National Freight, Inc.

NATIONAL FREIGHT, INC . 621 WE WILL bargain collectively, upon request, with the above-named Union, as the exclusive representative of our employees in the above -described unit, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed agreement. MARSHALL MAINTENANCE CORP., 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 614 National Newark Building, 744 Broad Street , Newark, New Jersey, Telephone No, Market 4-6151. National Freight, Inc. and Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 2-CA-9319. August 20, 1965 DECISION AND ORDER On February 16, 1965, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent and General Counsel filed excep- tions to the Trial Examiner's Decision and supporting briefs. The National Labor Relations Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prej- udicial error was committed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein with regard to the discharge of Supervisor Dillin and the remedial order as to employee Foster. The circumstances surrounding the terminations of Dillin and Foster are set forth in detail in the Trial Examiner's Decision. Briefly, the Respondent was engaged in over-the-road trucking and, although it had its own trailers, conducted its business by leasing nearly all its tractors from individual lessors. Dillin owned two tractors, one of which was driven by Foster, and both men were terminated because of their membership in the Union. The Trial Examiner found that Respondent violated the National Labor Relations Act, 'as amended, by terminating Dillin's lease and discharging Dillin and Foster because of their respective union 154 NLRB No. 47. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership. Although we agree that Foster's discharge violated Section 8 (a) (3) and (1 ) of the Act, we do not agree that the dis- charge of Dillin, whom the General Counsel alleged to be a super- visor, also did so. Absent special circumstances, a statutory super- visor does not enjoy a protected right to engage in concerted activity in behalf of a labor organization.' The Trial Examiner did not find and the record does not establish that Dillin's discharge was moti- vated by other than Dillin's own union membership? We shall accordingly dismiss the complaint as to Dillin. Since Foster was engaged as a driver of one of Dillin's trucks, the termination of Iillin's leases resulted in the elimination of Foster's job. Notwithstanding the discriminatory nature of Foster's dis- charge, if there were than no possibility of Foster 's reinstatement in a substantially equivalent position , it would follow that although he would be entitled to reinstatement when such work became available, lie would not be eligible for backpay during the intervening period of unemployment.' However, the record fails to indicate whether or not Respondent may have had available any position in which Foster might have been employed either at the time of his termina- tion or at any later date ." Such facts may best be determined in. compliance proceedings.5 Accordingly, we shall order Respondent to place Foster on a preferential hiring list and to offer him full and immediate reinstatement to his former or substantially equivalent position , when available. If such a position became available subse- quent to his termination and prior to the date of this Decision and' Order, lie shall be entitled to backpay from the date such position- became available to the date of Respondent's offer of reinstatement,6 to be computed in accordance with the Board 's customary formula.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as, amended, the National Labor Relations Board hereby orders that i Accurate Threaded Products Company , 90 NLRB 1364 ; Gibbs Automatic Division, Pierce Industries Inc, 129 NLRB 196; Massey-Harris-Ferguson, Inc, 114 NLRB 328, 337; of. Inter-City Advertising Company of Greensboro, N.C., Inc., 89 NLRB 1103, 1106-1108, enfd as modified 190 F 2d 420 (C.A. 4). 2 Compare Jackson Tile Manufacturing Company, 122 NLRB 764, enfd. 272 F. 2d 181 C.A. 5), where the Board concluded that a supervisor's discharge violated Section 8(a) (1) upon finding that the discharge was motivated by the supervisor's refusal to commit unfair labor practices against rank-and-file employees . To a similar effect, see Talladega Cotton Factory Inc, 106 NLRB 295, enfd. 213 F 2d 209 (CA. 5). 8 Cf. The Bed ford-Nugent Corp ., et al., 151 NLRB 216 * The record shows that Respondent had at least one tractor of its own but is not entirely clear as to who was assigned as its operator or whether Respondent had avail- able any other positions comparable to that of Foster's former employment. 5 Goldblatt Bros., Inc., 135 NLRB 153, 159-160 6 See Falarski Sausage Company, 128 NLRB 506 ; Stockbridge Vegetable Producers,. Inc., 131 NLRB 1395. 7F. W. Woolworth, 90 NLRB 289 ; Isis Plumbing & Heating Co ., 138 NLRB 716 NATIONAL FREIGHT, INC. 623 the Respondent, National Freight, Inc., Orangeburg, New York, and Vineland, New Jersey, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Unlawfully interrogating employees about their union activ- ities or threatening them with reprisals for engaging in such activity. (b) Discouraging membership in the Union or any other labor organization by discharging or otherwise discriminating in regard to hire or tenure of employment of any employee. (c) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other, concerted activity 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 of such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized by Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act : (a) Offer John Swann and Alfred Osterhoudt immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to