephone No. 272-8600, Extension 3860, if they have any questions concerning this notice or compliance with its provisions." 775-692-65-vol 150-67 - 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136),'herein called the Act, was heard before Trial Exam- iner Eugene E. Dixon at Portage, Wisconsin, on October 23 and 24, 1963, pursuant to due notice, with all parties represented. The complaint, issued by the Acting Regional Director for Region 18 on behalf of the General Counsel for,the National Labor Relations Board, herein called the General Counsel and the Board, on Au- gust 29, 1963, and based on charges filed July 22 and 25, by Drivers, Salesmen, Ware- housemen, Milk Processors, Cannery, Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, alleged that Stafford Trucking Inc., herein called the Respondent, had engaged in and was engaging in unfair labor practices in violation of Section 8(a) (1) and (3) and Section 2(6) and (7) of the Act. In substance, the complaint alleged that the Respondent engaged in various acts of interference, restraint, and coercion in connection with the rights guaranteed its employees in Section 7 of the Act, and that it discriminated against various of its employees by discharging or laying them off and refusing to reinstate them because of their union adherence or activities. After the close of the hearing I received two documents which were supplied by Respondent and which I received in evidence as Charging Party's Exhibits Nos. 3 and 4 as follows: exhibit No. 3 is a letter dated June 26, 1963, from the Fred B. Tendick Agency to Respondent, and exhibit No. 4 is a compilation showing the number of employees on Respondent's payroll and the total number of hours they worked from July 1 through August 31, 1963, and also showing the number of hours worked per week during the same period for employee Yahnke. Also received after the close of the hearing was a copy of a letter from Respond- ent's counsel addressed to Arnold Ordman, the General Counsel of the National Labor Relations Board, dated December 10, 1963 (with copies to Senator Goldwater and Representative Landrum), protesting an allusion by the General Counsel's rep- resentative, in his brief, to the settlement of an unfair labor practice charge in 1959 against Respondent (Case No. 18-CA-1032). I subsequently, received a letter from the General Counsel's representative in which he admitted that Respondent's objec- tion to his allusion was "well founded" and requested that I disregard such allusion in his brief "and consider the merits of the present case on the basis of the fact that Respondent has never previously been found to have committed any violation of the Act." This I have done. Upon the entire record in the case, and from my observation of the witnesses, I make the following: I FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is and has been at all times material herein a Wisconsin corporation with its principal office and place of business in Milwaukee, Wisconsin, and with a dispatch office at Portage, Wisconsin, where it is engaged in the trucking business. During the 9-month ,period beginning November 1, 1962, through July 31, 1963, Respondent derived a gross volume of business from direct interstate hauling of freight in excess of $40,000 During the same period, Respondent's gross volume of business in local cartage for firms engaged in interstate commerce was in excess of $50,000. Respondent is, and at all times material herein has been, engaged in com- merce within the meaning of Section 2(6) of the Act. IT. THE LABOR ORGANIZATION Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees, -and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, ,is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The settings and issues - About the.middle of June, one of Respondent's dozen or so truckdrivers, Daniel Immel, called the Union in Madison, Wisconsin, and asked that someone be sent up STAFFORD TRUCKING INC. 1041 to Portage to talk to the employees who were interested in joining the Union . There- after, Immel engaged in discussions with other drivers about the Union and passed out membership cards to them . - On June 22 a union meeting was held at which all of Respondent's drivers were present including the two employee sons 1 of Jack Staf- ford, Respondent's president . The meeting had been announced by means of a letter to the employees but it had not been sent to either of the Stafford sons. When their presence at the meeting was discovered, they were asked to leave. On June 25 , the Union filed a representation petition and on August 19 a Direction of Election was issued by the Regional Director . Eligible to vote were all employees in the unit who were employed during the payroll period immediately preceding August 19 . The election was conducted in September by mail ballot with the tally of ballots being made on September 26. To be decided here is (1) whether or not Jack Stafford, on learning of the union meeting, committed any Section 8 (a) (1) violations in connections with various con- versations he then engaged in with certain employees, and (2 ) whether or not Respondent committed any Section 8(a) (3) violations by the discharges of Frederick Lowitz on July 7 and Donald Becker on July 24 and the failure to reinstate Daniel Immel on or about August 19 and whether or not Raymond Toivonen was discrimi- natorily refused reinstatement. The General Counsel contends that when Stafford learned of the union meeting of his employees , he went to many of the drivers individually and threatened them in various ways, in some cases that they would be discharged, in others that their working conditions would become unpleasant or less remunerative . He "then dis- charged a total of four drivers in some cases because he knew or thought they were leaders in the drive to unionize the plant and in other cases simply in order to reduce the number of probable yes votes so the Union would lose the pending representation election." On the basis of the evidence and for the reasons that hereinafter appear, I agree substantially with the General Counsel's contentions. B. Interference, restraint, and coercion Frederick Lowitz testified about a conversation he had with Jack Stafford in the Stafford garage the night before the union meeting. Stafford got out of his car and walked over to the employees and said, "What is the matter , aren't you guys satisfied?" Stafford called the drivers ungrateful and underhanded "for sneaking behind his back for going to the Union ." He asked the employees why they had not come to him and asked what they wanted and said that he would try to work something out. He told Lowitz that Lowitz would not be working for him a year from that date because he was going to turn Lowitz ' name into the insurance company and have him fired because he "was an insurance risk and it would stand up in any court." He then accused Lowitz along with Irv Hall, the union steward at the Manley Sand Company, of being "the instigators of the Union." When Lowitz denied this Stafford said, "Oh shit." Then Stafford asked who did start the Union and Lowitz said, "I am no squealer." Stafford told them that if they were in the Union they would get 40 hours a week and that "No law would prevent him from it ." He also said they "would be fired if (they ) sat in a restaurant over half an hour and if (they ) were caught sleeping on the highway." ' He also said that he was going to have his insurance company follow them and he was going to put his Cadillac on