Sackett Transportation

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. H. Sackett, d/b/a Sackett Transportation and/or Inland Cities Express and General Truckdrivers and Helpers Union , Local No. 467, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Cases 21-CA-7485 and 21-CA-7514 agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order. 3 3 Delete from paragraph 2(e) of the Trial Examiner 's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided ...... January 26, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 14, 1967, Trial Examiner Allen Sinsheimer, Jr., issued his Decision in the above- entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommend- ing that it cease and desist therefrom, and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed excep- tions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 briefs, and the entire record in the case,' and hereby adopts the findings,2 conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor_ Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, W. H. Sackett, d/b/a Sackett. Transportation, and/or Inland Cities Ex- press, Riverside, California, his or its officers, ' The Respondent's request for oral argument is hereby denied as the record, including the briefs, adequately presents the issues and positions of the parties. 2 While we agree with the Trial Examiner that a discriminatory motive has not been established in the case of the layoff of Cloyde Collins, we do not agree that the Union's acquiescence with regard to his status as a casual employee in the prior representation proceeding is a relevant fac- tor. Rather, we rely on the credibility resolutions of the Trial Examiner, the Respondent's employment records , the ability of Collins relative to that of the. other employees, and the evidence of the lack of work available during the material period. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER , JR., Trial Examiner: This proceeding was heard before me at Riverside, California, on June 27, 28, and 29, 1967. The consolidated com- plaint,, dated April 27, 1967, and amended June 5, 1967. alleges that Respondent has engage d in numerous specified violations of Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act), and has violated Section 8(a)(3) of the Act by the discharges of two persons, layoff of one person, and reduction of hours of one person. Respondent admits certain terminations or layoffs but denies the commission of any unfair labor practices. Respondent also admits certain jurisdictional facts but denies that it is engaged in commerce and a business af- fecting commerce within the meaning of the Act. The complaint alleges that Respondent is a partnership which Respondent denies.' Upon the record including consideration of briefs filed by the parties and upon my observation of the witnesses, I hereby make the following:3 I The complaint is based on separate charges filed by Teamsters Local No. 467 in Case 21 -CA-7514 on March 10, 1967; and in Case 21-CA-7485 an original charged filed February 9, 1967, and a first amended charge on February 13, 1967. 2 Paragraph 6a of the complaint was amended at the hearing to omit the word "mechanics" from the unit description set forth therein : However, as shown by the Supplemental Decision and Certification of Representa- tive, "mechanics" were included in the unit. 3 At the close of the hearing Respondent renewed a motion to strike as hearsay, immaterial , and nonprobative certain testimony of dischargee William Ward with respect* to a conversation with employee William Moore relative to how Ward voted in the union representation election. This motion was denied at the conclusion of the General Counsel's case without prejudice to its renewal. The motion is hereby again denied but as set forth post said testimony has not been considered nor relied on as a basis for any finding herein. Counsel for the General Counsel , during the hearing, objected to cer- tain testimony of Thomas Merritt setting forth his personal opinion of the propensity of Cloyde Collins to fabricate or exaggerate. The objection was overruled with the statement that ruling on an appropriate motion to strike would be reserved. Whether or not such was made by the General Counsel (as asserted by Respondent in his brief), I am hereby denying same, inasmuch as I find it unnecessary to and do not rely on said testimony to resolve credibility pro or con in those instances and matters in which Collins was involved. My resolution of credibility in such in- stances and matters is predicated on reasons set forth hereafter , and in any event would not be different were such testimony considered. On August 25, 1967, the General Counsel filed a motion to correct the transcript in 15 specified respects . On September 11, 1967, Respondent filed a general objection to said motion and requested that it be denied but did not set forth any specific objections . I have carefully examined the corrections requested , most of which appear inconsequential , and con- clude that in each instance the requested correction should be granted. The General Counsel's requested corrections are hereby granted and set forth in Appendix A attached hereto and made a part hereof [omitted from publication]. (Footnotes continued on following page) 169 NLRB No. 57 FINDINGS OF FACT SACKETT TRANSPORTATION 347 1. THE LABOR ORGANIZATION INVOLVED General Truckdrivers and Helpers Union, Local 467. International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America (herein called Truckdrivers Local 467) is a labor organization within the meaning of Section 2(5) of the Act. II. THE BUSINESS OF THE RESPONDENT The complaint alleges that Respondent is a copartner- ship consisting of William Sackett and Kenneth Sackett, who is his father. The record reflects that, although Ken- neth Sackett is substantially involved in the daily opera- tions of the business,4 the California Public Utilities Commission permit has been and is issued in the name of W. H. Sackett, the equipment is owned by or controlled by W. H. Sackett, the financial backing is handled by him, and he has the final authority as to employment and discharge.5 I conclude that, on the basis of the record herein, Respondent is an individual, W. H. Sackett, d/b/a Sackett Transportation and/or Inland Cities Express. Respondent, who maintains his principal office and place of business at Riverside, California, is and was, at all times material, engaged in the business of transporting commodities. From March 7 through December 9, 1966, Respondent received $73,140.29 for services rendered to Hunter Engineering Company, a division of American Metal Climax Co. During the same period Hunter En- gineering directly shipped goods valued at $52,533.20 to customers located outside the State of California. Although Respondent contends that the Board should decline to assert jurisdiction, the foregoing, alone, is suffi- cient to satisfy the'Board's jurisdictional standards.6 I ac- cordingly find that the business of the Respondent affects jurisdiction within the meaning of the Act and that within current Board jurisdictional standards it will effectuate the policies of the Act to assert jurisdiction. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges in seven separate paragraphs that W. H. Sackett at various times and in different ways engaged in interference, restraint, and coercion in viola- tion of Section 8(a)(1). It also alleges. discriminatory (Footnotes continued from preceding page) In his brief Respondent contends that the failure of the Regional Director to grant Respondent's motion for discovery violates due process and the Administrative Procedure Act, and asserts that a finding should issue that Respondent was thereby denied due process. The Regional Director in denying Respondent's request correctly pointed out that Sec- tion 102 .30 of the Board's Rules and Regulations , Series 8 , as amended, does not provide for preheating depositions "for the purpose of discovery," Moreover, both the Board and the courts have held that the entire discovery procedures contemplated by the Federal Rules of Civil Procedure need not be adopted by the Board and that absence of provi- sion for discovery does not violate due process See N.L R.B. v Movie Star, Inc, 361 F 2d 346 (C A. 5), N L.R B. v Vapor Blast Manufactur- ing Company, 287 F.2d 402 (C A. 7); N L.R.B v Chambers Manufac- turing Corporation, 278 F.2d 715 (C.A. 5); N.L R B. v. Globe Wireless, Ltd., 193 F 2d 748, 751 (C A. 9); Plumbers & Steamfitters Union Local 100, etc., (Beard Plumbing Company ), 128 NLRB 398 , 400. See also Trojan Freight Lines, Inc v N L.R.B, 356 F 2d 947 (C.A. 6), to effect that such denial is within discretion of the Regional Director . And see discharges of William Alfred Ward on December 19, 1966, and on January 15, 1967; the discriminatory discharge of Edmund Allen Hi117 on December 19, 1966; discriminatory layoffs of George Boswell on December 19 to December 23, 1966, and February 18 to March 25, 1967; and discriminatory reduction in hours of work of (Cloyde) William Collins, commencing December 19, 1966. Respondent denies any improper action. B. Commencement of Union Activity and Background About September 1966 organizational activities com- menced among Respondent's employees and on Sep- tember 23, 1966, the Union filed a representation petition in Case 21-RC-10223. On November 10, 1966, the Re- gional Director for Region 21 issued a Decision and Direction of Election therein and on December 3, 1966, a secret ballot election was held, at which challenged bal- lots were determinative. On December 29,1966, the Re- gional Director issued a Supplemental Decision and Cer- tification of Representatives which set forth that of ap- proximately 11 eligible voters, 5 cast votes for the Union, 3 were against, and 3 were challenged. Pursuant to an agreement of the parties the Regional Director sustained the challenges to two persons and certified the Union. 