Fischbach Trucking Co.

FISCHBACH TRUCKING CO. APPENDIX B 1025 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 interrogate coercively our employees concerning their union affiliations, activities, and desires, concerning the signing of union authoriza- tion cards, and concerning the union activities of other employees. WE WILL NOT indicate to our employees or give the impression that we are engaging in surveillance of union activities. WE WILL NOT solicit our employees to withhold their support from the Union by engaging in individual bargaining with us. WE WILL NOT seek to induce our employees to refrain from supporting the union by reminding them of past aid and assistance which we have rendered them. WE WILL NOT discourage membership in General Drivers Warehousemen & Helpers Union Local No. 968, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization, by discharging or failing to reinstate employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employ- ees in the exercise of their right to self-organization, to form, join, or assist said Union Local No. 968, or any other labor organization, to bargain col- lectively 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 of such activities. WE WILL offer to,Edward B. Peeler immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him in the manner pro- vided in the Trial Examiner's Decision. 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. ANIMAL FOODS Co. OF TEXAS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4722. Fischbach Trucking Co. and Robert McCall, Jr. Case 8-CA-4016. June 23, 1966 DECISION AND ORDER On March 23, 1966, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take 159 NLRB No. 108. 243-054-67-voi 159-66 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations 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 entire record in this case, including the Trial Examiner's Decision, the exceptions, and the briefs, and hereby adopts the Trial Exam- iner's findings,1 conclusions, and recommendations. [The Board adopted the Trial Examiner's Recommended Order.] 1 The Trial Examiner found, and we agree, that the Respondent had knowledge of McCall's distribution of union cards through employee Cole's report to Profit that McCall had given him a card. The Trial Examiner inadvertently fixed the date of such report as 8 to 10 days before McCall was discharged, whereas the latter did not distribute cards until 3 days prior to being discharged Although Cole may have been in error as to the date McCall gave him the card, he testified credibly that he made the report to Profit after getting the card from McCall and before the latter's discharge. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on September 24, 1965, by Robert McCall, Jr., against Fischbach Trucking Co., Akron, Ohio, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 8, issued a complaint on November 2, 1965,1 alleging that the Respond- ent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, by discharging McCall, by interrogating its employees concerning their union membership and activities, and by threatening them with discharge and other reprisals because of their union membership and activities. Pursuant to notice, hearing was held before Trial Examiner Ivar H. Peterson, in Akron, Ohio, on January 17 and 18, 1966. The General Counsel and the Respondent were represented by counsel and participated in the hearing. Briefs submitted by the General Counsel and the Respondent, on February 18, 1966, have been duly considered. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, an Ohio corporation, is engaged in the trucking business, both interstate and intrastate, and has its principal office and place of business in Akron, Ohio. It annually receives gross revenues exceeding $50,000 for transporting goods and materials from Akron, Ohio, to points located outside the State of Ohio. The Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Freight Drivers, Dockworkers and Helpers Local Union No. 24, is a labor organization within the meaning of Section 2(5) of the Act. 1 Unless otherwise indicated, all dates refer to the year 1965. FISCHBACH TRUCKING CO. 1027 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The only facility of the Respondent which is here directly involved is the garage or shop in Akron, where approximately 12 or 14 employees are employed. The garage employees have never been represented by a union although there have been a number of prior attempts to organize them. On the other hand, the over-the- road truckdrivers, who are based primarily in Akron, and the city drivers in Akron have been represented by Local 24 for over 20 years. City drivers at terminals other than Akron are represented by the local of the Teamsters in the particular area. The Respondent's answer admits, and I find, that C. B. Fischbach, president, Donald M. (Bill) Fischbach, garage manager, and Fred McGinnis, dispatcher, are supervisors. In addition, it is plain from the record that Donald F. (Pat) Fisch- bach, brother of C. B. Fischbach and father of Bill Fischbach, who is night man- ager, occupies a supervisory position. There is some question about the status of Philip Clepper, parts man and assistant to Bill Fischbach, Theodore (Junior) Prof- fit, a mechanic and troubleshooter in the garage, and John Wall, described as assist- ant trailer foreman. The garage has two departments, the first or "front end" being devoted to work on the tractor components and the "rear end" being devoted to work on the trail- ers. Clepper and Proffit work in the "front end," while Wall works in the "rear end" or trailer department. In his brief, counsel for the Respondent notes that Wall, Clepper, and Proffit, all hourly rated employees, "had some additional responsibilities outside of the performance of their ordinary jobs as mechanics or laborers," and correctly observes that they "were included in the bargaining unit," i e., were eligible to vote in the consent election conducted on November 17, 1965 (Case 8-RC-6108).2 I understand Respondent's position to be that none of these three can properly be called a supervisor within the meaning of the Act. Wall, who described himself as assistant trailer foreman, testified that he instructs men regarding work to be done and checks it. Bill Fischbach testified that Wall "takes care of the back," referring to the trailer department. Clepper, according to Bill Fischbach, is "second in charge of the garage" and in active command when Bill Fischbach is absent, which occasionally happens. Proffit, as C. B. Fischbach testi- fied, "guides the activities of the men" when both Bill Fischbach and Clepper are not in the garage. In a bulletin dated September 23, signed by Bill Fischbach, the following appears: A lot of the wasted time comes about when one mechanic asks the other for help and instead of doing the job he is placed on and asking myself or Phil Clepper for help, he takes it upon himself to get another mechanic. We have Ted Profit as a supervisor and trouble shooter to help properly guide the mechanics. When parts or information are needed and when Phil Clepper or myself are not around, Ted is familiar with records on the tractors and can properly guide you without a bunch of lost time. In the future we expect you to stay on the job you are put on and where assistance is required, you are to secure same from one of the people mentioned above. In the trailer depart- ment, John Wall is in charge of this operation. [Emphasis supplied.] Upon all the evidence, I find that Wall, Clepper, and Proffit are supervisors within the meaning of the Act. B. Interference, restraint, and coercion; the discharge of McCall 1. Organization efforts in September Robert McCall, Jr., a member of Local 24 for approximately 12 years, was hired by Respondent on February 1 as a mechanic. During the prehire interview C. B. Fischbach remarked that the Respondent's shop was not organized; McCall, accord- ing to his testimony, stated that he was a member of Local 24 but had been on "withdrawal" for about 2 years. McCall had worked elsewhere as a mechanic for about a year and a half, and began his employment at the top rate for mechanics, $2.80 per hour. In either May or June McCall spoke to Oscar Harold, the president of Local 24, asking when the Union was "going to get the shop organized," to which Harold 2 Incorrectly reported in the transcript as Case 8-RC-0018. 