the road to follow them. Daniel Immel testified that the night before the union meeting he had a conversa- tion with Jack Stafford at the Stafford garage. Stafford asked him if he was going to the big meeting the next day. When Immel said that he was Stafford asked if he "could live on 40 hours a week." Immel did not answer and Stafford said, "I don't know what you are going to do but I know what I am going to do." James Walker testified that about 2 or 3 days after the union meeting he had a conversation with Stafford and his son Clifford . They talked about various things and then Stafford said , "He must be a son-of-a-B to work for and to have a bunch of men go behind his back like they did . He also stated that he would never have a union, he would never sign a union contract and also that he wouldn't have a union steward in his shop as long as he owns the shop ... he said he couldn't afford to give $3.25 an hour ...." At this point Walker suggested if Stafford would call a meeting of the employees and discuss it with them he "was sure they would settle for much less than that." Stafford replied, "The hell with that, they had already gone this far." i Clifford Stafford was employed as dispatcher and Wilcy Stafford as driver. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He also said something about,an insurance policy that he was going to give to the employees. Donald Becker testified concerning a conversation with Stafford about 3 o'clock in the morning on the day of the union meeting out on the highway near Ocono- mowoc. Stafford asked him if he was going to the union meeting and he said that he was. Stafford said, "What do those fellows want up there." Becker replied that they did not want anything big but that they had a lot of little gripes and one of them was hospitalization. He mentioned another involving complaints about Stafford's son Wiley. As for insurance, Stafford said "that if that's what the boys wanted he would have someone up there tomorrow to sign (them) up." At this point Becker apparently volunteered to call the drivers together to see if he could work out some kind of a deal with them for Respondent. This he did but "the fellows didn't seem to buy it." So Becker told Stafford "that I can fight you, Mr. Stafford, but I can't fight all the drivers, so ... whatever the boys do I have to go along with them." Stafford in his testimony at first did not recall asking Immel if he was going to the union meeting or if he could live on 40 hours a week and then denied that he had asked such questions. He also testified that he did not recall telling Walker that he must be "an s.o.b." to work for. When he was asked if he recalled telling Walker that he would never sign a union contract he answered "No, I don't think so, I don't remember." He was then asked if it was possible that he may have said that to any- body and he answered that it was possible. He denied mentioning a union, steward to Walker and he also denied telling Lowitz that the employees were underhanded, sneaky, and ungrateful for going to the Union behind his back. On the other hand Stafford admitted in his testimony accusing Lowitz and Hall of instigating the union campaign. He also admitted telling Lowitz that he would be working only 40 hours a week if the Union came in and admitted telling this to sev- eral of the other drivers.2 He further admitted telling Lowitz that the insurance company was going to start following his units and that he was going to put his own Cadillac on the road. In this connection he told Lowitz that he was going to get aprons for his drivers so they could help "serve the eats" in the restaurants they were stopping because of the time they were idling there. He told Lowitz, "From now on it's going to be a half hour and that's it." When he was asked if he had threat- ened less favorable working conditions if his men joined the Union he answered, "I told my men several of them that if they-get into the Union, join the Union, that as far as personal contact between the men and I would just-that would be it. I have strict rules and anybody who didn't live up to them, they were all done." He admitted that he met Becker at 3 o'clock in the morning outside of Oconomowoc and that he told him "right straight, there was nobody going to run [his] outfit," and that Becker had told him that he would "get the men together and . . . talk to them." He did not deny any of Becker's testimony. On the basis of the, inconsistencies and admissions in Stafford's testimony, my observation of the witness, and the fact that throughout his testimony Stafford's recollection seemed to be vague and uncertain,3 I credit the foregoing testimony of the General Counsel's witnesses. About a month before the Union first made its appearance herein, a surprise birth- day party had been given for Jack Stafford with all the drivers and their wives present. At that time Stafford made a speech in which he said that to show his appreciation he was going to "surprise" his employees by inaugurating an insurance program for them. He indicated that he already had his insurance man working on it and felt that they would have a policy agreeable to everybody. On June 27, 5 days after the union meeting, Respondent posted on its bulletin board a letter it had received from its insurance agency indicating the successful negotiation for the issuance of a policy combining life insurance , hospitalization, sur- gical, and maternity benefits of which the Company would pay 66 percent of the premium and the employees 34 percent . In his testimony Stafford claimed to have been "discussing" this policy with his insurance agent since the first part of 1963. 2 Elsewhere in his testimony he flatly denied that he ever made such a statement. 3 At one point in his testimony Stafford said , "Well, I got so many things on my mind, I can't remember everything that I have done in the past 4 or 5 month's period " At another point he testified , "I don't recall , I will be honest with you . . . I can't think of everything . . . I can't remember everything that happened a couple of months ago " STAFFORD TRUCKING INC. 1043 Conclusions Section 8 (a)( I) On the basis of the credited evidence I find that Respondent through President Jack Stafford interfered , with, restrained, and coerced his employees in violation of Sec- tion 8(a) (1) of the Act by the following conduct : Threatening Lowitz that he would not be an employee of Respondent a year hence ; that he was the instigator of the Union; that employees would be discharged for sleeping on the highway or spending over half an hour in a restaurant; 4 commenting to Walker that he would never have a union, sign a union contract , or have a union steward in his shop; promising Lowitz he would "try to work something out"; and by his own admission telling the employ- ees that he would cut their working time to 40 hours. In view of the foregoing instances of interference, restraint, and coercion by Respondent and of the other unfair labor practices found below, I also find that by interrogating Lowitz, Immel, and Becker all in connection with, and in the context of, their union sympathies, thoughts, and activities, Respondent further violated Section 8 (a) (1) of the Act. As for the offer of the insurance coverage to the employees on June 27, in view of Stafford's promise to them of such a benefit at the birthday party prior to the advent of the Union, I find no violation of the Act. C. Discrimination 1. Raymond Toivonen Raymond Toivonen started working for