Ozark Motor Lines

300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ozark Motor Lines and General Drivers, Saledrivers, Warehousemen & Helpers, Local Union 245, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 17-CA-2925. May 3, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On November 10, 1966, Trial Examiner Louis Libbin issued his Decision 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 certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to the 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, with the following modifications: The Trial Examiner found that Respondent's discharge of Supervisor Camden violated Section 8(a)(1). We do not agree. Camden was in charge of Respondent's West Plains, Missouri, terminal. On April 27, 1966, Camden and the three other employees at the terminal signed union authorization cards. On April 28, the Union wrote Respondent's owner, Higginbotham, that it represented a majority of the West Plains terminal employees and requested recognition. On receiving this letter, Higginbotham drove to the West Plains terminal on May 3, 1966, for the admitted purpose of asking Camden about the union activities and why he hadn't notified Higginbotham of employee camplaints. Higginbotham spoke to employees at the terminal and tried by persuasion, threats, and promises of benefits to dissuade them from adhering to the Union. He also told Camden, "[Y]ou are responsible ' In the absence of exceptions with respect thereto , we adopt pro forma the Trial Examiner's Decision not to include a finding that the Respondent further violated Section 8(a)(1) of the Act by for this. You can talk them out of it if you will...." He made certain threats of what he would do if the employees still wanted a union and instructed Camden to repeat these statements to the employees and try to talk them out of the Union. Camden did as he was told, but his efforts were unsuccessful, as he reported to Higginbotham. On May 12, about 10 days after the above- described conversations with Camden and the employees at West Plains, Higginbotham telephoned Camden and told him that Respondent's attorney would be in West Plains on May 14 and would like to talk to him. On the same day Higginbotham sent Camden a note by truck mail, asking Camden to "cooperate" with Respondent's counsel "in any way you can." On May 13, Respondent's attorney spoke to Camden by telephone and asked the latter to meet with him at a named hotel at 8 a.m. the next day. Camden agreed to do so. Although neither Higginbotham nor his attorney had informed Camden of the purpose of the meeting, Camden correctly suspected that the attorney wanted to talk to him about the Board hearing in this case scheduled for the following week. The attorney drove from Memphis, Tennessee, to West Plains, a distance of about 170 miles, for the sole purpose of interviewing Camden. About 15 minutes before the scheduled appointment on May 14, Camden had his brother telephone the attorney to say that Camden would be out of town and would not meet with him. Camden then left town with his brother. Camden's explanation for not keeping his appointment was that he was afraid the attorney was a "slick" talker and "might have a microphone or something on him." After Camden failed to keep his appointment, the attorney notified Higginbotham of this fact. The two men then tried to find Camden at his home and at his brother's place of business. When they were unable to do so, Higginbotham left on the desk of the local terminal office a typewritten statement prepared by the attorney relating to Respondent's operations and Camden's duties and authority. The statement was designed to show that Camden was a supervisor within the meaning of the Act. Higginbotham telephoned Mrs. Camden to inform her of the statement which he was leaving for her husband at the office, and told her that Camden should read the statement during the weekend, make whatever changes he wanted, sign it, and mail it back to Memphis. When Camden returned to his home that evening, his wife told him about Higginbotham's telephone conversation. Camden read the prepared statement at the terminal office, but did not sign it because he did not believe that it accurately reflected his authority and duties. The same evening Supervisor Camden's threats made to the employees on May 3 pursuant to instructions from the Respondent's owner. Higginbotham 164 NLRB No. 41 OZARK MOTOR LINES 301 Higginbotham telephoned Camden and asked if he was going to sign the statement. Camden replied that he would not sign it . Higginbotham then said that Camden had a vacation coming to him and suggested that he take it immediately. Two days later Higginbotham wrote Camden that he was discharged. In explanation, Higginbotham said: Events of recent weeks which have come to my attention have established to my satisfaction that my reliance upon you has been misplaced. Apparently, you are not willing or able to make the company interests your primary concern or responsibility. Your failure or refusal to meet and cooperate with the Company attorney who made a special trip to West Plains at considerable expense to me was the last straw. The Trial Examiner found that in discharging Supervisor Camden, Higginbotham was primarily motivated by his resentment against Camden for his alleged lack of effective cooperation in helping Higginbotham stop the Union by inducing employees at the terminal to abandon their union adherence and support, and that the discharge therefore violated Section 8(a)(1). We do not agree with the Trial Examiner's inference as to the motivating force in the discharge of Camden.' The only evidence to support the Trial Examiner's inference is the conversation between Higginbotham and Camden on May 3, related above. Camden complied with Higginbotham's instructions, passed on the threats which had been made by Higginbotham, and tried to talk employees out of adhering to the Union. His efforts were unsuccessful and he reported that fact to Higginbotham. But there is no evidence of any Higginbotham resentment against Camden during the 2-week period between the May 3 conversation and the events leading to the discharge. The immediate cause of Camden's discharge was his refusal to cooperate with Respondent in the preparation of its case for trial. At , no point in its trial preparation did Respondent make any improper demand on Camden. At the very last; minute, the latter canceled his appointment with Respondent's attorney, who had made a long trip to interview him, without finding out what the attorney required of him. He refused to sign the attorney's prepared statement as to his supervisory duties although he was told that he could make any changes in the statement that he thought necessary. Upon the last refusal he was promptly, in effect, suspended from active duty and then discharged. The refusal to cooperate with the attorney was, from Respondent's view, a serious act of insubordination on the part of one of its supervisors. On this state of the record, we are not convinced that, as found by the Trial Examiner, the assigned reason for the discharge of Camden was in effect a pretext, and that the real reason was Camden's_ unsuccessful efforts to persuade the terminal employees to abandon the Union. Further, we find that neither the proposed interview with the attorney, nor the proposed statement to be signed by Camden interfered with the Section 7 rights of employees, and that the discharge of Camden, a supervisor, because of his failure to comply with Respondent's instructions as to these matters was therefore not unlawful.3 Accordingly, we shall dismiss this allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Ozark Motor Lines, West Plains, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete paragraph 1(b) from the Recommended Order and renumber the remaining paragraphs consecutively. 2. Delete paragraphs 2(b), (c), and (d) from the Recommended Order, and renumber the remaining paragraphs consecutively. 3. Delete the first and sixth indented paragraphs from the notice. IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act other than those found herein. 2 In these circumstances , we find it unnecessary to decide whether' the discharge of Camden would have been violative of Section 8(a)(1) if the motivating factor had been as found by the Trial Examiner Compare National Freight, Inc, 154 NLRB 621, with Talladega Cotton Factory, Inc., 106 NLRB 295, enfd 213 F 2d 208 (C.A. 5) 3 See Nattonhl Freight, Inc , supra TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on May 19, June 15, and August 3, 1966, by General Drivers, Salesdrivers, Warehousemen & Helpers, Local Union 245, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, the Charging Party, herein called the Union or Local 245, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 17 (Kansas City, Missouri), issued a complaint, dated July 8, 1966 , against Ozark Motor Lines, herein called the Respondent. With respect to the unfair labor practices, the complaint, as subsequently amended, alleges, in substance, that Respondent violated Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the Act by the discharge of two-named persons; by refusing, upon request, to bargain with the Union which represents a majority of the employees in an appropriate unit ; and by engaging in acts of interference , restraint, and coercion. In its duly filed answer , as subsequently amended, Respondent denies all unfair labor practice allegations. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to due notice, a hearing was held before me at West Plains, Missouri, on August 10, 11, and 23, 1966. All parties were represented at the hearing and were given full opportunity to participate and to adduce all relevant evidence. On October 3, 1966, the General Counsel and the Respondent filed briefs which I have fully considered. For the reasons hereinafter stated, I find that Respondent has violated Section 8(a)(1) and (5) of the Act and has not violated Section 8(a)(3) of the Act. Upon the entire record in the case and from my observation of the demeanor of the witnesses , I make the following: FINDINGS OF, FACT. I. THE BUSINESS OF RESPONDENT Respondent is a sole proprietorship, engaged as a common motor carrier and operating between Memphis, Tennessee, and West Plains, Missouri, at which places Respondent operates terminal facilities. During the year 1965, Respondent derived gross income in excess of $50,000 from the interstate transportation of commodities. Upon the above-admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that General Drivers, Salesdrivers, Warehousemen & Helpers, Local Union 245, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issues The Respondent, Ozark Motor Lines, is a sole proprietorship owned and operated by M. M. Higgin- botham, sometimes referred to in the record as "Mose." Respondent operates as a common carrier of property between Memphis, Tennessee, and West Plains, Missouri. Respondent has two places of business, its main terminal at Memphis, Tennessee, where Higginbotham was stationed, and a terminal in West Plains, Missouri, where four men were employed during the times material herein. When the freight from the Memphis terminal reaches the West Plains terminal, it is "broken down" by the employees at the West Plains terminal the following morning and delivered by them to other trucklines in West Plains or to the small towns in Missouri and Arkansas served by Respondent. The issues in this proceeding involve only the West Plains terminal employees. On April 27, 1966, all four men employed at the West Plains terminal signed union authorization cards.' Higginbotham was advised of the Union's majority claim and desire for recognition by letter dated April 28. The Union filed a representation petition on April 29. Higginbotham visited the West Plains terminal on May 2, 3, and 4, and during that period spoke to the employees about the Union. By letter dated May 5, Respondent replied to the Union's letter, stating that it had a bona fide ' Unless otherwise indicated, all dates are in 1966 z Unless otherwise indicated, the findings in this section are doubt as to the Union's majority claim and requesting a Board election. Delbert Camden, one of the four men employed at the West Plains terminal, was discharged on May 16. Robert Mauldin, another employee at the West Plains terminal, was discharged on July 27. The issues litigated in this proceeding are (1) whether M. M. Higginbotham engaged in acts of interference, restraint , and coercion violative of Section 8(a)(1) of the Act, (2) whether Camden was a supervisor within the meaning of Section 2(11) of the Act, (3) whether the discharges of Camden and Mauldin were violative of Section 8(a)(1) and (3) of the Act, and (4) whether Respondent's refusal to recognize the Union without a - Board election was violative of Section 8(a)(1) and (5) of the Act. The latter issue also involves the subsidiary issues of the validity of the representation cards and whether Respondent's refusal was based on a good-faith doubt of the Union's majority representation claim. B. Interference, Restraint , and Coercion 1. The facts' 4 During the time material herein, the employees of Frisco Transportation Company at West Plains, Missouri, were represented by a Teamsters, local. When Robert Mauldin was unloading freight at the Frisco Transportation dock one time in early April, the union steward at the Frisco terminal asked Mauldin if he-wanted to have the Union in at Ozark Motor Lines. Mauldiiireplied in the affirmative, and told the steward to go ahead and have them come down. About April 25, Bob' Kirk, an organizer and assistant business representative of Local 245, was informed by McDaniel of Frisco Transportation that the employees at Ozark Motor Lines would like to be represented by this Union. On April 27, Kirk came to West Plains and met Mauldin at the Frisco Transportation dock where Mauldin was unloading freight. Kirk introduced himself and stated that he heard Mauldin wanted to talk to him. Kirk also asked where he could meet the other employees of Ozark. Mauldin told Kirk to come to Ozark's West Plains terminal about 5 p.m. when all the men would be there. At the appointed time, Kirk met with Mauldin, Camden, White, and Evans, as a group, at the terminal, told them about the benefits of the Union, and laid four union authorization cards on the table. All four men signed the authorization cards in each others presence at that time and returned them to Kirk. By letter dated April 28 and addressed to M. M. Higginbotham at the Memphis terminal, Kirk advised that the Union had a majority of the West Plains terminal employees signed up and indicated its desire for recognition. On April 29 the Union filed a petition for an election with the Board's Regional Director. Higginbotham admitted receiving the Union's letter either on Saturday, April 30, or Monday, May 2. Higginbotham drove to West Plains on the evening of May 2, one of his admitted purposes being "to ask Delbert [Camden] about the union activities and if the men had complained to him and why he hadn't notified me." When Higginbotham arrived at the West Plains terminal about 5 or 6 p.m., he met Mauldin as the latter was getting ready to go home. They went into the office where Higginbotham stated that he had heard a rumor that the Union was trying to get in, and told Mauldin to be honest with him. Mauldin replied that the rumor was true. based on exhibits and credited testimony which is either admitted or undisputed OZARK MOTOR LINES Higginbotham then asked Mauldin if he had signed a card. Mauldin stated that he had and volunteered that all the employees had signed a union card. In response to Higginbotham's further query as to what Mauldin's complaints were, Mauldin stated that it was the long hours. Higginbotham then asked whether it would help to change Mauldin's mind if he cut down the hours. Mauldin replied that he did not think it would, but that he would think about it. Higginbotham then telephoned Delbert Camden at his home, and told Camden to meet him at the Holiday Inn in West Plains after dinner. After this telephone conversation, Mauldin came to Camden's house and related his prior conversation with Higginbotham. Mauldin agreed to go with Camden to the Holiday Inn, and Camden also got Frank White to accompany them to meet Higginbotham. When Camden met Higginbotham at the motel, it was decided to go to the terminal to talk. Mauldin and White followed them to the terminal in another car. All four were in the terminal office when the following statements were made during the conversation which took place there. Higginbotham asked Camden what was wrong, stated that there were rumors about the Union coming in, and asked if the union man had been there. When Camden replied in the affirmative, Higginbotham asked if he had signed cards. Mauldin spoke up and said that he had signed a card; White said that he was "going along with the rest of the boys"; Camden did not say anything about signing a card. Higginbotham then said, "we do not need a middle man to solve our problems." When Higginbotham asked what the complaints were, Mauldin and White replied that it was the long hours. Higginbotham then asked if they would forget about the Union if he would "hire two more men [and] put on another big bob truck." He stated that only Mauldin and White could vote in an election, and warned that if they went union he would "find something to fire them over." He asked the men to think it over, and stated that he would be back in the morning for an answer. Higginbotham called White aside, and promised to "put $10 more on his check a week" if he would forget about the Union. He told White to go home and "sleep on that $10," to forget about the Union there. Higginbotham emphasized that he would deny this conversation with White if the latter mentioned it, and that it would just be Higginbotham's word against White's. The next morning, May 3, Higginbotham warned Mauldin that he and White would not last long if they were in the Union. About 8 a.m. Higginbotham called Camden into the terminal office and stated, "Delbert, you are responsible for this. You can talk them out of it if you will. I am not going to go Union. I will take it to the highest court." Higginbotham also