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied that the Union was "working on it, but he didn't know when they were going to get it done." On about September 1 George Cogar, an employee in the trailer department, visited the hall of Local 24 and obtained some union authoriza- tion cards, which he gave to McCall. After obtaining the cards and before McCall's discharge on September 23, Cogar observed McCall passing out cards to employees on the day shift, when he (Cogar), who worked on the night shift, occa- sionally visited in the garage. Cogar testified that he saw McCall give authorization cards to employees Frank Cole, Clay Nutter, and William Bostaph during the week or 2 weeks prior to McCall's discharge. Frank Cole credibly testified that about a week or 10 days before McCall's termination the latter asked him to sign an author- ization card at the garage. Cole further testified that after receiving the card from McCall he went to Proffit and the two of them "had a general conversation about the union activity and the fact [that] I had the card and hadn't made up my mind as to whether I was going to sign it or not." Clay Nutter testified that McCall gave him a card on September 20 and that he (Nutter) returned the signed card to McCall on September 22. On September 20 McCall visited the union hall and obtained another supply of authorization cards. According to McCall, he then spoke to various employees on that and the succeeding 2 days, and specifically named Nutter, Gordon Snider, William Mutch, Sam Nowels, Cogar, Proffit, Wil- liam Bostaph, and Clyde Yerrick. McCall's normal hours of work were from 10 in the morning until 8 at mght, but frequently he reported for work an hour or two early. Cogar's hours were from 8 in the evening until 6:30 in the morning. The testimony is that McCall' and Cogar frequently had occasion to speak to each other as the former was leaving and the latter was coming on duty, generally about job scheduling. During the evening of September 21, at about 8 o'clock, Cogar and McCall had a 5- or 10-minute con- versation at the dispatch table as Cogar was coming on duty and McCall was leav- ing.3 It appears that on the evening of September 21, following the conversation between McCall and Cogar, Pat Fischbach spoke to Cogar about this matter and stated, according to Cogar's undenied and credited testimony, that if Cogar "kept talking to him [McCall], I could be looking for another job." According to C. B. Fischbach, he received a telephone call at about 9 p.m. on September 21 from Pat Fischbach, who told him that he had seen Cogar and McCall "talking in the rear end of the shop with the lights turned off"; that there had been a general pattern of "loafing about that time of day between the two" and thought that something should be done about it. C. B. Fischbach told Pat Fischbach, so the former testified, that McCall had already been spoken to about "loafing on the job and tieing other people up" and that C. B. Fischbach "would get in to it further . . . the next morning." Pat Fischbach did not testify, although apparently available. McCall testified that Pat Fischbach had not spoken to him about the conversation between himself and Cogar. At about 11 a.m. the morning of September 22, C. B. Fischbach asked Bill Fischbach to get McCall and bring him to the office. During this meeting C. B. Fischbach, so he testified, "described in a general outline the things we'd been finding objectionable" with respect to McCall's performance and recalled that he had been "spoken to" earlier about "these things." 4 C. B. Fischbach concluded 8 Respondent's timecards show that Cogar, on the evening. of September 21, checked in at 7:53 p in. and that McCall checked out at 8 : 02 p in. on the same day. It Is the Respondent's contention that Pat Fischbach, the night manager, observed this meeting and conversation between Cogar and McCall and later on the evening of September 21 telephoned C. B Fischbach and reported it. As will later appear, on the morning of September 22, C. B . Fischbach had McCall report to his office where he reprimanded him for "visiting" too much and also mentioned other unspecified "irregularities" on the part of McCall. 4 The reference to the earlier conversation regarding work performance apparently refers to an incident where C. B. Fischbach had observed McCall outside the garage talk- ing to a city driver ; C. B. Fischbach testified that he thereafter mentioned the matter to Bill Fischbach , McCall's immediate supervisor, and later verified that Bill Fischbach had brought the matter to McCall's attention. FISCHBACH TRUCKING CO. 1029 the conference by stating in substance that the Respondent expected a reasonable performance from McCall and testified that McCall stated he understood.5 After having been reprimanded by C. B. Fischbach, McCall returned to the garage. He told Philip Clepper, the parts man and assistant to Garage Manager Bill Fischbach, that he "was disgusted with the place, the way people were acting and the place was run, and if I could find a better job, I would take it." Accord- ing to Clepper's testimony, McCall stated he was disgusted because C. B. Fisch- bach "had just chewed his butt out" with respect to his conduct the prior day "for taking too long on the job and a little bit of visiting with the other mechanics," and remarked that, if he were not in the next morning, the reason would be that he "would be out looking for another job." McCall testified that he did not at that time have another job nor did he attempt to obtain one; the record shows that he did report on September 23, his timecard showing that he clocked in at 9:53 a.m., 7 minutes in advance of his normal reporting time.6 2. The discharge of McCall At about 8 a.m. on September 23, according to Clepper, he told Bill Fischbach about McCall's remark of the evening before to the effect that he was disgusted and might seek another job. This was before McCall's reporting time. Bill Fisch- bach's testimony is that Clepper gave him this information between 9 and 10 o'clock in the morning, and that Clepper stated McCall had said that if he were not in the morning of September 23 "he would be out looking for another job." Fischbach added that he received this information from Clepper prior to the time that McCall arrived at the garage.'+ C. B. Fischbach testified that in the morning of September 23 Bill Fischbach advised him, as he (C. B. Fischbach) was in the shop, that Clepper had said that the evening before McCall had expressed his dissatisfaction and an interest in looking for another job. Further testifying, C. B. Fischbach stated that he went to Clepper to verify the information, which Clepper did. Sometime thereafter, so C. B. Fischbach testified, he "got to thinking" that apparently the discussion with McCall on the day before had made "no impression on this man's attitude" and that he "felt if he had wanted to seek another job, that the best way out of a bad situation was to end his employment." It was, according to C. B. Fischbach, about 45 minutes or an hour after he had first received the information from Bill Fischbach and Clepper that he called both of them to his office to recheck the information and "ask [them] for impressions," and thereupon stated to them that he thought the advisable thing to do was to release McCall-and to advise him this would be his last day." Bill Fischbach testified that it was around 11 a.m. or a -little after that C. B. Fischbach asked him if there had been "any repercussions of [from] McCall on our talk the day before," and that it was at that time that he informed C. B. Fischbach of what 'Clepper had advised him regarding McCall's dissatisfaction; prior to this conversa- tion with C. B. Fischbach, Bill Fischbach was aware of the fact that McCall was on duty, and testified that he had not talked to McCall regarding his interest in 6 C. B. Fischbach also testified that he mentioned to McCall that there were "some other Irregularities that had to be cleared up," but did not specify what they were. In the course of his testimony he stated that these matters related to McCall 's having worked on the automobiles of other employees at the garage, allegedly on company time, contrary to the Respondent's rules and regulations . According to McCall, President Fischbach did ask him about working on the cars of other employees at the September 22 meeting. 