their seniority or other privileges previ- ously enjoyed and make them whole for any loss of pay they may have suffered by reason of their discharges, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Offer Philip S. Foster immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other privileges previously enjoyed, in the following manner. If such position became available subsequent to his termi- nation and prior to the date of this Decision and Order, make him whole for any loss of pay he may have suffered as a result of the discrimination against him or, if such position has not become avail- able, place him on a preferential hiring list and, in preference to any other person, offer him employment when such employment for which he is qualified becomes available, all in the manner and to the extent set forth in this Decision and Order. (c) Notify each of the above-named individuals 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. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay ,due and all other rights under the terms of this Order. (e) Post at its operations at Orangeburg, New York, and Vine- land, New Jersey, copies of the attached notice marked "Appendix." 8 {Copies of said notice, to be furnished by the Regional Director for Region 2, shall, after being duly signed by the Company's represent- ative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. The Company shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any ,other material. (f) Notify the Regional Director for Region 2, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing an Order". APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT interrogate employees about their union activ- ities in a manner constituting interference, restraint, and coer- cion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees with reprisals for en- gaging in union activity. WE WILL NOT discourage membership in any union by dis- charging or otherwise discriminating in regard to hire or tenure of employment of any employee. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-orga- nization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities. NATIONAL FREIGHT, INC. 625 WE WILL offer to Philip S. Foster, John Swann, and Alfred Osterhoudt immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other privileges, and make them whole for any loss of pay they may have suffered by reason of their discharges, together with interest at the rate of 6 percent, in the manner and form set forth in the Board's Decision and Order. Al] our employees are free to become or remain members of any labor organization. NATIONAL FREIGHT, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify the above-named individuals if 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. 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, 745 Fifth Avenue, New York Telephone No. 751-5500, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Pursuant to due notice , a hearing in this matter was held before Trial Examiner E. Don Wilson, at New York, New York, on July 14 through July 17, 1964. The parties fully participated. Briefs have been received and considered. Upon a charge filed by Local Union No. 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , herein the Union, the General Counsel of the National Labor Relations Board, herein called the Board , on May 28, 1964, issued a complaint and notice of hearing. The complaint alleged that National Freight, Inc., herein called Respondent, violated Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act. The complaint was subsequently amended to allege other violations of Section 8 (a) (1) of the Act. Due answers were filed. Upon the entire record, and my observation of each and all witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, at all material times, has been a corporation organized under, and existing by virtue of, the laws of the State of New Jersey . During the same times, it has maintained its principal office and terminal in Vineland , New Jersey, and various other terminals and places of business in the States of New Jersey, New York, and Pennsylvania, including a station at Orangeburg, New York, where it is, and has been at material times, continuously engaged in performing motor freight carrier and related services . In 1962, a year representative of its annual operations, 206-446-66-vol. 154-41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, in the course and conduct of its business, purchased and caused to be transported and delivered to its places of business, trucks, truck parts, oil, etc., valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its terminals and places of business in interstate commerce directly from States of the United States other than the States in which Respondent is located. During the same period, Respondent performed services valued in excess of $50,000, of which services valued in excess of $50,000 were performed in, and for various enterprises located in, States other than the States wherein it is located. Respondent is, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION The Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues (1) In April 1963,' did Respondent discharge its employees 2 Alfred Osterhoudt, Philip Foster, and John Swann because of their union activities, and Supervisor Arthur Dillin because of his union activities; (2) did Respondent unlawfully in- terrogate employees as to union activities and unlawfully threaten employees with reprisals should they engage in union activities; and (3) did Respondent unlaw- fully utilize application forms for employment to ascertain if applicants were mem- bers of a union. B. Background: The hiring of the discriminatees 1. Osterhoudt Having