Respondent on May 6, 1963 . His home was in Hurley, Wisconsin (some 235 miles from Portage ), to which he commuted on weekends with two other of Respondent 's drivers, Bernard Furyck and Donald Becker, who were also from the Hurley area and who had started with Respondent about the same time that Toivonen started. All three had signed union cards and attended the union meeting. Sometime after he began working for Respondent Toivonen told Jack Stafford that he might have to leave the job because he was having difficulty finding a house in Portage. On June 29 Toivonen was laid off along with Furyck and Becker for lack of work. The three were the lowest in seniority of Respondent 's drivers. The General Coun- sel concedes, and I find, that the layoff was for bona fide economic reasons and not connected with the Union. Some 2 weeks later, Furyck and Becker were recalled to work, having been given a week's notice thereof. Toivonen was not recalled at this time . However, on Sun- day, August 11, about 1:30 p.m., according to Toivonen's testimony, Clifford Stafford called him from Portage and asked him to come back 'to take a load to Appleton that night. Toivonen told him it was impossible because his car was wrecked and he had no transportation. He did not suggest to Stafford that he come in some other time. Nor did Stafford suggest that he do so or suggest that he ride down with Furyck. Stafford told him that they would "figure something out." On cross-examination Toivonen denied that he told Stafford he was painting a house but admitted that he was doing some work on a house and that he might have mentioned this fact to Stafford. He also testified that Stafford told him that Furyck was not arriving back until Monday noon but did not suggest that he ride back with him. From Clifford Stafford's testimony, it appears that he called Toivonen on Sunday, August 11, and told him that he had a run for him and he wanted him to come back to work. Toivonen said he could not because his car was damaged and he had no transportation. Stafford suggested he take a train or bus and also mentioned that Furyck and Becker were coming down on Monday and suggested he ride with them. Toivonen said he could not because of problems ;connected with getting his car fixed. He further added that he was doing some carpentry he had to finish and that it would be a week before he could come down. Stafford told him he had Toivonen "figured for a run Monday and if he did not come down he could stay up there then," that he would not need him . Stafford was ,then asked if he told Toivonen he was to come 4 Any question that this threat did not involve a tightening of rules ( whether in existence or not ) is eliminated by Stafford's own testimony that he told Lowitz in con- nection with stops at restaurants ( in the context of a discussion of the union campaign) that "from now on it's going to be a half hour and that's it." 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back full time and his answer was, "Well, yes, that was the only reason we had not called him sooner was because of him living so far away, there was no sense in dragging him back for one trip and have him set around all week." Furyck testified that the following week he asked Clifford Stafford about Toivonen and Stafford commented, "Does he want me to beg him to come back ...?" On one of his weekends home Furyck told Toivonen that the Company had "mentioned that they were not going to beg (him) back to work." The evidence shows that a former employee of Respondent, Ronald Yahnke, worked 7 hours for Respondent the week ending July 27, 16 hours the week ending August 3, and 27 hours the week ending August 10. Thereafter it appears that Yahnke began working full time. 2. Donald Becker Donald Becker's layoff on June 29 and his recall a couple of weeks later has been noted. After his recall he was making a delivery at the Otto Biefeld Foundry in Milwaukee on July 18. As he was standing at his truck unloading the sand one of the Biefeld employees told him that he had seen something fall off the truck into the bin. Becker asked if he knew what or where it was and the man said he did not, that he saw only a flash. Becker stopped the mechanism momentarily as he inspected his truck. Finding nothing-missing on the truck he proceeded to finish the unloading. When it was completed he folded up his conveyor and then discovered that the binder chain for the conveyor was missing. He concluded that it must have been this that had been seen falling into the bin. He informed the Biefeld man of this and asked what danger there was of its getting caught in the auger.5 About this time Russ Ziege, the Biefeld manager, came out and Becker told him what had happened. Ziege got very angry and said he was going to call Jack Stafford. Becker said he was sorry about the matter and that if Ziege called Stafford he would be fired but then added that maybe he would not be fired because they were orga- nizing a union. He then folded up his conveyor using a piece of haywire and drove back to Portage. Apparently he did not talk to any of the Staffords that day. He later called the garage to see if his truck was in. Jack Stafford was on the telephone apparently dis- patching in the absence of Clifford Stafford. Jack told him his truck was not in. Then he said that "that man at Biefeld is kind of mad at you or is mad at you." Becker asked why. Stafford told him it was because he "dropped that chain binder in the bin and that if that gets caught , that its going to cost $1 ,400 to get fixed" and asked him if he had $1,400. Becker said that he "told the man about it," that he "thought it was the appropriate thing to do." Stafford asked why he had not called him. Becker said he had not thought of it. Stafford said, "You know, Becker, you talk too much." Becker said, "Jack, when I do talk, I tell the truth." Then Stafford told him that his truck, No. 8, was not in but that No. 11 was in and to "come on down and go to work." Becker was discharged on, July 24.6 He was called out of bed and told to come down to the dispatch office. There Stafford asked for his key which he handed over with one hand as he took his check with the other. He then "turned around and walked out." An hour or two later he called Stafford for an explanation. Stafford told him he knew the reason-it was the Biefeld incident. Thereafter Becker got a job in Madison but on the way from work had stopped in at the dispatch office to talk to the Staffords several times. On one or more of these occasions he had indicated his desire to return to work for Respondent. The result was that he was taken back to work on August 23. According to Stafford's testimony about the incident, he got a call from Ziege who asked him how he would like to shovel 24 tons of sand. When he asked what Ziege was talking about the latter told him that when one of his men was there the previous night "an object went into the sand bin and one of the men seen it and told him to stop the conveyor and he kept right on unloading it." Ziege went on to say that if anything happened to the auger it was going to cost him $1,400. Stafford then went over to Biefeld to talk to Ziege. He asked to see the man who had seen the object go 'into the bin. The latter told Stafford that when he saw the object flash into the bin he told the driver to stop the conveyor but that he did not stop it.7 Stafford then 5 The sand was propelled by an auger-like mechanism much like food is propelled through a meat grinder. 