6 It is not altogether clear in the record at what time on September 22 McCall was reprimanded and thereafter told Clepper about it. According to Clepper, McCall informed him of the reprimand at 5:30 in the afternoon and Clepper testified that McCall told him that C. B. Fischbach had "Just chewed" McCall out; on the other hand, C. B. Fisch- bach testified that it was at about 11 a.m. that he asked Bill Fischbach to bring McCall to his office. It seems logical, accepting C B. Fischbach's testimony that he received a complaint by telephone from Pat Fischbach at about 9 p.m on September 21, that he would at his earliest opportunity the following day speak to McCall ; it is also reasonable that McCall would inform Clepper of the reprimand promptly after it had been given, rather than some hours later. 4 The Respondent's time records show that McCall punched in at 9 :153 a m. on September 23. 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continuing in the Respondent's employ although he had by this time received from Clepper the information pertaining to the conversation between Clepper and McCall on the day before. Bill Fischbach's version is that he went to McCall between 1 and 2 p.m. on September 23 and told him that he had informed C. B. Fischbach of what Clepper had said regarding McCall's dissatisfaction, and that C. B. Fischbach "had said in view of the feelings that he thought at the end of the day that would be it as far as Bob [McCall] was concerned." Fischbach continued by testifying that he told McCall that "up until the last month" McCall had been a good worker, "a real good worker," but thereafter had "been goofing around on the job somewhat," although there were "some other individuals that was going to have to get with it, stop fooling around," and referred to Cogar and Nutter and perhaps some others as being guilty of the same, infraction attributed to McCall. He told McCall that if he obtained another job "to tell the people to call me for a recommendation." McCall's version of the conversation with Bill Fischbach on this occasion was somewhat different. According to him, Bill Fischbach came to him about an hour and a half or 2 hours after he had reported for work at 10 a.m. and "said he had something he didn't like to tell me, but he had to," and then proceeded to state that C. B. Fischbach had been "checking around to the men" and had talked to Clepper "seeing if I was looking for another job." C. B. Fischbach, so Bill Fischbach reported, according to McCall, then decided that "seeing as I was looking for another job, as of 8 o'clock that night I was done." Bill Fischbach, according to McCall, then offered, to give McCall a good recommendation. McCall completed his shift on September 23, clocking out at 8:07 p.m. accord- ing to his, timecard. Cogar testified that about 9 p.m. that day Bill Fischbach called him into C. B. Fischbach's office and "asked me if I knew about the union," to which Cogar replied in the affirmative. Bill Fischbach testified that between 8 and 9 p.m. on September 23, during the conference between himself and Cogar in C. B. Fischbach's office, Cogar stated that he felt Pat Fischbach, on September 21, "had gotten on him unjustly" regarding the conversation between himself and McCall shortly before the latter left the garage at the end of his shift. Bill Fisch- bach continued by testifying that he "asked Cogar' if he'd heard anything about what had transpired then with the men and the Union," following, the news that McCall 'was discharged, and Cogar - told him, in about as many words, that Bill Fischbach "don't need to worry about it. You got rid of the trouble-maker." In response to this statement Bill Fischbach, as he testified, asked, "Who's the trouble- maker?" Cogar replied that it was McCall who had been passing out union authorization cards. C. B. Fischbach testified that McCall's attitude, as exemplified in this remark to Clepper about the possibility of seeking another job, indicated "a complete nega- tive approach" on the part of McCall and persuaded Fischbach that there was no use `to try to go further with that employee or one that is in that frame of mind." In referring to other "irregularities," C. B. Fischbach testified that he had in mind two matters that had come to his attention prior to September 23 but that he "didn't want to menion them [in the September 22 interview] until I had what I believed would-be the proper facts on them." These related first to a report from Wall that McCall had had his car over the'pit during working hours installing universal joints, and secondly that McCall had worked on the private automobile of Phil Alborn, apparently during working hours. At all times relevant the Respondent has had a rule restricting the occasions and circumstances under-which employees could work on their own or other employ- ees' personal automobiles. A notice issued in April 1963, almost 2 years before McCall's employment, stated that work on personal cards could be performed in the shop only on Saturday afternoons and that a work ticket should be set up on the job showing the clock-in and clock-out time, the same as with respect to work on company-owned vehicles; so that proper insurance protection would be provided in the event anyone was injured while doing such private jobs. The notice stated: "Recently there has been a good bit of relaxation to this rule" and that for the future "when you wish to work on "our car, please plan to do it on Saturday afternoon only." In the notice given to shop employees on September 23, the day McCall was terminated, the following appeared with respect to working on personal cars: You are all familiar with the procedure set forth for working on your cars. This was to be done on Saturday, with a work order, so you would be pro- tected with the Industrial Commission in case of accident. Here of late some FISCHBACH TRUCKING CO. 1031 of our people have been working on their cars or someone elses after the supervisory people have left. Where there is a case of emergency, it is permissible to work on your car after working hours, if a work order is secured prior to quitting time. This does not mean that things that can wait to be- done on Saturday, can be done in the evening. McCall testified that he had worked on his own automobile on four or five different occasions after he had completed work. On one occasion, August 31, McCall worked on his car at the shop for a period shown-to be from 9:01 p.m.