seen Respondent's newspaper advertisement in September 1962, Oster- houdt phoned Nathan Rosen, Respondent's terminal or station manager at Re- spondent's Orangeburg, New York, operation. Pursuant to Rosen's direction, Osterhoudt thereupon met Rosen at Orangeburg. Osterhoudt explained that he did not own a tractor but said he would purchase a new one if he had a written lease as evidence of the work for which the tractor would be used by him. Rosen and he executed a lease and Rosen also gave Osterhoudt a list of phone numbers to present should he need "security." Osterhoudt phoned Rosen early in January and said he had the new tractor. Pursuant to Rosen's instructions, Osterhoudt drove it to Respondent's main terminal at Vineland, New Jersey. He there filled out an application for employment and insurance papers. He was advised that although he had his own insurance, he could not work for Respondent unless he insured through Respondent.3 He received an identification card. Again he signed a long-term lease with Respondent .4 He reported for work on January 7 and was, about that time, directed by Rosen to maintain his daily logsheet in a fashion which would not reveal the actual number of hours he worked. It was made clear to him that under his lease he was to use his tractor exclusively for Respondent. He was given a list of phone numbers to call should he have a problem. During the course of his employment he sub- mitted daily logsheets and equipment reports.5 2. Dillin and Foster In December 1962, Dillin phoned Rosen at Orangeburg and said he had two tractors, one licensed and the other not. He stated it would be if it could be used. ' Unless otherwise stated , all dates hereinafter refer to 1963. 2 Primarily basic as an issue is whether Respondent had employees. 8 Respondent had a master policy. ' The lease Is not terminable at the will of the employer. See General Counsel's Ex- hibit No. 19, paragraph 11. Further, the lessor is Margie's Trucking Corp., a corpora- tion owned by Osterhoudt and his wife. Although , in terms, with the corporation, it Is plain that the parties understood Osterhoudt to be a party. 5 This was required of all owner-operators and drivers and Rosen signed them before they went to Vineland. NATIONAL FREIGHT, INC. 627 On January 3, Dillin and Foster visited Rosen. Rosen then learned that Dillin's tractors could not pull 40-foot trailers because such, in combination with either of Dillin's trailers would exceed New York State's 50-foot maximum length. Rosen said that Dillin's tractors could be used to pull Army trailers (28 feet in length) and 35-foot trailers. Pursuant to Rosen's instructions, Dillin and Foster, with Dillin's tractor, went to Vineland to confer with Respondent's safety director and his assist- ant, Edward Downey and Al Lewis, respectively.6 Downey gave each of them an application for employment and each filled one out. The tractor was measured and because of the position of the "fifth wheel" it was again determined that the tractor could not be used to pull a 40-foot trailer. A "fifth wheel" is a steel plate approximately 20 inches in diameter which is situated at the rear of a tractor so as to join the tractor and trailer together. Dillin and Foster each took a road test. Foster was told he'd be put on the second tractor when it became available. Respondent's insurance papers were made out for Dillin. Dillin executed a lease 7 of the tractor to Respondent. Dillin was given an employee identification card and instructions as to what to do in the event of an accident.8 Dillin began driving the one tractor for Respondent about January 3. He regu- larly used Foster as a helper. When this was for Dillin's convenience, Dillin paid Foster. When the bill of lading required the use of a helper, Respondent paid Foster by its check. Early in March, when Dillin advised Rosen that the second tractor 9 was avail- able for use, Respondent assigned it a number and forwarded Dillin a certificate of insurance. Dillin obtained a license. No lease was executed. Foster began to drive this tractor on March 5. 3. John Swann Maret Guignard was a multiple owner-driver for Respondent. He had three tractors under lease to Respondent. In January, on a part-time basis, alternating with his brother George, John Swann, hereinafter called Swann, began to drive one of Guignard's tractors. In mid-February, Swann drove on a full-time basis, his brother ceasing to drive. Rosen gave him most of his assignments, although he also received some from Guignard. On March 23, Swann signed an application to join the Union. A few days later, having requested one, he signed Respond- ent's form of application for employment and stated thereon that he was a member of the Union. C. The employment status of Osterhoudt, Dillin, Foster, and Swann General Counsel contends that Osterhoudt, Foster, and Swann were Respond- ent's employees and that Dillin was Foster's supervisor.10 Respondent, to the con- trary, contends that Osterhoudt and Dillin 11 were independent contractors and that Foster was Dillin's employee but not an employee of Respondent and Swann was the employee of independent contractor Guignard and not an employee of Respondent. In National Freight, Inc., 146 NLRB 144, the Board has already, in a repre- sentation case, determined that owner-drivers and nonowner-drivers are employees of Respondent. In the same decision it was found that multiple owner-drivers 12 are not independent contractors although they are Respondent's supervisors within the meaning of the Act. In its decision the Board set forth in detail the relevant and material or ultimate facts upon which the decision was based. At the hearing herein, citing Leonard Niederitter Company, Inc., 130 NLRB 113, footnote 2, I ruled that the Board's earlier decision in the representation case above cited was not binding upon me or conclusive as to the status of nonowner-drivers, owner-drivers, 6 The record makes clear that each of these individuals is a responsible representative of management. In light of findings hereinafter to be made that each had authority effectively to recommend the hire or to hire drivers or owner -drivers, I find them to be supervisors within the meaning of the Act. Respondent's position with respect to these men is that they can't be supervisors because Respondent has no employees. Respondent does not maintain that they cannot enter into leases or effectively recommend entering into a lease. 