Overnite Transportation Co.

OVERNITE TRANSPORTATION COMPANY 461 because of the absence of an arguable labor dispute between it and the ILA and the asserted existence of a dispute with the foreign flag vessels. However, the incidence of such a dispute does not preclude the Board from rendering an Advisory Opinion with respect to the Employer herein. For while the Board does not presume to render an Advisory Opinion on the merits of any case or on the question of whether the subject matter of the controversy is governed by the Acts such procedures may be utilized for determining other jurisdic- tional issues confronting it as here, i.e., whether the commerce opera- tions of the Employer are such that the Board would assert jurisdiction over them, assuming, without deciding, that the matter in controversy is cognizable under Sections 8, 9, and 10 of the Act. Accordingly, the parties are advised under Section 102.103 of the Board's Rules and Regulations, Series 8, as amended, that, on the allegations submitted herein, the Board would assert jurisdiction over the Employer's operations with respect to disputes cognizable under Sections 8, 9, and 10 of the Act. 5 See Section 101.40 ( e) of the Board's Statements of Procedure ; Spears-Dehner, Inc., 139 NLRB 922 , 924; Upper Lakes Shipping, Ltd, 138 NLRB 221. Overnite Transportation Company and Carroll L. Matherly. Case 5-CA-3377. October 26, 1966 DECISION AND ORDER On July 20, 1966, Trial Examiner George Turitz issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision, and the Charging Party filed 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 [Chairman McCulloch and Members Fanning and Jenkins]. 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 161 NLRB No. 38. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's Decision, the exceptions and the brief, and the entire record in this case, and hereby adopts the findings," conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 2 'We hereby correct the inadvertent error of the Trial Examiner in referring to Davis instead of Matherly, at last line of paragraph entitled "Concluding Findings as to Matherly's Discharge " The telephone number for Region 5, appearing at the bottom of the notice attached to the Trial Examiner's Decision , is amended to read : Telephone 752-8460 , Extension 2159. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On April 12, 1966, a hearing was held at Martinsville, Virginia, before Trial Examiner George Turitz on a complaint against Overnite Transportation Company ("the Respondent" and at times "Overnite") issued by the General Counsel of the National Labor Relations Board ("the Board") through the Regional Director of Region 5. The complaint was issued February 25, 1966, on a charge filed by Carroll C. Matherly ("Matherly") and served upon Respondent on December 21, 1965. Respondent filed an answer to the complaint in which it denied all allega- tions of unfair labor practices. The General Counsel and the Respondent were represented by counsel at the hearing, at the conclusion of which both waived oral argument. Counsel for the General Counsel has filed a brief with me. The issues litigated at the hearing were various alleged threats and incidents of interrogation by Respondent, and the allegedly discriminatory discharge of Matherly. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Overnite Transportation Company is a Virginia corporation having its principal office at Charlotte, North Carolina, and having terminals and offices at locations in various States of the United States, including a terminal at Martinsville, Virginia. Respondent is engaged as a common carrier of freight by motor vehicle. In the course of its operations Respondent annually receives more than $50,000 for serv- ices performed in the transportation of goods between various States of the United States and for services which constitute a link in the chain of interstate commerce. It is found that Respondent is an employer engaged in commerce within the mean- ing of Section 2 (2), (6), and (7) of the National Labor Relations Act, as amended ("the Act"). II. THE LABOR ORGANIZATION INVOLVED Local Union No. 22, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen , and Helpers of America ("the Union") is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background In late December 1964 Respondent took over the operation of the Martinsville terminal of Rutherford Freight Line, which firm it had purchased the previous month. The person placed in charge of the terminal for Overnite was Joe Davis, who had operated out of the Martinsville terminal until that time as a contract carrier for Rutherford. On February 1, 1965, Marshall Price became terminal manager for Ovenite. Joe Davis remained at the terminal for several months to familiarize Price with the area and then was transferred to another Overnite terminal. On May 9, 1965, several Overnite employees came to the home of Kenneth Dickerson to meet an organizer from the Union. Matherly, Ronald Walker, and Dickerson signed union cards on that occasion, and on May 24, 1965, the Union filed a petition for an election in Case 5-RC-5178. On