Louis Page Contracting

LOUIS PAGE CONTRACTING 629 Louis Page d/b/a Louis Page Contracting and Local Union No. 379, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 1-CA-5572 June 30, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 4. 1967, Trial Examiner C. W. Whit- temore issued his Decision in the above-entitled proceeding, finding that the Respondent, also referred to herein as Page, had not engaged in the unfair labor practices alleged in the complaint and recommending that the compllaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent 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 Na- tional Labor Relations Board has delegaged 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 briefs. and the entire record in this case, and finds merit in certain exceptions. Accordingly. the Board adopts the findings, conclusions, and recommenda- tions of the Trial Examiner only to the extent con- sistent herewith. 1. While we agree with the Trial Examiner that Respondent did not discharge employees Reed,' Peone, Manning. and Dooley for engaging in union activities in violation of Section 8(a)(3). we do not agree that their discharges Were not violative of Section 8(a)(1). In our view, the evidence in the record amply establishes that the above-named em- ployees were discharged because of their protest of a change of hours, which they believed would affect their wages, and that they were thereby participat- ing in a protected concerted activity within the meaning of the Act. The Respondent is a subcontractor in the busi- ness of leasing trucks for the purpose of hauling dirt from construction sites. He had seven men in his employ and paid them an hourly wage. On Satur- day, July 9, 1966, at 7 a.m., employees Reed, Peone, Manning, and Dooley2 appeared at contrac- tor Mancuso's jobsite for work, as instructed the previous evening by Page, and immediately com- menced work pursuant to Page's direction. At 7:20 a.m. Mancuso appeared and told employee Reed to have the other drivers park their trucks until 8 a.m., since he was not paying for their services until then. Reed refused to follow Mancuso's instruction, stat- ing that they would leave the job rather than not get paid for working time. The discussion continued and Reed called the men off the job. Mancuso im- mediately telephoned Page and explained to him that the men had walked off because of a disagree- ment over the starting hour.3 Page then left his of- fice and drove to the jobsite. While in transit he met Reed, Peone, Manning, and Dooley, who were on their way back to Respondent' s garage. Page spoke first and told them to go back to the jobsite. Reed and the others refused, and Page then ordered them to return to the garage. At the garage, Page renewed his request that the employees return to the jobsite. When they refused again, Page told them to turn in their keys, that they were "through." Respondent contends that the action of these em- ployees was not protected under the Act, and that he lawfully discharged them for insubordination because they refused to obey his instructions. In this connection Respondent alleges that when he inquired of the employees why they walked off, they replied only that they would not work on Man- cuso's job, and that therefore he had no choice but to fire them. However, as noted above, the record reveals, and Respondent concedes, that before Page met these employees, he knew that they walked off because of a dispute over the hour they were to start work. Thus, when Page confronted his employees on the road. he was aware of the incident at the jobsite and that the employees were per- turbed over a change of a condition of employment which seemed unjust to them. Although it is not clear from the record that the employees walked off the job in concert, their refusal to resume work, upon meeting and being asked to do so by Page, was I The Trial Examiner found that the Respondent had five employees, excluding Goldsborough and Reed. whom he found to be supervisors. While we affirm the Trial Examiner's finding that Goldsborough was a su- pervisor. we do not agree that Reed had supervisory status It is clear from the record that, as the General Counsel contends, Reed was given the title of assistant truck foreman, but did not perform duties which would qualify him as a supervisor within the meaning of the Act. Thus, Reed did not , upon getting this title, receive higher wages than his fellow drivers, and he did not have authority , normally enjoyed by a supervisor, to hire or fire employees , to dispatch trucks, or to exercise discretion. The 166 NLRB No. 59 tasks Reed carried out independly - checking to see that the trucks were fueled and covered , and checking daily time slips - were either main- tenance or clerical in nature and not supervisory. Accordingly , we find Reed was not a supervisor and include him in the unit The unit thus was comprised of six employees - Reed, Peone, Dooley, Brooker, Fogg, and Manning 2 Dooley had gone to the jobsite for the ride , he had not actually been instructed by Respondent to work that day. 3 Respondent in his brief. as well as in Page's own testimony . admits knowing that the dispute was over the starting hour. 308-926 0-70-41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clearly a concerted activity of which Page was fully cognizant. On these facts there is no doubt that Respond- ent's employees were engaging together in an economic strike over a condition of employment, and they were thus participating in a concerted ac- tivity protected by Section 7 of the Act Ac- cordingly. the Respondent was at liberty to replace them if he could find new employees. but he could not discharge them solely because they took part in such a strike. It is patent that here the Respondent's only reason for terminating the four employees was their participation in the strike and that the Respond- ent thereby violated Section 8(a)(1) of the Act.4 Since the Respondent unlawfully discharged the striking employees, the strike was prolonged by that unfair labor practice and was converted from an economic strike to an unfair labor practice strike. Accordingly, the strikers are entitled to reinstate- ment regardless of whether they were replaced sub- sequent to July 9. 2. However, even if the strike had not been con- verted by the Respondent's unfair labor practices, it is clear that the Respondent unlawfully refused to reinstate the strikers upon unconditional request made prior to their replacement. We find, contrary to the Trial Examiner, that by this conduct, the Respondent further violated Section 8(a)(1) of the Act. We have found above that on the morning of July 9 the employees engaged in an economic strike. Im- mediately upon returning to the Respondent's garage that morning, the strikers telephoned Mc- Morrow, the Union's president, who had been in the process of organizing the Respondent's em- ployees. McMorrow sought to see Respondent Page and found him at the Mancuso jobsite. Mc- Morrow thereupon requested that the discharged employees be reinstated, but Page refused to discuss the matter and walked away. It is un- disputed that the Respondent had not at that time employed other drivers to replace any of the strikers. Under these circumstances, it is well settled that the striking employees were entitled to reinstate- ment to their positions. The Respondent's refusal to allow them to return to work was therefore inde- pendently violative of Section 8(a)(1).'' 