9 Subsequently on March 24, 1967, the Respondent and the Union entered into a collective-bargaining contract. C. AllegedActs of Interference, Restraint, and Coercion The General Counsel alleges that between September and December 1966, Respondent by William H. Sackett interrogated employees concerning their union member- ship, sympathies , and activities and also concerning the same matters as to their fellow employees ., With respect to the foregoing , driver Edmund Allen Hill testified that he was approached by W. H . Sackett about a week or two after he began working for Respondent in September, and that Sackett inquired if Hill belonged to the Union. Hill told Sackett that he had belonged when he worked for a former employer and when asked whether he was on withdrawal Hill replied that he didn 't apply for such but understood that the Union put him on withdrawal auto- matically. Sackett testified that it seemed that Hill had told him that he was a member of the U nion at his former employer's . but, did not say when or how this occurred. During November, according to both employee Walter Davis and his wife Mildred . W. H. Sackett . in a discus- sion at Davis' home, after mentioning that the Union had N L.R.B. v Safway Steel, 383 F 2d 273 (C A 5), to effect that in any event such was not prejudicial error therein 4 It is clear that he functions as a top management official. 5 While Federal withholding tax returns were filed in the name of K J. Sackett, it appears that he had an identification number from years back which continued to be used. In any event, I do not consider such to change the conclusion as to ownership. See Samuel B. Gass, 154 NLRB 728,73 1, in 6 and cases cited. 7 The complaint was amended at the hearing to correct the name from Edward Hill to Edmund Allen Hill. 9 The certification covered the unit previously found appropriate, con- sisting of. "All truckdrivers, dockworkers, mechanics, and helpers located at the employer's facility at 2994 La Cadena, Riverside, California, ex- cluding office clerical employees , casual employees , salesmen, guards, and supervisors as defined in the Act " N In so doing he did not pass on the ballot of Cloyde William Collins who had also voted a challenged ballot, but which had been previously disposed of after the close of the hearing by agreement of the parties as set forth post 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obtained authorization cards, asked Walter Davis if he had heard anything about it to which Davis replied that he had not. Irn addition , according to Mildred Davis," Sackett inquired of Walter Davis whether he had any idea who started the Union. Davis replied that he did not. Sackett said he wondered if it was driver George Boswell. According to Mildred Davis, her husband said he didn't think it was Boswell and gave several reasons therefor. Mrs. Davis said Sackett then stated that maybe it wasn't Boswell and suggested that possibly Davis had started the organizing, at which both of them commenced to laugh. Sackett testified that he believed he did state to Davis that he wondered who started the Union and Davis replied he didn't know and said he couldn't understand it. Sackett was asked if he said, "I wonder if it was George Boswell that started the Union?" and answered "I can't specifically allude to one particualr person that I did men- tion but I was wondering who started the Union and I probably asked him about individuals wondering." In a conversation at the plant on a Saturday before the election, according to Walter Davis, W. H. Sackett said he would like to know who started the Union. Davis testified that he told Sackett he didn't think anyone per- sonally started it-that it was just a general agreement among the members of the crew. Following the election , according to Walter Davis, W. H. Sackett told him "According to the way the vote went, I guess you voted for the Union." Davis replied "Yes, I did" and told Ken Sackett (who was pre sent) if they were unhappy, he would quit. Ken Sackett told him there was "no point about it." W. H. (Bill) Sackett informed Davis that a buddy of his, George Boswell , had told Sac(Cett on the day of the election that Davis started the Union. Sackett did not deny telling Davis he figured Davis had voted for the Union and admitted that Davis said he voted for the Union. Sackett, however, denied saying that Boswell said Davis started the Union. - Also following the election W. H. Sackett, according to driver Eldon Bohlinger, asked whom he had voted for and was told it wasn't any of his business. This was not de- nied. The aforesaid testimony of Hill, Davis, Bohlinger, and Mrs. Davis as indicated, is largely undenied, and is con- sistent and in accord with other related testimony herein. Both on these bases and my observation of the witnesses I credit said testimony of Hill, Davis, Bohlinger, and Mrs. Davis. I accordingly find that Respondent interrogated Hill, Davis , and Bohlinger as to union membership, vot- ing, or activities and also interrogated Davis as to union activities of others. The foregoing interrogation was both extensive and coupled with other acts set forth hereafter and therefore not isolated. The questions were neither of a permissible type nor accompanied by assurances against reprisals. Such interrogation is accordingly in violation of Section 8(a)(1) of the Act. 't The complaint also alleges that in about September and October 1966, Respondent by William Sackett threatened reprisals and also threatened to close the plant and to discharge employees if the Union won the elec- tion; that about November, Respondent through William Sackett threatened to close the plant and threatened to impose more onerous working conditions if the Union won, and also threatened physical injury to employees 10 Walter Davis also testified but did not recall this particular testimony , stating he had a poor memory for word by word conversations. As indicated, post, Sackett in part corroborated this testimony of Mildred Davis. i who engaged in picketing ; that about December , Respond- i ent through William Sackett threatened reprisals against employees who supported the Union and threatened physical injury to employees who engaged in picketing. The evidence in support of the foregoing consists of the following :Alleged discriminatee Ward testified that about the end of September or first part of October, W. H. Sackett told him that if the election did not go the way that he, Sackett , wanted it to, he would show the drivers that he could be mean and what an s.o .b. he could be. Sackett could not specifically recall the conversation but denied saying that if the election did not go the way he wanted, the men would see what an s.o.b. he could be. Later in October , according to Ward , while in a restau- rant in Madera , Sackett said that he had discovered who started the Union . Ward asked who it was and Sackett replied "Bob Davis." When Ward expressed " doubt, Sackett repeated the statement and then warned Ward that anyone who voted for the Union would be laid off about a week before Christmas . Sackett was able to recall a conversation at such time and other events but could not recall any specific discussion of the Union , but did - deny saying to Ward or employee William Moore that anyone who votedfor the Union would be laid off before Christmas. Ward said that he and Sackett were alone while Sackett testified that driver William Moore was present. Moore was not called as a witness . At the time of his conversation , supra, with Walter Davis with respect to whether Davis had any ideas as to who started the Union, Sackett also stated , according to Mrs. Davis (par- tially corroborated by Walter Davis ), that he did not in- tend to have other people running his business and that if the Union got in , the Sacketts would try to run the busi- ness themselves with loyal employees and if this was not possible, they would close it down . Sackett does not ap- pear to have denied the foregoing conversation with the Davises although he did deny telling discriminatee Ed- mund Hill , post, that "if it comes to an election we will close out." Sackett testified that he told employee Hill before Thanksgiving that he did not want a Union , and pointed out in the conversation thatHill had the lowest seniority, that now Hill was working daily , and that if there were a union contract he would work when needed, which would not necessarily be the same number of days. In the same conversation Sackett and Hill were joined by driver Cloyde William Collins . According to testimony of Col- lins, Sackett warned that if the Union won he would do one of these things: he would either close down, or go union all the way and the first man who got out of line would be out of a job and concluded that he wasn't wor- ried since he had a way to beat the Union . In this conver- sation , according to testimony of Collins, Sackett added that if the Union won and there was any picketing he would run over the first man with a picket sign that got in his way. Hill testified that Sackett said if it went union "he would ... not shut it down but lay off everybody and try and run it himself and if anybody walked the picket line and got in his way that he would run over them." Sackett denied only that he said he would close the busi- ness and that he said that he would run over anyone who walked in front of the office with a picket sign . At about the same time , Hill testified he overheard a conversation " See Webb Tractor Equipment Co., 167 NLRB 383; Blue Flash Ex- press, Inc., 109 NLRB 591. SACKETT TRANSPORTATION 349 between Sackett and Bob (Walter) Davis that if he. Sackett. ever found out who started the Union he would lay them off just before Christmas. 