June 30 Respondent and the Union entered into a stipulation foi certification upon consent election which OVERNITE TRANSPORTATION COMPANY 463 on July 1 was duly approved by the Regional Director. The election was held on July 8, 1965 The tally of ballots showed that seven employees were eligible, and that two votes were cast for, and five against, the Union and that there were no challenges. No objections were filed and on July 16 a certification of results was issued by the Regional Director showing that a majority of the employees had not voted for the Union. B. Interference, restraint, and coercion 1. Through Price Benjamin Morris, an employee, testified that "three to four weeks before the election" Marshall Price pointed out to him that the Company's existing insurance was worth more than the Union's, that its retirement plan was better than the Union's, and that the general overall working conditions would be better without the Union; that on the other hand if the Union came and there was a strike he would be out of work; and that Price said, "If you vote for the Union, I will fire you, and it is your word against mine, if it ever comes up." Morris also testified that about October or November 1965, Price, after telling him that the Union had filed objections to the election which had been sustained and that there would be a new election, asked Morris to let him know if he heard anything about the new election. Ronald Walker, whose family were on friendly terms with Price, who visited their farm, testified that some 20 days after the meeting at Dickerson's house, which would be about May 29, Price told him that the previous day he had found out about the meeting and asked what had happened there. He told Walker that he wanted to find out about the Teamsters; he knew that Walker, Matherly, and Dickerson had signed cards; the Company did not like organized labor; and the Union had rascals working for it. Walker testified, further, that Price said that the Company would move out and even close all terminals before "going union"; that it did not surprise him that Matherly had signed a card but it did surprise him, and it made him sick, to learn that Walker had signed one in view of their friendship, but that he would not fire him then for signing the card. Walker apologized, explaining that he did not believe in unions but had signed in order not to have to cross picket lines in case of a strike. Price then promised that Walker would only have to do city work, and Walker promised to be with Price "all the way" when the election came up. Walker testified, further, that about July 1 Price told him that he had all the men with him except Matherly and Dickerson and asked if Walker would be with him, to which he replied that he would be with Price 100 percent. However, at the election Walker acted as observer for the Union. About 11/2 months later, he testified, Price called him to his office and told him that he hated for a man to lie to him and that he hated a liar." Price admitted generally to the preelection remarks about Respondent and the Union ascribed to him by Morris except that he denied threatening to discharge Morris if the latter voted for the Union. He also denied telling Morris later that a new election was to be held or asking Morris to let him know if he heard any- thing on the subject, saying that Morris' testimony at the hearing was the first he heard of any talk about a protest to the election. Morris' testimony about Price's conversation with him in October or November concerning a new election has an element of improbability in that he testified that Price said that the occasion for such new election was that the July 8 election had been set aside . As Price had participated actively in the case and thus knew that no objections had been filed, Morris' testimony necessarily was inaccurate in one way or another. Moreover, the testimony as given did not even make out an unfair labor practice since, if the election had been set aside, Price's request for informa- tion would have referred to Board action rather than to union activity. With respect to the various threats that Morris testified were made to him by Price, as well as those by David, he testified that "they took place three to four weeks before the election." The election was held on July 8, so that 3 weeks before the election was June 17, which was 5 days more than 6 months prior to the filing of the charge. It will, accordingly, be recommended that the allegations of the complaint which are based on the various conversations which Morris testified he had with Price and with Davis be dismissed.' 'These are, paragraphs VI (b) and ( d) and paragraph VI (a), insofar as it relates to Morris' testimony as to a conversation with Price 3 or 4 weeks before the election. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Price sweepingly denied talking to Walker at all about the Union , and brushed aside his testimony as "all lies." 2 So far as is disclosed by the record Walker had nothing to gain by so grossly misrepresenting the fact . On the contrary, if he had done so he would have placed himself in a most unhappy situation since he was still employed by Respondent, and his family was at times visited by Price. It is improbable that Walker, a young man, would manufacture an entire tissue of lies about Price, as Price, an interested witness, claimed ? The foregoing considerations and the manner in which Walker testified have convinced me that Price made the various statements which Walker attributed to him.4 2. Through Tom Davis On September 9, 1965, Tom Davis, a brother of Joe Davis, was made warehouse supervisor and dock foreman for Respondent. He was placed on salary at a sub- stantial increase in pay and from that time on was admittedly in charge of all personnel and equipment, gave the men their instructions , and was responsible for seeing to it that freight, both incoming and outgoing , was properly handled. Respondent apparently does not contend that Davis 5 was not a supervisor following September 9. Prior to September 9 Davis did loading and driving and had the same wage rate as a number of the other men. At least up to about the date of the election Respondent had only seven employees in the terminal , including Davis, two road drivers, and four local drivers . In the absence of Price, which happened several times each week, Davis was the person in charge of the terminal . On those occa- sions, in addition to taking all telephone calls that came in, he had authority to give the men instructions, and he saw to it that the work was done and was done right. Price testified that Davis simply took it upon himself to do these things but he testified specifically, . Tom spoke for me in case I wasn't there...." Sometime prior to the election Davis requested Matherly and some other employees to work a split shift but they refused and Davis did the needed work, assisted by one of the men . Price testified that he considered that an act of insubordination on Matherly's part.6 On June 30, 1965, in connection with the execution of the stipu- lation for certification upon consent election referred to above, Price and James H. Arrington, secretary-treasurer of the Union, executed a stipulation the body of which read as follows: It is hereby stipulated that those individuals on the attached eligibility list signed on June 30, 1965 are all eligible to vote and will not be challenged. It is agreed that the eligibility issues resolved therein are final and binding on the parties and are not in whole or in part contrary to the Act or established Board policy. There followed a list of seven names, the first of which was Thomas Davis, and Davis voted in the election without challenge . At the hearing counsel for Respondent contended that the stipulation settled the issue of Davis' supervisory status. The stipulation was made in order to settle only one question , namely, who could vote. As none of the allegations in the complaint are based upon any findings made in the representation proceeding , and as the present case cannot affect the representa- ' Price insisted that Morris was the only employee with whom he discussed the Union, explaining that Morris was recently hired and thus unfamiliar with the benefits which Respondent provided for its employees. 8 Walker's "lies" to Price about where he stood in the election, emphasized by Respond- ent's counsel on cross -examination , do not affect his credibility as a witness . The compul- sion many employees feel to conceal their stand on unionization from their employers has received judicial recognition . See Burne Co v. N.LR.B, 332 F.2d 47, 48 (C.A. 2). 'In reaching this conclusion I have given consideration to the fact that Price did not react to Walker ' s acting as the Union ' s observer e Only Tom Davis will be referred to as "Davis." 'At one point in his testimony Price said that he had specifically instructed Davis to have Matherly do the extra work However this was to an extent inconsistent with his previous testimony to the effect that the reason he spoke to Davis , when he found out that Davis had done the extra work, was that Davis had already worked many hours. In any event there is no evidence that Matherly was told that the order had come from Price, or that Price thought that Matherly had been so informed OVERNITE TRANSPORTATION COMPANY 465 tion proceeding, there is no reason why the stipulation should be deemed to have settled the issue of Davis' supervisory authority for the purposes of the present case 7 Since Price relied on Davis for getting the work done and getting it done prop- erly, and for giving the men orders in Price's absence, and as he regarded Matherly's refusal to comply with Davis' request to work a split shift as an act of insubordination, it is found that Davis was a supervisor within the meaning of the Act, and an agent of Respondent, for some time prior to September 9, 1965. While the record does not disclose the exact time when Davis acquired supervisory authority, he plainly had such authority at the time of the split-shift episode, which occurred, according to the only testimony on the point, ". . . back over in the old terminal" and ". . . way back before the election." As all the unfair labor prac- tices in issue are alleged to have