Luisi Truck Lines

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW I have found that the Company is an employer engaged in commerce within the meaning of the Act and that the Union is a labor organization within the meaning of the Act I have also tound that Robert M Parker is an individual employee within the meaning of the Act. Finally, I have concluded that a preponderance of the evidence on the record as a whole does not sustain the allegation that Parker was suspended, in June, 1964, or discharged, in September, 1964, in violation of Section 8 (a)( I) and (3) of the Act RECOMMENDATIONS It is recommended that the complaint alleging violations of Section 8(a)(1) and (3) of the Act with respect to Robert M. Parker be dismissed. Luisi Truck Lines and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 524, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Independent. Case 19-CA-30041. Ait- gustt 15, 1966 DECISION AND ORDER On April 27, 1966, Trial Examiner Wallace E. Royster 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 certain affirmative action, as set forth in the attached Trial Examin- er's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The Charging Party filed an answering 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 [Chairman McCulloch and Members Brown and Zagoria]. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the find- ings,, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. I The Respondent's exceptions to the Trial Examiner's Decision are directed, in part, to the credibility resolutions of the Trial Examiner We will not overrule the Tiial Exam- iner's resolutions as to credibility unless a clear preponderance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warianted here Standa,d Dry Wall Products, 91 NLIti: 544, enfd 1188 F 2d 362 (C A 3) 160 NLRB No. 45. LUISI TRUCK LINES 531 1. The Trial Examiner found, and we agree, that the Respondent independently violated Section 8(a) (1) of the Act by threatening to move its operation from Yakima, Washington, by promising pre- ferment to those who opposed the Union, by threatening discharge of union supporters, and, in a context of intimidation, by interrogating employees regarding their union membership and activity. 2. We also adopt the Trial Examiner's finding that the Respondent violated Section 8(a) (5) of the Act by refusing on and after Octo- ber 28, 1964, to recognize and bargain with the Union as the majority representative of its employees in the appropriate unit. The Trial Examiner found that the appropriate unit encompasses all drivers and maintenance employees at Respondent's terminal at Yakima, Washington, and, that the parties agreed as to the appropri- ateness of that unit. The Respondent contends that it never agreed that this unit is appropriate and that in fact it is not appropriate. We find no merit in these contentions. In the first place, paragraph 8 of the complaint alleges that a unit of all truckdrivers, helpers, and maintenance employees at the Respondent's Yakima, Washington, terminal, was appropriate, and the Respondent's answer admits this allegation of the complaint. At the hearing, the Respondent made no effort to amend its answer. Further, we find, as did the Trial Examiner, that a unit of truck- drivers, helpers, and maintenance employees at Respondents' Yakima, terminal is an appropriate unit. In so doing, we rely on a number of compelling factors not detailed by the Trial Examiner, but ade- quately set forth in the record, which militate in favor of a unit limited to the Yakima terminal. Thus, the Yakima terminal is approximately 130 miles from the Respondent's other terminals at Walla Walla, Washington, and Milton-Freewater, Oregon; 2 there is only minimal interchange of employees between the Yakima terminal and the other terminals; there is no bargaining history for employees at any of the terminals; and no labor organization is seeking to rep- resent employees on a broader basis. Under these circumstances, we believe that a unit confined to the Yakima terminal will assure to employees the fullest freedom in exercising the rights guaranteed by the Act .3 The Respondent also contends that it was justified in refusing to accord recognition to the Union because the Union's demand for rec- ognition was ambiguous in that it appeared to encompass the employ- ees at all three of the Respondent's terminals, rather than at the single terminal at Yakima. The Union's telegram to the Respondent dated 2 We note that at the time of the Union 's demand for recognition , October 26, there were 10 employees at Yakima, about 3 employees at Milton-Freewater , and apparently only a few, if any, at Walla Walla. 3 See Dixie Belle Mills, Inc., et at., 139 NLRB 629. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 26, 1964, requested recognition as bargaining representative of the Respondent's employees in a unit of truckdrivers, helpers, and maintenance employees. Although the Respondent's president, Luisi, testified that when lie received this request he was uncertain as to the extent of the bargaining unit in which the Union claimed recognition, the Trial Examiner refused to credit this testimony, concluding that the Respondent "was never in honest doubt" about the scope of the unit encompassed by the Union's demand. We agree with the Trial Examiner that the Respondent knew that the Union's demand was intended to, and did, embrace only the employees at the Yakima terminal. We note initially that the tele- gram requesting recognition was sent by a Yakima local of the Union, through the Yakima Western Union Office, and was directed to the foreman of the Respondent's Yakima terminal. Furthermore, Luisi admitted at the hearing that he knew that Fred Wehde, who sent the telegram, was the representative of the Yakima Local, and that he knew that another individual was the business agent of the Walla Walla local. We rely, finally, as did the Trial Examiner, on the fact that Luisi threatened a group of his drivers that he would move the Yakima terminal to Oregon if the Yakima employees supported the Union, thus indicating that he knew that the Union was seeking to organize the employees at the Yakima terminal. In view of the Respondent's serious violations of Section 8(a) (1) which occurred subsequent to the Union's request for recognition, and as the Regional Director set aside the mail-ballot election conducted among the Respondent's employees in November and December 1964 because of the Respondent's objectionable conduct, we find, in agree- ment with the Trial Examiner, that the Respondent's refusal to rec- ognize and bargain with the Union which represented a majority of its employees was not in good-faith, but rather was for the purpose of gaining time to undermine the Union's majority. Accordingly, we find that the Respondent thereby violated Section 8(a) (5) of the Act.' In any event, even if the bargaining demand were ambiguous so as to preclude a finding that the Respondent violated Section 8(a) (5), we would nonetheless order the Respondent to bargain with the Union. We have found that the Respondent engaged in numerous unfair labor practices violative of Section 8(a) (1) at the same time that it was refusing to recognize the Union as representative of its employees. This fact makes it amply clear that the Respondent had completely rejected the collective-bargaining principle. As the Union 4 Joe/ ,Silk Bells, Pnc, 85 NLRB 1263, enfd as modified 185 F 2d 732 (C A D C ), cert denied 341 U S. 914 , Be) net Foam Pe odncts Co , lee, 146 NLRB 1277. LUISI TRUCK LINES 533 represented a majority of the employees in the appropriate unit, we find that only a bargaining order can restore as nearly as possible the situation which would have existed but for the Respondent's unfair labor practices.' Accordingly, we shall order the Respond- ent, upon request, to bargain with the Union in the unit found appropriate. [The Board adopted the Trial Examiner's Recommended Order, with the following modifications : [1. Delete paragraph 1(b) and substitute in lieu thereof the following : [" (b) Refusing to bargain collectively with the Union as the exclu- sive representative of its employees in the following appropriate unit : [All truckdrivers, helpers, and maintenance employees at the Employer's Yakima, Washington, terminal, but' excluding profes- sional employees, office clerical employees, guards, and supervisors as defined in the Act." [2. Add the following to the first indented paragraph of the notice : ...... The bargaining unit is : All truckdrivers, helpers, and maintenance employees, at the Employer's Yakima, Washington, terminal, but excluding professional employees, office clerical employees, guards, and supervisors as defined in the Act." [The Board dismissed the complaint insofar as it alleges viola- tions of the Act not found herein.] 5 Mock Road Super Duper, Inc., 156 NLRB 983, and cases cited therein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This matter was tried before Trial Examiner Wallace E. Royster in Yakima, Washington on October 7 and November 9, 1965. At issue is whether Luisi Truck Lines, herein the Respondent, has engaged in violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended.' Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Washington corporation with a place of business in Yakima, Washington, and is engaged in the transport of agricultural products by truck. In the course of its operations, the Respondent derives revenues exceeding $50,000 annually from the transport of farm products to points outside the State of Wash- ington. I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 A charge was filed December 1, 1964, and amended the following January 4 Complaint issued March 31, 1965 534 DECISIONS Ol+ NATIONAL LABOR RELATIONS BOARD It. THE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen & Helpers Local Union 524, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Independent, herein the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The setting The evidence concerning Respondent's bases of operation is somewhat hazy but it is reasonably clear that it operates trucks out of Yakima and Walla Walla, Wash- ington and out of Milton-Freewater in the State of Oregon. The principal com- modity hauled from Yakima is fruit and, as I read the testimony of Eugene Luisi, Respondent's president and active manager, the number of drivers working out of the Yakima terminal ranges from none during some months of the year to a peak of 12. The pea harvest provides employment for a short time to about 60 or 70 drivers but all of these haul from Walla Walla or Milton-Freewater. None of this group is brought to Yakima for employment. The Respondent has two men at Yakima busied in maintenance work. One of them goes to Milton-Freewater for about 2 months when the hauling is heavy from that base and then returns to Yakima. Walla Walla is about 130 miles from Yakima. Milton-Freewater is a few miles more distant. On October 26, 1964,2 Albert Studeman, Respondent's foreman in charge of the Yakima