6 This was just 1 day after the first charges had been served on Respondent and 6 days after the Biefeld Incident. 7 The Biefeld man in question did not testify. STAFFORD TRUCKING INC. 1045 went to Portage to get Becker's story. According to Stafford Becker "denied that anyone ever told him anything had gone up in there." Stafford testified further that he "discharged the man because he lied." 8 After that,`Stafford went back to Biefeld and told-Ziege that his driver had told him nothing had fallen into the bin. Ziege got real angry. He told Stafford never, to send that man there again-that if he did Biefeld would find other ways to get sand delivered. So Stafford had no alternative. He "went home and ... made his paycheck out" and went up to Portage "and just gave it to him." When he got to Portage he called Becker on the telephone and told him, "You lied to me, you got me on the spot, this man doesn't want you in there any more ... this is it ...... Staf- ford further testified that he took Becker back to work-only after he apologized for having lied to him. According to Ziege's testimony he asked Becker if he had stopped conveying the sand' and Becker told him that he stopped and looked at his rig but did not notice anything missing-so he just put it in high gear again. Ziege then called Stafford on the telephone and told him something had gone into the bin; that he "didn't know exactly -the size of it but ... would have to put some careful attention on emptying it to find it"; that if they had to cut the "whole bin open and remove the auger" to get it out there would "be some damages." 9 Following the telephone conversation he wrote Stafford a letter about the matter because he "wanted it down in writing." Ziege was also asked on direct examination if Stafford had ever reported to him that Becker had denied that anything had gone into the bin. Ziege answered, "Yes, he told me that I was lying when I mentioned it to him and that nothing had hap- pened like that. Jack did mention it to me." Ziege further testified that in order to reassure himself he "ran out there again to make sure [he] was on solid ground" by again ^ questioning the Biefeld employee who had been present when Becker was unloading the sand! On cross-examination Ziege was asked if he had claimed that Becker had refused to stop his conveyor when asked to do so. His answer was, "He did stop the con- veyor, I didn't see him stop it but they told me he stopped it for a couple of seconds and looked at his rig." He was then again asked if he had told Stafford that Becker had refused to stop and he answered, "I don't recall if I did exactly or not, I mean, my main concern is I had something in the bin, I don't care if he stopped it or didn't stop it, if he couldn't find it, he better get up there and find it." 3. DanielImmel Daniel Immel started working for Respondent the first week of February 1963 as a truckdriver. The part he played in getting the Union to come in and organize the employees has already been noted. Also noted was the 2 a.m. conversation he had with Jack Stafford at the Stafford garage the night before the union meeting in which Stafford asked him if he was going to the big meeting the following day and whether he could live on 40 hours-a week. According to Immel's testimony on August 13 he did not go to work because he was ill. He had his wife call the Company and heard her tell them that he was sick, felt faint, had a headache, and wanted the afternoon off to go to the doctor. Thereafter they both drove to the Portage clinic where he was examined by Dr. Cooney. The doctor's diagnosis was that he was coming down with the flu. He was advised to take the rest of the week off which he did. The following Sunday he called Clifford Stafford and asked for the next day off to go to his grandmother's funeral. At that time Stafford told him that he would have to have a doctor's release in order to return to work. He asked Stafford why and was told it was because he "was fainting all the, time" and Respondent wanted to find out the reason. The next Tuesday he saw the doctor and got the required certificate. He took it to the Company and gave it to Clifford Stafford but was not allowed to go back to work. He was told that the Company wanted'an examination of him by its own doctor and made an appointment for him the following Thursday. The doctor he saw this time was named Henney. He was a member of the same Portage clinic. The doctor examined him and asked him about fainting spells-if he had ever had any fainting spells. He told the doctor he had never had a fainting spell in his life. The doctor then asked him if they were having any union problems at the Company. He told them there was some difficulty. Becker testified that when he talked to Stafford about the matter he had told the truth. Biefeld had their men check the bin after, each, bucket full which slowed production. The clamp was ultimately found without causing any damage. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dr. Henney gave him a certificate or statement that he was able to return to work which he gave to the Company after first having had it photostated. Jack Stafford told him that he would have to wait until Stafford had talked to the doctor. He told Stafford he would call the doctor and have him call Stafford because he was anxious to go back to work. He apparently again talked to Stafford some time later about going back to work and was told at that time that Stafford wanted him to go to Madison for an examination-that "this examination wasn't good enough, he wanted me to go to Madison for an examination." 10 He asked Stafford who would pay for it and the latter told him that he could draw compensation and "shouldn't worry about it." He was told that Dr. Henney was supposed to make the arrangements. He did not hear from Dr. Henney but he did receive a bill from him for his exam- ination. He did not pay the bill and told the doctor to charge it to Respondent which apparently was done. I Immel further testified on direct examination that he talked to Dr. Henney about the examination that Stafford wanted but that the Madison General Hospital was not mentioned . Nevertheless he further testified that the doctor told him he would not make any arrangements without consulting the patient first. He himself had made no arrangements at Madison General nor did he tell the doctor to do so. The reason for this was that he could not afford to pay for it and he had no way of knowing if anybody else was going to pay for it. He further testified on direct examination that he never fainted in his life. On cross-examination of Immel he admitted that he had driven his own car off the road at Duck Creek but that it was not because he fainted. He explained that he had been driving truck No. 8 that had a burned-out piston which allowed diesel exhaust fumes to come in on him. This had given him such a headache he could hardly see. He had just come in off a run and it was about 2 or 3 o'clock in the morning. He was asked about the night he had "passed out" in the Stafford garage. He tes- tified that this was the same night or the night before. and that it was the result of his running the same truck. When he was asked for the exact statement his wife had made when she called the Company about his being ill he replied, "I don't know, she didn't say I fainted, she said I felt faint like." He denied that she had said that this happens all the time. He also denied that he had passed out in the garage or that he had been laid out on the floor. He was