3. The Trial Examiner, having found that the discharged employees were not terminated unlaw- fully, concluded that the Union did not represent a majority of the employees at any time. He held therefore that Respondent did not violate Section " Makela Welding, Inc , 159 NLRB 964, 968 (Fallon and Kiskila) Cf Hilton Mobile Homes, 155 NLRB 873, 875 5 The Respondent contends that McMorrow requested only that Page talk with him about reinstatement and negotiations and that McMorrow did not make an unconditional request for reinstatement of the strikers However, it is clear from the record that this request to return to work was 8(a)(5) of the Act in refusing to bargain upon de- mand by the Union . In light of our finding that Reed was not a supervisor and that the Respondent un- lawfully discharged Reed , Peone , Manning, and Dooley in violation of Section 8(a)(1) of the Act, we must reexamine the Trial Examiner's findings as to the 8 (a)(5) allegation. The Union made its first demand for recognition and bargaining 7 during the morning of July 9, 1966. At that time Reed , Peone, and Dooley were already union members , having joined some time before. The General Counsel alleges that in addition Manning and Fogg had orally authorized McMor- row to act for them as their collective -bargaining representative at a union meeting on July 7 at Peone's home. Although Fogg denied at the hearing that he had given such authority on that date, it is not disputed that later during the morning of July 9 Fogg, Brooker , and Manning joined the dischargees on the picket line and each signed an authorization card which he dated July 7. Therefore, it is not clear whether the Union represented a majority of the Respondent's employees at the time McMorrow made the initial demand for recognition on July 9, but there is no question as to the Union 's majority status thereafter. In these circumstances , we do not find that the Respondent unlawfully refused to bar- gain on July 9, although we note that the Respond- ent never questioned the Union's majority status and flatly refused to bargain without giving any reasons. A different situation existed on July 12 , 1966. By that time the Union, as indicated, had been designated by the six employees in the unit. That day the Respondent's counsel , the Union's attor- ney, and McMorrow met to discuss the matter, and the Union renewed its demand for recognition. Respondent's counsel admittedly refused to discuss the matter and replied that the Respondent could not sign a contract at that time but that the Union should give the Respondent a chance to grow and the attorney was sure the Respondent would even- tually do the right thing. There can be no doubt as to Respondent 's obliga- tion to bargain with the Union on July 12, 1966, un- less a good-faith doubt existed as to the Union's majority status . In fact , the Respondent never questioned the Union's majority standing . Further- more , the Respondent's conduct herein in discharg- ing the strikers for exercising their statutory rights, unlawfully refusing to reinstate the strikers upon request, and refusing even to discuss a contract fully demonstrates the Respondent 's complete re- not conditioned on the granting of recognition and that the two were separate demands a Makela Welding, Inc , supra, 967 There is no dispute that the appropriate unit consists of all truckdrivers employed at the Respondent's Burlington location, exclusive of office clerical employees, professional employees, guards and all super- visors as defined by the Act LOUIS PAGE CONTRACTING 631 jection of the collective-bargaining principle and established that the Respondent acted in bad faith in refusing to recognize and deal with the Union. Accordingly, we find that the Respondent thereby violated Section 8(a)(5) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth above have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and constitute unfair labor practices which tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices as set forth above, we shall order that it cease and desist therefrom and take certain affirmative action to ef- fectuate the policies of the Act. Having found that the Respondent has failed to bargain with Local 379 as representative of its em- ployees in an appropriate unit, we shall order that the Respondent, upon request, bargain collectively with Local 379 concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. Having found that Respondent's employees, since July 9, 1966, have been engaged in an unfair labor practice strike, or in any event were unlaw- fully denied reinstatement upon unconditional ap- plication, we shall order that Respondent offer to reinstate Clarence Reed, Roy Peone, Joseph Dooley, and John Manning to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, others hired since that date. Further, we shall order that Respondent make them whole for any loss of pay they may have suf- fered as a result of this discrimination against them by payment to them of a sum of money equal to that which they would have earned as wages from the date of their offer to return to work to the date of reinstatement, less net earnings during this period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with 6 percent interest thereon, such interest to be com- puted in accordance with the formula prescribed in Isis Plumbing and Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 379, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times since July 9, 1966, Local 379 has been and is the collective-bargaining representative of the employees of Respondent in the unit described as follows: All truckdrivers employed at Respondent's Burlington location, exclusive of all office clerical employees, professional employees, guards and su- pervisors as defined in the Act. 4. Respondent discharged employees Reed, Peone, Manning, and Dooley on July 9, 1966, for engaging in protected concerted activities, thereby violating Section 8(a)(1) of the Act. 5. By reason of Respondent's said unfair labor practices, the strike of Respondent's employees was converted on July 9, 1966, from an economic strike to an unfair labor practice strike. 6. Respondent's refusal to reinstate the above- named employees, after an unconditional request was made, violated Section 8(a)(1) of the Act. 7. By its failure on July 12, 1966, to recognize and confer in good faith with Local 379 with respect to wages, hours, and other terms and condi- tions of employment, Respondent has committed and is committing an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not violated the Act in any respect not herein found. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Louis Page d/b/a Louis Page Contracting, Burlington, Massachusetts, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or discriminating in regard to their hire, tenure of employment, or condi- tions of employment, because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) Refusing to bargain with Local 379 as collec- tive-bargaining representative of the employees in a unit comprised of "all truckdrivers at Respond- ent's Burlington location, exclusive of office cleri- cal employees, professional employees, guards and supervisors as defined in the Act" with respect to rates of pay, hours, and other terms and conditions of employment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in a labor organization as a condition of employ- ment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Upon request, bargain collectively with Local 379 as the exclusive collective-bargaining representative of the employees in the aforesaid unit, with respect to wages, hours, and other terms and conditions of employment, and, if an agreement is reached, incorporate the same in a written con- tract. (b) Offer to employees Reed, Peone, Dooley, and Manning immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed. (c) Make the above-named employees whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner and in accordance with the methods referred to in the section above entitled "The Remedy." (d) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary or useful to determine the amount of hackpay due under the terms of this Order. (f) Post at its garage in Burlington, Mas- sachusetts, copies of the attached notice marked "Appendix."s Copies of said notice, on forms pro- vided by the Regional Director for Region 1, after being duly signed by the Respondent's representa- tive, shah be posted by the Respondent immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 1, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. " [n the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decision and Order" shall be substituted for the words "a Decree of the United States Court of Appeals Enforcing an Order," APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify all employees that: WE WILL, upon request, meet, and confer in good faith with representatives of Local Union No. 379, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America with respect to wages, hours, and other conditions of employment, of our employees in the unit described as follows: All truckdrivers at Respondent's Burling- ton location, exclusive of office clerical employees, professional employees, guards and supervisors as defined in Sec- tion 2(11) of the Act. WE WILL offer employees Reed, Peone, Dooley, and Manning immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previ- ously enjoyed. WE WILL make the above-named employees whole for any loss of pay they may have suf- fered by reason of the discrimination against them. WE WILL NOT discharge any of our em- ployees or discriminate in regard to their hire, tenure of employment, or any term or condition of employment, because they have engaged in concerted activities for the purpose of mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. Louis PAGE D/B/A Louis PAGE CONTRACTING Employer Dated By (Representative) (Title) NOTE: We will notify the above-named em- ployees if presently serving in the Armed Forces of the United States of America of their right to full LOUIS PAGE CONTRACTING reinstatement upon application in accordance with the Selective Service Act and the Universal Milita- ry Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive 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, 20th Floor, John F. Kennedy Federal Building, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 223-3300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE C. W. WHITTEMORE, Trial Examiner: Upon charges duly filed by the above-named labor organization,, the General Counsel of the National Labor Relations Board on September 28, 1966, issued a complaint and a notice of hearing thereon, against the above-named Respondent. An answer was duly filed by the Respondent. The Com- plaint alleges and the answer denies that the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) -of the National Labor Relations Act, as amended. Pursuant to notice, a hearing opened on October 31, 1966, before Trial Examiner George Christensen, in Boston, Massachusetts. After receiving in evidence the formal documents, Trial Examiner Christensen granted General Counsel's motion for an indefinite recess in order to obtain compliance with a subpena previously served on an official of the Respondent. The hearing was resumed on November 29 and 30, be- fore me. All parties appeared at the hearing sessions, were represented by counsel, and were afforded full op- portunity to introduce evidence pertinent to the issues. Oral argument was waived. Briefs from all parties have been received and considered. Disposition of the Respondent's motion to dismiss the complaint, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the entire record of the proceedings, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Louis Page is an individual doing business under the trade name and style of Louis Page Contracting. He maintains his principal office and place of business in Burlington, Massachusetts, where he is engaged in the business of renting heavy-duty equipment to contractors for the hauling of sand, gravel, fill, and related material. During the 12-month period ending August 31, 1966, ' The original charge was filed July 20, 1966. and an amended charge was filed August 12, 1966. 2 His testimony is indisputed to the effect that he "put" Goldsborough 633 Page performed services valued at more than $50,000 in connection with the building of Federal projects and federally supported projects and with the maintenance of both intrastate interstate highways , such services having a substantial impact upon the national defense of the United States. The complaint alleges, the answer admits , and it is here found that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Local Union No. 379, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization admitting to membership employees of the Respondent. Iii. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Events and Issues As noted above, Page "rents" hauling equipment to contractors for the purpose of moving earth. During the period material to the chief issues raised by the com- plaint, he employed seven individuals who drove his trucks. Of these seven there is a dispute as to the super- visory status of two: Goldsborough and Reed. Facts and conclusions as to their status will be set out below. There is no evidence in the record to show that before early July 1966, Local Union No. 379 by any of its agents made any effort formally to organize Page's em- ployees, although the Employer's own testimony war- rants the inference that before July he had reason to be- lieve that three of his force were members of this local: Goldsborough, Reed, and Peone.2 That such knowledge or belief was not shared by the Union's president and business agent, Frank McMorrow, until the last of June or first of July is indicated by his admission that not until after talking with Peone, at such time, did he check office records to see if others among Page's employees were members. Despite his lack of contact with the employees, how- ever, it appears from McMorrow's testimony that in mid- June he wrote a letter to a certain contractor who was then using some of Page's trucks and drivers, protesting that for these drivers the Union was not receiving "pen- sion and welfare contributions." Also according to this union official, shortly after sending this letter he had a telephone call from Page, who said he had been instructed by the contractor to "look into the matter." McMorrow further testified that he then told Page he "had been in touch" with "some" of his employees who "were.con- cerned" about their wages and they "had instructed" him to "discuss with him the possibilities of signing a con- tract." Thereupon, according to McMorrow, Page declined to meet with him "to discuss any of these problems." As a witness Page flatly denied communicating with McMorrow in June. This incident, even if it occurred, is not urged by General Counsel in his compalint as "refusal to bargain"; July 9 being the first date claimed for this alleged viola- tion. In denying a motion by counsel for the Respondent and Reed "in" the Union by advancing to it their initiation fees, and that sometime in May or June he discussed with Peone his membership card 634 DECISIONS Of- NATIONAL LABOR RELATIONS BOARD to strike McMorrow's testimony on the point, I permitted it to remain "as a preliminary matter " General Counsel did not thereafter move to amend the complaint to allege an earlier date of refusal to bargain and neither counsel for the Respondent nor I was, so far as the record shows, informed of such claim until receipt of General Counsel's brief. In that brief, for the first time, General Counsel contends that "on or soon after June 22, 1966," McMor- row made his "initial demand for recognition" since he believed that the Union represented a majority of "Respondent 's employees" and that at this time "Page unequivocally refused to talk further with McMorrow " These contentions, when considered along with his claim that at the time the Union in fact did represent a majority of the employees, certainly spell out the factors, in my opinion , ordinarily involved in a formal allegation of un- lawful refusal to bargain Since no alleged refusal to bargain "on or about June 22" was fully litigated or claimed, at the hearing, clearly I cannot appropriately make a finding upon the belated contention . Moreover, I find nothing in McMorrow's testimony to support General Counsel's claim that the union president "believed" the Union represented a majority in June, or made any "demand for recognition" on the basis of majority status. On the contrary, McMor- row's own testimony, as noted above, is to the effect that he merely told Page at this time that he had "been in touch" with "some" of the drivers. Finally, as to this incident of the Page-McMorrow telephone conversation, I have genuine doubt that it ac- tually occurred. If it did, then McMorrow misrepresented to Page facts well known to himself For other portions of his testimony, as well as that of employees, establish that not until July 7 was he "in touch" with "some" of them. It was on this later occasion, according to his own testimony, that they discussed "what could be done about getting the wages up to the level it should be.--' On July 7 Mc Morrow did meet with several employees at the home of Peone it is General Counsel's contention that at this meeting a majority of those drivers "orally" authorized the Union to represent them and McMorrow to seek a contract with Page Although, for reasons stated, I make no finding as to any refusal to bargain in June, I have described, perhaps at unnecessary length, McMorrow's claims as to his de- mand upon Page in that month Such claims, lacking merit as noted, are considered relevant to determination of the union representative's credibility as to issues raised by the complaint Turning to the July events in issue, and the meeting on July 7, according to McMorrow's testimony all em- ployees there "agreed" that he should see Page and set a "dead-line" for him to sign a contract or they would go on strike. He obtained no signatures to union authorization cards on this occasion, nor is there evidence that he sought any Before McMorrow got around to "seeing" Page, how- ever, at least three of the drivers, Reed. Peone, and Manning, were fired by the Employer There is dispute as to whether a fourth employee, Dooley, was discharged at the same time . General Counsel's chief and final claim is that the four individuals were terminated because they engaged in "protected concerted activities," in simpler terms, a strike. The Respondent contends that the discharges were the direct and only result of the em- ployees' refusal to obey a proper order of their employer. The circumstances will be described below. Not until after McMorrow was informed of the discharges did he go to see Page. According to his testimony he told the employer that he wanted to talk to him about putting the men back to work and "about a contract." Page replied, also according to McMorrow, that as far as he was concerned the men were fired and he had no intention of talking about a contract. The union president later the same day returned to Page's garage in Burlington where drivers, mcludi,ig those who had been fired, were congregated, and for the first time asked the three who had not signed union cards to do so, instructing them to date such cards back to July 7. They complied Two or three days later Page's attorney met with Mc- Morrow at a Boston hotel According to McMorrow this attorney told him that Page would go out of business be- fore he would sign a contract. In his brief General Counsel fairly accurately states that the issues are (a) Did Respondent discharge Dooley, Manning, Reed, and Peone because of their union activities and/or concerted activities? (b) Did Respondent act in bad faith when it refused the Union's demands for recognition at a time when the Union represented a majority in an appropriate unit9 (c) Did Respondent refuse to reinstate Dooley, Manning, Reed. and Peone because of their union activi- ties and/or concerted activities? B. The Discharge Issue I Relevant facts In essential respects the testimony concerning events leading to the discharges, from