7 All leases were same as Osterhoudt's. 6 Such was usual but not universal. 0 Also overlength so far as 40-foot trailers were concerned. W And Guignard was Swann's supervisor. n And also Guignard. 22 Such as Dillin and Guignard. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or multiple owner-drivers. All parties to the instant proceeding were afforded a full and complete opportunity to adduce evidence on the issues of employee, super- visor, or independent contractor status of the individuals involved. They availed themselves of this opportunity. Having studied the entire record, including the Board's Decision in the representation case, 146 NLRB 144, of which I took official notice and which I find to have "some persuasive relevance," 13 I find no evidence of a substantial nature which would occasion me to find contrary to the Board's Decision in the representation proceeding. Based upon the entire record before me, including the persuasively relevant Board Decision, I find Dillin and Guignard were Respondent's supervisors within the meaning of the Act, and Foster, Swann, and Osterhoudt were employees of Respondent within the meaning of the Act.14 D. Respondent's efforts to combat the employees' union and concerted activity, including the discharges 15 As of March 23, the Union was attempting to organize Respondent's Orangeburg employees and Swann, Foster, Seward, Osterhoudt, Dillin, and Guignard signed authorization cards for the Union on that date. On March 26, the Union filed a petition with the Board. A few days later, Rosen, in the Orangeburg office, in the presence of Swann, Alex Merlin Seward, herein called Seward, an employee, and perhaps other em- ployees, stated to those present, "Any man that belongs to Local 445 will no longer work in this yard." On April 9, Osterhoudt went to the office for his pay after completing a trip. Rosen gave Osterhoudt his check, saying Respondent "would never be union." Osterhoudt, as he was leaving, said, "I'll see you." Rosen replied, "You'll never see me again." On April 10, Osterhoudt phoned Rosen. He inquired whether he had an assign- ment. Rosen told Osterhoudt he was fired. On April 11, in a phone conversation, Rosen asked Dillin if he had signed a card for the Union, or had anything to do with the Union. Dillin replied that he had made no secret on his form of application for employment that he was a member of the Union. Rosen inquired if Dillin had signed "a petition against National Freight" 16 and Dillin denied doing so. Rosen told Dillin it would go bad with him if he had and "one fellow has already been fired." Dillin inquired if it were Tom Drake 17 and Rosen said it was Osterhoudt. Rosen told Dillin that Drake, Osterhoudt, Foster, and Dillin had signed the petition. Around April 11 or 12, Foster returned, from a trip, to the office. He filled out the driver's log and trip report and gave them to Rosen. As he was about to leave, Rosen asked him if he had joined the Union and Foster said yes. Rosen said, "You know you can be fired for that," and Foster replied Respondent couldn't do it because it would be against the law. Rosen told him to wait and see Downey about that problem. Foster waited and Downey showed up about IB Cf. N.L.R.B. v. Southern Airways Company, 290 F. 2d 519 , 523 (C.A. 5) ; see Cabinet Manufacturing Corporation, 140 NLRB 576, 585. It In the record before me there is evidence which would occasion some findings con- trary to or expanding on those made by the Board in the representation case; however, I find such differing findings not to be substantial . The substantial and material evidence in this case leads inevitably to the same decision reached by the Board in the representa- tion case. 15 The findings made herein are based upon a composite of the testimony of all wit- nesses. Testimony contrary to these findings is not credited. I particularly find that Rosen impressed me as a dishonest witness. His claimed lack of recollection as to what he told a Board investigator or whether he talked to one appears to me to be a deliberate misstatement. He changed from lack of recollection to a statement that he did talk to an investigator and then to a statement that he "probably did" and then that he did. He denied that he was in an automobile with Foster, Guignard, and Downey. He then said he didn't recall. He then said he didn't think he was. He then said he was not, when a date was broadly fixed. He later said he didn't recall. He said he didn't know if he had told an investigator of the Board that he was in the car. Rosen impressed me as a witness who wished to serve Respondent's interests, as he saw them, without regard to the truth, and the testimony noted is but an example evidencing such disposition. Is It is plain to me that Rosen considered the Union's petition for an election, as "against" Respondent. 