- to 9:43 p.m. by the timeclock stamps on the work order he had filled out. McCall testified that Pat Fischbach that evening asked him whether he was "ever going home," to which McCall replied that he had clocked out at 8:30 p.m. Fischbach contradicted this, stating that he had just looked at McCall's timecard which showed no clocking-out stamp. Thereupon Fischbach wrote in "8:30" as the clock-out time. On another occasion Wall reported to C. B. Fischbach that McCall had had his car over the pit in the shop installing some universal joints. According to Wall, this incident occurred early in September at about 7 p.m. Wall asked McCall if he had a work order, to which McCall replied affirmatively; later on Wall asked Clepper, the parts man, if McCall did have a work order on the job and Clepper stated that none was turned in and none issued to McCall. - Two or three weeks before his termination McCall was asked by Alborn, an over-the-road truckdriver, to install a muffler on his private automobile. McCall testified he did so after working hours and Alborn gave him $3 "to buy a case of beer with" for doing the job. Apparently no definite arrangement for payment had been made between McCall and Alborn. There is no evidence showing that McCall was on the Company's time during the time that he performed the work on Alborn's car. In a sworn letter dated September 28 and furnished to the Regional Director; C. B. Fischbach made the following statement regarding the Alborn incident: This work was performed between 6:00 P.M. and 8:00 P.M. at a time when McCall was on the clock and being paid for his time,- during the period when- no supervision [was] in the garage. McCall, however, testified that at the time he worked on Alborn's car he was not. on company time.8 The evidence is undisputed that employees other than McCall also worked on private automobiles at the shop and that they did not confine this work to Saturday as provided in the notices referred to above. So far as appears neither McCall (other than on September 22) nor any, other employee was repri- manded for performing this type of work at the shop and off company time. 3. Interrogation and threats Frank Cole, one of the oldest employees in point of service, and still employed, testified that 8 or 10 days before McCall's termination the latter asked him to sign a union card at the garage. According to Cole, he went to Proffit and the two of them had a "geheral conversation about the union activity," during which Cole revealed that he had a card given him by McCall but that he hadn't made up his mind whether or not to sign it. The day after McCall's termination, Cole was called into C. B. Fischbach's office; Bill Fischbach was also present. C. B. Fisch- bach told Cole that he "wanted to talk to the old employees ... about what the situation was in regard to Mr. McCall" and to explain it to them. In this conver- sation, according to Cole, C. B. Fischbach stated that "he had known for some time that there ... was some activity in regard to pushing for the Union among mechanics, and that he hadn't done anything particularly about this iii -regard to Mr. McCall, until he, found out there was some irregularities going on." These irregularities, so Cole testified, C. B. Fischbach stated related to some work on the 8No timecards were produced to. substantiate the statement made in Fischbach's letter of September 28, or the implication in Wall's testimony and the report received by C B. Fischbach regarding the work done by McCall on his own car early in September, that McCall was on company time on these two occasions. McCall testified that he did the work on Alborn 's car after 8 p.m., which was his normal quitting time , and that whether he worked on his own or another person's car it was "on evenings or Saturday afternoons after I got off work, or Sunday." I credit McCall's testimony and find that he did not do the work on private cars while "on the clock " B 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD private automobiles of other employees that McCall had done while "on the com- pany clock, and furthermore, he had not only collected money for the time that the company was paying him . . . but he had also collected from the truckdriver " 9 In this - same conversation Cole told C. B. Fischbach that he had not signed the union card and did not expect to sign as he was a member of another labor organization. C. B. Fischbach gave the following version of his conversation with Cole, which he placed as occurring during the week after McCall's discharge: Prior to calling Cole in he had discussed the advisability of speaking to some of the older employ- ees with Bill Fischbach and it was then determined to do so in order to "get the facts straight." He asked Cole if he "knew much about" the union activity to which Cole replied that he "didn't at the time." Cole, according to C. B. Fischbach, said he "didn't want to get tangled up in anything like that; he would be fearful at his age if he lost his-well, we talked about the shop and some equipment, maintenance problems, and that was about it." C. B. Fischbach testified, in answer to a question whether he recalled telling Cole that he had known for a few days before McCall's discharge that there was activity of a union nature among the mechanics, that "I don't believe that I made any such statement." 10 Clay Nutter testified that McCall gave him a union authorization card on Septem- ber 20, asking him to sign it. Nutter did so on September 22 and returned the card to McCall on that date. Within a few days after McCall's termination Nutter had a conversation with C. B. Fischbach. According to Nutter, Fischbach stated, "You realize that Robert McCall quit on his own"; and that Fischbach further said "[W]e don't want a union in there." C. B. Fischbach testified that his conversa- tion with Nutter occurred late in the afternoon of the Saturday following McCall's discharge. According to Fischbach, John Wall had been in the office shortly before and had informed him that he had received a call from employee Clyde Yerrick who had advised him "that McCall had called at his home to try to induce him to sign a union card." Shortly thereafter Fischbach, as he was leaving the shop and was in his car, stopped when he saw Nutter and asked the latter if he knew any- thing about the union activity, to which Nutter replied in the negative, except that he did state that he had "heard a little talk earlier, but he knew nothing about it " Fischbach, as he testified, then told Nutter that he had "just been advised by John Wall" that the latter had received a call from "one of the other boys that McCall had called at his home and was apparently pushing the thing along pretty 'lard." William Mutch, Jr., a young man who had been employed as a utility man in June shortly after his discharge from the Marine Corps, testified to a number of incidents regarding the Union's efforts to organize the Respondent's garage. Mutch, -who passed out a few cards that he had received from McCall during the period before September 23, testified that the same day that McCall was discharged, C. B. Fischbach came to him at about 5:45 p.m. and "asked me if I knew anything about this union business that was going on," to which Mutch replied in the negative. Further according to Mutch, Mr. Fischbach continued by stating that every 4 or 5 years "we get somebody with this union idea in their head and we have to let -them go," and then related some of the advantages and benefits offered by the Company with particular reference to Mutch's situation as an apprentice and utility man in the shop. Fischbach, so Mutch testified, stated that McCall was let go because he "didn't do his work properly, and he wanders around the shop too much." Also on September 23. so Mutch testified, he observed Bill Fischbach, John Wall, and Clyde Yerrick at the rear of the shop as Mutch was on a ladder -outside removing excess paint from the large overhead door. Mutch observed Yer- 9 C. B. Fischbach's prehearing affidavit states that he talked to Alborn on September 27 :and Alborn stated "that McCall had installed a muffler for him" but Alborn "did not tell me when McCall did this" except that he did say "McCall installed the muffler between 6 and 8 p m " Alborn testified, credibly, that he did not know when the muffler was -Installed or whether McCall did the work during his working hours. He testified he was questioned about the transaction on Saturday, September 25, by C. B. Fischbach. I accept Alborn's testimony. 