terminal, received a telegram reading: THIS TELEGRAM IS TO ADVISE YOU THAT TEAMSTERS, CHAUF- FE[U]RS, WAREHOUSEMEN AND HELPERS UNION LOCAL #524 HAS BEEN [D]ESIGNATED AS THE EXCLUSIVE BARGAINING REP- RESENTATIVE BY A MAJORITY OF YOUR EMPLOYEES IN THE FOL- LOWING DESCRIBED COLLECTIVE BARGAINING UNIT. ALL TRUCK DRIVERS HELPERS AND MAINTENANCE EMPLOYEES. WE ARE PREPARED TO MEET WITH YOU AT YOUR OFFICE ON WEDNES- DAY OCTOBER 28TH AT 10 AM. AT THAT TIME WE WILL PROVE THAT WE REPRESENT A MAJORITY OF YOUR EMPLOYEES F H. WEHDE SECY TREAS TEAMSTERS UNION LOCAL 524 Studeman did not get this message until after the close of the working day. He telephoned Luisi, who was away from Yakima, to inform him of its content. Luisi instructed Studeman to say nothing and to consult Respondent's attorney. On Sunday, October 25, a representative of the Union, Owen Ballinger, met with a group of Respondent's drivers and obtained signed cards from those in attendance designating the Union as bargaining representative.3 B. Interference, restraint, and coercion On October 27, the day after the telegram was received, Foreman Studeman testified that he asked Roy Welker what he knew about the Union. Welker said that he knew nothing. Studeman commented that he guessed Welker was not "in the clique." That day or the next, still according to Welker, Studeman asked him how he would vote. Welker said that he had been in the Union for a number of years and that the Union knew how he would vote. Studeman went on to say that he had to know by nightfall how every driver would vote; that those who voted for the Union would be out of a job, those who voted against it would be kept on. Studeman then said that if Welker would vote against the Union he could have his pick of the available jobs and trucks. On October 26, driver Ivan Henderson testified, Studeman and President Luisi, together, asked him if he had attended the union meeting. Henderson answered that 2 All dates mentioned hereafter are in 1964. 2 Ballinger testified that a total of seven cards were signed on this occasion in his presence. It developed at the hearing that one of these seven, bearing the signature of Ivan Henderson, was not signed until the following day, October 26 and then not in liallinger's view 'Henderson was uncertain about this date The Union's telegram was not received until the late afternoon of October 26 and Luisi was not at the terminal that day I find that Henderson had reference to a date after October 26 and probably to October 27. LUISI TRUCK LINES 535 he had not but that the rest of the drivers had. Studeman asked how Henderson would vote and he answered that he would vote for the Union. According to Hen- derson, 2 or 3 days later Luisi said that he did not care if the men voted for the Union and then, reversing this stand, said that if the terminal "went union" he would move the operation to Oregon and delay matters in the courts for a least 2 years. Luisi went on to say that he knew Henderson had 'been up to the union" and that he also knew how the men would vote. He, said that those who voted for the Union would be out of a job while those who voted against it would stay on the payroll. Finally, in seeming realization that he had spoken too freely, Luisi said, "I talk too much and I have got to look out for myself." Driver Donald R. Cross attended the union meeting. A designation card bearing his signature and the date of October 25 is in evidence. Shortly after the meeting, and again I find that the incidents about to be related must have taken place after October 26, Studeman asked Cross whether he intended to support the Union or his employer. Cross replied that there was no reason for him to answer.5 A few days later, Cross testified, Studeman told him that if he voted against the Union he could continue to work. Driver Ronald Davis testified that he signed a designation card . After the Union's telegram had been received ,6 according to Davis, Studeman told a group of the drivers, "Well, if you are all going to go union we will have to get a whole new crew." A day or two later, still according to Davis, Luisi told him that if the men persisted in their purpose to have a union he might close the Yakima terminal and move to Oregon. Foreman Studeman testified that he was "shocked" at the claim made by the Union in the telegram for he had been unaware of any dissatisfaction among the drivers. Despite the instruction from Luisi to say nothing, Studeman testified, he asked a group of the men on Tuesday morning, October 27, "who had been to the union and why .. ." Studeman denied in his testimony that he thereafter spoke to any of the employees about the Union and specifically denied that he asked Welker about the Union, that he said to anyone that he had to know by nightfall who was going to join the Union, that he promised Welker or anyone a choice of job or truck as a reward for opposing the Union, that he questioned Henderson about the Union, that he promised steady employment to Cross if he would vote against the Union, or that he threatened to replace the employees with a new crew. President Luisi denied that he made any threats concerning employment or threatened to move his operation to Oregon in an attempt to influence the attitude of Respondent's employees toward the Union. In answer to a question by Respond- ent's counsel, "Did you make any statements whatsoever concerning union activi- ties with any of the men?" he answered, "No, sir." Credibility problems are often difficult and even after resolution do not