17 Apparently an employee. NATIONAL FREIGHT, INC. 629 2 hours later. After exchanging pleasantries with those present in the office, Downey asked Guignard, Rosen, and Foster to step outside the office. Swann attempted to join them but Rosen directed him to remain. Downey, Guignard, Rosen, and Foster went to and entered Rosen's car. Once in the car, Downey asked Foster why he had joined the Union.is Foster replied he had done so for higher pay, union benefits, and to better himself. Downey said Respondent "could not accept any union in there at all, that they would get rid of all the owner- operators and put their own men and equipment on." Rosen asked Foster if he thought he would get any benefits from the Union. Downey asked Guignard if he had signed a union card. About 20 minutes after they left, Rosen, Downey, and Foster returned to the office. Downey said, in the hearing of Swann, that Respondent could not recog- nize the Union's contract offer because it would make Respondent go broke. On Apnl 15, Dillin phoned Rosen to find out about a load for the next day.I9 Rosen advised him and put Downey on the phone. Downey inquired what dis- agreements the employees had with Respondent. Dillin described some and sug- gested a meeting. Downey indicated he was busy but might see thelll Wednesday. Downey, in the conversation, said that if Respondent "went union; it would have to go all the way, a national contract." They then arranged to meet Wednesday afternoon, April 17. Dillin worked Tuesday and Wednesday. On the latter day, Dillin returned to Orangeburg in the early afternoon. He inquired of Rosen as to whether Downey would be present. Rosen replied that Downey was in Vineland and wouldn't be present. Dillin inquired about an assignment for the next day and was told "both tractors were released, the lease had been cancelled." 20 The reason given by Rosen was that, legally, the tractors could not pull 40-foot trailers. Dillin said Rosen knew that when they first met. A few days later Dillin received written confirmation that his lease was canceled. Respondent's letter reads as follows: Mr. ARTHUR J. DiLLIN 502 Route 59A West Nyack, New York April 19th, 1963 Dear Mr. Dillin: As you know, a safety inspection was conducted at Orange- burg, New York, on Monday, April 15th, 1963. This inspection revealed that your tractor No. 727 was over-length by fourteen inches. The same is true for your Tractor No. 721. The Regulations in the States of New York, New Jersey, Connecticut, Rhode Island and Massachusetts, concerning the maximum permissible length of tractors, plus trailers, limits the over-all length to fifty feet. The use of your equipment with our trailers, subjects this Company to fines for violation of these State laws. Therefore, I regret that I have no alterna- tive but to terminate the Leases on your equipment, effective April 17th, 1963, pursuant to Paragraph 8 of the Lease Agreement, since the use of your equip- ment does not comply with the various State Regulations concerning maximum permissible length of tractors and trailers. If you secure equipment in the future which meets these maximum length requirements, we shall be more than happy to discuss with you the Lease of such equipment. Very truly yours, KEM: MPS NATIONAL FREIGHT, INC.. c.c. N. Rosen (S) Karl E Mueller H. Kaplan KARL E. MUELLER Special Delivery Administrative Assistant Certified Mail, Return Receipt Requested. On Sunday, April 28, at Rosen's direction, Guignard brought his subordinates, Swann and Seward, to the Orangeburg office to see Rosen. While there, Rosen gave separate envelopes to Guignard, Swann, and Seward. Each envelope con- tained a paper which would indicate whether a signer of the paper had signed an authorization card for the Union. Rosen told each he wanted him to sign the paper, "yes or no." Swann said he had already told Respondent he had signed a union card when he had filed his form of Application for Employment with Respondent. ss Downey did not testify. 19 Tuesday. ° Of course, this effectively terminated Foster's employment 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He refused to sign the paper. Seward said he had not signed a union authorization card. He, too, declined to sign Rosen's paper. He explained that he might wish to join the Union someday and did not wish to have the signing of the paper used against him. Guignard wrote "Yes" on his paper and signed it. The three papers and envelopes were returned to Rosen. While returning to Swann's home in Guignard's car, Swann asked Guignard what time he should pick up the trailer the next morning, Guignard said he would call and find out 21 For several weeks, while one of Guignard's trucks was broken down, Seward, who had more seniority than Swann, was either driving one of Respondent's trac- tors 22 or acting as a helper and not a driver under Guignard. During this time, Swann regularly drove one of Guignard's tractors. On Monday, April 29, Guignard picked up Seward and drove him to Swann's house. On the way, he told Seward he was to drive Swann's tractor. Seward asked why. Guignard replied Seward had more seniority and "besides Mr. Swann is a union man." Thereafter, Swann did not drive for Respondent or its supervisor Guignard. For 2 weeks, twice a day, Swann called Guignard for an assignment. He received none. Finally, Guignard told Swann he wasn't being called to go to work because Rosen didn't want him since he was a union man. Guignard quoted Rosen as saying Respondent couldn't take Swann back because he was a union man. E. Respondent's proffered defenses Respondent did not call Downey as a witness. I have already found the testimony of Rosen undeserving of credit unless corroborated by otherwise credited evidence. Thus, the credited testimony of Dillin, Foster, Swann, Osterhoudt, and Seward as to interrogation and threats stands either undenied