added that he would not sign a contract and that his trucks would come in and out of the terminal if he had to ride them with a gun . He also told Camden that if Mauldin and White went Union, he would get something on them and fire them by writing three letters. At the end, Higginbotham stated that he was going to town, and instructed Camden to repeat Higginbotham's statements to Mauldin and White and try to talk them out of the Union. When Higginbotham left, Camden repeated to Mauldin everything which Higginbotham had stated. Mauldin's response was that he still wanted to go Union. Upon Higginbotham's return to the terminal around noon, Camden reported that Mauldin still wanted to stay with the Union, and that he had not yet spoken to White and 303 Evans who would be returning to the terminal about 3 p.m. When Evans and White returned to the terminal, Camden again repeated to them everything which Higginbotham had told him that morning. After loading their trucks, all four men went to a nearby cafe to discuss it. When Higginbotham returned to the terminal about 5 p.m., all four men approached him as he was sitting in his car. Higginbotham asked if the men had changed their minds. Camden reported that the men were going to stay with the Union. Higginbotham warned that if they joined the Union, he would follow them around until he got enough on them to fire them. Higginbotham told them to think it over, stating that he would see them in the morning. The next morning, May 4, Higginbotham met all four men in the office. He stated that he had to go back to Memphis, asked them to think it over and to let him know "if any of you boys change your mind," and left. By letter dated May 5, Higginbotham's attorney acknowledged the Union's letter of April 28, advised that "the company has a bona fide doubt as to the majority status of your union," and expressed the belief that for that reason "it would be appropriate to have your status determined" by a Board election. The foregoing findings as to conversations with and statements by Higginbotham are based on a synthesis of the mutually consistent and credited testimony of Delbert Camden, Robert Mauldin, and Frank White, all of whom impressed me as being candid and straightforward witnesses entitled to full credence. Higginbotham admitted going to White Plains on May 2 for the purpose, at least in part, of asking Camden about the union activities and the complaints of the men. He admitted talking to Mauldin that evening before telephoning Camden, that he told Mauldin that he heard a rumor that they were trying to get a union in, that he asked Mauldin what was wrong, and that Mauldin said they had all signed a card. He denied interrogating Mauldin in any respect. He further admitted talking to Camden at the terminal that night, in the presence of White and Mauldin, about rumors of the Union coming in, stating that "we did not need anybody to straighten out our affairs" and asking what complaints the boys had. He admitted being at the terminal during the 3 days from May 2 to May 4, but denied making any threats of reprisals or promises of benefits as previously set forth. At one point, Higginbotham admitted that during that period he told Camden that "he [Camden] could talk them out of it [the Union] if he wanted to" or " something to that effect," and testified that he did not "recall" whether he gave Camden any instructions to give to the other employees. Later in his testimony, he denied asking Camden to talk to the other employees about the Union. On direct examination by his attorney, Higginbotham testified that Mauldin told him on May 2 that Camden had also signed a union card. However, later in his testimony he admitted, in response to a question by the Trial Examiner, that he did not know that Camden had signed a union card at the time of his discharge. Higginbotham did not impress me as a credible witness by his demeanor while testifying under oath, Upon consideration of all the foregoing, I do not credit Higginbotham's testimony to the extent that it may conflict with that of Camden, Mauldin, and White, and find that Higginbotham made the statements and engated in the conduct hereinabove set forth. 2. Concluding findings I find that Respondent interfered with, restrained, and coerced its employees in the exercise of their rights 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act by the following conduct of M. M. Higginbotham: (a) Interrogating Mauldin on May 2 concerning the rumor about the Union trying to come in and asking Mauldin if he had signed a card. (b) Asking Mauldin on that same occasion if a reduction in the hours would help change his mind about the Union. (c) Asking the employees at the terminal office on May 2 in response to their complaints about the long hours, if they would forget about the Union if he would hire two more men and put on another big bob truck. (d) Warning Mauldin and White at the terminal office on May 2 that if they went union he would "find something to fire them over." (e) Promising White on May 2 a $10 increase if he would forget about the Union. (f) Warning Mauldin on the morning of May 3 that he and White would not last long if they went Union. (g) Warning the employees on the evening of May 3 that if they joined the Union he would follow them around until he got enough on them to fire them.3 C. The discharge of Delbert Camden One of the principal issues in dispute in connection with Camden's discharge is whether he was a supervisor within the meaning of the Act. The General Counsel contends that Camden was not a supervisor and that he was discharged for his union activities and for his failure to cooperate with Respondent to stop the union movement. The General Counsel further contends that the latter reason would render the discharge unlawful even if Camden were found to be a supervisor. Counsel for Respondent contends in his brief that Camden was a statutory supervisor and that he was discharged primarily for failing to keep an appointment with Respondent's attorney., He further contends that even if Camden was discharged for his union activities or for his failure to cooperate with Respondent in trying to talk the employees out of voting for the Union, such a-discharge would-not be unlawful because of Camden's supervisory status. 1. The supervisory status of Camden The issue as to whether Camden was a supervisor within the meaning of the Act was extensively litigated. While much of the testimony bearing thereon is con- flicting, my ultimate finding as to Camden's status is based on the following evidence which is either admitted or undenied. Camden was the senior employee in point of service at the West Plains terminal , having been initially employed in September 1961, and the only employee at the beginning. In 1963, before the West Plains terminal was located at its present quarters, a picture of Higginbotham and Camden appeared in the local newspaper, with a reference to Camden as the West Plains terminal manager. About a month later, Higginbotham had some business cards printed, which cards designated Delbert Camden as terminal manager at West Plains and which were left in the West Plains terminal office. In 1964, at a time when there was one other regular employee at West Plains, Camden's name and home telephone number was put on the door of the West Plains terminal office at its present location. As the West Plains operations increased, more employees were hired until there were three other regular employees by March 1966. At the time of his discharge, Camden was paid $7.50 per week more than the next highest paid employee. Respondent's office has always been at the Memphis terminal where Higginbotham, his wife, and son were stationed. Higginbotham made infrequent trips to the West Plains terminal, averaging about one a month for periods of about 2 to 3 days. No other supervisor was employed at the West Plains terminal. New regular employees, known to Camden but not to Higginbotham, were hired upon Camden's recommendations, in many instances without having been interviewed by Higginbotham or seen by him until after they had already been working at the terminal. Thus, in January 1964 Robert Mauldin's father told Camden that his son needed a job. Camden knew Robert Mauldin, and sent a note to Higginbotham at the Memphis terminal, advising that Mauldin was a "good hand" and recommending him if Higginbotham could use him. Higginbotham replied that he could use him 4 or 5 hours a day. Camden then notified Mauldin's father that Mauldin could report for work. Higginbotham had not known Robert Mauldin, had not interviewed him, and did not meet him until he was already working. After a while, Mauldin began working full time. In the case of Frank White, who was hired as a full-time employee in October 1964, Camden had known him for a number of years. When White asked Camden if he thought he might be taken on, Camden sent Higginbotham a note at the Memphis terminal , stating what kind of work White did, that he was a good driver, and recommending him. Higginbotham informed Camden that he could put White to work. Camden thereupon informed White that he could report for