also asked if he did not know that as soon as he is given a clean bill of health from the Madison General Hospital he could go back to work. He testified that Stafford never told him that. He also tes- tified on cross-examination that Dr. Henney told him that he should call him when he found out who was going to pay for the examination in Madison and that he would have arrangements made at that time for it. Mrs. Immel testified that Immel's work schedule for August 13 had been pre- arranged and that he was supposed to have reported at a specific time. Because he felt ill she called the Company to say that her husband was not coming to work. At this time she talked to Matt, the mechanic. She told him "that Dan had fainted and that he was not going to be into work because he had a headache, he didn't want anything to eat, he felt sick and that he wasn't going to be in to work and to tell Cliff that." After they had seen the doctor she called Cliff Stafford and told him that the doctor had said her husband was sick from overexhaustion and was coming down with the flu and had recommended that he take the remainder of the week off if he could. Stafford told her to keep in touch with him and call him back when Immel could go to work. She thereafter called in every day. She denied at any time telling Clifford that her husband suffered from fainting spells. , She denied having told him that or having told him that he had ever fainted. The only time she said that he had fainted was when she talked to Matt. She admitted that on one occasion when she'spoke to Cliff he made some reference to Immel's fainting. This was in the singular and did not involve more than one instance. Clifford Stafford testified on direct examination that on August 13 he called Immel at his residence to tell him that he had a run for him that day. Immel's wife answered and "said she would wake him up and chase him down." Stafford "told her to make it snappy because [he] had a rush load." When Immel did not show up in an hour, Stafford called back. At this time Mrs. Immel told him that her husband would not be in to work, that "he got ready to go to work, he was at the car, he opened the door and passed out." She told Stafford that this happened many times before. 10 It was apparently in this conversation, according to the further undenied and credited testimony of Immel, that Stafford told him that Immel had a tumor but did not know it. STAFFORD TRUCKING INC. 1047 Stafford asked her what was wrong and, according to his testimony, she told him it was "just a case of nerves and that, well, then she told me he was going to the doctor that day and find out what was wrong." 11 According to Stafford's further testimony when Immel did return to work he gave him Dr. Cooney's letter. He told Immel he would submit it to his father. Later that day he talked to his father and told him he had the letter and that he had not yet worked out a schedule for Immel because he did not know what runs were up. Stafford also testified that following this incident Stafford had received reports of similar matters involving Immel. One of the drivers, Edward Lundry, had told him that Immel had passed out in the garage one day. Lundry had seen Immel on the garage floor when he came off of a run one night. He had passed out and then had gotten up to drive home in his car and ran off the road into Duck Creek on the way because he had passed out behind the wheel. The information he got from Mrs. Immel and from the other employee he relayed to his father. His father said, "Well, we better get a letter from the doctor saying that it's all right for him to work, heaven knows this could come up again, we want to know what is wrong with this man ... after all he takes a piece of equipment out on the highway and we knowing it, the insurance company will hang us for it." On cross-examination of Clifford Stafford it appears that the person from whom he got the information about Immel's illness in the garage and the Duck Creek inci- dent was an employee who had left Respondent at least a month prior to August 13 and who was currently or at that time working for a Minneapolis firm having moved himself and his family there.12 Stafford's testimony was that the former employee, whose name was now shown on the record as Ed Lundgren, comes through Portage two or three times a week and that when he does he calls Stafford up and Stafford still maintains contact with him. According to Jack Stafford's testimony, after Immel first went to the doctor he called Stafford about going to work. Stafford asked him if he had had his examina- tion and Immel told him that he had. Stafford wanted to know what the result was so Immel brought the doctor's release over and showed it to him. It was apparently at this time that he decided to send Immel back to see Dr. Henney who was the only one of the doctors he had heard of in Portage. Later he called Dr. Henney on the telephone and said, "Doc, Immel was up there and got an examination. He said, `yes,' and [Stafford] said to him,'. . . what kind of a examination did you give Mr. Immel?' 'Well,' he said, 'Mr. Stafford, I can only give certain-I can only go so far' he says, 'I haven't got the instruments in the office to give the man really a good examination.' " When Stafford asked for suggestions the doctor suggested that Immel be examined at the "General Hospital at Madison." Stafford then told Dr. Henney, "I want you to make an appointment to send Mr. Immel back into the hospital. I want to know what is wrong with the man ... I understand that he has these spells, these fainting spells...." The doctor told him to tell Immel to come and see him and that he would have arrangements made. That afternoon he had a conversation with Immel in the garage. He told Immel that the doctor said that he would have to make an appointment to go to Madison to the hospital and he told him, "You get in touch with him, you go down there." Immel asked him who was going to pay for it and he told Immel, "Don't worry who is going to pay for it." About a week later Stafford was again in Portage and Immel called at the garage and asked when he was going back to work. Stafford told him he could not go back to work until he had an examination. Apparently the conversation became heated and Stafford told Immel, "You can go to Madison, get an examination and you can come back here to work. If you don't, you ain't coming back until I know what ails you." "On cross-examination when Stafford was asked if it was not a fact that Mrs. Immel had not talked to him that day but had talked to Matt Belongia, he answered, "As I said, the first time I wasn't there, see, but I talked to her again the following day. See, she called once and I wasn't there, I was gone. Now, who she got, I don't know for sure but then I talked to her the following day. When I come in that day, it was Matt Belongia that told me that Danney Immel's wife had called and he wasn't coming in but I talked to Mrs. Immel the following day again " Regardless what remarks passed be- tween Clifford Stafford and Mrs Immel on this occasion, I am inclined to credit her denial that she did not tell Stafford that her husband had passed out many times before. Stafford's testimony that he was told that Immel's having passed out was caused by "nerves" Is patently inconsistent with her immediate assertion that he was going to the doctor to find out what its cause was. 11 In this connection Stafford was asked how he happened to talk to Lundgren and his answer was, "He works for us, he is one of my drivers." He then admitted that he knew Lundgren had left Respondent's employment. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the Immel matter, Dr. Henney testified as follows: He had examined Immel in June for a respiratory infection. In August he examined him at the request of Stafford and on the basis of that examination had indicated that Immel was fit to go back to work. A few days after he had examined Immel in August he had a telephone conversation with Stafford about it. Stafford told him that Immel had been having blackout spells and asked if his examination would indicate the cause for them. He told Stafford that when he examined Immel these spells were "discussed" and that Immel had denied having had any blackout spells. Stafford asked him if his examina- tion would rule out the possibility of any more such episodes in the future. He told Stafford that a more intensive examination would be required for such a result, probably by a neurosurgeon with an electroencephalogram taken. It was his impres- sion from his conversation with Stafford that the latter was going to tell Immel that the examination should be made and for him to see the doctor who could then make arrangements for it . About 2 weeks before the hearing Clifford Stafford called him to see if any arrangement had been made and the doctor said none had because he had not seen Immel again. On cross-examination the doctor testified that there was nothing in his examination which would have been indicative of blackout spells. He also testified that Immel had told him of having had pneumonia 3 years before and having blacked out , which the doctor said was "very reasonable." The doctor also testified that it was a reasonable medical reaction for Immel to have had a blackout spell on the occasion of having the flu. He further testified that diesel fumes might cause a man to drive off the road. If such was the case it would not indicate a propensity toward blackouts . And even if it were tied in with his blackout from pneumonia previously it still would not indicate a propensity for blackouts. He further testified that on Immel's statement he would not normally suggest a neurological examination. On the other hand, the doctor testified, in a matter of driving or flying or "whatever it would be" the people involved should themselves be interested enough to try to rule out the possibility of epileptic seizures or something of that nature before going back to their occupation. 4. Frederick Lowitz Fred B. Tendick is Respondent's insurance agent . From his testimony it appears that Respondent had been insured by Employers Mutual Casualty Company of Des Moines, Iowa, until December 1958 when that company declined to renew the policy: Tendick then placed the insurance with Continental Casualty Company. This coverage lasted until December 15, 1961, when Continental declined to renew. He then placed the insurance with General Insurance Company of America for a 1-year term. This policy ran until December 15, 1962, at which time the policy was renewed . Then, on March 15, 1963, that company asked to be relieved of liability on the policy. At this point Tendick made inquiries through a number of companies as to coverage and was quoted premiums approximately $5,000 more than Respondent had been pay- ing for its coverage. Tendick then arranged through another Milwaukee insurance agency, Chris Shroeder & Sons, to have Respondent's insurance placed with Aetna Insurance Company. This coverage was obtained for approximately the same premium that Respondent had been paying General Insurance Company. He delivered the Aetna policy to Respondent about April 15. At this time he told Stafford "that the insurance premiums were predicated on the overall experience in connection with the risk, that the Company experience would be no better than the individual experi- ence of -the operators he had in connection with his fleet and it was of the utmost importance that he exercise vigilance in that direction ." He also "pointed out spe- cifically that he had accidents involving certain of his operators and asked him if they were still employed by him." Two of them, Frederick Lowitz and Donald Wakeman, were still on the payroll . He urged Stafford to "take whatever steps were neces- sary .... to keep his premium at a reasonable level ...." He had mentioned to Stafford many times in the past the consequences of retaining drivers who had lost their driver's licenses and this was mentioned to him at the time the Aetna policy was delivered to him. Tendick was asked if with the delivery of the Aetna policy there was any discussion as to Aetna making an investigation of the drivers that were on this risk . His answer was "I would say with a hope and a prayer that they wouldn't." The evidence shows that Aetna did not receive or solicit any personal reports on the drivers . At no,time did Aetna raise its premium or make any threat of cancellation if any of the employees, including Lowitz or Donald Wakeman, remained on the payroll., STAFFORD TRUCKING INC. 1049 Notwithstanding Tendick's past experience on this matter, his express concern about it as stated to Stafford at the time he delivered the Aetna policy in April, and his having mentioned this concern to Stafford some six or seven times , it was not until late June or early July that he took the initiative and requested through the Chris Shroeder Agency reports on five of Respondent's drivers-Lowitz, Immel, Wakeman, Lundgren, and Stein. Reports dated July 9, 1963, addressed to the Shroeder Agency were made on these five employees. These reports indicated that two of the drivers , Lowitz and Wakeman, had red code indicators showing that their driving records were "generally unaccept- able." In this connection the reports showed the following: Lowitz: Restricted to financial proof: 1-20-60 ----------- --Speeding. 10-27-61 ------------Driving by barriers. 3-29-62 - ------------Speeding. 6-26-62 ----------- --Inattentive driving. 6-27-62 ------------ -Following too close. 6-25-62 _____________Accident, property damage. 9-27-62 ----------- --Driver's record 2 months, reinstated 12-21-62. Wakeman: No restrictions: 7-31-59 ---------- - Driving on wrong side of highway. 7-28-59 ----------- Accident, property damage and personel injury. 9-7-60 ------------ Speeding. 2-14-63 ----------- Inattentive driving. 1-25-63 - ---------- Accident, property damage and personal injury. The evidence shows that Lowitz lost his license in 1962 for 60 days. During this time Stafford let him work in the garage because he could not send him on the road and instructed his son Clifford that Lowitz was to earn enough to support his wife and youngsters until he got back on the road. He then let Lowitz have a hundred dollars with which to get his insurance so he could get his license reinstated When his license was restored in December 1962 Stafford put him back on the road and told him to be careful not to lose it again or put him on the spot.13 On Sunday afternoon , July 7, Clifford Stafford went to Lowitz ' home and told Lowitz that the elder Stafford had to let him go because "his insurance company was going to put him in a risk pool if [Lowitz] continued to drive 'his equipment." Lowitz admitted that he had been "kind of expecting it for quite awhile ...." 