or denied only by incredible testimony of Rosen. Respondent's contention that Downey interrogated Foster and Guign,ard in Rosen's car as to whether they had signed union cards only for the purpose of determining whether cards had been forged, loses all force when it is recognized that Downey asked Foster "why" he signed a union card. Further, Rosen, after already knowing from Downey's interrogation that Guignard had signed a union card, asked Guignard as well as Swann and Seward to state in writing whether they had signed cards. I find the particular attempt at defense to be an attempt to cover up a clear violation of the Act. Respondent contends that it terminated Osterhoudt or "the Margie's Trucking Company lease" for cause. It contends the cause consisted of Osterhoudt being late for a delivery which occasioned a warning of "discharge," and then a failure by Osterhoudt to unload a truck, occasioning the employment by the consignee of several young men to do the unloading. As to the first occasion, Osterhoudt failed to make a delivery to Allston, Mas- sachusetts, on time. He had been stuck on a hill because of ice, in March. He was several hours late. He called neither the consignee nor Rosen before he made the delivery. He didn't call Rosen because no phone was available while he was stuck and he didn't want to take up time to phone Rosen when he became free. When Osterhoudt arrived at the consignee he called Rosen. Rosen told Osterhoudt the consignee was very upset at his lateness and Respondent might lose the account. Nothing was said about termination of the lease and in the conversation Rosen told Osterhoudt "not to worry about it." Plainly, there was no warning of discharge. The second occasion of alleged dereliction which was allegedly the proximate cause of Osterhoudt's discharge involved a delivery by Osterhoudt to the Washington Bottling Company in Worcester, Massachusetts, on March 23. As to what actually happened in connection with this delivery, no one but Osterhoudt gave testimony.23 When Osterhoudt arrived at Washington Bottling he talked to a foreman or someone else in authority. This person told Osterhoudt he could start unloading and he had some young boys coming in at noon who would help him finish. Osterhoudt said he had been running so many hours he had a job to keep his eyes open.24 He said he'd wait for the boys and in the meanwhile "would get some shut-eye." The fore- man said nothing. Osterhoudt went to sleep in the tractor and when he woke up the trailer was unloaded. Hal Kaplan,25 director of operations for Respondent, testified he told Rosen about 21/2 weeks later to discharge Osterhoudt because he 21 Presumably from Rosen. 22 Leased from someone other than Guignard. 21 Such is credited. 26 There is no evidence as to bow long Osterhoudt had worked without rest. 23 His demeanor impressed me unfavorably. NATIONAL FREIGHT, INC. 631 received an interoffice memorandum of the Glenshore Glass Co. about the Washing- ton Bottling delivery. He said he first saw this memorandum about 10 days after Rosen sent it to him. Kaplan was completely unconvincing, when he testified, as to why he had not seen the memo much earlier. I do not believe, having observed Kaplan, that he would leave his office for 1 or 2 weeks and no one would open a letter addressed to his attention. It is inconceivable to me that Rosen would mail to Kaplan what might be considered a serious complaint about Respondent's opera- tions and so address the envelope to insure that only Kaplan could see it, particularly since Kaplan had an "associate" that worked "fairly close" with him and who could be described, according to Kaplan, as "the Director of Terminal Operations," particularly since Rosen was a station or terminal manager and the memo involved station or terminal operations. No letter of discharge was sent to Osterhoudt until April 19. It was sent pursuant to Kaplan's instructions and, reads as follows: Margie's Trucking Corporation 67-34 Selfridge Avenue Forest Hills, New York (Attention: Alfred C. Osterhoudt) April 19th, 1963 Dear Mr. Osterhoudt : It has been brought to my attention by the Director of Operations that despite several previous warnings , you have failed on numerous occasions to meet the required delivery times as specified by our customers on the Bills of Lading. As you know, the success or failure of this Company is entirely dependent upon the service that we render to our shippers and consignees . Your continued lack of concern for the importance of cus- tomer service and satisfaction , has resulted in a number of customer complaints, and has caused considerable embarrassment to the management of this Com- pany. This intolerable situation cannot continue any longer. Therefore, this is to advise you that we have no alternative but to cancel our Lease with Margie's Trucking Corporation , effective April 11th, 1963. This action is being taken pursuant to Paragraph 11 of the Lease , in that Margie's Trucking Corporation has breached Paragraph 5 of the Lease , by failing to meet the specified delivery times. Very truly yours, KEM:MPS NATIONAL FREIGHT, INC., c.c. N. Rosen (S) Karl E. Mueller H. Kaplan KARL E. MUELLER Special Delivery Administrative Assistant Certified Mail, Return Receipt Requested. Kaplan could not account for the delay in sending the letter. Kaplan made no "investigation to see whether or not the facts contained" in the interoffice memo of Glenshore Glass were correct. It is clear to me that he never asked Rosen what happened. This is particularly strange since the memo refers to Osterhoudt getting "needed sleep." Further, the delay from March 23 to April 9 and from April 9 to April 19, in itself, raises serious questions as to