12 In addition Hill said that Sackett made the same threat to him and George Boswell personally just before the election.13 As previ- ously set forth Sackett denied making such a threat to Ward or to Moore. Whether or not he also intended to deny making such a statement to Davis or Hill is not clear. Neither is it clear whether Sackett's denial of threatening to run over anyone "who walked in front of his office" on a picket line is a denial-of a threat to run over anyone "who got in his way." However whatever ambiguity of denial there may be is not relied on, nor does it form a basis for my findings as to whether such asser- tions or statements were made by W. H. Sackett. About four days before the election W. H. Sackett. ac- cording to former employee Virgil Davis, told him that employees who intended to vote for the Union were hurt- ing themselves and that this had cost Davis his job because he could not afford to pay driver wages to a swamper. According to Davis, at another time that same day when W . H. Sackett and Kenneth Sackett were both present, Kenneth said that if it came down to it he would shut the doors and call it quits before he would go union. W. H. Sackett testified in effect that no such conversa- tions occurred. He also denied that he ever told Davis that "if the Union gets in we can't afford to pay a swamper, driver's wages." The General Counsel also alleged that Respondent, about October, created the impression of surveillance by telling employees that he had discovered who had started the Union . In support of this is the testimony of Walter Davis that about 2 weeks before the December 3 election Sackett told Davis that one of Davis' buddies had said that Davis was the one who "agitated" the Union's or- ganization drive. As set forth, supra, Davis also said that, about the same time, Sackett told him he would like to know who did start the Union. According to alleged dis- criminatee Boswell , Sackett, about 2 or 3 weeks before the election, said to Boswell that he had certainly stirred the men up by starting the Union to which Boswell replied, "Thank you." Sackett testified that after the elec- tion he told Boswell he was stirring up a lot of trouble with the Company to which Boswell replied, "Thank you." Davis' testimony with respect to Sackett's telling him that Davis had started the Union appears to be unde- nied. However I do not believe resolution of credibility should be based on lack of a specific denial in this in- stance but rather by viewing this testimony in the context of all the testimony of Davis and Sackett with respect to conversations involving them. The complaint also alleged that about December 1966, W. H. Sackett threatened physical injury to employees who engaged in picketing . The evidence with respect to this has been set forth above. in addition to my finding, supra , of improper interroga- tion by Respondent I credit the testimony of Ward, Walter Davis, and Hill that Sackett in separate conversa- tions at different times threatened that anyone who voted for the Union would be laid off about a week before Christmas. Their testimony is consistent, unshaken, and in accord with related assertions , incidents, and manifes- tations of opposition to the Union by W. H. Sackett trans- cending mere permissible expressions of opinion. From his testimony, and my observations of him I conclude that W. H. Sackett felt strongly about the Union's organiza- tional activities , particularly since the Teamsters Union was included , that he is a man who expresses himself vigorously on occasion, and that at times he did so herein - perhaps more so than he realized. I accordingly also credit the testimony , supra, of Mrs. Davis and Walter Davis that the Sacketts would try to run the business themselves if the Union got in, or close it down. To similar effect is the testimony of both Collins and Hill. I credit the testimony of Hill who spoke quietly but directly. In this instance I am also crediting Collins' testimony14 as consistent with that of Hill who was present, as well as with the conversation Sackett had with the Davises . I also credit Ward's testimony aforesaid that W. H. Sackett threatened he would be mean , etc., if the Union got in. Based on the aforesaid credited testimony I find that Respondent threatened reprisals, to close the plant, and to discharge or layoff employees if the Union won the election, all in violation of Section 8(a)(1) of the Act. In addition I credit the testimony of Boswell that Sackett told him before the election, that he had stirred up the men by starting the Union -the difference in versions between Boswell and Sackett appears to be principally whether their conversation was before or after the elec- tion. It appears more probable that such a statement was made before the election both because such a statement would ordinarily logically occur at that time rather than later, and because in this case it fits into the context of other related statements and conduct which occurred prior to the election. I, accordingly , credit Boswell's ver- sion as to both the time and what was said. I also credit Walter Davis' testimony that about 2 weeks before the election W. H. Sackett said one of Davis' buddies15 had said Davis "agitated" the union organization. Further there is the testimony of Ward, which I credit, that at the restaurant in Madera, Sackett told him he had "found out" who started the union trouble and had named Davis. The General Counsel contends on the one hand that these matters (involving Boswell, Davis , and Ward) are evidence in support of the allegation as to "giving an im- pression of surveillance" and on the other hand that they constitute evidence of the Respondent's seeking to ascer- tain who was in the Union. These and Sackett's question of Walter Davis in which Sackett "wondered" if Boswell started the Union, appear to indicate a seeking to ascer- tain who belonged and constitute violation of the Act not only by way of interrogation as found above but they also tend to give an impression of surveillance in the broad sense of "checking'up." I find that Respondent thereby further violated Section 8(a)(1) of the Act. With respect to the alleged statements aforesaid by Sackett relative to running down someone on a picket line who got in his way, if there were a picket line, the pur- ported statements , if true, appear to voice a threat about a hypothetical situation which if it were to occur might in- volve either legal or illegal conduct. Inasmuch as the resolution of whether or not infact these statements were made, and if so what their legal effect would be, could add Davis did not refer to this in his testimony 3 Boswell testified but did not refer to this "Subsequently for reasons enumerated I do not credit certain testimony of Collins. 15 Later identified by Sackett to Davis on the day of the union election, as George Boswell 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing to the findings of violation already made herein, I consider it unnecessary to resolve these issues. The General Counsel also charges as a threat violative of the Act, W. H. Sackett's admitted statements to Hill prior to Thanksgiving about his being low man in seniori- ty and how he was working daily now, but that under a union contract he would work when needed, which would not necessarily be the same number of days. While it is possible to pose situations or ways in which that could be the actual effect of a union contract , depending on how work is presently allocated , the foregoing as presented to Hill by Sackett appears to be a further threat of reprisal in violation of Section 8(a)(1) and I so find. The General Counsel also contents that Respondent through Sackett violated the Act by allegedly telling Vir- gil Davis 4 days before the election that the employees who were going Union were hurting themselves and it cost his job because he couldn 't afford to pay a swamper, driver's wages . Sackett denied such conversation ever oc- curred. Davis is not alleged to be a discriminatee herein - he had been employed to November 16 and had voted a challenged ballot in the election on December 3 which had been resolved, according to a stipulation at the hear- ing, on the basis that he "had quit prior to the election." On the basis of this stipulation and, Davis ' admission that he had quit as of November 16 (as well as the fact that this was before the election) I credit Sackett's testimony that he did not have such a conversation. D. The Alleged Discriminatory Discharges , Layoffs, or Reduction in Hours The foregoing acts of interference, restraint, and coer- cion which have been found , indicate an antiunion at- titude manifested by the employer with respect to his em- ployees. Charges herein involve four employees out of a bargaining unit of about eight or nine . The record also reflects eight counted votes in the election with five for the Union and three against.16 About mid-December after the election but before the challenged ballots were resolved , a discussion occurred in a restaurant in San Jose . Present were W. H. Sackett, Thomas Merrit then employed as a swamper,17 and al- leged discriminatee , Cloyde Collins . Collins testified that Sackett had been writing down names and when he got done crumpled up the paper with the comment that by his count "the Union never stood a chance ." Sackett testified he was trying to figure out whether the Company had lost the election by a process of determining who voted and how he thought they voted. I credit Collins' testimony in this instance in the light of Sackett's testimony which in essence appears to be corroborative of Collins . At this same discussion which was in San Jose , Collins testified that he volunteered that he had voted for the Union for the reason that his vote had been challenged ,18 and ac- cording to Collins he learned for the first time that Respondent considered him to be part-time help . Sackett testified: Q. Did Mr. Collins ever tell you how he voted in the union election? A. Mr. Collins told me at San.Jose that he would have voted for the union , I believe. Q. That he would have voted? 1° Of the three challenged ballots two were sustained and accordingly it was unnecessary to determine the third. 17 A swamper unloads freight in the warehouse or on the docks. 