14 At the time of the hearing Wakeman was still employed by Respondent . As appears from Tendick's testimony he had coupled Wakeman with Lowitz as an undesirable insurance risk. Conclusions Section 8 (a) (3 ) At first glance, the explanations provided by Respondent for its actions regarding the four alleged discriminatees herein would seem to negate any connection with the Union. But careful 'analysis of the evidence gives rise to such discrepancies and questions regarding each incident as to raise considerable doubt about the bona fides of Respondent's position , particularly when it is considered that there are several such incidents which all seem to fall into a pattern in this respect. Thus, in the case of Toivonen , regardless what Respondent's other testimony was and what protestations it makes thereon , I find (from Clifford Stafford's admission that he told Toivonen in the August 11 telephone call that he had him "figured for a run Monday 15 and if he did not come down he could stay up there then"-that 13 This latter is according to Stafford 's undenied and credited testimony 14 In his testimony Lowitz also claimed to have told Clifford something 'to the effect that his father was going to have him fired because he had accused Lowitz "of being the in- stigator of the Union." According to Lowitz , Clifford had replied that'he "didn't think his dad would be that stupid" In his testimony Clifford , at first denied there was any mention made of the Union on this occasion but almost immediately reversed this testi- mony in substantial corroboration of the testimony Lowitz gave. le Whether a Monday run or only one that very day was offered to Toivonen is un- necessary to decide , I believe , since the notice and the distance involved made a Monday offer as inappropriate as one on Sunday . Furthermore , Respondent had given a full week's notice to the other two who were laid off with Tolvonen. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent would not need him) that Respondent did not tell him he was to be taken back full time. I also credit Toivonen's testimony that Clifford told him that Respond- ent would "figure something out." Considering this evidence and the fact that the following week a new driver,16 Yahnke, began working full time for Respondent, I believe the inference is fully warranted that Toivonen was not recalled because it was the purpose to replace him with a man not tainted by the Union and thus possibly eliminate a prounion vote in the forthcoming election. In the case of Lowitz, it seems to me, the starting point is with Stafford's accusing him of instigating the union campaign and in that context threatening him with an in- surance investigation of his driving record and the ultimate loss of his job as a result. This attitude is interesting in view of the considerable contrast to Stafford's treatment of Lowitz just a few months earlier (before the Union appeared) when he had kept Lowitz on the payroll for 2 months while the latter's license was suspended, and his putting Lowitz back on truckdriving as soon as he got his license back. It is all the more interesting when it is considered that Lowitz' driving record was without blemish from that time to the time of his discharge. I also have considerable difficulty with the part that Tendick played in this matter. It seems to me that Tendick's concern about the driving records of Lowitz and Wake- man and his admonition to Stafford at the time he delivered the Aetna policy to do something about them is quite inconsistent with his testimony that at that time he had in effect indicated to Stafford that he had "a hope and a prayer" that Aetna would not make an investigation of the drivers. Another incongruous circumstance of this matter is that notwithstanding Tendick's apprehension about Respondent's insurance position and his advice to Respondent to do something about it, nothing was done until over 2 months had elapsed-and then only after the Union had begun to organize Respondent's employees. And the ulti- mate indictment of Respondent's position here is, I believe, the fact the Lowitz was discharged 2 days before the report had been issued that was supposedly the cause of his discharge. In the case of Becker, I start with his having told Stafford that the employees would not "buy" his attempt to work something out for him vis-a-vis the Union and that he was going to cast his lot with his fellow drivers and thus in effect with the Union. I consider it significant that there was a lapse of 6 days from the time of the Biefeld incident to the time of his discharge for it. Even more significant do I consider the fact that the discharge occurred on the day after Respondent had been served with unfair labor practice charges. I am also swayed by the inconsistency between Stafford's attempt to show that Ziege had charged that Becker had refused to stop his conveyor and Ziege's refusal to so testify. I also find it difficult to credit Ziege's testi- mony that Stafford told him that he (Ziege) was lying in his charges against Becker- this particularly in view of Ziege's further testimony that for this reason he "ran out there again to make sure (he) was on solid ground" by again questioning the Biefeld employee who had been present when Becker was unloading the sand. For the foregoing reasons and considering the record as a whole, including Respond- ent's 8 (a)(1) conduct, I find that the Biefeld incident was a mere pretext to mask Respondent's discriminatory motive. Whether or not Becker lied to Stafford about the matter I deem unnecessary to decide since I would still find that that refinement of the alleged basic cause involved the same kind of pretext. I should point out also that Becker's discharge at the time it occurred and his rehire on August 23 effectively eliminated him as a voter in the election. My analysis of the Immel matter starts with the fact that it was he who started the union campaign and took the most active part in supporting it. While Respondent was not aware of this when Lowitz was mistakenly accused of that role, I think Stafford's determination to learn the true identity of the union "instigator" was amply demon- strated by his question to Lowitz as to who then did start the Union. I believe and find that in view of the Stafford sons' presence at the union meeting, the small size of the business and community involved and the overall circumstances herein, the infer- ence is warranted that Respondent, by August 13, was fully aware of the part Immel had played in bringing in the Union. My refusal to credit Clifford Stafford's testimony that Mrs. Immel had told him that Immel had "passed out" on frequent occasions has been noted. Moreover, I have considerable skepticism about Clifford Stafford's testimony that he learned of Immel's illness in the garage and his subsequent running off the road at Duck Creek from an 11 New in the sense that he had not been on the payroll when the Union started and had not attended the union meeting. STAFFORD TRUCKING INC. 1051 employee who had left Respondent over a month before he allegedly got the informa- tion and who was now working and living in another State-particularly where this testimony was as vague and uncertain as was Stafford's on this matter.17 I also attribute significance to the,fact that it was on August 18 that Immel was told that he had to have a doctor's permit to return to work. On August 19 the Direction of Election was issued in the representation case. On the following day Immel got his doctor's release and presented it to Respondent. Now he was asked to get one, from another doctor and strangely enough is sent to the same clinic from which he got his first release. Considering the discrimination regarding the other three employees and Respondent's strong feeling against the Union, I believe and find that in the case of Immel, too, this antiunion discriminatory motive played a part. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth above, occurring in connec- tion 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. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8 (a) (1) and (3) of the Act, I shall recommend below that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated against various employees by failing to reinstate or recall them to their former or substantially equivalent positions or by discharging them, I will recommend that the Respondent be ordered to offer each immediate and full reinstatement to his former or substantially equivalent positions, and make each whole for any loss of earnings he may have suffered because of the discrimination against him by payment to him of a sum of money equal to the amount of wages he would have earned from the date of the discrimination to the date of the offer of reinstatement together with interest thereon at the rate of 6 percent per annum, and that the loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, to which the parties hereto are expressly referred. The unfair labor practices committed by Respondent strike at the heart of the rights guaranteed employees by Section 7 of the Act.18 The inference is warranted that Respondent maintains an attitude of opposition to the purpose of the Act with respect to the protection of employee rights in general. It will, accordingly, be recom- mended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act.19 Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Stafford Trucking Inc., is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against its employees Daniel Immel, Donald Becker, Frederick Lowitz, and Raymond Toivonen, as found above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 17 On direct examination Stafford testified at first that he could not remember when he learned about the Duck Creek incident and later testified only that it was after he had talked to Mrs. Immel. However, on cross-examination he did testify that it was "later that week" that he learned this. 11 N.L.R B. v. Entwistle Mfg. Co , 120 F. 2d 532 (C A. 4). 19 May Department Stores d/b/a Famous-Barr Company v. NL.R.B., 326 U.S. 376; Bethlehem Steel Company v. N.L.R.B., 120 F. 2d 641 (C.A.D.C.). 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that the Respondent, Stafford Truck- ing Inc., its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in Drivers, Salesmen, Ware- housemen, Milk Processors, Cannery, Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or in any other labor organization of its employees, by discharging, failing to reinstate or recall , or in any other manner discriminating against any individual in regard to his hire or tenure of employment or any term or condition of employment, except as authorized in Section 8 (a) (3) of the Act. (b) Threatening discharge, the tightening of work rules, or the diminution of working time if the employees chosed to be represented in collective bargaining by Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or any other union. (c) Telling its employees it will never have a union, never sign a union contract, or never have a union steward in its establishment. z. (d) Promising its employees any benefits for the purpose of influencing them in their exercise of rights guaranteed them in the Act. (e)' Interrogating employees concerning their union membership , activities, or sympathies in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (f) In any other manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended, by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Frederick Lowitz, Raymond Toivonen, and Daniel Immel (if the latter has not already been reinstated) 20 immediate and full reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights and privileges, and make them along with Donald Becker whole for any loss of pay they may have suffered by reason of Respondent 's discrimination against them, together with interest at the rate of 6 percent per annum, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due under the terms of this Recommended Order. (c) Post at its garage in Portage, Wisconsin, copies of the attached notice marked "Appendix." 21 Copies of said notice, to be furnished by the Regional Director for Region 18, shall, after being duly signed by the Respondent's representative , be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. 20 At the hearing Respondent offered to reinstate Immel if and when he would submit to a physical examination, at Respondent' s expense in Madison, Wisconsin , and be cer- tified as a result thereof to be physically able to resume his job as a truckdriver Before the close of the hearing Immel indicated his acceptance of Respondent ' s offer. 211f this Recommended Order 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 Court of Appeals, the words "a Decree of the'United States Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and Order." STAFFORD TRUCKING INC. 1053 (d) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.22 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 in or activities on behalf of Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees, and Helpers Union, Local 695, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America , or in any other labor organization of our employees , by discriminatorily discharging or refusing to reinstate or recall or in any other manner discriminating against any individual in regard to his hire or tenure of employment or any term or condition of employ- ment, except as authorized in Section 8(a) (3) of the Act. - WE WILL offer Frederick Lowitz, Raymond Toivonen , and Daniel .Immel (if the latter has not already been reinstated ) immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them and Donald Becker whole for any loss of earnings they may have suffered as a result of our discrimination against them. WE WILL NOT threaten discharge , the tightening of work rules, or the diminu- tion of working time if our employees chose to be represented in collective bar- gaining by Drivers , Salesmen, Warehousemen , Milk Processors , Cannery, Dairy Employees, and Helpers Union , Local 695, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other union. WE WILL NOT tell our employees we will never have a union , never sign a union contract, or never have a union steward in our business. WE WILL NOT promise our employees any benefits for the purpose of influenc- ing them in the exercise of the rights guaranteed them in the Act. WE WILL NOT interrogate our employees concerning their union membership, activities, or sympathies in a manner constituting interference , restraint, or coer- cion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor orga- nizations, to join or assist the .above-named or any other labor organization, to bargain collectively through representatives of their own choosing , or 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 except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. STAFFORD TRUCKING INC., Employer. Dated------------------- By----------------------------------- - ----- (Representative ) (Title) ' 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, 316 Federal Building, 110 South Fourth Street , Minneapolis, Minnesota, Telephone No. 339-0112, Extension 2601 , if they have any questions concerning this notice or compliance with its provision.