work. Higginbotham had not known White, had not interviewed him, and did not meet him until he was already working. In the case of LaRoy Evans, hired as a full-time employee in March 1966, Evan's mother-in-law asked Camden what chance her son-in-law had of getting on. He told her to have Evans come to the terminal the following Saturday when Higginbotham was expected to be there. Camden knew Evans, whereas Higginbotham did not. That Saturday, Camden introduced Evans to Higginbotham who talked to Evans. When Higginbotham asked Camden what he thought, Camden replied that he thought Evans would be all right and recommended him. Shortly thereafter, Camden, pursuant to Higginbotham's instructions , told Evans he could report for work. When Ralph Jolliff was hired as a full-time employee in 1962, Camden took him over to Dodd's terminal to introduce him 'to Higginbotham who happened to be there. Higginbotham had not known Jolliff. Camden told Higginbotham that he had worked with Jolliff at Frisco Transportation, that Jolliff had handled freight and should be able to handle the 9 Higginbotham is also responsible for the coercive statements of Camden on May 3 to the other employees, made at Higginbotham's request and instructions , that Higginbotham was not going to go Union , would take it to the highest court, would not sign a contract, and would get something on Mauldin and White and fire them by writing three letters if they went Union. It is true, as counsel for Respondent states in his brief, that the complaint does not specifically allege any unlawful conduct by Camden as Respondent's agent In view of the further contention of counsel in his brief that Respondent should not be found guilty of a matter not charged in the complaint, I have not included these statements in my findings of violations of Section 8(a)(1) of the Act OZARK MOTOR LINES job, and that he recommended him. Jolliff was hired as a full-time employee. The requirements as to the number of employees at the West Plains terminal varied from time to time, depending upon the volume of freight. The decision as to whether a temporary extra hand was needed and for how long a period was made by consultation of Camden with the other regular employees as a group . If it was decided that such temporary help was needed, whichever employee knew of someone he could get, made the call. Not until after such help was hired, did Camden inform Higginbotham, by a note to the Memphis terminal, of the name of the new hire, his social security number, and dependents and the number of days or hours worked. In most instances, Higginbotham never even saw the extra help hired in this manner. The day-to-day operations of the West Plains terminal varied with the amount of freight required to be handled. While Higginbotham knew at the end of each week how much business had been performed at West Plains, he did not know what it was on a day-to-day basis. For example, the number of runs to be made south might vary from day to day. Decisions had to be made at the West Plains terminal on a daily basis as to what runs to make, what routes to change, and which employee was to operate which trucks. Higginbotham was not present at West Plains to make these decisions. When these situations arose, Camden discussed it with the other employees as a group and a decision as to what to do was reached. Camden never issued peremptory orders or told employees to perform certain tasks or assignments. He would always ask the employees if they could do "so and so" or suggest that they do "so and so." For example, Camden would say to an employee, "maybe you ought to go south today." The employees never disagreed. During his last few years, each employee kept his own timecard and at the end of the week sent it in to the Memphis terminal. However, Camden never turned in a timecard for himself during that period. The envelope which contained the checks for the West Plains employees was addressed to Camden, and he would pass the checks out whenever he was at the terminal when the checks arrived. Although Camden spent a substantial part of his time performing the same work as the rank-and-file employees, I am convinced and find that Camden had the authority, which he in fact exercised, which rendered him a supervisor within the meaning of Section 2(11) of the Act. I am convinced and find, on the basis of the above-admitted and undisputed facts, that at the very least Camden had the authority, which he in fact exercised, effectively to recommend the hire of other employees and that he also had the authority responsibly to direct other employees within the meaning of Section 2(11) of the Act. 2. The discharge of Camden4 On Thursday, May 12, Higginbotham talked to Camden by telephone and advised him that Respondent's attorney would be in West Plains Saturday and would like to talk to him. Camden replied that he would try to meet with the attorney. Higginbotham also sent Camden a note to the same effect by truck mail, dated May 12 and asking Camden to "cooperate" with Respondent' s counsel "in any way you can." On Friday morning, May 13, Wellford, 305 Respondent's attorney, talked to Camden by telephone and asked if Camden would meet him at the Holiday Inn in West Plains at 8 a.m. the next day. Camden agreed to do so. Camden did not keep this appointment. Instead, at his request, his brother telephoned to Wellford at the Holiday Inn about 7:45 a.m. on Saturday, and advised Wellford that Camden would be out of town and would not meet with him. Camden left at 8 a.m. for St. Louis with his brother who was driving cars for Willard Bros. Neither Wellford nor Higginbotham had informed Camden about what Wellford wanted to talk to him. However, Camden suspected that Wellford wanted to talk to him about the Board hearing scheduled to be held the following week in West Plains. He changed his mind that morning about meeting and talking to Wellford because he was afraid that Wellford was a "slick talker" and "might have a microphone or something on him." IfigginbotFiam had driven to West Plains with his wife on Friday night to see about trading a truck. While he was at the West Plains terminal on Saturday morning, he received a telephone call from Wellford who advised that Camden had not kept his appointment. Higginbotham then went to Holiday Inn and spoke to Wellford, who also had his family with him. When they were unable to find Camden at his home or at his brother's place of business, Higginbotham left on the desk in the terminal office a four- page typewritten statement, which had been prepared by Wellford, relating to Respondent's operations and Camden's duties and authority. The statements were designed to show that Camden was a supervisor within the meaning of the Act. He then telephoned Mrs. Camden, informed her of the statement prepared by his attorney which he was leaving at the terminal, and stated that Camden should read it during the weekend, make whatever change he wanted, and sign and mail it back to Memphis. When Camden returned home Saturday night, his wife told him about Higginbotham's telephone call concerning the statement he had left at the terminal. This was the first knowledge that Camden had about any statement prepared by Wellford. Camden read the statement on Sunday but did not sign it because he did not believe that it accurately reflected his authority and duties. About 9:45 that night, Higginbotham telephoned Camden and asked if he was going to sign the statement. Camden replied that he would not sign it. Higginbotham then stated that Camden had a vacation coming to him and suggested that he take it now. Camden agreed to take his vacation beginning the next day, Monday, May 16. Higginbotham informed Camden of his immediate discharge by letter dated May 16 and delivered to him by Robert Mauldin on May 17. The letter gave the following reasons for Higginbotham's conclusion that Camden's employment "must come to an end effective immediately": Events of recent weeks which have come to my attention have established to my satisfaction that my reliance upon you has been misplaced. Apparently, you are not willing or able to make the company interests your primary concern or responsibility. Your failure or refusal to meet and cooperate with the Company attorney who made a special trip to West Plains at considerable expense to me was the last straw. 4 The findings in this section are based on a synthesis of the testimony of Higginbotham and Camden, which testimony is mutually consistent and not in dispute. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Respondent's contentions Higginbotham testified that he had made the decision to discharge Camden on Saturday morning, May 14, when Camden failed to meet Respondent's attorney despite Camden's previous promise to do so. Yet, he admittedly gave Camden no inkling of any impending discharge when he talked to him the following Sunday night. Instead, he told him to take the vacation which was coming to him. Higginbotham's only explanation was that "I wanted time to think." Higginbotham testified that his reasons for discharging Camden are set forth in his discharge letter, dated May 16. The "events of recent weeks," mentioned in the discharge letter, were explained by Higginbotham to refer to Camden's conduct in allegedly changing freight routings, in accepting a personal check on a c.o.d., and in failing to keep his agreed appointment with Attorney Wellford who made the trip to West Plains at "considerable expense to me." When asked on cross-examination whether the advent of the Union was not also one of "the events of recent weeks" referred to in the letter, Higginbotham admitted that he was "disappointed" that Camden had not informed him about it and about "that the men were dissatisfied." With respect to the first matter, Higginbotham testified that he sent Camden a letter by truck mail on May 9, stating that "in the future no routings are to be changed on bills that come to West Plains as these are shipper instructions and we must try to please the customers." Higginbotham admitted that it was "possible" that Camden had never before changed the routes, and also that nothing further was said about this matter. On the other hand, Camden credibly testified that he had always routed the freight in accordance with the routings listed on the customer's freight bill, and that he had never seen the above-mentioned letter of May 9. With respect to the second matter, Camden had taken a check on a c.o.d. order for Carl Wheeler, and the check had "bounced." About May 11, Higginbotham telephoned Camden, asking where the money was on the c.o.d. for Carl Wheeler and stating that "I told you never to take a check." However, Camden credibly testified, without contradiction, that several years previously Higginbotham had instructed Camden not to take a check on a c.o.d. except from Carl Wheeler, that since that time he had taken numerous checks on c.o.d. orders from Carl Wheeler without Higginbotham saying anything to the contrary, and that this was the first time that Wheeler's check had "bounced." With respect to the alleged "considerable expense" incurred by Higginbotham because of the trip made by his attorney with his family to West Plains on Saturday morning, May 14, the record shows that at the time he sent the discharge letter Higginbotham did not know what, if any, expenses he incurred in this connection . Thus, when asked on direct examination if he had incurred any expenses in connection with this trip, Higginbotham testified, "I imagine I did. I haven't got the expense yet." Higginbotham admitted that when he retained Attorney Wellford upon receipt of the Union' s letter of April 28, he was told it would not cost him over $150 "up to the research." He further admitted that it was not until "about the last of July" that he received the first bill from Wellford in the amount of $250 , and that he was given no breakdown as to what if any of the amount was for the trip to West Plains. By the time Higginbotham received this bill, the complaint had already issued in the instant proceeding, setting the hearing for August 10, and Wellford had already filed an answer to the complaint. At the instant hearing, counsel for Respondent for the first time advanced additional and different reasons for the discharge of Camden. In his opening statement at the beginning of the hearing, Attorney Wellford stated as the sole reason for Camden's discharge his failure to keep his agreement to meet with Wellford, "after the Company went to considerable expense ." On the last day of the hearing, when Respondent's first witness for that day was on the stand , Wellford advanced an additional alleged reason for Camden's discharge. At that time, Wellford stated that Camden, in part, "was discharged for activities of participating in the organization of the plant" as a supervisor and for "his failure to notify the Company of union activity." In support of this asserted defense, Higginbotham testified that sometime after receiving the Union's letter claiming majority representation, he was informed by Charles DeGraw, one of his Memphis drivers, that Camden had asked him to join the Union. However, Higginbotham admitted that he did not know whether this alleged conversation occurred before or after Camden's discharge , and that "it might have been after."5 In this connection, Respondent's counsel also points to the fact that Mauldin had volunteered to Higginbotham on the evening of May 2 that all the employees had signed a union card. However, Higginbotham admitted that Camden had never stated that he had signed a union card, and he further admitted, in response to a question from the Trial Examiner, that at the time of the discharge he (Higginbotham) did not know whether Camden had signed a union card. During the testimony of Respondent's second witness on the last day of the hearing, Attorney Wellford advanced still a third reason for Camden 's discharge . This related to the testimony of Higginbotham's son, Steve , that while he was temporarily working at the West Plains terminal from May 10 through May 12 he observed that the employees stayed around the terminal after finishing their runs and put in their time for it, and that he reported this observation to his father upon his return to the Memphis terminal. Higginbotham admittedly never said anything about this matter. And Attorney Wellford has now presumably abandoned this alleged reason, as he makes no mention of it in his brief. Upon consideration of all the foregoing, I am convinced and find that the above-asserted reasons for the discharge of Camden were advanced as pretexts and afterthoughts to cloak Respondent's true motivating reason . Further supporting this finding is the credited testimony of Frank White and LaRoy Evans as to the reasons which Higginbotham gave them, separately, within a few days after Camden's discharge . Higginbotham told White, before the latter started his run, that he had discharged Camden because he was an "agitator " and that he would never work for him again. On the livening of May 16, Higginbotham called Evans into the terminal office when the latter returned from his run. Higginbotham first told Evans that Camden had been fir ed and that there would be a letter to that effect the next morning. He then stated that 5 Camden did not in fact talk to DeGraw about the Union or ask him to join, as hereinafter found OZARK MOTOR LINES he had proof that Camden had brought the Union in there and that he had fired Camden because Camden had "stabbed" him in the back . Evans asked what Higginbotham meant . Higginbotham told Evans how he had started with Ozark Motor Lines long ago , that he and Camden had worked hard , and that Camden had "stabbed" him in the back . Higginbotham emphasized that the scheduled representation hearing would not amount to anything, that what he got , he "got the hard way," that nobody was "going to take it away " from him, and that he would "fight it up to the highest court" if he wanted to . When Evans pointed out that Frisco , Dodds, and Basil Truck Lines all worked under union representation , Higginbotham retorted , "You haven't heard a word I said."s 4. Concluding findings Immediately upon receipt of the Union's letter claiming majority representation, Higginbotham journeyed to West Plains on the evening of May 2 for the admitted purpose, at least in part, of talking to Camden about the union activities of the men. That evening, he spoke to Mauldin, Camden, and White ; indicated his opposition to the Union; and coercively attempted to induce Mauldin and White to abandon their support of the Union after being informed by them that they had signed union cards, as previously found in detail. The next morning, Higginbotham called Camden into the office , accused him of being responsible for what had happened , and emphasized that Camden could talk the men out of the Union if he wanted to, as previously found . He then instructed Camden to make an effort to talk Mauldin and White out of the Union, and in the process to inform them that Higginbotham would never sign a contract and that if Mauldin and White went Union Higginbotham would get something on them and fire them , also as previously found . The next day, Camden reported to Higginbotham that he had talked to Mauldin and White and that the men decided to stay with the Union. Higginbotham was well aware that Camden was friendly with the other employees , had recommended them for employment , and had known them for a long time, as they all lived in the same small community . He sincerely believed that Camden could have talked Mauldin and White out of the Union if he had wanted to, as he had indicated to Camden . I believe that Camden 's failure to do so, under all the circumstances , led Higginbotham to infer that Camden had not wanted to, and caused Higginbotham to resent what he regarded as Camden 's lack of effective cooperation in helping him stop the Union by inducing Mauldin and White to abandon their union adherence and support . I am convinced that this is what Higginbotham had in mind when, as previously found , he told Evans that Camden was discharged because he had "stabbed" 6 Higginbotham testified that he did not "recall any" conversation with any other employee at the West Plains terminal as to the reason for Camden's