occurred on or after June 21, 1965, it is found that Davis had supervisory authority at all times material to the allegations of the complaint. Morris testified that while he was riding back and forth to work with Davis, the latter told him to vote for Overnite if he wanted to hold his job and said that Respondent would fire him if he voted for the Union. He also said that if the Union won the election, the terminal would be closed and the operations moved to Respondent's terminal in Danville, which is located about 30 miles from Mar- tinsville. As already indicated it will be recommended no unfair labor practice be found based upon this incident since the witness placed it more than 6 months prior to the filing and serving of the charge. On the day of the election, about 2 hours after its completion, Davis remarked to Walker that he thought that Matherly was one of the two union voters and he asked who he thought the other one was. When Walker suggested Kenneth Dick- erson, Davis replied that he had spoken to Dickerson and found him to be "with the company." He then said, "I think I know who the two men were." C. The discharge of Matherly Matherly worked as a driver for Joe Davis while the latter was a contract carrier for Rutherford and he became an Overrate employee when Respondent took over the Martinsville terminal. He made a regular daily local run to Rocky Mount, some 30 miles from the terminal. As a local driver he made the final deliveries of freight to consignees, as well as pickups from shippers. Matherly and Joe and Tom Davis were all members of the International Brother- hood of Teamsters. They were friendly with each other, knew of each other's union membership, and discussed union matters. Both Davises were convinced that Over- nite was strongly antiunion, and during the period before Overnite took over the operation of the terminal they cautioned Matherly that he had better not "talk union" after Overnite came in or he would be fired.8 As already stated, Matherly was one of the employees who had attended the first organizational meeting at Dickerson's house on May 9. He convinced at least Walker "into the union," and Tom Davis was certain that Matherly was one of the two employees who had voted for the Union in the Board election on July 8. On November 29, 1965, the middle finger on Matherly's hand was fractured while he was working on Respondent's loading dock. Davis took Matherly to the hospital, where his finger was placed in a steel splint. He was still able to bend the finger at the palm of the hand and his physician instructed him that he could continue working but that he was to be careful to avoid reinjuring the broken finger. He returned to the terminal within 2 hours and assured Price that he could carry on with his work. Matherly did in fact continue to operate his route to Rocky Mount and was able to drive and to do most of the work required. How- ever, when he had heavy freight to lift by hand, other men loaded and unloaded it for him, both at Respondent's terminal and at the loading platforms of the various consignees and shippers. It is found, in accordance with Matherly' s testi- 4 See J. M. Machinery Company, 155 NLRB 860. s Walker received the same advice from them shortly after Price became terminal manager. 2 6 4-18 8-6 7-v o f 161-31 466 DECISIONS :OF NATIONAL LABOR RELATIONS BOARD mony, that during the period from November 29 to December 9 Matherly did refrain from lifting heavy freight by hand .9 Price discharged Matherly on June 10, 1965. He testified that the reason was insubordination in that (a) he called his supervisor, Tom Davis, "a goddam lying son of a bitch," and (b) he'refused to load a trailer. The incident in question occurred on December 9 at a Dupont nylon plant which was located in Martins- ville about 4 or 5 miles from the Overnite terminal and for which Respondent carried freight regularly. On that night Respondent had to load one trailer there with "miscellaneous freight," consisting of cases of nylon weighing 90 to 135 pounds each, and a second, larger, trailer with spools of nylon known as drawline, which came in cases weighing 300 or 400 pounds each. It also had at least one trailer load of freight to deliver and unload at the Dupont plant. All this was in addition to other work that had to be done at Respondent's terminal. It is to be inferred that December 9 was a busy night for the Martinsville terminal. Matherly returned from his Rocky Mount run about 5:30 p.m. and was ordered to take two trailers and two men to the Dupont plant for the loading. He drove the two employees over in one of the trailers and left them there while he went back for the second trailer. There followed a series of errors-not Matherly's- which necessitated the unloading and reloading of the "miscellaneous freight" twice in addition to its final, correct, loading.1e In an effort to avoid the first unloading- reloading operation Matherly called Davis to suggest the utilization of a third trailer, the one with the load being delivered to Dupont, but this turned out to be unfeasible. In some manner not apparent in the record Matherly and Davis got into a quarrel over