Reed and Dooley as wit- nesses for General Counsel, and from Page, is in general agreement On Friday night, July 8, Page telephoned Reed (who, as a witness, admitted that he was a foreman), told him to get in touch with employees Peone and Manning, and directed that all three should report at 7 o'clock the next morning at a construction site in Andover. herein referred to as the Mancuso job. As instructed, the three drove separate trucks to this location. Employee Dooley, who lived at Peone's house, accompanied this driver, as he said, "just for the ride," since he was not scheduled to work on Saturday. They began work on time. Some 15 or 20 minutes later Man- cuso, the contractor, appeared He asked Reed who had authorized him to start at that hour Reed said Page had. Mancuso then declared that they were not supposed to begin before 8 o'clock, and told Reed to park the trucks until then Reed refused He and the other two drivers left the job and headed back to Page's garage in Burlington Page, having been notified by Mancuso of their action, met them on the road before they reached Burlington. Ac- cording to Reed's own testimony. (I) Page spoke first to him and told him to go back to the Andover site, (2) he refused and declared, "Those drivers are not going back", (3) Page turned to the others and told them to go back and they refused Reed admitted that he gave Page ' There is credible evidence that Mc Morrow did meet with a single em- ployee. Reed, whose supervisory status is in question on June 28, when wages were discussed This discussion with one individual not some however, was several days a/re, his claimed talk with Page LOUIS PAGE CONTRACTING 635 no reason for their refusing to follow instructions 4 The Employer then ordered them back to the garage with the trucks. At the garage, Page testified, he again asked them to return to work and they again refused, whereupon he told them to turn in their keys and that they were "through." He denied that he actually fired Dooley, although ad- mitting that this employee was with the others whom he did discharge. Under the circumstances described by Page himself, I cannot credit his denial. Although he may not have spoken directly to Dooley, and by name, this employee was in the group which, individually, had refused to obey his order, and it is his contention that he took the disciplinary action because of such refusal. It is clear that Dooley believed he was fired along with the others, and that there was substantial foundation for this belief. There is no evidence that Page thereafter made any effort to disabuse Dooley of his understanding. He admitted that after Saturday he made no "attempt to con- tact" Dooley. At this point it is found that Dooley, in effect and in fact, was discharged along with Reed, Manning, and Peone on July 9, as alleged in the complaint. 2. Conclusions The complaint alleges alternative reasons for the four discharges: (1) union activities ("joined or assisted the Union") or (2) engaging in a lawful strike ("engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection"). It is true, as noted above, that long before the discharges on July 9 Page knew that some of his drivers had joined the Union, since he had paid their initiation fees. But there is not the slightest evidence that he fired any one of the men on this date because of such joining. Nor is there any evidence that before the terminations Page knew of the meeting with McMorrow at Peone's home on July 7- the single incident which might be called union "assistance." In his brief General Counsel does not urge that union membership or activities in any way precipitated the discharges. In fact, early during the hearing he apparently had abandoned the first element of the complaint's alternative allegations. When I suggested that he clarify seeming confusion, counsel said, in part: what we're trying to show here is that a strike began on July 9th, beginning at the Andover I.R.S. construction site. Now, while the men were on strike, they were discharged... . His brief explains, at greater length, what he con- sidered he had proven. In summary, he contends that: (1) the four men "walked off the job in protest" because "they believed that, since their trucks would be idle (until 8 o'clock) they would not be paid, and so informed Man- cuso"; (2) Page knew, when meeting the men after they left the site, "why the employees walked off the job from his previous contact by `phone with Mancuso"; and (3) when the four "refused to return to the construction site, they were all fired." As I read the argument it is, in sub- stance, that the employees were engaging in protected concerted activities both when they walked off the site and when they refused to return to it, that the "strike" was protected and a "labor dispute" existed because they believed they would not be paid, and that Page fired them well knowing why they were "striking." General Counsel's theory is a good one. It would be better if facts supported, and, of course, if the record con- tained credible evidence to establish the facts.5 In the first place, General Counsel's use of the plural "they" in ascribing subjective reasons for the "walk off," or as to what reason was given Mancuso, must rest on in- ference, not direct testimony. Only two drivers were questioned about the event: Reed and Dooley. Dooley obviously did not "walk off." He was neither working nor due to work that day; he merely rode along with Peone According to his testimony, on cross-examination, he was in the truck cab when Mancuso approached and heard neither what this contractor said to Reed nor what Reed replied. Reed alone testified about the exchange between himself and Mancuso. His testimony is that he told Man- cuso "we weren't going to park the trucks because we wouldn't get paid for that hour, and he said if I didn't like it, I could take the trucks and go home, and this is what I did." Although Peone was called by General Counsel as a rebuttal witness, he was not questioned about the "walk off," or his discharge. Manning was not a witness. Thus only from Reed's testimony would it be possible to infer why Peone and Manning left the site. There is no evidence that they heard what he told Mancuso, that they agreed with what he said, or that they adopted as their own the reason Reed says he gave Mancuso for refusing to park until 8 o'clock. Indeed, it appears reasonable to infer, from the only relevant testimony in the record, Reed's, that Peone and Manning actually left the job because Reed, their foreman, led them off. Reed testified that while he could not recall whether he said to the two, "Come on, let's go," he said, "I didn't demand anybody. I just left and they followed." Reed admitted that he did not call Page before leaving the job, although customarily he did so when problems arose. It follows that at the time Page met Reed and the others on the road the Employer had not been informed by any of the drivers