discharge He admitted that "it seems like LaRoy [Evans ] and I were talking about it, but I don't recall how the conversation went about " I do not credit Higginbotham's testimony to the extent that it may constitute a denial of that of White and Evans, as set forth in the text ' This finding is in no way rebutted or weakened by a statement of a deputy of the Division of Employment Security of Missouri that Camden was discharged for failing to meet with Respondent 's attorney The record shows that no hearing had been held, that the finding was based on information obtained in 307 Higginbotham in the back. In Higginbotham's eyes, this also branded Camden as an "agitator" who was responsible for the Union being there, as he told White. Higginbotham's alleged complaints about Camden's work and conduct began after Camden's failure to talk the men out of the Union. Then, when Camden failed to keep his appointment with Attorney Wellford, this presented Higginbotham with a suitable pretext to effect Camden's discharge . Seizing upon this, he summarily discharged Camden, without any prior warning or notice. But his true motive in discharging Camden was disclosed to Evans and White right after the discharge, as previously found. However, additional and different reasons were subsequently advanced as afterthoughts to strengthen the case against Camden. I am convinced and find that in discharging Camden, Higginbotham was primarily motivated by his resentment against Camden for his alleged lack of effective cooperation in helping Higginbotham stop the Union by inducing Mauldin and White to abandon their union adherence and support, in accordance with Higginbotham's prior instructions .7 It is now well settled that the discharge of a supervisor under these circumstances unlawfully interferes with, restrains, and coerces the nonsupervisory employees in the exercise of the rights guaranteed by Section 7 of the Act, and therefore constitutes a violation of Section 8(a)(1) of the Acts Accordingly, I find that Respondent violated only Section 8(a)(1) of the Act by discharging Delbert Camden on May 17,1966. D. The Discharge of Robert Mauldin Robert Mauldin was employed at the West Plains terminal as a pickup and delivery driver from January 1964, until his discharge on July 27, 1966. The Respondent contends that Mauldin was discharged for failing to account for money received by him on deliveries which he made freight collect. The General Counsel contends that Mauldin did not misappropriate this money and that the alleged incident was seized upon as a pretext to discharge Mauldin because of his continued adherence and loyalty to the Union. 1. The discharge of Mauldin Each pickup and delivery driver is required to turn in the original freight bills signed by the consignee and the delivering driver. These signatures indicate that the merchandise was received by the consignee and that the driver received payment on the freight-collect shipments. Each driver is responsible for his own collections and is required to place the day's receipts of receipted bills and cash collections in a sealed envelope for forwarding to the Memphis terminal at the end of the day. In the latter part separate ex parte conversations with Camden and with Attorney Wellford, that Camden never informed the deputy about Higginbotham 's statements and threats relating to the Union and his instructions to Camden to try to talk the men out of the Union, and that Camden was at no time represented by an attorney 6 See, e g., Talladega Cotton Factory, Inc, 106 NLRB 295, enfd 213 F 2d 208 (C A 5) Southwest Shoe Exchange Company, 136 NLRB 247 , cited in Respondent's brief, is inapposite because there , unlike in the instant case, the supervisor was not instructed to relay to the employees the owner's threats of reprisals and coercive statements 298-668 0-69-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of July, Mrs. Higginbotham, Respondent's bookkeeper in the Memphis terminal, requested West Plains Terminal Manager Jolliff to trace and report on three receipts and their freight charges because they had failed to show up. Jolliff found one of the bills, dated July 6, in the glove compartment of the truck usually driven by Mauldin, and two other bills, dated July 22, in a box on the desk in the office. The latter two bills bore Mauldin's initials. On July 25, Jolliff spoke to Mauldin about these bills. He then informed Higginbotham about the three bills he had found, advising that Mauldin had stated he received the money and spent it. The following letter, dated July 26, was received by Terminal Manager Jolliff on July 27, with a note that Jolliff should give it to Mauldin after he finished his work that evening. Mr. Robert Mauldin c/o Ozark Motor Lines West Plains, Missouri Dear Robert: It has come to my attention this date that you have failed to turn in some freight collection money entrusted to you. The shortages were discovered by Mrs. Higginbotham upon checking upon the pro. nos. and the Terminal Manager was asked to check into the matter. He advises me that one signed delivery receipt was found in the glove compartment of your truck and another in your pocket. I am further advised by the Terminal Manager that you admitted that you received the money and spent it. While I recognize that you have had some personal problems and financial difficulties, it is absolutely necessary that we be able to rely upon the personal integrity and honesty of our employees. This dishonesty cannot be tolerated under any circumstances. Therefore, I regret to advise you that your employment is terminated effective upon the conclusion of your work on Wednesday, July 27, 1966. If I am in error on any of the facts relied upon in making this judgment, I trust that you will bring it to my attention and if you have been wronged by this action, we will be most happy to reconsider it. Yours very truly, OZARK MOTOR LINES By /s/ M. M. Higginbotham M. M. HIGGINBOTHAM Jolliff did not give this letter to Mauldin that evening. Instead, he took it with him to Mauldin's parents and explained to them why Mauldin was being discharged. The next morning, he gave the discharge letter to Mauldin. Although the amount of the freight collections from these three bills was deducted from Mauldin's last check, Higginbotham never received any reply to the discharge letter or any claim from Mauldin that the facts recited therein were erroneous. 9 I deem it unnecessary to resolve any conflict between the testimony of Mauldin and Jolliff in this regard For what is relevant on this issue is the content of the report which Jolliff 2. Concluding findings Mauldin denied having misappropriated any funds. He admitted that on July 25 Jolliff talked to him about these three bills. He testified that he told Jolliff that he had collected the money on the July 22 bills and that he had put the money and the bills in an envelope that went to Memphis. As for the third bill, dated July 6, he testified that he told Jolliff that he did not know whether he had delivered that merchandise or collected that money because the receipt did not bear any signature or initials. He further testified that he also told Jolliff that if he had made a mistake he would pay for the two bills he had collected. He denied spending the money or having told that to Jolliff.9 On cross-examination, Mauldin admitted that it was possible that one of the receipts was found in the glove compartment of his truck. He also admitted that it was possible that he had failed to put the bills and money in the envelope for shipment to Memphis. He testified that he did not know what happened to the money, but denied that he took it. He further admitted that he never answered the discharge letter and never got in touch with Higginbotham to claim that it contained erroneous statements, as the letter invited him to do if he considered the facts relied on by Higginbotham to be erroneous. The General Counsel places great stress in his brief on the fact that Mauldin, upon his return from his run on July 27, refused to sign a statement previously prepared by Attorney Wellford similar to the one which Camden had refused to sign. However, the undisputed evidence shows that Jolliff had received Mauldin's discharge letter that day but before he had even asked Mauldin to sign this statement. While the matter is not entirely free from doubt in view of Higginbotham's unsuccessful efforts to induce Mauldin to abandon his union adherence and support, I am not convinced, upon the basis of the entire record, that the General Counsel has satisfied his burden of sustaining the allegation with respect to the alleged discriminatory discharge of Robert Mauldin. Accordingly, I will recommend dismissal of this allegation of the complaint. E. The Refusal to Bargain 1. The appropriate unit and the Union 's majority status therein I find, in accordance with the stipulation of the parties, that all employees of Ozark Motor Lines at its West Plains, Missouri, terminal, excluding officers, clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The parties agree that the following were employed by Respondent at the West Plains terminal at all