10 Bill Fischbach, who was present during the conversation between C B Fischbach and -Cole, was asked whether he heard C. B. Fischbach "say that he'd known for a few days that there was activity for the Union among the mechanics" ; answered somewhat hesi- tantly : "Uh--he-to the best of my knowledge he did not say this, no." FISCHBACH TRUCKING CO. 1033' rick hand Wall and Fischbach a union authorization card." On the same day, while still engaged in removing paint from the garage door, Mutch heard Bill Fisch- bach ask another employee, Jessie Johnson, in Mutch's words, "if he knew any- thing bout the union activity going on," to which Johnson replied that he did not. C. B. Fischbach's version of his conversation with Mutch was substantially as. follows: Mutch came over to him as he was in the back part of the garage, several days after McCall's release, and asked what McCall was "fired for." In response, Fischbach asked Mutch what his understanding was of the reason for McCall's ter- mination, to which Mutch replied that he did not know. Thereupon Fischbach told Mutch that up to that point the Respondent "hadn't had anything to say to- anyone, but I thought because of some things that McCall was saying . . . that possibly we should clear the atmosphere a little bit," and he thereupon gave Mutch substantially the same version as he testified to and concluded that the reasons for McCall's termination were the irregularities and loafing on the job. In this same conversation, so C. B. Fischbach testified, he told Mutch that he "didn't know why or how these things got started," apparently referring to organizational efforts, and explained some of the benefits of the Respondent's "good program" that had par- ticular applicability to Mutch. It was, according to C. B. Fischbach, the conver- sation with Mutch that prompted him the next day to inquire of Bill Fischbach whether it would not be advisable to speak to some of the mechanics older in point of service so that "we could get the facts straight .... ' His talk with Cole- followed. Employee Johnson testified that between 4 and 5 p.m. on September 23, outside the garage, Bill Fischbach asked him "if I knew anything about the Union, and I told him, `no, I didn't.' " Fischbach also asked Johnson what he thought about the Union to which Johnson replied that he did not want anything to do with it. John- son testified that he did not see any union authorization cards circulated and first heard talk of the Union coming into the shop the morning after McCall was fired- Bill Fischbach testified that on September 23, between 4 and 5 o'clock, he became aware that union cards were being circulated. John Wall, the supervisor in the trailer department, advised him that employee Clyde Yerrick had a card, where- upon Fischbach went back and was shown the card by Yerrick. After seeing Yer- rick's union card, Fischbach saw employee Johnson and "asked him if he was aware- of union cards and the union and so on," to which Johnson replied, "Yes." Later the same day, near 5 o'clock, Fischbach, so he testified, asked employee Bostaph "if- he knew anything about it," and received from Bostaph a union card with the com- ment that Bostaph "didn't want anything to do with it and told me to keep it " Fischbach continued by testifying that later, between 5 and 6 p.m., he showed the card given him by Bostaph to C. B. Fischbach; Bill Fischbach, however, could not recall if Wall had been present at the time of this conversation with C. B. Fischbach.12 Apparently during the morning of September 23 Mutch handed his own signed card and that of employee William Nowels to McCall in the presence of Proffit; on• this occasion McCall asked Proffit if he wanted a card, to which Proffit said he did not. Proffit's testimony is that he worked until 4 p.m. on September 23 instead of his normal quitting time of 5 o'clock, because he had to go see a doctor. Prior to 4 p.m., so Proffit testified, he had no knowledge of authorization cards being. n Employee Cole testified that the day before McCall was fired employee Yerrick told him that Bill Fischbach and Wall had come to him (Yerrick) and asked "about what he- knew about the cards being passed out and the activity with regard to pressing for a union." Yerrick did not testify, as it appears he was at home at the time of the hearing convalescing from an illness that had required hospitalization. Bill Fischbach testified that he could not recall having "heard any conversation" among the garage employees. concerning the Union prior to September 23 and that he first became aware that cards were being circulated between 4 and 5 p in . on September 23, as related infra. " Wall, the assistant trailer foreman , testified that he became aware of card circulation on September 23 at about 4 o'clock when employee Yerrick "presented me with one."' Wall's response was that Yerrick "better tell" Bill Fischbach "about the card." Wall fur- ther testified that Yerrick told him that McCall had given him the card, and that he heard the conversation between Yerrick and Bill Fischbach after he (Wall) had called Bill Fischbach on the intercom to come over to the trailer department. About a half hour later, so Wall testified, he and Bill Fischbach went to C. B. Fischbach's office and showed the latter the card that Yerrick had received. According to Wall, C. B. Fischbach asked' if any more cards had been passed out and Wall replied in the negative. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circulated. After he had punched out and started for the doctor's he was offered an authorization card by McCall just "as I was leaving out the door." The next day, "as far as I can remember," Proffit mentioned to Bill Fischbach that he had received a union card. Proffit further testified that on September 23 McCall told him, in the morning, that he was being released. Proffit later altered his testimony and stated he could not remember whether it was in the morning or in the after- noon that McCall told him he was being terminated but that in any case he learned of this before McCall offered him the union authorization card. Fred McGinnis, a friend of the family of Mutch's wife, had been helpful and to some extent instrumental in securing employment with the Respondent for Mutch. On Saturday, September 25, McGinnis telephoned Mutch at his home and, accord- ing to Mutch, "said if the Union did happen to go through, there would be no place in the shop for me, on account of the Union wanted skilled mechanics," which Mutch was not. McGinnis further told Mutch that he should not have anything to do with the Union. Dispatcher McGinnis admitted that he had had a conversa- tion with Mutch on September 25. He stated that he had heard some "scuttlebutt" that "someone was trying to organize the garage employees." Because of his inter- est in Mutch he called him and asked if Mutch "had anything to do with this union organizing, . and he said `no,' he didn't know anything about it " He further asked Mutch if he had signed a card, and Mutch replied that he had not. The morning of September 27, a Monday, Bill Fischbach telephoned to the garage and asked that employees Cogar and Ross Haycock wait until he arrived, after they had finished their work on the night shift. When Fischbach arrived he drove Cogar and Haycock to the Anchor Inn where they conversed while Fischbach had break- fast. Fischbach asked if they knew anything about a threatened strike of the driv- ers. Haycock, according to Cogar, replied that Wall had told him "that the drivers might go out on strike because they were tired of non-union men working on the tractors." To this Fischbach, according to Cogar, replied that he "was afraid to see the Union come in . . . " as in such event he feared C. B. Fischbach "would up and sell it, and all of us would be out of a job." Haycock, called as a witness by the Respondent, testified that Fischbach did ask if the employees had heard anything about a strike and that he, Haycock, replied that he had "heard it mentioned." Haycock testified it was