whether the delay was not utilized so as to come up with a plausible pretext. It is significant that the letter of discharge makes no reference to the failure to unload, Osterhoudt's sleeping, or the entire March 23 incident as an occasion, let alone a cause, of the discharge. Further, I find no substantial evidence of "several warnings" or "numerous occasions" when Osterhoudt failed to meet required delivery times or his "continued lack of con- cern." I find that the reasons proffered by Respondent for its discharge of Oster- houdt are pretexts. Respondent urges three reasons for terminating Dillin and Foster: (a) A warning by a New York State policeman that if Respondent had an overlength tractor-trailer on the road, the trailer would be impounded and Respondent would be fined; (b) the inability of Dillin to move his "fifth wheels" so as to have 40-foot trailers and still comply with the law; and (c) a lack of 35-foot and Army trailer work for Dillin's trailers. The only evidence that a New York State policeman warned Respondent about overlength tractor-trailers was given by Rosen. No citation was alleged to have been given. Overlength driving had regularly been engaged in by two drivers in addition to Dillin and Foster. There is no evidence that anyone had ever received a ticket for the violation. The policeman's name or number was unknown or not given. Rosen and Downey allegedly took various steps with respect to the tractors of the other two drivers and those of Dillin and Foster. Allegedly the other two 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers could and did move their "fifth wheels." Neither testified. The policeman did not testify. Downey did not testify. I do not credit Rosen's testimony. Such testimony as Kaplan gave did not corroborate Rosen's testimony that the policeman gave the warning since it was, at best, hearsay in this regard. I find no credible evidence that the warning was given. Dillin's inability to move the "fifth wheels" was known to Respondent before Dillin and Foster were hired. I cannot see how such inability was no impediment to their employment or their continued employment but was all of a sudden a cause of their discharge.26 Again, the evidence in support of this alleged cause is based solely on the testimony of Rosen,27 whose testimony I do not credit 28 In April, when Dillin and Foster were terminated the number of Army trailers and 35-foot trailers hauled by Respondent decreased to 32 from 41 in March. In May, the number of Army trailers and 35-foot trailers hauled by Respondent increased to 61, a number exceeded only in January. Why Dillin and Foster were not recalled in May, is not explained in any way, nor is the failure to use them for such work as was available. Particularly noteworthy is Respondent's contention that neither Dillin nor Foster objected to moving overlength loads and "Rosen was con- cerned with moving freight and when he thought they could get away with it, he sent overlength loads on the road." 29 While not agreeing with Rosen's admitted philosophy or code of ethics, it is manifest to me that Respondent's alleged concern about "overlength" is an afterthought offered to conceal its proven illegal motive for terminating Dillin and Foster. That the reasons offered by Respondent for terminating Dillin and Foster were mere pretexts is confirmed by Respondent's April 19 letter to Dillin. It has been noted that before Respondent ever leased one of Dillin's tractors, Respondent knew it was overlength. The April 15 "safety inspection" revealed nothing new to Respondent. Respondent, clearly, was aware of legal length requirements at all material times. The letter makes no reference to an alleged recent attempt to enforce the State law, which was allegedly the real reason for the terminations. Having considered the entire record, I find the alleged "causes" for the termina- tions of Dillin and Foster to be pretexts. By this, I do not suggest that Respondent should have continued to assign Dillin and Foster so to drive tractors that when in combination with 40-foot trailers they would violate State laws. I do mean that Respondent through Rosen, Downey, and others made it abundantly clear that it was not concerned with State laws concerning "overlength" until the union activities of Dillin and Foster became a matter of urgent concern. Further, while the work of Dillin and Foster in hauling Army and 35-foot trailers might have been curtailed in April, there has been no proven legitimate need for entirely dispensing with their services. Respondent contends that Swann was discharged because Guignard had only one tractor for Swann and Seward to drive and he assigned Seward rather than Swann to the tractor because Seward had seniority over Swann 36 This contention must be evaluated in light of previous factfindings herein. Swann and Seward testified credibly that Guignard said he couldn't take Swann back because Rosen didn't want him since he "was a union man." Until the date of Swann's discharge, Guignard gave him preferential treatment over that given to Seward. It was not until immediately after Swann's open and 21Rosen described the absurd situation of Downey measuring the length of Dillin's tractor or tractors by use of a tape measure immediately before the discharge of Dillin and Foster-absurd because Rosen knew the answer, as did Downey, before Dillin and Foster were hired. 