1° This is discussed more fully, post. A. But under the circumstances he-under the present circumstance, he probably wouldn't. I didn't think too much of it. I conclude that Collins did indicate he had voted for the Union but was trying to qualify his support. Sackett also testified Collins asked him "if he was a regular em- ployee"; that Sackett said, "When I hired you, you were hired as [sic] a day-to-day basis, you have always been a casual employee." According to Sackett, Collins replied: "Well Iguess that is right." For reasons set forth, post, I credit this testimony of Sackett's relating to, the-na- ture of Collins' employment. Later that day Sackett, ac- cording to Collins, said he intended to terminate Ward because of carelessness and shortage of articles and added that Ward was a weak reed who would go whichever way the wind blew. Coupled with the foregoing is the fact that four persons, Ward, Hill, Boswell, and Collins were either discharged, laid off, or had their hours of work reduced. The record reflects that on December 19 a week before Christmas the Respondent in fact terminated or discharged Ward and Hill, and laid off Boswell -it also reflects a reduction in work for Collins commencing at that time. In addition there is evidence that one McKenzie, a part -time em- ployee performed some work during the week of December 19 to 25. This will be considered more fully hereafter. The foregoing evidence provides a background or framework in which to consider the reasons advanced by Respondent for the actions taken by it with respect to the alleged discriminatees. Respondent has offered testimony with respect to each of the persons named in the complaint which purports to afford a proper and valid explanation of the action taken in each instance. These will be considered in detail hereafter. Respondent contends that it did not have knowledge as to the union activities or membership of the employees in- volved. However, as found, the record reflects the questioning of employees concerning union membership or activities and who instigated the Union. This includes the questioning of Walter Davis and Ed Hill, supra. There is the credited testimony of Boswell, supra, that 2 or 3 weeks before the election Sackett told Boswell he had "the men stirred up over the Union."19 The record also reflects the testimony of Ward that in the office on December 9 Sackett said to him, "Good morning, or should I 'salute you?" Ward said he asked what Sackett meant and Sackett replied, "You are a shop steward." Sackett could not recall any specific time he was with Ward in the office. He denied stating to Boswell,20 "Good morning or should I salute you?" Based on this state of the record and of my previous appraisal of the witnesses as set forth, supra, I credit Ward's testimony relative to the foregoing discussion on December 9. I have found that Sackett questioned Hill about his union membership in his former job, supra. The record also sets forth that Collins told -Sackett how he voted in the election as found, supra. It reflects a union breakfast meeting ap- parently in December which all but one21 of the em- ployees attended; including Jimmy Sackett the brother of W. H. Sackett and the son of Kenneth Sackett. It further reflects the comment of W. H. Sackett about Ward being 1° Also as found, post, Boswell served as a union observer at the elec- tion, December 3. 20 Sackett referred to Boswell rather than Ward in his denial. 21 Andy Symmes. SACKETT TRANSPORTATION a weak reed, whatever that may have meant. It is also manifest that the total number of employees involved was small - approximately nine, and that Sackett had spoken to or about at least six, including particularly those named as discriminatees herein. Although the size of the opera- tion may be pertinent, without reliance thereon, but based on my specific findings above, I conclude that Respond- ent either knew or believed that Ward, Boswell, Collins, and Hill were in favor or otherwise active or interested in the Union. In summary the foregoing shows (1) that Respondent either had knowledge of or thought that Ward, Hill, Boswell, and Collins were union supporters; (2) that not only did Respondent oppose the Union but did so through interrogation, threats, and other improper and unlawful conduct as found; (3) that specifically Respondent had threatened to layoff union supporters a week before Christmas if the Union won the election by so telling Ward, Davis, and Hill; (4) that shortly before the termina- tions and layoff occurred on December 19, Respondent was seen pondering who had voted in the election and which way he considered that the election should have gone. 1. The discharges of William Alfred Ward The complaint alleges that on or about December 19, 1966, Respondent discharged William Alfred Ward; and also that on or about January 15, 1967, Respondent discharged William Alfred Ward in violation of Section 8(a)(1) and (3) of the Act. The discharges and dates are admitted. The matter for resolution is whether either or both of said discharges were in violation of the Act. Ac- cording to Ward, on December 19 he was told by W. H. Sackett that due to purchase of a truck by Hunter En- gineering he was being laid off but would be the first called back. Respondent did not deny this statement or attempt to support it. Rather W. H. Sackett in testifying as to Hill's termination (post) indicated that he was reluc- tant to tell someone directly that he was discharged. Respondent's position is that the discharge of Ward was a result of his failure to perform his work properly. Respondent lists a series of acts and conduct on his part which according to Respondent led to the termination December, 19. According to Respondent the decision to terminate Ward was arrived at during a conference between the Respondent, W. H. Sackett and his father, Kenneth Sackett, about the middle of December22 following W. H. Sackett's return from the trip to San Francisco. They discussed Ward and his work record including a number of incidents and particularly one which occurred in the San Francisco Bay Area about November 30 or December 1 involving the transfer of cartons from one van to another. Among ; the items purportedly discussed by the Sacketts in reviewing Ward's history of employment which allegedly involved inefficiency and shortages were the following: In June or July, Ward had picked up a truckload of tires at the Firestone Tire and Rubber Com- pany in Los Angeles, brought them to Respondent's yard in an open-top truck the same evening about 8:30 or 9 o'clock, and parked the truck in the Respondent's yard 22 According to Kenneth Sackett on December 18, the day prior to ter- mination 21 Six were listed between May 6, 1965, and March 23, 1966 351 under the shed in the rear of the parking area. No tarpau- lin or cover was used nor was it necessary to lash them down since the truck had side racks. The area was lighted but unfenced and partially visible from the highway. The truck remained parked overnight and the following day on delivery of the shipment (by another driver) to a company in Riverside there was a shortage of six tires. Kenneth Sackett testified that Respondent had documentary evidence indicating that Ward had picked up a full load, that he had signed for a full shipment, and that Ward told him that he had counted the tires upon loading and that he got the entire shipment. Sackett said that he had told Ward that they had no indication of pilferage of theft and this would indicate that he had failed to count and check the freight properly. According to Sackett, Ward said that he had properly counted the tires when picked up. This leaves the question of what could have happened to the tires? The General Counsel presented evidence indicat- ing that there had been filed a number of complaints23 with the Police Department in a period of a year setting forth certain kinds of alleged thefts or burglaries24 from vehicles or the yard. Without analyzing these in detail they tend to indicate that the yard was not burglar proof. Kenneth Sackett admitted that he could not personally tell where the actual shortage occurred. Under the cir- cumstances it does not appear that this incident could constitute a decisive element in appraising Ward's work. However, it is to be considered with respect to other mat- ters (involving Ward) referred to by the Respondent par- ticularly those where items were at some point missing or not accounted for. A second incident occurred on September 14 when Ward picked up at Western Auto in Los Angeles and delivered to Western Auto, Norco, a load of freight from which two cartons were missing. Ward subsequently ad- mitted that he had incurred such a shortage and Respond- ent paid a claim of $35. A third referred to by Kenneth Sackett occurred when Ward picked up a shipment from a Western Auto warehouse on October 7. Upon delivery to a Western Auto store in Hemet, California, on October 12, four cartons were missing. Ward stated that he counted this four times and that the cartons were there when the truck was brought to Respondent's yard. Ward said he told W. H. Sackett that the trailer should be locked and Sackett said he could put a lock on it. The ulti- mate delivery was not made by Ward but by another driver who was said by W. H. Sackett to have been sub- sequently terminated because of shortages. Kenneth Sackett originally testified that Respondent received a claim for $200 or $300 for these shortages but the exhibit reflecting payment shows the claim was for $53.73. Here again the incident by itself may not be decisive but it does reflect another of a series involving shortages in which Ward was a participant. There is no claim that these were caused by anything except his failure to count or his over- looking items. Kenneth Sackett testified as to a fourth incident occur- ring late in October when Ward overlooked seven cartons in a shipment that he had picked up from Western Auto in Los Angeles. According to Sackett a check showed the shortage, Ward told him