always leave the trier of fact wholly convinced that he has flailed the kernel of truth from the chaff. I am not faced with such a situation. The denials voiced by Studeman and Luisi of the remarks attributed to them by Welker, Henderson, Cross, and Davis were, I was convinced at the hearing and am now, wholly insincere and were uttered in such a manner as to indicate to me that neither Studeman nor Luisi had any genuine belief that their disavowals deserved acceptance. The testimony of wit- nesses for the General Counsel in that area was attended by the detail one might expect from an honest recital and carried conviction. It is credited. I find that on October 27 and on several dates thereafter, Studeman and Luisi interrogated employees concerning their connection with the Union and about their support for the Union, threatened removal of the operation from Yakima should the Union become bargaining representative, said that those who supported the-Union would lose employment, warned that persistence in supporting the Union might result in hiring a new crew, and promised steadier employment and a choice of trucks to those who would oppose the Union. By these interrogations, threats, warnings , and promises, the Respondent interfered with, restrained , and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. C. The refusal to bargain In its telegram of October 26, the Union asked for a meeting with the Respond- ent and said that it would on that occasion provide proof of its representative 5'Based upon the answer given on cross-examination. The answer on direct examination is confu,ed and ambiguous Davis said that this was a Monday morning He is mistaken 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status. Counsel for the Respondent by a letter dated October 28, answered the tele- gram saying in part that it questioned the Union's majority and the appropriate unit. The letter expressed the belief that the questions raised could be resolved through the processes of the Board and that if the Union gained certification nego- tiations would follow. On November 17 agreement for consent election to be conducted by mail by Board agents was reached. Counsel for the Union, following the close of the hear- ing and without proof of service on other counsel, has forwarded to me a docu- ment captioned "REPORT ON OBJECTIONS TO ELECTION" with the request that it be admitted into evidence. I have no doubt that this document is what it purports to be but aside from the fact that the other parties have no notice of this filing its materiality is not evident. It is rejected. The consent election agreement describes a unit consisting of "All truck drivers and maintenance employees." It was developed at the hearing, however, that there was no agreement that this meant only such employees who were stationed at the Yakima terminal. All parties now agree that a unit of drivers and maintenance employees at Yakima is appropriate and I find that it is. President Luisi testified that when he received the Union's telegram he was puzzled as to the 'extent of the bargaining unit in which the Union claimed it was entitled to recognition. He had drivers and maintenance employees at Walla Walla and Milton-Freewater as well. He asserted that he was also uncertain about the Union's actual majority in any unit and thus withheld recognition. I find that there was no uncertainty in Luisi's mind on either point. On October 27, in response to Studeman's question, Henderson said that all of the drivers but he had been at the union meeting. A few days later Luisi told Henderson that if the terminal "went union" he would move the operation to Ore- gon and made much the same remark to Cross. The threats to move indicate clearly enough that Luisi knew for what group the Union wanted to bargain; that it con- sisted of the drivers and maintenance workers at Yakima. Studeman also knew that it was the Yakima employees who had attended the union meeting. I conclude that Respondent was never in honest doubt about the scope of the unit for which the Union claimed authority to speak. The designation cards received in evidence bear the signatures of Martin Jacob- son, Gordon Miller, John Merrigan, Ronald Davis, Ivan Henderson, Don Cross, and Roy Welker. The testimony of Owen Ballinger that all of these signatures were affixed in his presence on October 25 is inaccurate in that Henderson did not sign until October 26 and then out of Ballinger's view. It is beyond doubt, however, that a meeting of Respondent's drivers did take place on that Sunday. Welker, Cross, and Davis signed cards on that occasion; Henderson did so the next day. The testi- mony of Ballinger about witnessing the signature of Henderson is not deceptive as to the actual fact for Henderson did sign. At worst it shows that Ballinger was somewhat careless in his testimony. Of course one may speculate that he was sim- ilarly careless in connection with the cards of Jacobson, Miller, and Merrigan but there is little reason to guess about this. The cards are in evidence and are regular upon their face. The Respondent, if it questioned the authenticity of the signatures, has not produced any exemplars (paycheck endorsements, tax witholding forms, or the like) which would serve to cast doubt upon them. The W-4 forms signed by Jacobson and Miller which came into evidence for another purpose appear to be signed by the same Jacobson and Miller who signed the designation cards. I find that, except for Henderson, Ballinger saw the signatures affixed to the designation .cards alluded.to above. Evidence about the number of persons employed in the bargaining unit at the time the Union requested recognition is somewhat less than precise. There is no dispute about the maintenance men, Glenn Wommack and Marvin Cheshier. Both, I find, were Respondent's employees on that date; both were encompassed by the bargaining unit; and neither had signed a designation card. Luisi testified that he had no drivers in his employ on October 26. Perhaps he meant that none of Respondent's trucks were operating in or out of Yakima on that date. I have examined the payroll records in evidence on this point and find that I am unable to conclude whether this was so. Perhaps Luisi was relying on Respondent's basic assertion that it just didn't have any employees in the category of drivers except when it paid a man to get behind the wheel and move a truck. The essence of this position is that all drivers were casual employees; that they had no reasonable expec- tation of employment from one trip to the next; and that the Respondent relied in large measure upon drivers for other employers who were available to the Respond- ent on off days from their regular employment. Respondent's payroll records show that in the month of October, Jacobson earned $243, Miller $409, Merrigan $310, LUISI TRUCK LINES 537 Davis $295, Henderson $500, Cross $155, Alton Wild $413, and Welker $560. All of these men worked regularly and Wild, Welker, Miller, and Henderson worked substantially full time. I find that in the month of October all eight were employees of the Respondent. At another point in his testimony Luisi identified a list bearing the names of Dale Arent,7 Donald Cross, Ronald Davis, Ivan Henderson, Martin Jacobson, John Merrigan, Gordon Miller, and Roy Welker as persons who had worked for the Respondent in the month of October. Why Wild's name was not included is unexplained. Finally, on or about October 29, a "seniority" roster was chalked on a blackboard in Respondent's office. According to the undenied and credited testimony of Roy Welker this list purported to set out the seniority stand- ings of Respondent's drivers at Yakima and thus to determine priority of assign- ment. Culling from the testimony of Welker, Henderson, Cross, and Davis and deducing that the name, "Jake" appearing on a picture of the list taken by Davis sometime after October 29, is shorthand for Jacobson, I find that the seniority ros- ter of the Yakima drivers on October 29 was: 1. Alton Wild 8 4. Donald Cross. 6. Ronald Davis 2. Ivan Henderson 5. Martin Jacobson 7. John Merrigan 3. Gordon Miller 8. Roy Welker As Welker who occupied the last seniority slot was hired in September, I conclude that everyone of the list was employed by the Respondent long before October 26. There is no evidence that any driver left Respondent's employ after October 26 and before the seniority list appeared and I conclude that on October 26 the Respondent had eight drivers working out of the Yakima terminal. Adding to the eight drivers the two maintenance employees, I find that the appro- priate bargaining unit at the Yakima terminal at all times material herein com- prised 10 employees and that the complement of employees on October 26 was fairly representative in number and classification of Respondent's fluctuating needs at that terminal. Seven of the ten employees in the unit had signed unambiguous designation cards which were effective, I find, to constitute the Union as bargaining representative. I find that on October 26 and thereafter, the Union was and has been the bargaining representative of Respondent's employees in the appropriate unit. The serious threats, promises, and interrogations directed to the drivers by Stude- man and Luisi detailed earlier in this Decision provide substance to the allegation of the complaint that the Respondent held no good-faith doubt about the Union's majority status. These violations of the Act demonstrate to me that the Respondent was unwilling to have the question of representation tested through the election proc- esses open to it. It sought rather to frustrate the movement toward organization by engendering fears of unemployment. I find that the refusal to accord recognition to the Union derived from a determination on the part of the Respondent to avoid its obligation to bargain and to implement this determination by unlawful actions. I find that by the refusal to recognize the Union on October 28, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. D. The discharge of Henderson Richard R. Greiner has been Respondent's counsel for a number of years. On October 16, Attorney Greiner caused a letter to be sent to the Respondent which read, "I thought instead of waiting until the end of the month to bill you on these Writs of Garnishment, I would send you an itemization now while these men are still with you." Then followed a list of nine garnishment ' proceedings involving the Respondent and its employees. Six of these had been served in October and two of them, both in October, involved Henderson. Greiner charged the Respondent $10 for each such matter handled. Greiner testified that he billed the Respondent in mid-month in order to call attention to the number of writs being served. I have some difficulty in crediting Greiner's testimony in this particular for it seems rather obvious to me that the letter was designed to notify the Respondent of the amount owed to Greiner and to afford it some chance-to, recoup, while opportunity to do so existed, the $10 fees from the employees involved. After the letter was sent, still according to Greiner, he told Luisi that garnishments were too expensive and that Luisi should terminate the employees who were responsible for these costs. Luisi, in 7 Arent last worked about October 1S and then apparently left his job 8 Henderson testified that Wild was first on the list. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this testimony, makes no mention of such advice. Sometime after the receipt of the Union's telegram and following a suggestion or direction of Greiner Studeman testified, he chalked a warning on the blackboard at the terminal to the effect that any employee whose wages were garnisheed would be dismissed. On November 16 another writ of garnishment was served upon the Respondent against the wages of Henderson . On the same date Greiner wrote to Henderson saying, in part: Please be advised that I am the, attorney for Luisi Truck Lines, Inc. This letter will serve as notification to you that I have instructed Luisi Truck Lines to remove your name from the availability list of drivers for that organization. The issuance of the Writ of Garnishment against you is contrary to company rules and regulations, both posted and in accordance with your Driver's Manual. Henderson testified that he did not see any notice on the blackboard relating to garnishments but conceded that an employees ' manual made some reference to such proceedings. Greiner' conceded in his testimony that he had never before undertaken to discharge any of Respondent's employees. He explained that he did so on this 'occasion because he "felt in view of-the-pending union matters, the labor matters, things of this•nature [he] should disassociate Mr. Luisi and management as much as possible." Henderson testified that the letter from Greiner was never delivered to him and that he learned of his discharge from Luisi. On this occasion Luisi told him, Hen- derson testified, that he could come back to work once he had arranged for the lifting of the garnishment. Luisi added, however, that there was not much work in prospect; that Henderson could expect no more than one or two trips a week. I do not doubt that the Respondent had promulgated a rule of some sort to warn employees that garnishments were regarded with disfavor. Henderson conceded that an employees' manual said something about garnishments; just what it said is unclear. Although Henderson testified that he saw nothing written on the black- board in this respect his testimony does not amount to a denial that there was such a notice The syllogism of the General Counsel appears to be; (1) Luisi threatened to discharge union supporters; (2) Henderson was such a person; and (3) his dis- charge therefore, was discriminatory. Greiner testified that he advised the posting of a notice warning employees that garnishments would constitute grounds for dis- missal . Whether this advice was given before or after the Union's request for recog- nition does not appear. Studeman testified that he chalked such a notice on the blackboard because of this advice and conceded that he did so after the Union's telegram had been received. The letter of discharge was composed and signed by Greiner so that Luisi might be "disassociated" from that action. Greiner had no responsibility for the day-to-day operations of the Respondent and his office in the corporation is apparently no more than titular. I am certain that Greiner wrote to Henderson only after discussing the matter with Luisi and after the latter told Greiner what action should be taken. This rather transparent attempt to make it appear that it was Greiner rather than Luisi who decided to discharge Henderson gives rise to the suspicion that there was something to be concealed; but I stop there. There is no reason to suppose that the Respondent's demonstrated patience and tolerance toward employees who incurred garnishments was inexhaustible. Evidence that employees were warned of the consequences of garnishments in retribution for their evinced interest in the Union is equivocal. Luisi told Henderson that he could keep his job if the garnishment was lifted .9 I conclude that the evidence does not by its preponderance establish that Hender- son's discharge was discriminatorily motivated. I shall recommend that the com- plaint in that particular be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in. section III, above, occurring in con- nection with its operations set forth in section I, above, have a close, intimate, and 6I think that the record does not permit a finding that Luisi's comment to the effect that there would be only one or two trips a week was a misrepresentation made with a purpose to insure that Henderson would not attempt to save his job. LUISI TRUCK LINES 539 substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent has unlawfully refused to bargain with the Union as the majority representative of its employees in an appropriate unit, it will be recommended that upon request the Respondent so bargain, and if agreement is reached with the Union reduce it to writing and sign it. 