21 Excepting, of course, the fact that the tractors were too long legally to pull 40-foot trailers. In this particular instance, Rosen first testified that he told Dillin on April 15 that his tractors couldn't be used any more. It was not until after it was stipulated that one of Dillin's tractors was used thereafter that Rosen said Dillin was advised on April 17 21 There is no credible evidence he has ever thought he could not "get away with it." i° Guignard's demeanor impressed me unfavorably . Also, he appeared to be a witness who was disposed more to serving Respondent's interests, as he saw them , than serving the interests of truth and justice. I credit Swann's and Seward's testimony where it con- tradicts that of Guignard. NATIONAL FREIGHT, INC. 633 frank statement of his union feelings and actions to Rosen and Guignard that Guignard discharged Swann and this happened the next morning.31 The timing is not without significance . I find Respondent's contention that Swann rather than Seward was discharged because Seward "had more seniority" is a mere pretext to conceal the genuine reason of eliminating Swann from Respondent 's employ because he was an admitted union member. F. Respondent's interrogation of applicants for employment During material times, Respondent used a form of "application for employment" which required applicants to state if they were "affiliated with a labor union" and, if so, to state the "Local" and "Ledger No." The record indicates the form was discontinued in June when Respondent learned such form might be violative of the Act. There is no evidence that Respondent intends to use the form again. Respondent says it will not. I believe Respondent's statement that it will not ask the same or any similar question on an application form. Use of the form was a violation. Since I do not believe there will be a similar violation I find no need for a remedy other than the one I shall recommend. Concluding Findings On various dates described hereinabove, Respondent interrogated employees about their union activities and threatened them with various reprisals should they engage in or continue to engage in union activities. By such acts, Respondent violated Section 8 (a) (1) of the Act. On various dates specified above, Respondent violated Section 8(a)(3) of the Act by discharging or causing the termination of Osterhoudt, Foster, and Swann because they engaged in and continued to engage in union activities. That the alleged causes for the discharges or terminations were pretexts confirms this finding. By discharging Dillin because of his union activities, even though Dillin was a supervisor, Respondent violated Section 8(a)(1) of the Act. It is clear that the discharge was not for the purpose of preserving neutrality. Dillin's discharge demonstrated "graphically to rank-and-file employees the extreme measures to which the offending [Respondent] will resort in order to thwart them in their desires to join or assist a labor organization ." 32 By discharging Dillin for his union activities, Resnondent caused the employees to fear similar reprisals. That Dillin's discharge was for union activities is confirmed by the pretextual nature of the reasons assigned for his discharge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities as set forth in section III, above, occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily discharged Osterhoudt, Foster, and Swann in violation of Section 8(a) (1) and (3) of the Act and similarly dis- charged Dillin in violation of Section 8 (a) (1) of the Act, I shall recommend that Respondent offer these employees and Dillin immediate and full reinstatement to their former or substantially equivalent positions,33 without prejudice to their senior- ity and other rights and privileges, and that Respondent make them whole for any 31 After Guignard was going to call to find out about an assignment. 32 Jackson 1'sie Manufacturing Company, 122 NLRB 764, 767. 33 This does not mean Respondent must assign Dillin or Foster to driving loads which will be violative of the laws of a State wherein the driving is to take place. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loss of earnings they may have suffered by reason of the discrimination against them, by paying each a sum of money equal to the amount that each would normally have earned as wages from the date of the discrimination to the date of offer of reinstatement less his net earnings.34 The backpay shall include interest at 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The above discharges strike at the heart of rights guaranteed employees by the Act and are closely related to other conduct abridging rights guaranteed employees by Section 7 of the Act. There is reasonable ground to anticipate Respondent will infringe upon other rights guaranteed employees in the future, unless appropriately restrained. I shall therefore recommend an order requiring Respondent to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization with the meaning of the Act. 3. By discriminatorily discharging Osterhoudt, Swann, and Foster, as found above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By interfering with, restraining, and coercing employees in exercising the rights guaranteed them by Section 7 of the Act, including the discharges of the above- named employees and of Supervisor Dillin, for engaging in union activities, and interrogations and threats, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 84 F. W. Woolworth Company, 90 NLRB 289. District Lodge No. 94, Lodge No. 311, International Association of Machinists, AFL-CIO (Parker Aircraft Co.) and Colin Shep- hard Sinclair. Case No. 31-CB-11 (formerly 21-CB-2450). August 20,1965 DECISION AND ORDER On April 30, 1965, Trial Examiner Louis S. Penfield issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision accom- panied by a brief in support thereof. The National Labor Relations Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prej- udicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions 154 NLRB No. 50.