he got all of the shipment, and it developed that the seven cartons had been left on the 14 Four alleged petty thefts, one alleged burglary, and one alleged grand theft of tires (on March 23, 1966) 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dock at Western Auto. The foregoing was either partly admitted or undenied. According to Kenneth Sackett he told Ward that this was "just intolerable." Still another or fifth incident occurred, according to Kenneth Sackett, about the end of October or early November when Ward miscounted the items that he delivered which were shipped from Western Auto, Los Angeles to Western Auto in Sunnymead. According to Kenneth Sackett he counted the merchandise, which had temporarily been kept by Respondent, before Ward was dispatched. Sackett said it checked against the freight bill. Ward made the delivery and a shortage of three cartons was indicated on the freight bill. Sackett told Ward he had got "out counted" or confused by the consignee. Kenneth Sackett subsequently sent his son Jimmy to check; with the result, a recount showed all had been delivered. Kenneth Sackett also said that Ward was in the habit of allowing himself to be "out counted"25 by warehousemen where he went to pick up or deliver merchandise, that he was not aggressive enough to get them to respond to his requests promptly and as a result he made 25 to 30 per- cent less deliveries than other drivers and was about 20 percent less efficient. In response to a question from the Trial Examiner as to why Respondent would keep an in- dividual under such circumstances Sackett responded they were a small business , more like a family, felt closer to the men and lived with their problems. There appears to be no question that Ward's driving was satisfactory but the aforesaid incidents were set forth by the Respondent as a basis for his termination along with one incident which occurred early in December. About November 30, according to Kenneth Sackett, Ward was dispatched to San Francisco with two double trailer loads including four special cartons for delivery to Libby's in San Francisco. The 4 cartons were in a 27-foot trailer along with about 650 other cartons. The consignee (other than Libby) refused to accept the load immediately due to its taking inventory. Accordingly Ward contacted his office in Riverside as to what should be done. In order for Ward to unload, take on another load and return that night, the Sacketts arranged that Ward load the 27-foot trailer into a 35-foot van that was waiting at a truck ter- minal in San Leandro in the San Francisco area. The 35- foot van was obviously longer but not quite as high or wide.26 According to Ward, Kenneth Sackett told him that it would not be necessary to start loading in the front of the van and that this would save time. Ward began to load some 10 feet from the front of the trailer with the result that about 80 cartons would not fit in the 35-foot van. Kenneth Sackett denied that he instructed Ward to start loading 10 or 15 feet back from the rear "because this would be the wrong way to ever load freight." These excess cartons were stored on the premises in a nearby garage or shed which was not locked. According to Ward he had been told that it would be safe. With respect to the four cartons for Libby's, Kenneth Sackett testified that Ward had specific instructions to deliver these to Libby's as they were a Christmas present from one branch to another. According to former em- 25 Confused as to the count with resultant error. 26 According to Ward it was 18 inches lower and about 6 inches nar- rower. Kenneth Sackett testified he told Ward later (after his return) there may be 1 inch less in height but the "width would be minute." 27 Merritt who was with Ward at the time, also so testified. 28 No proof of claim as to the four Libby cartons was submitted in evidence , although Kenneth Sackett testified that as "I recall, we paid a claim on it." ployee, swamper Thomas Merritt, Ward said he did not deliver them because he decided it was too much trouble to deliver the special cartons to San Francisco and he left them with the others. According to Kenneth Sackett, Ward told him he didn't deliver the four cartons to Libby because "it was late" and he would have "to go across the bridge." Ward did not deny or contradict either Merritt or Kenneth Sackett with respect to the special cartons for Libby. According to Sackett, Ward told him he had left these four cartons in the garage or shed along with the other cartons that did not fit in the 35-foot van as loaded by Ward.27 Kenneth Sackett testified that employee Eldon Bohlinger, who made the delayed delivery, called and in- formed him that the four (Libby) cartons were missing. Bohlinger did not mention this in his testimony.28 Ward testified only that he heard they were missing.29 Bohlinger who helped transfer the load out of the trailer at San Leandro for delivery, testified that all the cartons could have been in the 35-foot van if it had been loaded fully and that he would not have started 10 feet from the front in loading it. Employee Walter Davis also testified that the cartons could all have been put in the 35-foot van if loading started at the front. Judging from Kenneth Sackett's testimony that there was little difference in the size of the truck in width or height he could have instructed Ward to start at a distance from the front. However judging from Ward's description of a substantial difference in width and height30 it would not appear to be good judgment to do so. Employees Walter Davis and Eldon Bohlinger testified Ward lacked experience or he would not have loaded the 35-foot van at San Leandro as he did. Kenneth Sackett testified that following Ward's return from the (second) trip to San Francisco about December 10 or 11, he told Ward in the presence of W. H. Sackett that the Libby account was one of their most valuable ac- counts and "it would be impossible to continue on in this fashion." Sackett also testified that Ward then told him, "I can't handle this job up there; I want to be taken off it. It is too much for me. My wife doesn't want me to be away from here and I hope you can find something for me to do where I won't have this much responsibility." Sackett also testified that this kind of long line hauling constituted 30 to 40 percent of their business. Ward, who testified prior to Kenneth Sackett, had denied that he "asked to be withdrawn from the northern run" because he felt he couldn't handle the cargo. He testified, "I told Mr. Sackett that it was a harder job, than31 I thought it would be, but I never said it was more than I could han- dle." The aforesaid series of incidents involving Ward do not reflect a particularly satisfactory employee, whether or not Ward is considered responsible for the tire loss in- cident; and whether or not Ward could be held responsi- ble for the October 7 to 12 shipment to a Western Auto store in Hemet, taking into account the fact that the van had been brought into the yard, where, according to W. H. Sackett, it could be locked, and that it was then 29 Ward went back to the San Francisco Bay Area again on the night of December 4. After completing his delivery, Ward helped Bohlinger, who had already started, transfer the load stored at San Leandro to another trailer. 30 Bohlinger also testified that the 27-foot van was "much higher and wider than the 35." 31 As per correction, see Appendix A. [Omitted from publication.] SACKETT TRANSPORTATION delivered by another driver whom W. H. Sackett said was terminated because of shortages. However, it appears that the various incidents involving Ward, including his failure to count and his lack of aggressiveness, were being overlooked by Respondent who was willing to go along with a driver who was 20 percent or more less efficient than other drivers. Even the incident of the glass ship- ment to San Francisco involving the claimed improper loading of the van, and the failure to deliver the Christmas gifts did not cause an immediate termination but rather a warning by Kenneth Sackett as stated, supra, that "it would be impossible to continue in this fashion." Significantly Ward's termination and the termination of Hill and layoff of Boswell as set forth hereafter all took place a week before Christmas as had been threatened by Sackett if the Union won the election. The Union had been ahead (5 to 3) in the election of December 3 pending the outcome of the (3) challenged ballots which was not resolved until December 29. Sackett had threatened that those voting for the Union would be terminated if the Union won. Sackett, as set forth, either knew or thought he knew who were the union adherents. On December 9 he had "saluted" Ward as being a union steward. W. H. Sackett had apparently accepted Ward's inability to count, his inefficiencies, and even the San Leandro in- cident until following the election when he had analyzed or attempted to analyze the vote while at San Jose about December 16 or 17 as set forth, supra. The same day W. H. Sackett made the statement to Collins (which was essentially undenied and which I have credited) that he intended to terminate Ward because of carelessness and shortage of articles and that Ward was a weak reed who would go whichever way the wind blew. Following this, upon W. H. Sackett's return, he and his father, Kenneth, held the conference at which they discussed Ward and purportedly, according to W. H. Sackett, decided to terminate him because "of shortages, inability to handle freight properly, and the fact that he himself personally wanted to be withdrawn from any movement of cargo into the San Francisco Bay Area; 32 .. because of ... his general disability to improve on his personal work habits." Prior to his, W. H. Sackett, who was admittedly opposed to the Union, had, as found, manifested his opposition to it through interrogation, threats, and otherwise. When to the prior acceptance or condonation of Ward's work is coupled with Sackett's attitude, interrogations, and threats re the Union, particularly the threats of termina- tion of union adherents a week prior to Christmas if the Union won, his saluting Ward as a steward on or about December 9, his ruminations in San Jose December 16 or 17 about who had voted for or against the Union, his statement to Collins the same day as to terminating Ward ("who was a weak reed"), and then the conference between W. H. Sackett and Kenneth Sackett which im- mediately preceded Ward's termination on December 19, one week before Christmas, it becomes evident that the real motivation for the termination of Ward on December 19 was union activity rather than overall work efficiency. This is further supported by the analysis of the incidents, post, involved its the termination of Hill, and layoff of Boswell, together with the employment of one McKenzie 32 See also Kenneth Sackett's and Ward's versions, supra. 