times material herein: Delbert Camden, Robert Mauldin, Frank White, and LaRoy Evans. The record shows, without dispute, that on April 27, all four signed union authorization cards in each others presence on the occasion when Union Respresentative Kirk spoke to them at the terminal about the Union, as previously found. Excluding Camden, whom I have previously found to be a made to Higginbotham, and not whether such a report was true or accurate. OZARK MOTOR LINES supervisor within the meaning of the Act, the Union has signed authorization cards from 100 percent of the employees in the appropriate unit. Counsel for Respondent contends in his brief that the authorization cards are tainted and do not reflect the free choice of the employees because they "were signed by the employees in the presence of, with the support and encouragement of and agreement of their supervisor, who participated in the organizational efforts and who signed a card along with the rank-and-file employees." The record does not support counsel's contention. The record clearly shows that Camden, herein found to be a minor supervisor, never solicited or even talked to the employees about signing these cards. Indeed, it was Robert Mauldin who, without Camden 's knowledge, was instrumental in having Kirk come and talk to the men about the Union, as previously found. All that Camden did was to be present at the terminal when Kirk spoke to the men and at that time to sign a card simultaneously with the others and in their presence.10 The record further shows that the men were independently familiar with the local represented by Kirk. Thus, the undisputed evidence shows that Mauldin knew about it from his father who was a member for 22 years; Evans knew about it from his father-in-law who was a member for 20 years; and White had himself belonged to this same local for 9 years. Evans, the newest employee, had never heard of any union discussion at the terminal prior to the occasion on April 27. Moreover, although Higginbotham claimed that Camden was the terminal manager and a supervisor, the undisputed evidence shows that neither Camden nor any of the employees regarded Camden as their supervisor or boss. Nor is there any evidence that Higginbotham ever told the employees that Camden was the terminal manager and their supervisor or superior. Indeed, before they signed the authorization cards, Kirk asked each employee what his duties and responsibilities were and who was his boss. They each told him that Higginbotham was their boss and that he was in Memphis. When Camden related his duties and responsibilities, Kirk stated that he would consider Camden as a working foreman or leadman eligible to sign a card. Indeed, the undisputed evidence further shows that when Kirk on that occasion told the men that they could talk it over by themselves before signing the cards, it was Mauldin who spoke up and said, "We don't need to wait. We can sign them now." In view of the foregoing, I find that Camden's presence and signing of a card at the terminal on April 27 did not taint the validity of the other three cards.'' I find that Mauldin, White, and Evans signed their authorization cards of their own free will, without any assistance, solicitation, or encouragement in any form from Camden. I find that at all times since April 27, 1966, the Union has represented a majority of the employees within the appropriate unit and has been, and still is, the exclusive representative of all the employees within said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 10 Charles DeGraw, an over-the-road driver from the Memphis terminal , testified that in March 1966, Camden spoke to him about union organization and asked DeGraw if he wanted to loin Camden denied having made these statements to DeGraw He testified that on the occasion in question DeGraw told him that Higginbotham had a $16,000 cabin on the lake down there and a new 1966 Mercury, and that DeGraw added that "it wouldn't hurt 309 2. The request and refusal a. The facts By letter dated April 28, 1966, and addressed to "Mr. Mose Higginbotham" at the Memphis terminal, Union Respresentative Kirk advised that the Union had "a majority of your employees at the West Plains, Mo. terminal signed up with our organization," and inquired whether Respondent would "recognize our Organization as bargaining agent for your employees" or desired the Union to seek a Board election. The next day, the Union filed a petition for an election with the Board's Regional Office. Higginbotham admittedly received the Union's letter either on Saturday, April 30, or on Monday, May 2. After receiving the Union's letter, he arrived at the West Plains terminal on the evening of May 2, and was informed first by Robert Mauldin that all the employees had signed union cards and then by Mauldin and Frank White that Mauldin and White had each signed a union card, as previously found. During the period from May 2 to 4, Higginbotham engaged in numerous acts of interference, restraint, and coercion violative of Section 8(a)(1) of the Act, such as interrogation, threats of reprisals in the form of loss of their jobs if they went Union, and promises of benefits in the form of wage increases, reduced hours, and more help, if they abandoned the Union, all as previously found. He also instructed Camden to talk Mauldin and White out of the Union and to relay to them Higginbotham's threats of reprisals and coercive statements if they adhered to the Union, all as previously found. By letter dated May 5 and addressed to the attention of Union Representative Kirk, Respondent's Attorney Wellford acknowledged receipt of the Union's letter of April 28 and the Union's "claim to represent a majority of the employees of Ozark Motor Lines at its West Plains, Missouri, terminal," stated that "the company has a bona fide doubt as to the majority status of your union , and for that reason we believe that it would be appropriate to have your status determined" by a Board election, and noted that the Union had already filed a petition for an election with the Board's Regional Office. Upon the filing of the unfair labor practice charges, alleging, among other things, that Respondent unlawfully refused to bargain, the Union's request for the withdrawal of its representation petition was granted by the Regional Director on June 27. b. Respondent's contentions and concluding findings Counsel for Respondent contends in his brief (1) that the Union's letter of April 28 "makes no demand for recognition or request that the company bargain with it"; (2) that the Union had filed a petition for an election before Respondent received the Union's letter of April 28; and (3) that "the Respondent expressed a bona fide doubt and still has such doubt about the status of the Union." I find no merit in any of Respondent's contentions. him to pay union wages " Camden further testified that his only comment was , "I guess it wouldn't " I credit Camden 's version of the conversation on this occasion " See, e g N L R.B v Intl Union, United Automobile Workers (Aero Corporation), ,363 F 2d 702 (C.A.D.C ), enfg 149 NLRB 1283, 1286 ; and Southland Paint Company, Inc., 156 NLRB 22, at 44, 45. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well settled that no "special formula or form of words" is necessary to invoke bargaining. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732,741 (C.A.D.C.). The Union's letter clearly indicates its desire for recognition. Implicit in a Union's request for recognition is a demand that Respondent deal and bargain with it. Respondent cannot reasonably claim that it was confused or misled by the Union's letter. Its reply indicates its awareness that the Union was seeking recognition, and its refusal was based solely on its assertion that it had a bonafide doubt of the Union's majority claim. And a refusal "to recognize" the duly designated representative of a majority of the employees in an appropriate unit in itself constitutes a refusal to "bargain" within the meaning of Section 8(a)(5) of the Act. McQuay-Norris Manufacturing Company v. N.L.R.B., 116 F.2d 748 (C.A. 7). Finally, as Respondent's refusal to recognize the Union is hereinafter found to have been motivated by a rejection of the collective-bargaining principle and a desire to gain time to subvert unionization, its claim that the Union's request was defective appears to be an afterthought, advanced for the first time in the brief, to justify its refusal to recognize and bargain with the Union.12 The filing of the Union's representation petition is neither inconsistent with a recognition request nor affords the Respondent a basis for a good-faith doubt of the Union's majority status. For a union may seek alternative procedures for attaining recognition." The question of whether Respondent entertained a good-faith doubt of the Union's majority status must be assessed in the light of all the surrounding circumstances, particularly its contemporaneous conduct. Engineers & Fabricators, Inc. 156 NLRB 86. And "to be `fair' or in `good faith' doubt must have a rational basis in fact." N.L.R.B. v. Glasgow Co., 356 F.2d 476 (C.A. 7); N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229, 