he, rather than Bill Fischbach, that "mentioned the fact that if . . the shop went union . it was a good possibility that Dutch IC. B. Fischbach] might sell." Haycock further testified that he did not hear Bill Fisch- bach make such a statement and also testified that Cogar volunteered that he had signed a card for the Union and asked Bill Fischbach if he (Cogar) "should go pick it up" to which Fischbach replied that Cogar should "leave it as is." Bill Fischbach's version of the Anchor Inn meeting is as follows: He had received a call from his father, Pat Fischbach, the night manager, to the effect that Pat had heard "there was going to be a strike ... because of what had developed the prior week," apparently referring to the organizational activity and the discharge of McCall. Thereupon Bill Fischbach asked his father to have Cogar and Haycock "stick around and have a cup of coffee" in order that he might "find out about that." Bill Fischbach admitted that he asked them if they had heard anything about a strike, to which they replied they had heard mention of it but that they did not think "there was anything to it." Fischbach stated that Cogar "brought up about the fact that he had signed one of these union cards, and he thought he would go withdraw it," which Fischbach discouraged, saying that Cogar should "forget about it." When Bill Fischbach was asked whether he, at the Anchor Inn, had made a statement to Cogar and Haycock "to the general effect that if the Union came in, you were afraid that C. B. Fischbach might sell the Company," Fischbach answered: "No, sir. The best of my knowledge I didn't say anything like that." Asked whether he had heard "any such statement made," he answered: "I can't say for sure." C. "Conclusions The Respondent earnestly contends that it had no knowledge of McCall's union activities, or of union card distribution among the garage employees, prior to the time McCall was informed, sometime between 11 a m. and 2 p.m. September 23, of his.termination as of the end of that shift. It contends that the "immediate factor which led to the decision to discharge was McCall's attitude, evidenced by his state- ments concerning looking for another job " The General Counsel, on the other hand, asserts that the record shows that the Respondent was opposed to organization of the garage employees and that supervisors knew of the union activity and FISCHBACH TRUCKING CO. ' 1035 McCall's leading role therein prior to his discharge, and that .the discharge was motivated by the Respondent's desire to rid itself of the most active proponent of the Union in the garage. The Respondent, in its brief, states that the "evi- •dence . . . is fairly clear" regarding the discussions about union activity "certain officers and supervisory personnel" had with "some of the garage employees." We turn then, to an analysis of the evidence, summarized above, to ascertain whether the Respondent, prior to McCall's discharge, had knowledge of the union 'organi- zational efforts of its employees and, in particular, of McCall's involvement therein; and whether the Respondent was motivated by antiunion and discriminatory con- siderations in terminating him. In so doing, it will be necessary to resolve certain conflicts in the testimony and to consider as well the statements and questions of supervisory personnel regarding employee union activity. As we have seen, the large majority of the Respondent's employees, city drivers and over-the-road drivers, both in Akron and companywide, has for more than 20 years been represented for collective-bargaining purposes by Local 24 or, in the case of city drivers at terminals other than Akron, by some other local of the Teamsters. The 12 or 14 Akron garage employees, on the other hand, have been unrepresented, although there have been several unsuccessful efforts to organize them in years prior to 1965. Indeed, a consent election among the Respondent's garage employees, on petition by Local 24, was held on November 17, 1965.13 It is in this context that we must assess the evidence bearing on motive and the Respondent's awareness of organizational activity. When McCall was hired in February, he was told by C. B. Fischbach that the garage was unorganized and he volunteered that he was a member of Local 24 but had been on withdrawal status for 2 years Bill Fischbach also told McCall, at the time he was employed and the work procedures in the garage were being explained to him, that "we were nonunion in the garage." McCall was interested in having Local 24 become the representative of the garage employees, and in May or June spoke to the president of the local about this. Around the first of September dis- cussions occurred among the garage employees about the desirability of attempting to obtain union representation; Cogar, employed in the trailer section and not a member of the Union, went to the Union's hall on' September 1, after 'he was off shift, and obtained a supply of authorization cards which he turned over to McCall at the garage on the same day. Thereafter, and prior to McCall's discharge on September 23, McCall and Mutch passed out cards to fellow employees. There is no evidence that either McCall'or Mutch was particularly secretive in their activity; in any case, there is evidence, which I credit, that employees who received cards brought this fact to the attention of supervisors. Employee Cole, one of the oldest in point of service, testified that he consulted with Proffit after McCall had given him a union card some 8 or 10 days before McCall was discharged. While Proffit testified he had no knowledge, prior to September 23, of union cards being circu- lated, he was not questioned about the conversation which Cole testified they had had before September 23 in which Cole revealed that he had received a card from McCall and was uncertain whether or not to sign it. I credit Cole, who impressed me most favorably as a witness, and find that he and Proffit, as Cole testified, had a "general conversation about union activity" some 8 or 10 days before Septem- ber 23, during which Cole disclosed that he had received a card from McCall and was uncertain whether to sign it. In the conversation between Cole and C. B. Fischbach which occurred after McCall's discharge-on September 24 according to Cole and during the week after the discharge according to Mr. Fischbach-there was, both witnesses agree, discussion of the 'reasons for McCall's discharge and the union activity which coincided with it. The critical question here is whether Fischbach `said, as Cole testified, that he had known for " some time" before releasing McCall that there was union activity among the garage employees. Cole's recollection of the time and content of the conversation, I am persuaded , is more reliable than that of C. B. Fischbach or Bill Fischbach, who also was present. Thus, C. B. Fischbach had no clear recollection whether or not he had told Cole he had known about the union activity for some days before McCall's discharge ; he testified that he did not "believe that I made such a statement" as was attributed to him by Cole. Bill is Case 8-RC-6108. The Board's official records, of which I take notice, show that the case is still pending in the Regional Office as the results of the balloting were inconclusive- of 13 votes cast, 6 were for and 6 were against the Petitioner, and 1 vote (that of McCall) was challenged 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fischbach, who testified before C. B. Fischbach, quite hesitantly answered the question whether C. B. Fischbach had said he had "known for a few days that there was activity for the Union among the mechanics," by saying "to the best of my knowledge" C. B. Fischbach did not make the statement. Considering the admitted interrogation of employees promptly after McCall' s termination, it also seems more probable that management would attempt to "get the facts straight"- as C. B. Fischbach put it-with an older employee