33 Cf Southern Tours, Inc, 167 NLRB 363. 353 (supra and post) during the week of December 19 to 25. I accordingly conclude Ward was discharged on December 19 in violation of section 8(a)(3) and ( 1) of the Act. Ward was subsequently reinstated on December 23 upon the advice of the attorney for the Company during the pendency of negotiations with the Union . On January 12, following his reinstatement , Ward was making a delivery when as he turned a corner a drum of oil fell through the side of the truck and the oil spilled into a gutter. Ward had failed to put up the side racks of the truck. According to Kenneth Sackett this was something that was routinely done. Ward said that after the accident he called Sackett and was told to wait for Jimmy Sackett to bring him another delivery. Ward testified that Kenneth Sackett told him the next day, January 13, "the next time that anying like that happened that he would have to let me go ." Ward further testified that on Saturday (January 14), Kenneth Sackett telephoned and said he wouldn't need him on Monday and possibly Tuesday. Ward said he then went in to pick up his check (on January 18) and Ken Sackett said, "Under the circumstances I won 't need you any more." Kenneth Sackett testified that Ward called him the day of the oil drum incident and told him how it happened, that he (Ward) didn't put the side racks in and that the drum rolled over and off while going around a turn. Sackett testified that he said: "You couldn't have done that" and then said, "Well, Al [Ward], it looks to me like you have had it." Sackett said Ward replied , "Well, I guess I have." According to Sackett, on January 18 when Ward came for his check he said, "This pays you up in full and I hope things work out for you better some place else." Ward was accordingly again terminated following this latter in- cident. While I have found that Ward's termination on December 19 was in violation of the Act and was caused by W. H. Sackett's belief that Ward was one of the union adherents , I conclude that his latter termination , although perhaps questionable , was for cause. At the time that this occurred the Company and the Union were in the process of negotiating, there was no longer any direct purpose in W. H. Sackett acting against Ward, and the incident was another substantial misfeasance in performing his work. The fact that an employee who is not a particularly good employee may have been discriminated against in the past does not mean that he must be retained indefinitely. This is particularly so under circumstances where the action occurred after the Board's election procedures had been completed,33 where the employer was seeking to negotiate with the Union , where the negotiations resulted in an agreement (on March 24) and where the subsequent error resulting in loss was one of substance .34 I conclude that Ward was improperly terminated for the period of December 19 through 23, in violation of Section 8(a)(3) and (1 ) of the Act, but that he was properly terminated thereafter on or about January 14. I shall recommend a remedy accordingly hereafter. 2. The discharge of Edmund Hill Edmund Hill was terminated on December 19, 1966, for the alleged reason that he was not an efficient em- 34 For cases involving discharge following reinstatement of a person who was originally discnmmatonly terminated see N L R B. v Spartanburg Sportswear Company , 278 F 2d 312 Schneider Mills, inc , 164 NLRB 879. (C A 4, 1960), 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee. Hill was, in the judgment of W. H . Sackett, a qualified employee as to his driving ability but lacked ex- perience. Hill had been employed on September 12, 1966, at which time as previously set forth, he had in- formed Respondent of his union membership when em- ployed by his predecessor employer, Kentile Floors. This was prior to the filing of a petition for representation in- volving Respondent by the Union on September 23, 1966. Although Respondent refers to certain incidents as the basis for termination of Hill , at the time thereof on December 19, Hill was not told that he was terminated but rather that Respondent would have to lay him off because business was slow and that Respondent had lost the Hunter Engineering account when Hunter bought a new truck. W. H. Sackett explained this as a reluctance to inform Hill or an employee that he was terminated but rather to ease him out in this fashion . Sackett did not rely on the loss of the Hunter Engineering account but con- ceded that Hill had been terminated. The incidents which are relied on by Respondent as a basis for its action with respect to Hill consist of the fol- lowing: William Sackett testified as to one instance where Hill had gone to Los Angeles to Western Auto warehouse to pick up some freight and "allegedly" had gotten it all but actually did not. Sackett sent another employee to check, who found the freight that had been left on the floor by Hill. This incident was sometime in December 1966, and apparently involved some batteries and a tire. According to Sackett another incident involving Western Auto occurred in December. Hill purportedly had delivered cargo and said it was all there. It was not and again Sackett sent another employee who found the rest of the shipment . As to these two incidents the items were located and there were no claims for shortage. Sackett re- called one other incident involving "some items of Libby Glass" which had been loaded complete at the warehouse by another person and Hill. According to Sackett the cargo was short upon delivery which was made by Hill. Sackett couldn't remember the exact details but recalled that it happened. Sackett stated that they were worried about the Libby account and shortages involved in connection with that account because it was important to them. Sackett testified that he and his father felt that they had some peo- ple who were unable to handle what is called LTL freight, meaning less than truckload. Sackett testified as follows: "Of course I might point out that these shortages weren't conclusive as to if Mr . Hill picked them up and delivered them and if it was absolutely certain whether a truck was locked or where they were and there was some specula- tion as'to his 100 percent responsibility for these Libby shortages . However, when it was discovered that the Western Auto shortages occurred, we felt that with the reduction in business at the end of the month, the Christ- mas rush being over, that it might be a good time to ter- minate Mr. Hill for these inefficiencies." The foregoing indicates a rather vague description by Sackett of the alleged deficiencies on the part of Hill. They were not clearly delineated nor is it clear whether Hill was responsible for the so-called Libby shortages in any event. Further, they appear to be of a nature similar 31 The election as set forth had reflected five for the Union, three against, and three challenged ballots. 36 This includes the threat to Hill , supra, of less work or loss resulting from union selection to some of those of Ward which Respondent evidently had been overlooking. In addition there was no warning given to Hill of any deficiencies in his work so far as this record reflects , there is no question that Respondent was aware of his union membership , and the statement to him of Hunter Engineering being the cause of his layoff was not even true. The foregoing is to be considered along with the facts and circumstances surrounding the termination of Ward, the threat by W. H. Sackett to lay off and terminate those who were for the Union, a week before Christmas, the general threats and interference by the Respondent, and the action in terminating or laying off most of those who appeared to be union supporters - there were , evidently from the election results,35 about five such persons and four [of these] persons who were known or thought to be active for the Union were terminated, laid off , or reduced in hours on December 19. I am aware that there could be a valid reduction in employment at that time but the selection of four persons (known or thought to be union supporters) following the aforesaid threat in the light of all the foregoing and in addition the partial employment of one McKenzie, a part-time worker during the week of December 19 to 25 indicate that the motivation was other than stated by Respondent . Upon consideration of all of the above , including particularly Respondent's, expressed threats,36 animus and failure to present adequate reasons for Hill's termination, I conclude that Respondent ter- minated Hill in violation of Section 8(a)(3) and (1) of the Act. 3. Layoffs of George Boswell As previously set forth about 2 or 3 weeks before the election, according to Boswell , W. H. Sackett told Boswell that he certainly stirred up the men by starting the Union and Boswell had replied, "thank you." Sackett, as set forth, testified that a similar conversation occurred 2 or 3 weeks after the election. I have credited Boswell's testimony, supra, and accordingly find that Sackett knew about Boswell's union activity sometime in November.37 I also credit