the question of Matherly personally helping with the unload- ing and loading of the freight. Matherly insisted that he could not handle it because of his injured finger and that he would not do soil Some time after this-conversa- tion Price telephoned the Dupont plant and asked Tawney what Matherly was doing. Price testified that Tawney said he was sitting in the drivers' room, and that he had "straightened up the a coupla pallets and went back and signed the bills." Tawney testified that when Price telephoned he asked merely where Matherly was; that he replied that he did not know but would find out; and that after finding Matherly at the bill window, where bills of lading were signed, he so informed Price. Earlier, however, Tawney had testified that after Matherly's conversation with Davis he and Matherly, after doing some unloading of the smaller trailer, both went to the office to sign the bills of lading, a procedure which he said took 5 to 10 minutes, and that they then returned to complete the unloading, after which Matherly went back to the terminal with the truck. In view of this incon- sistency, it is found that Tawney reported to Price as testified by Price. According to Matherly, Tawney, and Walker, Matherly, after signing the bills of lading, helped with the unloading by "breaking out" stacks of the containers onto hand- trucks known as "two-wheelers." Then, in accordance with instructions, he helped move a heavy rack out of the trailer and helped place it on a small truck which he drove back to the terminal. At the terminal Matherly worked with Davis, helping with the loading of the rack and 11 cases on another trailer. After 10 or 15 minutes Price called Matherly 5Price testified that during this period lie observed Matherly "handling" heavy as Hell as light freight However, Davis, not Price, was the person who supervised the loading dock. Price thus was not apt to observe whether, or to what extent, Matherly was being assisted by others. Moreover he admitted that he did not recall seeing Matherly handle the freight without the use of freight-handling equipment Davis, who no doubt did observe Matherly's work on the dock in a meaningful way during this period, did not testity on the point. w First the men loaded the miscellaneous freight on the larger trailer, which was needed for the drawline. Then, when they transferred the misloaded miscellaneous freight to the smaller trailer, they stowed it as they took it off the larger trailer so that it was in the reverse order from what was required , with the cartons which were to be delivered first in the last position, and vice versa. n In cross-examining General Counsel's witnesses counsel for Respondent tried at length to establish that Matherly told Davis that he would not handle the freight, not that he could not. As the witnesses all testified that Matherly said the reason was his broken finger, it made no material difference whether he said "would not" or "could not" ; In either case Matherly was refusing to handle the freight because of his partial disability and the risk of further injury which his physician had told him to avoid. This explains Walker's difficulty at the hearing to grasp counsels' questions. OVERNITE TRANSPORTATION COMPANY 467 to the office and questioned him about what had happened at Dupont . Matherly testified that he told Price about his suggestion to use the third trailer to avoid the necessity of undoing the mistake that had been made but Price said, "You told Tom that you wasn't going to load it." He further testified that he protested to Price that he could not handle the freight since his finger was injured and his doctor had ordered him not to risk its reinjury, but that he did not deny to Price what Davis had reported. He said that he told Price he did not know what he had said to Davis even after Price advised him to think the matter over. Finally, he testified, Price told him that he would consider the matter and that Matherly should come back the next morning, whereupon he left the office, remarking to Price that, ". . . I didn't like a liar and a son-of-a-bitch That's what I told him. I didn't call no names." The next morning Price discharged Matherly. Matherly testified that Price told him that he had done a good job, had gotten along well with the men, that he would recommend him for a job anywhere he went, but that he had to let him go because he had refused to load nylon at Dupont He said that if such a refusal were tolerated others would do the same. Price, whose version of the June 9 conversation differed somewhat from Matherly 's, testified that he had in fact made up his mind to discharge Matherly during their conversa- tion the previous evening but had refrained from doing so at that time because Matherly was upset and was known to have a hot temper. Concluding Findings as to Interference , Restraint, and Coercion While, as found above, the fact that Davis voted in the election without challenge pursuant to a stipulation does not take away from his status as supervisor and agent of Respondent at that time , this circumstance does have a bearing on the question of whether or not his