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. Luisi Truck Lines is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters, Chauffeurs, Warehousemen & Helpers Local Union 524, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to move its operation from Yakima, by promising preferment to those who oppose the Union, by threatening discharge of union supporters, and; in a context of intimidation, questioning employees concerning their interest in or activity in behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. All truckdrivers, helpers and maintenance employees employed at the Yakima, Washington, terminal, excluding professional employees, office clerical employees, guards, and supervisors as defined in the Act constitute a unit appropriate for pur- poses of collective bargaining within'the meaning of Section 9(b) of the Act. 5. On and since October 26,1964, the Union has been and now is the majority representative of Respondent's employees in the appropriate unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 6. By refusing on and since October 28, 1964, to recognize and to bargain with the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 8. The evidence does not establish that the discharge of Ivan Henderson was in violation of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, I recommend that Luisi Truck Lines, Yakima, Washington, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening to move its terminal from Yakima, Washington, should the employees designate the Union to represent them; offering preference to those who opposed the Union; threatening discharge or replacement of employees who sup- ported the Union; interrogating employees, concerning their activity in behalf of the Union or support of the Union; or in any other manner interfering with, restraining or coercing employees in the exercise of their right to self-organization, to form labor organizations, to loin or assist the Union or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. (b) Refusing upon request to bargain with the Union as the exclusive represent- ative of all employees in the appropriate unit. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request , bargain with the Union in respect to wages, hours, and other terms and conditions of employment, and if an agreement is reached reduce it to writing and sign it. (b) Post at its terminal in Yakima , Washington , copies of the attached notice marked "Appendix." 10 Copies of said notice , to be furnished by the Regional Director for Region 19 , Seattle, Washington, after being signed by an author- ized representative of the Respondent, shall be posted by the Respondent and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or cov- ered by any other material. (c) Notify the Regional Director for Region 19, in writing, within 20 days of receipt of this Decision, what steps have been taken in compliance." 10 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 be enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be subsittuted for the words "a Decision and Order." 11 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL recognize and upon request bargain collectively with Teamsters, Chauffeurs, Warehousemen & Helpers Local Union 524, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, independent as the exclusive bargaining representatives of all truckdrivers and maintenance employees working at the Yakima Terminal, and if we reach agreement on wages, hours of employment, and other terms and conditions of employment, WE WILL embody this in a signed contract. WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their right to engage in or to refrain from engaging in union activities by questioning them about their activity or support of the Union, offering pref- erence to employees who oppose the Union, threatening to move our terminal from Yakima, or threatening to replace the crew or to discharge union supporters. WE WILL NOT in any other manner interfere with,' restrain, or coerce our employees in the exercise of the right to self-organization , to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment in conformity with Section 8(a)(3) of the Act. All our employees are free to become or remain , or to refrain from becoming or remaining, members of any labor organization except to the extent mentioned above. Luisi TRUCK LINES, Employer. Dated ------------------- By------------------------------------------- (Representative ) ( Title) AMERICAN OIL COMPANY 541 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, 327 Logan Building, 500 Union Street, Seattle, Washington , Telephone 583-7473. American Oil Company and Local '7-776, Oil, Chemical and Atomic Workers International Union , AFL-CIO. Cases 14- CA-.3886,3919, and 3919-2. August 16,1966 DECISION AND ORDER On May 31, 1966, Trial Examiner Thomas A. Ricci issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint 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 Decision. 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 [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial. Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above -entitled proceeding was held before Trial Examiner Thomas A. Ricci on April 18, 19, and 20, 1966, at St. Louis, Missouri , on amended complaint of the General Counsel against American Oil Company, herein called the Respondent or the Company . The issue litigated is whether the Respondent vio- lated Section 8(a)(5) of the Act.' A brief was filed after the close of the hearing by the Respondent. 'The hearing started as a consolidated proceeding , with a complaint in Case 14-CA- 3541, also against the Respondent , joined with this one for a single hearing During the hearing the General Counsel announced that a settlement had been arranged in Case 14- CA-3541, and moved for severance The motion was granted, and the hearing in Case 14-CA-3541 was continued indefinitely pending compliance with the settlement agreement. 160 NLRB No. 46.