such as Cole, as promptly as possible, rather than during the succeeding week. I therefore accept Cole's testi- mony in this regard and find that C. B. Fischbach told him on September 24 that he had known of McCall's union activity before the decision was made to discharge him. As in the case of Cole, employee Mutch, also still employed by the Respondent, appeared to me to be a forthright and truthful witness, with a good recollection of the events in which he was a participant. His testimony is that C. B. Fischbach, besides asking him on September 23 what he knew about the "union business that was going on" and stating that McCall was let go because he did not do his work properly and wandered about the shop too much, stated that every 4 or 5 years "we get somebody with this union idea in their head, and we have to let him go." C. B. Fischbach placed the conversation as occurring in the week after McCall's discharge, the day before his conversation with Cole, and said that Mutch approached him and asked why McCall was fired. I think it unlikely that a young and new employee, who was associated with the leader in the union activity and who, when asked what he knew about it and whether he was involved professed ignorance and noninvolvement, would, as C. B. Fischbach testified, take the initiative in asking the president of his employer why the most active union proponent was fired. Especially is this so here, in my view, considering the fact that earlier in the day on September 23 Mutch had been told by McCall that he had been fired and Mutch had overheard Garage Manager Bill Fischbach question employee Johnson about his knowledge of union activity and had observed Bill Fischbach and Wall, both supervisors, conversing with employee Yerrick who handed over to them a union authorization card. I accept the testimony of Mutch as to the time he talked with C. B. Fischbach about McCall's discharge and the extent of his knowledge of and participation in union activities and find that this occurred on September 23. I -also believe Fischbach in substance stated, as Mutch testified, that periodically "somebody with this union idea" is employed in the garage and the Respond- ent has "to let them go." It may be observed that, even on Fischbach' s version, he told Mutch, with reference to organizational activity, that he "didn't know why or how these things got started," thus plainly indicating an awareness of McCall's union activity in the shop and the likely tendency of the employees to entertain the thought that McCall's activity was an operative factor in his termination. The burden of C. B. Fischbach's account of his separate conversations with Cole and Mutch, and with Nutter as well, is that he wished to disabuse them of any notions they may have entertained that McCall was discharged because of his activities on behalf of the Union. Cogar's uncontradicted testimony, which I credit, is that during the evening of September 21 Pat Fischbach, the night manager, upbraided him for conversing with McCall, saying that if Cogar "kept talking to him, I could be looking for another job." In all the circumstances, I think it a proper inference, which I draw, that this remark was not merely a warning about loafing but, rather, revealed that in the eyes of mangement association with McCall made an employee suspect. Upon the basis of the foregoing findings, and upon the record as a whole, I am persuaded and find that the Respondent's principal officials-C. B., Pat, and Bill Fischbach-were aware of union activity among the garage employees and specifi- cally of McCall's role as the leading union supported, prior to the morning of September 23, when C B. Fischbach decided McCall should be terminated at the end of his work day.14 As we have seen, officials and supervisors of the Respondent, both before and after McCall's discharge, interrogated employees regarding their knowledge of and 14 In so finding, I have not relied on the fact that the Respondent 's garage has only 12 or 14 employees and that in these circumstances the "small plant doctrine" supports an Inference of employer knowledge of union activity, as urged by the General Counsel. In my view, as stated above, the fact that the Respondent had knowledge is established by direct evidence, and therefore it becomes unnecessary to draw inferences with respect thereto. FISCHBACH TRUCKING CO. 1037 participation in activities in support of the Union. In the circumstances of this case, I find such questioning violative of Section 8(a)(1), as tending to restrain and coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. Coming within the interdiction of the Act, I find, were (1) C. B. Fisch- bach's questioning of Mutch and Cole on September 23 and 24, respectively, and Nutter on September 25; (2) Bill Fischbach's inquiry of employees Johnson and Bostaph on September 23 as to what they knew of the union activity; and (3) Dis- patcher McGinnis' inquiry of Mutch on September 25 whether he had signed a ,card or had had anything to do with the organizing effort, coupled with the advice, as Mutch credibly testified, that Mutch should refrain from union activity because if the Union came in there "would be no place in the shop" for Mulch because he was not a skilled mechanic. I find equally violative of Section 8(a)(1) of the Act C B. Fischbach's statement to Mutch that in the case of employees "with this union idea in their head" the Respondent has "to let them go," and the statement of Bill Fischbach to employees Cogar and Haycock, at the Anchor Inn meeting on September 27, that he feared that if the Union were successful in organizing the garage employees C. B. Fischbach would "up and sell"=the business "and all of us would be out of a job." 15 Finally, I come to the conclusion, viewing the record as a whole and consistent with the resolution of testimonial conflicts I have made, that a substantial reason for the termination of McCall was his known interest in and active support of the Union. While I have no doubt that there were occasions during McCall's period of employment, as testified to by C. B. Fischbach and others, when he was observed visiting with other employees and thus subject to reprimand, the same was true of other garage personnel.is I find no persuasive evidence that McCall, during the last month of his employment when he was active in behalf of the Union, became less attentive to his work than theretofore. As I view the situation, it seems more plausible to infer that the Respondent's supervisors in this period came to associate such "visiting" as he did with organizational efforts by him. Nor does the evidence establish that Respondent regarded McCall's work on private cars as warranting his termination. As I have found, McCall did not do this on the Respondent's time. While it appears that he did not confine this activ- ity to Saturday afternoons, no objection was raised by the Respondent and the record shows that other employees also did not strictly follow the published rules on this subject. The Respondent in effect admits that-contrary to the explanations given employ- ees for McCall's discharge, which were inattention to work and working on private cars in violation of regulations and on company time-these factors were at best only contributing considerations. The "immediate factor" was "McCall's attitude evidenced by his statements concerning looking for another job." That McCall shortly after being reprimanded by C. B. Fischbach on September 22 should say to Clepper that he was disgusted and if he could find a better job would take it, seems a natural reaction. Even assuming that the report given C. B. Fischbach was that McCall had said that if he did not come to work on September 23 it would be because he was looking for another job, that is not, it seems to me, convincing evi- dence of "a complete negative approach" on his part that should lead to a conclu- sion that it was fruitless "to go further with" an employee "m that frame of mind." The fact is that McCall reported for work on September 23 and this was known to C. B. Fischbach before he decided to terminate McCall. Aside from McCall's 1 In regard to this finding I have accepted the testimony of Cogar, rather than that of Bill Fischbach or Haycock, as more nearly consistent with the probabilities. Moreover, on this particular meeting the version of Cogar impressed me as having the ring of truth, whereas those of Fischbach and Haycock seemed in some respects artificial and unnatural in the context and considering that the three men were in a restaurant booth discussing, primarily, the possibility of a strike being called because of McCall's discharge. le Thus, in the September 23 bulletin to all mechanics , Bill Fischbach stated: At times our garage is a pitiful thing to watch in action. It is no exaggeration to find 50%n of the men in the garage idle, or nonproductive at given times. Exactly the same words appear in the bulletin dated November 12, 1964 Bill Fischbach testified that the criticism leveled at McCall was, to much the same degree, applicable to others. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remark to Clepper,, there: is no evidence that McCall's attitude .toward his work or his job performance after the reprimand was such that the conclusion, could reason- ably be drawn that he was unsuited for. further employment.17 I am, of course, aware that an employer may discharge an employee "for a good reason, a poor reason, or no reason at all, so long as the terms of the statute are not violated," N.L.R.B. v. Condensor Corporation of America, 128 F.2d 67, 75 (C.A. 3), and that the burden is on the General Counsel to prove by a preponder- ance of the evidence that the Respondent's discharge of McCall was motivated by antiunion considerations. Here, I am satisfied that the burden has been met. The Respondent knew of McCall's leading role in, promoting the Union among the garage employees, whom it desired to remain unorganized. It interrogated them concerning their knowledge of and participation in union activity. The reason principally relied on for discharging McCall, that his attitude in expressing disgust with the Respondent after being reprimanded and stating that he might seek other employment demonstrated his unsuitability as an employee impresses me, in the context of this case, as pretextuous. Upon, the entire record_ 1 find that a substantial motive of the Respondent in dis- charging McCall, apart from his work performance and alleged "negative" attitude, was his known efforts in promoting the Union among the garage employees. I find, therefore, that in discharging him the Respondent violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection 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 certain unfair labor practices, it will be recommended that it cease and desist therefrom and take appropriate affirmative action in order to effectuate the policies of the Act. Since I have found that the Respondent discriminatorily discharged Robert McCall, Jr. on September 23, 1965, it will be recommended that Respondent offer him immediate and full reinstatement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and make him whole,for any loss of earnings he may have suffered from the date of the discrimi- r_ation to the date of the Respondent's offer of reinstatement. The backpay shall be computed in accordance with the formula approved in F. W. Woolworth Com- pany, 90 NLRB 289, with interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the root of employee rights safeguarded by the Act, it will be recom- mended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in 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. Fischbach Trucking Co. is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chaffeurs, Warehousemen and Help- ers of America, Freight Drivers, Dockworkers and Helpers Local Union No. 24, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Robert McCall, Jr., thereby discouraging membership in the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor, practices within the meaning of Section 8(a)(3) of the Act. 17 Indeed, there was no opportunity to observe McCall and ascertain, on the basis of his work performance, whether he had or had not benefited from the criticism given him on September 22. FISCHBACH TRUCKING 'CO. 1039 4. By the foregoing conduct and by.coercively interrogating its employees con- cerning, and by threatening them with sale of the business and loss of employment because of, their union membership and activities, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act: 5. The afoiesaid 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 above findings of_fact •and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, Fischbach Trucking Co., Akron Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Freight Drivers, DockworKers and Helpers Local Union No. 24, or any other labor organi- zation, by discriminatorily discharging any of its employees or otherwise discrimi- nating in regard to their hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating or threatening employees with sale of the business or loss of employment or with discharge because they engage in union activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-mentioned Union or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act. (a) Offer to Robert McCall, Jr., immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth above in the section entitled "The Remedy" for any loss of earnings suffered by reason of the discrimi- nation against him. (b) Notify the said Robert McCall, Jr., if presently serving in the Armed Services of the United States, of his right to full reinstatement, upon application after dis- charge from the Armed Services in accordance with the Selective Service Act and tlic Universal Military Training and Service Act, as amended. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary and pertinent to analyze the amount of backpay due and ascertain the right to reinstatement, under the terms of this Recommended Order. (d) Post at Respondent's place of business in Akron, Ohio, copies of the attached notice marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Director for Region 8, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.19 "In the event that this Recommended Order is 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 is 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." 10 In the event that this Recommended Order is adopted -by the Board , this provision shall be modified to read : "Notify the Regional Director for Region 8, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Freight Drivers, Dockworkers and Helpers Local No. 24, or any other labor organization, by discriminatorily discharging any of our employ- ees, or by discriminating in any other manner in regard to our employees' hire and tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate our employees concerning their. union membership or activities. WE WILL NOT threaten employees with sale of the business, discharge, or any other reprisals because of their union activities, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above- named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activ- ities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. WE WILL offer to Robert McCall, Jr., immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his se- niority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named union or any other labor organization. FISCHBACH TRUCKING CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, 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, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465. Schott's Bakery, Inc. and American Bakery and Confectionery Workers' International Union, AFL-CIO. Case 23-CA.-2052. June 23, 1966 DECISION AND ORDER On March 4, 1966, Trial Examiner Robert Cohn issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and 159 NLRB No. 91.