statements and questions were of such a nature as to tend to coerce and restrain Respondent 's employees . Counsel for the General Counsel has not shown by a preponderance of the evidence that at the times in question Davis was regarded by the employees as a representative of management rather than , as suggested by the stipulation for his voting, one of them.12 His question to Walker 2 hours after both had cast ballots in the election must have seemed to Walker to be the speculation by a member of the electorate as to who had voted for the Union. In those circumstances, furthermore, a statement that he thought he knew who the two union voters were would not be interpreted as a threat of reprisal. It will be recommended that the allegation of the complaint that on or about July 8, 1965, Davis interrogated an employee and threatened reprisals be dismissed.13 It has been found that on July 1 Price told Walker that he had all the men "with him" except Matherly and Dickerson and asked Walker if he would be "with him" also. As Respondent was not contemplating recognition of the Union without an election, this preelection count was unnecessary and had no legitimate justifica- tion. The very form of Price's question to Walker- ". . . would I be with him " like most of the others-discloses that Price's purpose was pressure and that his seeking of information was not to aid him in deciding whether or not to recognize the Union but was in aid of the pressure he was placing upon the employees to vote against the Union. When an employer questions an employee as to how he intends to vote, it is difficult for the employee to refuse to answer since a refusal constitutes open defiance of his employer . Such conduct by an employer is coercive and undermines the purpose of the Board election, which is to permit the casting of a truly secret ballot without the necessity of any open declaration of preference. Price's questioning of Walker was especially coercive for several reasons. First, his statement about all the other employees would cause Walker to surmise that he was speaking privately to all the employees to find out where each one stood . He thus in effect warned Walker that if he stood his ground he might find that the other union supporters had succumbed to Price's campaign, leaving Walker part of a small , identifiable group of holdouts, if not all alone. Second, the voting group was small and intimate, so that Walker knew that the 12 The split- shift incident , notwithstanding that Puce considered Matherly insubordinate on that occasion, shows, if anything, that the employees did not regard Davis as repre- senting management since at least several of them refused to comply with his request. 13 Montgomery Ward & Company, Incorporated, 115 NLRB 645, enfd. 242 F 2d 497 (C,A 2) ; Hy Plains Dressed Beef, 146 NLRB 1253 ; Powers Regulator Company, 149, NLRB 1185, 1188, distinguish Wagner-Wood Company, 148 NLRB 963, 965. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD probability of Price's finding out where each voter stood was enhanced. Third, and most important, Price had spoken to Walker a month before to find out who had signed union cards at Dickerson's house and to threaten Walker with reprisals and to promise him benefits in order to influence him not to support the Union.14 Price did not have to incorporate his earlier conversation into the July 1 conversa- tion by explicit reference for its coercive effect to carry over. It is found that by Price's remarks to Walker on or about July 1 Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act.15 Price's summoning Walker to the office to tell him, "... that he hated for a man to lie to him and that he hated a liar," was plainly coercive. Price was refer- ring to Walker's deception concerning his support of the Union in the course of his conversations with Price on May 29 and July 1 already discussed, and was berating him in terms inherently threatening for voting for the Union. However this incident about a month and a half after the election is not identifiable as within any allegation in the complaint 16 and it cannot be found to have been fully litigated as a separate unfair labor practice. Nevertheless the incident is relevant to, and emphasizes, the coercive character of the July 1 interrogation. Concluding Findings as to Matherly's Discharge Matherly's own testimony concerning Price's interview with him on December 9 makes it apparent that what Price wanted to know was whether Matherly had in fact refused to obey an order to help load at Dupont, as reported by Davis, and that Matherly gave no satisfactory answer. He did mention to Price his finger injury; but on the basic question of whether he in fact refused Davis' instructions to help with the loading, he told Price that he did not know what he said. All Price had to go on was Davis' undenied report and Tawney's statement that Matherly was in the drivers' room. Matherly did not even claim to have told Price that in fact he had been helping with the loading, or to have indicated in what respect Davis was wrong. Even when Price accusingly said, "You told Tom that you wasn't going to load