as to why they left the site. It appears that General Counsel would have it found by inference that Page knew "they" left the site because "they" wanted pay for waiting, and that this inference is to be founded on another inference: that Mancuso must have told Page what Reed had given him as his reason- not for leaving- but for refusing to park until 8 o'clock. Courts have frowned on resting a conclusion on in- ferences piled one upon another. They would scowl in- deed, I believe, if I yielded to the argument here. The only direct testimony, concerning whatever Mancuso may have told Page, was elicited by General Counsel himself. He asked Page: Isn't it also true that Mr. Mancuso told you that they 4 As to this incident, Page testified that after Reed refused, he turned to Peone, Manning, and Dooley, told them to drive the three trucks back to Andover and Reed would ride with him After all refused, he told them to take the trucks back to the garage. ' while perhaps of only minor significance, I note that the Union itself, which filed both charges, in neither one claimed that the employees were fired because they were engaging in, or even while engaging in, a strike It alleged only that the cause was their "activities on behalf of and/or their membership" in the Union, which is consistent with McMorrow's accusa- tion to Page, as described below, that he had fired them because they at- tended a union meeting with him 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD walked off the job because they believed they would not be paid for that period of waiting? Page replied: "No." It thus appears that General Counsel developed direct refutation of the important inference he seeks. In short, I consider that General Counsel has not established, by a preponderance of credible evidence:(1) that Reed, Peone, Manning, and Dooley were engaged in protected concerted activities when they left the con- struction site, or (2) that Page knew or had been given reason to believe at the time he met them on the road that they were "striking" to obtain pay for the "waiting" time. As to why Reed, Manning, Peone, and Dooley refused to take the trucks back to the construction site, Reed testified only that after Page ordered him back he told him "we weren't going back up to the job," and that "those drivers aren't going back." All Dooley said about this critical incident was that when Page asked him to take Reed's truck back to the site, "I refused." Page himself testified that when he ordered Reed back, "Larry told me he wouldn't go back. He wouldn't work for that guy [Mancuso] anymore." He was given no reason by Reed or any other employee to believe that they refused to go back because they were "striking" for "waiting" pay. In his brief General Counsel concedes that "no de- mand had been presented to Respondent" concerning pay while trucks were idle, "immediately prior to the walk- off." There is no evidence in the record of any precedent for the Mancuso incident, in precise or similar detail. And a document placed in evidence by General Counsel, pur- portedly taken from company payrolls, shows that all but Dooley, who was not scheduled to work, were actually paid for a full hour's work that day. Under the circumstances, I conclude that General Counsel has failed to sustain his burden of proving that the four individuals were fired because they were engag- ing in protected concerted activities, known or believed to be such by the Employer. In this type of an 8(a)(3) case, as in others, it is the mo- tive precipitating the discharge (or other discrimination in employment) which is determinative of its unlawful character. Where the claim is that an employee has been fired for his union membership or activity it is not enough to prove only that such membership or activity existed. There must be convincing evidence that the employer knew of or at least had good reason to believe that they existed, in order to support the inference that unlawful discrimination was indeed intended. Criteria are no less exacting, I believe, in cases of alleged discrimination because of protected concerted activities. As noted at length above, I fail to find persuasive evidence that Page knew, was informed by anyone, or had any real reason to believe that the men were striking to obtain waiting time pay, on this job or any other. I credit Page's testimony to the effect that he was told by Reed that the men would not go back to work for Mancuso. Only in the broadest sense may it be found that "a labor dispute" existed, or that the men were engaging in "concerted activities." Speculation only leads to the conclusion that such activi- ties were protected. The more potent facts point to a sim- ple refusal to carry out a reasonable order. In my opinion the credible evidence supports the reasonable conclusion that Reed resented Mancuso's ulti- matum, although this contractor was not his employer, led the others off the job, told Page that none of them would go back "to work for that guy" again, and that the others acquiesced in this refusal. As witness Reed readily admitted, "I took the responsibility" for leaving the job. In summary, I conclude that, in discharging Reed, Peone, Manning, and Dooley, the Respondent did not en- gage in unfair labor practices violative of the Acts C. The Refusal-to-Reinstate Issue Relevant Facts and Conclusions As an extension of the allegations of unlawful discharges on July 9, the complaint also alleges that thereafter the Respondent has refused, for the same reasons, to reinstate Dooley, Peone, and Reed and, until on or about July 13, refused to reinstate Manning. Having found, contrary to General Counsel's conten- tions, that the four discharges were not violative of the Act, it is believed that the reinstatement issue is irrele- vant. So far as I am aware, the Act does not require an employer to offer or grant "reinstatement" to a discharged employee unless his employment has been un- lawfully terminated. Since the Board may disagree with the discharge findings above, it may be well to describe briefly certain events immediately following the discharges, events material had the employees been fired because they en- gaged in concerted activities. It appears that promptly upon being discharged, Peone telephoned Union President McMorrow, who had not, so far as the record shows, made any attempt to see Page, as he claimed he had been authorized to do on July 7. Mc- Morrow testified that Peone informed him that "some of the men had been fired"- not that they were striking. Also according to the union representative, when he got to Page's' location the discharged drivers were there. "It seemed," McMorrow said, "that some of the people were instructed to report to a job in Andover that morning." Page was not at the garage when he arrived. Being informed that Page had probably gone to An- dover, McMorrow proceeded to this site, and there found him. He introduced himself, and, he testified, "told