Boswell's undenied testimony that he served as an observer at the election on December 3 which would then make his union support obvious. Boswell commenced working for Respondent about March 13, 1966. On December 19, at the same time that Ward and Hill were terminated, Boswell was laid off with W. H. Sackett telling him that he was being laid off in seniority due to lack of business. Boswell' accepted this statement. However, as set forth, the record indicates that one McKenzie , who was not a regular employee, worked some days during the week ending Friday, December 23, prior to which Boswell had been laid off. Boswell was subsequently taken back on December 23 upon advice of the company attorney following a discus- sion between union representatives and the company at- torney. I have previously discussed the cases of Ward and Hill, both of whose terminations on December 19 I have found to be discriminatory . Boswell was a third employee known to be active for the Union, charged by W. H. Sackett in November with starting the Union, and sub- 34 Even on the basis of Sackett 's testimony, 2 weeks after December 3 would be December 17 or before Boswell's layoff SACKETT TRANSPORTATION sequently on December 3 serving as an observer for the Union at the election. His layoff, too, must be viewed in the light of Sackett's threat to lay off union adherents a week before Christmas if the Union won, Sackett's other interrogations and threats found in violation of 8(a)(1) of the Act, supra, Sackett's pondering of the election vote when in San Jose in mid-December as set forth, supra, Sackett's termination of Ward and Hill discussed, supra, and the employment of a part-time worker, McKenzie, during the week Boswell was laid off. Based on all of the foregoing, I find and conclude that Boswell was dis- criminatorily laid off on December 19 in violation of Sec- tion 8(a)(1) and (3) of the Act. Following his reinstatement on December 23, 1966, Boswell continued to work until he was again laid off on or about February 17, 1967, and was off for 5 weeks and 1 day for the period February 18, 1967,38 to Tuesday, March 28, 1967 (the Tuesday after the union contract was signed Friday, March 24). The General Counsel evidently contends that Boswell was pretextually laid off this time because of an incident on February 16 in which he admittedly was chewing tobacco in violation of company rules while waiting for someone to come to his assistance when his truck had stalled on a freeway due to running out of gasoline. The incident involving the tobacco chewing was considered in some detail in the course of the hearing. Whether it was or is of major significance to any issue herein is questionable.39 The General Counsel contends that this incident was used as a pretext for laying Boswell off and that the real reason was his union activity - to retaliate for the Union's imposing sanctions at Respondent's customer Libby (discussed, post), by laying off Boswell as the person Respondent deemed responsible for the Union. Respondent states that the reason Boswell was laid off was that there was no work for him at that time due to the fact that the Libby Co. had stopped transporting its products on Respondent's trucks because certain sanc- tions had been imposed against Libby by the Union. Boswell testified he was told on February 17 by Kenneth Sackett that he was being laid off because business was slow. The sanctions against Libby started on or about February 14 with the result that no revenue was derived from goods transported on behalf of Libby from February 15 through March 30. Respondent's position is that Boswell was laid off because of the reduction in work resulting therefrom and that he was taken back when Libby renewed its employment of Respondent. Records read into the record by Kenneth Sackett (without objec- tion) indicate that the Libby account dropped to zero dur- ing that period (February 15 to March 30) and that the Libby account was substantial. Kenneth Sackett testified it amounted to approximately 18 to 27 percent per month of the total business of Respondent during months other than the time in February and March aforesaid when work was not performed for Libby. Accordingly the Respondent predicates its defense to the layoff of Boswell in this instance on the reduction in business. The General Counsel has not offered any 38 A Saturday. 30 Boswell admitted that he had been previously warned in September 1966, not to chew tobacco while on the job Boswell also admitted he may have chewed tobacco on the job after the warning-said he did so a lot of times at lunch or coffeebreak. He also admitted he was chewing tobacco on the night of February 16 when he ran out of gas on the freeway and 355 evidence to the contrary other than the aforesaid tobacco chewing incident of February 16. While the incident may appear to be related to the layoff in time , it has not been established that the incident was the basis of the layoff. Nor if it were, could it necessarily be said to be un- justified or to support a finding of a discriminatory layoff. I am aware of my previous finding that Boswell 's layoff of December 19 was discriminatory and the basis of said finding, supra. However, to establish that Respondent was discriminatorily motivated in laying Boswell off on February 17 or 18 as alleged by the General Counsel, it would appear incumbent on the General Counsel in the light of the evidence of actual reduction in work to offer evidence to show that the selection then of Boswell was discriminatory40 - such as might be the case if it were shown that less senior employees of the same classifica- tion were retained - which was not done. I conclude that the General Counsel has not proven a case of discrimina- tory layoff as to Boswell during the period February 18 to March 28. As previously set forth I have found that such a discriminatory layoff occurred between December 19 and 23. I shall recommend a remedy accordingly hereafter. 4. The reduction in hours of Cloyde Collins Cloyde Collins was employed in September 1966. Ac- cording to him at the time he was employed by W. H. Sackett he was hired as a regular employee with as- surance of full-time work. Sackett testified that Collins was only employed for part-time work and that he was so told at the time. Accordingly there is a dispute in this con- nection. Subsequently as set forth, supra, at the time of the discussion in the San Francisco area at which W. H. Sackett, Collins, and Merritt were present, Sackett told Collins that he had been employed part time and accord- ing to Sackett's testimony, Collins had replied, " I guess that is right or something like that." The General Counsel contends that the records establish that Collins' employment was regular in nature. The records referred to by the General Counsel establish that in October, out of 4 weeks, he worked three 5-day weeks and one 4-day week; out of 5 weeks in November he worked two 5-day weeks and three 3-day weeks; in December the first week he worked 4 days, the second week 3 days, and the third week (payroll date of December 21), 5 days. Thereafter, the record indicates he worked only 1 day during the balance of the year, apparently for the payroll date of December 28 covering the week ending December 25. Following this he only worked 3 days in January 1967, and 5 days during February 1967. There is considerable discussion in the record with respect to Collins' ability to drive on long-distance hauls, whether he took too much time going to San Francisco and back on a trip, and with respect to his limitations in transport- ing goods in the Los Angeles area due to alleged lack of familiarity therewith. I believe that this is pertinent only insofar as it may indicate the extent of utilization of Col- lins as a casual employee inasmuch as I consider that this that there was some on the ground by the cab and some on the door of the cab which he washed when he returned to the yard. He subsequently received a written reprimand dated March 29 which refers to a tobacco chewing incident at Anax Aluminum Co. on March 28. 40 See Magic Slacks, Inc, 136 NLRB 607,609 350-212 0-70-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was his status. I reach this conclusion because I am crediting the testimony of W. H. Sackett in this respect for several reasons: First, I was not impressed with Col- lins' testimony either in manner or overall content entire- ly apart from the testimony of Merritt aforesaid which I have not relied on. Second, the records, which purport- edly show that Collins was a regular employee, do not in my opinion establish such but rather that he did not work full time even during the busiest period prior to Christmas in 1966. Third, at the time of the election at which Collins appeared to vote, he was not on the eligibility list; he was given a ballot to cast as a challenged ballot which he proceeded to do; this challenged ballot was not even retained as a challenged ballot to be investigated but after the election the company attorney and the union representative who had filed the petition (and represented the Union) agreed that Collins was ineligible; ac- cordingly, his ballot was then disposed of. The latter, although not conclusive, is certainly indicative that the Union was satisfied that Collins was not a regular em- ployee. For all of the foregoing reasons, I conclude that Collins was employed as a casual employee and not a regular employee. The next question is whether the General Counsel has established that there was work for him as a casual em- ployee. He has shown as previously set forth that the Respondent was aware that Collins had favored the Union by voting for the Union in the aforesaid challenged ballot (which was ultimately not considered). The General Counsel contends that there was work for him and that the reduction in work in February and March (resulting from the aforesaid temporary loss of the Libby account) was not indicative of the entire period. The latter is, of course, true. However, the