it," Matherly merely pleaded his broken finger. Most impor- tant, at no time did he demonstrate an inclination to get the misunderstanding straightened out. His parting declaration to Price on December 9, he testified, was to characterize Davis as "a god-damn lying son-of-a-bitch." Matherly may have been the best man at the Dupont plant that night, as argued by counsel for the General Counsel in his brief, but his employment with Respondent had started only the year before. The incident was not a trivial one. In view of his defiance of Davis, a supervisory highly regarded by Price, and of his temper, Matherly's continuing to work under Davis would reasonably seem to Price to present such serious problems of discipline as to call for Matherly's discharge. Notwithstanding Respond- ent and Price's hostility to the Union, as indicated by Price's conversations with Walker and by the two Davises' advice to Walker and to Morris, it cannot be inferred that Price seized upon the Dupont incident as a pretext to conceal some other reason for discharging Davis. There remains for consideration the question of whether Davis brought about the discharge for discriminatory reasons. As Davis was a supervisor, and thus an agent of Overnite, the latter would be responsible for his unfair labor practices even though his superiors had nothing to do with them. Davis and Matherly admittedly got into a quarrel over the question of the latter helping with the loading and unloading at Dupont. While all the men present there who testified stated that Matherly did help by "breaking out" stacks of cartons onto "two-wheelers," this fact, assuming it was fact, was never brought to Davis' attention All Davis knew was that Matherly had refused to help. At the hearing Matherly explained that, when speaking to Davis, he did not know "two-wheelers" were to be used or that they were available. This was tantamount to an admission that in his quarrel with Davis he had been in the wrong. Moreover, in view of the commonness of "two- wheeleis" wherever cargo is handled, Matherly's explanation sounds like an after- thought. There is no claim that Davis ordered Matherly to load by hand. Finally, Tawney's inconsistencies and Matherly's silence on the point in his interview with 14 The incident was not alleged in the complaint apparently because it occurred well over 6 months prior to the filling and service of the charge. is Clark Printing Company, Inc., 146 NLRB 121. 16 The complaint alleges various incidents between June 21 and July 8, the date of the election, and one other incident which plainly refers only to Price's alleged questioning of Morris about a new election. OVERNITE TRANSPORTATION COMPANY 469 Price warrant the inference that the help Matherly actually contributed was, at best, minimal and the result of more sober second thoughts following his conversation with Davis. In any event, Davis had no way of" knowing what Matherly was, doing or thinking. All he knew was that, notwithstanding his injury Matherly could load, had been loading, and now pointblank, and unreasonably, refused to load. It cannot be inferred that Davis sought the quarrel with Matherly, or that he did anything else to bring about Matherly's discharge, for, discriminatory purposes. In view of the foregoing, it will be recommended, that- the allegations of the complaint concerning the discharge of Matherly be dismissed. IV. THE EFFECT OF, THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of Respondent, set, forth, above, in section III of this Decision, occurring , in connection with its, operations described above in section I, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free- flow of commerce. V. THE REMEDY It has been found that the only unfair labor practices engaged in by Respondent within the period of 6 months prior to the filing and service of the charge were Price's telling Walker that everyone except Matherly and Dickerson was "with him" in the election and asking Walker where he stood. The question is thus pre- sented of whether that single episode, involving a single employee , is so isolated as not to warrant the issuance of an order.17 It should be noted, first, that a single employee at the time of the incident constituted one-sixth of the nonsupervisory employees in the terminal. Moreover, as already noted, Price's statement implied that his interrogation of Walker was part of a unitwide inquiry of similar nature. The incident was thus not truly isolated. Also, the present case is only one of a series of cases in which Respondent has engaged in unfair labor practices.18 In making findings as to whether or not unfair labor practices occurred I have not in any way considered those cases as indicating a propensity in that direction by Respondent. However, it would be unrealistic not to take those cases into con- sideration in deciding whether or not the unfair labor practices found in this case are so isolated as not to warrant the issuance of an order. Finally, remedying these particular unfair labor practices-interference with the employees' right under the act to a free and fair election-is important to the administration of the