him that it was my opinion that he had fired the men because of a meeting with them Thursday night and that I wanted to talk to him about putting the men back to work and talk to him about a contract." Page replied, he further testified, that "he had no intention of talking about a con- tract and that as far as he was concerned the men were fired." A few minutes later, McMorrow said, a similar discussion, with similar results, took place in Mancuso's presence.7 Meanwhile the discharged employees remained in the vicinity of Page's garage in Burlington, where they were I In view of my ultimate conclusions as to all four discharges, I have not believed it necessary to consider, in this section, the question of Reed's supervisory capacity and the Respondent's contention that because he was a supervisor he was not protected by Section 8(a)(3) of the Act: Y McMorrow also testified that when, in Mancuso's presence, he again accused Page of firing the men because of their previous meeting with him, Mancuso said they had driven "off the job in a big huff" after he had told them he would not pay them until 8 o'clock. This testimony I cannot believe. Mancuso did not pay the drivers, Page did, and both Reed and McMorrow admitted that they were aware of the fact. Nor did Reed testi- fy that Mancuso had said anything about pay. LOUIS PAGE CONTRACTING 637 later joined by two other drivers, Brooker and Fogg, neither of whom was scheduled to work that day. During Saturday afternoon, after he had already talked with Page, McMorrow came back to the garage, and got signa- tures to union authorization cards, under circumstances described in another section. Although McMorrow testified about a meeting on Monday, July 11, with an attorney for Page, I find nothing in his account which might be construed as an un- conditional offer on behalf of the "strikers" to return to work, or as a refusal to take them back. As a matter of fact Manning did go back on July 13, as the complaint alleges. Page credibly testified that on Monday, July 11, Reed came to him, said he was sorry for what had happened, and wanted his job back. Accord- ing to the Employer he agreed, but advised Reed to go home and rest (together with others, Reed had stayed at the garage for the preceding 2 days and nights) and then come back. Reed did not return. In his brief General Counsel appears to argue that the four individuals were refused reinstatement both as dischargees and as strikers. Certainly nothing in McMor- row's testimony reveals that "as their duly authorized collective bargaining representative" McMorrow "made to Page an unconditional offer to return to work." His testimony throughout is consistent with his first accusa- tion, uttered to Page, that the men were fired for attending a meeting with him, and such testimony, moreover, is consistent with the Union's charge. D. The Refusal-to-Bargain Issue I. The appropriate unit The complaint alleges, at the hearing the Respondent conceded, and it is here found that a unit of the Respond- ent's employees appropriate for the purposes of collec- tive bargaining consists of all truckdrivers employed at his Burlington location, exclusive of office clerical em- ployees, professional employees, guards and all super- visors as defined by the Act. 2. Employees in the unit At the hearing the parties stipulated that during the material period- from July 8 through 13, 1966- the fol- lowing seven individuals were on the employer's payroll: Roger Goldsborough, Clarence Reed, Roy Peone, Joseph Dooley, John Manning, Gerald Brooker, and Lester Fogg. The stipulation, however, does not state that these seven were the only employees on the payroll, a point the significance of which will be noted below. There is no dispute, in either the record or the briefs, as to the employee status and therefore their eligibility to be included within the appropriate unit, of all named above except Goldsborough and Reed. As to these two there is disagreement. Concerning Goldsborough, although General Counsel stated early during the hearing that he would not concede his supervisory status, he proceeded to introduce evidence leading to the reasonable conclusion that this in- dividual was, at the material time, a supervisor within the meaning of the Act. Yet in his brief he apparently aban- dons his own evidence and claims that Goldsborough was not a supervisor. He adduced evidence that: (1) Golds- borough was a truck foreman, or truck supervisor, and had been for a year or more; (2) he received about $3.67 per hour, considerably more than others on the payroll;8 (3) although, like Reed, Goldsborough had had his union initiation fees paid by Page in March 1966,9 he was not present at the July 7 meeting with McMorrow; (4) he did not participate in what General Counsel termed a "strike" after the four drivers were discharged; (5) Reed knew Goldsborough to be the foreman at a time, some weeks before July, when Goldsborough and Page came to his home to ask him to be the former's assistant; (6) when Dooley turned his keys over to Goldsborough, several days after his discharge, the foreman told him they "were crazy for going on strike because Louis Page would never sign a contract"; and (7) Goldsborough did not tell Dooley he was "still employed by Louis Page." 10 I conclude and find that Goldsborough was a super- visor within the meaning of the Act and should be ex- cluded from the appropriate unit. Also contrary to contentions of both General Counsel and the Union, it is concluded and found that Reed was a supervisor and should be excluded. Credible and un- disputed testimony established that Page had employed two foremen, Goldsborough and another, until sometime in the spring of 1966. When the other foreman left, ac- cording to his own testimony, Page and Goldsborough came to Reed's home and asked him to be the "second foreman." He agreed and his hourly rate was increased from $2.75 to $3. Thereafter his responsibilities included not only driving a truck (as did Goldsborough) but also: (1) making certain that trucks were in good shape and fueled; (2) checking daily timeslips of drivers; (3) report- ing absences; (4) testing driver applicants before their hire; and (5) making sure that loads on the road were properly covered by canvas. As a witness he admitted that one employee was fired after he had recommended to Page that he be "laid off." And, as noted above, Reed admitted that it had been his "responsibility" for leaving the Andover job and that he had informed Page that "those drivers" were not going back to it. Clearly his con- duct on July 9 was an exercise of "independent judgment." Considering the nature of Page's trucking services- operating at two or more construction sites at the same time- I am not as perturbed by the proportion of generals to privates as General Counsel and counsel for the Union appear to be. This is not a factory, or a store, where varying numbers of employees are assembled 8 The hourly rate is from a document placed in evidence by General Counsel, purportedly compiled from company records, the accuracy of which he did not question Page's oral testimony, to the effect that this foreman received $3 per hour, was given without the records before him, and without them he said he could not quote accurately. 