236 (C.A. 8). In the instant case, as previously found, Respondent reacted to the Union's request by engaging in the unfair labor practices which were plainly calculated to discourage adherence to the Union and to preclude the holding of any free election. When this is considered together with the fact that Mauldin and White told Higginbotham that they had signed union cards and Mauldin also stated that all the employees had signed cards, Respondent's conduct is tantamount to an absolute refutation of any good-faith doubt and is indicative of a rejection of the collective- bargining principle and a desire "merely to gain time to dissipate the very majority which it now contends was in doubt." N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176, 180 (C.A. 2). Under these circumstances, Respondent's refusal to recognize the Union cannot be attributed to a good-faith doubt of the Union's majority status. Accordingly, I find that by refusing to recognize the Union, Respondent has violated Section 8(a)(5) and (1) of the Act. 14 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to 12 Montgomery Ward & Co, 160 NLRB 1729, 1744-45 13 Ibid at 1745-46, Vinylex Corporation, 160 NLRB 1883, 1884, fn 3 labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. All employees of Ozark Metor Lines at its West Plains, Missouri, terminal, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since April 27, 1966, the Union has been, and still is, the exclusive representative of all the employees within the said appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9(a) of the Act. 3. By refusing to recognize General Drivers, Salesdrivers, Warehousemen and Helpers, Local Union 245, affiliated with International Brotherhood of' Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the above -described appropriate unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By the foregoing conduct, by the discharge of Delbert Camden for the reasons found in section III, C, supra, and by the conduct of M. M. Higginbotham detailed in section III, B, supra, the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by 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 aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in unfair labor practices insofar as the complaint alleges violations of the Act in the discharge of Robert Mauldin or in any other respect not specifically found herein. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent violated Section 8(a)(1) of the Act by the discharge of Delbert Camden. On the evening of August 22, while the instant hearing was in progress, Camden received from Higginbotham a letter offering him "immediate and unconditional reinstatement as an employee of Ozark Motor Lines at its West Plains" terminal without "any offer of back pay for the period of your separation." The letter further requested Camden to "report for work at the earliest possible date" "if you decide to accept this offer." The next day, Camden testified that he had informed Higginbotham that noon that he was willing to come back as a truckdriver in response to this letter. Higginbotham testified that his letter constituted an offer of reinstatement to the same duties and responsibilities which Camden previously had and at the same rate of pay. However, it is not clear from this letter and the testimony whether Camden was offered 14 Joy Silk Mills, Inc, 85 NLRB 1263 , enfd 158 F 2d 732 (C A D C ), cert. denied 341 U S 914 OZARK MOTOR LINES reinstatement without prejudice to his seniority or other rights and privileges. Under these circumstances and in order to clarify the reinstatement offer, I will recommend that Respondent offer Camden the same seniority or other rights and privileges he would have had in the absence of his discharge. I will further recommend that Respondent make Camden whole for any loss of earnings he may have suffered as a result of his discharge, by payment to him of a sum of money equal to that which he normally would have earned as wages from May 17, 1966, the date of his discharge, to August 22, 1966, the date when Camden received Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F.W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co. 138 NLRB 716. Having further found that Respondent refused to recognize the Union in violation of Section 8(a)(5) and (1) of the Act, I will also recommend that, upon request, Respondent recognize and bargain collectively with the Union as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. Moreover, I would recommend the same bargaining order even if I were to accept Respondent's contention that no 8(a)(5) violation can be found because of an alleged defect in the Union's request. For, effectuation of the policies of the Act would still require it in order properly to remedy Respondent's other unfair labor practices herein found. 15 Because of the character and scope of the unfair labor practices found to have been engaged in by Respondent, I will recommend that Respondent cease and desist from in any other manner interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Respondent, Ozark Motor Lines, West Plains, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with General Drivers, Salesdrivers, Warehousemen and Helpers, Local Union 245, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of its employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: All employees of Ozark Motor Lines at its West Plains, Missouri, terminal, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) Discharging any supervisor for failing to induce the employees to withdraw their authorization cards from or is See, e g, Northwest Engineering Co, 158 NLRB 624, 629 Bryant Chucking Grinder Company, 160 NLRB 1526,1530 16 In the event that this Recommended Orderas 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 311 support of the above-named or any other Union, in a manner prescribed by the Act. (c) Threatening employees with discharge or other economic reprisals if they did not withdraw their authorization cards from or support of the above-named or any other Union. (d) Promising or offering wage increases, shorter hours, or any other economic benefits to induce the employees to withdraw their authorization cards from or support of the above-named or any other Union. (e) Interrogating employees with respect to their union membership, activities, or signing of union cards, in a manner constituting interference, restraint , or coercion within the meaning of Section 8(a)(1) of the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Offer to Delbert Camden the same seniority or other rights and privileges he would have had in the absence of his discharge on May 17, 1966. (c) Make Delbert Camden whole for any loss of earnings he may have suffered as a result of his discharge in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay. (e) Post at its place of business in West Plains, Missouri, copies of the attached notice marked "Appendix." iS Copies of said notice, to be furnished by the Regional Director for Region 17, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.17 I FURTHER RECOMMEND that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 17 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 " 312 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 discharge any supervisor for failing to induce employees to withdraw their authorization cards from or support of General Drivers, Salesdrivers , Warehousemen and Helpers Local Union 245 , affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, in a manner prescribed in the Act. WE WILL NOT threaten employees with discharge or other economic reprisals if they do not withdraw their authorization cards from or support of the above- named , or any other, Union. WE WILL NOT promise or offer wage increases, shorter hours, or any other economic benefits, to induce employees to withdraw ` their authorization cards from or support of the above -named, or any other, Union. WE WILL NOT interrogate employees with respect to their union membership , activities , or signing of union cards, in a manner constituting interference, restraint , or coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL offer to Delbert Camden the same seniority or other rights and privileges he would have had in the absence of his discharge on May 17, 1966, and will make him whole for any loss of earnings suffered as a result of his discharge. WE WILL, upon request , recognize and bargain collectively with the above-named Union as the exclusive representative of all employees in the following appropriate unit with respect to rates of pay, wages, hours of employment , and other conditions of employment , and embody in a signed agreement any understanding reached . The bargaining unit is: All employees of Ozark Motor Lines at the West Plains, Missouri, terminal, excluding office clerical employees , guards, professional employees, and supervisors as defined in the Act. OZARK MOTOR LINES (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting , and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Room 610, Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-5282.