Act. Respondent's employees in Martinsville should have whatever assurance is possible against a repetition in the event that the Union or any other labor organization petitions the Board for an election in the future. It is, therefore, recommended that the Board issue the Recommended Order set forth below requiring Respondent to cease and desist from its unfair labor practices and to post a notice. Upon the basis of the foregoing findings of fact and of the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Overnite Transportation Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at, all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. Local Union No. 22, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 4 By discharging Carroll L. Matherly Respondent has not engaged in any unfair labor practice within the meaning of Section 8(a)(1) or (3) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 17 See Hot Shopper, 146 NLRB 802, 806; Pennsylvania Tire and Rubber of Mississippi, 144 NLRB 466, footnote 1. ' 18 See 129 -NLRB 261, enfd. as modified 308 F.2d 284 (C.A. 4) ; 129 NLRB 1026, enfd. 308 F.2d 279 (C.A. 4) ; 134 NLRB 1513 ; 141 NLRB 384, enfd. 327 F 2d 36 (C A. 4) ; 154 NLRB 1271, enfd. as modified 364 F.2d 682 (C.A.D C.) ; 157 NLRB 1185, enfd . 372 F.2d 765 (C.A. 4) ; 158 NLRB 879. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire recoid in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, Respondent, Overnite Transportation Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their voting intentions in any representation ,election. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist Local Union No. 22, International Brotherhood of Teamsters, Chauffeurs, Ware- housernen and Helpers of America, or any other labor organization. to bargain ,collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining of other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any of the foregoing. 2 Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) Post at its office and terminal located in Martinsville, Virginia, copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 5, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced. or covered by any other material.19 (b) Notify the Regional Director for Region 5, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith 20 10 In the event that this Recommended Order is adopted by the Board the voids in the notice the Recommended Order of a Trial Examiner ' shall be ieplaced by the words "a Decision and Order" In the further event that the Board's Order is enfoiced by a decree of a United States Court of Appeals, the words "a Decision and Order" in the notice shall be replaced by the words "a Dcciee of the United States Court of Appeals Enforcing an Order." 2' If this Recommended Order Is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 5, in writing, within 10 clays from the date of this Oider, what steps Respondent has taken to comply heiemth ' APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate any of our employees about their voting intentions in any representation election. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the right to self-organization, to form, join, or assist Local No. 22, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any of the foregoing. OVERNITE TRANSPORTATION COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. WICKLAND Oil, COMPANY 471 If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland 21202, Telephone 752-2159. Wickland Oil Company ; and Freeway Oil Company d/b/a King Dollar and Retail Clerks Union, Local 1364, Retail Clerks In- ternational Association, AFL-CIO. Case 90-CA-3620. Octo- ber 06, 1966 DECISION AND ORDER On July 1, 1966, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding , finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision . Thereafter, the Respondents filed exceptions to the Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's 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 Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings , conclusions,' and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 'These findings and conclusions are based, in part, upon the credibility determinations of the Trial Examiner, to which the Respondent has excepted, alleging that the Trial Examiner was biased and prejudiced. After a careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all relevant evidence. Accordingly, we find no basis for disturbing those findings, and we reject the charge of bias and prejudice on the part of the Trial Examiner. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). DECISION AND RECOMMENDED ORDER STATEMENT OF THE CASE A charge was filed by Retail Clerks Union Local 1364, affiliated with Retail Clerks International Association, AFL-CIO, herein called the Union, against Wick- land Oil Company on May 21, 1965, and an amended charge was filed by the Union against Wickland Oil Company and Freeway Oil Company, d/b/a King Dol- lar, on September 15, 1965, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq., herein called the Act. Upon said charge and amended charge a complaint duly issued on September 24, 1965. 161 NLRB No. 39.