9 According to Reed's own testimony, he accused Page on July I I of forcing them "to join the union so he could work his trucks on union jobs " 11 These latter incidents apparently were brought out by General Coun- sel to show that, as a supervisory agent, Goldsborough's statements, or lack of them, were attributable to the Respondent Earlier, during Dooley's testimony, he seemed to accept the testimony he had adduced through both Page and Reed as establishing that Goldsborough was in- deed a "foreman." When he started to query Dooley about Golds- borough's status, I asked- "Is there any question about Goldsborough being a foreman9" and General Counsel replied "Well, if you feel it's redundant." He then turned to remarks made by Goldsborough, immateri- al if he still considered him as a rank-and-file employee. Counsel for the Respondent, it appears, also considered that General Counsel was satisfied with his own evidence and made no effort to add further proof of Goldsborough's position as foreman 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under one roof and where one overseer can supervise many. It seems not unreasonable that there should be a foreman on separated jobs to serve as the employer's representative . Indeed, in this case it is plain that Man- cuso, contractor on the Andover job, approached Reed, not Page, with instructions to stop work. In short, I conclude that under the described circum- stances Reed should not be included in the appropriate unit. 3. Majority status and demand to bargain As described briefly above, McMorrow met with Reed and four employees (all but Brooker) at Peone's home on July 7. According to this union representative , "it was a meeting to discuss the problems of their wages and what could be done about getting the wages up to the level it should be." Also according to him, the employees "unanimously" agreed that he should "return to Mr. Page and set a deadline of which he would have to talk about signing a contract with us or that we would go on strike." The substance of his account of this meeting is cor- roborated by Reed and Dooley, but employee Fogg de- nied that he authorized McMorrow to represent him in any way, and employee Brooker was not there. Even if General Counsel's claim be found to have merit, that oral authorization is as valid as a signed union card, I cannot conclude that on July 7 the Union acquired majority status. It has been found that Goldsborough and Reed were supervisors on this date. It has also been noted that employees Dooley and Peone had previously signed cards. Of the remaining three employees then in the unit Brooker did not attend the meeting, Fogg flatly denied that he authorized McMorrow to represent him on July 7, and Manning was not a witness . Under the cir- cumstances of this case, especially the lack of credence which can be accorded to portions of McMorrow's testimony, I believe that such oral "authorization" must be affirmed , and thus validated, by the employee himself. As found above, McMorrow did not go to see Page, for any reason, until after employees Dooley, Peone, and Manning had been discharged . Their discharges having been found not unlawful , they ceased to be in the ap- propriate unit. The appropriate unit thus was reduced to two: Brooker and Fogg. Accepting McMorrow's testimony that he told Page, in the presence of Mancuso , "these fellows here had authorized us to negotiate a contract for them" as a claim of majority status , it is plain that he did not, at the time, represent a majority- even if it be believed that Fogg had orally given authorization 2 days earlier . Brooker had not attended the meeting, and there is no claim that until later in the day on Saturday was he approached by McMorrow to sign a card.' 1 Thus, at this point, it is concluded and found that the Union, at the time McMorrow made his demand to Page on July 9, in fact did not enjoy majority status. It follows that there was no unlawful refusal to bargain on that date. As to later events, Reed and the three discharged em- ployees remained at or near the Respondent's garage the balance of the day Saturday. They were joined there by the two other employees , Fogg and Brooker, who had not been scheduled to work that day. Brooker testified that he came there in response to a call from Page, about 10 o'clock, to come in to work , after the others had been fired. Fogg testified that upon returning from a personal trip he learned from his "girl" that there was some trouble at the garage and he went there about noon. Around midafternoon McMorrow came to this location and this time obtained signatures upon union authoriza- tion cards from Fogg , Brooker, and Manning, although the last mentioned had been discharged that morning. Upon his instructions they all dated their signatures back to July 7. McMorrow testified that he told them to use that date since they had authorized the Union on that date. Both Fogg and Brooker, however, testified that Mc- Morrow gave such instructions as protection against their being fired, as had been the others . I credit the em- ployees, not McMorrow. Brooker obviously had not "authorized" McMorrow, on July 7, since he had not at- tended the meeting. And it is clear from McMorrow's own testimony that at this time he considered that Reed and the three other employees were discharged , and not "on strike." The next working day, Monday , July 11, the discharged employees remained at the Respondent's lo- cation, for the apparent purpose of protesting their discharge and to presuade new employees , hired that day, from taking out trucks. For 2 days Fogg joined them, but went back to work on Wednesday, July 13, as did Manning, who had been discharged July 9. Brooker worked that Monday , and continued thereafter. The Respondent hired four new employees on Mon- day, July 11, and on Tuesday a fifth. General Counsel makes no claim that any or all of these five employees had authorized the Union to represent them. It follows that : (1) even if the authorization cards of Brooker and Fogg, signed on July 9, were to be con- sidered valid, the Union clearly did not represent a majority on July 11 or thereafter, and (2) there was no unlawful refusal to bargain on that date or thereafter. It will therefore be recommended that the complaint be dismissed in its entirety. Upon the foregoing findings of fact, I make the follow- ing: CONCLUSION OF LAW The Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER The complaint herein should be and hereby is dismissed. 11 t note that there is no evidence that McMorrow at any time offered to prove any claim of majority