Respondent testified without contradiction that January was a slow month. It also appears from the record that its work from Libby was less after the union sanctions were lifted, that is less after March 1967, than it had been before and that its total workload after March was less than it had been in the latter part of 1966. The General Counsel also offered some indefinite testimony of Collins that when he re- ported for work in the 3 weeks following the time he didn't receive work in December, he observed McKen- zie, Merritt, and Jimmy Sackett at work. Assuming, arguendo, Collins were credited, this testimony does not set forth in any detail what work was performed by whom, or when, or how much, or with what equipment. In addition Merritt -was employed as a swamper, not a driver and Jimmy Sackett is the brother of the owner. I am accordingly unable to attach significant weight to this testimony. The Respondent indicated that it had only four full-time employees subsequent to April 1967. It also in- troduced evidence as to Collins' utilization to the effect that he was not overly familiar with the Los Angeles area and he was not able to handle multiple loads but only to make partial deliveries. The latter was not contradicted. There is also testimony pro and con concerning whether Collins took too long to drive to San Francisco on a run in December and whether he drove too fast in part on the return trip. However, I believe the crucial fact is that the basis of Collins employment was that he was employed to work, if work were available. Accordingly, even during the period of December 19 to 23 when Respondent operated without Ward, Hill, and Boswell but with McKenzie part of the time, it becomes difficult to see how Collins would have been employed unless in place of McKenzie. Such employment of McKenzie at that time was one of the ele- ments considered, supra, in finding Boswell's layoff to be discriminatory but the fact there may have been work for Boswell does not mean there was work for Collins - rather it can be argued that if McKenzie were in place of Boswell he could not be displacing Collins. With respect to subsequent periods of time it does not appear that the General Counsel has shown that Collins would have worked. Accordingly he has not established a case as to Cloyde Collins and I shall recommend that the complaint be dismissed as to the allegations relating to Cloyde Col- lins. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that Respondent has engaged in cer- tain unfair labor practices. It will therefore be recom- mended that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated against Edmund Allen Hill by discharging him, it will be recom- mended that Respondent offer said employee immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges. It will also be recommended that Respondent make said employee whole for any loss of earnings he may have suffered by reason of the dis- crimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from December 19, 1966, to the date of Respondent's offer of reinstatement less his net earnings during-said period. Having found that Respondent discriminatorily ter- minated William Alfred Ward on December 19, for the period December 19, 1966 to December 23, 1966, and discriminatorily laid off George Boswell on December 19, 1966, for the period December 19 to December 23, 1966, it will be recommended that Respondent make said employees whole for any loss of earnings they may have suffered by reason of the discrimination, by payment to each of them of a sum of money euqal to the amount he normally would have earned as wages during said period, less his respective net earnings during said period. Loss of earnings shall be computed in accordance with the formula prescribed in F. W. Woolworth, 90 NLRB 289, and interest at the rate of 6 percent per annum shall be added to the backpay to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate computation of backpay, and the determination of proper effectuation of reinstate- ment. In view of the nature and extent of the unfair labor practices engaged in by Respondent as found above, it will further be recommended that Respondent be ordered SACKETT TRANSPORTATION to cease and desist from infringing in any other manner upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case , the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. W. H. Sackett, d/b/a Sackett Transportation and/or Inland Cities Express is an employer engaged in cam- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truckdrivers and Helpers Union, Local No. 467, International Brotherhood of Teamsters. Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Edmund Allen Hill on December 19, 1966, to discourage membership in a labor organiza- tion, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By discharging William Alfred Ward on December 19, 1966, and failing to reinstate him for the period December 19 to 23, 1966, to discourage membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By laying off George Boswell on December 19, 1966, for the period December 19 to December 23, 1966, to discourage membership in a labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. As found above by interfering with, restraining, and coercing its employees in the exercise of rights guaran- teed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 8. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent discharged William Alfred Ward on or about January 14 or 15, 1967, in violation of Section 8(a)(3) and (1) of the Act. 9. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent laid off George Boswell on or about February 17 or 18, 1967, in violation of Section 8(a)(3) and (1) of the Act. 10. The General Counsel has failed to prove by a pre- ponderance of the evidence that Respondent has reduced the hours of work of Cloyde William Collins in violation of Section 8(a)(3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, it is hereby recommended that Respondent, W. H. Sackett. d/b/a Sackett Transportation and/or Inland Cities Ex- 41 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States 357 press, his officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in General Truckdrivers and Helpers Union, Local No. 467, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of his employees, by discriminating in regard to their hire and tenure of employment or any term or condition of employment. (b) Unlawfully interrogating employees with respect to union membership or activities. (c) Threatening employees with discharge or reprisal for participating in union activities or supporting a union. (d) Creating an impression of surveillance by Respond- ent of union activities. (e) In any other manner interfering with, restraining, or coercing his employees in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, including the above-named labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protec- tion, or to refrain from any or all such activities except to the extent that such right may be affected by an agree- ment authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Edmund Allen Hill immediate and full rein- statement to his former or substantially equivalent posi- tion without prejudice to his seniority and other rights and privileges. (b) Make Edmund Allen Hill, William Alfred Ward, and George Boswell whole for any loss of earnings they may have sustained as a result of the discrimination against them in the manner prescribed in section V of this Decision entitled "The Remedy." (c) Notify Edmund Allen Hill if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (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 analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its place of business located at Riverside, California, copies of the attached notice marked "Appen- dix B. "41 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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. Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 358 DECISIONS OF NATIONAL (f) Notify the Regional Director for Region 21, in writ- ing, within 10 days from the date of this' Order, what steps have been taken to comply herewith.42 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 42 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 Re- spondent has taken to comply herewith." APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: I WILL NOT discourage membership in General Truckdrivers and Helpers Local No. 467, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization by discharging, laying off, or otherwise discriminating in regard to the hire and tenure of employment, or any term or condition of employment of my employees. I WILL NOT unlawfully interrogate employees with respect to union membership or activities. I WILL NOT threaten employees with discharge or reprisal for participating in union activities or sup- porting a union. I WILL NOT give the impression that I am engaging in surveillance of union activities. I WILL NOT in any other manner interfere with, restrain, or coerce my employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist the above-named labor or- ganization or any other labor organization, to bargain LABOR RELATIONS BOARD collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act. I WILL offer to Edmund Allen Hill immediate and full reinstatement to his former or substantially equivalent, position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the dis- crimination against him. I WILL make whole William Alfred Ward and George Boswell for any loss of pay suffered as a result of the discrimination against them. W. H. SACKETT, D/B/A SACKETT TRANSPORTATION AND/OR INLAND CITIES Ex- PRESS (Employer) Dated By (Representative) (Title) Note: I will notify Edmund Allen Hill if presently serving in the Armed Forces of the United States of his 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. 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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229.